Karnataka High Court
Sri. N. Krishna vs Sri Hombegowda on 7 March, 2024
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RSA No. 106 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 106 OF 2013 (INJ)
BETWEEN:
SRI.N. KRISHNA,
SINCE DECEASED BY LRS,
1(A) GANGAMMA,
W/O LATE N. KRISHNA @ KRISHNE GOWDA,
AGED ABOUT 64 YEARS,
1(B) VARALAKSHMI,
W/O MANJUNATH C.,
D/O LATE N. KRISHNA @ KRISHNE GOWDA,
AGED ABOUT 36 YEARS,
1(C) MANJUNATH K.,
S/O LATE N. KRISHNA @ KRISHNE GOWDA,
AGED ABOUT 30 YEARS,
Digitally signed
by R DEEPA
ALL ARE R/AT HOOVINAHALLI VILLAGE,
Location: KASABA HOBLI,
HIGH COURT
NAGAMANGALA TALUK,
OF
KARNATAKA MANDYA DISTRICT - 571 401.
...APPELLANTS
(BY SRI.S. V. BHAT, ADVOCATE)
AND:
SRI. HOMBEGOWDA,
S/O LATE SADAPPA,
AGED ABOUT 63 YEARS,
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RSA No. 106 of 2013
R/AT HOOVINAHALLI VILLAGE,
KASABA HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT - 571 401.
...RESPONDENT
(BY SRI.SARAVANA S., ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 25.08.2012 PASSED IN
R.A.NO.105/2006 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, NAGAMANGALA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 15.04.2004
PASSED IN O.S.NO.201/2001 ON THE FILE OF CIVIL JUDGE
(JR.DN.) AND JMFC, NAGAMANGALA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree passed in
R.A.No.105/2006 dated 25.08.2012, on the file of Senior
Civil Judge and JMFC, Nagamangala Taluk, setting aside
the judgment and decree passed in O.S.No.201/2001
dated 15.04.2004 on the file of Civil Judge (Jr.Dn.) &
JMFC, Nagamangala.
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2. For the sake of convenience, parties are
referred to as per their ranking before the Trial Court. The
appellants are the legal representatives of the original
plaintiff and respondent is the defendant. Plaintiff filed a
suit for permanent injunction against the defendant.
3. The brief facts leading rise to filing of this
appeal are as under:
It is the case of the plaintiff, that plaintiff is the
absolute owner in possession of the suit schedule property
and the suit property was fallen to the share of plaintiff
along with other properties in the partition effected
between the family members of the plaintiff and a
document came to be executed under the name and style
of panchayat palupatti dated 24.04.1995. On the basis of
the partition, the suit property was transferred in the
name of plaintiff along with the other properties and
plaintiff is paying tax for the suit schedule property. It is
contended that the plaintiff is personally cultivating the
suit schedule property and he is in settled possession. The
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defendant has no manner of right, title, interest or
possession over the suit schedule property. The defendant
is trying to interfere with the peaceful possession and
enjoyment of the suit schedule property. In the month of
July 2001, the defendant had come to the suit land and
claimed that the same is granted in his favour and tried to
dispossess the plaintiff from the suit schedule property.
Hence, cause of action arose for the plaintiff to file the suit
for permanent injunction.
4. Defendant filed the written statement denying
the averments made in the plaint and it is also denied that
the plaintiff is the owner and is in possession of the suit
schedule property under panchayat palupatti dated
24.04.1995. It is contended that the entries in the
revenue records are made in collusion with the local
revenue authorities. It is contended that the plaintiff was
never in physical possession of the suit schedule property
at any point of time. It is contended that suit Sy.No.44 is
a Government land and defendant was in cultivation of the
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same for more than thirty years. The defendant is in
unauthorized occupation of the land and had submitted an
application before the Land Grant Committee,
Nangamangala Taluk in Form No.53 and the same is still
pending for consideration. The defendant invested a huge
amount and brought the land under cultivation. Hence, on
these grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether plaintiff proves that he is in lawful
possession of the suit schedule property as
on the date of the suit?
2) Whether plaintiff proves the alleged
interference caused by the defendant?
3) Whether plaintiff is entitled the relief as
claimed in the plaint?
4) What order or decree?
