Ghouse Peer Vs Muniyamma

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 23.2.2013 PASSED IN R.A.NO.10/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 27.2.2012 PASSED IN OS.NO.61/2006 ON THE FILE OF CIVIL JUDGE AND JMFC, TURUVEKERE.

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THIS APPEAL, COMING ON FOR ORDERS, 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 23.02.2013 passed in RA No 10 of 2012 by the learned Senior Civil Judge and JMFC, Turvukere and the Judgment and Decree Dated 27.02.2012 passed in OS No. 61 of 2006 by the Civil Judge and JMFC, Turvukere.

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For convenience, the parties are referred to as per their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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

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3.1. The plaintiff filed a suit against the defendants for declaration of his title to the suit schedule property bearing Sy.No.308/5 measuring 31 guntas and also Permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property.

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3.2. The plaintiff is the absolute owner in possession and enjoyment of the suit land and the said land was divided and later the said phodi was cancelled by order dated 06.12.1971 and katha was restored in the name of Ibrahim Sahib and mutation was accepted. The land was made out in favor of Ibrahim Sahib and he was in possession and enjoyment of the suit land till his death. After the demise of said Ibrahim Sahib, all the sons of Ibrahim effected partition of all the properties on 10.01.1984 and the suit schedule property and other properties fell to the share of the plaintiff. The plaintiff is in the possession of the suit property as an absolute owner from the date of partition. The defendants are strangers to

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the suit schedule property and they have no valid title to the suit schedule property, they are interfering with the peaceful possession and enjoyment of the plaintiff over the suit land and they are denying the title of the plaintiff to the extent of 18 guntas in suit Sy No.308/5, by saying that one Siddegowda s/o Nanjundegowda purchased 0-15 guntas of land from Banavasigowda s/o Marigowda on 3.11.1956. The said Banavasigowda had no right, interest or title or possession of the suit schedule property at any point of time. Hence, on these grounds, prays to decree the suit.

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Defendant No.1 filed the written statement,

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denying all the averments made in the plaint and she has stated that the suit property originally belonged to one Sannaputtegowda alias Siddegowda. He died about 15 years back and he had two wives by name Shivananjamma, defendant No.2 and defendant No.1 Muniyamma. Defendant No.2 had no issues and defendant No.3 is the son of defendant No.1 and

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Sannaputtegowda alias Siddegowda. Defendant No.3 got 4 daughters, without making them as parties, the suit filed by the plaintiff is not maintainable. Earlier, defendant No.3 had filed a for partition in OS No. 83/1993 and the said suit was ended into a compromise. Accordingly, in land Sy.No.308/5, to an extent of 18 ½ guntas, were allotted to defendant No.3 and the final decree was effected in the name of defendant No.3. After the demise of Siddegowda, defendants are in possession of the suit schedule NO property, and the Judgment passed in OS No.83/1993 attained the finality, without seeking relief to set aside the same. Hence, prays to dismiss the suit.

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The trial court, based on the pleadings of the

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parties framed the following issues:

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

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2. Whether plaintiff proves interference by the defendants?

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3. Whether the defendants prove that the 3rd defendant is the owner in possession of suit schedule property?

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4. Whether the suit is bad for non-joinder of necessary parties?

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5. Whether the plaintiff proves that the sale deed dated 3.11.1956 is concocted documents?

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6. Whether the plaintiffs are entitled for the decree as prayed for?

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7. What order or decree?

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The plaintiff, to prove his case, examined himself as PW1, examined 3 witnesses as PW2-PW4, marked 24 documents as Ex.Ps 1-24. On the other hand the defendants examined the 3rd defendant as DW1, examined one witness as DW2 and marked 14 documents as Ex.D 1-14.

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The trial court, after recording the evidence,

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hearing both sides, and on assessing the oral and documentary evidence, answered issue Nos. 1 to 6 in the negative, and issue No.7 as per the final order.

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Consequently, the trial court dismissed the suit of the plaintiff vide judgment dated 27.02.2012.

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The plaintiff, aggrieved by the judgment and decree passed by the trial court in O.S. 61/2006, preferred an appeal in R A 10/2012. The first appellate court, on hearing the parties, framed the following points for

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consideration:

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1) Whether the trial court has committed error in holding Issue No. 1, 2 and 6 in the negative?

