Thimmappa vs The Tahasildar
2023 Latest Caselaw 6940 Kant

                                             -1-
                                                        NC: 2023:KHC:35950
                                                       RSA No. 371 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.371 OF 2021 (DEC/INJ)

                   BETWEEN:

                   THIMMAPPA
                   S/O NAGAPPA,
                   AGED ABOUT 65 YEARS,
                   R/O. HUNASEKATTE VILLAGE,
                   KASABA HOBLI,
                   HOSADURGA TALUK,
                   CHITRADURGA DISTRICT-577501


                                                             ...APPELLANT
                   (BY SRI VIJAYA KUMAR BHAT A, ADVOCATE)

Digitally signed
by SHARANYA T      AND:
Location: HIGH
COURT OF           1.
KARNATAKA                THE TAHASILDAR
                         HOSADURGA TALUK,
                         HOSADURGA

                   2.    THE REVENUE INSPECTOR
                         KASABA HOBLI,
                         HOSADURGA TALUK-577501

                   3.    THE DEPUTY COMMISSIONER
                         CHITRADURGA DISTRICT,
                         CHITRADURGA-577501
                             -2-
                                         NC: 2023:KHC:35950
                                        RSA No. 371 of 2021




4.   THE CHIEF SECRETARY
     GOVERNMENT OF KARNATAKA,
     VIDHANA SOUDHA,
     BENGALURU-560001


                                           ...RESPONDENTS

     THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 16.10.2020
PASSED IN RA.NO.248/2016 ON THE FILE OF THE SENIOR
CIVIL, JUDGE AND JMFC., HOSADURGA AND ETC.

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


                    JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellant.

2. The factual matrix of the case of the plaintiff

before the trial court that he is the lawful owner and he is

in possession of the suit schedule property bearing

Sy.No.127/P2 measuring 6 acres of Kappagere village.

The suit schedule property was granted to him by the

defendants under Dharakast. The plaintiff's father was

cultivating the suit schedule property unauthorizedly since

NC: 2023:KHC:35950 RSA No. 371 of 2021

long back. After the death of his father, he continued the

cultivation of the suit schedule property as an

unauthorized occupant and accordingly, his name was

entered in the RTC in the year 1965 by the consent given

by the defendants. Since then, he was in possession and

enjoyment of the suit schedule property. It is also the

contention that he has taken loans from VSSN Bank,

Kellodu and Pragathi Gramina Bank, Hosadurga by

mortgaging the suit schedule property. The plaintiff is in

possession and enjoyment of the property more than 30

years and the defendants are trying to interfere with his

possession. It is also the contention that one Honnappa

S/o Durgappa was obstructing to his possession and

enjoyment of the suit schedule property and hence, he

was forced to file the suit in O.S.No.110/2009 against the

said Honnappa for permanent injunction. The khata of the

suit schedule property was standing in the name of the

plaintiff and he is paying the tax to the Government.

NC: 2023:KHC:35950 RSA No. 371 of 2021

3. The defendants appeared and filed the written

statement denying the contention of the plaintiff and made

an allegation that the plaintiff has illegally entered his

name in the Government records hence, the criminal case

was filed against him. Based on the pleadings of the

parties, the Trial Court framed the Issues and allowed the

parties to lead their evidence. The Trial Court after

considering material available on record comes to the

conclusion the plaintiff in order to prove that he is the

owner of the property, not produced any grant order

except producing the documents at Ex.P1 to 23. On the

other hand, the defendants have produced the documents

at Ex.D1 to D11 and the same was taken note by the Trial

Court. In order to prove the fact that the plaintiff is the

owner of the suit schedule property, no documents are

placed before the Court though he claims that the property

is grated by Dharakast except the mutation register. It is

also the case that the documents are mutated by creating

document and hence, a criminal case was also registered

and hence, dismissed the suit.

NC: 2023:KHC:35950 RSA No. 371 of 2021

4. Being aggrieved by the judgment and decree of

the Trial Court, an appeal was preferred before the First

Appellate Court and the First Appellate Court also having

considered the material available on record and on re-

appreciation of both oral and documentary evidence

placed on record comes to the conclusion the Trial Court is

justified in holding that the plaintiff has failed to prove his

ownership and possession over the suit schedule property

and dismissed the appeal and confirmed the order of the

Trial Court. Being aggrieved by the judgment and decree

of both the Courts, the present appeal is filed before this

Court.

5. The learned counsel for the appellant would

vehemently contend that the Trial Court has not

considered the documents in a proper perspective and

further he submits that the criminal case registered

against the appellant is also ended in acquittal and the

entries in the RTC is also genuine and mutation entries are

also in the name of the plaintiff. When such being the

NC: 2023:KHC:35950 RSA No. 371 of 2021

case, the Trial Court ought not to have dismissed the suit.

Hence, prayed this Court to admit the appeal and to frame

the substantial questions of law.

6. Having heard the learned counsel appearing for

the appellant and also on perusal of the material available

on record it discloses that the very plaint averment is clear

that the plaintiff is claiming that he is the absolute owner

of the suit schedule property and he is in possession and

enjoyment of the same since the same was granted in his

favour under the Dharakast by the defendants. In order

to substantiate the said claim, the plaintiff has not

produced any document except relying upon the mutation

entries and RTCs. When complaint was given against the

appellant stating that he had indulged in creation of

revenue document but the appellant contend that the said

criminal case was ended in acquittal. If the suit schedule

property was granted in favour of the plaintiff under the

Dharakast, the plaintiff has to produce the document of

grant but he has not produced the same and mutation

NC: 2023:KHC:35950 RSA No. 371 of 2021

entries is also not based on the grant order. When

Tahsildar also taken recourse by sending the letter to the

plaintiff and notice was also issued and criminal case was

also registered against the plaintiff for creation of revenue

entries. Unless the plaintiff produce any documents for his

title, the question of granting the relief of declaration does

not arise and the First Appellate Court also taken note of

the said fact into consideration. The contention of the

appellant that he has acquired the title by adverse

possession and the same is also discussed by the First

Appellate Court. The question of adverse possession does

not arise unless the ownership is admitted. In one breath,

the appellant says that the property belongs to the

Government and in another breath he says that he got the

property by way of Dharakast. Once he claims that the

property is granted under Dharakast, the question of

claiming adverse possession over the property does not

arise. Hence, I do not find any error committed by both

the Courts in dismissing the suit and confirming the order

of the Trial Court. In the absence of any perversity in

NC: 2023:KHC:35950 RSA No. 371 of 2021

finding of both the Courts, the question of invoking Section

100 of CPC does not arise.

7. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN