Dismissed

Mr. Hanumegowda v. Sri Doddegowda

Karnataka HC5 Sept 2024RSA/1379/2013

Case brief

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What is this about?

In this regular second appeal, the High Court of Karnataka dismissed the appellant's challenge to the acquittal of his civil suit for declaration of title and possession which was set aside by the first appellate court. The High Court, relying on Supreme Court precedents, upheld the view that revenue records are not documents of title and can only raise a presumption of possession, thus refusing t

What the court decided

AI extract

Mr. Hanumegowda Vs Sri Doddegowda — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:36532 RSA No. 1379 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1379 OF 2013 (DEC)

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BETWEEN:

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MR. HANUMEGOWDA AGED ABOUT 60 YEARS, S/O RANGEGOWDA, R/O THURAGANAHALLY VILLAGE, KUNDURU HOBLI, ALUR TALUK, HASSAN DISTRICT - 577 214

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…APPELLANT

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(BY SRI. HAREESH BHANDARY T. AND KIRAN R, ADVOCATES)

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AND:

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SRI DODDEGOWDA AGED ABOUT 60 YFEARS, S/O PUTTASWAMYGOWDA, R/O THURAGANAHALLY VILLAGE KUNDURU HOBLI, ALUR TALUK HASSAN DISTRICT - 577 214

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…RESPONDENT

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(BY SRI. GIRISH B BALADARE, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 18.6.2013 PASSED IN R.A.NO.79/2008 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 1.7.2008 PASSED IN O.S.NO.59/2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., ALUR.

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2 - NC: 2024:KHC:36532 RSA No. 1379 of 2013

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 18.06.2013 passed in R.A. No.79/2008 by the Prl. Senior Civil Judge, Hassan (hereinafter referred to as, ‘the first Appellate Court’), reversing the judgment and decree passed in O.S. No.59/2007 vide judgment dated 01.07.2008, by the Civil Judge (Jr.Dn.) & JMFC, Alur (hereinafter referred to as, ‘the Trial Court’).

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For convenience, parties are referred to as per their rank before the Trial Court. The appellant is the plaintiff, and the respondent is the defendant. The plaintiff filed a suit for declaration of title and possession.

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

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It is the case of the plaintiff, the suit schedule property bearing Sy.No.2/8 measuring 1 acre 17 guntas situated at Kunduru Hobli, Thuruganahalli village, belongs to Hanumegowda. Whereas, Hanumegowda did not have any children. The plaintiff’s grandmother, Eramma was the only sister to said Hanumegowda and Bommegowda. The plaintiff’s father Rangegowda is the only son to Eramma. The suit schedule property is the absolute property of the plaintiff as the plaintiff’s father and his grandmother are no more. The plaintiff, and his brother by name Swamygowda are the legal representatives of Hanumegowda and Bommegowda, and they effected a partition in the family and the suit schedule property has fallen to the share of the plaintiff. Thereby, the plaintiff got changed the revenue entries in his name, and he is the absolute owner in possession of the suit schedule property. It is contended that, towards eastern side of the suit schedule property, there is Sy.No.2/3. It belongs to the father of the defendant, by the name Putteswamygowda and in between the lands, bearing

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NC: 2024:KHC:36532 RSA No. 1379 of 2013

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Sy.No.2/8 and Sy.No.2/3, there is a bund, which bifurcates their land.

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It is further contended that the defendant had damaged the bund and encroached upon 11 guntas of land out of 1 acre and 17 guntas of land in Sy.No.2/8 on the eastern side. The plaintiff got surveyed the land and prepared a sketch in that regard and Surveyor had recorded a finding that 11 guntas of suit land was encroached by the holder of the land in Sy.No.2/3. The plaintiff requested the defendant to deliver the encroached portion, but the defendant refused to hand over the encroached portion. Hence, a cause of action has arisen to the plaintiff to file a suit for declaration of title and possession.

