Karnataka High Court
Mallinath S/O Chandramappa Iradgi vs Shobhawati W/O Mallikarjun Kori on 15 February, 2024
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.7422 OF 2011 (INJ)
C/W
REGULAR SECOND APPEAL NO.7374 OF 2011 (DEC/INJ)
IN RSA NO.7422 OF 2011:
BETWEEN:
MALLINATH @ MALLIKARJUN
SINCE DECEASED BY HIS LRS.
1(A). LAXMI D/O MALLIKARJUN IRADI,
AGE: 24 YEARS, OCC: HOUSEHOLD,
R/O H.NO.4-24, KEB ROAD,
BASAVESHWAR COLONY,
JAMBAGA(B), TQ: AFZALPUR,
DIST: KALABURAGI.
Digitally 1(B). CHANDRAKALA
signed by
LUCYGRACE D/O MALLIKARJUN IRADI,
Location: AGE: 21 YEARS,
HIGH
COURT OF OCC: HOUSEHOLD,
KARNATAKA
R/O MAIN ROAD, ALAGUD,
TQ: DIST: KALABURAGI.
1(C). SACHIN
S/O MALLIKARJUN IRADI,
AGE: 20 YEARS, OCC: STUDENT,
H.NO.4-24, KEB ROAD,
BASAVESHWAR COLONY,
JAMBAGA(B), TQ: AFZALPUR,
DIST: KALABURAGI.
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
(AMENDED AS PER ORDER OF HON'BLE COURT
DATED 12.09.2022)
...APPELLANTS
(BY SRI. MANVENDRA REDDY, AND
SRI. NARENDRA M. REDDY, ADVOCATES)
AND:
SHOBHAWATI
W/O MALLINATH KORI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O C/O HOUSE OF VEERBHUSHA CHETTI,
EMPLOYEE IN KSRTC, SHIVAJI NAGAR,
KALABURAGI.
...RESPONDENT
(BY SRI. SRINIVAS B. JOSHI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE PASSED IN O.S.NO.456/2002 DATED
28.10.2005 PASSED BY THE PRL. CIVIL JUDGE (JR.DN.),
GULBARGA, WHICH IS CONFIRMED IN R.A.NO.243/2005
DATED 02.08.2011 BY THE LEARNED 1ST ADDITIONAL CIVIL
JUDGE (SR.DN.), GULBARGA AND CONSEQUENTLY DECREE
THE SUIT OF THE PLAINTIFF WITH COST THROUGHOUT.
IN RSA NO.7374 OF 2011:
BETWEEN:
THE DIRECTOR AND HONORARY SECRETARY,
RESPECTIVELY OF ADARSHA HOUSING
CO-OPERATIVE SOCIETY LIMITED,
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
SARAF BAZAR,
GULBARGA-585 101.
...APPELLANT
(BY SRI. SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. CHANDRAMAPPA S/O SHARNAPPA,
DIED THROUGH HIS LRS.
I) LAXMIBAI W/O LATE CHANDRAMAPPA,
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
II) JAGADEVI
D/O LATE CHANDRAMAPPA,
W/O DEVINDRAPPA SARADAGI,
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
III) NAGAMMA D/O LATE CHANDRAMAPPA,
AGE: 28 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
IV) MALLIKARJUN
S/O LATE CHANDRAMAPPA,
AGE: 37 YEARS, OCC: NIL,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
V) BASAWARAJ
S/O LATE CHANDRAMAPPA,
AGE: 30 YEARS, OCC: NIL,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
2. BASAVANAPPA S/O BANDAPPA,
DIED THROUGH LRS.
I) DR. ANNARAO
S/O LATE BASANNAPPA,
AGE: 64 YEARS,
OCC: LECTURE IN M.R.
MEDICAL COLLEGE,
GULBARGA-585 105.
