Ashwathanarayana vs S.M.Narayanswamy
2023 Latest Caselaw 3013 Kant

                                       RFA NO.270/2017
                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8th DAY OF JUNE, 2023

                        PRESENT

       THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                          AND

THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

           R.F.A NO.270 OF 2017 (DEC/INJ)

BETWEEN:

1.     ASHWATHANARAYANA
       S/O A. JANARDHAN SHETTY
       AGED ABOUT 68 YEARS
       R/AT NO.1406/1
       3RD BLOCK, 20TH CROSS
       JAYANAGAR EAST
       BANGALORE-560 011

2.     T. PRAMOD KUMAR
       S/O T. GOVINDASWAMY
       AGED ABOUT 54 YEARS
       R/AT NO.1152, 22ND CROSS
       BSK 2ND STAGE
       BENGALURU-560 070                 ...APPELLANTS

(BY SHRI. ZULFIKIR KUMAR SHAFI AND
    SHRI. S. LAKSHMI NARAYANA REDDY, ADVOCATES)

AND:

S.M. NARAYANSWAMY
SINCE DEAD BY HIS LRS

1.     SMT. UMA DEVI N. SWAMY
       W/O LATE S.M. NARAYANSWAMY
       AGED ABOUT 58 YEARS
                                   RFA NO.270/2017
                         2



2.   B.N. NAVEEN KUMAR
     S/O LATE S.M. NARAYANSWAMY
     AGED ABOUT 42 YEARS

3.   SMT. CHETHANA N. SWAMY
     D/O LATE S.M. NARAYANSWAMY
     AGED ABOUT 40 YEARS

4.   B.N. UDAYESH
     S/O LATE S.M. NARAYANSWAMY
     AGED ABOUT 36 YEARS

5.   B.N. AKASHDEEP
     S/O LATE S.M. NARAYANSWAMY
     AGED ABOUT 22 YEARS

     RESPONDENTS NO.1 TO 5 ARE
     RESIDING AT NO.97
     LALBAGH FORT ROAD
     DODDAMAVALLI
     BENGALURU-560 004

6.   SMT. J.R. GEETHA
     W/O K. SURESHA
     AGED ABOUT 52 YEARS
     R/A NO.886/1, 515 COLONY
     WARD NO.83, HAL 3RD STAGE
     BENGALURU-560 075

7.   J.R. SHANKARAPRASANNA
     S/O A.S. RAMGOWDA
     AGED ABOUT 45 YEARS
     R/AT AMBALAGEERAHALLI
     MYSORE-TUMKUR ROAD
     BELLUR HOBLI
     NAGAMANGALA TALUK
     MANDYA DISTRICT-571 432

8.   K. VIJAYAKUMAR
     S/O Y. KRISHNA REDDY
     MAJOR
     R/AT NO.717/1, TURABAHALLI
     WHITEFIELD ROAD
     RAMAGUNDAHALLI POST
                                         RFA NO.270/2017
                             3



      VARTUR HOBLI-560 037
      BENGALURU SOUTH TALUK

9.    YOGA ENTERPRISES
      REGD. FIRM HAVING
      REGD. OFFICE AT NO.126
      KHB COLONY, KORAMANGALA LAYOUT
      BENGALURU-560 095
      REPRESENTED BY ITS MANAGING PARTNERS

9(A). SRI. H.S. MANJUNATHA RAO
      S/O SEETHARAMAIAH
      AGED ABOUT 77 YEARS

9(B). SRI. H.M. KRISHNA
      S/O H.S. HANUMANTHA RAO
      AGED ABOUT 43 YEARS

10.   CHANDA KESANNA
      S/O C.P. VENKATESULU
      AGED ABOUT 70 YEARS
      R/AT DOOR NO.4/1/3
      JARAGA BANDA STREET
      URVAKONDA-515 812
      ANANTHAPUR DISTRICT
      ANDHRA PRADESH                    ...RESPONDENTS

(BY SHRI. P.S. RAJAGOPAL, SENIOR ADVOCATE FOR
    SHRI. S.B. BHAT, ADVOCATE FOR R1 TO R5;
    R6 TO R10 SERVED)

      THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
09.12.2016 PASSED IN OS NO.10410/2005 ON THE FILE OF
THE XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BENGALURU,
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.


