Allowed

Kenchappa S/O.Doddegowda v. Sri.Manjunath

Karnataka HC18 Dec 2023RSA/111/2012

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, holding that panchayath records, mutation entries, and tax receipts do not confer title. The court set aside the first appellate court's decree which relied on such fiscal documents, restoring the trial court's dismissal of the suit for declaration of title.

What did the court decide?

The appeal is allowed; the impugned judgment and decree passed by the appellate court is set aside, and the trial court's judgment and decree is restored.

Kenchappa S/O.Doddegowda Vs Sri.Manjunath — Property and Title | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 18^TH DAY OF DECEMBER, 2023

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE ASHOK S.KINAGI

¶7

REGULAR SECOND APPEAL NO. 111 OF 2012 (DEC)

¶8

BETWEEN:

¶9

KENCHAPPA

¶10

S/O.DODDEGOWDA

¶11

SINCE DEAD BY HIS LR'S

¶12

1A. SMT YASHODA W/O.SHIVALINGA D/O.KENCHAPPA R/O.CHALUVANAHALLY POST ARASIKERE TALUK HASSAN DISTRICT – 573 103

¶13

Digitally signed by R DEEPA Location: High Court of Karnataka

¶14

1B. SMT SHIVAMMA W/O. MALLESHAPPA D/O. KENCHAPPA R/O. NEERAGUNDA, BASAVAGATTA POST ARASIKERE TALUK, HASSAN DISTRICT – 573 103

¶15

1C. KUMARA S/O.LATE KENCHAPPA R/O.HOYSALA EXTENSION, HALEBEED BELUR TALUK, HASSAN DISTRICT – 573 115

¶16

1D. PUTTALAKSHMAMMA W/O.OMKARAPPA D/O.KENCHAPPA R/O.KARIYAMMA STREET,

¶17

¶18

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶19

HALEBEED BELUR TALUK, HASSAN DISTRICT – 573 115

¶20

….APPELLANTS

¶21

(BY SRI. NITHISH K.N., ADVOCATE FOR SRI. K V NARASIMHAN, ADVOCATE)

¶22

AND:

¶23

SRI. MANJUNATH S/O.LATE GOVINDARAO AGED ABOUT 50 YEARS MAIN ROAD, HALEBEEDU, BELUR TALUK, HASSAN DISTRICT

¶24

…RESPONDENT

¶25

(BY SRI. A V GANGADHARAPPA, (AVG ASSOCIATES)

¶26

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.10.2011 PASSED IN R.A.NO.91/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, BELUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.8.2007 PASSED IN O.S.NO.179/2002 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., BELUR.

¶27

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶28

JUDGMENT

¶29

This appeal is filed by the appellants challenging the

¶30

judgment and decree dated 18.10.2011 in R.A.No.91/2008 passed by the Senior Civil Judge, Belur.

¶31

For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellants

¶32

¶33

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶34

are the legal representatives of deceased defendant and respondent is the plaintiff.

¶35

The brief facts leading rise to filing of this appeal are as under:

¶36

Plaintiff filed a suit for declaration of title, possession

¶37

of the suit schedule property and arrears of rent. It is the case of the plaintiff that the suit schedule property bearing khata No.185 measuring east to west; 47 feet and north to south; 26 feet, which was constructed by his father Govindarao in the year 1962 and same was inherited by the plaintiff after the death of his father. It is contended that since 1986, all documents of title are in his name and he is paying taxes. The defendant was well acquainted with the parents of the plaintiff and on gaining sympathetic grounds sought for shelter from the parents of plaintiff for temporary living as he had no roof of his own and with assurance that he would vacate the premises after constructing his own house within a year or by 1975-76. The lease was for oral one and without any

¶38

¶39

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶40

advance. Initially, the monthly rent was Rs.10/- which was increased to Rs.20/- and to Rs.50/- and to Rs.100/finally to Rs.200/-. It is further stated that the defendant had stopped the payment of rent from 1997-98 and he is a chronic defaulter in due of Rs.7,200/- from 01.08.1999

¶41

and he is also liable to pay the interest at the rate of 18% p.m. Hence, on these grounds prays to decree the suit.

