Smt. Manjula W/O Late. Venkappa ... vs Smt. Basalingavva W/O Venkappa ...
2023 Latest Caselaw 6832 Kant

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                                                  NC: 2023:KHC-D:11524-DB
                                                        RFA No. 100417 of 2020



                                                                                 R
                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                              PRESENT
                       THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                                                 AND
                           THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
                      REGULAR FIRST APPEAL NO.100417 OF 2020 (DEC/INJ-)

                      BETWEEN:

                      1.    SMT. MANJULA W/O. LATE. VENKAPPA MUDARADDI,
                            AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
                            R/O. HIREKOPPA, TQ: NARGUND,
                            DISTRICT: GADAG, PIN CODE-582207.

                      2.    KUM. SAVITA D/O. VENKAPPA MUDARADDI,
                            AGE: 23 YEARS, OCC: HOUSEHOLD WORK,
                            R/O. HIREKOPPA, TQ: NARGUND,
                            DISTRICT: GADAG, PIN CODE-582207.

                      3.    KUM. KAVITA D/O. VENKAPPA MUDARADDI,
SAMREEN
                            AGE: 21 YEARS, OCC: HOUSEHOLD WORK,
AYUB
DESHNUR                     R/O. HIREKOPPA, TQ: NARGUND,
Digitally signed by         DISTRICT: GADAG, PIN CODE-582207.
SAMREEN AYUB
DESHNUR                                                            ...APPELLANTS
Date: 2023.09.30
12:52:18 +0530        (BY SRI. SANJAY S. KATAGERI, ADVOCATE),

                      AND:

                      1.    SMT. BASALINGAVVA W/O. VENKAPPA MUDARADDI,
                            AGE: 84 YEARS, OCC: HOUSEHOLD WORK,
                            R/O. HIREKOPPA, TQ: NARGUND,
                            DISTRICT: GADAG, PIN CODE-582207.

                      2.    SMT. BASAVVA W/O. VENKAPPA MUDARADDI,
                            AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
                            R/O. KONNUR, NOW AT HIREKOPPA,
                            TQ: NARGUND, DISTRICT: GADAG, PIN CODE-582207.
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                          NC: 2023:KHC-D:11524-DB
                                 RFA No. 100417 of 2020




3.   SMT. KASTURI W/O. VIRUPAXRADDI SAUNSHI,
     AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
     R/O. VENKATAPUR, TQ: MUNDARAGI,
     NOW AT HIREKOPPA, TQ: NARGUND,
     DISTRICT: GADAG, PIN CODE -582207.

4.   SMT. LAXMAVVA @ LAXMI
     W/O. CHANDRASHEKHAR MASARADDI,
     SINCE DECEASED BY HER LRS.

4a   KUMAR NINGARADDI
     S/O. LATE CHANDRASHEKHAR MASARADDI,
     AGE: 17 YEARS, OCC: STUDENT,
     R/O. HIREKOPPA, TQ: NARGUND,
     DIST: GADAG, PIN CODE -582207.

4b   KUMAR NINGARADDI
     S/O. LATE CHANDRASHEKHAR MASARADDI,
     AGE: 17 YEARS, OCC: STUDENT,
     R/O. HIREKOPPA, TQ: NARGUND,
     DIST: GADAG, PIN CODE-582207.

     SINCE MINOR REPRESENTED BY HIS
     MINOR GUARDIAN-MATERNAL AUNT
     SMT. VENKAVV D/O. DYAVANGOUDA
     DYAVANAGOUDAR, AGE: 58 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O. HIREKOPPA, TQ: NARGUND,
     DIST: GADAG, PIN CODE: 582207.

5.  SMT. SHANTAVVA W/O. VENKAPPA MARTEGOUDAR
    AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
    R/O. KALLAPUR, TQ: NARGUND,
    DISTRICT: GADAG, PIN CODE-582207.
                                          ...RESPONDENTS
(BY SRI. HANUMANTHREDDY SAHUKAR, ADV. FOR R1,
SRI. SHARANABASAVA, ADV. FOR R2,
SRI. DEEPAK C. MAGNUR, ADV. FOR R3, R4(A) AND R5)

     THIS APPEAL FILED UNDER SEC. 96 READ WITH ORDER
41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DTD 17.11.2020 PASSED IN O.S.NO.70/2016 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, DECREEING
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                            NC: 2023:KHC-D:11524-DB
                                   RFA No. 100417 of 2020




THE SUIT FILED     FOR   DECLARATION    AND   PERMANENT
INJUNCTION.

