Karnataka High Court
Shivappa S/O Ganagappa Madar vs Yamanavva W/O Ramappa Madar on 22 November, 2024
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RSA No. 100180 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100180 OF 2019 (PAR/POS)
BETWEEN:
1. SHIVAPPA
S/O. GANAGAPPA MADAR,
AGE: 73 YEARS, OCC: AGRICULTURE,
R/O. MULLUR, TQ. HUNAGUND,
DIST. BAGALKOT-587 201.
2. KRISHAPPA
S/O. SHIVAPPA MADAR,
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O. MULLUR, TQ. HUNAGUND,
DIST. BAGALKOT-587 201.
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
3. SHASHIKUMAR
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.27
S/O. SHIVAPPA MADAR,
10:35:59
+0530 AGE: 19 YEARS, OCC: AGRICULTURE,
R/O. MULLUR, TQ. HUNAGUND,
DIST. BAGALKOT-587 201.
... APPELLANTS
(BY SRI. PRAKASH N HOSAMANI, ADVOCATE)
AND:
1. YAMANAVVA
W/O. RAMAPPA MADAR,
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RSA No. 100180 of 2019
AGE: 58 YEARS, OCC. AGRICULTURE,
R/O. MULLUR, TQ. HUNAGUND,
DIST. BAGALKOT-587 201.
2. DURGAVVA
W/O. HUALAGAPPA MADAR,
AGE: 58 YEARS, OCC. AGRICULTURE,
R/O. HIREBADAWADAGI, TQ. HUNAGUND,
DIST. BAGALKOT-587 201.
... RESPONDENTS
(BY SRI. GIRISH V BHAT, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 29.01.2019 PASSED
IN R.A.NO.108/2011 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, BAGALKOT,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 16.07.2011, PASSED IN
O.S. NO.209/2006 ON THE FILE OF THE SENIOR CIVIL
JUDGE, HUNAGUND, DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 100180 of 2019
ORAL JUDGMENT
Against the concurrent findings of facts recorded by
the Courts below, the defendants are before this Court in
this Regular Second Appeal.
2. Parties herein are referred to as per the rank
before the trial Court for sake of convenience.
3. The family genealogical tree is culled out under:
Shivappa (died)
Gangappa (died) Parasappa
Shivappa (D1) Ramappa Yamanavva Durgavva
(Gone in (Plff.1) (Plff.2)
adoption)
Nagavva
Krishnappa Shashikumar
(D2) (D3)
4. Suit is one for partition and separate possession
seeking ½ share in the suit schedule properties, the case
of the plaintiffs is that the suit properties are the ancestral
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joint family properties inherited by the plaintiffs and
defendants from the propositus Shivappa, that there is no
partition between the branch of the plaintiffs and
defendants, though defendant Nos.1 to 3 have got their
names entered in the revenue records in respect of the
suit properties and hence the suit for partition and
separate possession.
5. On notice the defendants appeared, defendant
No.1 filed his written statement, defendant Nos.2 and 3
have filed memo adopting the written statement filed by
defendant No.1, admitting the relationship between the
parties and also that about the suit properties being the
ancestral joint family properties of the plaintiffs and
defendants. It is the case of defendant No.1, Parasappa-
the father of plaintiffs by taking valuables towards his
share in respect of the suit schedule properties has started
residing separately, since from that date, the defendants
are in possession and enjoyment of the suit properties, as
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such, the plaintiffs cannot derive any right in the suit
properties.
6. The trial Court based on the pleadings framed
the necessary issues. In order to substantiate their claim,
plaintiff No.1 examined herself as PW1, marked
documents at Ex.P1 to Ex.P12. On the other hand,
defendant No.1 examined himself as DW1, two witnesses
as DW2 and DW3, marked documents at Ex.D1 to Ex.D47.
7. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that:
i. The plaintiffs have proved that the suit properties are
the joint family properties of the plaintiffs and
defendants.
ii. The defendants have failed to prove about the
partition having taken place between the father of
the plaintiffs and defendants.
iii. The defendants failed to prove that their father after
partition has continued in the partition and
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enjoyment of the suit properties as absolute owner of
the suit properties.
By the judgment and decree the trial Court decreed
the suit holding that the plaintiffs are entitled for ½ share
in schedule-B properties.
8. Feeling aggrieved, the defendants preferred
appeal before the First Appellate Court. The First
Appellate Court while re-appreciating the entire oral and
documentary evidence affirmed the judgment and decree
of the trial Court. Feeling aggrieved, the defendants are
before this Court.
9. Heard the learned counsel for the appellants
and learned counsel for the respondents and perused the
material on record.
10. The relationship of the plaintiffs and defendants
is not in dispute, it is also not in dispute that the suit
properties are the ancestral joint family properties of
Shivappa. According to the defendants, the father of the
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plaintiffs was suffering from Tuberculosis as the villagers
wanted to oust Parsappa from the village, the father of the
plaintiffs by taking valuables towards his share in the suit
properties started residing separately and the father of the
plaintiffs has relinquished his rights over the suit
properties.
