Bhimawa W/O Narsing Jakler @ ... vs Rachappa S/O Late Somappa Kavali ...
2023 Latest Caselaw 1914 Kant

                          1



IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

       DATED THIS THE 17TH DAY OF MARCH, 2023

                       BEFORE

       THE HON'BLE MR.JUSTICE C.M.POONACHA

               RSA NO.200222 OF 2016

BETWEEN

BHIMAWWA
W/O NARSING JAKLER @ JAKLODI
AGED ABOUT 52 YEARS,
OCC:AGRICULTURE,
R/O:KADECHUR VILLAGE,
TQ & DIST:YADGIR.
                                        ..APPELLANT
(BY SRI VIKRAM VIJAY KUMAR, ADVOCATE)


AND

1.    RACHAPPA
      S/O LATE SOMAPPA KAVALI @ KADECHURORE,
      AGED ABOUT 35 YEARS,

2.    BANAPPA
      S/O LATE SOMAPPA KAVALI @ KADECHURORE
      AGED ABOUT 33 YEARS

3.    BASAVARAJ
      S/O LATE SOMAPPA KAVALI
      @ KADECHURORE,
      AGED ABOUT 26 YEARS

4.    NARASAMMA
      W/O LATE SOMAPPA KAVALI
      @ KADECHURORE,
      AGED ABOUT 64 YEARS,
                               2



      ALL AGRICULTURIST,
      R/O:MADWAR VILLAGE,
      TQ & DIST:YADGIR 585201
                                              ...RESPONDENTS
(BY SRI V K NAYAK, ADVOCATE FOR R1 TO R4)

      THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 21.03.2016., PASSED IN
R.A.No.17/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AT
YADGIR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 12.09.2014, PASSED IN
O.S.NO.16/2011 ON THE FILE OF THE CIVIL JUDGE AND JMFC
AT YADGIR AND ETC.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
08.02.2023,  COMING    ON  FOR   'PRONOUNCEMENT  OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                         JUDGMENT

The above second Appeal is filed under Section 100

of CPC by the Defendant to set aside the judgement and

decree dated 21.3.2016 passed in RA.No.17/2014 by the

Senior Civil Judge, Yadgir (hereinafter referred to as the

first Appellate Authority) as well as the judgement and

decree dated 12.9.2014 passed in OS No.16/2011 by the

Civil Judge and JMFC, Yadgir (hereinafter referred to as the

'Trial Court'). The Trial Court, vide its judgement and

decree partly decreed the suit of the Plaintiffs.

2. For the sake of convenience, the parties will

be referred to as per their rank before the Trial court.

3. It is the case of the Plaintiffs that Plaintiffs

No.1, 2 and 3 are the children and Plaintiff No.4 is the wife

of deceased Somappa Kavali. That the suit property was

inherited by said Somappa from his father Shivappa Kavali

who was the owner of the said land. That the Defendant

illegally entered her name in the record of rights and are

not concerned with the family of the Plaintiffs. Hence, the

Plaintiffs sought for declaration of title, injunction and

correction of the revenue entries in the record of rights.

4. Defendant No.1 was dead and the suit was

contested by Defendant No.2 who was the sole surviving

legal hair. It is the contention of Defendant No.2 that

Defendant No.1 purchased the suit property from Sanna

Shivanappa and his brother Dodda Shivanappa who were

children of Tayappa Kawali vide two Sale Deeds i.e., on

8.6.1974 and in the year 1981 and hence, Defendant No.1

is the owner of the suit property and the name of

Defendant No.1 was mutated in the revenue records. That

Defendant No.1 gifted the suit property to Defendant No.2.

5. The Trial Court framed 7 Issues. The

Plaintiffs were examined as PWs.1 to 4 and Exs.P1 to P16

were marked in evidence. Defendant No.2 examined

herself as DW.1 and two witnesses as DWs.2 and 3.

Exs.D1 to D8 were marked in evidence. The Trial Court, by

its judgement and decree dated 12.9.2014 partly decreed

the suit of the Plaintiffs by declaring that the Plaintiffs are

the owners of the suit property. However, the relief for

injunction was refused since it was not shown that the

Plaintiffs were in possession of the suit property. Being

aggrieved, the Defendant preferred an appeal in RA

No.17/2014. The Plaintiffs entered appearance before the

first Appellate Court and contested the same. The first

Appellate Court framed 5 points for consideration. Vide its

judgement dated 21.3.2016 the first Appellate Court

dismissed the Appeal filed by the Defendant. Being

aggrieved, the present second Appeal is filed.