II) CHANDRAKANTH
S/O LATE BASANNAPPA,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
III) KAMALABAI
D/O LATE BASAWANAPPA,
W/O SHIVARAJ KOTNOOR,
AGE: 59 YEARS,
OCC: HOUSEHOLD
C/O SHIVARAJ KOTNOOR,
SARAF BAZAR,
GULBARGA-585 101.
IV) SUSHILABAI
D/O LATE BASAWANAPPA,
W/O SHIVASHARNAPPA,
AGE: 68 YEARS,
OCC: HOUSEHOLD,
C/O SHIVASHARNAPPA MUNIM,
MUNIM SANGHA, NEHRU GUNJ,
GULBARGA-585 104.
V) CHANDRABAGHA
D/O LATE BASAWANAPPA GUBBI,
AGE: 74 YEARS,
OCC: HOUSEHOLD,
R/O ALAND COLONY,
GULBARGA-585 101.
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
VI) SARUBAI
D/O LATE BASAWANAPPA GUBBI,
AGE: 54 YEARS,
OCC: HOUSEHOLD,
R/O ALAND COLONY, GULBARGA
SINCE DECEASED THROUGH LRS.
A) SUREKHA
W/O SHADANNA HAMBAIGI,
AGED ABOUT 39 YEARS,
OCC: HOUSEHOLD,
R/O BEHIND KOTHARI BHAVAN,
JEWARGI ROAD, GULBARGA-585 102.
3. NIMBENEPPA S/O BANDAPPA
DIED THROUGH LRS.
I) SHARADABAI
W/O LATE NIMBENEPPA,
AGE: 75 YEARS,
OCC: HOSEHOLD,
R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
II) SHARANABASAPPA
S/O LATE NIMBENEPPA,
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
III) MALLIKARJUN
S/O LATE NIMBENEPPA,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
IV) BASANAPPA
S/O LATE NIMBENEPPA,
AGE: 50 YEARS,
OCC: AGRICULTURE,
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
V) CHANDRAKANTH
S/O LATE NIMBENEPPA,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
VI) LALITA BAI
W/O SIDDRAMAPPA,
AGE: 52 YEARS,
OCC: HOUSE HOLD,
R/O SHIVAJI NAGAR,
GULBARGA-585 104.
VII) PUTALABAI
W/O BHIMASHANKAR MALA,
AGE: 54 YEARS,
OCC: HOUSEHOLD, R/O KAPNOOR,
TQ: AND DIST: GULBARGA-585 104.
EXCEPT LR NO: VI
VIII) KASHIBAI W/O SIDDANNA,
AGE: 50 YEARS,
OCC: COCONUT DEALER,
R/O S.B. TEMPLE PREMISES,
GULBARGA-585 101.
IX) ANNAPURNA W/O SHRISAIL MAOR,
AGE: 48 YEARS, R/O NANDI COLONY,
FILTER BED ROAD, GULBARGA-585 104.
X) BHARATIBAI W/O REVIKUMAR,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O VILLAGE KAPNOOR,
TQ: & DIST: GULBARGA-585 104.
4. RAJASHEKHAR S/O BASANNAPPA GANGSERI,
AGE: 50 YEARS, OCC: BUSINESS,
R/O MAHADEV NAGAR,
ASIF GUNJ, GULBARGA-585 104.
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
5. SHIVAPUTRAPPA
S/O BASANNAPPA GANGSERI,
AGE: 47 YEARS, OCC: BUSINESS,
R/O MAHADEV NAGAR,
ASIF GUNJ, GULBARGA-585 104.
6. LAXMICHAND S/O PREMJI SHAH,
AGE: 49 YEARS, OCC: BUSINESS,
R/O MAHADEV NAGAR,
ASIF GUNJ, GULBARGA-585 104.
7. VIDYASAGAR S/O PARAGRAM
AGE: 51 YEARS, OCC: BUSINESSMAN,
C/O VEDPRAKASH MANIKSHETTY GAMPA,
KIRANA NAGAR, GULGARGA-585 101.
