Smt. Parvathamma Vs Sri. Bheemanna

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 30.11.2012 PASSED IN R.A.NO.46/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 16.1.2007 PASSED IN OS.NO.207/2004 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) & JMFC., MADHUGIRI.

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THIS APPEAL, COMING ON FOR 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 appellants challenging the judgment and decree dated 30.11.2012, passed in R.A.No.46/2007 by the learned Additional Senior Civil Judge and JMFC, Madhugiri and the judgment and decree dated 16.01.2007, passed in O.S.No.207/2004 by the learned Additional Civil Judge (Jr.Dn.) and JMFC, Madhugiri.

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For convenience, parties are referred to based on their rankings before the trial Court. The appellants were the defendants, and the respondents were the plaintiffs.

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

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The plaintiffs filed a suit against the defendants, for a declaration of title and consequential relief of a perpetual injunction. It is the case of the plaintiffs that the suit schedule property originally belonged to the joint family of plaintiff No.1 and his brothers, including defendant No.2,

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who is the elder brother of plaintiff No.1. In 1956, plaintiff No.1, defendant No.2, Govindappa and another brother of plaintiff No.1, late Rangashamanna and his wife Narasamma, orally partitioned their joint family properties including the suit schedule property. In the said oral partition, the eastern half portion of suit property fell to the share of plaintiff No.1, and the western half portion of the suit property fell to the share of Govindappa. The parties are enjoying the suit schedule property as per the partition; the khata and pahani, including the suit schedule properties, were continued as per the previous entry untill 1984-85. In 1979, differences arose between plaintiff No.1 and other sharers, for which plaintiff No.1 and defendant No.2 filed a suit in O.S.No.27/1979 regarding other properties. Another suit was filed by plaintiff No.2 and his brothers in O.S.No.175/1981 and the suit in O.S.No.27/1979 was withdrawn. During the pendency of a suit in O.S.No.175/1981, the plaintiffs, Govindappa and other two sons entered into a compromise, and a palupatti

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was executed on 15.11.1984, adjusting their shares in which the suit schedule property was the subject matter. In terms of palupatti, the entire suit schedule property was given to plaintiff No.1 and Govindappa, who had taken a full share in the well in-lieu of the land. After the palupatti, the suit in O.S.No.175/1981 was withdrawn. The plaintiffs are residing jointly and enjoying the property. It is contended that defendant No.2 and his sons got divided the joint family properties and one of the properties fell to the share of Shivaramanna, who is the son of defendant No.2 and his son sold one of the properties in favour of son of plaintiff No.1. It is contended that in last two years, differences arose between plaintiff No.1 and defendant No.2 regarding the joint enjoyment of their share. Defendant No.2 has preferred a revenue appeal in RRT (A) No.54/2003-04, and defendant No.2 also filed suit in O.S.No.68/2004 on the file of learned Civil Judge, (Sn.Dn.), Madhugiri, against plaintiff No.1 and his sons alleging that no partition has

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taken place. The present suit schedule property was not included in O.S.No.68/2004. It is contended that the plaintiffs are the owners of the suit schedule property, and the defendants have no right, title or interest in the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction. Accordingly, pray to decree the suit.

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3.1. The defendants filed a written statement denying the entire averments made in the plaint and also denied the prior partition and filed a suit in O.S.No.27/1979 and O.S.No.175/1981. It is contended that the plaintiffs are not entitled to any relief. It is stated that the plaintiffs have not stated that the defendants are interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. It is contended that the defendants have purchased the suit schedule property from one Lingappa s/o Lingamma under a registered sale deed dated 16.10.1950 for valuable consideration. After the purchase, the defendants are in

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peaceful possession and enjoyment over the suit schedule property and the suit schedule property was got converted into non-agricultural purpose as per the orders of the Assistant Commissioner, Madhugiri and the defendants had obtained a valid license from the Grama Panchayath to construct a residential house in the suit schedule property, accordingly, the defendants have constructed to put up foundation by collecting men and materials by spending huge amount. It is contended that the plaintiffs have no right, title or interest over the suit schedule property, and there is no cause of action to file a suit. A cause of action shown in the plaint is false and imaginary and hence, pray to dismiss the suit.

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3.2. The Trial Court, based on the pleadings of the

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parties, framed the following issues:

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1) Whether the 2^nd plaintiff proves that he is the owner of the suit schedule property?

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2) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit property?

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3) Whether plaintiffs prove the alleged interference?

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4) What decree or order?

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3.3. The plaintiffs, to prove their case, plaintiff No.1

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was examined himself as PW-1, examined four witnesses as PWs.2 to 5 and marked 17 documents as Exs.P1 and P17. In rebuttal, defendant No.2 was examined as DW.1, defendant No.1 was examined as DW.2, examined two witnesses as DWs.3 and 4 and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing on both sides and assessing both verbal and documentary evidence, answered issue No.1 in the negative, issue Nos.2 and 3 in the affirmative, and issue No.4 as per the final order. The plaintiffs’ suit was partly decreed. The defendants are permanently restrained from interfering with the plaintiffs’ peaceful possession and enjoyment over the suit schedule property. The suit for declaration was dismissed by the trial court vide judgment dated 16.01.2007.

