Karnataka High Court
Maruthi S/O Ambanna Nagankeri vs Manik S/O Ghaleppa Chilampalli on 27 March, 2023
Bench: C M Joshi
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RSA No. 7250 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
REGULAR SECOND APPEAL NO.7250/2011(DEC-INJ)
BETWEEN
MARUTHI S/O AMBANNA NAGANKERI
AGED ABOUT 61 YEARS, OCC: LABOUR
R/O SIRSI(A) VILLAGE
TQ. AND DIST. BIDAR
..APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND
1. MANIK S/O GHALEPPA CHILAMPALLI
AGE: MAJOR
R/O SIRSI(A) VILLAGE
Digitally signed
by SOMANATH TQ. AND DIST. BIDAR
PENTAPPA
MITTE
Location: High
Court of
Karnataka 2. MALLAPPA S/O MANIK CHILLAMPALLI
AGE: MAJOR
R/O SIRSI(A) VILLAGE
TQ. AND DIST. BIDAR
RESPONDENTS
(SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD.
22.01.2011 PASSED IN R.A.NO.22/2010 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AT BIDAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
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RSA No. 7250 of 2011
DATED 16.09.2008 PASSED IN O.S. NO.115/2000 ON THE FILE
OF THE ADDL. CIVIL JUDGE (JR. DN.), AT BIDAR.
THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT
ON 03.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. This appeal is by the plaintiff against the
concurrent judgments by both the Courts below in O.S.
No.115/2000 dated 16.09.2008 passed by the Add. Civil
Judge (Jr. Dn.) at Bidar and in R.A. No.22/2010 dated
22.01.2011 passed by the Principal Senior Civil Judge,
Bidar, whereby the suit filed by the plaintiff came to be
decreed in part and rejected the claim for declaration of
ownership over the suit schedule property.
2. Parties would be referred to as per their status
before the trial Court for the sake of convenience.
3. The brief facts are as below:
The plaintiff filed a suit for declaration of the title
over the suit schedule property and to restrain the
RSA No. 7250 of 2011
defendants from obstructing his peaceful possession and
enjoyment of the suit schedule property. The plaint
described the suit schedule property a room and a shop
measuring East-West 18' and North-South 66' situated at
Sirsi(A) Village and the plaint was accompanied by a hand
sketch of the suit schedule property. The plaintiff
contended that the suit schedule property is an ancestral
property, which he got as part of his share in the family
partition between himself and his brother Jatteppa. He
contended that he is in the capacity as exclusive owner
and in possession along with his family members. It was
stated in the plaint that even prior to the partition, the suit
property was standing jointly in the names of the plaintiff
and his brother Jatteppa and since from the date of
partition the name of the plaintiff is appearing in all the
records of the Gram Panchayat. He contended that the
defendants are in no way concerned either to the plaintiff
or to the property of the plaintiff, nor the defendants are
the neighbours of the plaintiff. It was contended that
defendants simply started to harass the plaintiff by
RSA No. 7250 of 2011
creating unnecessary quarrels, nuisance and disputed the
ownership of the plaintiff over the suit property.
Defendant No.1 also started squatting in the shop portion
along with his son and other antisocial elements with the
help of political leaders of the village. The plaintiff
requested the defendants not to squat over the suit
property and create any nuisance, but such requests failed
on the deaf ears of the defendants and he flatly denied the
title of the plaintiff. Therefore, plaintiff was constrained to
gather a panchayat and requested the defendants not to
create any obstructions, but they refused to heed to the
request of the villagers and as such plaintiff constrained to
file a suit seeking declaration that he is the owner in
possession of the suit schedule property measuring 18'
East-West and 66' North-South, bearing Gram Panchayat
No.58/40-2 and to issue perpetual injunction against the
defendants.
