Balavendra S/O Prakashappa vs The Catholic Church Mudgal
2023 Latest Caselaw 3059 Kant

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                                                    NC: 2023:KHC-K:871
                                                       RSA No. 7068 of 2010




                             IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                           DATED THIS THE 9TH DAY OF JUNE, 2023

                                           BEFORE
                       THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
                   REGULAR SECOND APPEAL NO. 7068 OF 2010 (DEC/INJ)
                   BETWEEN:

                   BALAVENDRA S/O PRAKASHAPPA,
                   OCC:CARPENTER,
                   R/O:BEGUMPUR MUDGAL,
                   TQ:LINGASUGUR,
                   DIST:RAICHUR-584 101.

                                                               ...APPELLANT

                   (BY SRI CHAITANYAKUMAR C M, ADVOCATE)

                   AND:

                   THE CATHOLIC CHURCH,
                   MUDGAL, TQ:LINGASUGUR,
Digitally signed
                   DIST:RAICHUR-584 101,
by SACHIN          REPRESENTED AND OFFICIATED BY
Location: HIGH     REV.FATHER LOORTH SWAMY.
COURT OF
KARNATAKA
                                                             ...RESPONDENT

                   (BY SRI J.AUGUSTIN, ADVOCATE)

                         THIS RSA FILED IS U/S. 100 OF CPC PRAYING TO ALLOW
                   THIS APPEAL AND SET-ASIDE THE JUDGMENT AND DECREE
                   DATED 14.10.2008 PASSED BY THE COURT OF CIVIL JUDGE
                   (JR.DIV.) AT LINGASUGUR IN O.S.NO.73/2000 AND ALSO THE
                   JUDGMENT AND DECREE DATED 12.10.2009 PASSED BY THE
                   COURT OF THE CIVIL JUDGE (SR.DV.) AT LINGASGURU IN
                   R.A.NO.42/2008 AND CONSEQUENTLY BE PLEASED TO
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                                     NC: 2023:KHC-K:871
                                        RSA No. 7068 of 2010




DECREED THE APPELLANTS SUIT AS PRAYED FOR IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

1. This second appeal arises out of the suit filed by

the appellant whereby he had sought to be declared as the

owner of the open space measuring 25 feet towards east

to west and 75 feet towards north to south which was a

part of house No.4-4-274-4-4-290. The Trial Court

dismissed the suit and the same has been affirmed by the

Appellate Court and hence the second appeal.

2. The case of the appellant was that his father

Prakashappa and his uncle Chinappa were the owners of

house No.1471 and 1472 and in these properties the

brothers had constructed a residential house and had left

an open space in House No.1471 for their enjoyment.

3. It was stated that subsequently, these two

properties were clubbed and a common number was

allotted as 4-4-274/4-4-290 which together comprised of a

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

house and the open space. It was stated that the open

space was to the east of the house.

4. It was contended that the plaintiff's uncle

Chinnappa passed away in the year 1995 and thereafter

his father Prakashappa also passed away and after their

demise, the plaintiff got his name entered in the revenue

records and was enjoying possession over the open space.

5. It was stated that the plaintiff had in fact

sought for permission to construct in this open space and

the same was pending consideration with the Town

Panchayat and at that time the defendant had obtained

the construction over the property measuring 45x60 feet

and it was trying to encroach upon the property of the

plaintiff and therefore, the plaintiff was constrained to

institute the suit.

6. The defendant, which is a Church, entered

appearance and contested the suit by filing a written

statement. The Church contended that it was the absolute

owner of the suit property and the same had been gifted

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

to it under an unregistered gift-deed dated 28.06.1968 by

one Arogyappa Irla.

7. It was stated that the property gifted to them

was assessed to tax and was given house No.4-4-273/4-4-

289. It was stated that the mutation made out in the

name of the Church was never objected to by the plaintiff

and the eastern side of the property adjoining the

plaintiff's house measuring 45x60 feet, in fact, belonged to

the Church and entries were also made in the municipal

records to that effect.

8. The Church also contended that it was in

possession of the property and it had perfected its title by

way of adverse possession and therefore the plaintiff's suit

was required to be dismissed. The adverse possession

over the suit land was set-up from 1967-68 in respect of

the area excluding the plaintiff's carpentry shed area

which was lying in the Government property.

9. The Trial Court on the consideration of the

material placed before it, came to the conclusion that the

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

plaintiff had proved its possession over the suit open

space, but had failed to prove his title. It also recorded a

finding that the plaintiff had failed to prove the obstruction

and therefore was not entitled for relief sought for.

10. The Trial Court also held that the claim of the

Church that the suit of the plaintiff was barred by

limitation and it had perfected its title by way of adverse

possession had not been established. The Trial Court

ultimately proceeded to dismiss the suit, as stated above

on the ground that interference by the Church had not

been established.

11. The Appellate Court on re-appreciation of the

evidence concurred with the finding of the trial Court and

proceeded to dismiss the appeal.

12. As against these concurring judgments, this

second appeal has been preferred and the same was

admitted to consider the following substantial question of

law :

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

"When the Courts below held that the appellant is in possession of the suit property, whether thee is any justification in refusing the relief of declaration and injunction solely on the ground that the records produced by the appellant did not disclose the dimensions of the property owned by him ?"