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3.4. The defendants, aggrieved by the decree for permanent injunction granted in O.S.No.207/2004, preferred an appeal in R.A.No.46/2007, on the file of learned Additional Senior Civil Judge and JMFC, Madhugiri.

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The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1) Whether decreeing the suit partly was proper?

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2) Whether the impugned judgment and decree requires interference by this court?

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3) What order or decree?

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3.5. The First Appellate Court, after re-assessing the

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verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative, and point No.3 as per the final order. The appeal was dismissed. The judgment and decree passed by the trial court was confirmed.

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3.6. The defendants, aggrieved by the judgments

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and decrees passed by the courts below, have filed this Regular Second Appeal.

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Heard the arguments of Sri. G.S.Venkat

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Subbarao and Sri. S.Nandu Kumar, the learned counsel for the defendants and Sri. K. Krishnaswamy, learned counsel for the plaintiffs.

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Learned counsel for the defendants submits

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that when the trial court has dismissed the main suit for declaration, the question of granting the consequential relief of injunction will not arise. To buttress his arguments, he placed reliance on the judgment in the case of ALBERT RODRIGUES AND ANR. VS. VALERIAN RODRIGUES reported in 2024(5) KAR.LJ 182 , and he also submits that the first appellate court, being a final fact-finding court, is required to re-appreciate the entire evidence on record. He submits that the first appellate court has not assigned any reasons, and the judgment passed by the first appellate court is not in compliance with Order 41 Rule 31 of the Code of Civil Procedure. Hence, the impugned judgments passed by the courts below are

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contrary to the ratio laid down by this court. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the plaintiffs submits that the plaintiffs are the absolute owners and in possession of the suit schedule property and revenue records are in the name of the plaintiffs. The courts below considered the entire evidence on record and rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

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This Court on 30.05.2016, admitted the appeal

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on the following substantial question of law :

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1) Whether the courts below are justified in dismissing the suit of the plaintiff for declaration of the title when the suit for permanent injunction is decreed?

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2) Whether the lower appellate Court is justified in confirming the judgment and decree of the trial Court without considering the materials as contemplated under Order 41 Rule 31 of the Code of Civil Procedure?

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3) Whether the courts below are justified in dismissing the suit for the relief of

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declaration in the facts and circumstances of the present case?

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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REG. SUBSTANTIAL QUESTIONS OF LAW NO.1 AND 3 :

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Substantial questions Nos.1 and 3 are interlinked.

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Hence, they are discussed together to avoid repetition of facts.

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Plaintiff No.1 was examined as PW.1, and he has deposed that there was an oral partition between the plaintiff and defendant No.2. In the said oral partition, the suit schedule property fell to the share of plaintiff No.1 and Govindappa. Based on the palupatti, plaintiff No.1 and Govindappa are in possession of their respective shares. In 1979, differences arose between plaintiff No.1 and other sharers. Subsequently, suits were filed and a document was executed, named and styled as palupatti dated 15.11.1984. Further, to prove their case, plaintiffs have produced the documents Ex.P1

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is the palupatti dated 15.11.1984, which discloses that partition was effected between plaintiff No.1, defendant No.2 and Govindappa and in the said partition, suit schedule property fell to the share of plaintiff No.1. Ex.P2 is the M.R register extract, Exs.P3 and 4 are the RTC extracts, Ex.P5 is the certified copy of M.R.extract, Ex.P6 is the unregistered palupatti, Ex.P7 is the original registered sale deed, Ex.P8 is the certified copy of the orders passed by the Assistant Commissioner, Exs.P9 and P10 are the endorsements, Ex.P11 is the khata extract, Ex.P12 is the endorsement of the Assistant Commissioner, Ex.P13 is the certified copy of the plaint in O.S.No.27/1979, Ex.P14 is the certified copy of the written statement, filed in O.S.No.27/1979, Ex.P15 is the certified copy of the order sheet in O.S.No.27/1979, Ex.P16 is the certified copy of the plaint in O.S.No.68/2004, Ex.P17 is the certified copy of the written statement filed in O.S.No.68/2004. Further, the

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plaintiffs, also examined four witnesses to prove the ownership and possession of the suit schedule property.

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In rebuttal, defendant No.2 was examined as DW.1. He submitted that the defendants are the owners of the suit schedule property, and they converted the land into non-agricultural purpose and identified sites. Defendant No.2 had gifted the suit property in favour of defendant No.1, who is the daughter and a widow. Defendant No.1 is the owner in possession of the suit schedule property. He denied that the plaintiffs are the owners in possession of the suit schedule property. Defendant No.1 was examined as DW.2. She has deposed that the suit property was gifted to her for arisina kumkuma, and her name appears in the revenue records. To prove the defence, the defendants have produced the documents. The certified copy of the registered sale deed is marked as Ex.D1. Ex.D2 is the license, Ex.D3 and 4 are the tax-paid receipts, Ex.D5 to

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D7 are 3 demand register extracts, Ex.D8 is the RTC

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extract, and Ex.D9 is the tax-paid receipt.

