Sri Maranna vs Thipperangappa
2023 Latest Caselaw 7306 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 25TH DAY OF OCTOBER, 2023

                          BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

               R.S.A. NO.124/2007 (DEC/INJ)

BETWEEN:

SRI MARANNA
SINCE DEAD REPRESENTED BY HIS LRS

1.   SRI RAMAKRISHNAPPA
     S/O LATE MARANNA
     AGED ABOUT 65 YEARS

2.   SRI ERANNA S/O LATE MARANNA
     SINCE DEAD REPRESENTED BY HIS LRS

     a)     SMT. JAYAMMA
            W/O LATE ERANNA, MAJOR

     b)     SMT. RATHNAMMA
            W/O LATE ERANNA, MAJOR

     c)     SMT. PAVITHRA
            D/O LATE ERANNA, MAJOR

     d)     SMT.PREMA
            D/O LATE ERANNA, MAJOR

     e)     SMT.MAHALAKSHMI
            D/O LATE ERANNA, MAJOR

     f)     SMT.VARALAKSHMI
            D/O LATE ERANNA, MAJOR
                             2




       g)   SRI SRINIVASA S/O LATE ERANNA
            AGED ABOUT 17 YEARS
            SINCE MINOR,REPRESENTED
            BY HIS NATURAL GUARDIAN -
            MOTHER RATHNAMMA

3.     SRI M.MADUVAIAH S/O LATE MARANNA
       AGED ABOUT 59 YEARS

       ALL ARE RESIDING AT
       YADALADAKU VILLAGE
       HULIKUNTE HOBLI, SIRA TALUK
       TUMAKURU DISTRICT.                   ...APPELLANTS

             [BY SRI K.N.NITISH, ADVOCATE FOR
              SRI K.V.NARASIMHAN, ADVOCATE]
AND:

1.     THIPPERANGAPPA
       SINCE DEAD REPRESENTED BY HIS LRS

1(a) SMT.GOWRAMMA
     W/O LATE THIPPERANGAPPA
     SINCE DEAD BY HER LRS
     RESPONDENT NO.1(c) TO 1(h)
     WHO ARE ALREADY ON RECORD

1(b) SMT. JAYAMMA
     D/O LATE THIPPERANGAPPA
     SINCE DEAD BY HER LRS
     RESPONDENT NO.1(a), 1(c) TO 1(h)
     WHO ARE ALREADY ON RECORD

1(c) SRI KESHAVAMURTHY
     S/O LATE THIPPERANGAPPA
     AGED ABOUT 63 YEARS
                             3




1(d) SRI GOVINDAPPA
     S/O LATE THIPPERANGAPPA
     AGED ABOUT 60 YEARS

1(e) SRI RAMAKRISHNA
     S/O LATE THIPPERANGAPPA
     AGED ABOUT 58 YEARS

1(f)   SMT. SHARADAMMA
       W/O LATE THIPPERANGAPPA
       AGED ABOUT 55 YEARS

1(g) SRI MUDALAGIRIGOWDA
     S/O LATE THIPPERANGAPPA
     AGED ABOUT 51 YEARS

1(h) SRI RANGANATHAIAH
     S/O LATE THIPPERANGAPPA
     AGED ABOUT 48 YEARS

       ALL ARE RESIDING AT
       YADALADAKU VILLAGE
       HULIKUNTE HOBLI, SIRA TALUK
       TUMAKURU DISTRICT-572 101.         ... RESPONDENTS

      [BY SRI D.R.RAVISHANKAR, SENIOR ADVOCATE FOR
 SRI SIRI RAJASHEKAR, ADVOCATE FOR R1(c & d) & R1(f to h);
              SRI KESHAV R. AGNIHOTRI, R1(e)]

      THIS R.S.A. IS FILED UNDER SECTION 100 R/W ORDER 42
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
27.09.2006 PASSED IN R.A.NO.121/2005 ON THE FILE OF THE
CIVIL JUDGE (SR. DN.), SIRA, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 25.11.1997
PASSED IN O.S.NO.198/1991 ON THE FILE OF THE CIVIL JUDGE
(JR. DN.), SIRA.
                                   4



    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    06.10.2023 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

                          JUDGMENT

Heard the learned counsel for the appellants and also the

counsel appearing for the respondents.

2. This second appeal is filed challenging the concurrent

finding of the Trial Court and First Appellate Court declaring the

plaintiff is the owner of the suit schedule property and granted

permanent injunction against the defendant in O.S.No.198/1991

and confirmed the judgment and decree in R.A.No.121/2005.

3. The factual matrix of the case of the plaintiff before

the Trial Court that suit land bearing Sy.No.139 total extent is 25

acres 38 guntas including kharab of 10 guntas was the ancestral

property of the plaintiff. Out of the said land, the plaintiff's father

had sold 2 acres 20 guntas to defendant's father on its western

side in the year 1942. Remaining land continued to be in

exclusive possession and enjoyment of the plaintiff's father. The

plaintiff is the only son to his father. After death of plaintiff's

father, plaintiff is continued to be in possession and enjoyment

of the suit schedule property. The khata of the suit land

continued to be in the name of the plaintiff's father

Mudlagiriyappa and he paid the tax during his life time and after

his death, plaintiff has paid the land revenue, whereas, the

remaining area was given as Sy.No.139/1A and property which

was sold in favour of the defendant's father the Sy.No.139/1B

was allotted. The defendant in collusion with revenue authorities

got written the pahani in his name at the instance of the

Tahsildar and the same was challenged and Assistant

Commissioner has set aside the order and the same was

questioned before the Deputy Commissioner and Deputy

Commissioner reversed the same and the same has been

challenged in the writ petition and in the writ petition an

observation is made that parties to approach the Civil Court for

declaring their rights. It is the case of the plaintiff that based on

the said entries, defendant is interfering with possession of the

plaintiff.

4. The defendant appeared through counsel and filed

written statement admitting that father of the defendant had

purchased 2 acres 20 guntas in the year 1940 and denied all

other averments made in the plaint.

5. The defendant contend that suit schedule property is

his ancestral property and his father was the owner of

Sy.No.139/1A measuring 18 acres 27 guntas. During the life

time of the defendant's father, defendant separated from the

family which is evidenced by the Registered Partition Deed dated

15.11.1960 and 3 acres 34 guntas in Sy.No.139/1A was allotted

to the share of the defendant and the remaining land was

retained by his father. The land that was allotted to the share of

defendant had partitioned and is numbered as Sy.No.139/1B.

After the death of his father, the defendant and his brother

succeeded to the suit property and they have been in possession

and enjoyment of the suit property. The plaintiff in collusion with

revenue authorities got his name entered in column Nos.9 and

10 of the pahani for the year 1975-76 and hence, proceedings

are initiated before the Deputy Commissioner. It is also

contended that the plaintiff has filed the suit against the

defendant in O.S.No.2/1985 for the relief of declaration and

injunction and the plaint was returned to present the same

before the competent court of law. When the plaintiff has filed

the same suit alleging that defendant has denied his title for the

year 1991 and as such, the suit is not maintainable. It is also

contended that suit is barred by limitation under Section 58 of

Limitation Act. Alternative the defendant contend that he is

perfected his title to the suit property by adverse possession for

having knowledge the same for more than 12 years

uninterruptedly, openly as of right and adverse to the interest of

the real owner along with his brother.

6. The Trial Court having considered the pleadings of

the plaintiff and defendant framed total 8 issues and allowed the

parties to lead evidence. The plaintiff examined himself as PW1

and also examined two witnesses as PWs.2 and 3 and got

marked Exs.P1 to P40. In rebuttal, the defendant examined

himself as DW1 besides examined DW2 and produced documents

Exs.D1 to D10. The Trial Court having considered the material

on record comes to the conclusion that plaintiff has proved the

title and has been in possession and enjoyment of the suit

schedule property and defendant without any semblance of right

interfering with possession. The contention of the defendant is

negatived and granted the relief. Being aggrieved by the said

judgment and decree, an appeal is filed in R.A.No.121/2005 and

First Appellate Court considering the grounds urged in the

appeal, formulated the point whether the Trial Court committed

an error while appreciating the oral and documentary evidence,

whether the suit is barred by limitation and whether judgment

and decree requires interference. The First Appellate Court on

reconsideration of oral and documentary evidence and the

grounds urged in the appeal, dismissed the appeal in coming to

the conclusion that, Trial Court has not committed any error.

Hence, the present second appeal is filed.

7. The main contention urged in the second appeal by

the defendant/appellant that both the Courts below committed

an error in granting the relief of declaration and injunction based

on the title deeds. Both the Courts grossly erred holding that

respondents' suit in O.S.No.198/1991 was within the period of

limitation and the same relief was sought in O.S.No.2/1985 and

the same was returned with a direction to present the same

before the appropriate Court and no liberty was given. However,

suit was filed after six years from the date of returning of the

plaint. Both the Courts failed to take note of the same and

committed an error in coming to the conclusion that suit is in

time. Both the Courts below not understood Ex.P40 which is a

material evidence, wherein late Sri.Madappa father of the

appellant has also purchased item No.4 which is a portion in

Sy.No.No.139 of Yedaladaku village for the purpose of pathway

in addition to purchase of 2 acres 20 guntas and therefore

respondent could not have made any claim. The counsel also

farmed the substantial questions of law, whether the relief in

suit, which is barred by law of limitation can be granted by the

Court by way of condonation of delay and whether there can be

re-appraised of evidence in the second appeal, which is not

properly considered by the Court below. This Court having

considered the material on record at the first instance framed

substantial questions of law i.e. on 3.4.2008;

"Whether the Court below was justified in granting a declaration on the basis of preliminary

records without finding out the extent of land granted in favour of the plaintiff's father?"

8. This Court also re-framed the substantial questions

of law on 19.10.2016:

i). Whether the suit was barred by limitation?

ii) Whether the proceedings of O.S.No.198/1991 on the file of Civil Judge (Jr.Dn.) Sira, can be considered as continuation of the O.S.No.2/1985 on the file of same Court?

iii) Whether the lower appellate Court was justified in condoning the delay?

iv) Whether the Courts below were justified in acting on the revenue entries?

9. The counsel during his arguments vehemently

contend that both the Courts have not considered the material in

a proper perspective and at the first instance plaint was returned

on 15.3.1989 and represented on 2.3.1991 and the same was

returned on 30.5.1991 and represented on4.6.1991. The very

contention of the plaintiff before the Trial Court that it was the

ancestral property. The counsel also would submit that plaintiff's

father had sold 2 acres 20 guntas to the father of the defendant.

The counsel would vehemently contend that the property

belongs to the defendant's family and the same is an ancestral

property and there was a partition between father of the

defendant and defendant and he got 3 acres 34 guntas in the

said partition. The counsel would vehemently contend that

plaintiff has not produced any title, but Trial Court relied upon

the revenue entries, but the documents were standing in the

name of the defendant in the revenue records and though the

transfer of property in favour of the defendant in terms of Ex.D1

and the same was set aside by the Assistant Commissioner and

the same was challenged before the Deputy Commissioner and

the Deputy Commissioner reversed the same and the same is

challenged in the writ petition and directed the plaintiff to

approach the Court for declaration of his title. The Trial Court

mainly relies on Exs.P12 and P17 preliminary records as Darkast

and plaintiff has not produced the grant order in the absence of

producing the grant order, the Trial Court ought not to have

granted the relief of declaration. Ex.P40 is the sale deed of

plaintiff's father executed in favour of defendant's father on

30.6.1942. The said sale deed not tallies with the plaint

schedule. The counsel would vehemently contend that the

defendant produced several documents particularly Ex.D1 clearly

discloses that the same is cultivated by defendant's father and

Ex.D2 is the reversed order of the Assistant Commissioner by

the Deputy Commissioner. Ex.D4 is the index of land. The

appellant also produced the additional documents and the same

is not challenged. The counsel would vehemently contend that

original substantial question of law and substantial question of

No.4 are to be considered in this appeal and both in respect of

title is concerned.

