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9. I have heard Sri. Rajendra M.S., learned counsel for
the appellants and Sri. P. Karunakar, learned counsel for
the respondents.
10. Sri. Rajendra M.S, learned counsel for the appellants
contended that, both the Courts below have failed to
consider the fact that, the father of the plaintiffs was given
the moolageni rights in respect of the schedule A property
and the said moolageni deed is a registered document and
the same is reflected in the RTC records as marked before
the Trial Court and therefore, it is argued that, both the
courts below have failed to notice the presumption under
Secion 133 of the Karnataka Land Revenue Act.
11. It is further argued by the learned counsel for the
appellants that, the finding recorded by the Courts below
that the plaintiffs have failed to prove their possession and
moolageni deed was never acted upon by the parties is
misconceived and contrary to records. It is further
contended that, both the Courts below have failed to
notice that, the moolageni was created by Sri. Henry
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Everest Vincent Fernandes and that Sri. Vasudeva Prabhu
became the owner of the property after nearly an year
after creation of moolageni in favour of Sri. Vasudeva
Prabhu. It is submitted that, both the Courts below failed
to notice that non possession of original lease deed does
not mean that no title passes under the said document.
The finding recorded by the lower appellate Court that the
plaintiffs ought to have examined Sri. Henry Everest
Vincent Fernandes is incorrect as the moolageni lease is a
permanent tenant obtained by the father of the plaintiffs
as per the registered Moolageni Deed 1968 (Ex.P3) and
therefore, it is contended that, the finding recorded by the
Courts below requires to be interfered with. In this
regard, learned counsel for the appellants places reliance
on the Judgment of the Hon'ble Supreme Court in the case
of Raghuram Rao and Others Vs. Eric P. Mathias and
others reported in 2002 (2) SCC 624 and in the case of
Charles Rego Vs. Father Muller's Charitable Institute
and Others reported in ILR 2009 KAR 487 and argued
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that, the moolagenidar is a tenant holding a perpetual
lease and therefore, sought for interference of this Court.
Learned counsel for the appellants places reliance on the
Judgment of the Hon'ble Supreme Court in the case of
Bistappa Rama Naik and Another Vs. State of
Karnataka, Rep. by its Secretary, Revenue
Department and Others reported in ILR 2002 KAR 191
and argued that, as the name of the father of the plaintiffs
was continued in the RTC extracts for a considerable
period and the same was not challenged by the defendants
before the competent Revenue Court and therefore, the
entry made in the RTC extracts would prove that the
plaintiffs are in possession of the suit schedule property.
12. Sri. Rajendra, learned counsel for the appellants
contended that, though the Courts below have
concurrently held against the appellants herein, however,
the findings recorded by both the Courts below are
perverse and contrary to law and therefore, this Court is
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having jurisdiction to interfere under Section 100 of CPC.
In this regard, he referred to the Judgment of the Hon'ble
Supreme Court KN Nagarajappa and Others Vs. H
Narasimha Reddy reported in 2021 (18) SCC 263. It is
also argued by the learned counsel for the appellants that
the land being a non agricultural land and therefore,
finding recorded by both the Courts below that the
ownership on the Moolagenidar would confer occupancy
right and therefore, the finding recorded by both the
Courts below requires to be interfered with in view of the
Judgment of this Court in the case of Clarence Pais and
Others Vs. The State of Karnataka and Others
reported in 2024 (1) KLJ 425 and accordingly, sought for
interference of this Court.
13. Per contra, Sri. Karunakar, learned counsel for the
respondents argued that, as both the Courts below on
facts held against the plaintiffs and therefore, this Court is
having limited jurisdiction to interfere with the Judgment
and Decree passed by both the Courts below under
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Section 100 of CPC. It is the categorical submission by
the learned counsel appearing for the respondents that the
plaintiffs have not produced any document of payment of
rent by the father of the plaintiffs to prove the moolageni
of the land in question and therefore, sought for dismissal
of the appeal.
14. Heard the learned counsel appearing for both the
parties and perused the material on record.