6. In order to prove the case of the plaintiff,
plaintiff examined himself as PW.1 and examined two
witnesses as PW.2 and PW.3 and marked five documents
as Exs.P1 to P5. In rebuttal, defendant examined himself
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as DW-1 and got examined one witness as DW.2 and
marked four documents as Exs.D1 to D4. The Trial Court
after assessing the oral and documentary evidence of the
parties, answered issue Nos.1 to 3 in the affirmative and
issue No.4 as per the final order. The suit of the plaintiff
was decreed and the defendant, his agents, men, servants
or anybody claiming under him were restrained from
interfering with the peaceful possession and enjoyment of
the suit schedule property by way of permanent
injunction.
7. Being aggrieved by the judgment and decree
passed in O.S.No.201/2001, defendant preferred an
appeal in RA No.105/2006 on the file of Senior Civil Judge
and JMFC, Nagamangala.
8. The First Appellate Court, after hearing the
parties, framed the following points for consideration:
1) Whether the defendant deserves to adduce
additional evidence as sought through
I.A.No.II?
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2) Is the plaintiff established his possession
over the suit land as on the date of suit?
3) Whether the Trial Court has committed an
error in decreeing the suit of the plaintiff
with affirmative finding on above material
issues, in not properly appreciating oral and
documentary evidence of parties in a
proper prospective and whether the
judgment and decree under this appeal call
for interference of this Court?
4) What order or decree?
9. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1 and
3 in the negative, point No.2 in the affirmative and point
No.4 as per the final order and dismissed the appeal of the
defendant, confirming the judgment and decree passed by
the trial Court in O.S.No.201/2001. Aggrieved by the said
judgment, the defendant preferred an appeal before this
Court in RSA No.2131/2007 which came to be allowed and
the matter was remitted back to the First Appellate Court
to dispose of the same afresh by permitting the defendant
to produce the documents. Accordingly, the matter was
remitted back to the First Appellate Court and defendant
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was further examined and he got marked Ex.D5 to
Ex.D12.
10. The First Appellate Court, after hearing the
parties, framed the following points for consideration:
1) Whether the plaintiff proves that he is in
lawful possession and enjoyment of the
suit schedule property as on the date of
the suit?
2) Whether the plaintiff proves interference
by the defendants in the peaceful
possession and enjoyment of the plaintiff
over the suit schedule property?
3) Whether the judgment and decree passed
by this lower Court is perverse and
erroneous and calls for interference by
this Court?
4) What order or relief?
11. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1 and
2 in the negative, point No.3 - yes, calls for interference
and point No.4 as per the final order and allowed the
appeal of the defendant, and set aside the judgment of the
trial Court, consequently dismissed the suit of the plaintiff.
Being aggrieved by the judgment and decree passed by
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the First Appellate Court in RA No.105/2006, plaintiff filed
this appeal.
12. Heard learned counsel for the plaintiff and
learned counsel for the defendant.
13. Learned counsel for the plaintiff submits that
the suit schedule property is the ancestral property of the
plaintiff and there was an oral partition effected in the
family of the plaintiff and in the said partition, the suit
property was fallen to the share of the plaintiff and said
oral partition was reduced into writing and said document
is styled as 'panchayat palupatti'. On the basis of the said
'panchayat palupatti', the name of the plaintiff was
entered in the revenue records. Hence, he submits that
there is a presumption in regard to the entries under
Section 133 of the Karnataka Land Revenue Act, 1964. He
also submits that the First Appellate Court has committed
an error in passing the impugned judgment solely on the
ground that said panchayat palupatti is an unregistered
document and plaintiff has not produced any source of title
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under panchayat palupatti and further, recorded a finding
that as on the date of filing of the suit, name of the
plaintiff is not reflected in the revenue records. Hence, he
submits that the plaintiff has produced records to show
that plaintiff is in possession of the suit schedule property
at the time of filing the suit. He submits that the First
Appellate Court has recorded a finding that though the
name of the plaintiff is appearing for the year 1994-95,
but as on the date of filing of the suit, the name of the
defendant was reflected in the revenue records. He
submits that the First Appellate Court could have drawn
presumption forward as well as backward. Hence, the
First Appellate Court has committed an error in recording a
finding that the plaintiff is not in possession of the suit
schedule property and further, he also submits that when
the suit is one for bare injunction, the First Appellate Court
could not have recorded a finding on the title in a suit for
perpetual injunction. Hence, on these grounds he sought
to allow the appeal.
