Karnataka High Court
Bhimanna S/O Subhas Yadave vs Prakash S/O Mahantappa Kavadennavar on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 RSA.No.7520/2010
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.7520 OF 2010 (DEC/INJ)
BETWEEN
1 . BHIMANNA S/O SUBHAS YADAVE
SINCE DECEASED BY LRS,
1A. SMT. SAROJINI W/O BHIMANNA YADAVE
AGE: 58 YEARS, OCC: HOUSE HOLD WORK,
1B. SUBHAN S/O BHIMANNA YADAVE
AGE: 29 YEARS, OCC: AGRICULTURE,
1C. SHANMUKH S/O BHIMANNA YADAVE
AGE: 24 YEARS, OCC: AGRICULTURE,
1D. GANAPATI S/O BHIMANNA YADAVE
AGE: 22 YEARS, OCC: AGRICULTURE,
ALL ARE R/O RATNAPUR,
TQ. AND DIST. BIJAPUR-586103.
...APPELLANTS
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND
1 . PRAKASH S/O MAHANTAPPA KAVADENNAVAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O TIKOTA, TQ. AND DIST, BIJAPUR-586103.
2 RSA.No.7520/2010
2. JAKKAPPA S/O SUBHAS YADAVE
AGE: 47 YEARS, OCC: AGRICULTURE,
3. SHANKREPPA S/O SUBHAS YADAVE
AGE: 45 YEARS, OCC: AGRICULTURE,
4. REVANASIDDAPPA S/O SUBHAS YADAVE
AGE 43 YEARS, OCC: AGRICULTURE,
5. AKKAVVA W/O SUBHAS YADAVE
AGE: 73 YEARS, OCC: HOUSE HOLD WORK,
RESPONDENT NO.2 TO 5 ARE, R/O RATNAPUR,
TQ. AND DIST. BIJAPUR-586103.
...RESPONDENTS
(BY SRI MAHANTESH PATIL, ADVOCATE FOR R1;
R2, R3 AND R5 ARE SERVED
VIDE ORDER DATED 24.11.2022 APPEAL AGAINST R4 IS
ABATED )
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 17-09-2009 PASSED BY III ADDITIONAL CIVIL JUDGE (SR
DN) BIJAPUR IN R.A.NO.112/2007 AND THE JUDGMENT AND
DECREE DATED 08-06-2007 PASSED BY II ADDITIONAL CIVIL
JUDGE (JR DN) BIJAPUR IN O.S.NO.126/1997, WITH COST
THROUGH OUT AND FURTHER DISMISS THE SUIT OF THE
PLAINTIFF. SUCH FURTHER OR RELIEF BE GRANTED TO WHICH
THE APPELLANT WOULD BE FOUND ENTITLED TO ON THE FACTS
AND CIRCUMSTANCES OF THE CASE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.01.2024, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
3 RSA.No.7520/2010
JUDGEMENT
This Regular Second Appeal is filed by the
appellant/defendant No.1 challenging the judgment and
decree passed by III Additional Civil Judge (Sr.Dn.), Bijapur,
in RA No.112/2007, dated 17.09.2009, confirming the
judgment and decree dated 08.06.2007, passed by II
Additional Civil Judge (Jr.Dn.), Bijapur in O.S.No.126/1997.
2. For the sake of convenience parties herein are
referred with the original ranks occupied by them before the
trial Court.
3. The brief factual matrix leading to the case are as
under:
The plaintiff is the owner of land bearing Sy. No.273/2
measuring 9 acres situated in Tikota Village with a specific
boundaries referred thereunder. It is alleged that the land
bearing Sy.No.273 was originally measuring 22 acres 20
guntas which was owned by one Siddappa Satyal. The said
Satyal, under registered sale deed dated 11.08.1971, sold 9
acres of land i.e., suit land in favour of one Sabu Kumatagi.
As such, Sy.No.273 came to be divided in two parts bearing
Sy.No.273/1 measuring 13 acres 20 guntas held by Siddappa
Satyal and 9 acres sold to Sabu Kamatagi was numbered as
Sy.No.273/2. Accordingly, M.E.No.6542 came to be certified.
Subsequently, in the family partition effected in the family of
Sabu Kumatagi, the suit land bearing Sy.No.273/2 fell to the
share of Malu Kumatagi, which is effected under
M.E.No.12403. Hence, Malu Kumatagi came in possession of
the suit land.
4. The mother of the plaintiff, by name
Yamunamma, was the owner and possessor of Sy.No.546/A
measuring 11 acres 38 guntas of Tajpur village. In the year
1981, she got exchanged the said land with Malu Kumatagi
for the suit land under registered exchange deed, dated
26.05.1991, under which the mother of the plaintiff was put
in possession of the suit property by Malu Kumatagi,
M.E.No.12743 of Tikota Village came to be certified in this
regard and hence, in view of this exchange deed, the mother
of the plaintiff became owner in possession of the suit
schedule property from 20.05.1991. It is alleged that in the
partition of 1994-95, the suit property was fallen to the
share of the plaintiff and as such, the plaintiff became the
owner and possessor of suit land measuring 9 acres. It is
further asserted that remaining portion of Sy.No.273/1
measuring 13 acres 20 guntas was sold under three different
sale deeds in favour of father of defendant Nos.1 to 4 and
husband of defendant No.5 as well as to one Subhas Yadave.