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The defendant had filed a written statement denying the averments made in the plaint and also denying that the plaintiff is the absolute owner and in possession of the land bearing Sy.No.2/8 measuring 1 acre 17 guntas and it is contended that the defendant is the owner of land

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bearing Sy.No.2/8 measuring 12 guntas which belongs to the defendant, and adjacent to the said 12 guntas of land, there is another land of the defendant and there is no bund between the land of the plaintiff, and the land of the defendant, as alleged in the plaint, and there is no cause of action for filing the suit. The cause of action shown in the plaint is false and imaginary, and hence prays to dismiss the suit.

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The Trial Court based on the pleadings of the parties, framed the following issues:–

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

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ii. Whether the plaintiff proves that the defendant has encroached upon 11 guntas of suit property?

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iii. Whether the defendant proves that the suit property is the ancestral property of the defendant?

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iv. Whether the plaintiff is entitled for the relief of declaration and possession of the suit property?

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v. What decree or order?

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In order to establish his case, the plaintiff examined

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himself as P.W.1, examined two witnesses as P.Ws.2 and 3 and marked 6 documents as Exs.P-1 to P-6. In rebuttal, the defendant examined himself as D.W.1 and examined three witnesses as D.Ws.2 to 4. But no documents were marked on behalf of the defendant. The Trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue No.1, 2 and 4 in the affirmative and issue No.3 in the negative. The suit of the plaintiff was decreed with costs declaring that the plaintiff is the absolute owner of the suit schedule property and directed the defendant to hand over the possession of the suit schedule property to the plaintiff, failing which the plaintiff is entitled to recover the same on the cost of the defendant.

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The defendant aggrieved by the judgment and decree passed in O.S. No.59/2007, preferred an appeal in R.A.No.79/2008 on the file of learned Prl. Senior Judge, Hassan.

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9. The first Appellate Court, framed the following points

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for consideration :

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i. Whether the learned Trial Court is justified in holding that the plaintiff is the absolute owner of the suit schedule property?

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ii. If so, whether the learned Trial Court is further justified in holding that the defendant has encroached 11 guntas of land in suit survey number?

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iii. Whether the learned Trial Court is justified in granting the relief in favour of the plaintiff?

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iv. Whether the impugned judgment calls for interference by the Court?

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v. What order?

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The first Appellate Court, on the re-assessment of the oral and documentary evidence, answered points No.1

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to 3 in the negative and point No.4 in the affirmative. The

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appeal was allowed, the judgment and decree passed by the Trial Court was set aside and the suit of the plaintiff was dismissed. The plaintiff, aggrieved by the judgment and decree passed in R.A. No.79/2008, filed this second appeal.

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Heard Sri. Hareesh Bhandary T., learned counsel for the appellant - plaintiff and Sri.Girish B. Baladare, learned counsel for the respondent – defendant.

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Learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule property, and the Trial Court, considering the entire material on record, was justified in decreeing the suit of the plaintiff. He submits that the defendant has encroached upon the plaintiff's property to the extent of 11 guntas. To establish that the plaintiff is the owner of the suit schedule property, the plaintiff has produced only revenue records to establish ownership over the suit property. Hence, the first Appellate Court could have considered Exs.P-1 to P-4. On the contrary, the first Appellate Court had recorded a finding that the plaintiff had not proved his title over the suit schedule property. Hence, the judgment and decree passed by the first Appellate Court are perverse, arbitrary and erroneous. Hence, on these grounds, pray to allow the appeal.

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13. Per contra, learned counsel for the defendant

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submits that the plaintiff has filed a suit for declaration of title and possession. The plaintiff has not produced any documents to establish the title over the suit schedule property. He submits that based on the revenue records, the suit for declaration of title is not maintainable, and he submits that the Trial Court was justified in dismissing the suit of the plaintiff. The first Appellate Court was justified in dismissing the suit of the plaintiff. Hence, the judgment and decree passed by the first Appellate Court is just and proper and does not call for any interference. Hence, prayed to dismiss the appeal.

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14. This Court admitted the appeal to consider the

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following substantial questions of law :

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i. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court when Exs.P-1 to P-4 clearly indicates that the said entries were made on the basis of the partition entered into between the parties, which have presumptive value in terms of the provisions of Section 133 of the Karnataka Land Revenue Act, 1964?