11. In evidence the defendants relied upon three
documents Ex.D25 to Ex.D27, Ex.D25 is the document of
partition between Gangappa, Laxmavva and Parasappa,
the sons of the original propositus Shivappa, Ex.D25 was
appreciated by both the Courts to arrive at a conclusion
that under Ex.D25, it did not show what was the extent of
land fallen to the share of Parasappa and does not bear
the signature of Parasappa, neither the document is
proved by examining the witness. Ex.D25 is an
unregistered document, the recitals in Ex.D25 is not
proved by the defendants. Ex.D27 is the document of
relinquishment, wherein, the Parasappa the father of the
plaintiffs relinquished his right of share in the suit
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properties and house by taking 1 ½ tola gold and
Rs.5,000/- in cash, the said document was executed on
04.05.1962. Ex.D27 is also an unregistered document,
Ex.D25 and Ex.D27 based on which the defendants placed
reliance to contend that in a partition the properties which
are fallen to the share of the plaintiffs' father has been
relinquished in favor the defendants, the evidence let in by
the defendants is totally contrary to the pleadings in the
written statement, there is no necessary averments to
make out particular case.
12. The law is well settled that the relief on the
strength of evidence alone is not permissible without
pleadings and any amount of evidence without any
pleadings cannot be looked into to grant any relief. The
law is well settled in light of the judgment of the Apex
Court in the case of Bachhaj Nahar Vs. Nilima Mandal
and Another1, wherein, the Apex Court held at paragraph
Nos.13 and 17 as under:
(2008) 17 SCC 491.
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"13. The object of issues is to identify from the
pleadings the questions or points required to be
decided by the courts so as to enable parties to let
in evidence thereon. When the facts necessary to
make out a particular claim, or to seek a particular
relief, are not found in the plaint, the court cannot
focus the attention of the parties, or its own
attention on that claim or relief, by framing an
appropriate issue. As a result the defendant does
not get an opportunity to place the facts and
contentions necessary to repudiate or challenge
such a claim or relief. Therefore, the court cannot,
on finding that the plaintiff has not made out the
case put forth by him, grant some other relief. The
question before a court is not whether there is some
material on the basis of which some relief can be
granted. The question is whether any relief can be
granted, when the defendant had no opportunity to
show that the relief proposed by the court could not
be granted. When there is no prayer for a particular
relief and no pleadings to support such a relief, and
when the defendant has no opportunity to resist or
oppose such a relief, if the court considers and
grants such a relief, it will lead to miscarriage of
justice. Thus it is said that no amount of evidence,
on a plea that is not put forward in the pleadings,
can be looked into to grant any relief.
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17. It is thus clear that a case not specifically
pleaded can be considered by the court only where
the pleadings in substance, though not in specific
terms, contain the necessary averments to make
out a particular case and the issues framed also
generally cover the question involved and the
parties proceed on the basis that such case was at
issue and had led evidence thereon. As the very
requirements indicate, this should be only in
exceptional cases where the court is fully satisfied
that the pleadings and issues generally cover the
case subsequently put forward and that the parties
being conscious of the issue, had led evidence on
such issue. But where the court is not satisfied that
such case was at issue, the question of resorting to
the exception to the general rule does not arise. The
principles laid down in Bhagwati Prasad and Ram
Sarup Gupta referred to above and several other
decisions of this Court following the same cannot be
construed as diluting the well-settled principle that
without pleadings and issues, evidence cannot be
considered to make out a new case which is not
pleaded. Another aspect to be noticed, is that the
court can consider such a case not specifically
pleaded, only when one of the parties raises the
same at the stage of arguments by contending that
the pleadings and issues are sufficient to make out a
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particular case and that the parties proceeded on
that basis and had led evidence on that case. Where
neither party puts forth such a contention, the court
cannot obviously make out such a case not pleaded,
suo motu."
13. Moreover the documents at Ex.D25 to Ex.D27
are not the registered documents and the documents,
which transfers immovable property in favor of the
another person without there being a registration would
not be acceptable and mere mutation entry effecting on
basis of the said document would not create any right in
favor of the defendants to create absolute right over the
suit properties.
14. The Hon'ble Apex Court in the case of Suraj
Bhan And Others Vs. 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 revenue and no
(2007) 6 Supreme Court Cases 186
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ownership is conferred on the basis of such entries.
Similar view is taken in the case of Suman Verma Vs.
Union Of India And Others3, 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 Vs State Of Maharastra And
Another4 has taken similar view. The Apex Court in the
case of Prahlad Pradhan Vs. Sonu Kumhar5 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 Vs. Darshan Singh (Dead)
Through Legal Representatives And Others,6 the Apex
has held the mutation entries cannot raise any
presumption of title to property.
15. From the decision stated supra law is well
settled that mutation perse is not conclusive proof of title,
(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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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.
16. Trial Court while appreciating Ex.D25 to Ex.D27
has arrived at a conclusion that the defendants have failed
to prove about the partition having taken place between
the father of the plaintiffs and defendants' father and
relinquishment of right in respect of the suit properties in
favor of the defendant's father and arrived at a conclusion
that the plaintiffs are entitled ½ share in the suit
properties.
17. The First Appellate Court being the last fact
finding Court appreciated the entire oral and documentary
evidence more particularly at Ex.D25 to Ex.D27 and
arrived at a conclusion that the defendants have failed to
prove that there was already a partition in the joint family
properties and defendant No.1 being in possession of the
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suit properties. The manner in which the Court below
have assessed the entire oral and documentary evidence,
this Court is of the considered opinion that the same does
not warrant any interference under Section 100 CPC and
no substantial question of law arises for consideration in
this appeal and this Court pass the following:
ORDER
i. The Regular Second Appeal is hereby
dismissed.
ii. The judgment and decree of the Courts below
stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
AT
CT:PA
