Dismissed

Smt Jayalakshamma v. Officer-in-Charge

Karnataka HC29 Sept 2021RSA/687/2018

Case brief

AI extract

What is this about?

In this Regular Second Appeal, the High Court held that a plaintiff in a suit for declaration of title must produce a title deed, not just revenue records. Quoting Hullappa, the court affirmed the First Appellate Court's dismissal of the suit because the plaintiff failed to produce the government grant certificate. The appeal was dismissed.

What did the court decide?

The Regular Second Appeal under Section 100 CPC is dismissed at the admission stage itself.

Smt Jayalakshamma Vs Officer-in-Charge — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.687/2018

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BETWEEN:

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SMT.JAYALAKSHMAMMA W/O SRI.GOVINDAIAH, AGED ABOUT 52 YEARS, R/O GADDEBINDENAHALLI VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-546 117.

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... APPELLANT

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(BY SRI. K.SREEDHAR, ADVOCATE)

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AND:

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OFFICER-IN-CHARGE, SERICULTURE DEPARTMENT, SILK THREAD MANUFACTURERS, OPP.HOUSING BOARD, MARENAHALLI, CHANNARAYAPATNA, HASSAN DISTRICT-546 117.

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THE DEPUTY COMMISSIONER, HASSAN DISTRICT, HASSAN-546 117.

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THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BENGALURU-560 001.

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... RESPONDENTS

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(BY SRI. SHILPA S.GOGI, HCGP)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 17^TH NOVEMBER, 2017 PASSED IN REGULAR APPEAL NO.110 OF 2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT CHANNARAYAPATNA) ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 30^TH JUNE, 2016 PASSED IN ORIGINAL SUIT NO. 163 OF 2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., CHANNARAYAPATNA.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiff challenging the judgment and decree dated 17.11.2017 passed in RA.No.110/2017 by the IV Additional District and Sessions Judge, Hassan (Sitting at Channarayapatna), allowing the appeal and setting aside the judgment and decree dated 30.06.2016 passed in OS.No.163/2003 by the Principal Civil Judge and JMFC, Channarayapatna, decreeing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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3. It is the case of the plaintiff that suit

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property has been granted to her husband-Govindaiah on 27.05.1978 and pursuant to the same, revenue records have been mutated in favour of her husband. It is further stated that towards Northern side of the suit schedule property, the Sericulture Departmentdefendant, got 2 acres in Survey No.60 and said department had encroached 20 gunta of land in Survey No.105/1, which belong to the plaintiff and the plaintiff came to know about the same after the Taluk Surveyor visited the spot and surveyed the land. It is further stated that she requested defendant No.1 to handover the encroached area, however, the defendants have not handed over the encroached portion to plaintiff and as such, plaintiff has filed OS.No.161/2003 before the trial Court seeking declaration and possession.

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After service of summons, defendants

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entered appearance and defendant No.1 has filed written statement denying the plaint averments.

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Defendants 2 and 3 did not file written statement. It is

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the defence of defendant No.1 that the Government has granted 2 acre of land in Survey No.60 to defendant No.1 and defendants have constructed the building in suit schedule property and as such, denied the averment made in the plaint with regard to encroachment of land by the defendants. It is also the specific defence of defendant No.1 that the plaintiff has filed OS.No.236/2002 and said suit came to be dismissed on 20.12.2002 and in view of the same, the present suit is not maintainable and accordingly, they sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its

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consideration:

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1. Whether the plaintiff proves that she is owner in possession of the suit schedule property as on the date of institution of this suit ?

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2) Whether the plaintiff proves that defendant No.1 has encroached the suit schedule

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property as averred in para No.4 of the plaint ?

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3) Whether the plaintiff proves that she is entitled for the relief of declaration as prayed for ?

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4) Whether the plaintiff proves that she is entitled for possession of the suit schedule property ?

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5) Whether the suit is bad for non-issuance of mandatory notice under Section 80 of the Code of Civil Procedure ?

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6) Whether there is no cause of action for institution of the suit ?

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7) Whether the present suit is not maintainable in view of earlier suit at O.S.No.236/2003 ?

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8) What order or decree ?

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In order to establish the case, plaintiff examined herself as PW1 and examined four witnesses as PW2 to PW5 and got marked 6 documents as Exs.P1 to P6. On the other hand, defendant No.1 examined one of its officers as DW1 and produced 8 documents

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as Exs.D1 to D8. The Court Commissioner was

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examined as CW1 and he produced four documents and same were marked as C1 to C4.

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The trial Court, after considering the material on record, by its judgment and decree dated 30.06.2016 decreed the suit of the plaintiff holding that the plaintiff is the owner of the suit schedule property and as such, directed the defendant No.1 to handover the encroached portion in Survey No.105/1 to the plaintiff; and being aggrieved by the same, the defendants have preferred Appeal in RA.No.110/2017 on the file of First Appellate Court. The said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 17.11.2017, allowed the appeal and set aside the judgment and decree passed by the trial Court in OS.No.163/2003. Being aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff has preferred this Regular Second Appeal under Section 100 of CPC.