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2) Whether the trial court has not properly appreciated the documentary evidence Ex.P1 to P24, which are produced before the trial court?

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3) Whether the Judgment and decree of the trial court is perverse, illegal, capricious and opposed to law and calls for interference?

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4) What order?

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The first appellate court, on hearing both sides

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and on re-assessment of oral and documentary evidence, answered Point No. 1 to3 in the negative, and Point No. 4

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as per the final order. The first appellate court dismissed the appeal with costs vide judgment dated 23.03.2013. The plaintiff, aggrieved by the judgments and decrees passed by the courts below, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendants..

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The learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule property and he acquired the title by way of partition effected between his family members on 10.01.1984. It is submitted that vide order dated 06.12.1971, the suit schedule land was restored in the name of the plaintiff's father, as the suit property was the phodi. It is submitted that the defendants are the strangers to the family of the plaintiff and they are not the owners of the suit property. The courts below without considering the said fact proceeded to pass the impugned judgments. Further, the trial court has held that the defendants have not proved

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their title over the suit schedule property. Instead of decreeing the suit, the trial court has dismissed the suit for declaration of title. The first appellate court, without properly re-appreciating the entire evidence on record, has confirmed the judgment of the trial court. Both courts

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below have erred in passing the impugned judgments. Hence on these grounds, prays to allow the appeal.

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Per contra learned counsel for the defendants submits that defendant No.3 is the owner in possession of the suit schedule property by virtue of the compromise decree passed in OS No. 83/1993 and the said decree had attained the finality, without challenging the same, the plaintiff cannot maintain the suit. It is submitted that, the plaintiff, except the revenue records, did not produce any documents to prove his title. It is further submitted that the plaintiff cannot depend upon the weakness of the defendants to prove his title. The both courts below have rightly passed the impugned judgments. Hence, on these grounds, prays to dismiss the appeal.

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This Court, vide order dated 01.03.2017,

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admitted the appeal on the following substantial questions of law:

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(i) Whether the courts below have erred in ignoring the position of law that restoration of Phada land, restores title to land in favour of original owner, vide Rule 119 of the Karnataka Land Revenue Rules, 1966?

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(ii) Whether the Courts below have erred in dismissing the suit of plaintiff, in spite of holding that Siddegowda had not derived title to the suit land/ 18 2 guntas in Sy.No.308/5 under a sale deed, dated 03.11.1956 from his vendor?

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Regarding the substantial question of law no.1:

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It is the case of the plaintiff that he is the owner of the suit schedule property by virtue of the partition dated 10.01.1984 between his family members. It is contended that the suit land was the phodi land and was restored in the name of the plaintiff's father vide order dated 06.12.1971. The defendants are the strangers to the plaintiff's family and have no right title or interest

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over the suit land. The plaintiff, to prove his case, examined himself as PW1. PW1 deposed that the suit schedule property was the property of the plaintiff's grandfather and after his demise the plaintiff's father became the owner and for 20-30 years the land was the phodi land. It is deposed that the defendants are the strangers to the family of the plaintiff and they have no right, title, or interest over the suit schedule property. Further, to prove his case the plaintiff examined 3 witnesses as PWs2-4 and they have deposed in the same way of the plaint averments.

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The plaintiff also produced the documents, where Ex.Ps1-2,14,18 and 22 are the RTC extracts regarding the suit schedule property, which discloses that one Ibrahim Sahab, Mayasandra was the possessor of the suit schedule property for the year 1967-1969. Ex.P3 to Ex.P5, Ex.P7, Ex.P15, and Ex.P17 are the mutation extracts, where Ex.P3 discloses that the phodi land in the suit survey no. was restored in the name of the plaintiff's

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father, vide order dated 6/12/1971. Ex.P-6 is the Tax Paid Receipt. Ex.P-8 is the Settlement Register Extract. Ex.P-9 is the C.C. of the Sale deed, dated 02.11.1956. Ex.P-10 is the Order dated 24.06.2006, in RA 128/2004-05, by Asst. Commissioner, Tiptur Sub-Division, where the appeal was preferred against the revenue entries in the name of the defendants and the same was dismissed by the Asst. Commissioner. Ex.P-11 is the Record of Rights in Form-5. Ex.P-12 is the Index of Lands. Ex.P-13 is the Irasal Receipt. Ex.P-16 is the Pakka Phodi Sketch, which discloses the name of the plaintiff's father. Ex.P-19 is the Partition deed, dated 10.01.1984, wherein the plaintiff and his brothers divided the properties of Ibrahim Sahib. Ex.P20 is the C.C. of Survey phodi. Ex.P-21: C.C. of Sale deed, dated 05.01.1931., which discloses that the property of Ibrahim Sahib is situated in the north side of the deed schedule property. Ex.P23 is the patta book and Ex.P24 is the tax paid receipt.