15. On careful perusal of the original records would
indicate that the controversy in the present appeal is as to
21 cents of land bearing Sy.No.57/3A and Sy.No.57/4 of
Boloor Village, Mangaluru Taluk and District. It is the case
of the plaintiffs that, as per the registered Moolageni Chit
dated 19.08.1968 (Ex.P3), the owner of the property -
Henry Everest Vincent Fernandes, executed Moolageni Chit
in favour of A. Shankar Prabhu (father of the plaintiffs).
The father of the plaintiffs A. Shankar Prabhu died on
27.06.1974. It is the case of the plaintiffs that, during
lifetime of A. Shankar Prabhu, he had sold portion of his
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moolageni holding to third parties. It is also to be noted
that, the plaintiffs complained that, the defendant has
constructed a compound wall separating the property of
the plaintiffs and defendant at the eastern side of the
defendant's property. It is pertinent to mention here that,
as per the registered Sale Deed dated 24.06.1969,
wherein, Henry Everest Vincent Fernandes had executed
another sale deed, selling the moolageni rights in respect
of the Sy.No.57/3A measuring 71 cents and in Sy.No.57/4,
measuring 18 cents in favour of A. Vasudeva Prabhu
(father of the defendants). Perusal of the finding recorded
by the Courts below would indicate that the father of the
plaintiffs and father of defendants acquired an extent of
1.59 acres by resorting to moolageni and purchased the
ownership rights. It is the contention of the plaintiffs that
the father of the plaintiffs A. Shankar Prabhu having
acquired the schedule 'A' property as per registered
moolageni chit has been acted upon by entering his name
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in the revenue records and he was in actual possession
and enjoyment of the same.
16. The perusal of the documents would indicate that,
the father of the plaintiffs - A. Shankar Prabhu had sold a
portion of his moolageni holdings to third parties and
thereafter, the partition was effected in the family of
Shankar Prabhu and Vasudeva Prabhu as per Ex.P4. It is
pertinent to mention here that, the plaintiffs have utterly
failed to produce any documentary evidence to establish
the payment of rent by their father - A. Shankar Prabhu
before the Trial Court. On careful consideration of the
finding recorded by the Trial Court at para Nos.23 and 26,
I am of the view that, the finding recorded by both the
Courts below, dismissing the suit of the plaintiffs is just
and proper as the P.W.1 has not deposed as to the
payment of rent in respect of the 'A' schedule property. It
is pertinent to mention here that, the production of the
payment receipts in respect of the moolageni right is
mandatory to establish the execution of the registered
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moolageni chit and therefore, I am of the view that, the
finding recorded by the Trial Court on issue Nos.1 and 2 is
just and proper and no interference is called for in this
Appeal.
17. Though the learned counsel for the appellants
submitted as to the erroneous finding by both the Courts
below, however, the material fact for adjudication of the
dispute between the parties is based on the production of
the document as to payment of rent by the moolagenidar
and as such, in the absence of such material document, I
am of the opinion that there is no infirmity in the
Judgment passed by the Trial Court.
18. Nextly, in so far as the arguments advanced by the
learned counsel for the appellants as to the entries made
in the RTC extracts, it is to be noted that, no notice was
issued to the defendant before making entries in the RTC
extracts by the competent authority and as such, as the
plaintiffs have failed to produce any document to establish
the date on which the right of moolageni was subsisting in
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favour of the father of the plaintiffs and therefore, the
contentions raised by the appellants cannot be accepted.
19. Looking into the finding recorded by both the Courts
below, I am of the view that, the Trial Court has examined
the controversy between the parties in threadbare and has
rightly arrived at a conclusion that the plaintiffs have failed
to produce the necessary documents to establish the right
in respect of the schedule 'A' property. Hence, there is no
perversity in the Judgment and Decree passed by both the
Courts below and therefore, the substantial question of
law noted above, is answered in favour of the defendants.
20. Hence, the appeal is hereby dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
sac
List No.: 1 Sl No.: 62
