Karnataka High Court

Basappa vs Suhilendra Panduranga Deshpande on 11 November, 2024

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                                                              NC: 2024:KHC-D:16481
                                                             RSA No. 2632 of 2006




                                 IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                            DATED THIS THE 11TH DAY OF NOVEMBER, 2024

                                                 BEFORE

                             THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                           REGULAR SECOND APPEAL NO. 2632 OF 2006 (SP)

                      BETWEEN:

                      1.    BASAPPA S/O HUCHACHAPPA GOLAGOLKI,
                            AGED ABOUT 48 YEARS, AGRICULTURIST,
                            R/O: SHIRUR, TALUK BAGALKOT-587 101.

                      2.    MALLAPPA S/O HUCHACHAPPA GOLAGOLKI,
                            AGED ABOUT 45 YEARS, AGRICULTURIST,
                            R/O: SHIRUR, TQ: BAGALKOT-587 101.
                                                                         ... APPELLANTS
                      (BY SRI. SACHCHIDANAND B.PATIL, ADVOCATE)

                      AND:

                           SUHILENDRA PANDURANGA DESHPANDE,
                           AGED ABOUT 56 YEARS, AGRICULTURIST AND SERVICE,
         Digitally
         signed by
                           R/O: KAMATAGI, TQ: HUNGUND-587 101.
VISHAL
         VISHAL
         NINGAPPA
NINGAPPA PATTIHAL
                                                                    ... RESPONDENT
PATTIHAL Date:
         2024.11.27
         10:34:51
                      (BY SMT. RANJITA G.ALAGWADI
         +0530
                            FOR SRI. S B HEBBALLI, ADVOCATE)

                            THIS RSA FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND
                      DECREE DATED 9.8.2006 PASSED IN RA. NO. 38/2006 ON THE FILE
                      OF THE I-ADDL.CIVIL JUDGE (SR.DN.), BAGALKOT, DISMISSING THE
                      APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:
                      38.2.2006 PASSED IN O.S. NO.100/1998 ON THE FILE OF THE
                      PRL.CIVIL JUDGE (JR. DN.) BAGALKOT.

                           THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:

                      CORAM:     THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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                                            NC: 2024:KHC-D:16481
                                            RSA No. 2632 of 2006




                      ORAL JUDGMENT

1. The defendants are before this Court in this

regular second appeal, assailing the judgment and decree

dated 09.08.2006, passed in R.A. No.38/2006 on the file of

the I-Addl. Civil Judge (Sr.Dn.), Bagalkot (for short "First

Appellate Court") confirming the judgment decree, dated

28.02.2006, passed in O.S. No.100/1998 on the file of the

Prl. Civil Judge (Jr.Dn.), Bagalkot (for short "trial Court"),

whereby, the suit of the plaintiff seeking relief of possession

was decreed.

2. For the sake of convenience, the parties herein

are referred to as per their rank before the trial Court.

3. Suit seeking to award possession of an

encroached area of 29 guntas of land in R.S. No.1178/2 of

Shirur, out of total extent 7 acre 33 guntas, which is shown

in red colour in P.T. Sheet annexed to the plaint. The case

of the plaintiff is that, the plaintiff is the owner of suit land

bearing R.S. No.1178/2 measuring 7Acre 33 guntas and the

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defendants are joint owners of land bearing R.S.

No.1178/1, on coming to know that defendants have

encroached the property of the plaintiff, the plaintiff

immediately applied for survey of the lands of both plaintiff

and defendants. The ADLR measured both lands on

20.11.1997 in the presence of plaintiff, defendants and

other adjoining owners and submitted P.T. Sheet showing

the extent of lands of plaintiff and defendants, observed

that a portion of 29 guntas is encroached by the

defendants.

4. On notice, the defendants appeared, defendant

No.2 filed written statement inter alia contending that:

(i) Originally Sy. No.1178 totally measuring 21 acres 12 guntas belonging to the ancestors of defendants and in the partition amongst two branches of defendants and one branch of predecessors-in-title of the plaintiff, an area of 14 acres 8 guntas has been allotted to the defendants predecessors pursuant to which defendants have been in exclusive possession of R.S. No.1178/1 measuring 14 acres 8 guntas,and the predecessors of

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the plaintiff were alloted 1/3rd area as R.S. No.1178/2 measuring 7 acres 4 guntas;

(ii) Defendants are owners in possession of R.S. No.1178/1 measuring 14 acres 8 guntas with boundaries and plaintiffs are owners of R.S No 1178/2 measuring 7Acres 4 guntas.