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In rebuttal defendant No.3 was examined as DW1, who has deposed that the suit schedule property originally belonged to the father of defendant n. 3, who had purchased the same from one Banavasi Gowda in 1956. It is denied that the suit property belonged to the plaintiff's father and after his demise the plaintiff became the absolute owner in possession of the same.

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To prove the defense of the defendants, one

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witness was examined as DW2, who has deposed the written statement averments. DW2 denied the suggestion that the plaintiff is in possession of the suit schedule property.

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To prove the defense, the defendants produced the documents where, Ex.D-1: C.C. of sale deed, dated 03.11.1956. Ex.D-2: C.C. of Order of Assistant Commissioner, In RA 149/95-96 (Ex.P10). Ex.D-3: C.C. of Order Sheet in OS 83/93. Ex.D-4: C.C. of Plaint in OS 83/93. Ex.D-5: RTC Extract. Ex.D-6: Mutation Register

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Extract. Ex.D-7: RTC Extract. Ex.D-8: Copy of Decree in OS 83/93. Ex.D-9 to 14: Tax Paid Receipts

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From the perusal of the entire evidence on record it is evident that except the revenue records the plaintiff has not produced any documents to prove the title of the suit schedule property. Though PW1 in cross examination deposed that the suit property originally belonged to his grandfather, he has not produced any records, how his grandfather and after him, his father, acquired the said suit property. The plaintiff except relying upon the mutation entries has not produced any title deeds. The plaintiff has not produced any documents to establish the ownership of his father over the suit schedule property. In a suit for declaration, the plaintiff must provide clear and convincing evidence of title. Revenue entries alone, without supporting title deeds, are insufficient to grant such declarations. Further, the mutation is an administrative act to update land records for revenue purpose and revenue records, do not

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substitute for the legal proof of title. The burden always rests on the plaintiff to provide substantive title deeds to establish ownership over the suit schedule property, conclusively.

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The Hon'ble Apex Court in the case of P. Kishore Kumar Vs. Vittal K. Patkar , in Civil Appeal No. 7210 OF 2011, disposed of on 20th November,

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2023 held in paras 11 and 12 as follows:

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

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

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Further, the Hon'ble Apex Court in the case of

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Jitendra Singh Vs. State of Madhya Pradesh and

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Ors. , reported in 2021 SCC OnLine SC 802 , held in para

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6 that,

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"6. .....mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose."

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Thus, the plaintiff's suit for declaration of title,

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based on the revenue are not maintainable. The courts below have rightly held that the plaintiff failed to establish the ownership over the suit schedule property.

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In view of the above discussion the substantial

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question of law no.1 was answered in the negative.

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Regarding the substantial question of law no.2:

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It is the case of the plaintiff that the trial court

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has held that the defendants have not proved their title over the suit schedule property. The Hon'ble Apex Court in

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the case of Union Of India & Ors Vs. Vasavi Co-Op. Housing Society Ltd. & Ors , reported in AIR 2014 SC 937 held in para 12 as follows:

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"12. It is trite law that, in a suit for declaration of title, burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and

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the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."

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Thus, from the perusal of the records it is clear that the plaintiff has failed to establish his ownership over the suit schedule property. Though the trial court has recorded that the defendants also failed to prove their ownership over the suit property, the plaintiff cannot rely upon the same. In a suit for declaration of title the plaintiff must prove his ownership over the suit land independently. He cannot depend upon the weakness of the defendant. Thus, the courts below have rightly passed the impugned judgments, in spite of holding that Siddegowda had not derived title to the suit land/18 ½ guntas in Sy.No.308/5 under a sale deed, dated 03.11.1956 from his vendor.

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