8. LAXMINARAYAN BHANG
S/O CHATURBHUJ BHANG,
AGE: 73 YEARS,
OCC: GROCERY MERCHANT,
NEHRU GUNJ, GULBARGA-585 104.
9. PEERAPPA S/O SHIVASHARNAPPA KHENI,
AGED ABOUT 70 YEARS, OCC: MUNIM IN
SPUN PIPE FACTORY OF S.B. PATIL,
R/O NEHRU GUNJ, GULBARGA-585 104.
10. KISHANRAO
S/O VITHALRAO PATIL,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/O VILLLAGE BHOSAGA
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
11. AMBADAS RAO
S/O NARAYAN RAO SURVYAVANSHI,
AGED ABOUT 75 YEARS,
OCC: BUSINESS,
R/O LOHARGALLI, ASIF GUNJ,
GULBARGA-585 104.
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RSA No. 7422 of 2011
C/W RSA No. 7374 of 2011
12. BABURAO S/O LAXMANRAO BIRAJDAR,
AGED ABOUT 55 YEARS,
OCC: SERVICE, R/O VIDYA NAGAR,
S.B. COLLEGE ROAD, GULBARGA- 585 102.
...RESPONDENTS
(SRI. MANVENDRA REDDY, ADVOCATE FOR R1(II), R1(III)
R1(V), R2(II) TO R2(IV), R3(II) TO R3(V) & R3(VII) TO R3(IX);
R1(I), R6, R8, R9, R11 - SERVED, UNREPRESENTED;
V/O DTD. 27.06.2023 NO NEED TO TAKE STEPS IN R/O R1(IV);
APPEAL AGAINST R7 AND R10 STANDS ABATED;
NOTICE TO R2(I), R2(V), R3(I), R3(VI), R3(X), R4 AND R5 IS
DISPENSED WITH;
NOTICE TO R2 (VI) (A) AND R12 IS NOT NECESSARY)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
02.08.2011 PASSED BY THE I ADDL. CIVIL JUDGE (SR.DN.),
GULBARGA, IN R.A.NO.253/2006 AND THE JUDGEMENT AND
DECREE DATED 14.09.2006 PASSED BY THE I ADDL. CIVIL
JUDGE (JR.DN.), GULBARGA IN O.S.NO.576/1989 AND ALLOW
THE SUIT AS PRAYED FOR.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.7422/2011 is filed by the plaintiff/appellant,
challenging the judgment and decree dated 02.08.2011 in
R.A. No.243/2005 on the file of I Additional Civil Judge
(Sr.Dn.) at Gulbarga (for short 'First Appellate Court'),
dismissing the appeal and confirming the judgment and
decree dated 28.10.2005 in O.S. No.456/2002 on the file
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of Principal Civil Judge (Jr.Dn.), Gulbarga (for short 'Trial
Court'), dismissing the suit of the plaintiff.
2. RSA No.7374/2011 is filed by the
plaintiff/appellant, challenging the judgment and decree
dated 02.08.2011 in R.A. No.253/2006 on the file of
I Additional Civil Judge (Sr.Dn.) at Gulbarga (for short
'First Appellate Court'), dismissing the appeal and
confirming the judgment and decree dated 14.09.2006 in
O.S. No.576/1989 on the file of I Additional Civil Judge
(Jr.Dn.) Gulbarga (for short 'Trial Court'), dismissing the
suit of the plaintiff.
3. For the sake of convenience, the parties in the
appeals shall be referred to in terms of their status and
ranking before the Trial Court.