6. Learned Counsel for the

Appellant/Defendant Sri Vikram Vijay Kumar urged only

one ground i.e., the Trial Court could not have granted a

mere decree of declaration without granting any

consequential relief. In support of his contention, he relied

upon the following judgements:

i) Aralappa v. Shri. Jagannath & Ors., 1;

       ii)     Smt. Kamlabai Narayanrao Wagh v.
       Smt. Muktabai Bajirao Patil2;

       iii)    Ramegowda     (D)     by   Lrs.,                    v.

M.Varadappa Naidu (D) by Lrs., & Ors.,3;

iv) Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar v. Chandran & Ors4.,

v) Chandrashekhar & Ors., v.

Jagannath5;

vi) Saurav Jain & Ors., v. A.B.P.Design & Ors.,6;

7. Per contra, learned counsel for the

Respondents/Plaintiffs Sri V.K.Nayak justified the

AIR 2007 Kant 91

(2018) 3 ABR 545 (Bombay High Court)

AIR 2004 SC 4609

AIR 2017 SC 1034 = (2017) 3 SCC 702

RSA No.7094/2009 (DEC), DD 29.6.2022 (Kalaburagi Bench)

judgement passed by the Trial Court and further

contended that the suit of the Plaintiffs is maintainable

since, in addition to declaration, the Plaintiffs had also

sought for consequential relief of injunction as well as

rectification of revenue records. He further submits that

having regard to the fact that the suit property has been

acquired and the compensation amount has been

deposited before this Court, consequent to the decree

having been granted by the Trial Court, which has been

upheld by the first Appellate Court, the

Respondents/Plaintiffs are entitled to the compensation

amount that is deposited before this Court. In support of

his contentions, he relied upon the following judgements:

        i)       State of Karnataka v. Mohammed
        Kunhi 7;

        ii)          Daya Singh & Anr., v. Gurdev Singh 8;

        iii)     Anil Kumar Shukla & Anr., v. Bipin
        bihari Shukla9;




  AIR 2021 SC 3673

  ILR 1991 KAR 1500

  (2010) 2 SCC 194

2020 SCC Online Chh 1332 High Court of Chhattisgarh at Bilaspur

iv) The Golden Valley Educational Trust Oorgam, Kolar District v. The Vokkaligara Sangh, Bangalore10;

       v)       Avvamma v. The State of Karnataka,
       by its Secy., & Ors., 11;

       vi)       Akkamma & Ors., vs. Vemavathi &
       Ors., 12;

       vii)    Corporation of the City of Bangalore
       v. M.Papaiah & Anr., 13

8. I have considered the submissions made by

both the learned Counsel and perused the material on

record. This Court, vide order dated 16.7.2019 has framed

the following substantial question of law:

"When the impugned judgment and decree are contrary to the decision of the Hon'ble Supreme Court reported in (2017) 3 SC 702.?"

9. Before considering the substantial question

of law, it is relevant to notice a few factual aspects. The

ILR 2016 KAR 2899

ILR 2006 KAR 3018

2021 SCC Online SC 1146

AIR 1989 SC 1809

Trial Court, after the pleadings of the parties, framed the

following Issues:

i. Whether the plaintiffs are prove that, they are joint owners in possession of suit schedule property by virtue of succession?

ii. Whether the plaintiffs are prove that, names of defendants No.1 and 2 are illegally entered in the ROR of suit schedule property?

iii. Whether the plaintiffs are prove that, one Ramalingamma had purchased the suit schedule property from Sanna Shivanappa and Ramalingamma had gifted the suit schedule property to defendant No.2?

iv. Whether the defendants are prove that, suit of the plaintiffs is hit by the law of limitation?

v. Whether the plaintiffs are prove that, defendants are causing obstruction to enjoyment of their possession over the suit schedule property?

vi. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as sought for?

vii. What order or decree?

The Trial Court held Issues No.1 and 2 in the

affirmative and 3 to 5 in the negative.

10. The first Appellate Court framed the

following Points for consideration.

i. Whether plaintiffs prove that they are joint owner of suit land?

ii. Whether defendant No.2 proves that she is the owner of the suit land?

iii. Whether judgment and decree passed in OS No.16/2011 dated 12.9.2014 on the file of Civil Judge, Yadigir against the material on record and require interference by this court?

iv. Whether oral cross objection of respondents in respect of finding given by trial court in respect of issue No.6 is fit to be allowed:

v. What order?

Vide its judgement, the first Appellate Court

answered Point No.1 in the affirmative and Point Nos.2 to

4 in the negative.

11. It is forthcoming that there is a concurrent

finding of fact that the Plaintiffs are the owners of the suit

land and that the judgement and decree of the Trial Court

regarding entitlement of the Plaintiffs to have the revenue

records corrected as well as disbelieving the case of the

Defendant has also not been interfered with by the first

Appellate Court. The Trial Court refused to grant the relief

of injunction to the Plaintiffs on the basis of certain entries

in the revenue record and there was no appeal filed by the

Plaintiffs challenging the same. However, it is to be noticed

that the Plaintiffs have addressed their arguments before

the first Appellate Court regarding the aspect of

possession. The first Appellate Court considering the said

aspect, noticing that KIADB is in possession of the suit

land, rejected the oral cross abjection of the

Respondents/Plaintiffs as not legally maintainable and

dismissed the same.