4. On issuance of suit summons, defendants
appeared before the trial Court and filed their written
RSA No. 7250 of 2011
statement contending that the plaintiff is not the owner of
the entire suit property bearing Gram Panchayat
No.58/40-2 measuring 18' x 66'. He contended that the
shop is shown in the red colour and he is in possession as
owner and it is not a part and parcel of Gram Panchayat
No.58-40-2, instead the shop bears the Gram Panchayat
No.58/41-1 and it belongs to the defendants. He denied
the claim of the plaintiff that the plaintiff is in possession
and enjoyment of the suit schedule property since the
time from his ancestors and that the plaintiff had got it in
the partition. Apart from denying the contention of the
plaintiff in the plaint, the defendants contended that the
father of the plaintiff Ambanna had sold open space
measuring 20' x 25' and the defendants have constructed
a shop over it and the Gram Panchayat has given the
number as 41/1 and the name of the defendant No.1 had
been entered in the suit property in the Gram Panchayat
records. He contended that he is paying the Panchayat
Tax and they are in possession and enjoyment of the same
and therefore, the suit of the plaintiff is not maintainable.
RSA No. 7250 of 2011
In other words, he contended that the shop portion
demarcated in the hand sketch map is not the part and
parcel of the Gram Panchayat No.58-40/2 and it is given
separate number as 58/41-1. Therefore, he sought for
dismissal of the suit.
5. In the light of these contentions the following
issues were framed by the trial Court:
"1. Whether the plaintiff proves that he is
the absolute owner in lawful possession of
suit property as on the date of suit?
2. Whether the plaintiff proves the alleged
interference by the defendants?
3. Whether the plaintiff is entitle for suit
claimed reliefs?
4. What order or decree?"
6. The plaintiff entered witness box and deposed
as PW1, Exs.P1 to P19 were marked. Two other witnesses
were also examined as PW2 and PW3 on his behalf. The
defendants did not cross-examine PW1 to PW3 nor
RSA No. 7250 of 2011
adduced any evidence on their behalf in spite of granting
sufficient opportunities and therefore closed their side and
posted for hearing arguments. Even the counsel for the
defendants did not appear for advancing the arguments.
The trial Court answered issue Nos.1 and 3 partly in the
affirmative and issue No.2 in the affirmative and
proceeded to decree the suit in part. It rejected the claim
for declaration of title over the suit property. However,
granted injunction against the defendants and restrained
them from interfering with the possession and enjoyment
of the plaintiff over the suit schedule property.
7. Aggrieved by the said judgment, the plaintiff
approached the first appellate Court in Regular appeal
No.22/2010. Even in the said appeal, the defendants did
not appear despite of service of notice and therefore the
first appellate Court proceeded with the hearing of the
case and heard arguments of the plaintiff, perused the
entire records. The following points were framed by the
first Appellate Court for its consideration:
RSA No. 7250 of 2011
"1. Whether the finding on the declaratory
relief of ownership of plaintiff and dismissing
the suit is illegal and incorrect and against the
law?
2. Whether the interference of this Court is
necessary to set aside the Judgment and
Decree in connection with the dismissal of
suit for declaratory relief and to decree the
suit for declaration of ownership of plaintiff?
3. What order or decree?"
8. The first Appellate Court held point Nos.1 and 2
in the negative and proceeded to dismiss the appeal by
confirming the partial decree passed by the trial Court.
9. Aggrieved by the said judgment, the plaintiff
has approached this Court in the second appeal. The
appellant/plaintiff contended that though the plaintiff has
produced all necessary documents regarding the
ownership of the property, both the Courts below have
insisted for some title deed. It is contended that the trial
Court as well as the first appellate Court erred in
RSA No. 7250 of 2011
disbelieving the evidence placed on record by the plaintiff
to show that the suit schedule property was an ancestral
property of the plaintiff and he is in possession and
enjoyment of the same by virtue of the ancient partition,
which was not disputed. It is contended that since
property is ancestral property the plaintiff did not have
any title deed with regard to the suit schedule property
and therefore the documents which are already on record
in the form of the Gram Panchayat records, the payment
of the Taxes etc., are sufficient to prove title of the
plaintiff. It is further contended that in the absence of any
rebuttal evidence by the defendants, the Courts below
have erred in holding that the plaintiff failed to prove title
over the suit schedule property and came to a erroneous
conclusion that the declaration of title cannot be granted
to the plaintiff.
