IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2729/2006 BETWEEN:
M K ANANDAPPA S/O KENCHAPPA SINCE DECEASED BY L.R’s 1(a) A.MURTHY SINCE DEAD BY LR’s 1(a) 1. ANPOORNAMMA W/O LATE A MURTHY AGED ABOUT 35 YEARS 1(a)2. AMRUTHA D/O LATE A MURTHY AGED ABOUT 19 YEARS 1(a)3. M.NAVYA D/O LATE A MURTHY MINOR, AGED ABOUT 17 YEARS REP. BY A1(a)(1).
1(a)4. M YESHWANTH S/O LATE A MURTHY MINOR, AGED ABOUT 15 YEARS REP. BY A1(a)(1).
1(b) A. KRISHNAMURTHY S/O LATE M K ANANDAPPA AGED ABOUT 33 YEARS All ARE R/AT THORABEERANAHALLI VILLAGE, CHALLAKERE TALUK CHITRADURGA DISTRICT – 577 522.
(BY SMT. SRUTI CHAGANTI, ADVOCATE) AND:
S K KRISHNAMURTHY S/O KENCHAPPA SINCE DECEASED BY LR’s 1(a) SMT.SIDDALINGAMMA W/O LATE S N KRISHNAMURTHY AGED ABOUT 62 YEARS 1(b) S K RANGANATH S/O LATE S N KRISHNAMURTHY AGED ABOUT 42 YEARS 1(a) AND 1(b) ARE R/AT THORABEERANAHALLI VILLAGE BILEGERE HOBLI, PARUSHARAMAPURA HOBLI, CHALLAKERE TALUK CHITRADURGA DISTRICT.
1(c) S K KENCHANNA S/O LATE S N KRISHNAMURTHY AGED ABOUT 40 YEARS 1(d) S K CHIDANANDA MURTHY S/O LATE S N KRISHNAMURTHY AGED ABOUT 31 YEARS 1(c) AND (d) ARE RESIDING No.43 4TH CROSS, LAGGERE, ..APPELLANTS BANGALORE NORTH, 1(e) SHARADAMMA W/O KAME GOWDA AGED ABOUT 36 YEARS R/AT DODDAPETE, CHITRADURGA.
1(f) GETHAMMA W/O SRI GIREESHA AGED ABOUT 38 YEARS R/AT HALEYALANADU HIRIYUR TALUK.
CHITRADURGA DISTRICT – 577 522.
(BY SRI NAGARAJA M, ADVOCATE) .. RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:09.08.2006 PASSED IN R.A.NO.173/2002 (OLD NO.47/2000) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:18.12.1999 PASSED IN O.S.NO.207/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC., CHALLAKERE.
THIS RSA COMING ON FOR DICTATION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the Judgment and Decree dated 09.08.2006 passed in R.A. No.173/2002(Old No.47/2000) wherein appeal came to be allowed and Judgment and decree dated 18.12.1999 passed in O.S.No.207/94 came to be set aside and suit was dismissed.
2. Plaintiff claims that the suit schedule property is an agricultural land bearing Survey No.123/3 measuring 06 Acres 01 gunta situated at Thorabeeranahalli Village, Parasurampura Hobli, Challakere Taluk, Chitradurga District being bounded on:
East by – Land of Krishnamurthy (defendant) West by – Land of Jayanna North by – Land in Survey No.123/2 Road and South by - Land of Sadashivappa 3. Plaintiff claims that the property is in his possession and enjoyment and claims that the same is his ancestral Property. Further claims that defendant has no manner of right, title and interest and possession over the same.
4. The suit is filed for the relief of injunction and the same is resisted by the defendant who contends that plaintiff has no case. Further states that wrong measurement and wrong survey number has been mentioned and that the plaintiff is not entitled for the relief of injunction.
