Karnataka High Court
Hanumanthappa S/O Husnappa Kattimani vs Leela W/O Mareppa Kattimani on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 RSA.No.7124/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO.7124 OF 2011 (DEC/INJ)
BETWEEN
1. HANUMANTHAPPA S/O HUSNAPPA KATTIMANI
SINCE DEAD BY HIS LR'S,
1A. SABAMMA W/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY HIS LR'S,
2. BHIMARAYA S/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY HIS LR'S
2A. SMT. NIRMALA W/O LATE BHIMARAYA
AGED ABOUT 56 YEARS, OCC: HOUSE HOLD,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
2B. HUSANAPPA S/O LATE BHIMARAYA
AGED ABOUT 27 YEARS, OCC: AGRICULTURE,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
3 MALLAPPA S/O HANUMANTHAPPA KATTIMANI
SINCE DEAD BY LR'S
3A. SMT. MARALAMMA W/O LATE MALLAPPA
AGED ABOUT 58 YEARS, OCC: HOUSE HOLD,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
2 RSA.No.7124/2011
3B. RAJSHEKHAR S/O LATE MALLAPPA
AGED ABOUT 37 YEARS, OCC: AGRICULTURE.
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
3C. MALLIKARJUN S/O LATE MALLAPPA
AGED ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O HALISAGAR VILLAGE, TQ. SHAHAPUR,
DIST. YADGIRI.
4. SAIBANNA S/O HANUMANTHAPPA KATTIMANI
AGE: 45 YEARS, OCC: AGRICULTURE,
5. SHANKRAPPA S/O HANUMANTHAPPA KATTIMANI
SINCE DECEASED BY LRS.
A. SOUBHAGYA D/O LATE SHANKRAPPA KATTIMANI
AGE: 38 YEARS, OCC: HOUSE HOLD,
B. MOUNESH S/O LATE SHANKRAPPA KATTIMANI
AGE: 16 YEARS, OCC:NIL,
C. PRAVEEN S/O LATE SHANKRAPPA KATTIMANI
AGE: 13 YEARS, OCC: NIL,
D. HULIRAJ S/O LATE SHANKRAPPA KATTIMANI
AGE: 10 YEARS, OCC: NIL,
E. DARSHAN S/O LATE SHANKRAPPA KATTIMANI
AGE: 8 YEARS, OCC: NIL,
6. HUSANAPPA S/O HANUMANTHAPPA KATTIMANI
AGE: 40 YEARS, OCC: GOVT. ENGG. KBJNL,
7. SHANTAPPA S/O HANUMANTHAPPA KATTIMANI
AGE: 37 YEARS, OCC: BUSINESS,
8. SANNA BHIMARAYA S/O HANUMANTHAPPA KATTIMANI
AGE: 35 YEARS, OCC: AGRICULTURE
9. SHASHIKANTH S/O HANUMANTHAPPA KATTIMANI
3 RSA.No.7124/2011
AGE: 33 YEARS, OCC: AGRICULTURE,
ALL ARE R/O HALISAGAR VILLAGE,
TQ. SHAHAPUR,
DIST. YADGIRI.
...APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR A2(A) TO A2(C),
A3(A) TO A3(C), A4, A5(A) TO A5(E), A6 TO A9;
A2(A) TO A9 ARE TREATED AS LR'S OF DECEASED A1 VIDE
ORDER DATED 17.08.2022 )
AND
LEELA W/O MAREPPA KATTIMANI
AGE: 58 YEARS, OCC: TEACHER,
R/O HALISAGAR,TQ. SHAHAPUR,
DIST. YADGIRI.
REP. SRI SALOMAN S/O MAREPPA KATTIMANI
AGE: 38 YEARS, .....
R/O HALLI SAGAR, TQ. SHAHAPUR.
...RESPONDENT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOW
THE ABOVE REGULAR SECOND APPEAL AND CONSEQUENTLY BE
PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 29-
1-2011 PASSED BY THE COURT OF CIVIL JUDGE (SR. DIVN)
SHORAPUR SITTING AT SHAHAPUR, IN R.A.NO.17/2010 AND
CONFIRM THE JUDGMENT AND DECREE DATED 13-9-2010
PASSED BY THE COURT OF THE CIVIL JUDGE (JR.DN) SHAHAPUR
IN OS.188/2004.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4 RSA.No.7124/2011
JUDGEMENT
This regular second appeal is filed challenging the
judgment and decree passed by the learned Civil Judge
(Sr.Dn.), Shorapur sitting at Shahapur in R.A.No.17/2010
dated 29.01.2011, whereby, the learned Senior Civil Judge
had set aside the judgment and decree passed in
O.S.No.188/2004 by the learned Civil Judge (Jr.Dn.),
Shahapur and decreed the suit of the plaintiff.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the Trial Court.
3. Brief factual matrix leading to the case are as
under:
The plaintiff has filed a suit against the defendant for
declaration to the effect that she is the owner and possessor
of the suit open yard Municipal No.10-17 and consequential
relief of perpetual injunction against the defendant or
servants or agents claiming on his behalf not to interfere
with her peaceful possession and enjoyment over the suit
property. It is alleged that the suit property is part of
Survey Nos.364 and 365 of Halisagar village and the said
lands are Pada lands since last 50 years and they are
adjoining to the village. It is contended that the father-in-
law of the plaintiff having three plots in the said survey
numbers and the same was purchased from the true owner
by name Solabanna. It is contended that the father-in-law of
the plaintiff was the absolute owner of the suit property and
there was no Gram Panchayat existing at the time of
purchase and hence, his name was not entered and after
Gram Panchayat came into existence, the name of the
father-in-law of the plaintiff and plaintiff's husband entered
in the panchayat register by disclosing the suit property as
10-17. It is asserted that after the death of her father-in-
law, the name of the husband of the plaintiff was mutated to
the suit property and he was enjoying and he has obtained
permission for constructing a compound wall over the suit
property from the Town Planning Authority, Shahapur (for
short 'TPA, Shahapur) in the year 2002 and the same was
approved. It is alleged that the defendant being a political
leader colluded with the Revenue Authorities, without the
knowledge and notice to the plaintiff, got mutated Survey
Nos.364 and 365 in his name with malafide intention and he
had no right, title or interest over the suit property. The
defendant has denied the ownership of the plaintiff over the
suit property and hence, it is alleged that the plaintiff has
constrained to file a suit for declaration and injunction.
4. The defendant appeared through his counsel and
filed written statement disputing the claim of the plaintiff.
He contended that the husband of the plaintiff by misleading
the authority of TPA, Shahapur obtained construction
permission for constructing the compound wall around the
suit property, but, when the authorities of TPA, Shahapur
came to know about false application and false submission
made by the husband of the plaintiff, cancelled the said
permission. Hence, neither the husband of the plaintiff nor
the father-in-law of the plaintiff have ever enjoyed the suit
property. He denied rest of the pleadings regarding colluding
and getting mutated the suit property in his name. He
contended that his father has purchased the suit property
from the original owner in the year 1963-64 and the name of
his father - Husanappa was appearing in the record of rights
as purchaser. It is also contended that his father had
permitted the members of Harijan community of Halisagar
village to construct their houses in the suit property and
remaining portion of the suit property is in possession and
enjoyment of the defendant. He contended that in Column
No.9 of the record of rights, his name is appearing as per the
order of the Tahasildar, Shahapur dated 11.06.1990. He
also contended that the wife of true owner of suit land one
Guramma W/o. Solabanna objected for mutating the said
lands in favour of the defendant and she also filed a civil suit
for declaration of title and injunction in O.S.No.32/1994 and
the said suit was dismissed. Hence, the defendant has
disputed the entire claim of the plaintiff and sought for
dismissal of the suit.
5. On the basis of these pleadings, the Trial Court
has framed the following six recasted issues:
1. Whether the plaintiff proves that, her father-in-
law had purchased the suit property from one
Solabanna?
2. Whether the plaintiff proves that, after the death
of her father in-law and her husband she has
been succeeded the suit schedule property?
3. Whether the plaintiff further proves that, by
colluding with the revenue authority without the
knowledge of plaintiff suit properties are mutated
in the name of defendant?
4. Whether the plaintiff further proves that,
defendant is interfering plaintiff possession and
enjoyment of suit property illegally?
5. Whether the plaintiff is entitled relief of
declaration and injunction?
6. What order or decree?
6. The power of attorney holder of the plaintiff was
examined as PW.1 while one witness was examined as PW.2.
Further, the plaintiff has produced 23 documents marked as
Exs.P1 to P23. The defendant got examined himself as DW.1
and he placed reliance on four documents marked as Exs.D1
to D4.
7. After hearing the arguments and after
appreciating the oral and documentary evidence, the learned
Civil Judge has answered issue Nos.1 to 5 in the negative
and ultimately dismissed the suit. Against this judgment and
decree, the plaintiff has approached the learned Senior Civil
Judge in R.A.No.17/2010. The learned Senior Civil Judge
after re-appreciating the oral and documentary evidence, set
aside the judgment and decree of the Civil Judge and
decreed the suit of the plaintiff declaring that the plaintiff is
the owner and possessor of the suit property and granted
order of injunction. Against this divergent view, the
defendant is before this Court by way of this second appeal
under Section 100 of CPC.
8. During the pendency of the appeal, the original
appellant/defendant has expired and his legal
representatives were brought on record and they prosecuted
the matter.
9. Heard the arguments advanced by the learned
counsel for the appellants/defendant and the learned counsel
for the respondent/plaintiff. Perused the records.
10. The learned counsel for the appellants would
contend that the suit is filed for declaration and injunction
and claim of the plaintiff is based on the oral sale and only
she has produced the map and construction permission itself
was not produced. He would also contend that though the
Trial Court has properly appreciated the oral and
documentary evidence, the appellate Court has casted the
negative burden on the defendant to prove his title ignoring
the fact that the plaintiff has approached the Court seeking
title. He would contend that the plaintiff has failed to
substantiate his contention by relying on Ex.D4, but as per
the said document, it is submitted that the permission was
cancelled. He would also contend that Ex.D4 was never
challenged and in Ex.P4, no boundaries and property number
was disclosed. He would also contend that Exs.P12 to P14
are mortgage by one Bhimappa and not by the plaintiff and
in other documents, property number was not disclosed. He
would also contend that in Ex.P22, the property number is
shown as 10-18, but the suit property number is 10-17.
Hence, the document does not establish the title of the
plaintiff. He would also assert that the revenue documents
are not the documents of title and the plaintiff has not placed
any documents of title and hence, sought for dismissal of the
suit by allowing the appeal.
11. Per contra, the learned counsel for the respondent
would contend that the suit property is part of Survey
Nos.365 and Exs.P1 to P22 disclose that it was purchased
about 50 years back and it is an open site. The ownership of
Solabanna is admitted and it was purchased about 50 years
back. It is contended that now the name of Solabanna was
shown in Column Nos.9 and 12 of the record of rights and
the tax was paid by the plaintiff. He would contend that
regarding possession, the case of the plaintiff was admitted
by DW.1 in his cross-examination and atleast injunction relief
can be granted. Hence, he would seek for dismissal of the
appeal.
12. This Court vide order dated 30.11.2011 framed
the following substantial questions of law:
1. Whether the 1st appellate court was right in law in
not appreciating the settled principles of law that
entries in ROR do not confer title on any person?
2. Whether the 1st appellate court right in law in not
appreciating the transaction by which the plaintiff
alleged have acquired title which is hit by section
17 of Registration Act?
3. Whether the 1st appellate court correct in holding
the settled principles the person approaching
should prove this title and the weakness of
defendants cannot be taken?
4. Whether the 1st appellate court was right in not
appreciating that the sale by which the plaintiffs
father-in-law is supposed to have purchased the
suit property does not confer title on him as per
the provisions of Section 56 of the Transfer of
Property Act?"
13. The plaintiff has filed the suit for declaration and
injunction. The suit property is open yard bearing Municipal
No.10-17, measuring North to South 150' towards eastern
side, towards southern side there is a 100', East to West 80'
towards southern side, towards northern side there is some
hard size area measuring 60'x40', which was shown clearly in
the approved map with specific boundaries in paragraph No.2
of the plaint. The specific assertion of the plaintiff is that the
suit property was purchased by her father-in-law from the
original owner and the suit proper is part of Survey Nos.364
and 365. It is important to note hear that the plaintiff is a
teacher and in the year 2004, she claims to be aged about
50 years and asserts that it was purchased by her father-in-
law 50 years earlier. The plaintiff did not enter into the
witness box and executed a power of attorney in favour of
her son aged about 35 years, who is an advocate, to depose
on her behalf. In the entire affidavit, there is no specific
assertion that PW.1 i.e., power of attorney holder had
personal knowledge of the facts and circumstances. In his
examination in chief, he simply asserts that he knew all the
facts and circumstances. He is giving evidence but he never
asserted that he had personal knowledge about these
aspects. But, admittedly he was not born on the date of the
alleged sale deed, being a son of the plaintiff. Hence his
evidence will not assist the plaintiff.
14. PW.1 in his examination in chief has reiterated the
plaint averments and all along it is alleged that the suit
property was purchased orally about 50 years back. But,
there is absolutely no pleadings as to who has executed the
sale deed, who has sold the property, on which date, the
property was sold and what was the sale consideration
amount.
15. The sale is governed under Section 54 of the
Transfer of Property Act, 1882 and the sale is defined as a
transfer of ownership in exchange for a price paid or
promised or part paid and part promised sale. Further, as
per Section 54 of the T. P. Act, in case of tangible immovable
property of the value of one hundred rupees and upwards, or
in the case of a reversion or other intangible thing, the sale
can be made only by a registered instrument. In the instant
case, all along it is asserted that it is an oral sale. But, there
is no specific assertion as to what was the sale consideration
and even the specific date of sale was not asserted. The
plaintiff is simply relying on the property extract and revenue
entries to prove her title. Ex.P2 - demand extract is relied
and it is for the year 2002-03 and the name of the plaintiff's
husband is appearing in possessors' column. But, there is no
document to show that the name of the father-in-law of the
plaintiff was ever entered.
16. The plaintiff has produced the approved plan
issued by the Town Municipality for construction of the
compound wall and that the approved plan is at Ex.P4. But,
Ex.P4 is only the approved plan and there is no document to
show that the approved order of the municipality was issued.
Interestingly, Ex.D4 discloses that this approved plan was
subsequently cancelled by the concerned municipal authority
and it was never challenged. Though it is argued that Ex.D4
was passed behind the back of the plaintiff, there is no
evidence to show that the plaintiff has challenged the same
even till today. The documents disclose that the name of the
plaintiff was mutated to the property No.10-17, but there is
no evidence to show that 10-17 is part of the Survey
Nos.364 or 365. The plaintiff placed reliance on Exs.P7 to
P11, but they are pertaining to property No.10-17 and 10-18
and tax should be paid individually and it cannot be collected
commonly. Merely because the joint tax paid receipts are
produced it cannot be presumed that the plaintiff has proved
his title over the suit property. The plaintiff has also
produced the mortgage deeds at Exs.P12 to P14, but they
are not in the name of the plaintiff and they are in the name
of different persons. Ex.P15 is the letter addressed to the
secretary dated 24.11.2004 after institution of the suit and
hence, it does not have any relevancy. The other documents
produced at Exs.P19 and P20 are in the name of Solabanna
and they were not assisting the plaintiff in any way.
17. The plaintiff all along asserted that the suit
property is part of Survey Nos.364 and 365, but to
substantiate this contention, absolutely no piece of document
is produced and all along it is asserted that there was an oral
sale. As observed above, the date of sale and the
consideration amount was nowhere asserted. Further, there
is no specific assertion that the suit property is situated
either in Survey No.364 or 365. A vague assertion was
made that the suit property is part of Survey Nos.364 and
365.
18. Apart from that, in paragraph No.7 of the plaint
itself, the title of the defendant over Survey Nos.364 and
365 is admitted and in paragraph No.7 of the plaint, it is
specifically asserted that the defendant and other 39 persons
are owners and possessors of Survey Nos.364 and 365, but
it is asserted that only in Column No.9 of the record of
rights, the name of the husband of plaintiff is shown, but
from whom the father-in-law of the plaintiff has purchased
the suit property is nowhere pleaded. It is also an
undisputed fact that the plaintiff is possessing a house
property bearing No.10-18, which is not the suit property.
Further, it is not the case of the plaintiff that the suit
property is adjoining to the house property bearing No.10-
18. If the boundaries given pertaining to the suit property
bearing No.10-17 are considered, it discloses that property
bearingNo.10-18 is not adjoining to the suit property and it is
not disclosed in boundaries on any of sides. The documents
pertaining to tax are pertaining to property No.10-18 and
merely 10-17 is also mentioned there, it cannot be presumed
that the plaintiff is the owner of the suit property.
19. Admittedly, the revenue entries are not
documents of title. In this context, the Trial Court has
placed reliance on a decisions reported in KCCR 2009 (1)
670 - Jayamma vs. State of Karnataka and (1996) 6
SCC 223 - Sawarni (Smt.) vs. Inder Kaur (Smt.) and
Others, wherein it is clearly held that the revenue entries
are not the documents of title and the mutation in the
revenue records are only for collection of tax and they do not
have any presumptive value of title. Further, the learned
Civil Judge has also placed reliance on a decision of the
Hon'ble Apex Court in reported in AIR 1954 SC 526 -
Moran Mar Basselios Catholicos and Another vs. The
Most Rev. Mar Poulose Athanasius and Another,
wherein it held that the plaintiff having approached the Court
seeking title cannot take advantage of the weakness of the
defendant and he is required to prove his title over the suit
property independently. This is now settled position and
since the plaintiff is asserting her title, she is required to
prove her title over the suit property and she cannot take
advantage of the weakness of the defendant. The defendant
can take inconsistent stands, but the plaintiff should be
certain regarding her claim.
20. The learned Civil Judge has appreciated all these
aspects and has rightly dismissed the suit by answering all
the issues in the negative. However, the learned Senior Civil
Judge has completely casted the burden on the defendant as
if the defendant has approached the Court seeking the relief
of declaration. Though the defendant has put his claim of
title over the suit property, he did not seek any declaratory
relief. However, he disputed the title of the plaintiff and
quite interestingly the plaintiff in paragraph No.7 of the plaint
itself admitted the joint title of the defendant over Survey
No.364 and 365. Admittedly, the suit property is part of
Survey No.364 and 365 and when the plaintiff is ascertaining
the specific title over the suit property, the burden is on him
to substantiate the acquisition of title. He cannot rely on the
revenue entries to prove his title and he cannot take
advantage of the weakness of the defendant.
21. The learned counsel for the respondent/plaintiff
placed reliance on a decision reported in 1970 AIR SC 846 -
Somnath Barman vs. Dr.S.P.raju & Another, wherein,
the Hon'ble Apex Court has held that the possession of title
is a good title as against everybody other than the lawful
owner. But, in the instant case, in paragraph Nol.7 of the
plaint, the title of the defendant is admitted by the plaintiff in
both the said survey numbers. Hence, the said principles will
not come to the aid of the plaintiff in any way.
22. The learned counsel for the respondent/plaintiff
has further placed reliance on an unreported decision of this
Court in RSA No.868/2007 dated 22.10.2020 in the case of
Ismailbee vs. Mehtab Saheb. But, the facts and
circumstances are entirely different and in the said
judgment, the suit was for partition between the brothers
and sister. However, in the instant case, the suit is in
respect of declaration of title claimed by the third person
against the true owner. Hence, said principles will not come
to the aid of the plaintiff in any way.
23. He further placed reliance on an unreported
decision deceased of the Hon'ble Apex Court in Civil Appeal
No.6191/2001 dated 25.03.2008 - Anathula Sudhakar vs.
P. Buchi Reddy (Dead) by LRs. and Others. In the said
decision, the Hon'bel Apex Court held that in a suit for
injunction simplicitor, possession matters and title will not be
directly and substantially in issue. Further, in paragraph
No.20, the Hon'ble apex Court has clearly held that the
defendant was claiming through succession while the plaintiff
is claiming title by way of gift deed and the same was not
proved as there was no mutation. Hence, it is held that the
defendant had made out possession following title and such
principles would rather help the defendant than the plaintiff
and in what way the said principles are applicable to the
plaintiff in this case is not at all forthcoming. Hence, the said
principles will not come to the aid of the plaintiff in any way.
24. He also placed reliance on a decision of this Court
in RSA No.288/2002 dated 15.05.2020 - Muniyappa (Dead
by L.Rs. vs. N.Narayana (Dead by L.Rs.), but the facts
and circumstances are entirely different. The settled law is
that a person who approaches Court is required to prove his
case and in the instant case, the plaintiff is seeking title by
way of declaration and consequential relief of injunction. The
plaintiff herself is not sure as to whether the suit property is
part of Survey No.364 or 365. There is no evidence as to
when the survey number was converted into municipal
number and merely because of some revenue entries, the
plaintiff cannot establish her title as revenue entries are not
documents of title. The plaintiff though claimed sale, the
date of sale and sale consideration amount was never
pleaded by the plaintiff.
25. All these facts and circumstances were lost sight
of by the learned Senior Civil Judge and he has in fact casted
a negative burden on the defendant to prove the title of the
defendant ignoring the fact that the plaintiff has approached
the Court and he is required to prove her title. Hence, the
approach of the learned Senior Civil Judge is erroneous and
arbitrary, which has resulted in miscarriage of justice.
Hence, the judgment and decree passed by the learned
Senior Civil Judge in R.A.No.17/2010 is perverse, arbitrary
and calls for interference.
26. In view of these facts and circumstances, the
substantial questions of law Nos.1, 2 and 4 are answered in
the negative and in favour of the appellant/defendant as the
Court was not right in not properly appreciating the settled
principles of law and accordingly, the substantial question of
law No.3 is also answered in favour of the defendant. As
such, the appeal needs to be allowed and accordingly, I
proceed to pass the following:
ORDER
The appeal is allowed.
The impugned judgment and decree passed by the
learned Civil Judge (Sr.Dn.), Shorapur in R.A.No.17/2010 is
set aside and the judgment and decree passed by the
learned Civil Judge (Jr.Dn.) in O.S.No.188/2004 stands
restored.
In the circumstances, there is no order as to costs.
Sd/-
JUDGE
SRT
