Karnataka High Court
Basanagouda S/O. Bheemanagouda ... vs Savatravva W/O. Veerangouda ... on 10 January, 2024
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RSA No. 6056 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.6056/2012(DEC/INJ)
BETWEEN:
SHRI BASANAGOUDA S/O. BHIMANAGOUDA
POLICEPATIL,
AGE: 25 YEARS, OCC: AGRICULTURE AND STUDENT,
R/O: CHIKKANKOPPA, TQ: YELBURGA,
DIST: KOPPAL - 583 236.
- APPELLANT
(BY SRI ROHIT PATIL, ADVOCATE)
AND:
1. SMT. SHAVANTREVVA
W/O. VEERANGOUDA POLICEPATIL,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: CHIKKENAKOPPA, NOW AT KUKANUR,
Digitally TQ: YELBURGA, DIST: KOPPAL - 583 236.
signed by
VINAYAKA 2. SRI VEERANAGOUDA
BV
S/O. BHIMANGOUDA POLICEPATIL,
AGE: 76 YEARS, OCC: AGRIL AND PENSIONER,
R/O: CHIKKANAKOPPA, NOW AT KUKANUR,
TQ: YELBURGA, DIST: KOPPAL - 583 236.
3. SMT. MABOOBI W/O. MABOOBSAB KADEMANI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: BINNAL, TQ: YALABURGA,
DIST: YELABURGA.
- RESPONDENTS
(BY SRI SANGRAM S. KULKARNI, ADVOCATE FOR
SRI V. P. KULKARNI, ADVOCATE FOR R1, R2 AND R3;
APPEAL ABATED AN AGAINST R1)
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RSA No. 6056 of 2012
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF C.P.C., AGAINST THE JUDGMENT AND
DECREE DATED 20.10.2011 PASSED IN R.A.NO.60/2011 ON
THE FILE OF THE DISTRICT AND SESSIONS JUDGE, KOPPAL,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT
DATED 18.04.2011 AND THE DECREE PASSED IN
O.S.NO.79/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., YELBURGA, DISMISSING THE SUIT FILED FOR
DECLARATION AND INJUNCTION & ETC.
THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant has challenged the concurrent finding
recorded by both the courts that he is not entitled to the relief
of declaration and injunction in respect of the suit schedule
property.
2. For the sake of convenience and easy understanding, the
parties shall be referred to as they were arrayed before the trial
court. The appellant was the plaintiff while the respondents
were defendants before the trial court.
3. The plaintiff claimed that he was the owner of the suit
schedule property. He claimed that suit property was earlier
handed over to the village office of Walikar and that his
grandfather was rendering the service of office of Walikar and
thereafter occupancy rights was granted in favour of his
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grandfather and others. He claimed that his grandfather
challenged the order by filing a revision petition before the
Sessions Court at Raichur and the revision was allowed and
occupancy right was exclusively granted in favour of his
grandfather. He claimed that his grandfather was owned the
properties and to avoid future disturbances, he made a family
arrangement in terms of which the suit property was granted to
the plaintiff. He claimed that defendant no.2 was brother of his
grandfather while the defendant no.1 was his wife who had no
issues. He claimed that defendants had immense love and
affection towards him and treated him as their own son. The
plaintiff claimed that suit property was transferred to his name
when he was still a minor and the defendant no. 2 was shown
as his guardian. However, the defendant no.2 thereafter
hatched a plan to snatch away the suit property and managed
to get his name entered in the revenue records by deleting the
name of plaintiff. The defendant no.2 thereafter filed a suit
against his father and his grandfather and that they contested
the suit where they claimed that suit property was allotted to
the share of the plaintiff. The plaintiff therefore claimed that
defendants had no title to the suit property and prayed that he
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be declared as the owner of the property and for consequential
relief of injunction.
4. The defendants contested the suit and claimed that the
suit property fell to their share and that it was given towards
maintenance of defendant no.1, however without their notice
and knowledge, the father of the plaintiff colluding with the
revenue authorities got the name of the plaintiff entered in the
revenue records.
5. On the basis of these contentions, the trial court framed
the following issues.
ISSUES
1) Whether plaintiff proves that he is owner and
possessor of suit land?
2) Whether defendants prove that suit land was fallen
to the share of defendant No.2 and it is given to
defendant No.1 towards her maintain by defendant
No.2?
3) Whether plaintiff proves the alleged obstruction?
4) Whether plaintiff is entitled for relief sought?
5) What order or decree?