     THIS APPEAL COMING ON FOR FINAL HEARING ON
03.08.2023 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT THIS DAY
RAMACHANDRA      D. HUDDAR   J.,  DELIVERED THE
FOLLOWING:

                      JUDGMENT

The present appeal is directed against the judgment

and decree dated 17.11.2020, passed by the Addl. Senior

Civil Judge, Gadag, in O.S.No.70/2016, filed by the

appellants under Section 96 read with Order XLI of CPC,

whereby the learned trial Court has decreed the suit

against defendant No.7 to 9.

2. During the pendency of the appeal, respondent

No.4 arrayed as defendant No.3 in the suit died and her LR

was brought on record. Accordingly, cause-title came to

be amended.

3. Parties to this appeal are referred to as per

their rank before the trial Court for the purpose of

convenience and to avoid confusion.

Facts of the case:

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4. That Smt.Basalingavva w/o Venkappa

Mudaraddi filed a suit against defendants seeking relief of

declaration and consequential relief of permanent

injunction with an alternative prayer for recovery of

possession of the suit schedule properties.

5. The plaintiff has described the schedule

properties in the plaint which are hereinafter referred to as

schedule 'A' and 'B' properties for the purpose of

convenience.

6. It is the case of the plaintiff that, by virtue of

the two gift deeds dated 17.06.1962 and 06.12.1969

stated to have been executed by Padmavva w/o

Shivanappa Nittur, being elder sister of plaintiff, in respect

of schedule 'A'(i) and (ii) and schedule B (i) and (ii) so also

schedule A (iii) and(iv), he became the owner and is in

possession of the schedule properties.

7. It is her further case that, defendants Nos.1 to

4 are her daughters. Defendant Nos.5 and 6 are the

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strangers to the family of the plaintiff. Defendant No.7 is

the sister-in-law of the plaintiff. Defendant Nos.8 and 9

are the daughters of defendant No.7.

8. The genealogy narrated in the plaint shows that

Basalingavva is the plaintiff. She has six children by name

Basavva, Kasturi, Laxmavva, Shantavva and Shekavva

and a son by name Venkappa who died on 25.01.2015.

The aforesaid daughters of Basalingavva i.e., plaintiff, are

arrayed as defendant Nos.1, 2, 3, 4 and 6. Venkappa died

leaving behind his wife Manjula arrayed as defendant No.7

and daughters by name Savitha and Kavitha arrayed as

defendant Nos. 8 and 9. Defendant Nos.5 is the purchaser

of item Nos.3 and 4 of suit schedule 'A' property from

defendant No.4. This genealogy is not denied by the

defendants.

9. It is the specific allegation of the plaintiff that

defendant No.5 and 6 in collusion with defendant No.4

created and fabricated a false sale deed. Defendant Nos.1

to 4 and the husband of defendant No.7, the father of

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defendants 8 and 9, son of the plaintiff by name Venkappa

got their names entered illegally though had no title over

the schedule properties without the knowledge of the

plaintiff by submitting a `Vardi' to the Revenue

authorities. It is alleged that, defendant No.4 without

having any right, title and interest over the suit schedule A

(3 and 4) sold the same in favour of defendant No.5 and

husband of defendant No.6 illegally. Thus, the said sale

deed is void ab initio. Thereafter, defendants 5 and 6 got

divided the said properties, each taking 3 acres 20 guntas.

10. It is further alleged that, the aforesaid

defendants, without any interest, behind the back of the

plaintiff without any title over schedule A (3) property,

sold the same in favour of defendant No.5 and husband of

defendant No.6.

11. It is further alleged by the plaintiff that based

upon the mutation entries and names appearing in the

revenue records, defendants 1 to 3 started disturbing the

peaceful possession and enjoyment of the properties by

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the plaintiffs. Now wife and children of Venkappa i.e.,

defendant No. 7 to 9, are trying to delete the name of

Venkappa and are trying to enter their names in the

revenue records.

12. It is further alleged that, defendant No.2 to 4

filed a suit claiming share in their joint family properties by

including suit schedule A (1 and 2) lands on the file of Prl.

Senior Civil Judge, Gadag. On getting the suit summons,

plaintiff came to know about all these illegal activities of

the defendants. Therefore she was constrained to file the

present suit.

13. So far as defendants 2 to 4 are concerned they

filed written statement admitting the claim of the plaintiff

and also admitted that, the schedule properties were of

the ownership of Padmavva and she gifted the said

properties in favour of plaintiff. They have no objections

to decree the suit.