However, later on, defendant Nos.1 to 5 succeeded to
Sy.No.273/1 measuring 13 acres 20 guntas. The plaintiff is in
possession of enjoyment of suit land measuring 9 acres. It is
alleged that the suit land was reduced from 9 acres to 7
acres 36 guntas on account of M.E.No.12884 by issuing Form
No.11 without following any procedure. The defendants have
no right, title or interest over the suit schedule property and
they by colluding with Revenue Authorities got created
documents stating that this 1 acre 4 guntas of Sy.No.273/2
is part of SyNo.273/1 and defendants are trying to cause
obstruction in plaintiff's possession over the suit schedule
property. Hence, the suit came to be filed for declaration and
perpetual injunction.
5. Defendant No.1 filed written statement and
virtually admitted all the transactions as alleged. It is
admitted that in exchange, the suit land was allotted to the
mother of the plaintiff and sale of 9 acres to Sabu Kumatagi,
who exchanged it with the mother of the plaintiff. However,
it is their specific contention of the defendants that Sabu
Kumatagi came in possession of only 7 acres 36 guntas and
he restricted his cultivation for the said area by putting up
the bund. He would also contend that after exchange, the
mother of the plaintiff and later on, plaintiff came in
possession of 7 acres 36 guntas only and they disputed the
claim of the plaintiff. They have also asserted that the
mutation entry was challenged before the Assistant
Commissioner, which was rejected and without challenging
the said order of Assistant Commissioner, the plaintiff has
approached this Court and hence, it is contended that suit is
not maintainable.
6. On the basis of these pleadings, the trial court has
framed the following issues:
"1. Whether the plaintiff, proves that, he is in
ownership and possession of suit land bearing
R.S.No.273/2 measuring 9 acres of Tikota village as
on the date of suit?
2. whether the plaintiff proves that, the defendant in
collusion with Survey official created as false
M.E.No.12884 in respect of suit land reducing the
suit land from 9 acres to 7 acres 36 gunthas?
3. whether the plaintiff is entitled for a relief of
declaration and consequential relief of injunction as
prayed for?
4. What order or decree?
ADDITIONAL ISSUE:
1. Whether the defendant proves that, this court
has no jurisdiction to try the suit?"
7. The plaintiff was got examined his father as PW1
as a power of attorney holder and three witnesses were
examined on his behalf as PW2 to PW4 and placed reliance
on eight documents marked at Ex.P1 to Ex.P8. Defendant
No.1 got examined himself as DW1 and one witness was
examined as DW2 and Ex.D1 to Ex.D7 were relied.
8. After hearing the arguments and after
appreciating the oral and documentary evidence, the learned
Civil Judge partly answered issue No.1 & 3 in affirmative and
issue No.2 came to be answered in the negative, while
addition issue No.1 is also answered in the negative and
ultimately, decreed the suit of the plaintiff in part, declaring
that plaintiff is the owner of land bearing RS No.273/2
measuring 9 acres, but his claim for permanent injunction for
entire land came to be rejected.
9. Being aggrieved by this judgment and decree, the
defendants have filed the appeal before the III Additional
Senior Civil Judge (Sr.Dn.), Bijapur, in RA No.112/2007. It is
relevant to note here that though the injunction was
rejected, the plaintiff has not challenged the said judgment
and decree of rejection of the injunction. The learned Senior
Civil Judge after appreciating the oral and documentary
evidence, dismissed the appeal vide judgment dated
17.09.2009 by confirming the judgment and decree passed
by the Civil Judge (Jr.Dn.).
10. Being aggrieved by these concurrent findings, the
defendants are before this court by way of this appeal.
11. This Court vide order dated 24.11.2022 has
framed following substantial question of law:
"Whether both the Courts erred in granting only relief
of declaration having recorded a finding that the
plaintiff is not in possession over the suit land and
therefore ignored the settled position of law that the
suit for declaration under Section 34 of the Specific
Relief Act, 1963 is not maintainable without seeking
relief of possession as held by the Apex Court in the
case of Ram Saran and Another vs. Smt. Ganga Devi
reported in (1973) 2 SCC 60?"
12. The learned counsel for appellants would contend
that the plaintiff is not in possession of entire extent of land
of 9 acres and his possession over 1 acre 4 guntas is
disputed and granting decree to the extent of 9 acres after
holding that plaintiff is not in possession of 9 acres, but he is
in possession of 7 acres 36 guntas only, is erroneous. He
would contend that when possession is not sought, question
of declaring title does not arise at all. It is asserted that the
plaintiff admittedly got the land initially through exchange
and later on in partition and the evidence disclose that he is
in possession of 7 acres 36 guntas but not 9 acres which is
supported by survey. Hence, he would contend that granting
declaration in favour of plaintiff to the total extent of 9 acres,
is erroneous.