10. This Court after hearing arguments by the
learned counsel for the appellant-plaintiff admitted the
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RSA No. 7250 of 2011
appeal on 02.06.2017 and framed the following substantial
question:
"Whether the Courts below were justified in
dismissing the suit insofar as the relief of
declaration of title sought by the plaintiff and
thereby concluding that the plaintiff was not
the owner of the suit schedule property?"
11. The trial court records and the first appellate
court records have been secured.
12. On issuance of notice to the respondents-
defendants, they did not appear.
13. I have heard the arguments of the learned
counsel appearing for the plaintiff and perused the
records.
14. It is submitted that the plaintiff has produced
all relevant documents before the trial Court and the
names of the plaintiff and his brother appear in the village
records since long time and therefore it was not fair on the
part of the Courts below to say that the title deed was not
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RSA No. 7250 of 2011
produced by the plaintiff. In the absence of any rebuttal
evidence by the defendants, the trial Court as well as the
first appellate Court could not have come to the conclusion
that the partition is not proved. He submitted that the
question of partition was never a bone of contention by
the defendants and when the cogent evidence is placed on
record in the form of panchayat records and the ocular
evidence of the witnesses; the same should have been
accepted by the Courts below. He submits that,
continuous use, occupation, the entry in the panchayat
records, payment of Taxes are indication of the title of the
plaintiff and when it is not disputed, prima facie there is an
error on the part of the Courts below.
15. It is evident that the ocular evidence placed on
record by the plaintiff in the form of his own testimony as
PW1 and the affidavit evidences of PWs.2 and 3 are not
shown to be unbelievable. The plaintiff placed on record
as many as 20 documents in support of his case. The
Ex.P1 happens to be a Certificate issued by the President
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RSA No. 7250 of 2011
of Gram Panchayat and it states that the plaintiff is the
owner in possession of suit property. The Ex.P2 happens
to be a Sketch issued by the Gram Panchayat which is in
consonance with the hand sketch map produced by the
plaintiff along with the plaint. The Ex.P4 happens to be
the extract of the Tax Assessment Register of the
Panchayat for the year 1993-1994 and it shows that the
suit property is in the names of the plaintiff and his
brother Jatteppa. A similar extract is produced at Ex.P5
pertaining to the year 2000-01, wherein the name of the
plaintiff alone is mentioned as the owner of the property.
The Ex.P6 is the Certificate of Residence showing that the
plaintiff is resident of Sirsi-A Village. The Ex.P7 happens
to be an intimation by the Panchayat, whereby, the
plaintiff was informed that his brother Jatteppa had
objected for the grant of permission to construct a building
and therefore certain documents are required and the
plaintiff has to furnish the same. It is evident that certain
documents alleged to have been produced by the
defendants are also marked during the evidence of the
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RSA No. 7250 of 2011
plaintiff, but in Para 5 of the judgment of the trial Court
has clarified when the mistake was brought to the notice
of the Court, it was rectified as per the order dated
09.07.2008. The order dated 09.07.2008 disclose that the
documents at Exs.P8 to P18 were not the documents
produced by the plaintiff, but the documents of the
defendants and as such the said marking was cancelled.
16. The ocular evidence of PWs.1, 2 and 3 is
nothing but reiteration of the contentions of the plaintiff as
mentioned in the plaint.
17. It is trite Law that a civil matter has to be
decided by the Courts on the principles of preponderance
of probabilities. The trial the Court should weigh the
evidence on record and come to a conclusion. If the party
to the suit refrained from either cross-examining the
witnesses of the other side and do not produce any
rebuttal evidence, such a conduct has to be construed to
be withdrawal from the trial. However, if the case of the
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RSA No. 7250 of 2011
plaintiff is improbable and has inbuilt contradictions in it,
the suit would fail. In the absence of any such inbuilt
contradictions in the case of the plaintiff and if the plaintiff
has not produced the evidence on the contentions taken
up in the pleadings, then alone Court is bound to draw an
adverse inference that evidence is not placed on the basis
of the pleadings and may dismiss the suit. However, if the
evidence is placed on record in pursuance to the pleadings
and there are no such inbuilt contradictions which are
brought out or noticed by the Court, the Court is bound to
grant the decree as claimed. It is also to be noted that
the Court is at liberty to take judicial note of certain facts,
when it is brought to the notice of the Court. In the
absence of inbuilt contradiction being noticed by the Court,
it would not be appropriate on the part of the trial Court to
deny the relief claimed by the parties. It cannot be
forgotten that a decree against the defendants cannot be
said to bind any other party. No doubt a declaration of
title by a Court is declaration in rem, such declaration is
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RSA No. 7250 of 2011
susceptible for challenge by any 3rd party that it is not
binding on him.
18. In the case on hand, the plaintiff has placed on
record all material documents which are available with
him. Plaintiff claims that he is in possession and
enjoyment of the property and acquired the same in a
partition. Under Hindu law there need not be a registered
deed of partition. If the house properties are divided on
oral partition and the plaintiff is in possession of the
property by virtue of such partition, he would not be able
to produce any title deed. Therefore, when the plaintiff
has produced the documents like Gram Panchayat records,
receipts for payment of the Tax, Certificate by the Gram
Panchayat and the ocular evidence of the two respectable
persons of the village, the weight of evidence should have
been considered by the Courts below. Obviously, there
was no rebuttal evidence.
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RSA No. 7250 of 2011
19. The trial Court in its judgment observed that
the documentary evidence placed on record by the plaintiff
is insufficient to prove title. It states that to declare the
ownership of a person, the evidence placed on record
should have been cogent and satisfactory. It also
observed that the defendants have not produced any
documents showing that they have purchased the property
from Ambanna and the trial Court also observed that in
the absence of any registered sale deed, the defendants
would not acquire any title over the said property. Thus, it
is evident that the trial Court has failed to appreciate the
weight of the evidence placed on record by the plaintiff in
support of his contention.
20. The first appellate Court in its judgment,
observed that despite a decision reported in AIR 2005 SC
3652 that in the absence of cross-examination, the
evidence of the plaintiff has to be accepted, it proceeds to
hold that the trial Court has rightly appreciated the
evidence available on record. Further, it observes that the
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RSA No. 7250 of 2011
plaintiff has to stand on his own legs and he cannot
depend upon the weakness of the defendants. It fails to
recognize that the question of partition between the
plaintiff and his brother Jatteppa was not in dispute. It
also fails to note that in the year 1993-94, the name of
the plaintiff as well as the name of Jatteppa was appearing
in the panchayat records, but later in the year 2000-01 it
was the name of the plaintiff alone which remained in the
panchayat records as the holder of the property. When
the plaintiff had entered witness box stating that he
acquired the title over the property in the partition
between himself and his brother, the first appellate Court
has erred in rejecting the evidence placed on record by the
plaintiff.
21. The title of a person over an immovable
property has to be assessed on the basis of the long
usage, occupation, enjoyment and assertion of his right
over the same. The payment of the tax and entry in the
panchayat records are only indication of the title.
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RSA No. 7250 of 2011
Obviously, there will not be any title deed in respect of
ancestral properties which are inherited from the
ancestors. A document of title is not sine-qua-non to
prove the title. Therefore, it is clear that both the Courts
below have failed to appreciate the evidence on record in
the proper perspective. They failed to notice that there
was no oral evidence placed on record by the defendants.
When defendant No.1 contended that he has purchased
the property from the father of the plaintiff it was for him
to produce such title deed as required under law. On the
part of the plaintiff he stated that he acquired the property
from his ancestors. Therefore, the Courts below are not
justified in dismissing the suit insofar as the relief of
declaration of title is concerned. Consequently the
substantial question of law raised by this Court is
answered in the negative. As a consequence, the appeal
deserves to be allowed. Hence, the following:
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RSA No. 7250 of 2011
ORDER
The appeal is allowed.
Both the judgment and decree passed by
the Courts below in O.S. No.115/2000 dated
16.09.2008 and in R.A. No. 22/2010 dated
22.01.2011, so far as dismissal of the claim of
declaration of title of the plaintiff is concerned,
are hereby set aside. The plaintiff is declared
to be an absolute owner of the suit schedule
property.
Sd/-
JUDGE
SBS
