Karnataka High Court
Smt. Natal W/O. Jacob Fernandes vs Smt. Lusi D/O. Francis Dias on 22 October, 2024
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RSA No. 100508 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100508 OF 2021 (PAR)
BETWEEN:
SMT. NATAL W/O. JACOB FERNANDES
@ NATAL D/O. BASTYAV FERNANDES
AGE: 56 YEARS, R/O. E-81, SCL COLONY,
BINAGA, KARWAR
...APPELLANT
(BY SRI M.M.NAIKWADI, ADVOCATE)
AND:
1. SMT. LUSI D/O. FRANCIS DIAS
W/O. MARCEL PAUL FERNANDES
AGE: 69 YEARS, OCC: HOUSEWIFE AND
AGRICULTURE, R/O. TOPPAL,
Digitally signed by
PO. KASARKOD, TQ. HONNAVAR
VISHAL NINGAPPA
PATTIHAL
Location: HIGH
COURT OF
KARNATAKA
2. SMT. ANESTEL W/O. ROBERT RODRIGUES
DHARWAD BENCH
AGE: 71 YEARS, OCC: HOUSEHOLD,
R/O. NAKAWADA, BINAGA, KARWAR.
...RESPONDENTS
(BY SRI S.V.YAJI, ADVOCATE FOR R1 AND R2)
THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING TO SET
ASIDE THE JUDGEMENT AND DECREE PASSED BY THE LOWER
APPELLATE COURT I.E., ADDITIONAL SENIOR CIVIL JUDGE, KARWAR
IN R.A.NO.18/2017 DATED 30.07.2020 CONFIRMING JUDGMENT AND
DECREE PASSED BY PRINCIPAL CIVIL JUDGE KARWAR IN
O.S.NO.127/2010 DATED 08.06.2017 BY ALLOWING THIS APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100508 of 2021
ORAL JUDGMENT
1. Assailing the concurrent findings of facts
recorded by the Courts below, defendant No.3 is before this
Court in this Regular Second Appeal.
2. For the sake of convenience, the parties are
referred to as per their rank before the trial Court.
3. Suit is for the relief of partition and declaration
seeking 1/3rd share in the suit schedule properties, which
are (1) non-agricultural land bearing Sy.No.112B, Hissa:
Plot No.16 measuring 5 guntas 4 anna of Binga Village in
Karwar Taluka; and (2) agricultural land bearing Sy.No.229,
Hissa: 3 measuring 6 guntas of Binga Village in Karwar
Taluka (for short "suit properties")
4. Brief facts are that:
One Francis @ Inas Sallu Dias was the father of the
plaintiff and defendant Nos.1 & 2, who purchased the
non-agricultural land i.e., suit schedule item No.1 and he
was cultivating the suit schedule item No.2. The Land
Tribunal, Karwar granted occupancy rights in favour of the
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father of the plaintiff and defendant Nos.1 and 2 in respect
of suit schedule item No.2. The said Francis @ Inas Sallu
Dias died on 08.09.1976, both suit properties devolve upon
the plaintiff and defendant Nos.1 & 2. Plaintiff contended
that suit schedule properties are joint family properties and
the plaintiff and defendant Nos.1 and 2 are cultivating the
said land. It is the case of the plaintiff that defendant No.1
got her name entered in the revenue records in respect of
suit schedule item No.1 without there being any exclusive
right. It is further contended that defendant No.1 without
having any right over the suit schedule item No.1 has gifted
the suit schedule properties to her daughter defendant No.3
by way of gift deed dated 29.05.2010 and hence, the suit
for declaration was filed seeking to declare that the gift
deed dated 29.05.2010 is null and void by way of
amendment.
5. On notice, the defendant appeared and filed the
written statement admitting the claim of the plaintiff and
also admitting that the suit schedule properties belonging to
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her father and she admitted the relationship between the
parties. However, she denied that the plaintiff is cultivating
the land with the defendant. It is contended that the names
of defendant Nos.1 and 2 were entered in the revenue
records as per the Mutation No.3865 and till date the names
have been continued and they are in possession of the suit
schedule properties and the same was not objected by the
plaintiff.
6. The trial Court bases on the pleadings, framed
the following issues:
ISSUES
1) Whether the plaintiff proves that the suit
schedule property is undivided Hindu family
property?
2) Whether the plaintiff further proves that she is
entitled to 1/3rd share in the suit schedule
property and also partition and separate
possession of the suit schedule property with
metes and bounds?
3) Whether the plaintiff entitled for the relief
claimed?
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4) What order or decree?
RECASTED ISSUES
1) Whether the plaintiff proves that the suit
schedule properties are her fathers properties?
2) Whether the plaintiff proves that she is entitled
to 1/3rd share in the suit schedule property and
also partition and separate possession of the
suit schedule property with metes and bounds?
3) Whether the plaintiff is entitled for the relief
claimed?
4) What order or decree?
ADDITIONAL ISSUE
1) Whether the plaintiff proves that the Gift deed
dt: 29/05/2010 executed by the defendant
No.1 infavour of defendant No.3 in null and
void?
7. In order to substantiate their claim, the plaintiff
examined himself as PW1 and got marked documents at
Exs.P1 to P5. On the other hand, the defendant No.3
examined himself as DW1 and got marked documents at
Exs.D1 & D2.
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8. The trial Court on the basis of the pleadings, oral
and documentary evidence arrived at a conclusion that the
plaintiff has proved that the suit schedule properties are the
joint family properties of the plaintiff and defendant Nos.1
and 2 and by the judgment and decree, the trial Court held
that the plaintiff is entitled for 1/3rd share by way of
partition and declared that the gift deed dated 25.05.2010
is not binding on the share of the plaintiff and partly null
and void with regard to the plaintiff's share.
9. Aggrieved, defendant No.3 preferred the appeal
before the First Appellate Court. The First Appellate Court
while reconsidering and re-appreciating the entire oral and
documentary evidence, concurred with the judgment and
decree of the trial Court. Aggrieved, the defendant No.3 is
before this Court in this Regular Second appeal.
10. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondent and perused the materials available on record.
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11. It is undisputed that the suit schedule properties
belongs to the father of the plaintiff and defendant Nos.1
and 2 namely one Francis @ Inas Sallu Dias. It is the case
of the plaintiff that on the death of his father, plaintiff and
defendant Nos.1 and 2 are entitled for equal share. On the
other hand, defendant No.3, who is the daughter of
defendant No.1 contended that the name of defendant No.1
was entered in the revenue records in light of the varadhi
given by the other two sisters namely plaintiff and
defendant No.2 and defendant No.1 has executed the gift
deed in respect of item No.1 in favour of defendant No.3,
and defendant No.3 is the absolute owner of the suit
schedule item No.1. It is the specific contention of the
defendants that the plaintiff has relinquished his right
before the revenue authorities and consented to enter the
names of defendant Nos.1 and 2 in the revenue records and
defendant Nos.1 and 2 are the absolute owners of the suit
schedule properties in light of the relinquishment made by
the plaintiff. It is relevant to note that the mutation entry
effected in the names of defendant Nos.1 and 2 in respect
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of two suit schedule items is without any registered
document. The law is well settled that the mutation entry
would not confer any right, title over the suit schedule
properties.
12. The Apex Court in several judgments held that
revenue records do not confer title in case of Corporation
City of Bengaluru Vs. M.Papaiah and another1 has
observed and firmly held that the revenue records are not
documents of title and question of interpretation of
document not being a document of title is not a question of
law. The Apex Court in the case of State of Himachal
Pradesh Vs. Keshav Ram and others2 has observed that
mere entry in revenue records by no stretch of imagination
can form the basis of declaration of title in favour of the
plaintiff and further held that even the entries in record of
rights carry evidentiary value, that itself would not confer
any title on the plaintiff on the suit landing question.
(1989) 3 SCC 612
(1996) 11 SCC 257
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13. The burden which was on the defendants to
prove that there was relinquishment made by the plaintiff
and in the absence of any material to indicate the
relinquishment made by the plaintiff, mere entry of the
names of defendant Nos.1 and 2 in the revenue records
would not be entitled for the defendants to hold that they
have right, title and interest over the suit schedule
properties.
14. In the absence of any right by defendant No.1,
the gift in favour of defendant No.3 would not be valid. The
trial Court and the First Appellate Court have rightly
assessed the entire oral and documentary evidence and the
preposition of law regarding the entries in the revenue
records without any registered document and arrived at a
conclusion that the plaintiff is entitled for 1/3rd share in the
suit schedule properties. The manner in which the Courts
below have assessed the entire oral and documentary
evidence, this Court is of the considered view that the same
does not warrant any interference under Section 100 CPC
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and there is no substantial question of law arises for
consideration and accordingly, this Court pass the following:
ORDER
(i) The appeal is hereby dismissed.
(ii) The judgments and decrees of the Courts
below stand confirmed.
Sd/-
______________________
(JUSTICE K.S.HEMALEKHA)
VNP / CT:GSM
