Karnataka High Court
Smt.Thimmakka Since Dead By Her Lrs vs Sri.B.H.Gururaj on 21 October, 2024
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RSA No. 794 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 794 OF 2021 (DEC/POS)
BETWEEN:
SMT. THIMMAKKA
SINCE DEAD BY HER LRS
1. SMT. SIDDAGANGAMMA @ GANGAMBIKE,
W/O LATE NIRANJANA MURTHY,
AGED ABOUT 51 YEARS.
2. SRI. DEVARAJU
S/O LATE ANJINAPPA,
AGED ABOUT 50 YEARS,
ALL ARE R/AT BYRANAYAKANAHALLI VILLAGE,
THYAMAGONDLU HOBLI,
Digitally NELAMANGALA TALUK,
signed by BENGALURU RURAL DISTRICT 562 123.
KAVYA R
...APPELLANTS
Location:
High Court (BY M/S. MURATH TABASSUM & L NARASIMHA MURTHY
of Karnataka BY SADALI ASSTS)
AND:
1. SRI. B.H. GURURAJ
S/O HANUMANTHARAYAPPA,
AGED ABOUT 64 YEARS,
R/AT AGALAKUPPE VILLAGE,
SOMPURA HOBLI,
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RSA No. 794 of 2021
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT 562 123.
2. SMT. AMMAYAMMA
W/O A. RAJAIAH,
AGED ABOUT 53 YEARS
3. SRI. A. RAJAIAH
FATHER'S NAME NOT KNOWN,
AGED ABOUT 58 YEARS,
DEFENDANT NO.2 AND 3 R/AT
BYRANAYAKANAHALLI VILLAGE,
THYAMAGONDLU HOBLI,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT 562 123
...RESPONDENTS
(BY SRI. NANDISH GOWDA G B., ADVOCATE FOR C/R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.01.2021
PASSED IN RA.NO.65/2019 ON THE FILE OF THE VI
ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 27.10.2018 PASSED IN
O.S.NO.105/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
NELAMANGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
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RSA No. 794 of 2021
ORAL JUDGMENT
This RSA is filed challenging the Judgment and
decree dated 28.01.2021 passed in RA NO.65/2019 by the
VI Addl District Judge, Bengaluru Rural District and the
Judgment and decree dated 27.10.2018 passed in
OS.No.105/2011 by Senior Civil Judge and JMFC,
Nelamangala.
2. For the convenience, parties are referred
to as per their ranking before the trial Court. Appellants
are the Plaintiff No.2 and 3. Respondents are the
Defendants. The Plaintiff filed the suit for declaration of
the title and injunction. It is the case of the plaintiff, one
Thimmappa was the propositus of their family, and he had
five sons, namely Hanumaiah, Lakshmaiah, Muddapa,
Kodiyappa and Thimmappa. The original propositus
Thimmappa and his five sons constituted a Hindu
undivided joint family. The Hanumaiah had two sons,
Anjinappa and Gangappa. The Plaintiff No.1 is the wife,
the Plaintiff No.2 is the daughter-in-law and Plaintiff No.3
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is the son of Anjinappa. The First Defendant is the legal
heris of Kodiyappa. The Defendants No.2 and 3 are the
purchasers of the suit schedule property.
3. It is contended that, after the demise of
the original propositus, his sons divided the family
properties. Under the partition, the suit schedule property
was fell to the share of Hanumaiah, and the revenue
records were mutated in Hanumaiah's name with respect
to the Suit Schedule Property. Hanumaiah was in
possession and enjoyment of the suit schedule property till
his death. After his demise, the plaintiffs inherited the suit
schedule property, and katha was transferred in the name
of the plaintiffs. They were in possession and in enjoyment
of the suit schedule property. It is contended that
Defendant No.1 has taken a share through his father i.e.
property bearing Sy.No.14 of Byranayakanahalli Village.