4. It is the case of the plaintiff in O.S.No.456/2002
(RSA No.7422/2011) that, father of the plaintiff was owner
in possession of the land bearing Sy.No.129/3E measuring
4 acres 13 guntas of Kapnoor village, Gulbarga Taluk and
District and the property was converted for non-
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agricultural purpose and the competent authority has
approved the formation of layout. Thereafter, by virtue of
the compromise petition in O.S.No.706/1982, the plots
were divided amongst the brothers of father of the plaintiff
and as such, the plaintiff is in possession of plot No.83 in
Sy.No.129/3E of Kapnoor village. The grievance of the
plaintiff is that, the defendant, without any semblance of
right over the property in question claims ownership of
plot No.54 and interfered with the suit schedule property
and therefore, plaintiff has filed O.S.No.456/2002 before
the Trial Court, seeking relief of permanent injunction
against the defendant not to interfere with the peaceful
possession of the property in question.
5. On service of notice, the defendant entered
appearance and filed detailed written statement,
contending that land bearing Sy.No.129/2 measuring 11
acres 13 guntas of Kapnoor village belonging to one
Ruknuddin and others. It is further stated that, the said
plot was purchased by Adarsh Housing Board - a Society
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and the said Society got approved the layout plan from the
competent authority and sold the site to various persons.
It is further alleged that, father of the plaintiff
Chandramappa and his uncle - Baswanappa were the
owners of adjacent land bearing Sy.No.129/3 and it is
further contended that the Society has good title over the
plots situate in Sy.No.129/2. It is the contention of the
defendant that, she had purchased the schedule plot as
per registered sale deed dated 16.07.2002 and accordingly
the defendant is in possession of the property and as such,
sought for dismissal of the suit.
6. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
7. In order to substantiate their case, plaintiff has
examined two witnesses as PW.1 and PW.2 and got
marked nine documents as Exs.P1 to P9. The defendant
has examined one witness as DW.1 and got marked 24
documents as Exs.D1 to D24.
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8. The Trial Court after considering the material on
record, by its judgment and decree dated 28.10.2005,
dismissed the suit of the plaintiff. Feeling aggrieved by the
same, the plaintiff has filed R.A.No.243/2005 before the
First Appellate Court and the appeal was resisted by the
defendant.
9. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
02.08.2011, dismissed the appeal. Feeling aggrieved by
the same, the plaintiff has filed this RSA No.7422/2011.
10. Facts in nutshell in RSA No.7374/2011 are that,
plaintiffs in O.S. No.576/1989 have filed suit for
declaration, possession and perpetual injunction against
the defendants. It is the case of the plaintiffs that, plaintiff
No.3-Society has purchased land bearing Sy.No.129/2
measuring 11 acres 13 guntas of Kapnoor village as per
registered sale deed dated 04.05.1978. Thereafter, the
plaintiff-Society obtained permission to form layout from
the competent authority by converting the land in question
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for non-agricultural purpose and layout was sanctioned by
the planning authority Gulbarga. It is further averred in
the plaint that, defendant Nos.1 to 3 are the owners of
adjacent land bearing Sy.No.129/3 situate towards East of
land of plaintiff i.e., Sy.No.129/2 and the defendants are
interfering with the suit schedule property and as such,
the plaintiffs have filed suit in O.S.No.576/1989, seeking
aforementioned reliefs.
11. On service of notice, the defendants entered
appearance and filed detailed written statement and the
specific contention of the defendants is that, the
description of the suit schedule property is misleading, as
measurement and boundaries are wrongly stated. It is the
specific contention urged in the written statement that, the
suit of the plaintiffs is not maintainable, as the defendants
are the owners of land bearing Sy.No.129/3 and nothing
to do with land bearing Sy. No.129/2. It is further stated
in the written statement that, defendant Nos.1, 3 and
another person-Bandeppa have purchased the land
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bearing Sy.No.129/3 measuring 13 acres situate at
Kapnoor village as per registered sale deed dated
14.03.1969 and thereafter, land was converted by the
competent authority and sites have been distributed to the
allottees and accordingly defendants have sought for
dismissal of the suit.
12. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
13. In order to substantiate their case, plaintiffs
have examined two witnesses as PW.1 and PW.2 and got
marked 37 documents as Exs.P1 to P37. The defendants
have examined three witnesses as DW.1 to DW.3 and got
marked five documents as Exs.D1 to D5. Court
Commissioner was appointed and he was examined as
CW.1 and got marked Exs.C-1 to C-1 (h).
14. The Trial Court after considering the material on
record, by its judgment and decree dated 14.09.2006,
dismissed the suit of the plaintiffs. Feeling aggrieved by
the same, plaintiffs have filed R.A. No.253/2006 before
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the First Appellate Court and the appeal was resisted by
the defendants.
15. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
02.08.2011, dismissed the appeal. Feeling aggrieved by
the same, the plaintiffs have filed RSA No.7374/2011.
16. This Court, vide order dated 27.11.2012 in RSA
No.7422/2011, formulated the following substantial
question of law for consideration:
"Whether the Lower Appellate Court was
justified in not considering the fact that
O.S.No.576/1989 filed by the vendor of the
defendant was dismissed and the same is confirmed
in R.A.No.256/2006 in respect of the property in
question?
17. Further, this Court, vide order dated
09.02.2024 in RSA No.7374/2011, formulated the
following substantial question of law for consideration:
Whether the plaintiff/appellant has made out
a case for interference of this Court with the finding
recorded by the Trial Court on issue No.3 and 5?
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18. In order to answer the aforementioned
substantial question of law, the judgment and decree that
may be rendered in RSA No.7374/2011 is having bearing
on RSA No.7422/2011 and therefore, for the convenience
of the Court, RSA No.7374/2011 is taken up for
consideration.
19. I have heard Sri Shivakumar Kalloor, learned
counsel appearing for the appellant and Sri Manvendra
Reddy, learned counsel appearing for the respondents
namely, R1(II), R1(III), R1(V), R2(II) to R2(IV), R3(II) to
R3(V) and R3(VII) to R3(IX).
20. Sri Shivakumar Kalloor, learned counsel
appearing for the appellant contended that, both the
Courts below have not considered the fact that the layout
plan has been approved by the competent authority in
respect of the entire land to an extent of 11 acres 13
guntas and without considering the said aspect, though
the plaintiffs have placed Exs.P10 to P12 to establish their
right over the land in question, both the Courts below,
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ignored the said aspect and passed the impugned
judgment and decree, which requires to be set aside in
this appeal. He further contended that, the appellant-
Society has purchased land bearing Sy No.129/2 as per
the registered Sale Deed dated 04.05.1978 and in that
view of the matter, both the Courts below ought to have
considered that the declaration which has been sought by
the plaintiff is based upon the registered Sale Deed dated
04.05.1978 and as such, he sought for interference of this
Court. It is also argued by the learned counsel appearing
for the appellant that, the crux of the matter is relating to
in which survey number the plots are located and both the
Courts below have not applied their mind to determine the
actual lis between the parties.
21. In order to buttress his arguments,
Sri Shivakumar Kalloor learned counsel appearing for the
appellant places reliance on the judgment of the Hon'ble
Supreme Court in the case of Zarif Ahmad (D) Thr. Lrs.
& Anr. vs. Mohd. Farooq reported in 2015 SAR
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(Civil) 333 and argued that, when there is discrepancy in
respect of identifying the property in question and in the
absence of the boundaries, public record of settlement or
survey/map has to be looked into to determine the actual
existence of the property. Insofar as opinion expressed by
the Court Commissioner's report that the plots in question
are situate at Sy. No.129/3, it is submitted by the learned
counsel appearing for the appellant that, the report made
by the Court Commissioner has to be accepted and such a
report cannot be brush aside by the First Appellate Court
while re-appreciating the findings of fact under Order XLI
Rule 31 of CPC and accordingly, sought for interference of
this Court.