¶42

The defendant filed the written statement

¶43

denying the averments made in the plaint. It is denied that the plaintiff is not the owner of the suit schedule property. It is contended that the suit schedule property is the gramatana property which belongs to the defendant and the defendant and his wife, after obtaining the permission from the competent authority constructed the building about 45 years back and they are residing in the said suit house. It is further stated that the boundaries given by the plaintiff is incorrect. The defendant belongs to shepherd community, who was disliked by the plaintiff and on that account the plaintiff had filed a false suit with

¶44

¶45

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶46

an intention to harass the defendant and to take possession of the suit property. The suit filed by the plaintiff is barred by limitation, and bad for non-joinder of necessary parties. Hence, prayed to dismiss the suit.

¶47

The Trial Court, on the basis of the above said

¶48

pleadings, framed the following issues:

¶49

1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?

¶50

2. It so, whether the plaintiff further proves that the he is entitled for due arrears of rent of Rs.7,200/- from 01.08.1999 with interest at 18% p.a. with cost?

¶51

3. If so, whether the plaintiff is entitled for the relief of declaration as prayed for?

¶52

4. Whether the defendant proves that he is in peaceful possession and enjoyment of suit schedule property?

¶53

5. If so, whether the defendant proves that the plaintiff themselves are interfering over their such possession and enjoyment of suit schedule property?

¶54

6. What order or decree ?

¶55

The plaintiff in order to prove his case,

¶56

examined himself as PW.1 and got marked 25 documents

¶57

6 - NC: 2023:KHC:46203 RSA No. 111 of 2012

¶58

as Exs.P1 to P25 and also examined 3 witnesses as PWs.2

¶59

to 4. In rebuttal, the defendant examined himself as DW.1 and got marked 7 documents marked as Exs.D1 to D7 and also examined DW.2. The trial Court on assessment of the oral and documentary evidence, answered issue Nos.1 to 3 in the negative and issue No.4 and 5 does not arise for consideration and issue No.6 as per the final order. The trial Court dismissed the suit of the plaintiff with costs. The plaintiff aggrieved by the judgment and decree passed by the trial Court, preferred the appeal in R.A.No.91/2008.

¶60

The First Appellate Court, after hearing the

¶61

parties, has framed the following points for consideration:

¶62

1. Whether the defendant was a tenant under the parent of plaintiff or plaintiff in respect of suit schedule property?

¶63

2. Whether the plaintiff possesses right, title , ownership and interest in the respect of suit house property?

¶64

3. Whether the defendant is entitled to retain the possession of suit schedule property from plaintiff?

¶65

¶66

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶67

4. Whether the plaintiff is entitled for the relief sought?

¶68

5. Whether the trial Court has properly appreciated pleas and materials of parties with proper perspective?

¶69

6. Whether the impugned judgment and decree of the trial Court calls for interference?

¶70

7. Whether persons described in I.A.No.2 deserve to come on record as a party to lis?

¶71

8. What order ?

¶72

The first appellate court on re-assessment of

¶73

oral and documentary evidence answered point Nos.1, 2, 4

¶74

and 6 in the affirmative, point Nos.3, 5 and 7 in the negative, and point No.8 as per the final order. The appeal was allowed. The judgment and decree passed by the trial Court was set aside. Hence, suit of the plaintiff was decreed. It is ordered and decreed that the plaintiff along

¶75

with other heirs of Govindarao is the owner having right, title and interest over the suit schedule property. Legal representatives of the defendant shall hand over the vacant possession of the suit schedule house property in

¶76

8 - NC: 2023:KHC:46203 RSA No. 111 of 2012

¶77

favour of plaintiff within 2 months from today along with arrear of Rs.7,200/- with interest at the rate of 6% p.a.

¶78

The legal representatives of the defendant aggrieved by the judgment and decree passed by the first appellate court in R.A.No.91/2008 has filed this second appeal.

¶79

This court admitted the appeal on the following substantial question of law :

¶80

'Whether the lower appellate Court had erred in law in decreeing the suit filed for declaration of title and for possession in the absence of document of title or any document evidencing title?'

