Karnataka High Court
Adiveppa vs Ramappa on 20 February, 2025
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 2193 OF 2006
C/W
REGULAR SECOND APPEAL NO.1707 OF 2006
IN RSA NO.2193/2009
BETWEEN:
ADIVEPPA
S/O. PARAPPA HUNNUR,
AGED ABOUT 51 years,
R/O. MAREGUDDI VILLAGE
JAMKHANDI 587301
BAGALKOT
SINCE DECEASED BY HIS LRS.
1a. RACHAPPA
S/O. ADIVEPPA HUNNUR
AGE: 48 YEARS,
OCC: AGRICULTURE,
Digitally
signed by R/O. MAREGUDDI,
VN TAL: JAMKHANDI,
BADIGER DIST: BAGALKOT - 587301.
Location:
High
Court of 1b. IRAPPA S/O ADIVEPPA HUNNUR,
Karnataka, AGE: 45 YEARS,
Dharwad OCC: AGRICULTURE,
Bench
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
1c. SHIVAPPA S/O. ADIVEPPA HUNNUR,
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
1d. SMT. SAYAVVA
W/O. ADIVEPPA HUNNUR,
AGE: 68 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
1e. SMT. SHANTAVVA
W/O. MALLAPPA MAGDUM,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O. MUDALGI, TAL: MUDALGI,
DIST: BELAGAVI - 591312.
1f. SMT. KAMALAVVA @ MAHADEVI
W/O. RAMAPPA KOTI
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI, TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
...APPELLANTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE)
AND:
1. RAMAPPA
S/O. GANGAPPA AREKERI
AGED ABOUT 52 YRS
R/O. MAREGUDDI, TAL. JAMKHANDI,
DIST: BAGALKOT - 587301.
SINCE DECEASED BY HIS L.RS.
1a. Smt. PARVATI W/O. RAMAPPA RAKERI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI, DIST: BAGALKOTE.
1b. SMT. NAGAVVA W/O. MALLAPPA ALABAL,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI, DIST: BAGALKOTE.
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
1c. RACHAPPA
S/O. RAMAPPA RAKERI,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI, DIST: BAGALKOTE.
1d. SHRIKANT S/O. RAMAPPA ARAKERI,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
1e. PRAKASH S/O. RAMAPPA ARAKERI,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
1f. SMT. DODDAWWA
W/O. MALLAPPA GUNDI,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O. JAGADAL ROAD - 587301.
2. KADAPPA S/O. GANGAPPA AREKERI
AGED ABOUT 50 YEARS,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE
3. ADIVEPPA S/O. GANGAPPA AREKERI
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1 (A-F);
SRI. ARUN L. NEELOPANT, ADVOCATE FOR R2 AND R3)
-----
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.
NO.33/2004 DATED 20.03.2006 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR.DN), JAMKHANDI AT JAMKHANDI CONFIRMING THE
JUDGMENT AND DECREE PASSED IN O.S.NO.77/95 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN) JAMKHANDI AT JAMKHANDI
DATED 08.10.2003 BY ALLOWING THIS APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.
IN RSA NO.1707/2006
BETWEEN:
ADIVEPPA
S/O. PARAPPA HUNNUR,
AGED ABOUT 51 years,
R/O. MAREGUDDI VILLAGE
JAMKHANDI 587301
BAGALKOT
SINCE DECEASED BY HIS LRS.
1a. RACHAPPA
S/O. ADIVEPPA HUNNUR
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
1b. IRAPPA S/O ADIVEPPA HUNNUR,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
1c. SHIVAPPA S/O. ADIVEPPA HUNNUR,
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI,
TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
1d. SMT. SAYAVVA
W/O. ADIVEPPA HUNNUR,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. MAREGUDDI, TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
1e. SMT. SHANTAVVA
W/O. MALLAPPA MAGDUM,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. MUDALGI, TAL: MUDALGI,
DIST: BELAGAVI - 591312.
1f. SMT. KAMALAVVA @ MAHADEVI
W/O. RAMAPPA KOTI
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI, TAL: JAMKHANDI,
DIST: BAGALKOT - 587301.
...APPELLANTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE)
AND:
1. RAMAPPA
S/O. GANGAPPA AREKERI
AGED ABOUT 52 YRS
R/O. MAREGUDDI, TAL. JAMKHANDI,
DIST: BAGALKOT - 587301.
SINCE DECEASED BY HIS L.RS.
1a. SMT. PARVATI
W/O. RAMAPPA RAKERI,
AGE: 65 YEARS,
OCC: HOUSEHOLD,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
1b. SMT. NAGAVVA
W/O. MALLAPPA ALABAL,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
DIST: BAGALKOTE.
1c. RACHAPPA S/O. RAMAPPA RAKERI,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
1d. SHRIKANT S/O. RAMAPPA ARAKERI,
AGE: 42 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
1e. PRAKASH S/O. RAMAPPA ARAKERI,
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
1f. SMT. DODDAWWA
W/O. MALLAPPA GUNDI,
AGE: 36 YEARS,
OCC: HOUSEHOLD,
R/O. JAGADAL ROAD - 587301.
2. KADAPPA S/O. GANGAPPA AREKERI
AGED ABOUT 50 YEARS,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI,
DIST: BAGALKOTE.
3. ADIVEPPA S/O. GANGAPPA AREKERI
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/O. MAREGUDDI - 587301.
TAL: JAMKHANDI, DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. MALLIKARJUN C. HUKKERI, ADVOCATE FOR R1 (A-F);
SRI. ARUN L. NEELOPANT, ADVOCATE FOR R2 AND R3)
----
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RSA No. 2193 of 2006
C/W RSA No. 1707 of 2006
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.
NO.32/2004 DATED 20.03.2006 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE (SR.DN), JAMKHANDI AT JAMKHANDI CONFIRMING THE
JUDGMENT AND DECREE PASSED IN O.S.NO.60/95 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN) JAMKHANDI AT JAMKHANDI
DATED 08.10.2003 BY ALLOWING THIS APPEAL WITH COST IN THE
INTEREST OF JUSTICE AND EQUITY.
IN THESE APPEALS ARGUMENTS BEING HEARD, RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
RSA No. 2193/2006 is filed by the defendant challenging
the judgment and decree dated 20.03.2006 in RA No.33/2004
on the file of the Principal Civil Judge (Sr.Dn), Jamakhandi
allowing the appeal and setting aside the judgment and decree
dated 08.10.2003 in O.S.No.77/1995 on the file of the Civil
Judge (Jr.Dn.,) Jamakhandi dismissing the suit.
2. RSA No. 1707/2006 is filed by the defendant No.6
challenging the judgment and decree dated 20.03.2006 in RA
No.32/2004 on the file of the Principal Civil Judge (Sr.Dn),
Jamakhandi, (for short "the First Appellate Court) allowing the
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appeal and setting aside the judgment and decree dated
08.10.2003 in O.S.No.60/1995 on the file of the Civil Judge
(Jr.Dn.), Jamakhandi (for short "the Trial Court") dismissing the
suit.
3. The parties are referred to as per their rank before
the Trial Court.
4. It is the case of the plaintiffs in O.S.No.60/1995
that, the land bearing Sy.No.79 of Mareguddi village belongs to
the family with surname of 'Hunnur' of village Mareguddi and
same was partitioned and sub-divided into two blocks viz., land
bearing Sy.No.79/1 and 79/2. The land bearing Sy.No.79/1
fallen to the share of Dundappa Hunnur, cousin brother of
defendant No.6. The said partition was effected on 14.09.1957.