13. Per contra, the learned counsel for respondent in
this context placed reliance on a decision reported in 2021
SCC OnLine 1146 (Akkamma and Others vs. Vemavathi
and Others) and contended that the title of the plaintiff to 9
acres was never challenged and only challenge was
pertaining to his possession of 1 acres 4 guntas and
possession of plaintiff to the extent of 7 acres 36 guntas was
not challenged. It is contended that when the title of the
plaintiff was not at all disputed, and when defendants have
not set up any title over his portion of the land measuring 1
acre 4 guntas, question of arguing now regarding
maintainability of the suit does not arise at all. He would
contend that the decision relied in AIR 2008 SC 2033
(Anathual Sudhakar Vs. P.Buchi Reddy (Dead) by LRs
& Ors) is not applicable, as it is only pertaining to suit for
bare injunction. Hence, he would seek for dismissal of the
appeal.
14. Having heard the arguments and perusing the
records, the undisputed facts are required to be considered.
In the written statement, the defendant has specifically
admitted that Sy.No.273 was totally measuring 22 acres 25
guntas. It is further admitted that the original owner was
Siddappa Satyal and he sold 9 acres under Registered Sale
Deed dated 11.08.1971 to one Sabu Kumatagi. It is also
admitted that subsequently, Sabu Kumatagi was in
possession of 9 acres and it is further admitted by DW1 in his
cross-examination that in the family partition between Sabu
Kumatagi and his sons, the suit land measuring 9 acres was
allotted to the share of Malu Kumatagi. It is further evident
from the records that Malu Kumatagi has got exchanged this
land of 9 acres with mother of the plaintiff under Registered
Exchange Deed. There is no dispute regarding Registered
Exchange Deed and it is admitted that till 91-92 suit land
was measuring 9 acres. But however, subsequently, the
extent was reduced to 7 acres 36 guntas and there is no
serious dispute regarding sale of 9 acres of suit land and
exchange. We need not consider how 9 acres was reduced to
7 acres 36 guntas in the revenue records, as the plaintiff has
not challenged the judgment and decree though injunction
was rejected.
15. The main contention of the defendant is that suit
is not maintainable without seeking relief of possession. On
this point only the learned counsel for appellant has placed
reliance on a decision reported in AIR 2008 SC 2033
(Anathual Sudhakar Vs. P.Buchi Reddy (Dead) by LRs
& Ors), but it is a bare suit for injunction wherein it is held
that incidentally title is required to be considered. It is
further observed in the said judgment that the suit for
perpetual injunction without seeking declaration of title is not
maintainable. It is further observed in the said decision that
a person out of possession cannot seek relief of injunction
simply without claiming the relief of possession. But the
present case is not pertaining to relief of bare injunction. It is
further observed that where a cloud is raised over plaintiff's
title and he does not have possession, a suit for declaration
and possession with or without consequential injunction is
remedy. It is further observed that when plaintiff's title is not
in dispute and he is out of possession, he has to sue for
possession and consequential injunction.
16. In the instant case, the records disclose that there
is absolutely no cloud over the title of the plaintiff as the
original sale deed, partition and exchange clearly establish
the passing of title. Partition deed and exchange deed clearly
establish that the title of the extent of Sy.No.273/2 was 9
acres. The defendants have not at all disputed the title
raising cloud over the title of the plaintiff, but they have only
disputed the possession of the plaintiff over portion of suit
land measuring 1 acres 4 guntas only. Hence, principles
enunciated in the above cited decision as well as in the
decision reported in (1973) 2 SCC 60 (Ram Saran and
Another vs. Smt. Ganga Devi) cannot be made applicable to
the case in hand. On the contrary, the Hon'ble Apex Court in
a decision reported in 2021 SCC OnLine 1146 (Akkamma
and Others vs. Vemavathi and Others) had occasion to
deal with this aspect. In the said decision, the Hon'ble Apex
Court has held that when the plaintiff has failed to prove his
possession, injunction cannot be granted. But it is further
observed that when the ownership of the plaintiff was
proved, the plaintiff was entitled for declaration that he was
the absolute owner of the suit property and there is no bar in
granting such a decree for declaration and such declaration
could not be denied on reasoning that no purpose would be
served in giving such declaration. The said principles are
directly applicable to the facts and circumstances of the case
in hand. In view of these peculiar facts & circumstances and
in view of the fact that no specific cloud is raised over the
title of the plaintiff's over the suit schedule property, the
judgment and decree passed by both the Courts below
cannot be said to be erroneous or arbitrary and question of
both the Courts below erring in granting the decree does not
arise at all. As such, substantial question is answered in the
negative in favour of the plaintiff/respondent herein. As such,
the appeal being devoid of any merits, does not survive for
consideration and accordingly, I proceed to pass the
following:
ORDER
The appeal filed by the appellants/defendants is
dismissed.
Under these circumstances, there is no order as to
costs.
Sd/-
JUDGE
DS