6. The plaintiff was examined as PW1 and he marked
Exs.P.1 to P.4. He also examined two witnesses as PWs.2 and
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PW3. The defendant no.1 was examined as DW1 and
defendant no.2 was examined as DW2 and they marked
Exs.D.1 to D.20.
7. Based on the oral and documentary evidence, the trial
court held that defendant no.2 proved that the suit property fell
to his share and that he had given it away to defendant no.1
for her maintenance and that the name of defendant no.1 was
entered in the revenue records for the year 2000-2001 to
2010-2011. Therefore, it held that the plaintiff failed to prove
title over the suit property and also as to how he became
owner of the suit property. It also held that the plaintiff was
not able to prove that he was adopted by the defendants and or
that the defendant no.2 acted as the minor guardian of the
plaintiff. Consequently, the suit filed by the plaintiff was
dismissed. Feeling aggrieved by the said judgment of the trial
court, the plaintiff filed R.A. No.60/2011 before the first
appellate Court. The first appellate court secured the records
of the trial court, heard the learned counsel for the parties and
framed the following points for consideration.
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(1) Whether the trial court has committed an error in
dismissing the suit. If so, this appeal is liable to
allow?
(2) To what order?
8. The first appellate court also held that the evidence of the
plaintiff established that his grandfather had not executed any
deed in his favour while effecting mutation in his name. He
also did not produce the records of the previous proceedings
that was initiated by the defendants against the father and
grandfather of the plaintiff. The first appellate court after
perusing the documentary evidence held that the father of the
plaintiff had suffered a decree of perpetual injunction in O.S.
No. 69/2000 in respect of the very same suit property and an
appeal filed in R.A. No. 27/2006 was also dismissed. It held
that that the plaintiff had filed the present suit after his father
had lost the suit in O.S. No. 69/2000. Consequently, it held
that there was no material to establish title of the plaintiff to
the suit schedule property and consequently dismissed the
appeal. Being aggrieved by the said judgment and decree, the
plaintiff has filed this appeal.
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9. Learned counsel for the plaintiff submitted that the
revenue documents which are marked as Exs.P.2 and P3
showed that the name of the plaintiff was entered in the
revenue records concerning the land bearing Sy. No. 128 and
that thereafter the defendant no.2 also got his name entered in
the revenue records and this fact was not noticed by the trial
court as well as the first appellate court. He submitted that
O.S. No. 69/2000 was only for the relief of perpetual injunction
and that he was not a party to the said suit and therefore the
said judgment was not binding upon him. Alternatively, he
contends since the present suit was filed for declaration and
injunction, the plaintiff could maintain the suit notwithstanding
a decree for perpetual injunction was granted against his father
in O.S. No. 69/2000.
10. Per contra, learned counsel for the defendants submitted
that except the self serving statement that the land was
conveyed to the plaintiff, he did not produce any material to
establish the same. He submitted that the suit property was
allotted to the share of defendant no.2 and that he had given it
for the maintenance of defendant no.1 and her name was
entered in the revenue records and continued for nearly ten
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years which is evident from Exs.D.4 to D.10. Further he
contends that the father of the plaintiff himself who had raised
a similar claim in O.S. No. 69/2000 suffered a decree of
perpetual injunction and the Court held that it was the duty of
the person who was the owner and in possession to establish it.
He further submitted that both the courts were justified in
dismissing the suit filed by the plaintiff.
11. I have considered the submissions made by the learned
counsel for the plaintiff as well as the learned counsel for the
defendant. I have also perused the records of the trial court
which are furnished by the learned counsel for the plaintiff and
I have perused the judgment and decree passed by both the
Courts below.
12. It is evident from the record that the plaintiff claimed that
the suit property was given to him by his grandfather.
However, except the mutation entries there are no documents
to establish the same. The defendant no.2 is not a stranger to
the plaintiff but he was the brother of the grandfather of the
plaintiff. Ex.P.3 indicate that total extent of the land in Sy. No.
128 was 11 acres 8 guntas of which defendants claimed that 5
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acres 28 guntas fell to their share and that they were in
possession. In the absence of any material to establish that
the entire extent of 11 acres 8 guntas was made over to the
plaintiff, the suit for declaration based on mere mutation
entries cannot be granted and the trial court as well as the first
appellate court were right in holding that the plaintiff did not
produce any material to establish that he was the absolute
owner of the suit property. Hence, no substantial question of
law arises for consideration in this appeal. Consequently, the
appeal stands dismissed.
13. In view of disposal of the appeal, pending IAs, if any, also
stand disposed off.
SD/-
JUDGE
bvv
CT-ASC