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14. So far as defendant No.7 is concerned, she filed

a written statement and the same was adopted by

defendants 8 and 9.

15. It is the defence of these defendants that, it

was the plaintiff who made the family arrangements and

gave 6 acres 2 guntas in Sy.No.320/1 to her son

Venkappa. Accordingly, his name was appearing in the

revenue records. After his demise, the names of

defendants 7 to 9 were entered in the revenue records and

they are in possession of the same. It is contended that

defendant Nos.7 to 9 were continuously in actual

possession and enjoyment of the said property right from

the date of death of her husband Venkappa and thereby,

perfected their right over the property by way of adverse

possession.

16. Defendant No.1 has not appeared before the

trial Court. The records of this case reveal that during the

pendency of the suit, by filing a memo on 21.10.2020

NC: 2023:KHC-D:11524-DB RFA No. 100417 of 2020

plaintiff got dismissed her suit against defendants 5 and 6

as settled out of Court.

17. Based upon the rival pleadings of both the

parties, the learned trial Court in all framed following 6

issues and 2 additional issues:

"ISSUES

1. Whether the plaintiff proves that, she is the absolute owner is possession of suit schedule properties by virtue of Registered Gift Deeds dated: 17.06.1962 and 06.12.1969 executed by Smt. Padmavva W/o. Shivappa Nittur?

2. Whether the plaintiff further proves that, the sale deed executed by the defendant No. 4 in favour of def.no.5 and husband of defendant No. 6 are null and void and not binding on her?

3. Whether the plaintiff further proves the alleged interference of the defendants?

4. Whether the defendant No. 5 & 6 proves that, def.no.5 and husband of defendant No.6 are the bonafide purchaser of the suit schedule property as contended in para no.12 of their written statement?

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5. Whether the plaintiff is entitled for the relief of declaration and recovery of possession?

6. What order or decree?

Addl. Issues dated 30.01.2017

1. Whether the defendant No.7 proves that, she and defendant No. 8 & 9 have perfected their rights over the suit schedule properties by way of adverse possession as contended in para No.7 of her written statement?

2. Whether the defendant No.7 further proves that, the suit is barred by limitation?"

18. To substantiate the case of the plaintiff, one

Parvagouda S/o Sangangouda Kenchangoudar @ Patil, the

GPA of the plaintiff was examined as PW-1. On behalf of

the plaintiff, Ex.P.1 to Ex.P.13 were marked. So also

plaintiff has examined two more witnesses in the shape of

PW-2 and 3 by name Chandragouda Choudannavar and

Khanappagouda s/o Mallanagouda Khanappagoudar

respectively.

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19. To rebut the evidence of the plaintiff, defendant

No.7 adduced evidence as DW-1 and got marked D.1 to

D.7.

20. The learned trial Court having heard the

arguments of both the sides and on perusal of the records,

answered issue No.1, 3 and 5 in the affirmative.

Additional issues 1 and 2 in the negative and ultimately

decreed the suit of the plaintiff.

21. It is this judgment and decree that has been

challenged by the appellants 1 to 3 i.e. defendant nos.7, 8

and 9 by filing this appeal.

Submission of the counsel for the appellants

22. It is argued by the learned counsel for the

appellants that, it is plaintiff who voluntarily gave vardi to

the revenue authorities and intimated about the family

arrangement. By virtue of the same, way back in 1976

itself, the names of the defendants came to be entered in

the revenue records and since then, the names of these

defendants are appearing. The said family arrangement

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was acted upon. Without any cause of action, the suit was

filed by the plaintiff on flimsy grounds. The revenue

records were standing in the name of Venkawwa w/o

Dyamanagouda etc., in respect of Sy.No.76/1, 77/1, 3/1

320/1 of Hirekoppa village. They are the long standing

mutation entries. Based upon the vardi submitted by the

plaintiff only with the signature of other defendants, the

revenue authorities mutated the names in the revenue

records. Further, it is contended that during the pendency

of the suit on 21.10.2020 by filing a memo, plaintiff got

dismissed the suit against defendants 5 and 6. Therefore,

now when there is a relinquishment of the claim against

defendants 5 and 6, as their names were appearing in the

revenue records as per the vardi, the same benefit also

should be extended to the appellants who are defendants

7 to 9. Thus, the plaintiff is estopped from claiming any

relief against these appellants/defendants.