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Sri.K.Sreedhar, learned counsel for the plaintiff/appellant contended that the plaintiff has examined the Taluk Surveyor, who had given a report indicating that the defendants have encroached the portion of the land to an extent of 20 gunta, belonging to the plaintiff and in this regard, the Court Commissioner’s report was also filed before the trial Court, despite the same, the First Appellate Court on an erroneous assumption of law, reversed the finding recorded by the trial Court, which requires interference in this appeal. Learned counsel appearing for the appellant submits that the finding recorded by trial Court with regard to the remand made in the earlier round of litigation ought to have been taken note of by the First Appellate Court and in this regard, he submitted that finding recorded by First Appellate Court is capricious and arbitrary in nature which calls for interference by this Court.

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Per Contra, Smt.Shilpa S.Gogi, learned

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HCCP appearing for the defendants submits that the plaintiff has filed a suit for declaration and it is well established principle of law that in a declaratory suit, it is the duty of the plaintiff to produce the title deed before the courts below and in this case plaintiff has not produced any title deed to prove her ownership insofar as suit schedule property is concerned . To buttress her submission, she has relied upon the judgment passed by this Court in the case of Hullappa Vs. State of Karnataka, through Deputy Commissioner, Bidar and Others reported in ILR 2012 KAR 4958 and submitted that the suit itself is not maintainable before this court.

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Heard the learned counsel appearing for both the parties and perused the finding recorded by courts below. It is the case of the plaintiff that the suit schedule property has been granted in favour of her husband-Govindaiah. Perusal of finding recorded by

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trial Court would indicate that the plaintiff claims that defendant No.1 has encroached an extent of 20 gunta of land belonging to the plaintiff in Survey No.105/1. It is the specific defence of the defendants that 2 acre of land in Survey No.60 has been granted to defendant No.1 by Government and pursuant to the same, defendants have constructed a building and they are in possession of the suit schedule property and as such, the defendants denied the alleged encroachment made by the plaintiff. Perusal of the records would indicate that the plaintiff has produced report of the revenue Inspector as per Ex.P6 and rough sketch as per Ex.P5 and contended that the defendants have encroached 20 gunta of land that belong to plaintiff. Perusal of exhibits produced by the plaintiff shows that Exs.P1 to P3 are the RTC Extracts and Ex.P4 is land revenue receipt. The plaintiff has not produced the grant certificate which according to her issued by the Government in favour of her husband on 27.09.1978. If at all the land has been granted in favour of her

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husband by the Government, there was no impediment for the plaintiff to produce the Grant Certificate before the trial Court to establish her ownership in respect of suit schedule property, since the suit is one for declaration. In that view of the matter, though the trial Court had come to a conclusion based on the report of the Revenue Inspector that there is an encroachment of land by the defendants, however, the trial Court ought to have applied its mind in terms of law declared by this court in the case of Hullappa (supra), wherein, this Court has clearly held that in a suit for declaration of title, unless the plaintiff produces the document of title, the Civil Court cannot grant declaration on the basis of records of rights, tax paid receipts, any communication or letters. This principle that revenue record is not a document of title has not been applied by the trial Court. Totally six documents were produced by the plaintiff to seek declaration of title i.e. Ex.P1 to 3 (RTC extracts) Ex.P4 is the land revenue receipt, Ex.P5 is rough sketch and Ex.P6 is the report of

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Revenue Inspector. Applying the law declared by this Court in the case of Hullappa (supra) to the facts on hand and taking to consideration the documents produced by the plaintiff to prove her title, it is clear that the plaintiff has not produced title deeds to prove her ownership in respect of suit schedule property and accordingly the judgment and decree passed by the trial Court is contrary to law. The trial court ought to have dismissed the suit in limine.

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I have also considered the finding recorded

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by First Appellate Court wherein, the First Appellate Court, after re-appreciating material on record as required Order XLI Rule 31 of CPC and in the light of the judgment passed by the Hon'ble Apex Court in the case of Santhosh Hazari Vs. Purushottam Tiwari reported in AIR 2001 SCC 965 , has arrived at a conclusion that the plaintiff has not proved the title in respect of suit schedule property by producing the grant certificate which is said to have been issued by

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the Government in favour of her husband. In that view of the matter, the judgment and decree passed by the First Appellate Court is in accordance with law. Therefore, I do not find material irregularity or perversity in the judgment and decree passed by the First Appellate Court. The judgment and decree dated 17.11.2017 passed in RA No.110/2017 by the IV Additional District and Sessions Judge, Hassan (sitting at Chennarayapatna) is affirmed and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the plaintiff/appellant has not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, dismissed .

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Sd/JUDGE

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SB

Smt Jayalakshamma v. Officer-in-Charge

Case brief

What is this about?

What did the court decide?

Smt Jayalakshamma v. Officer-in-Charge

Case brief

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What did the court decide?

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