Karnataka High Court
Vithal S/O Ravutappa Holer vs Sri. Ravutappa S/O Shankreppa Holer And ... on 29 May, 2024
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RSA No. 7029 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 7029 OF 2013 (PAR)
BETWEEN:
VITHAL S/O RAVUTAPPA HOLER,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
...APPELLANT
(BY SRI RAVINDRA REDDY, ADVOCATE)
AND:
1. SRI RAVUTAPPA,
S/O SHANKREPPA HOLER,
AGED ABOUT 48 YEARS,
Digitally signed OCC: AGRI.,
by KHAJAAMEEN
L MALAGHAN R/O HANCHINAL (PM),
Location: HIGH TQ & DIST. BIJAPUR-586 101.
COURT OF
KARNATAKA
2. SRI MALLAPPA,
S/O SHANREPPA HOLER,
AGED ABOUT 51 YEARS,
OCC: AGRI.,
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
3. SRI ANANDAPPA,
S/O SHANKREPPA HOLER,
AGED ABOUT 43 YEARS,
OCC: AGRI.,
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RSA No. 7029 of 2013
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
4. SRI SHANKREPPA
S/O RAUTAPPA HOLER,
AGED ABOUT 68 YEARS,
OCC: AGRI.,
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
5. SRI SANGAPPA,
S/O RAVUTAPPA HOLER,
AGED ABOUT 58 YEARS,
OCC: AGRI.,
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
6. BHIMAVVA,
W/O SHIVAPPA HOLER,
AGED ABOUT 55 YEARS,
OCC: AGRI.,
R/O HANCHINAL (PM),
TQ & DIST. BIJAPUR-586 101.
...RESPONDENTS
(BY SRI UMESH V MAMADAPUR, ADVOCATE FOR R1 TO R4;
R5 & R6 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 20.07.2012 PASSED IN R.A
NO. 162/2006 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AT BIJAPUR. WHEREIN, THE APPEAL WAS DISMISSED &
THE JUDGMENT AND DECREE DATED 16.06.2006 PASSED IN
O.S NO. 558/2000 ON THE FILE OF THE III ADDL. CIVIL JUDGE
(JR.DN.) AT BIJAPUR WAS CONFIRMED.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
04.04.2024 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT BENGALURU
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7029 of 2013
JUDGMENT
This second appeal is directed against the judgment
of the First Appellate Court in R.A.No.162/2006 dated
20.07.2012 by learned II Additional Senior Civil Judge,
Bijapur, whereby, the dismissal of the suit for partition in
O.S.No.558/2000 dated 16.06.2006 by the learned III
Additional Civil Judge (Jr.Dn.), Bijapur came to be
confirmed.
2. The parties would be referred to as per their
rank before the trial Court for the sake of convenience.
3. The factual matrix that is germane for the
disposal of this second appeal is as below:
The appellant/plaintiff herein filed O.S.No.558/2000
for relief of partition and separate possession of his 1/4th
share in the suit schedule property which is the
R.S.No.47/1A totally measuring 2 acres 16 guntas. It was
contended that the suit schedule property is the ancestral
property of the plaintiff and defendants; originally it was
cultivated by the father of the plaintiff by name
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Ravutappa. After the death of father of the plaintiff, the
plaintiff and the defendants are jointly cultivating the suit
schedule property and the defendant No.4 without the
knowledge and consent of the plaintiff, by including
another portion of the said survey number in the suit
schedule property i.e., Sy.No.47/1, got divided the same
by way of partition among the defendant Nos.1 to 3, who
are his children. It was contended that the suit schedule
property had come to the joint family of the plaintiff and
defendants from one Daya Sangappa Holer. Therefore, the
suit schedule property is liable for partition among the
plaintiff, the defendant Nos.4 to 6 equally.
4. On appearance, defendant No.1 who is son of
defendant No.4 filed the written statement contending that
the suit schedule property is not the ancestral property of
the joint family. He admitted the relationship between the
parties and contended that the land in Sy.No.47/1 of
Hanchinal Village was measuring 02 acres 16 guntas and
was belonging to one Devappa Holer. After his death, his
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legal heirs were brought on record and one Basappa, as
Manager of the joint family had relinquished the right, title
and interest in the suit schedule property in favour of
defendant No.4 and it was recorded in mutation entry
No.825 in the year 1987. Thereafter, the defendant No.4
cultivated the land peacefully and the plaintiff and
defendant Nos.5 and 6 are no way concerned to the suit
land. Later, the defendant No.4 partitioned the property
and the defendant Nos.1 to 3 have acquired shares and
the Sy.No.47/1 was sub-divided in Sy.No.47/1A, 47/1B,
47/1C as per ME No.1082 in the year 1998. Therefore,
they have sought for dismissal of the suit.