It is the case of the plaintiffs that the suit land at Sl.No.1 was
transferred by Dundappa Hunnur in favour of the plaintiffs as
per the mutation extract in M.E.No.2224 dated 29.07.1973. It
is also stated that as per the partition deed dated 14.09.1957,
the total extent of 13 Acres 5 Guntas each and same also
mentioned in the records of rights. The plaintiffs should have
been in actual possession and enjoyment of the land bearing
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Sy.No.79/1 as per records however, the plaintiffs are in actual
cultivation of land bearing Sy.No.79/2. It is also stated in the
plaint that the plaintiffs and the defendant No.6 are utilizing the
water from the well situate in Sy.No.79/1 by rotation of four
days in a week. It is also stated that portion of the land was
acquired for the purpose of irrigation and same is reflected in
P.T. sheet. It is also stated by the plaintiffs that the defendant
No.3 in collusion with defendants No.4 to 6 modified the
measurement of the land in question so as to reduce the area
in Sy.No.79/2 and to enlarge the area in Sy.No.79/1. Hence, it
is the case of the plaintiffs that the present holding of the
plaintiffs in Sy.No.79/1 and that of defendant No.6 in
Sy.No.79/2, as per M.E.No.3778 stipulates the extent of lands
as 10 Acres 4 guntas and 14 acres 28 guntas, respectively. It is
also stated by the plaintiffs that the plaintiffs are deemed to be
in actual possession and enjoyment of the extent of 13 Acres 5
Guntas in land bearing Sy.No.79/1 and having noticed the
discrepancy in the revenue records, the plaintiffs made a
representation to the defendants No.2 and 3 to redress the
revenue records insofar as extent of the land in the records of
rights, however, same has not yield result. Hence, the plaintiffs
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have filed suit in O.S.No.60/1995 seeking relief of declaration
and injunction that the plaintiffs are in possession and
enjoyment of land bearing Sy.No.79/1 measuring 13 acres 5
guntas, which is adjacent towards the western side of the land
bearing Sy.No.79/2. It is also stated that the defendant No.6,
interfered with the land belonging to the plaintiffs.
4.1. After service of notice, defendants entered
appearance, however the defendant No.6 has contested the
matter on merits. The defendant No.6 denied the hand sketch
map appended to the plaint. It is the case of the defendant
No.6 that the plaintiffs have no right over the suit property and
the plaintiffs are belonged to Adiveppa-I branch and defendant
No.6 belonged to the branch of brother of Adiveppa-I
(Parappa). It is also stated in the written statement that there
was partition in the branch of Adiveppa-I and his sons Kallappa,
Basappa and Dundappa have partitioned the property belonging
to the share of their father and the claim made by the plaintiffs
as per M.E.No.2224 dated 29.07.1973 is created to knock off
the property and further stated that as the Dundappa's Class-I
heirs are still alive, and therefore the plaintiffs have no share in
the suit schedule property and accordingly sought for dismissal
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of the suit. It is the specific contention of the defendant No.6
that the plaintiffs have to approach the revenue authorities for
rectification of the revenue records based on their title and
accordingly sought for dismissal of the suit.
5. The facts in RSA No.2193/2006 are that the
appellant was a defendant in O.S.No.77/1995. It is the case of
the plaintiffs that the land bearing Sy.No.79 of Mareguddi
village belonges to the family of Hunnur and during the
partition, land was sub-divided into Sy.No. S.No.79/1 and
Sy.No.79/2. In the partition, Sy.No.79/1 has fallen to the share
of Dundappa Hunnur. The said partition finds place in
M.E.No.1440 dated 14.09.1957. It is the case of the plaintiffs
that the plaintiffs are the children of Bhagavva (sister of
Dundappa). It is further stated that, area of land in Sy.No.79/1
was reduced and thereby area in Sy.No.79/2 was increased and
accordingly, there is variation and discrepancy in the area of
the lands in question. The plaintiffs came to know about the
same and as such filed suit in O.S.No.77/1995 seeking
declaration that the well situated in the suit land is belonged to
the plaintiffs and further the plaintiffs were/are deemed to be
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entitled for equal right in the suit "well" situated in the land in
question.
5.1. On service of notice, the defendant entered
appearance and filed written statement denying the averments
made in the plaint. It is the case of the defendant that the
"well" belonged to the defendant and there are two pump-sets
fixed, out of which one pump-set belonged to the plaintiff. It is
also stated that the plaintiffs have filed suit seeking declaration
without title. Accordingly, sought for dismissal of the suit.
6. The Trial Court after considering the pleadings on
record, formulated the issues for its consideration.
7. In order to establish their case, plaintiffs have
examined two witnesses and produced 15 documents and same
were marked as Ex.P1 to Ex.P15. Defendant No.6 was
examined as DW1 and got marked 7 documents and same were
marked as Ex.D1 to Ex.D7.
8. The Trial Court, after considering the material on
record, dismissed both the suits by judgment and decree dated
08.10.2003. Feeling aggrieved by the same, the plaintiffs have
preferred R.A.No.32 and 33 of 2004 before the First Appellate
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Court and same was contested by the defendants. The First
Appellate Court after considering the material on record,
allowed the appeals and set aside the judgment and decree
dated 08.10.2003 in O.S.No.60/1995 and O.S.No.77/1995.
Feeling aggrieved by the same, defendant No.6-Adevippa-II
has preferred these appeals.
9. This Court, vide order dated 01.08.2008 has
formulated the following substantial questions of law;
1) Whether the Civil Court is justified in
entering the suits when the plaintiff has
not exhausted the appeal remedy provided
under the Karnataka Land Revenue Act,
1964 ('the said Act') for short) in view of
the bar contained in Section 63 in the said
Act?
2) Whether the reappreciation of evidence by
the First Appellate Court is perverse and
whether its findings are contrary to the
materials on record?
3) Whether the second suit (O.S.No.77/1995)
is hit by Order II Rule 2 of Civil Procedure
Code?
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10. I have heard Sri. Ravi S Balikai, learned counsel
appearing for the appellants in both the appellants and
Sri.Mallikarjun C. Hukkeri, learned counsel for the respondents
1(a) to 1(f) and Sri. Arun L Neelopant, learned counsel for the
respondents No.2 and 3.
11. It is contended by Sri. Ravi S Balikai learned
counsel appearing for the appellants contended that the claim
made by the plaintiffs, with regard to subject land is altogether
different insofar as claiming right againt the defendant No.6,
wherein the plaintiffs grandfather (Adiveppa-I) had severed
from the joint family status, after partition with his brother-
Parappa (father of defendant No.6) and therefore, the claim
made by the plaintiffs cannot be accepted in a suit for
declaration. It is also argued by the learned counsel appearing
for the appellants that the Trial Court after considering the
entire material on record rightly in dismissed the suit of the
plaintiffs on the sole ground that the plaintiffs have not
produced the title deeds to establish their rights and on the
other hand, the First Appellate Court on mis-appreciation of
evidence, accepted the case of the plaintiffs based on the
change in mutation entry and considered the same as a title
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deed and the said finding recorded by the First Appellate Court
is contrary to well established principles in law and accordingly,
sought for interference of this Court. It is the further argument
of the learned counsel appearing for the appellants that the
plaintiffs are claiming title through Ex.P14, which has nothing
to do with the transfer of property from Dundappa to the
plaintiffs and therefore, contended that the finding recorded by
the First Appellate Court is contrary to law. It is also argued
that no relinquishment deed has been produced by the plaintiffs
to establish their right from the said Dundappa, accordingly,
the finding recorded by the First appellate Court requires to be
set aside by confirming the judgment and decree passed by the
Trial Court.
12. Nextly, it is contended by Sri. Ravi Balikai, learned
counsel appearing for the appellants, by referring to
I.A.No.1/2025 wherein Hissa Form No.12 and 4 are produced
would substantiate that the land bearing Sy.No.79/2 was
allotted to the share of Dundappa and the signature of the said
Dundappa is reflected in the revenue documents. Accordingly,
sought for interference of this Court. In respect of
I.A.No.2/2025 filed by the respondents, referring to the
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certified copies of the records of rights and the mutation
entries, Sri.Ravi Balikai submitted that those revenue records
do not confer title to the plaintiffs and accordingly, submitted
that the First Appellate Court has committed an error in
interfering with the well-reasoned judgment of the Trial Court.