      THIS RFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON   31.03.2023    COMING      ON    FOR
                                                     RFA NO.270/2017
                                4



PRONOUNCEMENT           OF      JUDGMENT,            THIS         DAY,
P.S.DINESH KUMAR J., PRONOUNCED THE FOLLOWING:-


                         JUDGMENT

This appeal by the defendants is directed against

the judgment and decree dated December 09, 2016

in O.S. No. 10410/2005 passed by the XXXVII

Additional City Civil and Sessions Judge, Bangalore,

decreeing plaintiff's suit for declaration and

permanent injunction.

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. The original Plaintiff, S.M. Narayanaswamy

brought the instant suit seeking following prayers:

a. Declaring that the plaintiff is the absolute owner of the schedule property.

b. As a relief consequential to the relief under prayer (a) granting an order of permanent injunction restraining the defendant his workmen henchmen agents and all persons claiming under or through him from, interfering with the RFA NO.270/2017

plaintiff's peaceful possession and enjoyment0020of the schedule property

c. Awarding costs.

d. Granting such other relief/s as this Hon'ble Court may deem fit in the circumstances of the case.

4. Subsequently, by way of amendment,

plaintiff added one more prayer to remove the

encroachment in the schedule property and to deliver

vacant possession of Schedule "A" property to the

plaintiff.

5. In the plaint, plaintiff has contented inter alia

that:

 land bearing Sy. No. 64, originally

measured about 13 acres 01 gunta. Some

portions of the said land were sold and they

were allotted separate Sy. Nos. Viz. 113 and

114. The remaining portion of the land

measuring 4 acres 28 guntas retained the RFA NO.270/2017

original Sy. No. 64 (hereinafter referred to as

the 'subject land');

 one Sri. C. Muniswamy purchased 30

guntas out of the subject land from Sri. B.S.

Puttaswamy vide sale deed dated 23.12.1974.

Muniswamy purchased another extent of 27½

guntas out of the subject land from Sri.

Channarayappa and Sri. C. Muniyappa under

the sale deed dated 04.05.1973. Muniswamy

purchased yet another 27½ guntas out of the

subject land from Sri. Chinnappa under the sale

deed dated 20.02.1975;

 R. Muniyappa, purchased 01 acre 21

guntas out of the subject land from Sri.

Yellappa and others under the sale deed dated

29.10.1958. He also purchased 01 acre 14

guntas out of the subject land from Sri.

Channarayappa under the sale deed dated

13.05.1965;

RFA NO.270/2017

 one Nanjundappa owned 01 acre 14

guntas in the subject land. He sold the eastern

half measuring 27 guntas to Sampangiramaiah

(Sri. B.S. Puttaswamy's father) under the sale

deed dated 18.04.1949. Thereafter,

Nanjundappa sold the remaining western half

portion measuring 27 guntas to Sri.

Channarayappa, under the sale deed dated

18.04.1949;

 as per sale deed dated 18.04.1949

Channarayappa had acquired only 27 guntas in

the subject land. However, vide sale deed dated

13.05.1965, he had sold 01 acre 14 guntas to

Muniyappa. Therefore the said sale was not

valid;

 plaintiff purchased 02 acres 10 guntas

including 05 guntas of Kharab out of the subject

land from Muniswamy (suit property);

RFA NO.270/2017

 Mutation No. 43/86-87 has been effected

in respect of one portion measuring 27½ guntas

and MR No. 3/1988-89 in respect of other two

portions together measuring 1 acre 17½

guntas. These entries were correctly reflecting

in the record of rights till 1999-2000. When

computerized system was introduced, error

crept in and plaintiff was shown as owner of

only 27½ guntas in the suit property. He filed

an application for rectification of error and the

same is pending;

 first defendant had purchased the entire

holding of 2 acres 35 guntas under registered

sale deed dated 16.10.1987 from R.Muniyappa.

