Karnataka High Court
Bhimanna vs The State Of Karnataka And Anr on 8 February, 2024
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RSA No. 200223 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200223 OF 2019 (DEC)
BETWEEN:
BHIMANNA
S/O NARAYAN GOPI TONPE,
AGE: 69 YEARS, OCC:AGRICULTURE,
R/O: SHAHAPUR PETH, SHAHAPUR,
DIST: KALABURAGI,
NOW DIST: YADAGIR-585 223.
...APPELLANT
(BY SRI. RAVI BHEEMSINGH CHAWAN, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
Digitally THROUGH DEPUTY COMMISSIONER,
signed by
LUCYGRACE KALABURAGI-585 102.
Location:
HIGH
COURT OF 2. THE TOWN MUNCIPAL COUNCIL, NOW (CMC),
KARNATAKA
SHAHAPUR, DIST. KALABURAGI,
THROUGH ITS COMISSIONER-585 223.
...RESPONDENTS
(BY SRI. G.B. YADAV, HCGP FOR R-1;
SRI.CHAITANYAKUMAR C.M, ADVOCATE FOR R-2)
THIS RSA IS FILED UNDER SECTION OF 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND DECREE BE PASSED
FULLY AS PRAYED IN PLAINT BY SETTING ASIDE THE
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RSA No. 200223 of 2019
JUDGEMENT AND DECREE PASSED IN R.A.NO.08/2018 BY THE
SENIOR CIVIL JUDGE, SHAHAPUR DATED 5TH MARCH 2019,
CONFIRMING THE JUDGEMENT AND DECREE PASSED BY ADDL.
CIVIL JUDGE & J.M.F.C., SHAHAPUR IN O.S.NO.207/2003
DATED 03.10.2017.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiff/appellant,
challenging the judgment and decree dated 05.03.2019 in
R.A. No.08/2018 on the file of Senior Civil Judge at
Shahapur (for short 'First Appellate Court'), confirming the
judgment and decree dated 03.10.2017 in O.S.
No.207/2003 on the file of Additional Civil Judge and JMFC
at Shahapur (for short 'Trial Court'), dismissing the suit of
the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, the land
bearing Sy.No.110 totally measuring 5 acres 35 guntas,
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belonging to Chandanna S/o Bhimanna and deceased
Vithoba S/o Yenkoba, who are the ancestors of the
plaintiff. It is further stated in the plaint that, the
respondent-Government had acquired 4 acres 10 guntas
out of 4 acres 39 guntas in land bearing Sy.No.110 and
the remaining 29 guntas was in possession of Vithoba and
on his death, there was partition between the daughters of
deceased Vithoba and the plaintiff and as such, it is
contended by the plaintiff that, the plaintiff is the owner in
possession of the open space measuring 110x120 feet,
approximately measuring 11 guntas, which is the suit
schedule property and as such, the plaintiff has filed suit in
O.S.No.207/2003, seeking relief of declaration and
consequential relief of permanent injunction.
4. On service of notice, defendant No.2 entered
appearance and filed detailed written statement,
contending that, the suit property is belong to the
Government and being used for public purpose as public
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ladies lavatory and accordingly, sought for dismissal of the
suit.
5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
6. In order to substantiate their case, plaintiff has
examined two witnesses as PW.1 and PW.2 and got
marked 31 documents as Exs.P1 to P31. On the other
hand, the defendants have examined one witness as DW.1
and got marked six documents as Exs.D1 to D6.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 03.10.2017,
dismissed the suit of the plaintiff. Feeling aggrieved by the
same, the plaintiff has filed R.A. No.08/2018 before the
First Appellate Court and the appeal was resisted by the
defendants.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
05.03.2019, dismissed the appeal. Feeling aggrieved by
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the same, the plaintiff has filed this Regular Second
Appeal.
9. I have heard Sri Ravi Bheemsingh Chawan,
learned counsel appearing for the appellant and
Sri G.B. Yadav, learned High Court Government Pleader
appearing for the respondent-State.
10. It is submitted by the learned counsel
appearing for the appellant that, the property in question
is the ancestral property of the plaintiff and in this regard,
plaintiff has produced the mutation and revenue records to
substantiate the right of the plaintiff and the same has
been ignored by both the Courts below and accordingly,
sought for interference of this Court.
11. Per contra, Sri G.B. Yadav, learned High Court
Government Pleader appearing for the respondent-State
sought to justify the impugned judgment and decree of
the courts below.
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12. Having heard the learned counsel appearing for
the parties, it is the case of the plaintiff that, he is the
owner in possession of the land bearing Sy.No.110 to an
extent of 29 guntas, as the same has been acquired by
him through partition. On careful examination of the
finding recorded by both the Courts below, the plaintiff
though filed a suit for declaration, has not filed the title
deeds before the Trial Court and on the other hand, had
placed material namely, mutation and record of rights. It
is well established principle of law that, in the absence of
the documentary title deed, the declaratory relief should
not be granted. Taking into account that the plaintiff has
failed to produce the relevant title deeds before the Trial
Court except stating that the schedule property is
belonging to his ancestors, I am of the view that, the
revenue entries do not confer title to the plaintiff.
Therefore, there is no perversity in the impugned
judgment and decree passed by the Courts below. In that
view of the matter, the appellant has not made out a case
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for framing substantial question of law as required under
Section 100 of the Code of Civil Procedure.
Accordingly, the appeal fails and is dismissed.
Sd/-
JUDGE
SB/LG