5. On the basis of the above pleadings, the trial
framed the following issues:
"1. Whether the plaintiff proves that suit properties are
Hindu undivided joint Hindu family properties of
plaintiff and defendants?
2. Whether the defendants 1 to 4 prove that, originally
suit land belonged to one Devappa and after his
death one Basappa was the manager of the family
who relinquished the right of suit land to defendant-
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4, as a result of which defendant-4 is in possession
and enjoyment of the suit land?
3. Whether this court ha pecuniary jurisdiction to try
the suit?
4. Whether the plaintiff is entitled to any share in the
suit properties? If so to what extent?
5. What order/decree?"
6. The plaintiff was examined as PW.1 and two
supporting witnesses were examined as PWs.2 and 3.
Exs.P1 to P5 were marked in evidence. The defendant
No.1 was examined as DW.1 and defendant No.4 was
examined as DW.2. Exs.D1 to 5 were marked in evidence.
After hearing both sides, the trial Court answered the
issue Nos.1 and 4 in the negative and issue Nos.2 and 3 in
the affirmative and dismissed the suit holding that the suit
schedule property is not the ancestral property, which is
amenable for partition and it is the self acquired property
of the defendant No.4.
7. Being aggrieved by the said judgment, the
plaintiff approached the First Appellate Court in
R.A.No.162/2006. During the pendency of the appeal, the
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plaintiff filed two applications under Order XLI Rule 27 of
CPC. By virtue of these applications, the plaintiff sought to
produce the copy of the sale deed under which the father
of the plaintiff had purchased 01 acre 09 guntas out of 02
acres 16 guntas in Sy.No.47/1 in the year 1940. He also
sought to produce an order passed by the Tahsildar,
Bijapur dated 22.06.1982.
8. The First Appellate Court heard the arguments
by learned counsel appearing for the appellant and the
respondents and no specific order was passed regarding
the two IAs under which the additional evidence was
sought to be led. However, in the body of the judgment,
the First Appellate Court has considered the documents
which were produced before it by the appellant. The First
Appellate Court framed following points for consideration:
"1) Whether the plaintiff proves that suit schedule
properties are ancestral property inherited by both
plaintiff and defendants?
2) Whether plaintiff proves that they are in joint
possession of suit property along with defendants?
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3) Whether defendants prove that Sy.No.47 measuring
2 acres 16Gs originally belongs to Devappa and he
relinquished his rights though ME 825?
4) Whether appellant proves that interference is
necessary?
5) To what order or relief?"
9. By answering the point Nos.1, 2 and 4 in the
negative, point No.3 in the affirmative, the appeal came to
be dismissed.
10. Being aggrieved by the same, the plaintiff has
approached this Court in second appeal contending that
the judgment and decree passed by the trial Court is
contrary to law and facts of the case and they have failed
to appreciate the oral and documentary evidence on
record. It was contended that the findings of trial Court in
issue Nos.1 and 2 and the First Appellate Court on the
same are contrary to the oral and documentary evidence.
It is contended that the First appellate Court had allowed
the documents to be produced and out of these
documents, one is a registered sale deed, which pertains
to the year 1940 and it is a 30 years old document and it
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clearly show that the suit property was purchased by the
original propositus-Ravutappa and therefore, after his
death, the property measuring 01 acre 09 guntas in
Sy.No.47/1 has to go to his children and accordingly, the
plaintiff should have been given share to the extent of
1/4th in the same. It was further contended that the Courts
below have failed to consider the sale deed dated
24.05.1940 and the order of the Tahsildar dated
22.06.1982 and therefore, there is a need for interference
in the findings of the trial Court and First Appellate Court.
11. At the time of admission, this Court framed the
following substantial question of law:
"Whether the First Appellant Court is justified in
not considering the sale deed dated 24.05.1940 which is
produced as additional evidence under Order 41 Rule 27
of the Code of Civil Procedure and that has resulted in
perversity of findings of the First Appellate Court?."
12. The trial Court as well as the First Appellate
Court records have been secured and the arguments by
learned counsel appearing for both the sides were heard.
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13. As may be found from the pleadings of the
plaintiff, the plaintiff is brother of the defendant Nos.4, 5
and 6. The defendant Nos.1 to 3 are the sons of defendant
No.4. It is his case in the pleadings that the property was
belonging to one Daya Sangappa Holer and he had sold 01
acre 09 guntas to the father of the plaintiff-Ravutappa.