12. The Respondent No.2 filed IA.I/2019 to

permit the Respondents to receive the Award of

compensation. This Court, considering the said

application, vide order dated 6.6.2019 directed the Special

Land Acquisition Officer, KIADB to deposit the

compensation amount before this Court. Subsequently,

vide order dated 16.7.2019 after noticing that the KIADB

has deposited a total sum of `35,55,000/- with this Court,

the said amount was ordered to be kept in a Fixed Deposit

in the Nationalized Bank. Hence, suitable orders will be

required to be passed on IA.I/2019 and for payment of the

amount deposited before this Court while considering the

above appeal on its merits.

13. In view of the sole contention putforth by

the learned Counsel for the Appellant/Defendant regarding

grant of relief of declaration as noticed above, having

regard to the fact that the suit land has been acquired and

the compensation amount is deposited before this Court as

noticed above, consequent to the relief of declaration,

payment of the compensation amount that is deposited

before this Court is required to be ordered upon. Hence,

the contention regarding the relief of declaration as noticed

above is required to be adjudicated.

14. With regard to the declaration of title, there

is a concurrent finding of fact by both the Trial Court and

the first Appellate Court that the Plaintiffs are the absolute

owners of the suit land. The only contention of the

Appellant/Defendant is that a mere relief of declaration

cannot be granted, which according to the Appellant is a

pure question of law and the substantial question of law

has been framed by this Court accordingly.

15. The judgements relied upon by the

Appellant/Defendant are considered as follows:

15.1 In the case of Aralappa1 a Co-ordinate

bench of this Court held as follows:

"30. In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title tot he property. It would lead to anomalous situation and create confusion in the public, which is to be avoided."

(emphasis supplied)

15.2 In the case of Kamala Bai 2, a Co-ordinate

Bench of the Bombay High Court has held as follows:

"14. In this context, reference to Order 41, Rule 22 is necessary. It provides that a respondent who has not appealed from any part of the decree may take a cross-objection to the decree, provided he files such objection in the appellate Court within one month from the date of service on him of notice of the day fixed for hearing of the appeal. ........."

(emphasis supplied)

15.3 In the case of Rame Gowda3 the question

that arose before the Hon'ble Supreme Court was as to the

concept of settled possession and the right of the

possessor to protect his possession against the true owner.

The said judgement will not aid the case of the Defendant

since, the Defendant has not pleaded a case of settled

possession vis-a-vis the true owner. On the country, the

Defendant pleads title to the suit land which has been

disbelieved by the Trial Court and the first Appellate Court.

15.4 In the case of Executive Officer4 the

Hon'ble Supreme Court was dealing with a case where the

Plaintiff having been found not to be in possession and

having sought only for declaratory relief, held that the suit

was not maintainable. In para 35, the Hon'ble Supreme

Court has held as under:

"35. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. The plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 CPC could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."

(emphasis supplied)

The said case4 will not aid the case of the

Defendant since, in the present case the Plaintiffs had

sought for other consequential reliefs in addition to the

relief of declaration.

15.5 In the case of Chandrashekhar5, a Co-

ordinate Bench of this Court was dealing with a case where

the Defendants were in possession and the Plaintiffs did

not claim possession of the suit land within the stipulated

limitation period despite decree of specific performance

being granted in their favour. Noticing that the Plaintiffs

nor their father having taken steps to seek possession of

the suit land, this Court held that they have waived their

right and upheld the decree passed by the Trial Court

dismissing the suit and granting the relief of counter claim

of adverse possession. The said case will not aid the case

of the Defendant, inasmuch as, there is no counter claim

by the Defendant and as noticed above the case of the

Defendant is one having claimed title to the suit land.

15.6 In the case of Saurav Jain6, the Hon'ble

Supreme Court held that the counter claim is required to

be filed in a manner known to law. However, the said

judgment will not aid the case of the Appellant having

regard to the settled proposition of law as held by the

Hon'ble Supreme Court in the case of Akkamma12.

       16.     The       learned         counsel         for    the

Respondents/Plaintiffs   has    relied    upon     the     following

judgements:





       16.1    In the case of State of Karnataka7, a

Division Bench of this Court was considering the effect of

entries made in the revenue records and held that if the

entries are not made in accordance with law, after due

notice, the said entries are void and non est.