10. The counsel in support of his argument also relied

upon the judgment reported in AIR 2014 SC 937 and brought

to notice of this Court paragraph Nos.15 and 20, wherein the

Apex Court held that in a suit for declaration of title and

possession could succeed only on the strength of its own title

and that could be done only by adducing sufficient evidence to

discharge the onus on it, irrespective of question whether the

defendants have proved their case or not.

11. In paragraph No.20, the Apex court observed that,

even if the entries in the Record of Rights carry evidentiary

value, that itself would not confer any title on the plaintiff on the

suit land in question.

12. The counsel also relied upon the judgment reported

in AIR 2013 KAR 37 and brought to notice of this Court

paragraph Nos.17 and 18, wherein also observed that, mutation

entries and the records evidencing the same are not documents

of title. In other words, the revenue record is not a document of

title. Mutation being only for fiscal purpose of collection of land

revenue from the person in whose name the revenue record

stands. The guiding factor in recording mutation is to show who

is in possession. If the mutation entry is made in accordance

with law, there is a presumption in favour of the person in whose

name the mutation entry stands to the effect that he is in

possession of the said property. That by itself is not sufficient to

hold that he is the owner of the property. It is not proof of title.

Therefore, the Civil Courts cannot declare title in a person on the

basis of the aforesaid entries in the revenue records or on the

basis of the revenue records. This Court also observed that when

the plaintiff has not produced documents of title, the Civil Court

had no jurisdiction to declare the title to the immovable property

in favour of the plaintiff.

13. The counsel also relied upon the judgment reported

in MANU/KA/717/2021 and brought to notice of this Court

paragraph Nos.22 to 24 wherein also discussed with regard to

Section 34 of the Specific Relief Act, discretion of Court as to

declaration of status of right. Any person entitled to any legal

character or to any right as to any property, may institute a suit

against any person denying or interested to deny, his title to

such character or right. When once it is demonstrated that

plaintiffs were not in possession of the suit schedule property as

on the date of suit, question of invoking Section 34 and granting

the relief of declaration does not arise.

14. Per contra, the counsel appearing for the respondent

in his argument would contend that both the Courts have taken

note of the documents Exs.P12 and 17 and those documents

evidenced the fact that a grant was made in favour of the

plaintiff's father and there is an entry in the said document. The

counsel also would vehemently contend that Ex.P40 is very clear

that 2 acres 20 guntas was purchased by the defendant's father

from the plaintiff's father and once he admits the title and

purchased the property, now he cannot contend that plaintiffs

are not having any title over the property. The counsel also

would vehemently contend that Ex.P7 also discloses that 8 acres

of land was sold by the mother of the plaintiff and also there is a

clear admission on the part of the defendant that he is in

possession only to the extent of 2 acres 20 guntas. Exs.P12 and

17 are not disputed. The counsel would vehemently contend that

total grant was 25 acres 38 guntas and 2 acres 20 guntas out of

the said property, the same is purchased by the defendant's

father and now he cannot contend that no title and he is

estopped from taking such a defence.

15. The document Ex.P6 is also very clear that

subsequent to purchase, property was transferred in favour of

the defendant's father in MR No.1/42-43 and also 8 acres was

sold by the plaintiff's father in favour of Hombalamma i.e. on

23.12.1947 and to that effect MR 5/47-48 also effected and

remaining land is the suit schedule property. Though defendant

contend that the said property is an ancestral property, no

documents are produced before the Court and only relies upon

the index of land Ex.D3. The very document shows reference of

sale made in favour of defendant's father. In the cross of D.W.-1

he categorically admitted the extent of property was purchased

and having considered all these materials only the Trial Court as

well as the First Appellate Court given the reasoning and rightly

decreed the suit.

16. In reply to the arguments, the counsel for the

appellants would vehemently contend that, no proper pleadings

in the plaint about basis for claim and no documents are

produced and an application is filed under Order 41 Rule 27 i.e.

survey records and the same has not been challenged. Ex.D4 is

in respect of respect of Sy.No.139/1A to show that 14 acres and

entry of the defendant is very clear in the year 1975-76 in

respect of the property and revenue documents of the defendant

are not challenged and no document of darkest, under the

circumstances cannot claim the relief of declaration.