23. It is further submitted that the trial Court

without appreciating the evidence with regard to the

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change in revenue entries hurriedly decreed the suit on

the sole ground that the said family arrangement was not

a registered document as required under the provisions of

Section 17 of the Indian Registration Act. It is further

submitted that the grave and patent error has been

committed by the trial Court in decreeing the suit.

Amongst other grounds so urged in the appeal memo, it is

prayed to allow this appeal and set aside the impugned

judgment and dismiss the suit.

24. In support of his submission, Shri Sanjay

S.Katageri, learned counsel appearing for the appellants

took us to various oral and documentary evidence so

adduced. He also relied upon the following judgments in

support of his submission:

1. R.S.Maddanappa(Deceased) after him by his LRs vs. Chandramma and another -AIR 1965 SC 1812

2. Joint Action Committee of Air Line Pilots Association of India and others vs. Director General of Civil Aviation and others - (2011) 5 SCC 435

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3. Union of India and others vs. N.Murugesan and others - (2022) 2 SCC 25

4. Kale and others vs. Deputy Director of Consolidation and others - (1976) 3 SCC 119

Submission of the counsel for respondents

25. As against this submission, the learned counsel

for respondents submits that plaintiff is not a signatory to

the sale deed. Reading the pleading of the plaintiff shows

that, it is plaintiff who is the owner of the suit schedule

properties. All the relevant revenue entries were entered

in the name of the plaintiff. Other family properties are

not included. It is contended that when plaintiff is denying

the said family arrangement based upon a vardi, till her

life time defendants cannot claim any semblance of right

over the schedule properties. There was no family

arrangement at all. The alleged family arrangement is a

created document without any proof. The trial Court has

rightly decreed the suit.

26. It is submitted that as the plaintiff is the master

of the suit, she could very well give up certain right over

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the property in question. The suit against defendants 5

and 6 was dismissed as settled out of Court. It was not

dismissed on merits. Her act of getting dismissal of the

suit against defendants 5 and 6 cannot be questioned by

defendants 7 to 9 for the simple reason that getting

dismissal of the suit against defendants 5 to 6, was

between the court and the plaintiff. These defendants 7 to

9 cannot take advantage of the same and cannot seek any

benefit out of this act.

27. The learned counsel for respondents prayed for

dismissing the appeal.

28. We have given our anxious consideration to the

arguments of both the sides. Meticulously perused the

records.

29. In view of the rival submissions of both the

sides, the points that would arise for our consideration

are:

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i) Whether the appellants/defendants 7 to 9 are

right in claiming any benefit from abandonment

of the claim of the plaintiff against the

defendants 5 and 6?

ii) Whether the so called family arrangement setup

by defendant Nos.7 to 9 has given any legal

right to them in the schedule properties?

iii) What order?

Point Nos.1 and 2 are discussed together:

30. Before adverting to the other aspects of the

case, let us analyze the admitted facts between both the

sides. The admitted facts are as follows:

i) A and B suit schedule properties originally belonged to Padmavva w/o Shivanappa Nittur, the elder sister of the plaintiff who had no issues either male or female.

ii) By virtue of gift deeds dated 17.06.1962, Sy.No.3/1 measuring 10 acre 30 guntas and Sy.No.320/1 measuring 6 acres 22 guntas of Hirekoppa village and house property situated in Hirekoppa village bearing No.128 with

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boundaries so mentioned in the gift deed and also backyard bearing Gram Panchayat No.125 with boundaries and by gift deed dated 06.12.1969, Sy.No.76/1 measuring 5 acres 20 guntas and Sy.No.77/1 measuring 7 acres, executed by said Padmavva in favour of plaintiff, she became the absolute owner of the suit schedule properties and accordingly, her name was entered in the concerned revenue records.

iii) It is the plaintiff who exercised her right of ownership over these schedule properties as a donee.

iv) The relationship between plaintiff and defendants is not disputed.

v) After demise of Venkappa, in the year 1975, a suit was filed by his wife and children in O.S.No.193/2015 on the file of Senior Civil Judge, Gadag, seeking partition which is still pending.

vi) By filing a memo dated 21.10.2020 plaintiff got dismissed her suit against defendants 5 and

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6 as settled out of Court and accordingly, suit was dismissed against them.

These are all the admitted facts which need not be

proved.