The said Ravutappa was owner to the extent of 01 acre 09
guntas and Daya Sangappa Holer was left with 01 acre 07
guntas of land. It was alleged that the defendant No.4 by
including the land which was left with Daya Sangappa
Holer to the extent of 01 acre 07 guntas, effected a
mutation entry in his name stating that Daya Sangappa
Holer had relinquished the entire rights in the suit
schedule property in favour of defendant No.4 and got his
name entered in respect of 02 acres 16 guntas of land in
Sy.No.47/1. Therefore, suit schedule property is the joint
family property and it cannot be termed as the self
acquired property of defendant No.4 and as such, it could
not have been partitioned among defendant Nos.1 to 4
only. In this connection, the plaintiff relied upon the
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mutation entries and the record of rights before the trial
Court.
contended that the suit schedule property was belonging
to Daya Sangappa Holer and it devolved upon his legal
heirs and his son Basappa Daya Holer was the manager of
the family and he had relinquished his right, title and
interest in the suit schedule property in favour of the
defendant No.4 and it had been entered in the record of
rights as per mutation entry No.825 dated 10.05.1987. It
was further contended that defendant No.4 cultivated the
lands individually and there was partition among the
plaintiff and defendant Nos.4, 5 and 6 long back.
Therefore, it was contended that there was no such joint
family consisting of the plaintiff and the defendants and as
such, the claim of the plaintiff cannot be accepted. In
other words, defendant Nos.1 to 4 have indirectly denied
that there was a sale deed by Daya Sangappa Holer in
favour of Ravutappa in the year 1940.
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15. The trial Court while considering issue Nos.1
and 2, after going through the oral and documentary
evidence, came to the conclusion that the property was
not held by Ravutappa Holer as contended by the plaintiff
and it is not the joint ancestral property of the plaintiff and
defendants. It also held that the witnesses have stated
that partition had already taken place and it clearly goes
to show that the case of the plaintiff is in doubt and
records submitted by the defendants make their case
more probable. It also came to the conclusion that the
mutation entries show that defendant No.4 and his
predecessor have joined the land purchased by Ravutappa
under the sale deed and made the land Sy.No.47/1 as a
compact block comprising of 02 acre 16 guntas. It was
observed that the plaintiff could have challenged the same
under the provisions of Karnataka Land Revenue Act and
therefore, it held that the plaintiff has failed to prove that
the suit property is a joint Hindu family property. Hence,
the suit came to be dismissed.
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16. The First Appellate Court in the impugned
judgment, has considered the oral and documentary
evidence placed before it. The applications filed under
Order XLI Rule 27 of CPC were also considered by it in
para No.9 of the judgment. The certified copy of the sale
deed executed by Daya Sangappa Holer in favour of
Ravutappa in respect of 01 acre 09 guntas was also
considered by the First Appellate Court. It also considers,
the order passed by the Tahsildar, which was produced
with another application under Order XLI Rule 27 of CPC
by the appellant in para 18 of the judgment. Both these
applications were considered and though there is no
specific order allowing these applications, the documents
which were produced by the appellant were considered in
detail and thereby, it had impliedly allowed the
applications filed by the appellant.
17. Now the question that has arisen is whether the
additional evidence produced by the appellant under Order
XLI Rule 27 of CPC could have resulted in holding that the
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suit schedule property is joint family property and
therefore, it is amenable for partition.
18. The documents made available by the plaintiff
and the defendants are nothing but the record of rights
and the mutation entries. A chronological observation of
these mutation entries would indicate the following
aspects:
a) The mutation entry No.115 dated 18.08.1940
shows that 01 acre 09 guntas was sold by Daya Sangappa
Holer in favour of Ravutappa and 01 acre 07 guntas
remained with the said Daya Sangappa Holer. The plaintiff
has produced the certified copy of the sale deed under
Order XLI Rule 27 of CPC before the First Appellate Court
and it has considered the same. There cannot be any
doubt about the said sale in the year 1940.
b) The mutation entry No.189 (which may be
found in Ex.D1) would show that the name of the
Ravutappa was shown as a protected tenant (Sarkari
Kula). In fact, the name of Ravutappa should have been
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shown as a purchaser and holder of the property. Instead,
his name was shown in the other rights column as a
protected tenant. It is pertinent to note that despite there
was a registered sale deed in favour of Ravutappa, it was
not reflected in the record of rights as a title holder and
owner. He was only recognized as a protected tenant, in
the other rights column of the record of rights.
c) Mutation Entry No.241 dated 12.11.1951 (that
may be found in Ex.P1 as well as in Ex.D1) would show
that Sy.No.47/1 was kept as it is in the name of Daya
Sangappa Holer totally measuring 02 acres 16 guntas and
even after consolidation of the piece lands.