17. Having heard the respective counsel and also on

perusal of the material available on record, it is the claim of the

plaintiff that total extent of the property Sy.No.139 measuring

25 acres 38 guntas including 10 guntas of kharab. It is also

pleaded that out of that 2 acres 20 guntas were sold in favour of

the defendant's father in the year 1942 and the same is not

disputed by the defendant. No doubt in the plaint note pleading

with regard to the sale of the property by the mother of the

plaintiff to the extent of 8 acres and it is the claim of the plaintiff

also that property was granted by darkast. It is also important to

note that in order to substantiate the claim of the plaintiff,

plaintiff relied upon the document Ex.P17. On perusal of Ex.P17,

preliminary record, a reference is made mentioning the name of

the father of the plaintiff and in column No.10, nature of the

property specifically mentioned that by way of darkast and also

in Ex.P12 name of father of plaintiff is found in column No.4 i.e.

Mudlagiriyappa and in column No.9 and 10 it is specifically

mentioned that the property came to the plaintiff by darkast and

these documents evidence the fact that there was a darkast in

favour of Mudalagiriyappa and survey sketch Ex.P14 discloses

with regard to bifurcation of the property and Ex.P40 also

discloses that a sale was made in favour of defendant's father on

30.06.1942 and hence, it is clear that grant was made prior to

1942. It is also important to note that, another 8 acres of land

was also sold by the mother of the plaintiff in favour of

Hanumanthappa in the year 1947. It is also important to note

that defendant claims that the same is an ancestral property of

the defendant. In order to substantiate the said contention,

source of document is not placed before the Court that property

belongs to the defendant's ancestors and mainly relies upon

Ex.D1 the order passed by the Tahsildar and also order passed

by the Deputy Commissioner i.e. Ex.D2 and Ex.D3 though relied

upon, the same discloses with regard to having purchased the

property in the year 1942 and MR.1/42-43 is found and the

same is in respect of purchasing of the property in the year 1942

and no doubt index of land is relied upon which is marked as

Ex.D4 and source of title is not mentioned in this document. No

doubt other documents, tax paid receipts are produced before

the Court. In order to substantiate the property belongs to the

ancestors also not produced any document. These are the

materials are taken note of by the Trial Court as well as the First

Appellate Court and Trial Court taken note of these documents

and rightly comes to the conclusion that defendant's though

claim title contending that it is an ancestral property, not

substantiated the same. The Trial Court taken note of the

document Ex.P12 and Ex.17 in paragraph No.10 and also father

of the plaintiff Mudalagiriyappa had sold 2 acres 20 guntas on

western side through registered sale dated 30.6.1942 and the

same has not been denied by the defendant having purchased

the property and also plaintiff's father when he sold the property

Ex.P40 discloses the same and based on the same mutation also

entered in the revenue records in terms of Ex.P6. Ex.P10 is the

copy of the mutation register. After the death of the plaintiff's

father, his mother Hombalamma sold 8 acres through registered

sale deed in favour of Hanumanthappa and the same is

evidenced from Ex.P7 and the same is also admitted by the

defendant. The defendant except relying upon the entries found

in column Nos.9 and 12 in the revenue records not placed any

material before the Court and the said fact is also taken note of

by the Trial Court and Ex.P12 Preliminary record pertaining to

land in Sy.N.139 clearly indicate that plaintiff's father got the

entire land 25 acres 38 guntas under darkast and he was in

possession and enjoyment of the same. Sale deed dated

30.6.1942 in favour of defendant's father indicate that plaintiff's

father had sold 2 acres 20 guntas on the western side. The Trial

Court also taken note of the RTC of the year 1968-69, 1982-83,

1985-86 in column Nos.9 and 12 the name of the plaintiff's

father was written and it was rounded off and the name of

defendant's father was written. The defendant has not produced

any documents to show that on what strength the name of his

father was written in the RTC extract pertaining to the suit land

and also observed that a mischief was committed by the revenue

authorities and compelled the plaintiff to approach the Court to

establish the title and hence, granted the relief of decree of

declaration.