5. The trial Court based on the pleadings framed

necessary issues for its consideration, which reads as

under:

ISSUES:

"1. Whether the plaintiff proves that the defendants have encroached 29 guntas of land in R.S. No.1178/2?

2. Whether the P.T. Sheet submitted by the ADLR is binding on defendants?

3. Whether the defendants prove the existence of borewell and cattle shed on the boundary of R.S. No.1178/1 adjoining portion in possession of plaintiff?

4. Whether the plaintiff is entitled to possession of suit property?

5. What order or decree?

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ADDL. ISSUES:

1. Whether defendants prove that suit of the plaintiff is not maintainable without exhausting remedy under the Karnataka Land Revenue Act?

2. Whether defendants prove that there is no cause of action for this suit?

3. Whether defendants prove that Court fee paid by the plaintiff is not proper and correct and also this Court has no pecuniary jurisdiction to try this suit?"

6. The trial Court arrived at a conclusion that the

plaintiff has proved that the defendants have encroached

the land bearing R.S. No.1178/2 measuring 29 guntas. That

P.T. Sheet submitted by the ADLR is binding on the

defendants; by the judgment and decree, the trial Court

decreed the suit holding that the plaintiff is entitled to

recover possession of 29 guntas of land in R.S. No.1178/2

as shown in P.T. Sheet.

7. Aggrieved, the defendants preferred appeal

before the First Appellate Court. The First Appellate Court

affirmed the judgment and decree of the trial Court and

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arrived at a conclusion that the plaintiff is the owner of the

suit land bearing R.S. No.1178/2 measuring 7 acres 33

guntas and about encroachment made by the defendants to

the extent of 29 gutnas. Aggrieved, the defendants are

before this Court in this Regular Second Appeal.

8. This Court while admitting the appeal on

11.08.2010 framed the following substantial questions of

law:

"i) Whether the Courts below have committed an error in the manner of appreciation of the evidence, more particularly, the documents at Exs.P6 & P7 while deciding the extent of land that was conveyed under the said documents?

ii) In that regard whether both the Courts have committed perversity in the manner of appreciation of evidence?"

9. Learned counsel for the appellants and the

learned counsel for the respondent have been heard on the

substantial questions of law framed.

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10. Learned counsel for the appellants vehemently

contends, that the vendor of plaintiff had no saleable right

as Yamanappa, the brother of Mudiyappa was given 1/3rd

share i.e., 7 acres 4 guntas and the sale deed executed in

favour of Shivarudrappa Veerabhardrappa Sappannavar

(Ex.P6) dated 06.11.1940 to an extent of 7 acres 33 guntas

and in turn Shivarudrappa Veerabhardrappa Sappannavar

executing a sale deed in favour of grandfather of the

plaintiff is without there being a right to the extent of

7acres 33 guntas. Both the court have misdirected itself in

arriving at a conclusion that plaintiff is entitled for

possession, the findings of facts recorded by the courts

below are perverse. Learned counsel for the appellants

submits that the defendants having specifically denied the

title of the plaintiff, there was cloud over the plaintiffs' title

and simple suit for possession was not maintainable without

seeking declaration. In support of his contention, learned

counsel has placed reliance on the decision of the Apex

Court in the case of Anathula Sudhakar Vs. P.Buchi

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Reddy (Dead) by L.Rs. and others1 (for short

"Anathula Sudhakar").

11. Per contra, learned counsel for the respondents

vehemently contends that in the absence of any dispute

been raised by the defendants to Exs.P6 & P7, the

defendants for the first time before this Court cannot

contend that the vendor of the plaintiff had no saleable

right, further the concurrent findings of facts recorded by

the Courts below does not suffer from any perversity as

the conclusion arrived by the both the courts is based on

appreciation of evidence and in the second appeal the

evidence cannot be re-appreciated only because there is

another view possible, the findings of facts recorded does

not warrant any interference and substantial question of law

needs to be answered against the appellant.

12. This Court has carefully considered the rival

contentions urged by the learned counsel appearing for the

parties and perused the materials available on record.

(2008) 4 SCC 594

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13. The original propositus was one Rudrappa. On

his death, his two sons namely Yamanappa and Mudiyappa

partitioned the properties and Mudiyappa, the ancestors of

the defendants were given 2/3rd share i.e., 14 acres 8

guntsas and Yamanappa, the vendor of Shivarudrappa

Veerabhardrappa Sappannavar, who in turn is the vendor of

the plaintiff's grandfather was given 1/3rd share i.e., 7 acres

4 guntas. Accordingly, a mutation entry came to be

recorded in ME No.2670 which is evidenced from Ex.D2.

The mutation entry is recorded pursuant to the partition

effected between the two brothers namely Mudiyappa and

Yamanappa and showing the extent of land as 14 acres 8

guntas to Mudiyappa and 7 acres 4 guntas to Yamanappa.