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14. Per contra, learned counsel for the defendant
submits that the boundaries of the suit schedule property
shown in the plaint is incorrect and submits that there is a
dispute with regard to the identity of the property. He
submits that as on the date of filing of the suit, name of
the defendant was reflected in the revenue records in
regard to the entries in the Record of Right. The First
Appellate Court has rightly held that the plaintiff is not in
possession of the suit schedule property and he also
submits that the defendant is in unauthorised occupation
and he has applied for grant of regularisation of
unauthorized occupation and said application is still
pending for consideration. Hence, he submits that the
First Appellate Court was justified in passing the impugned
judgment. The impugned judgment passed by the First
Appellate Court is just and proper and does not call for any
interference. Hence, on these grounds sought for
dismissal of the appeal.
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15. This court admitted the appeal on 24.07.2015,
to consider the following substantial questions of law :
1. Whether the finding of the lower Appellate
Court as to the validity/admissibility of
Ex.P.2 - memorandum of partition/palupatti
for want of registration is just and proper?
2. Whether the lower Appellate Court erred in
not appreciating that the suit being one for
permanent injunction only, the requirement
as to the sufficiency of establishing title is
not dependant upon the full proof of the title
and is only incidental, as no declaration of
title is sought in the suit?
16. Perused the records and considered the
submissions of learned counsel for the parties.
17. Substantial questions of law No.1 and 2:
As these questions are interlinked with each other, to
avoid repetition of facts, they are taken for common
discussion. It is the case of the plaintiff that the suit
schedule property is an ancestral property of the plaintiff
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and the oral partition was affected in the family of the
plaintiff and the same was reduced into writing as per the
document styled as 'panchayat palupatti' on 24.04.1995.
On the basis of the panchayat palupatti, the name of the
plaintiff was entered in the revenue records. Plaintiff is in
possession and cultivating the suit schedule property. In
order to establish his possession over the suit schedule
property, plaintiff examined himself as P.W.1 and has
reiterated the plaint averments in the examination-in-chief
and produced documents. Ex.P.1 is panchayat palupatti,
which discloses that about 10 to 12 years back, partition
was effected in the family of the plaintiff and in the said
partition, the suit schedule property was fallen to the
share of the plaintiff. Ex.P.2 is the mutation copy which
discloses that on the basis of Ex.P.1 the revenue
authorities mutated the name of plaintiff in the revenue
records in respect of suit schedule property. Ex.P.3 is the
RTC extract for the year 1998-99 in respect of land
bearing Sy.No.44/N which discloses the name of the
plaintiff in Column Nos.9 and 12. Ex.P.4 is the land
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revenue receipt which does not disclose the survey
number for which land revenue was paid. Ex.P.5 is the
patta book issued in the name of plaintiff in respect of
Sy.No.44/N and also other lands owned by Sri.N.Krishna
i.e., plaintiff. In the cross examination, except denying
that the plaintiff is not in possession of the suit schedule
property, nothing has been elicited from the mouth of the
witness.
18. The plaintiff in order to prove his possession
over the suit schedule property, also examined two
witnesses as PW.2 and PW.3, who have deposed that the
plaintiff is in possession of the suit schedule property and
defendant tried to interfere with the peaceful possession
and enjoyment of the suit schedule property. In the
cross-examination, except denying that the plaintiff is not
in possession of the suit property, nothing has been
elicited from the mouth of these witnesses.
19. The defendant examined himself as DW.1 and
has reiterated the written statement averments in the
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examination-in-chief and has deposed that the plaintiff is
not in possession and enjoyment of the suit schedule
property. He also denied that the plaintiff had not
acquired any title under the panchayat palupatti. It is
contended that on the date of filing of the suit, the said
property was in the name of defendant as per the revenue
records and further, in order to prove his defence, the
defendant has produced documents. Ex.D1 is the copy of
RTC extract which discloses that the defendant is in
possession of the suit schedule property. Further,
defendant has also produced the report marked at Ex.D.3
which discloses that during the pendency of the suit, the
defendant submitted an application to survey the land and
on the application submitted by the defendant, the
surveyor issued notice to the plaintiff as well as defendant.
The surveyor surveyed the land and issued an
endorsement and the said endorsement is marked as
Ex.D4.
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20. In the cross examination, D.W.1 has clearly
admitted that the defendant is in possession of 46 guntas
of land in Sy.No.44, unauthorizedly and submitted an
application for regularization and the said application is
still pending. It is elicited that he will not interfere into the
possession of the plaintiff over the suit schedule property.
The said admission itself is sufficient to hold that the
plaintiff is in possession of the suit schedule property.
Further, defendant also examined one witness Ningegowda
as D.W.2 and he has also deposed in the same manner of
D.W.1.