13. Per contra, learned counsel appearing for the
respondents, argued that the entries in records of rights in
respect of Sy.No.79/1 and Sy.No.79/2 were altered as per
M.E.No.3778 (Ex.P2), wherein land bearing Sy.No.79/2 was
altered as Sy.No.79/1 and the extent of land was altered as 14
acres 28 guntas and in the Kabjedar column, the name of the
defendant No.6 was shown and in respect of land in Sy.No.79/1
was altered as Sy.No.79/2 wherein an extent of land was
altered as 10 Acres 4 Guntas and in the Kabjedar column name
of the plaintiffs were shown and as such, sought to justify the
impugned judgment and decree passed by First Appellate
Court. Referring to Ex.P14, it is argued by the learned counsel
appearing for the respondents that, Smt.Bhagavva was only
sister to Kallappa, Basappa and Dundappa and plaintiffs are the
children of Bhagavva and as no property was given to
Bhagavva during the family partition, Dundappa had
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relinquished his right insofar as the land in question in favour of
the plaintiffs as per the mutation entry at Ex.P14 and therefore,
sought for dismissal of the appeals.
14. Nextly, it is contended by the learned counsel
appearing for the respondents that as per the survey report, it
is the duty of the defendant to prove the onus of proving the
map appended to the survey report and therefore, in the
absence of such action on the part of the appellants, the
judgment and decree passed by the First Appellate Court is to
be confirmed.
15. It is also submitted by the learned counsel
appearing for the respondents, by referring to I.A.No.2/2025,
by producing record of rights and certified copy of M.E.No.1439
that the records of rights was mutated in the name of the
plaintiffs in respect of the property having been transferred by
Dundappa and therefore, unless those records are challenged in
a manner known to law, no interference is called for in these
appeals. It is further argued by the learned counsel for the
respondents with regard to application filed by the appellants in
I.A.No.1/2025 under Order XLI Rule 27 of CPC, having
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produced the Hissa Form No.12 and 4 as additional evidence
and as such, same requires to be proved by adducing evidence
and accordingly, those documents have been produced before
this Court for the first time and therefore, argued that those
documents would not confer title to the defendant No.6.
Accordingly sought for dismissal of the appeals.
16. In the light of the submissions made by the learned
counsels appearing for the parties, I have carefully examined
the finding recorded by both the Courts below and perused the
original records.
17. In order to understand the relationship between the
parties, genealogy of the parties is extracted below.
Basappa
(Propositus)
(Died)
Adiveppa-I Parappa
(Expired) (Expired)
Kallappa Basappa Dundappa Bhagavva Ramappa Bheemappa Adiveppa-2
(Expired) (Deft.6)
Ramappa Kadappa Adiveppa-3
(Plt1) (Plf-2) (Plf-3)
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18. Perusal of the genealogy would indicate that the
land bearing Sy.No.79/1 and Sy.No.79/2 belonged to the
original propositus-Basappa. Basappa had two children viz.,
Adiveppa-I and Parappa. Adiveppa-I had four children viz.,
Kallappa, Basappa, Dundappa and Bhagavva. Parappa, the
second son of original propositus-Basappa, had three children
viz., Ramappa, Bhimappa and Adiveppa-II (defendant No.6).
Plaintiffs are the children of Smt. Bhagavva. It is pertinent to
mention here that on 14.09.1957 sons of the Parappa i.e.,
Ramappa, Bhimappa and Adiveppa-II effected partition
between themselves as per M.E.No.1439 and land bearing
Sy.No.79/2 measuring 12 Acre 18 Guntas with Kharab land was
allotted to Adiveppa-II. On the very same day, i.e. on
14.09.1957, sons of Adiveppa-I i.e., Kallappa, Basappa and
Dundappa effected partition between themselves and land
bearing Sy.No.79/1 measuring 12 acres 18 guntas with Kharab
land was allotted to Dundappa. On careful examination of
Ex.P14, it is forthcoming that as per 'Apasat Watni' dated
14.09.1957, land bearing Sy.No.79/1 was allotted to the share
of Dundappa and further, Dundappa had given a Varadi to the
revenue officers to transfer the land which was allotted to him
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in the partition between himself (Dundappa) along with his
brothers, Kallappa and Basappa, to the children of Bhagavva
(plaintiffs herein).