d) Mutation Entry No.562 dated 29.05.1967
(produced in Ex.P1 as well as Ex.D1) shows that that the
name of the Government was entered as per the Watan
Abolition Act (The Karnataka Village Offices Abolition Act,
1961). It was for the entire survey number bearing 47/1.
e) Mutation Entry No.567 dated 30.08.1967 (as
may be found in Ex.D1) would show that the said Daya
Sangappa Holer had died about 18 years back and
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therefore, the name of his legal heirs were brought on
record and the name of Basappa was entered as manager
of the family.
f) Mutation Entry No.619 dated 20.08.1972 which
is part of Ex.P1, would show that the revision of the land
revenue was made.
g) Mutation Entry No.670 dated 23.06.1977 (as
may be found in Ex.D1) would show that the re-grant was
ordered in the name of Daya Sangappa Holer. It is
pertinent to note that even though there was a sale deed
in favour of Ravutappa, the re-grant was not made in the
name of Ravutappa but it was in the name of Daya
Sangappa Holer/Devappa Holer.
h) Mutation Entry No.825 dated 10.05.1987 which
is part of Ex.D1 would show that Basappa Dayappa Holer
had relinquished his right, title and interest in Sy.No.47/1
in favour of defendant No.4/Shankreppa. It is evident that
the mutation entry does not state anything as to whether
any registered relinquishment deed was executed by the
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said Basappa. Thus, it is evident that it was only a
relinquishment through mutation entry.
i) Mutation Entry No.1082 dated 01.05.1998
which is part of Ex.P2 would show that the Sy.No.47/1 was
divided into three portions by virtue of a partition among
defendant No.4 and his sons. Defendants Nos.1 to 3 were
given 31 guntas, 34 guntas and 31 guntas, respectively.
19. The order of the Tahsildar dated 22.06.1982
which is produced under Order XLI Rule 27 of CPC before
the First Appellate Court would show that after a detailed
discussion, the Tahsildar came to the conclusion that
Shankrappa i.e., defendant No.4 should vacate the land in
question and handover the same to the original holder
Basappa Devappa Holer, Hanchinal Village. This order was
passed by the Tahsildar based on the fact that the lands
could not have been alienated by anyone in any manner.
The Tahsildar observes that it was a Walikarki Service
Inam Land and the said land has been re-granted in
favour of Devappa by the Assistant Commissioner, Bijapur
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by order dated 22.06.1977 and it was not at all converted
into ordinary tenure and the holder has authority to
alienate the land in question by virtue of the amending Act
i.e., Act of 13/78 and the provision relating to the
regularization of the Service Inam Land was observed in
the order as below:
"I have perused the records heared the partied
and found that the Sy. No. 47/1 of Hanchinal PM. Village
is walikarki service Inam land. The said land has been
regarnted in favour of sr. Devappa sangappa Holer of
hanchinal P.M. by the assistant commissioner Bijapur
under his order No. LRL N. 189 dated 22.6.1977.
And it has not been converted into ordinary
Tenure and more over the holder has authority to
alienate the land in question under the provisions of the
new amendemtent Act (i.e.. Act of 13/78.) thus
respondent No.2 had become the unauthorised accupant
of the said land further the provision relating to
regularisation of service Inam land in favour of un
authorised accupants had been deleted consequent
upon he amendment to the Act vide Karnataka Act No.
13/78 and therefore there is no scope to regularise the
un-authorised occupation of service Inam land referred
to above, in favour of the respondent.
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Section 7(1) of the Amendment Act contemplates
that "where any land resumed under clause (3) of
section who is in possession of unauthorised holder such
unauthorised holder shall be taken possession by the
Deputy commissioner in accordance with law"
It is clear from the above facts that the
respondent has contravened he provisions of section
7(i) of K.V.O.A. Act 1961 (as amended by Act No.
13/78) and thereby he is liable for eviction under the
provision of section 7(i) of the said act.
I therefore in accordance with the powers vested
in me under section 7(i) of the said Act read with
Notification No. R.D 413MVS 79 dt. 29.8.1979 hold the
occupation of the respondent as un-authorised."