Though the sale is stated to be in respect of 2

acres 35 guntas, in reality, the sale was in

respect of only 2 acres 8 guntas as

R.Muniyappa was the owner of only 2 acres 8

guntas;

RFA NO.270/2017

 Government of Karnataka acquired 01

acre 2 guntas in the subject land for the benefit

of Aircrafts Employees House Building

Co-operative Society Limited (AEHB Society)

and acquired a portion which belonged to the

first defendant;

 plaintiff is also the owner of property

bearing Sy. No. 113. Plaintiff and his wife own

properties in Sy. Nos. 113 and 114;

 plaintiff is carrying on agricultural

operation in the suit schedule property;

 defendant applied to ADLR1 for fixation of

boundaries in respect of his alleged holding.

The application was transferred to Tahsildar.

Plaintiff entered appearance and filed

objections.

 the Tahsildar passed an order dated

29.11.2005 holding that plaintiff had

encroached into defendants land and directed

Assistant Director of Land Records RFA NO.270/2017

fixation of boundaries. Plaintiff challenged

Tahsildar's order before the Assistant

Commissioner, Bangalore;

 during the pendency of suit, defendant

trespassed into the suit property on

14.09.2007, demolished the compound wall and

constructed a new one.

6. The first defendant resisted the suit by filing

written statement contending inter alia that:

 in Sy.No.64, land measuring 1 acre 21

guntas belonged to Yellappa and land

measuring 1 acre 14 guntas belonged to

Channarayappa. Both Yellappa and

Channarayappa had sold the said land in favour

of Sri. R. Muniyappa under two separate sale

deeds dated 29.10.1958 and 13.05.1965. In

turn, R. Muniyappa sold both pieces of land, in

all measuring 2 acres 35 guntas in favour of

first defendant under sale deed dated RFA NO.270/2017

29.10.1987. Since then he is in possession and

enjoyment of 2 acres 35 guntas in Sy. No. 64;

 Sy. No. 64 was initially measuring 13

acres 01 gunta including 01 acre 6 guntas of

phut-karab. After Akarbandh Durasti, 04 acres

13 guntas including 13 guntas of karab was re-

numbered as Sy. No. 113 and 04 acres

including 10 guntas karab was re-numbered as

Sy. No. 114. Sy. No. 64 was thus reduced to

04 acres 28 guntas including

05 guntas karab. Out of 04 acres 28 guntas,

01 acre 2 guntas has been acquired by the

Government for the benefit of AEHB Society.

Plaintiff has purchased 27½ guntas and first

defendant has purchased 2 acres 35 guntas;

 there is no existence of schedule 'A'

property. Hence, there is no question of

encroachment by the first defendant.

RFA NO.270/2017

7. Defendants No.2 to 5 have filed common

written statement contending inter alia that they are

bonafide purchasers having purchased 2 acres 35

guntas from first defendant under sale deed dated

21.05.2005 and the said property has been

converted vide order dated 25.04.2003. Khata has

been changed in the names of defendants No. 2 to 4.

Thereafter, defendants No.2 to 4 have sold the land

in favour of defendant No.5. It is further averred that

the suit is barred by limitation.

8. With the above pleadings, parties went to the

trial and the learned Trial Court framed following

issues:

1. Whether the plaintiff proves his ownership and possession over the suit schedule property?

2. Whether the plaintiff further proves the alleged interference by the defendant in his possession over the suit schedule property?

3. Whether the plaintiff has got cause of action to file the suit?

RFA NO.270/2017

4. Whether the plaintiff is entitled for the relief sought for?

5. What order or decree?

9. Subsequently following four additional issues

were framed:

1. Does the plaintiff prove that on 14.09.2007 defendants have trespassed over the suit schedule property demolished the compound wall existing towards the northern side of the suit schedule property cut the trees and structure and exacted a new compound wall over an area to the extent of the acre 3 guntas of land over the suit schedule property as described as a schedule in the plaint?