¶81

Heard the learned counsel for the defendant

¶82

and learned counsel for the plaintiff.

¶83

Learned counsel for the LR's of deceased

¶84

defendant submits that plaintiff had filed the suit for declaration of title and possession. The plaintiff had not produced any title deeds in support of his pleadings. He further submits that the first appellate court has recorded a finding that the plaintiff has not produced any title

¶85

¶86

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶87

documents, but still the first appellate court declares that the plaintiff is the absolute owner of the suit schedule property. He submits that the plaintiff has produced the panchayath records and the panchayat records are not title deeds. Hence he submits that first appellate court has committed an error in declaring the plaintiff and other legal heirs of Govindarao as absolute owners of the suit schedule property. He submits that the judgment and decree passed by the first appellate court is contrary to the law laid down by the Hon’ble Apex Court. The first appellate court could not have decreed the suit. He submits that judgment and decree passed by the first appellate court is arbitrary, perverse and same is liable to be set aside. Hence, on these grounds he prays to allow the appeal.

¶88

Per contra, learned counsel for the plaintiff submits that the present defendant had filed a suit in O.S.No.112/2002 along with his wife against the present plaintiff for the relief of permanent injunction. The said

¶89

10 -

¶90

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶91

suit was decreed and he submits that when permanent injunction was granted against the present plaintiff, and in the said suit the court had recorded a finding that the plaintiff to take possession of the suit schedule property from the defendant herein under due process of law and to establish his ownership over the suit schedule property. He submits that the plaintiff has produced panchayat records which discloses that the plaintiff is the absolute owner of the suit schedule property and further as per the findings recorded the plaintiff has filed a suit for declaration of title. The first appellate court considered

¶92

the panchayat records produced by the plaintiff and has rightly decreed the suit declaring that the plaintiff is the absolute owner of the suit schedule property. He submits that judgment and decree passed by the first appellate court is just and proper and does not call for any interference. Hence, on these grounds he prays to dismiss the appeal.

¶93

11 -

¶94

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶95

Perused the records and considered the

¶96

submissions of learned counsel for the parties.

¶97

Substantial question of law: The plaintiff in order to substantiate his case examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced documents marked as Ex.P.1 is the mutation register extract; Ex.P2 is the mutation register extract and from the perusal of Ex.P.2, it discloses that it is a part of Ex.P.1; Ex.P.3 is the mutation register extract in respect of house No.190 wherein the suit schedule property khata number is 185 and Ex.P3 does not pertain to suit schedule house; Ex.P4 is the assessment register extract which stands in the name of Govindarao in respect of property No.166; Ex.P5 to 8 are the demand register extracts in respect of property bearing No.190 which stands in the name of plaintiff; Ex.P9 is an endorsement issued by Gram panchayath stating that the property bearing khata No.185 is owned by Govindarao; Ex.P.10 to Ex.P.22 are the tax paid

¶98

12 -

¶99

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶100

receipts; Ex.P.23 is the legal notice got issued by the plaintiff to the defendant on 30.08.2002 calling upon the defendant to pay the arrears of rent and to vacate the suit schedule property; Ex.P.24 is the postal receipt and Ex.P.25 is the reply to Ex.P23, wherein the defendant denied the ownership of plaintiff over the suit schedule property and further denied that there exists no relationship as a landlord and tenant between the plaintiff and defendant. Further, in the course of crossexamination it is suggested that there is no relationship as a landlord and tenant between the plaintiff and defendant and also the plaintiff is not the absolute owner of the suit schedule property, the said suggestion was denied by PW.1. Further, the plaintiff in order to prove his ownership over the suit schedule property examined 3 witnesses as PW.2 to PW.4 who have deposed that the plaintiff is the owner of the suit schedule property and defendant is in possession of the suit schedule property as a tenant.