Further, it appears in the year 1933-34, the extent of land

in the RTC came to be recorded as 13 acres 19 guntas

instead of 14 acres 8 guntas in respect of the predecessors

of defendants and 7 acres 33 guntas instead of 7 acres 4

guntas; the revenue entries to the said extent is not

evidenced by any document of title. It is also not in dispute

that, under Ex.D5, Yamanappa mortgages the land

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measuring 7 acres 4 guntas in favour of Shivarudrappa

Veerabhardrappa Sappannavar and on 06.11.1940

Yamanappa sells the disputed land measuring 29 guntas of

land including 7 acres 4 guntas totally measuring 7 acres 33

guntas to Shivarudrappa Veerabhardrappa Sappannavar

(Ex.P6) and Shivarudrappa Veerabhardrappa Sappannavar

in turn executes a registered sale deed in favor of the

plaintiff's grandfather on 13.05.1944. Based on which the

plaintiff is seeking possession from the defendants on the

ground that 29 guntas of land is encroached by the

defendants. Exs.P6 and P7 though indicates that there is a

sale deed executed in favor of the grandfather of the

plaintiff and the plaintiff's vendor to an extent of 7 acres 33

guntas, the fact remains that Yamanappa had right to an

extent 7Acres 4 guntas what he actually possessed under

the partition, when admittedly Yamanappa was given the

land to an extent of 7 acres 4 guntas. Mere entry in the

record of rights showing some extent of measurement does

not confer any right upon the Yamanappa to sell more than

what he actually possessed and the sale deed to an extent

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of 7acre 33 guntas in favor of Shivarudrappa

Veerabhardrappa Sappannavar is without any right of

yamanappa.

14. The doctrine of Nemo Dat Quod Non Habet,

principle that "no one can transfer a better title than they

themselves possess" applies here, the seller yamnappa

lacked ownership to sell 7 acres 33 guntas, therefore the

purchaser either the shivarudrappa or the plaintiffs father

acquire any valid title, a sale without a saleable interest is

void. Yamanappa's ownership to the extent of 7Acres33

guntas is under a revenue entry which does not confer any

title.

12. The Hon'ble Apex Court in the case of SURAJ

BHAN AND OTHERS Versus FINANCIAL

COMMISSIONER AND OTHERS2, has held that an entry in

revenue records does not confer title on a person whose

name appears in record-of- rights. Entries in revenue

records have only "fiscal purpose" i.e. payment of land

(2007) 6 Supreme Court Cases 186

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revenue and no ownership is conferred on the basis of such

entries. Similar view is taken in the case of SUMAN

VERMA VERSUS UNION OF INDIA AND OTHERS 3 ,

wherein, the Apex Court has held that the mutation entry

neither creates nor extinguishes title or ownership. The

Apex Court in the case of MUNICIPAL CORPORATION,

AURANGABAD THROUGH ITS COMMISSIONER Versus

STATE OF MAHARASTRA AND ANOTHER 4 has taken

similar view. The Apex Court in the case of PRAHLAD

PRADHAN VS. SONU KUMHAR 5 has held that the

appearance of name in revenue records does not make

property as self acquired property. In the case of AJIT

KAUR ALIAS SURJIT KAUR Versus DARSHAN SINGH

(DEAD) THROUGH LEGAL REPRESENTATIVES AND

OTHERS, 6 the Apex has held the mutation entries cannot

raise any presumption of title to property.

(2004) 12 Supreme Court Cases 58

(2015) 16 Supreme Court Cases 689

(2019) 10 SCC 259

(2019) 13 Supreme Court Cases 70

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13. From the decision stated supra law is well settled

that mutation per se is not conclusive proof of title, merely

because a mutation is carried out in favour of one party

does not make that party an absolute owner of the

property. Mutation entries do not confer any title to the

property without there being any registered document to

evidence his right.

15. The title of the plaintiff is denied, raising cloud

over the title of the plaintiff, when there is no clear title

mere suit for possession without declaration is not

maintainable, the Apex Court in the case of Anathula

Sudhakar (supra) has summarized the position in regard

to the suit of prohibitory injunction relating to immovable

property and at paragraph No.21 has held as under:

"21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:

(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.

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Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine

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or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.

(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."

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16. The said decision is aptly applicable to the

present facts of this case. Mere suit for possession without

declaration of title was not maintainable and the substantial

questions of law framed by this Court are answered in favor

of the appellants holding that the Courts below have

committed illegality and perversity in appreciating the

evidence on record and the concurrent findings of facts

recorded by the Courts below warrants interference and this

Court pass the following: