Karnataka High Court
Sri.Shrishail vs Sri.Shankar on 9 February, 2024
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RSA No. 100754 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100754/2016(DEC/INJ)
BETWEEN:
SRI. SHRISHAIL S/O. SIDDAGOUDA PUJERI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: KANKANAWADI, TQ: RAIBAG,
BELAGAVI DISTRICT - 591 222.
...APPELLANT
(BY SMT. BHARATI G. BHAT, ADVOCATE)
AND:
1. SRI. SHANKAR S/O. MALLAPPA SOUDATTI,
AGED ABOUT 63 YEARS,
OCC: AGRICULTURE,
2. SRI. BABU S/O. MALLAPPA SOUDATTI,
AGE: 66 YEARS, OCC: AGRICULTURE,
3. SRI. SHRIMANT S/O. BABU SOUDATTI,
Digitally AGE: 45 YEARS, OCC: AGRICULTURE.
signed by
VINAYAKA 4. SRI. VITTAL S/O. MALLAPPA SOUDATTI,
BV AGE: 63 YEARS, OCC: AGRICULTURE,
ALL ARE R/O: ALAKHANUR,
RAIBAG TALUK,
BELAGAVI DISTRICT - 591 220.
...RESPONDENTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE
DATED 30.08.2016 PASSED IN R.A.NO.5/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS
RAIBAG, REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 30.11.2015, PASSED IN O.S.NO.221/2010 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
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RSA No. 100754 of 2016
MAGISTRATE FIRST CLASS AT RAIBAG, DECREEING THE SUIT FILED
FOR DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant No.3 in O.S.No.221/2010 has filed this
appeal challenging the judgment and decree dated
30.11.2015 passed therein as well as the concurring
judgment and decree passed by the First Appellate Court
in R.A.No.5/2016 dated 30.08.2016.
2. Briefly stated the facts are that the plaintiff
claimed that the propositus of his family was Mallappa who
had three sons namely Babu, Vittal and the plaintiff. The
defendant No.2 is the son of defendant No.1. All of them
had partitioned their properties on 10.08.1993 and were in
possession of their respective shares and ME.No.4013 was
certified. The plaintiff claimed that he got 1 acre 23 guntas
in RS.No.55/1A of Alaknur village while the defendants
No.1 and 4 derived 1 acre 20 guntas each. He claimed that
the defendants tried to obstruct his possession on
05.06.2010. When he approached the revenue authorities
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and obtained an RTC extract. He realized that his name
was deleted and the name of defendant No.2 was entered
based on a false Varadi. The plaintiff requested the
defendants to restore his name but the defendants refused
to do so and therefore, he filed the suit for declaration of
his title and for injunction.
3. The defendants No.3 and 4 filed separate
written statement and contested the suit. The defendant
No.3 denied the averments of the plaint. He contended
that the land bearing RS.No.55/1A was divided into 3
strips running east to west. The northern strip fell to the
share of defendant No.1 while the middle strip fell to the
share of defendant No.4 and the southern strip fell to the
share of the plaintiff. He alleged that the plaintiff had
received money from defendant No.2 and submitted a
Varadi by giving up 20 guntas of land out of 1 acre 23
guntas that fell to his share. The defendant No.2 took
money from the defendant No.4 and consented for his
name to be entered in the revenue records. The defendant
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No.4 sold 20 guntas of land in RS.No.55/1A in favour of
defendant No.3.
4. The defendant No.4 however admitted the
averments of the plaint and also admitted the sale of the
suit property in favour of defendant No.3. However, he
contended that though he has sold the suit property, the
possession remained with the plaintiff.
5. Based on these contentions, the trial Court
framed the following issues:
1. Whether the plaintiff proves that, he is the absolute owner
in possession of the suit property?
2. Whether the plaintiff proves, the alleged interference?
3. Is plaintiff entitle for the reliefs as prayed for?
4. What order or decree?"
6. The plaintiff was examined as PW1 and he
marked Exs.P1 to P3. The defendant No.3 was examined
as DW1 and he marked Exs.D1 to D32. He also examined
one witness as DW2.
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7. Based on the oral and documentary evidence,
the trial Court held that the prior title of the plaintiff was
proved as the defendant No.3 admitted that 1 acre 23
guntas fell to the share of the plaintiff out of which, he
parted with the 20 guntas of land by submitting a Varadi.
It also held that the Varadi did not create any title in
favour of the defendant No.4 and therefore, there was no
document to establish that the plaintiff had relinquished
any portion of the suit property in favour of the defendant
No.2. It therefore held that defendant No.2 could not have
submitted a Varadi to enter the name of defendant No.4 in
respect of the suit property. The trial Court further held
that even as per Exs.D15A and D16 there was no mention
about any money being received by the plaintiff from
defendant No.2. Therefore, it held that the plaintiff was
the owner of the suit property and hence, decreed the suit
and granted perpetual injunction restraining the
defendants from interfering with his possession.
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8. Being aggrieved by the said judgment and
decree, defendant No.3 filed R.A.No.5/2016. The First
Appellate Court heard the parties and framed the following
points for its consideration:
1. Whether the Trial Court has not properly appreciated the
oral and documentary evidence produced by the
appellant?
2. Whether the findings and reasonings given by the Trial
Court in considering the documents produced on behalf of
the appellant is not proper?
3. Whether the judgment and decree of Trial Court is
perverse and illegal?
4. What order or decree?"
9. The First Appellate Court held that admittedly
Ex.P3 was the mutation certified in ME.No.4013 dated
10.08.1993 which indicated that RS.No.55/1 was divided
into three strips and numbered as RS.Nos.55/1A, 55/1B
and 55/1C. The plaintiff was allotted 1.23 acres while the
defendants No.1 and 4 were allotted 1.20 acres. It noticed
that the sale deed in favour of the defendant No.3 was in
respect of the land bearing RS.No.55/1C by which the
defendant No.4 sold away 18.08 guntas of land which was
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claimed by the plaintiff as his property. This sale deed was
executed in the year 2008.
10. The defendant No.4 had also executed another
sale deed marked at Ex.D2 in respect of RS.No.55/1B
measuring 1.20 acres. Therefore, the First Appellate Court
held that the defendant No.4 did not retain any portion of
the land and therefore, it held that in the absence of any
document to show that the plaintiff had given up or
relinquished any portion of the land belonging to him in
favour of the defendant No.2 and that defendant No.2 had
thereafter executed any document in favour of defendant
No.4, defendant No.3 could not claim that he had
purchased such relinquished portion from the defendant
No.4. Consequently, it held that the revenue documents
based on which the defendants No.2 and 4 claimed title to
the property did not confer any title so as to convey the
property to defendant No.3 and consequently, dismissed
the appeal in terms of the judgment and decree dated
30.08.2016.
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11. Being aggrieved by the same, defendant No.3
has filed this regular second appeal.
12. The learned counsel for defendant No.3
vehemently contended that there is an accepted practice
of transferring land by submitting a Varadi before the
revenue authorities. She submits that in the present case,
the plaintiff had himself submitted the Varadi as per
Ex.D15 stating that he has no objection to transfer khata
in respect of 20 guntas of land in favour of defendant
No.2. She referred to the Varadi which was marked at
Ex.D15A, which indicated that the plaintiff had given up 20
guntas of land in favour of defendant No.2. She submited
that based on this Varadi, mutation proceedings in
ME.No.139 was certified as per Exs.D17 and D18. She
therefore submits that the defendant No.2 had become the
lawful owner of 20 guntas of land in RS.No.55/1C
belonging to the plaintiff. She further contends that
defendant No.2 had thereafter submitted a Varadi as per
Exs.D22 and D23 in favour of the defendant No.4 and
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consequent to the acceptance of mutation as per Ex.D29,
the defendant No.4 conveyed 20 guntas of land in favour
of the defendant No.3. She therefore submits that the trial
Court committed an error in glossing over these relevant
documents and in holding that the plaintiff had proved his
title to the suit property.
13. Per contra, learned counsel for the plaintiff
contended that the antecedent title to the plaintiff of the
suit property is not much in dispute. However, the
defendant No.2 claimed that the plaintiff had taken some
money from him and submitted a Varadi giving up 20
guntas of land in RS.No.55/1C and thereafter the
defendant No.2 received some money from defendant
No.4 and submitted a Varadi to transfer the land
relinquished by the plaintiff in favour of defendant No.4.
He therefore submits that there is no basis for these
Varadis and they do not confer any title on either the
defendant No.2 or defendant No.4. Consequently, he
contends that the sale brought about by the defendant
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No.4 in favour of defendant No.3 being unconscionable, is
not binding upon the plaintiff and therefore, the trial Court
and the First Appellate Court were right in decreeing the
suit.
14. I have considered the submissions made by the
learned counsel for the defendant No.3 as well as the
learned counsel for the plaintiff. I have also perused the
records furnished by the learned counsel for the defendant
No.3.
15. A perusal of the judgment of the trial Court and
the First Appellate Court as well as the records furnished
disclose that the defendant No.3 did admit that the
plaintiff was the erstwhile owner of 1 acre 23 guntas of
land in RS.No.55/1C. His written statement further
discloses that the plaintiff had collected some money from
defendant No.2 and had submitted a Varadi in respect of
20 guntas of land in RS.No.55/1C based upon which
mutation proceedings were certified in the name of
defendant No.2. It also discloses that defendant No.2
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thereafter took some money from defendant No.4 and
submitted a Varadi to the revenue authorities to transfer
20 guntas of land to the name of defendant No.4.
Accordingly, mutation proceedings were initiated to
transfer 20 guntas of land from the name of defendant
No.2 to the name of defendant No.4 and mutation
proceedings were accordingly certified. Defendant No.4
purportedly sold that 20 guntas of land to defendant No.3
in terms of the sale deed which is in question. It is
therefore certain that there is no document evidencing the
transfer of title by the plaintiff to the defendant No.2 or
the defendant No.4. Consequently, the defendant No.3
could not have purchased the portion of the suit property
from defendant No.4 based on revenue records. As there
is no evidence to establish that there was transfer of title
by the plaintiff to the defendants No.2 and 4, the question
of defendant No.3 claiming title to the portion of the suit
property does not arise. The trial Court and the First
Appellate Court have rightly held that the plaintiff had
made out a case for declaration of his title and for
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consequential injunction and the First Appellate Court has
also perused the material on record and confirmed the
judgment of the trial Court. There is no error apparent on
the face of the record and no substantial question of law
arises for consideration in this appeal and therefore, the
appeal stands dismissed.
SD/-
JUDGE
RH
CT-ASC