16.2 In the case of Daya Singh8, the Hon'ble

Supreme Court was considering a case where acceptance

of adverse entry in the revenue records would give rise to

a cause of action to sue as contemplated under Article 58

of the Limitation Act, 1963 and held that mere acceptance

of an adverse entry in the revenue records cannot give rise

to a cause of action, which decision has been relied upon

by a Co-ordinate Bench of the High Court of Chhattisgarh

in the case of Anil Kumar Shukla9.

16.3 In the case of The Golden Valley

Educational Trust10, a Division Bench of this Court has

held as follows:

"56 ........... Presumption of possession as contained in Section 133 of the KLR Act arises only

when an entry in the Record of Rights and the certified entries in the Register of Mutation are made in accordance with law. Then the Court shall presume the entries to be true until the contrary is proved or a new entry is lawfully substituted thereof. Therefore, only when an entry is made in accordance with law, a presumption under Section 133 can be raised. ......"

(emphasis supplied)

16.4 In the case of Avvamma11, a Co-ordinate

Bench of this Court negatived a claim made to property on

the basis of a mutation entry and against a claim for title

made by a registered Deed of transfer.

16.5 In the case of the Akkamma12, the Hon'ble

Supreme Court considering a question whether a mere suit

for declaration was maintainable without the relief of

possession, after referring to the various judgements

including a Co-ordinate Bench of this Court in the case of

Aralappa1, has held at follows:

"17. ... The bar contained in proviso to Section 34 of the 1963 Act, in our opinion, could not be applied in the case of the plaintiffs as consequential relief for injunction from interference with the suit- land was claimed. The prohibition contained in the proviso to Section 34 would operate only if the sole

relief is for declaration without any consequential relief. ...

18. The prohibition or bar contained in proviso to Section 34 of the 1963 Act determines the maintainability of a suit and that issue has to be tested on the basis the plaint is framed. If the plaint contains claims for declaratory relief as also consequential relief in the form of injunction that would insulate a suit from an attack on maintainability on the sole ground of bar mandated in the proviso to the aforesaid section. If on evidence the plaintiff fails on consequential relief, the suit may be dismissed on merit so far as plea for consequential relief is concerned but not on maintainability question invoking the proviso to Section 34 of the 1963 Act. If the plaintiff otherwise succeeds in getting the declaratory relief, such relief could be granted. On this count, we do not accept the ratio of the Karnataka High Court judgment in the case of Sri Aralappa (supra) to be good law. ....

21. ... There is no bar in granting such decree for declaration and such declaration could not be denied on the reasoning that no purpose would be served in giving such declaration. May be such declaratory decree would be non-executable in the facts of this case, but for that reason alone such declaration cannot be denied to the plaintiff. ..... "

(emphasis supplied)

16.6 In the case of Corporation of the City of

Bangalore13, the Hon'ble Supreme Court held that the

revenue record is not a document of title and the question

of interpretation of the document not being a document of

title, is not a question of law.

17. In view of the settled propositions of law,

as noticed above, it is clear that the suit of the Plaintiffs

cannot be dismissed merely because only the relief of

declaration has been granted. It is further necessary to

note that the Plaintiffs had filed the suit seeking for the

relief of declaration as well as the other reliefs i.e.,

injunction, change of revenue entries, etc. As held by the

Hon'ble Supreme Court in the case of Akkamma12, it

cannot be said that no useful purpose would be served by

merely granting the relief of declaration and more

specifically in the facts of the present case where it is to be

decided as to whom the compensation is to be paid.

18. The Trial Court and the first Appellate Court

have recorded a concurrent finding of fact declaring that

the Plaintiffs are the owners of the suit land and are

entitled for such a declaration. No material is pointed out

by the Defendant that the said finding is erroneous and is

liable to be interfered with.

19. Although the Appellant relied upon the case

of Executive Officer4 and a substantial question of law

has been framed, having regard to the fact that the said

case is distinguishable on facts and having regard to the

settled proposition of law as laid down by the Hon'ble

Supreme Court in the case of Akkamma12, the substantial

question of law framed by this Court is answered in the

negative.

20. In view of the fact that the Plaintiffs are the

owners of the suit land, consequently they are entitled to

the compensation amount that has been deposited before

this Court as noticed above. Accordingly, IA.I/2019 is

required to be allowed and the amount deposited together

with accrued interest is required to be disbursed to the

Respondents.

21. Hence I pass the following:

ORDER

i. The above appeal is dismissed;

ii. The judgment and decree dated 21.3.2016 passed in

RA No.17/2014 by the Senior Civil Judge, Yadgir and

the judgment and decree dated 12.9.2014 passed in

OS No.16/2011 by the Civil Judge and JMFC, Yadgir,

are affirmed;

iii. IA.I/2019 is allowed. The sum of `38,55,000/-

together with the accrued interest deposited before

this Court shall be disbursed to the Respondents

upon due identification.

No costs.

SD/-

JUDGE

nd