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From the perusal of the entire evidence placed on record by the parties, the plaintiffs have filed a suit for declaration of title and perpetual injunction, and they are in the possession and enjoyment of the suit schedule property. The plaintiffs to prove that they are the owners of the suit schedule property, have produced the revenue records, and except revenue records, they have not produced any title deeds. It is the settled law that merely based on the revenue records, no declaration of title can be granted in view of the law laid down by the Hon’ble Apex Court in the case of P.KISHORE KUMAR VS. VITTAL K. PATKAR , reported in 2013 SCC ONLINE SC 1483 , held in para Nos.11 and

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12, which reads as under:

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It is trite law that revenue records are not documents of title.

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This Court in Sawarni vs. Inder Kaur and Ors.2 held that mutation in revenue records neither

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creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question. (1996) 6 SCC 223.

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As observed above, the plaintiffs, except for producing the revenue records, have not produced any other records. On the contrary, the defendants have produced a certified copy of the registered sale deed marked at Ex.D1, which discloses that Lingappa S/o Lingamma executed the registered sale deed in favour of defendant No.2 and the name of defendant No.2 and his wife Puttamma was entered in the revenue records regarding the land bearing Sy.No.100/1 measuring 20 ½ X 15 yards which is a portion of land purchased by Lingappa and Ex.D8 is the RTC extract for the year 1983-85, 86 discloses that Puttamma is in possession to the extent of 1¾ guntas and Thimmarayappa, defendant No.2 is in possession of 2½ guntas of land in M.R.No.24/51-52.

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PW.1, during the cross-examination, has

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deposed that the total extent of the joint family property is 28 acres, out of which he is in possession of 10 acres of land and Govindappa is in possession of 10 acres of land. The plaintiffs claim to be the owners based on an unregistered palupatti. The said unregistered palupatti are inadmissible in evidence. Exs.P1 and P6 are not registered as per Section 17 of the Registration Act. The courts below have rightly disbelieved the Ex.P1 and have rightly declined to consider Ex.P1 and P6 and rightly dismissed the suit for declaration of title. The suit is for a declaration of title and injunction. The main prayer in the suit is for declaration, and a permanent injunction is the consequential relief. When the plaintiffs fail to prove that they are the owners of the suit schedule property, and they are not entitled to the relief of a permanent injunction.

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This Court in the case of ALBERT RODRIGUES

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AND ANOTHER (referred supra) in para No.30 held as follows:

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It is a suit for declaration with a further relief. Whether the further relief claim has, in a particular case as a consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held is not maintainable, no relief of injunction can be granted even against the true owner of the property, only when the person seeking the relief is in law full possession and enjoyment and also legally entitled to be in possession, not to dispossess in except in due process of law, so admittedly in the instant case, the trial Court dismissed the entire suit of the plaintiff wherein the appellate Court has confirmed the dismissal of the declaration of the suit, but however grated a relief of injunction, which is contrary to the law laid down by the Hon'ble Apex Court in case referred supra.

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This court has also taken the view that when the plaintiff is not entitled to the relief of declaration, the plaintiff is not entitled to the consequential relief of injunction. The courts below have committed an error in granting the permanent injunction. The impugned judgments passed by the courts below are contrary to the judgment passed by this court in the case of ALBERT

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RODRIGUES AND ANOTHER (referred supra). The plaintiffs

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did not challenge the dismissal of the suit for declaration. The said finding has attained the finality. In view of the above discussion, I answer substantial question Nos.1 and 3 in the negative.

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16. REG. SUBSTANTIAL QUESTION NO.2:

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Though the defendant, aggrieved by the judgment

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and decree passed by the trial court, preferred an appeal in R.A.No.46/2007. I have perused the judgment. Although the first appellate court being a final fact-finding court, it did not properly appreciate the entire evidence. As observed above, the plaintiffs have filed a suit for declaration and permanent injunction. The suit for declaration was dismissed. The plaintiffs have not challenged the judgment and decree dismissing the suit for declaration. The defendants have challenged the portion of judgment and decree passed by the trial Court, which granted the relief of a permanent injunction.

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The scope of interference in the first appeal was

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very limited as the defendants, aggrieved by the decree of permanent injunction, have filed an appeal. The first appellate court considering the possession has affirmed the judgment and decree passed by the trial court. The first appellate court also did not consider that when the plaintiffs suit for declaration was dismissed, they were not entitled to the relief of a permanent injunction. The first appellate court, without considering the entire material on record, was not justified in passing the impugned judgment, which is not in the compliance with Order 41 Rule 31 of the Code of Civil Procedure. Considering the judgment passed by the courts below, this court is of the opinion that the plaintiffs are not entitled to the relief of permanent injunction. In view of the above discussion, I answer substantial question No.2 in the negative.

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