31. It is the grievance of the plaintiff that behind

her back and without her knowledge, there was a mutation

entry in respect of Sy.Nos.3, Sy.No.76/1, 77/1, 3/1, 320/1

of Hirekoppa village. Ex.D.2 is the relevant document as

per the case of the defendants that this document has

given right in them as there was a family arrangement

done by the plaintiff herself. Ex.D.3 appears to be a

partition deed alleged to have been entered into by the

plaintiff with Basappa Venkappa Urban, Shantavva w/o

Venkappa Marthgoudar, Shivanavva, Shankravva, Kasturi,

Lakshmavva, Venkappa s/o Venkappa Madaraddi

represented by minor guardian Basalingavva. Ex.D.4 is a

document issued by the revenue authorities styled as joint

consent vardi in respect of Sy.No.76/1, 77/1, 3/1 and

230/1 respectively. Ex.D.5 is form U in respect of the said

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survey numbers, Ex.D.6 is a document of revenue

authorities in respect of the same survey number creating

partition. These documents are disputed by the plaintiff.

Ex.D.7 is another document styled as a vardi addressed to

the Tahsildar, Nargund, dated 12.05.2003. This document

is also disputed by the plaintiff.

32. According to her, there was no occasion for the

plaintiff to submit any vardi based upon the so-called

partition effected by way of family arrangement. Such

documents so relied upon by the contesting defendants

are all fabricated as per the say of the plaintiff. By virtue

of the said documents, it is alleged by the plaintiff that,

the said defendants have not acquired any right, title or

interest much less possession of the schedule properties.

33. Now we have to examine whether getting

dismissal of the suit against defendant nos. 5 and 6 by the

plaintiff enures to the benefit of the appellants-defendant

nos. 7 to 9 and thereby, they can claim their title over the

property in question. It is an admitted fact between both

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the side that during the pendency of OS No.70/2016, a

memo was filed by the plaintiff on 21.10.2020 before the

trial Court and it is stated in the memo that the matter has

been settled out of court between plaintiff and defendant

nos.5 & 6. In view of the memo, the trial Court has

dismissed the suit of the plaintiff as against defendant nos.

5 and 6.

34. Taking advantage of this, getting dismissal of

suit as against defendants 5 and 6, now for the first time,

before this Court, it is submitted that in view of said

dismissal of the suit as settled, the plaintiff therein

admitted the so called family arrangement effected at her

instance in the year 1976. The said family arrangement is

acted upon therefore, plaintiff cannot claim any right in

the property allotted to the shares of these appellant's

husband as she lost her exclusive right over the property

because of the said family arrangement. Thus, it is

submitted that this abandonment of the claim in respect of

the property purchased by defendant nos. 5 & 6 confers

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legal rights on the appellants. It is true that abandonment

by one may confer legal rights on another.

35. Way back in 1953, the Hon'ble Apex Court in

SHAH MULCHAND AND COMPANY LTD., VS.

JAWAHAR MILLS LTD., SALEM1 held that "abandonment

is the voluntary giving up of ones rights and privileges or

interest in property with the intention of never claiming

them again." The dictionary meaning of abandonment is,

voluntary relinquishment of all right, title claim and

possession, with the intention of not reclaiming it, the

giving up of a thing absolutely without reference to any

particular person or purpose."

36. It is submitted that, as the plaintiff has given

up her claim in respect of the properties being purchased

by defendant nos. 5 & 6, it amounts to relinquishment of

her claim.

AIR 1953 SC 98

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37. Order XXIII Rule 1 of CPC speaks of

abandonment of suit or part of plaint. For better

understanding, it is just and proper to incorporate the

provisions of Order XXIII Rule 1 of CPC. It reads thus:

"(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

PROVIDED that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court."

38. On meaningful reading of Rule 1 of Order XXIII

of CPC, it allows the plaintiff to exercise his/her rights to

proceed with the litigation in his/her own way and also to

ensure fair trial on merits. For the said purpose, sub Rule

(1) of Rule 1 confers absolute and unqualified right on the

plaintiff to abandon his/her suit or part of claim without

liberty to file fresh suit on the same subject matter. Thus,

the suit or part of the claim on such abandonment comes

to an end forever. Order II Rule 2 of CPC (relinquishment

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of part of claim) operates in case of intentional

relinquishment or omission to sue in respect of part of

claim before the institution of suit. The provisions of Rule

1 of Order XXIII applies to abandonment of whole or part

of claim after the institution of the suit. Law is that where

the plaintiff abandons a suit without permission of the

Court, he is precluded from instituting any suit in respect

of the same subject matter.