13. Learned counsel for the appellant submitted

that when both the Courts recorded a clear finding that

the plaintiff was in possession and this finding was based

on the municipal records, in which the name of the plaintiff

had been recorded, the Courts could not have denied the

declaration sought for.

14. He also contended that having regard to the

averments in the written statement, in which the Church

contended that it was entitled to put-up a construction and

had obtained permission to put-up a construction on the

suit property, the Courts could not have come to the

conclusion that interference had not been established.

15. Learned counsel for the plaintiff submitted that

since the municipal records clearly indicated that the

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

property was registered in the name of the plaintiff's

predecessors and thereafter in the name of the plaintiff,

having regard to the fact that neither the municipal

records relied upon by the Church nor the municipal

records of the plaintiff did not contain dimensions, the

Trial Court could not have dismissed the suit.

16. He also highlighted the fact that the Church

sought to set-up title itself on the basis of the unregistered

gift-deed and there was no document produced to

establish that the donor possessed any property abutting

the property of the plaintiff.

17. Learned counsel for the appellant sought to

highlight the fact that the defendants witness DW.2 had

himself admitted categorically in the course of his cross-

examination that the plaintiff was in possession of the suit

open space measuring 25x75 feet, not only during the

lifetime of his father and his uncle, but also thereafter by

the plaintiff and this admission coupled with the municipal

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

records clearly established both title as well as possession

of the plaintiff.

18. Learned counsel for the Church, on the other

hand, contended both the Courts had correctly come to

the conclusion that the title of the plaintiff had been not

established since the dimensions of the property were not

mentioned in the municipal records. He submitted that the

construction permission granted by the municipal council

indicated the measurement as 42x60 feet and therefore

the judgment of the Trial Court and the Appellate Court

could not been interfered with.

19. It is not in dispute that both the Trial Court as

well as the Appellate Court have recorded a clear finding

that the plaintiff was in actual possession to the suit open

space. In fact, the relevant cross-examination of DW.2

reads as follows :-

"It is true that Prakashappa and Chinappa were in possession of suit open space during their life time and after their death the plaintiff is in possession."

NC: 2023:KHC-K:871 RSA No. 7068 of 2010

20. In light of this clear admission of DW.2 that the

plaintiff's father and his uncle were in possession of the

suit open space during their life time and after their death,

the plaintiff was in possession, the finding of the Courts

below regarding the possession of the plaintiff cannot be

found fault with. However, despite recording the said

finding, the Trial Court has proceeded to dismiss the claim

for declaration on the basis that the municipal records did

not contain the dimensions of the property.

21. As stated above, the possession of the plaintiff

over the suit property was not disputed by the defendants

by virtue of its own witness admitting that they were in

possession. It also pertinent to state here that both

plaintiff as well as the Church relied upon the municipal

records to contend that they are the owners of the

property. Neither of them produced any registered

document evidencing title.

22. Having regard to the fact that the suit property

is in the Town of Mudgal, which is a small town, the

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NC: 2023:KHC-K:871 RSA No. 7068 of 2010

probability of the title of the parties will have to be decided

only on the basis of the municipal records. The plaintiff

has produced Ex.P.2, a receipt for having paid tax in

respect of House No.1471 in the year 1958 and also

receipt for having paid the tax in respect of the adjoining

property house No.1472/4-4-72 for the year 1964-65. The

plaintiff has also produced the certificate evidencing

transfer of khata in favour of the plaintiff in the year 1995,

in which the property has been described as 4-4-274/4-4-

290.

23. These documents indicate that at an undisputed

point of time the authorities recognized the title of the

plaintiff and his forefathers in respect of the property

No.1471 and 1472 and also they renumbered it as No.4-4-

274 and 4-4-290.

24. It is no doubt true that in the revenue records

there is no mention about the dimensions and it is only the

permission for grant of construction in favour of defendant

the measurement of the property is mentioned as 42x60.

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NC: 2023:KHC-K:871 RSA No. 7068 of 2010

In none of the other documents produced by the Church

i.e., the municipal records pertaining to the property of the

Church, the dimensions of the property are mentioned.

The Church, in fact, set-up title under an unregistered gift-

deed executed by Arogyappa Irla in the year 1968. The

Church however did not produce any document indicating

that the municipal records had been standing in the said

Arogyappa Irla prior to this gift of 1968.

25. In the absence of any proof that the property

belonged to Arogyappa Irla, the claim of the Church on the

basis of the unregistered gift-deed cannot be sustained

and therefore, it is to be held that both the Courts were

not justified in refusing the declaration after finding that

the plaintiff was in possession only because the municipal

records did not disclose the dimensions of the property

owned by the plaintiff. The question of law is accordingly

answered in favour of the appellant/plaintiff and it is held

that the plaintiff is the owner in possession of the suit

property, which is a open space measuring 25 feet

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NC: 2023:KHC-K:871 RSA No. 7068 of 2010

towards east to west and 75 feet towards north to south

and which forms part of house No.4-4-274 in the limits of

Town Panchayat Council, Mudgal, Lingasugur Taluk as

described in the schedule to the plaint.

26. The appeal is allowed. The impugned judgment

and decree dated 14.10.2008 passed in O.S.No.73/2000

by the court of Civil Judge, Lingasugur and the judgment

and decree dated 12.10.2009 passed in R.A.No.42/2008

by the Court of Senior Civil Judge, Lingasugur are set-

aside and the suit i.e., O.S.No.73/2000 is decreed.

Sd/-

JUDGE

SN