¶101

13 - NC: 2023:KHC:46203 RSA No. 111 of 2012

¶102

In rebuttal, the defendant examined himself as

¶103

DW.1 and he has reiterated the written statement averments in the examination-in-chief and produced documents Ex.D1 to D3 are the residential certificates; Ex.D4 is the acknowledgement for having issued a reply to Ex.D3; Ex.D5 is the Genealogical tree; Ex.D6 is the copy of legal notice got issued by plaintiff to the defendant and Ex.D7 is the copy of reply notice got issued by the defendant to the plaintiff. Further, the defendant also examined one witness by name Malleshappa as DW.2. He

¶104

has deposed in the same line of DW.1 and nothing has been elicited from the mouth of these witnesses. From the perusal of the oral and documentary evidence, the plaintiff is claiming to be the owner of suit schedule property on the basis of panchayath records. Ex.P.3 pertains to house No.190, Ex.P.4 pertains to house No.166, Ex.P5 and 6 pertains to property No.190, Ex.P7

¶105

and 8 pertains to house No.185 i.e., suit property. From

¶106

the perusal of Ex.P3, 4, 5 and 6 does not pertain to the suit schedule property. The entire case of the plaintiff is

¶107

14 - NC: 2023:KHC:46203 RSA No. 111 of 2012

¶108

based on the panchayat records preponderance of probabilities. The plaintiff has not produced any document of title to establish his ownership over the suit schedule property. The panchayath records like khata extract, tax paid receipt, mutation order are not the title deeds. In a dispute with respect to determination of title, the plaintiff has to produce title deeds and merely pointing out the lacuna in the defendant's title would not suffice. The plaintiff having instituted the suit for declaration of title, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of the better title, which the plaintiff in the present case has manifestly failed to do. The Hon'ble Apex Court in the case of Union of India and others Vs. Vasavi Co-operative housing society limited and others reported in 2014 2 SCC 269 , held as under:

¶109

"15. It is trite law that, in a suit for declaration of

¶110

title the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration

¶111

15 - NC: 2023:KHC:46203 RSA No. 111 of 2012

¶112

and the weakness, if any, of the case set up by the defendants would not be a ground to grant the relief to the plaintiff. The said decision was affirmed and further elaborated upon by the Hon'ble Apex Court in the case of Jagadish Prasad patel (dead) through Legal representatives and others Vs. Shivnath and others reported in (2019) 6 SCC 82 , held as under:

¶113

44. In the suit for declaration of title and possession, the respondent-plaintiff could succeed only on the strength of their own title and not on weakness of the case of the appellant-defendants. The burden is on the respondent- plaintiffs to establish their title to the suit properties to show that they are entitled for a decree for declaration. The respondent-plaintiffs have neither produced the title document i.e., patta-lease which the respondent-plaintiffs are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few khataunis are not proof of title; but are mere statements for revenue purpose. They cannot

¶114

16 -

¶115

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶116

confer any right or title on the party relying on them for proving their title.

¶117

The plaintiff is expected to prove his title to a high degree of probability and not beyond reasonable doubt. The plaintiff having led in the evidence only the panchayath records which are essentially fiscal in nature. I have no hesitation in holding that in the present case the plaintiff has been unable to assert his case to a high degree of probability. It is therefore, not enough that the plaintiff led in evidence the panchayath records in an attempt to establish his title.

¶118

It is settled proposition of law that mutation entry, khata extract, tax paid receipts does not confer any right, title or interest in favour of the person. Further mutation of the properties in the panchayath record neither creates or extinguishes the title to the property nor has any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. The Hon'ble Apex Court in the case of Suraj bhan Vs.

¶119

17 -

¶120

NC: 2023:KHC:46203 RSA No. 111 of 2012

¶121

Financial Commissioner reported in (2007) 6 SCC 186

¶122

held that an entry in the revenue records does not confer title on a person whose name appears in record of rights. Entries in the revenue records on jamabandi have only 'fiscal purpose', that is payment of land revenue and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned it can be decided by competent civil Court. In view of the above settled proposition of the law laid down by the Hon'ble Apex Court and in the light of discussion made above, the First Appellate Court erred in decreeing the suit by placing on a higher probative pedestal the panchayath records. In my considered opinion the First Appellate Court has committed an error in decreeing the suit only placing reliance on panchayth records. The Impugned judgment and decree is arbitrary, perverse and same is liable to be set aside. In view of the above discussion, I answer substantial question in the affirmative.

¶123