21. From the perusal of the evidence placed on
record, the plaintiff is claiming that the suit schedule
property is the ancestral property and there was an oral
partition in the family of the plaintiff and subsequently, the
oral partition was reduced into writing as "panchayat
palupatti". On the basis of said panchayat palupatti, the
name of plaintiff was entered in the revenue records in
Column Nos.9 and 12. The name of plaintiff continued
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from 1982-83 to 1986-87 and further, Ex.P.3 is the RTC
extract which reveals that the plaintiff is in possession and
occupation of the suit schedule property in the year 1998-
99. The defendant has produced the revenue record i.e.,
Ex.D.2 which reveals that from 1999-2000, 2000-01,
2001-02, name of the defendant is reflected in the
revenue records. The plaintiff has produced the revenue
record that is marked as Ex.P.3 which discloses that the
name of the plaintiff is reflected in the revenue records in
Column Nos.9 and 12. There is presumption having
regard to the possession of the suit schedule property
under Section 133 of Karnataka Land Revenue Act, 1964.
The presemption has toe drawn both forward and
backward. The said view is supported by the judgment of
the Hon'ble Apex Court in the case of GURUNATH MANOHAR
PAVASKAR AND OTHERS VS. NAGESH SIDDAPPA AND OTHERS
reported in AIR 2008 SC 901 held that "the revenue
records is not a document of title. It merely raises the
presumption in regard to the possession. Presumption of
possession and/or continuity there of both forward and
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backward can also be raised under Section 110 of Indian
Evidence Act. The Courts below, were, therefore, required
to appreciate the evidence keeping in view the correct
legal principles in mind".
22. In the instant case, though the name of the
defendant is entered in the revenue records, the said
revenue records have not been supported by any mutation
entries. Further, the claim of the plaintiff is based on
panchayat palupatti and admittedly, there was a partition
by metes and bounds of the landed properties owned by
the plaintiffs.
23. From the perusal of panchayat palupatti, it
discloses that the same does not effect the partition, but
merely records the nature of arrangement arrived at as
regards to the division of the property. Further the
Hon'ble Apex Court in the case of ROSHAN SINGH & ORS.
VS. ZILE SINGH & ORS., reported in AIR 1988 SC 881,
has held as under:
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"In the present case, admittedly, there was a
partition by metes and bounds of the agricultural
lands effected in the year 1955 and the shares
allotted to the two branches were separately
mutated in the revenue records. There was thus a
disruption of joint status. All that remained was
the partition of the ancestral residential house
called rihaishi, the smaller house called baithak
and ghers/ghetwars. The document Ex.P12 does
not effect a partition but merely records the
nature of the arrangement arrived at as regards
the division of the remaining property. A mere
agreement to divide does not require registration.
But if the writing itself effects a division, it must
be registered. It is well-settled that the document
though unregistered can however be looked into
for the limited purpose of establishing a severance
in status, though that severance would ultimately
affect the nature of the possession held by the
members of the separated family as co-tenants.
The document Ex.P12 can be used for the limited
and collateral purpose of showing that the
subsequent division of the properties allotted was
in pursuance of the original intention to divide. In
any view, the document Ex.P12 was a mere list of
properties allotted to the shares of the parties."
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24. Admittedly, in the instant case, plaintiff has
produced panchayat palupatti marked as Ex.P1 which
discloses that there was prior partition in the family of the
plaintiff and subsequently it was reduced into writing. The
said palupatti does not require registration. The First
Appellate Court without considering the said aspect, has
failed to consider Ex.P1 panchayat palupatti and recorded
a finding that it is unregistered document and reliance
cannot be placed on the said document. The findings
recorded by the First Appellate Court is contrary to the law
laid down by the Hon'ble Apex Court in the case of
ROSHAN SINGH (SUPRA) and further the suit is for bare
injunction and the First Appellate Court has discussed
about the title which was unwarranted. In a suit for bare
injunction the court is required to see whether the plaintiff
establishes his possession as on the date of filing the suit
and also interference by the defendants. The First
Appellate Court exceeded the jurisdiction and proceeded to
pass the impugned judgment. In view of the above
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discussion, I answer substantial question of law No.1 in
negative and No.2 in affirmative.
25. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is allowed.
The judgment and decree dated
25.08.2012, passed in R.A.No.105/2006 by the
Senior Civil Judge & JMFC, Nagamangala is set
aside. Consequently, the judgment and decree
passed by the trial Court is restored.
In view of disposal of the appeal, pending
I.As., if any, do not survive for consideration
and are accordingly disposed of.
No order as to the costs.
SD/-
JUDGE
KAV/RD