39. That means this sub Rule (1) of Order XXIII

Rule 1 of CPC confers absolute and unqualified right on the

plaintiff to abandon his/her suit or part of the claim

against all or any of the defendants. The Hon'ble Apex

Court in HULAS RAI VS. FIRM K.B.BASS2 has held that

"it is not necessary for the plaintiff to give any reason in

the application for abandonment of suit. He can also

abandon a part of the claim with a view to proceed with

other defendants". This provision also enables the plaintiff

to exercise his right at any time after the institution of a

AIR 1968 SC 111

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suit to abandon the whole suit or part of his claim. This is

a right conferred by the Court on the plaintiff and no Court

can refuse to allow the plaintiff to abandon his claim.

Even the law says that the plaintiff has right to withdraw

(abandon) a suit against all the defendants or any of

them. If he abandons his suit against some of the

defendants, no suit remains against those defendants.

40. In this case also, plaintiff got dismissed her suit

against defendant Nos.5 and 6 and proceeded with other

defendants. That means once the suit or part of the claim

in respect of item Nos.3 and 4 of 'A' schedule property was

abandoned by the plaintiff, the law is that the plaintiff

cannot apply for revival of the same. For the rights

allowed by the Court, the so-called defendants cannot

contend that same benefit should be extended to them so

as to protect their rights. This right as stated above has

been given absolutely to the plaintiff. When the said

abandonment was sought by the plaintiff by filing a memo

before the trial Court, no little finger was raised by the

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defendants. Accordingly, by virtue of the said memo suit

was dismissed against the defendants 5 and 6. Now,

these defendants cannot contend that their rights be

protected in view of abandonment of suit against

defendants 5 and 6. Hence, there is no merit in the

submissions of learned counsel for the appellants.

41. As rightly submitted by the learned counsel for

the plaintiff, the cause of action has no relation whatever

to the defence now set up by the defendant, nor does it

depend on the character of the relief prayed for by the

plaintiff. It refers "to the media upon which the plaintiff

asks the Court to arrive at a conclusion in her favour". The

plaintiff has made various claims in the suit.

42. The argument of the counsel for the appellants

that in view of giving up her claim, suit of the plaintiff is

not maintainable cannot be accepted. In the same suit,

plaintiff has claimed several reliefs on the same cause of

action and as the plaintiff was entitled to more than one

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relief, she need not seek leave of the Court to relinquish

her part of claim.

43. The appellants/defendants 7 to 9 in their

written statement have pleaded that as they are in

continuous possession and enjoyment of the schedule

property allotted to them in the family partition, therefore

they have perfected their title over the suit schedule

property by way of adverse possession. When such a plea

of adverse possession is pleaded by the defendants 7 to 9,

thereby they admit the title of the plaintiff. To claim the

adverse possession, the person who claims adverse

possession has to admit the title of the plaintiff and then

plead the hostile title in his/her favour. In view of such a

plea being taken by defendants 7 to 9, they admit the title

of the plaintiff. Except the pleading, there is no evidence

adduced by these defendants to prove the plea of adverse

possession. Unless there is a proof, it can never be stated

that they have perfected their title over the suit schedule

property by way of adverse possession. Merely because

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their names are appearing in the revenue records, that will

never confer any title in them and prove the plea of

adverse possession. In the said context, the Hon'ble Apex

Court in KARNATAKA BOARD OF WAKF VS.

GOVERNMENT OF INDIA AND OTHERS3 has held as

under:

"Adverse possession - Essentials of - Held, are exclusive physical possession and animus possidendi to hold as owner in exclusion to the actual owner - Facts to establish claim for adverse possession, stated - Pleas of adverse possession and of title are mutually inconsistent - Limitation Act, 1963, Art. 65

In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must

(2004) 10 SCC 779

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start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

Hence, the plea of adverse possession falls to the ground.

44. Therefore, the argument of the counsel for the

appellants cannot be accepted and defendant nos. 7 to 9

cannot take such benefit. Therefore, point no.1 raised

supra is answered in the negative and accordingly it is

answered.

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45. It is the contention of the appellants that, the

plaintiff herself has made the family arrangements and

accordingly the mutation entries were effected. Name of

the husband of the defendant no.7 was entered in the

concerned revenue records. After his demise, herself and

her children name is appearing. Because of this family

arrangement and the vardi given by the plaintiff, rights

have been created as per law.