The Defendant No.1 sold the said property in favor of
Defendants No.2 and 3.The revenue records stands in the
name of Defendants No.2 and 3. It is stated that, the
Defendants have no right, title or interest over the Suit
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Schedule Property. It is contended that, the Defendants
threatened the plaintiffs to dispossess the plaintiffs from
the suit schedule property, and it is contended that the
Defendants have encroached on the Suit Schedule
Property, and the plaintiffs questioned the illegal acts of
the defendants, the defendants threatened the plaintiffs.
Hence, a cause of action arises for the plaintiffs to file the
suit for declaration of title and injunction. Accordingly,
prays to decree the suit.
4. The Defendants No.1 and 3 filed the
written statement. Defendant No.2 has not filed a written
statement. Defendant No.1 contended in the written
statement that Thimmappa was an original propositus. He
had five sons. It is contended that, after the demise of
Thimmappa, a partition was effected between the sons of
Thimmappa and property bearing Sy.No.14/1 and the Suit
Schedule Property were mutated in the name of
Hanumaiah. After his demise, Katha was transferred in the
name of Anjinappa. From the date of partition, the suit
schedule property was in possession and enjoyment of
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Kodiyappa. After the demises of Kodiyappa, his son
Hanumantharayappa was in possession and enjoyment of
the suit schedule property. On 10.04.2000,
Hanumantharayappa and his sons entered into family
arrangements. Under the said family arrangements, the
suit schedule property has fallen to the share of Defendant
No.1. The plaintiffs have no right, title or interest over the
Suit Schedule Property. It is contended that Plaintiffs have
suppressed the material facts in the present suit and prays
to dismiss the suit against the Defendant No.1.
5. Defendant No.3 filed a written statement
that, the suit filed by the plaintiffs is not maintainable in
the eye of the law. It is contended that, the Defendant
No.1 and B.K.Siddagangaiah offered to sell the property
bearing Sy.No.14/1A3 measuring 1 acre 14 guntas in
favour of the Defendant No.2. The Defendant No.2
purchased the said land under the registered sale deed
dated 19.03.2003. There was a discrepancy in the
boundaries. The plaintiffs are making an allegation against
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the defendants, the Defendants have encroached over the
suit schedule property. It is contended that, Defendant
No.1 has acquired the Suit Schedule Property under the
family partition. He was in possession and enjoyment of
the Suit Schedule Property. The plaintiffs have got created
revenue records to sue their illegal purpose and pray to
dismiss the suit.
6. The trial court based on above pleadings
framed the issues. The plaintiffs to establish their case,
plaintiff No.3 was examined as PW1 and marked 77
documents as Ex.P1 to Ex.P77. In rebuttal, defendant was
examined as DW1 and examined one witness as DW2 and
marked 7 documents as Ex.D1 to Ex.D7. After recording
the evidence, the trial court hearing on both sides and on
the assessment of oral and documentary evidence
dismissed the suit of the plaintiff vide judgment dated
27.10.2018. The plaintiffs aggrieved by the judgment and
decree passed in OS.No.105/2011 preferred appeal in
RA.NO.65/2019 on the file of VI Addl.District Judge,
Bengaluru Rural District. The Apellate Court, on re-
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assessment of oral and documentary evidence, placed on
records, dismissed the appeal vide judgment dated
28.01.2021 and confirmed the judgment and decree
passed by the trial court. The plaintiffs No.2 and 3,
aggrieved by the Judgments and decrees passed by the
courts below, filed this Regular Second Appeal.
7. Heard the Learned counsel for the
plaintiffs No.2 and 3. Learned counsel for plaintiffs No.2
and 3 submits that the plaintiffs are the owners of the Suit
Schedule Property based on partition effected in the year
1950, and the said Suit Schedule Property was fallen to
the share of Hanumaiah and after his demises, the
plaintiffs have inherited the Suit Schedule Property. He
submits that Katha was transferred in the name of the
plaintiffs. He also submits that the Plaintiffs has produced
Ex.P2 to Ex.P15 which discloses that the Suit Schedule
Property was fallen to the share of Hanumaiah and after
his demises, the plaintiffs have inherited the Suit Schedule
Property and he submits that, the Defendants have not
produced any records to establish that the Suit Schedule
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Property was fallen to the share of Defendant No.1. He
submits that, in non-production of documents by the
Defendant to establish the ownership the trial court ought
to have decreed the suit of the plaintiff. On the contrary,
the trial court dismissed the suit. Hence, he submits that
the appellate court, without re-assessing the material
evidence on record, confirmed the Judgment and decree
passed by the trial court. The Appellate court have not
properly re-appreciated the evidence on record. He
submits that, both the courts below have committed an
error in not properly appreciating the material evidence
placed on record. Hence, on these grounds he submits
that the judgments and decrees passed by the courts
below are perverse and arbitrary. Hence, on these
grounds, he prays to allow the appeal.
8. Perused the records and considered the
submissions of the learned counsel for plaintiffs No.2 and
3. The Plaintiff No.2 was examined as PW1. He reiterated
the plaint averments in the examination in chief. To
establish that the suit schedule property was initially
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owned and possessed by the original propositus
Thimmappa. He has deposed that, there was a partition in
the year 1950. In the said partition the Suit Schedule
Property was fallen to the share of Hanumaiah and after
his demises the said property was inherited by Anjinappa
i.e. the Plaintiff No.1 wife and father of Plaintiff No.2 and 3
and after the death of Anjinappa, the plaintiffs have
inherited the Suit Schedule Property. In order to establish
that the Plaintiffs are the owners of the Suit Schedule
Property the Plaintiffs have not produced any title deeds
except the revenue records. Except on the reliance on the
mutation extract, it is well established in the eyes of the law
that mutation entry does not confer any right, title or interest
in favour of the person and the mutation entry in the revenue
records is only for fiscal purpose. The said view has been
supported by the Judgment of Hon'ble Apex Court in the case
of Jitendra Singh V/s The State of Madhya Pradesh and
others
9. As plaintiffs have set up their partition based
on Ex.P2 i.e. the Mutation Extract. The Mutation Extract is not a
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title deed. Admittedly, the suit is one for declaration of title and
permanent injunction. The plaintiff's entire case is based on the
alleged partition effected in the year 1950. In the support of
plaintiff's contention, the plaintiffs have not produced any
records to establish that the partition was effected in the year
1950. Further, the Hon'ble Apex Court in the case of Union of
India and others V/s Vasavi Co-operative Housing
Society Limited and others held that,
"It is trite law that, in a suit for declaration of
title, burden always lies on the plaintiff to make out
and establish a clear case for granting such a
declaration and the weakness, if any, of the case
set up by the defendants would not be a ground to
grant relief to the plaintiff."
10. The Hon'ble Apex Court in the Case of
P.Kishore Kumar V/s Vittal K.Patkar reported in 2023
INSC page 1009 disposed of on 20.11.2023. The Honb'le
Apex Court, considering the law laid down by the Honb'le
Apex Court in the case of Jitendra Singh V/s The State
of Madhya Pradesh and others held that, suit for
declaration of title based on revenue records is not
maintainable.
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11. Further, PW1, during cross examination,
has categorically admitted that, under Ex.D1, the Suit
Schedule Property fell to the share of defendant No.1, and
the plaintiffs have not challenged Ex.D1. Both the courts
below have concurrently recorded the finding of facts that
the plaintiffs have failed to establish their title over the
Suit Schedule Property based on the alleged partition
effected in the year 1950. The courts below have
concurrently recorded the finding that the plaintiffs have
failed to establish their ownership and the defendants
have encroached over the Suit Schedule Property. Though
the plaintiffs have pleaded in the plaint that the
defendants have encroached upon the Suit Schedule
Property, the plaintiffs have not sought relief of
declaration.
12. Hence, the courts below have justified in
passing the Impugned Judgments and Decrees. I do not
find any error in the Impugned Judgments or any
substantial question of law that arises for consideration in
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this appeal. Accordingly, I proceed to pass the following
order.
ORDER
i) Appeal is dismissed.
ii) The Judgments and decrees passed by the
courts below are hereby confirmed.
iii) No order as to cost.
Sd/-
(ASHOK S.KINAGI)
JUDGE
RCK