2. Does the plaintiff prove that he is entitled to the vacant possession of the suit schedule property from the defendants?

3. Does the defendant prove that plaintiff's relief for recovery of possession of the suit property is barred by time?

4. Does the plaintiff proves suit is properly valued court fee paid on the same is sufficient?

10. On behalf of the plaintiff, two witnesses

were examined as P.W.1 and P.W.2 and Exs. P1 to

P75 marked. Defendants No.1 and 5 were examined RFA NO.270/2017

as D.W.1 and D.W.2 and Exs.D1 to D40 marked.

Answering issues No.1 to 4 and additional issues 1, 2

and 4 in the affirmative; and additional issue No.3 in

the negative, the Trial Court has decreed the suit.

have preferred this appeal on various grounds.

12. We have heard Shri. Nanjunda Reddy,

learned Senior Advocate along with Shri. Zulfikir

Shafi for defendants and Shri. P.S. Rajagopal,

learned Senior Advocate along with Shri. S.V. Bhat,

for the plaintiff.

13. Shri. Nanjunda Reddy reiterating and

amplifying the grounds urged in memorandum of

appeal submitted that:

 the suit was originally filed only against

were impleaded;

RFA NO.270/2017

 first defendant is the bonafide purchaser

of 2 acres 35 guntas in Sy.No.64 having

purchased the same under sale deed dated

29.10.1987. After purchasing, first defendant

got the revenue records transferred in his

name;

 in the proceedings initiated before the

Tahsildar for causing durast of the land, a

survey/spot inspection was conducted after

issuing notice to the all concerned. Based on

the survey report, perusal of records and after

hearing plaintiff and first defendant, the

Tahsildar ordered for durast of first defendant's

land and directed for correction of land records.

Plaintiff unsuccessfully challenged the

Tahsildar's order before the Assistant

Commissioner and the Deputy Commissioner.

The order passed by Deputy Commissioner has

attained finality;

RFA NO.270/2017

 plaintiff's vendor C. Muniswamy had sold

01 acre 32 guntas of land as per Ex.P37 dated

26.11.1985 in favour of plaintiff's wife Uma devi

by showing the land as Sy.No.114;

 plaintiff has admitted in para 4(a) of the

plaint that first defendant has purchased 02

acre 35 guntas as per sale deed dated

16.09.1987. He has not challenged the said

sale deed;

 the subject land was converted for non-

agricultural purpose in 2003. Plaintiff was fully

aware of purchase of land by first defendant

and other developments. He has not challenged

the conversion order or the order passed by the

Deputy Commissioner confirming the

Tahsildar's order;

 plaintiff has examined two witnesses.

P.W.1 is the son of deceased plaintiff and P.W.2

is his neighbour. P.W.1 had no personal RFA NO.270/2017

knowledge of the boundaries. P.W.2 is a total

stranger. Thus the oral evidence brought on

behalf of plaintiff does not support plaintiff's

case in any manner.

14. With the above submissions, Shri. Nanjunda

Reddy, assailing the impugned judgment and decree

argued that they are unsustainable in law because

the learned Trial Judge has misdirected himself by

limiting the examination of facts only with respect to

the subject land. He has failed to notice that plaintiff

was a party in the proceedings before the Tahsildar

in which a survey was conducted in plaintiff's

presence and sketch was prepared as per Ex.P22.

Based on the said survey sketch and the Revenue

records, the Tahsildar has passed his order and the

same has been confirmed by the Assistant

Commissioner and the Deputy Commissioner.

RFA NO.270/2017

15. Shri. Reddy further argued that the learned

Trial Judge has adverted to the proceedings before

the Tahsildar and the survey sketch Ex.P22 and also

recorded in para 26 that as per Section 83 of the

Indian Evidence Act, 1872, Ex.P22 was admissible in

evidence. Yet the learned Trial Judge has held that

plaintiff's case appeared more 'probable'.

16. In substance, Shri. Reddy submitted that

plaintiff had failed to aver and prove his case. The

learned Trial Judge has decreed the suit on surmise

and not based on proof and prayed for allowing this

appeal.

17. Shri. Rajagopal, learned Senior Advocate,

for Legal Representatives of deceased plaintiff

arguing in support of the impugned judgment

submitted that first defendant's vendor did not have

title for 02 acres 35 guntas. To support this

argument he adverted to Exs. P4 and P9. According RFA NO.270/2017

to him, one Nanjundappa was the owner of land

measuring 01 acre 14 guntas in the subject land, out

of that he had sold 27 guntas to Channarayappa as

per Ex.P4. However, Channarayappa had sold 1 acre

14 guntas to R. Muniyappa from whom first

defendant had purchased. Thus according to

Shri.Rajagopal, first defendant has no title for

27½ guntas.

18. He next contented that 01 acre 2 guntas of

land was acquired for the benefit of the AEHB

Society. The said land also fell within first

defendant's holding.

19. Shri. Rajagopal urged that Nanjundappa had

sold 27 guntas of land to Samapangiramaiah on

18.04.1949 and it was registered as document

No. 6375. Nanjundappa had sold another piece of

land measuring 27 guntas to Channarayappa under

Document No. 6376. Placing reliance on RFA NO.270/2017

Azizulla Shariff alias Anwar Pasha and Others Vs.

Babhuthimul2, he submitted that the document

registered earlier (6375 in favour of

Sampangiramaiah) must be treated as a valid

document. Consequently sale deed as per Ex.P9

whereunder Channarayappa had sold 01 acre 14

guntas in favour of first defendant's vendor is not a

valid document. Hence, no title had flown in favour of

first defendant.

20. In substance, Shri. Rajagopal urged that

plaintiff is the lawful owner of the suit property.

During the pendency of suit, first defendant had

encroached upon plaintiff's land; first defendant's

title was defective. He submitted that considering all

these aspects, the learned Trial Judge has rightly

decreed the suit.

21. We have carefully considered the rival

contentions and perused the records.

1972 (2) MLJ 408 para 10 and 13 RFA NO.270/2017

22. In the light of the pleadings on record and

contentions urged on behalf of the plaintiff and the

defendants, the point that arises for consideration is

whether the impugned judgment calls for

interference?

23. Plaintiff's specific case is, as per Revenue

records, after bifurcation, Sy.no.64 was measuring

4 acres 28 guntas. He had acquired 02 acre 5 guntas

under Exs.P26, 27 and 28.

24. Plaintiff's learned Advocate on record has

filed written submissions along with a chart showing

the flow of title. Plaintiff's main contention is that one

Nanjundappa was the owner of 01 acre 14 guntas.

He had sold the said land in two pieces, each

measuring 27 guntas in favour of Samapangiramaiah

and Channarayappa. According to the plaintiff,

Channarayappa had title only for 27 guntas, but he RFA NO.270/2017

had sold 01 acre 14 guntas in favour of R. Muniyappa

(first defendant's Vendor) as per Ex.P9.

25. We may record that Ex.P9 was executed on

13.05.1965 as Document No. 777. The same was

purchased by first defendant on 15.10.1987

registered as Document No. 6010 (Ex.D24).

26. We may further record that the three

documents on which the plaintiff claims to have

purchased three separate pieces of land are as

follows:

Date            Vendor                           Area           Exhibit

31.07.1987 Chinnamma and others claiming         30 guntas      Ex. P29
           under C. Muniswamy .

03.08.1987 Chinnamma and others claiming         27½ guntas     Ex. P31
           under C. Muniswamy.

03.08.1987 Chinnamma and others claiming         27½ guntas     Ex. P32
           under C. Muniswamy.


           27.       We    may     further    record     that   first

defendant's vendor R.Muniyappa had purchased 01

acre 14 guntas from Channarayyappa on RFA NO.270/2017

13.05.1965. Plaintiff claims to have purchased

properties as per Exs. 29, 31 and 32.

 Ex. P29 is based on Ex.P26 executed by

B.S.Puttaswamy to Muniswamy on

23.12.1974;

 Ex.P31 is based on Ex.P27 executed by

Channarayappa's son to Muniswamy on

04.05.1973;

 Ex.P32 is based on Ex.P28 executed by

Channarayappa's son to Muniswamy on

20.02.1975.

28. Thus all three mother documents of

Exs.P29, P31 and P32 namely, Exs.P26, P27 and P28

have come into existence between 1973 and 1975.

29. The mother documents of defendant's sale

deed (Ex.D24) have come into existence between

1958 and 1965 as per Exs.P8 and P9.

RFA NO.270/2017

30. Admittedly, plaintiff has participated in the

proceedings before the Tahsildar. In his order as per

Ex.D17, Tahsildar has directed to complete the

boundary durasthi proceedings and to record 02 acre

35 guntas in favour of first defendant. The said order

is based on Ex.P22, the survey sketch prepared in

the proceedings before the Tahsildar. Plaintiff's

challenge to the Tahsildar's order has failed both

before the Assistant Commissioner and the Deputy

Commissioner (Exs. D15 and D16). Adverting to the

proceedings before the Tahsildar, the learned Trial

Judge has righty recorded in para 26 of the

impugned judgment that as per Section 83 of the

Indian Evidence Act, 1872, Ex.P22 is admissible in

evidence. In view of dismissal of plaintiff's appeal,

Ex.P22 has attained finality.

31. So far as the oral evidence is concerned

P.W.1 and P.W.2 have been examined on behalf of

the plaintiff. P.W.1 is son of deceased plaintiff.

RFA NO.270/2017

He has admitted in his cross-examination 3 that

plaintiff had not challenged the order passed by the

Deputy Commissioner. He has also admitted that

plaintiff had not challenged the conversion order of

the year 2003. He has denied a suggestion that it

was within his father's knowledge that first defendant

was the owner of 02 acre 35 guntas and therefore he

had not challenged the conversion order. He has also

admitted that he did not remember the boundaries of

the land purchased by his father. A careful perusal of

evidence tendered by P.W.1 shows that he had no

personal knowledge about the lands purchased by his

father, the boundaries and other affairs.

32. P.W.2 is neighbour of P.W.1. He has stated

in examination-in-chief that on 14.09.2007 nearly

100 persons had trespassed into plaintiff's land,

removed the fence and demolished some structures.

In the cross-examination, he has admitted that he

Dated 05.01.2012 RFA NO.270/2017

did not know the survey number of the property. This

witness did not even know the survey number of the

property. Hence his evidence is of no avail to prove

plaintiff's case.

33. As per the legal maxim Actori incumbit

probation, the burden of proof is upon the plaintiff. It

is settled that it is for the plaintiff to aver and prove

his case. As recorded hereinabove, first defendant's

vendor had acquired his title in 1965 and first

defendant has purchased the property as per Ex.D24

in 1987. Plaintiff's vendors had acquired their title

between 1973 and 1975 which is after a decade

reckoned from the date of acquisition of title by

defendant's vendor.