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ii. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court, disbelieving the statements made on oath by defendant, when the plaintiff is in possession and enjoyment of the suit property in terms of Ex.P-4?

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iii. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in the facts and circumstances of the present case?

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15. Substantial questions of law No.1 to 3 : These

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questions are interlinked to each other. Hence, to avoid the repetition of facts and law, they are taken up together for discussion. The plaintiff has filed a suit for declaration of title and injunction and possession on the ground that the plaintiff has succeeded to the suit schedule property from his grandmother, and the said land was granted in favour of Hanumegowda and Bommegowda, who died leaving behind the grandmother of the plaintiff by name Eramma. After the death of Eramma, the property devolved upon the father of the plaintiff. After his demise, the plaintiff and his brother by name Swamygowda, effected partition in their family, and in the said partition,

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NC: 2024:KHC:36532 RSA No. 1379 of 2013

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the suit has fallen to the share of the plaintiff and since from the date of partition, the plaintiff is the owner and in possession of the suit schedule property and further to substantiate his case plaintiff has produced Exs.P-1 to 3 which are the RTC extracts which stand in the name of Hanumegowda. Ex.P-4 is the mutation extract. Ex.P-5 is the sketch and Ex.P-6 is the genealogical tree of the plaintiff's family. Further, the plaintiff also examined two witnesses to establish the possession of the suit schedule property. The defendant, in rebuttal, has examined himself as D.W.1, reiterated the written statement averments, in the examination-in-chief and denied the ownership and possession over the suit schedule properties. The defendant also examined three witnesses as D.Ws.2 to 4. From the oral evidence placed on record by the parties, the plaintiff has filed a suit for declaration of title and possession and only on the basis of the revenue records, i.e., Exs.P-1 to 3 which are the RTC extracts stood in the name of Hanumegowda, but the plaintiff has not produced any records to establish his title

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over the suit schedule property. It is well established principle of law that a revenue record is not a document of title, it merely raises a presumption of possession and/or continuity thereof, both forward and backward, can always be raised under Section 110 of the Indian Evidence Act, 1872 and further, the Court cannot grant a decree for declaration based on revenue records. The Trial Court erred in decreeing the suit by relying on the revenue records, i.e., Exs.P-1 to P-3 which stand in the name of Hanumegowda.

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The Hon’ble Apex Court in the case of P. KISHORE KUMAR V. VITTAL K. PATKAR¹ , at paragraphs No.24 and 27, has held as under :

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“24. This decision was affirmed, and further elaborated upon, in Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Ors. (2019)6 SCC 82 , wherein this Court has succinctly summarized the law on burden of proof in suits for declaration of title as follows:

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“44. In the suit for declaration for title and possession, the PlaintiffsRespondents could succeed only on the

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1 2024 (1) KCCR 1 (SC)

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strength of their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The PlaintiffsRespondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents 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 confer any right or title on the party relying on them for proving their title.”

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In the light of the discussions made above, we hold that the Trial Court erred in decreeing the suit by placing on a higher probative pedestal the revenue entries. In our considered opinion, the first appellate court rightly overturned the findings of the Trial Court and dismissed the suit. The Commissioner’s order was correctly interpreted to determine as to in whom occupancy rights vested in respect of the ‘B’ schedule property.”

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The plaintiff is claiming declaration of title based on revenue records. Hence, the suit filed by the plaintiff for

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the relief of declaration of title based on revenue records is not maintainable. The first Appellate Court was justified in passing the impugned judgment. Hence, I do not find any error in the impugned judgment. Accordingly, I answer the substantial questions of law No.1 to 3 in the affirmative.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Consequently, the judgment and decree passed by the first Appellate Court is hereby confirmed.

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No order as to the costs.

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SD/(ASHOK S. KINAGI) JUDGE

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HNM, RD

Mr. Hanumegowda v. Sri Doddegowda

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Mr. Hanumegowda v. Sri Doddegowda

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