22. Per contra, Sri Manvendra Reddy, learned
counsel appearing for the respondents namely, R1(II),
R1(III), R1(V), R2(II) to R2(IV), R3(II) to R3(V) and
R3(VII) to R3(IX), sought to justify the impugned
judgment and decree passed by the Courts below. He
refers to the prayer made in the plaint, particularly,
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referring to plaint in O.S. No.576/1989 and argued that,
the Trial Court has no jurisdiction to grant declaration to
that effect by holding that the layout has been sanctioned
by the competent authority and that apart, he vehemently
argued that, the entire averments in the plaint do not
reflect the boundaries of the land bearing Sy. No.129/2
and as such, the prayer made in the plaint itself is
misconceived. In order to support his contention, learned
counsel refers to the judgment of the Hon'ble Supreme
Court in the case of Mary Pushpam vs. Telvi
Curusumary & Ors. reported in 2024 LiveLaw (SC) 12,
and argued that, in a suit for possession, the condition
precedent to grant relief is to identify the property and
accordingly, sought for dismissal of the appeals.
23. Having heard the learned counsel appearing for
the parties, a careful examination of the factual aspects on
record would indicate that, whether the plots referred to
by the plaintiffs are located in Sy. No.129/2 or 129/3.
Perusal of the records would indicate that, as per Ex.P6,
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the plaintiff-Society has purchased the land to an extent of
11 acres, 13 guntas. It is pertinent to mention here that,
there is no dispute with regard to the fact that the
defendants claiming right over the land bearing Sy.
No.129/2 and the claim made by the plaintiff is that, the
plots in question are situate in Sy. No.129/2, though the
said land belongs to the defendants. Perusal of Ex.P6
would indicate that, the plaintiffs have purchased the
property from erstwhile vendors, however, Ex.P17 which is
parental document in which the plaintiffs made foundation
to claim land bearing Sy. No.129/2 does not contain the
boundaries, and therefore, identification of the property is
questionable. The parties to the suit are claiming title over
the suit schedule property based on the registered deeds.
The lands located in Sy. No.129/2 do not contain any
boundary and therefore, the defendants had taken plea in
the written statement, questioning the maintainability of
the suit on the ground that the suit for declaration is not
maintainable without providing boundaries to the lands in
question and in the backdrop of the same, the finding
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recorded by the First Appellate Court at paragraph 52 of
the judgment is just and proper and cannot be interfered
with under Section 100 of the Code of Civil Procedure.
24. It is also to be noted that, the Commissioner
has been appointed to identify the property. Though facts
remains that three plots are situate in Sy. No.129/2,
perusal of the evidence of the Commissioner-CW.1 would
indicate that, the Commissioner conducted panchanama
and recorded the statement relying upon Ex.P10 in his
report - Ex.C1. Though the learned counsel appearing for
the appellant vehemently contended that, in the absence
of the actual boundaries to the properties, the revenue
records have to be looked into, the said submission cannot
be accepted on the sole ground that, it is bounden duty of
the plaintiff, if he seeks declaratory relief, to establish his
right over the suit schedule property through the title
deeds only. In the case on hand, as the title of the
property itself is under cloud and no boundary has been
mentioned in the sale deeds referred to above, as
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observed, the contention raised by the learned counsel
appearing for the appellant cannot be accepted. In a suit
for declaration, it is not the report of the Court
Commissioner, or the evidence of the statutory
authorities, nor the revenue records, to be looked into and
it is only the parental documents i.e., title document plays
vital role to determine the actual existence of the
property. Therefore, as the evidence of the plaintiff itself
indicate that these three plots are in possession of the
defendants, without seeking relief of declaration, claiming
the relief of recovery of the possession, does not arise.
Hence, I am of the opinion that, as rightly argued by the
learned counsel appearing for the respondents placing
reliance on the recent judgment of the Hon'ble Supreme
Court in Mary Pushpam's case (supra), wherein it is held
that to determine the identification of the property, in a
suit for possession, description of the property in question
with accuracy and all details of measurement and
boundaries has to be mentioned and in the absence of the
same, the Civil Court cannot grant relief of declaration
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claimed by the plaintiff based on revenue documents,
particularly, in the instant case, the sole principal
argument of the appellant is based on Ex.p13-tippani copy
and accordingly, the said documents itself is not sufficient
to arrive at a conclusion to grant relief of declaration.