19. After considering the oral and documentary
evidence produced by the parties (Ex.P14), nothing is produced
by the plaintiffs so as to ascertain on what basis the plaintiffs
got the suit property from Dundappa without there being any
registered instrument. What was given to the plaintiffs by
Dundappa is only through revenue documents and not by a
registered instrument and therefore, I find force in the
submissions made by the learned counsel appearing for the
appellants.
20. On careful examination of the evidence of PW1,
where nothing is forthcoming as to how the plaintiffs got the
property through a registered instrument from Dundappa and
therefore, the evidence adduced by the plaintiffs requires to be
discarded by looking into the prayer made in the plaint. On the
other hand, the defendant No.6 has produced the change of
Hissa in Hissa Form No.12 copy and Hissa No.4 copy to
substantiate that the said Dundappa had signed the document
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in respect of Sy.No.79/2, which is forthcoming in the document
No.2 in I.A.No.1/2025 filed under Order XLI Rule 27 of CPC.
21. In that view of the matter, since the plaintiffs have
not produced any title documents as to how the property in
question claimed in the paint has been transferred from
Dundappa to the plaintiffs, alternatively, Dundappa has not
executed any relinquishment deed in favour of the plaintiffs
insofar as the suit lands is concerned, and in the absence of the
said title document, I am of the view that the First Appellate
Court has committed an error in interfering with the well
reasoned judgment and decree passed by the Trial Court in
dismissing the suit of the plaintiffs. It is well established
principles of law that the mutation entries do not create title
over the property. In this regard, it is relevant to cite the
judgment of the Hon'ble Supreme Court in the case of
Bhimabai Mahadeo Kambekar (Dead) Through LRs v.
Arthur Import & Export Company and others1, wherein it
is held as follows:
"6. This Court has consistently held that
mutation of a land in the revenue records does
(2019) 3 SCC 191
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not create or extinguish the title over such
land nor has is any presumptive value on the
title. It only enables the person in whose
favour mutation is ordered to pay the land
revenue in question. (See Sawarni (Smt.) vs.
Inder Kaur, (1996) 6 SCC 223, Balwant Singh
& Anr. Vs. Daulat Singh (dead) by L.Rs. &
Ors., (1997) 7 SCC 137 and Narasamma &
Ors. vs. State of Karnataka & Ors., (2009) 5
SCC 591).
7. The High Court while dismissing the writ
petition placed reliance on the aforementioned
law laid down by this Court and we find no
good ground to differ with the reasoning and
the conclusion arrived at by the High Court. It
is just and proper calling for no interference.
8. It is not in dispute that the civil suits in
relation to the land in question are pending in
the Courts between the parties. Therefore, it
would not be proper to embark upon any
factual inquiries into the question as to
whether the entries were properly made or not
and at whose instance they were made, etc. in
this appeal. It is more so when they neither
decide the title nor extinguish the title of the
parties in relation to the land."
22. It is also relevant to deduce the law declared by the
Honble Supreme Court in the case of Smt. Sawarni v. Smt.
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Inder Kaur and others2 wherein at paragraph it is held as
follows.
"7. Having heard the learned counsel for the parties
and having scrutinised the judgment of the trial
Judge as well as that of the lower appellate court, we
find sufficient force in all the contentions raised by
the learned counsel for the appellant. At the outset, it
may be noticed that the plaintiff had filed the suit
claiming half interest for herself and claiming half
interest in favour of the husband and sons of Roori
and, therefore, the learned Additional District Judge
was wholly in error to hold that the plaintiff could not
have filed the suit in question. In view of rival stand
of the parties the main question that arose for
consideration was wheter Roori was daughter of
Gurbax Singh or Inder Kaur, defendant no. 5 was the
daughter of same Gurbax Singh? The learned trial
Judge after elaborate discussion of the evidence on
record both oral and documentary came to the
positive conclusion that it was Roori who was the
daughter of Gurbax Singh as alleged by the plaintiff
and not Inder Kaur. The lower appellate Court
without focusing his attention to the weighty reasons
advanced by the trial court and without examining
the materials on record in that respect even did not
set aside the said finding of the trial Judge and yet
reversed the decree of the trial Judge. We have no
hesitation to come to the conclusion that the said
(1996) 6 SCC 223
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judgment of the Additional District Judge is wholly
unsustainable in law. The crucial point being as to
who was the second daughter of Gurbax Singh,
namely Roori or Inder Kaur, and the trial Judge
having come to the positive conclusion that it was
Roori who was the second daughter of Gurbax Singh,
the lower appellate Court was not justified in not
considering the material evidence as well as reasons
advanced by the trial Judge and merely coming to the
conclusion that the evidence on the file does not
prove Roori to be the daughter of Gurbax Singh.