34. The learned Trial Judge has adverted to the

sale of 1 acre 14 guntas by one Nanjundappa in

1949. According to the plaintiff, first defendant's title

was defective because Channarayappa (defendant's RFA NO.270/2017

vendor's vendor) had, infact acquired 27 guntas

under a sale deed of 1949, but sold 1 acre 14 guntas

in 1965. It is relevant to note that there is no

evidence on record to come to such conclusion. On

the other hand, plaintiff who claims to have

purchased 30 guntas of land from Puttaswamy could

have got only 27½ guntas because according to the

plaintiff himself Puttaswamy's father had purchased

only 27½ guntas. Further the other source of

plaintiff's title is 27½ guntas of land from

Channarayappa in the year 1973 (Ex. P27). It is

relevant to note that the said Channarayappa had

already sold 1 acre 14 guntas in favour of

R. Muniyappa in the year 1965 (Ex. P9). Therefore

plaintiff's title over his land measuring 27½ guntas

and 30 guntas is not established. Both the plaintiff's

witnesses had no knowledge about these aspects. In

any event, Channarayappa had sold 1 acre 14 guntas

in 1965. Admittedly, plaintiff's vendor (Muniswamy) RFA NO.270/2017

had purchased 30 guntas of land in 1975 i.e., 10

years after first defendant's vendor (R. Muniyappa)

had purchased the property.

35. It was strenuously contended by Shri.

Rajagopal that sale deeds Exs. P3 and P4 were

executed on 18.04.1949. Out of the two, sale deed

executed in favour of Sampangiramaiah (Ex.P3) was

valid. Ex.P4 being registered subsequently,

Channarayappa had not acquired title. We may

record that the sale deeds - Exs.P3, P4, P9 or D24

were never challenged. No documentary evidence

such as Mutation Register Extract, Record of

Rights/Pahani, Patta book, land revenue paid receipt

in respect of Ex.P3 are produced to demonstrate that

Channarayappa had not acquired any title for 1 acre

14 guntas. We may further record that not even any

oral evidence by adjacent land owners or resident of

the village is brought either before the Trial Court or

this Court in support of said contentions. The earliest RFA NO.270/2017

Revenue records produced by the plaintiff are from

the year 1979-1980. As recorded hereinabove, first

defendant's vendor (R. Muniyappa) has purchased 1

acre 14 guntas as back as 1965. Plaintiff's vendor

(Muniswamy) has purchased 27½ guntas in 1973.

Thus, plaintiff has failed to aver and prove this

contention urged by the learned Senior Advocate.

36. Plaintiff's specific case is, record of rights

(pahanis) were correctly reflecting plaintiff's holding

till 1999-2000 and error had crept in showing

plaintiff's holding as only 27½ guntas. We may

record that plaintiff has produced record of rights as

Ex.P46 for the year 2000-2004, wherein 27½ guntas

is shown in his name, 1 acre 2 guntas in the name of

AHBE Society and 2 acre 35 guntas in the name of

first defendant.

37. It is settled that as per Section 133 of the

Karnataka Land Revenue Act, 1964, the entries in RFA NO.270/2017

Revenue record must be presumed to be true and

correct. Section 133 of the Karnataka Land Revenue

Act, 1964 reads as follows:

"133. Presumption regarding entries in the records.--An entry in the Record of Rights and a certified entry in the Register of Mutations [or in the patta book] shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.'' (Emphasis supplied)

38. It is relevant to note that first defendant

has produced Exs.D18 and Ex.D19 for the year 1995-

96 and 2000-2001. There is no cross-examination of

D.W.1 and D.W.2 on these two documents. Both

these documents show that the land was, in all

measuring 4 acre 28 guntas. Out of that, 2 acre 35

guntas was mutated in the name of first defendant

as per MR. No. 4/86-87, an area of 27½ guntas was

mutated in the name of plaintiff as per MR No.

3/88-89 and 1 acre 2 guntas was mutated in the

name of AHBE Society as per MR No. 27/91-92. The RFA NO.270/2017

entries in the name of plaintiff and the AHBE Society

mentioned in Ex.P46 are exactly the same as

mentioned in Exs.D18 and D19. This means that first

defendant's name was found in the Revenue Records

(pahani) from the year 1995-96 and continued

thereafter. Hence plaintiff's main contention that he

learnt about reduction of his holding in 1999-2000

must fail.

39. Plaintiff has further averred that he had

sought for correction in Revenue Records but no

material is placed either before the Trial Court or this

Court in that behalf.

40. Further, the area of holding by plaintiff,

first defendant, the land acquired for ABHE Society

as described in Ex.P22, and the Survey Sketch also

matches with the Revenue Records prepared during

undisputed point of time namely, 1995-96 and

thereafter.

RFA NO.270/2017

41. It is also noteworthy that first defendant's

land was converted for non-agricultural purpose in

2003 and it has not been challenged by the plaintiff.

P.W.1, has stated in cross examination dated

05.01.2012 that his father had knowledge about first

defendant's ownership but he has not challenged the

conversion order.

42. It was also argued on behalf of the plaintiff

that during the pendency of suit, first defendant had

encroached upon plaintiff's land. To support this

contention P.W.2 has been examined. He has stated

that on 14.09.2007 there was trespass into plaintiff's

property. We may record that though it is claimed

that there was trespass on 14.09.2007, plaintiff has

sought to bring it on record by way of I.A.No.4 filed

in the Trial Court on 18.09.2010 after a lapse of

nearly 3 years. In our opinion, any prudent person

would take immediate action to protect his right over RFA NO.270/2017

the property against any trespass. Plaintiff has not

shown any reason much less a cogent reason to

justify the delay and lapse of 3 years.

43. We now advert to I.A.No. 3 and I.A.No.4

filed in this appeal.

44. I.A. No.3 has been filed by the plaintiff to

initiate action under Order 39 Rule 2A of the Code of

Civil Procedure, 1908, for alleged violation of interim

order dated 21.02.2017. It is alleged in para 10 of

the affidavit filed in support of the I.A. that

construction was being put up in violation of interim

order dated 21.02.2017.

45. I.A.No.4 has been filed by the defendants

Nos. 1 and 5 on 12.07.2017 with a prayer to appoint

a surveyor to measure the entire Sy.No.64

measuring 13 acres 1 gunta and to fix the

boundaries.

RFA NO.270/2017

46. Shri. Bhat, learned Advocate for the

plaintiff strongly pressed I.A.No.3 to initiate action

against the defendants. Surprisingly, Shri. Bhat

strongly opposed I.A.No.4 for appointment of

surveyor. If plaintiff was confident about his case

there was no reason to oppose a fresh survey.

47. In view of the above discussion, we are of

the considered opinion that plaintiff has failed to aver

and prove his case. The basis of his suit is reduction

of 27½ guntas in his holding after computerised

pahanis were introduced. The said theory is

demolished by the survey sketch (Ex.P22) and the

unchallenged RTCs for the year 1995-96 to

2000-2001 (Exs.D18 and D19).

48. We are conscious of the fact that a decree

for declaration is a discretionary relief and can be

interfered with only when exercise of discretion is

perverse. But in the instant case, for the reasons RFA NO.270/2017

reordered hereinabove, we are of the considered

view that the learned Trial Court has misdirected

itself with certain crucial factual matrices and passed

the impugned judgment on the basis of irrelevant

material which was not before the Court. It is held by

the learned Trial Judge that the on the basis of

material on record, plaintiff's case was more

'probable'. A lis between the parties has to be

decided on pleading and evidences on record and not

on probability. Therefore, this appeal merits

consideration. Consequently we answer the point for

consideration in affirmative.

49. So far as I.A.No.3 to initiate action against

the appellants, in view of our finding that plaintiff has

failed to prove his case, the application does not

merit consideration and liable to be dismissed.

50. So far as I.A.No.4 to conduct survey is

concerned, the same was strongly opposed by the RFA NO.270/2017

plaintiff. In any event, in view of our finding that

plaintiff has failed to prove his case, no useful

purpose would be served by directing fresh survey at

this juncture.

51. Hence the following:

ORDER

a) Appeal is allowed.

b) Judgment and decree in O.S. No.

10410/2005 dated December 09, 2016,

passed by the XXXVII Additional City Civil

and Sessions Judge, Bangalore, is set-aside

and the suit is dismissed.

c) I.A.No.3 is dismissed.

d) I.A. No. 4 is disposed of.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE SPS