46. PW.1 being the power of attorney holder of the

plaintiff has reiterated the plaint averments in his evidence

on oath. It is an admitted fact between both the sides

that, defendant nos. 2 to 4 have filed a suit before the

Civil Court in OS 193 /2016 claiming their share. PW.1

has denied the suggestion that in respect of Survey

No.77/1 and 77/2 as per the partition, the name of

defendant no.4 came to be entered in the revenue

records. Throughout his evidence, PW.1 has stated that by

creating the false and fabricated documents, these

appellants got entered their names in the revenue records.

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No dobut, the plaintiff did not personally enter the witness

box. PW.1 having acquainted with the affairs of the family

of the plaintiff has deposed on line with the pleadings so

pleaded in the plaint. The plaintiff has given instructions

to prepare his examination-in-chief. According to his

evidence, plaintiff has not given any vardi to enter the

name of her son in the revenue records on 20.10.1976.

As per his evidence, no partition was effected in the family

of the plaintiff with her children.

47. His evidence is supported by the evidence of

PW.2 Chandragouda Choudannavar and PW-3

Khanappagouda M. Khannappagounda. As per their

evidence, it is plaintiff who is in possession of the schedule

properties by virtue of the gift deed executed by

Padmavva in her favour. No doubt, they have deposed

some ignorance but, throughout their evidence they have

maintained that it is plaintiff who has got the properties by

virtue of gift deeds.

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48. In support of the plaintiff's evidence, PW.1 has

produced Ex.P1 the power of attorney. Ex.P2 and P3 are

the gift deeds. Ex.P.4 to 7 are the RTCs. Ex.P8 and P9 are

the property extracts. P10 certificate issued by Gram

Panchayath, Hirekuppa and also certified copy sale deed

Ex.P12. Ex.P13 is the death extract of her son Venkappa.

So from these documents, it is very much clear that by

virtue of Ex.P2 and P3, the plaintiff is the donee and

acquired title over the schedule properties by virtue of gift

deeds.

49. DW.1 Manjavva Mudareddy being defenandant

no.7 and wife of Venkappa came before the trial Court and

deposed that it was plaintiff who gave vardi in the year

1976 and has challenged the same in the year 2016.

Therefore, her claim is barred by time. According to her

evidence, by virtue of the said vardi she has become the

owner of the properties so stated in the vardi. She admits

that schedule properties were acquired by the plaintiff by

virtue of gift deeds. Thus, it is very much clear from the

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evidence of DW.1 that the schedule properties are

properties of plaintiff alone. She admits that, from her

husband's ancestors, there are other properties standing

in the name of her husband. She relies upon Ex.D2, the so

called Vardi submitted to the Revenue Authorities wherein

the names of plaintiff and her children and name of DW.1

are shown including the survey nos. of the properties.

50. This Ex.D.2 is styled as `Partition Varadi'. On

reading this document, the plaintiff alleged to have

created the partition of the properties shown in the names

of her daughters and defendant no.7. Evidently, Ex.D2

contains the landed properties valuing more than

Rs.100/-. The document is styled as partition deed.

Likewise, Ex.D.3 is also Varadi submitted by the plaintiff

alleged to be containing her signature, so also Ex.D4 the

consent vardi. Thereby, Venkavva one of the daughters of

plaintiff has taken her share in the property so mentioned.

Ex.D5 is the notice and EX.D6 is another form issued

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under Land Revenue Act, so also Ex.D.7 is the Varadi.

Based upon that, mutation entry was certified.

51. Now the question arises that, was there any

family arrangement as contended by the appellants i.e.,

defendant nos. 7 to 9. Evidently, the properties' value is

more than Rs.100/- being immovable properties.

According to appellants/defendant nos. 7 to 9, it has

conferred new distinct title on each of them. If that is so,

such a document requires registration as provided under

the provisions of Registration Act.

52. It is contended that there was a family

settlement. The term `settlement' means an action of

reaching an agreement in a disputed issue. A family

settlement is an agreement mutually worked out by a

settler among his or her family or by family members

among themselves as to how the common property should

be distributed and held separately in accordance with the

agreement. It settles the division or distribution of

common property that the family members already

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owned as a common property. Evidently in this case,

the properties are held exclusively by the plaintiff by virtue

of the gift deeds. Thus, these children of plaintiff have no

antecedent title to the said properties so involved in the so

called settlement.

53. It is held in SAHU MADHAV DAS AND OTHERS

VS. PANDITH MUKUND RAM AND ANOTHER4 that,

"It is well settled that, a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what the title is. Such a family settlement between the members of the family bona fide put an end to the dispute amongst the members of the family.