20. It is pertinent to note that the question is
whether the sale deed of the year 1940 in respect of 01
acre 09 guntas could have avoided the order passed by
the Tahsildar. In other words, whether the sale deed
would be valid, even after it was found that the land in
question was an Inam land and the re-grant was ordered
in the year 1977. This question is no more res-integra. A
Division Bench of this Court in the case of Lakshmana
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Gowda and others Vs. State of Karnataka1 and also
1981(1) Kar.L.J. Page 1 has given a quietus to the
question involved. This Court has held that the alienee of
the Service Inam Land from its holder or authorized holder
did not acquire any title to such land if the alienation had
taken place prior to coming into force of the Karnataka
Village Offices Abolition Act and he did not also acquire
any title to such land subsequently by his alienor obtaining
its re-grant under Sections 5 or 6 as the case may be of
the Karnataka Village Offices Abolition Act, 1961. The
observation of this Court, which is elaborate, specific and
crystal clear. In para 50, this Court formulated the
following questions:
"50. We shall now set out the questions that arise for
determination in these appeals:
(i) Did an alienee of a Service Inam Land from its holder or
the authorised holder, acquire any title to or interest in,
such land, if the alienation had taken place prior to the
coming into force of the Principal Act? If not, did he
acquire such title or interest subsequently by his alienor
obtaining its re-grant under Section 5 or 6, as the case
may be, of the Principal Act?
(1980) ILR (Kar) 892
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(ii) Did an alienee of a Service Inam Land from its holder
or the authorised holder, acquire title to such land, if
the alienation had taken place between the date of the
coming into force of the Principal Act and the date of the
regrant, after its re-grant to its holder or the authorised
holder under Section 5 or 6, as the case may be, of the
Principal Act?
(iii) Did an intending alienee of a Service Inam Land from
its holder or the authorised holder, who was put in
possession of that land pursuant to an agreement to
purchase obtained from the latter prior to the coming
into force of the Principal Act, get a right to continue in
possession of that land after the Principal Act came into
force--
21. Evidently, the case on hand falls within the
point No.1 framed by the Court in the case of Lakshmana
Gowda (referred supra). The alienation had taken place in
the year 1940 as per the sale deed to the extent of 01
acre 09 guntas but that was not recognized and the
revenue entries show that the name of Ravutappa was
entered as a protected tenant. Answering the question
No.1 framed above, this Court has held in para No.56 as
below:
"56. Hence, our answer to the question is that the
alienee of a Service Inam Land from its holder or the
authorised holder, did not acquire any title to, or
interest in, such land, if the alienation had taken place
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prior to the coming into force of the Principal Act and
that he also did not acquire such title or interest
subsequently by the alienor obtaining its re-grant under
Section 5 or 6, as the case may be, of the Principal Act."
22. In that view of the matter, the sale deed
claimed by the plaintiff to be of pivotal importance to lay
his claim in respect of the suit schedule property was in
fact a non-est in view of the position of law held as above.
Daya Sangappa Holer had no right to alienate the same in
favour of Ravutappa by virtue of a sale deed. Therefore,
the said sale deed was not recognized in the eye of law
and the name of Ravutappa was not entered as owner of
the property. In that view of the matter, the sale deed
24.05.1940 which is produced as additional evidence
under Order XLI Rule 27 of CPC is not of any help to the
plaintiff/appellant; and has no bearing on the outcome of
the suit.
23. It is pertinent to note that the mutation entry
No.825 which purportedly holds that there was
relinquishment of rights by Basappa in favour of the
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defendant No.4 also do not find favour by the First
Appellate Court. The First Appellate Court has noticed this
fact but it was not having any bearing on the result of the
suit. It is evident that Basappa had allegedly relinquished
the rights in favour of Shankreppa i.e., defendant No.4. In
umpteen number of decisions, this Court as well as the
Apex Court have held that the relinquishment of rights in
an immovable property has to be by virtue of any
recognized mode of conveyance. In the absence of any
registered deed which would convey the right, title and
interest in the immovable property to the defendant No.4,
a mutation transfer is not permissible in law. Such
transfers cannot be recognized in the eye of law.
Therefore, the mutation entry No.825 dated 10.05.1987 is
also of no help either to the plaintiff or to defendant Nos.1
to 4.
24. The trial Court as well as the First Appellate
Court have come to the conclusion that the suit schedule
property i.e., Sy.No.47/1 cannot be held to be the joint
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family property and much earlier, there was a partition.
The said aspect being a question of fact, cannot be raised
again before this Court. This Court also does not find any
merit in the submission made by the learned counsel
appearing for the appellant in this regard.
25. In the light of the above discussion, the
substantial question of law framed by this Court is
answered in the affirmative. In the result, the appeal is
liable to be dismissed. Hence, the following:
ORDER
The appeal is dismissed.
The judgments of the trial Court in O.S.No.558/2000
dated 16.06.2006 and the first appellate Court in
R.A.No.162/2006 dated 20.07.2012 are hereby confirmed.
No order as to costs.
Sd/-
JUDGE
NR/-