Further, the lower appellate Court has not come to
any positive finding that Inder Kaur was the daughter
of Gurbax Singh. He has been swayed away by the so
called mutation in the revenue record in favour of
Inder Kaur. Mutation of a property in the revenue
record does not create or extinguish title nor has it
any presumptive value on title. It only enables the
person in whose favour mutation is ordered to pay
the land revenue in question. The learned Additional
District Judge was wholly in error in coming to a
conclusion that mutation in favour of Inder Kaur
conveys title in her favour. This erroneous conclusion
has vitiated the entire judgment. That apart, as it
would be seen, the learned trial Judge had considered
the oral evidence adduced on behalf of the parties to
establish the respective stand as to who was the
second daughter of Gurbax Singh and on perusal of
the same came to the conclusion that it was Roori
who was the second daughter of Gurbax Singh. The
Additional District Judge has not even discussed
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anything about the said oral evidence and the
reasonings advanced by learned trial Judge in coming
to the conclusion that it was Roori who was the
second daughter of Gurbax Singh. Non consideration
of the oral evidence adduced by the parties, by the
lower appellate Court vitiates the ultimate conclusion
on the question whether Roori was daughter of
Gurbax Singh or not. It is further seen that Gurdip
Kaur, widow of Gurbax Singh had executed a Will in
respect of the entire estate in favour of plaintiff and
Roori and after death of Gurdip Kaur a succession
certificate had been issued by the civil court under
the Indian Succession Act, 1925, in favour of plaintiff
and said Roori. The said succession certificate and
rights flowing therefrom cannot be ignored.
Admittedly no attempt has been made by defendant
nos. 1 to 4 to annul the succession certificate on the
grounds available under the Succession Act. The
Additional District Judge committed serious error of
law in not considering the said Will and the
succession certificate in question which unequivocally
clinches the matter and thereby the ultimate
judgment of the Additional District Judge is vitiated.
The High Court also was in error in not examining
these questions and dismissing the Second Appeal in
limine."
23. Following the declaration of law made by the
Hon'ble Supreme Court, the plaintiffs have filed suit seeking
declaratory relief without producing the title documents and the
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plaintiffs have produced only the revenue documents to
substantiate their rights in respect of the suit schedule property
and same cannot be accepted including the revenue documents
produced in I.A.No.2/2025. Therefore, the First Appellate Court
has committed an error in re-appreciating the material on
record and has not applied its mind as required under Order
XLI Rule 31 of CPC and therefore, I find perversity in the
impugned judgment and decree passed by the First Appellate
Court the substantial question of law framed above favours the
defendants/appellants herein based on the title documents viz.,
partition deed dated 14.09.1957 between the children of
Parappa and as such, I am of the opinion that the Trial Court,
after considering the material on record rightly dismissed the
suit and same has been misconstrued by the First Appellate
Court and accordingly, I pass the following:
ORDER
i) The appeals are allowed.
ii) The judgment and decree dated 20.03.2006
in RA No.32/2004 and R.A.No.33/2004 on
the file of the Principal Civil Judge (Sr.Dn),
Jamakhandi is hereby set aside.
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iii) Judgment and decree dated 08.10.2003 in
O.S.No.60/1995 and O.S.No.77/1995 on the
file of the Civil Judge (Jr.Dn.,) Jamakhandi
is confirmed.
iv) Accordingly, suits in O.S.No.60/1995 and
O.S.No.77/1995 are dismissed.
v) In view of disposal of the appeals, pending
interlocutory applications, if any, do not
survive for consideration and are disposed
of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
Ct:ANB