But, as the said family arrangement was acted upon as per the case of the appellants. It requires registration. That means it is well settled that in such a situation, when the document is reduced to writing and if the terms are acted upon, registration would be necessary. But, evidently, the said Vardi set up by the appellants are not registered under the provisions of

AIR 1955 SC 481

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the Indian Registration Act. Thus such mutation entries based upon the said unregistered document never confer any title in the appellants and they cannot contend that they have got a valid title over the properties allotted to them as per the said unregistered document.

54. The Hon'ble Apex Court in SAWARNI (SMT.)

VS. INDER KAUR (SMT.) AND OTHERS5 at Caption B has

held:

"Mutation of a name in revenue records

- effect - held, does not create or extinguish the title nor has ny presumptive value on title. It only entitled the person concerned to pay the land revenue."

55. This view of the Hon'ble Apex Court is followed

by the Apex Court in BALAWANT SINGH AND ANOTHER

VS. DAULATH SINGH (DEAD BY LRS.) AND OTHERS6.

It is held that "mutation of property in revenue records

neither creates nor extinguish title to the property nor has

it any presumptive value on title. Such entries are relevant

only for the purpose of collecting land revenue.

AIR 1996 SC 2823

AIR 1997 SC 2719

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56. The co-ordinate Bench of this Court in

GONIBASAVVA, W/O. GONIBASAPPA BILLALLI SINCE

DECEASEDBY HER LRS VS. BASAPPA S/O. MARIGONEPPA

BILLALI AND OTHERS 7 at para.24 has held as under:

"On the ground that relinquishment deed is not registered, this Court's interference is not warranted. As held by the Apex Court in the case of Roshan Singh vs. Zile Singh reported AIR 1988 SC 881, the memorandum of partition is only family arrangement its registration is not necessary. While an instrument of partition, which operates or is intended to operate as a declared volition constituting or severing ownership and cause a change of legal relation of the property divided amongst the parties to it, requires registration under Section 17(1)(b) of the Registration Act, a writing which merely recites that there has in time passed been a partition is not a declaration."

Thus, so called Vardi which is denied by the plaintiff never

confer any title or ownership on the appellants.

57. It is submitted that the plaintiff cannot

approbate or reprobate. So to say he submits that, once

she admits the sale deed executed by defendant no.4, she

has to admit the title of the appellants also. But, this

submission cannot be accepted for the simple reason that,

2013 SCC Online Karnataka 7140

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the schedule properties are owned by the plaintiff by

virtue of the gift deeds. She is claiming her title over the

property by virtue of gift deeds. The documents set up by

the defendants are not legally enforceable documents

giving valid title in them. No doubt law does not permit a

person to both approbate and reprobate but such a

situation has not arisen in this case. Even there is no

estoppel as alleged by the appellants and the estoppel

never operated against plaintiff.

58. The leaned counsel for the appellants relied

upon the judgment of the Supreme Court to prove that

rule of estoppel applies to plaintiff for filing the suit and

she is not entitled for any relief etc., The said principle

cannot be justifiably applied to the present facts of the

case. Therefore, the arguments of the counsel for the

appellants hold no water.

59. In view of all these factual features coupled

with the evidence adduced by the parties, it can very well

be stated that the learned trial Court based on the

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evidence both oral and documentary have decreed the

same in favour of the plaintiff. The learned trial Court has

given sound reasons which do not require any interference

by this Court. Even on re-appreciation of the evidence

placed on record by both the parties, no other conclusion

can be arrived at than the conclusion arrived at by the

learned trial Court.

60. We do not find any legal or factual error being

committed by the trial Court in arriving at the said

conclusion.

61. In view of our discussion made above, the

impugned Judgment and decree of the trial Court do not

suffer from any illegality, perversity which calls for

interference. Also the so called family arrangement set up

by the defendant nos. 7 to 9 has not given any legal right

to them in respect of schedule properties as it is invalid

document. Thus, appeal filed by the appellants fail and is

liable to be dismissed.

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62. Accordingly, we answer the points in favour of

the plaintiff. Resultantly, the following:

ORDER

Appeal filed by the appellants is dismissed

confirming the judgment and decree so passed by the

Additional Sr. Civil Judge, Gadag in OS No.70/2016 dated

17.11.2020.

Under the circumstances, no orders as to costs.

Send back the trial Court records along with copy of

this judgment forthwith.

Sd/-

JUDGE

Sd/-

JUDGE