18. The First Appellate Court having reassessed the

material on record in keeping the grounds urged in the appeal

memo and also the contentions of the respective counsel taken

note of the fact that property was sold in favour of father of the

defendant in the year 1942 and taken note of Exs.P12 and 17

preliminary records and also taken note of Ex.P40 certified copy

of registered sale deed dated 30.06.1942 and also taken note of

mutation register extract at Exs.P6 and P10 and even after the

death of Mudalagiriyappa and his wife Hombalamma sold 8 acres

of land in favour of one Kammar Hanumanthappa and found the

entry in terms of Ex.P7. In turn Kammar Hanumanthappa sold 7

acres of land in favour of Chikkaveerappa, Krishnaiah in the year

1968 and also taken note of Exs.P19 to 37 and oral evidence and

comes to the conclusion that the Trial Court not committed any

error and comes to the conclusion that case of the plaintiff is

probable, since defendant has not produced any document with

regard to his claim is concerned that suit schedule property is an

ancestral property and not committed any error.

19. The counsel appearing for the respondent also relied

upon the judgment passed in R.S.A.No.1080/2012 dated

20.02.2020 wherein also an observation is made in a suit for

declaration and possession, the defendant will have to prove

better title than the plaintiff and the same is also applicable to

the facts of the case on hand, since though claims that the suit

schedule property is an ancestral property, to substantiate the

same, no material is placed before the Court. The counsel also

relied upon the judgment of the Apex Court reported in (1991)

4 SCC 572 wherein also in paragraph No.9 held that, all that a

plaintiff needs to prove is that he has a better title than the

defendant. He has no burden to show that he has the best of all

possible titles. His ownership is good against all the world except

the true owner. The rights of an owner are seldom absolute, and

often are in many respects controlled and regulated by statute.

The question, however, is whether he has a superior right or

interest vis-à-vis the person challenging it. The same is also

applicable to the case on hand, since he relied upon the

document at Exs.P12, P17 and P40 under which the defendant's

father himself has produced the property from the plaintiff's

father and claim of the plaintiff's father also the property was

allotted under darkast when the defendant's father has

purchased the property from the plaintiff's father in the year

1942 itself out of 25 acres 38 guntas of land. Now the defendant

again contend that the plaintiff is not having any better title than

him and defendant has not relied upon any document before the

Court to substantiate his claim that suit schedule property is an

ancestral property. No doubt, the counsel appearing for the

respondent relied upon several judgments referred supra and

brought to notice of this Court paragraph Nos.15 and 20 in the

case of Vasavi Co-operative Housing Society Limited and

Paragraph Nos.17 and 18 the case of Hullappa Vs. State of

Karnataka and also paragraph Nos.22 to 24 in Mariyavva Vs.

Satyappa Fakeerawwa Madar case, wherein categorically held

that, title deeds must not be the revenue documents. But in the

case on hand, I have already pointed out that Ex.P12 and 17

refers Darkast and apart from that the very defendant's father

purchased the property from the plaintiff's father in the year

1942 and acted upon. Once he admits the title of the plaintiff's

father in the year 1942 to the extent of 2 acres 20 guntas, to the

portion of the property which was allotted and also the other

documents which have been produced that the plaintiff's mother

had sold total 8 acres of land that too in the year 1968 itself and

only subsequently the RTC of the plaintiff are rounded off and

mentioned the name of the defendant's father and the same is

also not based on any material and the same is evident from the

record and both the Courts have taken note of the said fact and

except getting the entry in the RTC, the defendant has not

placed any material before the Court and documents which have

been placed before the Court as Exs.D1 to D5 does not disclose

any better title than the plaintiff and Exs.D1 and D2 only an

order passed by the Tahsildar as well as the Deputy

Commissioner and Exs.3 to 5 also not convey any better title in

favour of the defendants and these are the aspects has been

taken note of by the Trial Court and First Appellate Court and

hence, I do not find any error committed by the Trial Court in

granting the relief of declaration and injunction in favour of the

plaintiff and accordingly I answered substantial questions of law

framed by this Court that both the Courts have not committed

any error and no merits in the appeal to reverse the finding.

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

following:

ORDER

Regular second appeal is dismissed.

Sd/-

JUDGE

AP