25. Even though, learned counsel appearing for the
appellant submitted that the documents on which the
respondents are relying upon, have no clear boundaries,
however, it is well established principle in law that, the
weakness of the defendants cannot be considered in the
event the plaintiff fails to establish his title in respect of
the suit schedule property as enunciated by the Hon'ble
Supreme Court in the case of United Bank of India v.
B.T.W. Industries Ltd. and others reported in AIR
1998 SC 2354 and in the case of Ratnagiri Nagar
Parishad vs. Gangaram Narayan Ambekar and
Others reported in (2020) 7 SCC 275. Recently, the
Hon'ble Supreme Court in the case of Smriti Debbarma
(dead) through legal representative vs. Prabha
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Ranjan Debbarma and Others reported in 2022
LiveLaw (SC) 19 has held that, in a declaratory suit,
onus of proof lies on the plaintiff, so also, the decree of
possession cannot be passed in favour of the plaintiff on
the ground that, defendants have not been able to fully
establish their right, title and interest in the property.
Therefore, the arguments advanced by the learned counsel
appearing for the appellant, questioning the veracity of the
pleadings of the defendants cannot be a ground to accept
the appeals and to grant relief of possession in favour of
the plaintiff.
26. Insofar as judgment referred to by the learned
counsel appearing for the appellant relating to acceptance
of the Commissioner's report in the case of Parappa and
Others vs Bhimappa and Another reported in ILR
2008 KAR 1840, I am of the opinion that, the facts of
the aforesaid case cannot be made applicable to the facts
in the present case on the sole ground that, the
Commissioner himself admitted in the evidence that he
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has not issued notice to the parties and therefore
accepting the report of the Commissioner does not arise.
Therefore, on overall consideration of the factual aspects
on records, both the Courts below have rightly come to
the conclusion that the plaintiffs failed to establish their
case as sought in the plaint. Accordingly, the substantial
questions of law formulated above, favors the defendants
in OS No.576 of 1989 and therefore, RSA No.7374 of 2011
is liable to be dismissed. However, dismissal of the
appeal does not preclude the plaintiffs to approach the
competent authority, as the First Appellate Court at
paragraph 15 of the impugned judgment, reserved liberty
to the plaintiffs. If such being the case, it is always open
for the plaintiffs to resort such remedial measures.
27. As I have arrived at a conclusion that the
plaintiffs in O.S. No.576 of 1989 fail to establish their case
seeking declaration of title, the subsequent purchasers of
plots in question from the plaintiffs in O.S. No.576 of 1989
have no right to claim ownership in respect of those plots
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and accordingly, the relief sought for in O.S. No 456/2002
is to be acceded, restraining the defendant from
interfering with the suit schedule property.
28. In the result, I pass the following:
ORDER
i) RSA No.7374 of 2011 is dismissed. The
judgment and decree dated 02.08.2011 in R.A.
No.253 of 2006 on the file of I Additional Civil
Judge (Sr.Dn) at Gulbarga, confirming the
judgment and decree dated 14.09.2006 in O.S.
No.576 of 1989 on the file of I Additional Civil
Judge (Jr.Dn.), Gulbarga, dismissing the suit is
confirmed;
ii) Consequently, RSA No.7422 of 2011 is
allowed. The judgment and decree dated
02.08.2011 in RA No.243 of 2005 on the file of
I Additional Civil Judge (Sr.Dn.) at Gulbarga
and the judgment and decree dated 28.10.2005
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in O.S. No.456 of 2002 on the file of Principal
Civil Judge (Jr. Dn.), Gulbarga are hereby set
aside. Suit in O.S. No.456 of 2002 is decreed.
Sd/-
JUDGE
LG,SB