5. Admittedly, the defendant is said to be the owner of the landed property in Survey No.123/2 to the extent of 2 acres 15 guntas and the plaintiff claims that he is the absolute owner in possession of the land to the extent of 6 acres 1 gunta in survey No.123/3. Both are adjacent to each other. The prime dispute between the parties is that the defendant claims that he is in possession and enjoyment of the land to the extent of 6 acres 1 gunta in Survey No.123/2 and his contention is that, the extent of landed property in Survey No.123/2 in the records is shown as 6 acres 1 gunta belonging to him and also he is in possession for more than 60 years and the plaintiff is the owner of the landed property in Survey No.123/3. The claim of the plaintiff is that he acquired it by intestate succession as it belonged to ancestors to the extent of 6 acres 1 gunta in Survey No.123/3. The trial Court decreed the suit of plaintiff in O.S.No.207/1994 on 18.12.1999. However, the first Appellate Court by allowing the appeal dismissed the suit of the plaintiff. Thus this appeal is by the plaintiff.
6. Substantial question of law framed by this Court on 12.09.2007 is as under:
“Whether the lower appellate court is justified in reversing the judgment of the Trial Court by dismissing the suit.”
7. However, considering the facts and points of law involved in the suit, this Court reframes the substantial question of law as under:
‘Whether the entitlement regarding the extent mentioned in the revenue records is the conclusive evidence of title over the suit property in favour of the defendant?
8. When the ownership and possession inherited or acquired, the extent is invariably mentioned in the revenue records.
9. Learned counsel for the appellant – plaintiff submits that the defendant tried to take unfair advantage over the extent of land in Survey No.123/2 in the preliminary records. He would submit that the extent of property is properly mentioned in the records subsequently, more particularly, RTC extract by justifying the claim of the plaintiff.
10. Thus, in the circumstances, the point boils down to one aspect that plaintiff is stated to be owner of Sy.No.123/3 and defendant is stated to be owner of Sy.No.123/2.
11. Learned counsel for defendant Sri Nagaraja would submit that there are absolutely no irregularity or infirmity in the Judgment and decree passed by the first appellate court. Regarding appreciation of evidence and provision of law and the reasons assigned by the trial court do not stand to legality and reasonability. However the defect is rectified by the first appellate court. Learned counsel would submit that preliminary records of the year 1930 and period subsequent to it stood in the name of the father of defendant and thereafter his father and forefather. He would submit that there are inconsistencies in mentioning the location of the property and the identity. Learned counsel would further submit that the plaintiff and defendant are distant relatives and the land that was under the ownership and possession of the plaintiff was never 6 acres and 1 gunta at any point of time.
12. In the context and circumstances of the case, agricultural land of both plaintiff and defendant are from common survey No.123 of Thorabeeranahalli Village. Regard being had to the fact the fragmented land in Sy.No.123/3 is stated to be 6 acres 1 gunta and in Sy.No.123/2 to the extent of 2 acres 15 guntas of defendant. The plaintiff filed suit claiming interference. The defendant contends that he inherited the same from his ancestors and there was augmented possession for the period more than 60 years.
13. Also defendant has taken up the defence of adverse possession. However it appears it was not fully contested on this ground. The source of ownership very often is by succession, whether intestate or testamentary. It is stated by the plaintiff that entire suit schedule property to the extent of 6 acres 1 gunta belongs to ancestors of the plaintiff and plaintiff being a descendent has acquired the same.
14. Per contra, learned counsel for defendant would submit that the property of 6 acres and 1 gunta is the property of the defendant as it is both ancestral and also reflected by title deed.
15. According to defendant the schedule property originally belonged to defendant’s family and the same was sold through registered sale deed. Sale deed under which defendant purchased is marked as Ex.P-
10 dated 20.06.1990. It is necessary to make a mention that it was a suit simplicitor for permanent injunction by plaintiff. His claim is land to the extent of 6 acres 1 gunta at Thorebeeranahalli village. Being bounded on:
East by – Land of Krishnamurthy (defendant) West by – Land of Jayanna North by – Land in Survey No.123/2 Road and South by - Land of Sadashivappa 16. Insofar as boundaries are concerned the plaintiff accepts landed property of defendant- S.K.Krishnamurthy. Now that the contention of the defendant is that schedule property is his ancestral property and it was sold way back by forefather of defendant but were repurchased under Ex.P-10 which is registered sale deed dated 20.06.1990. The boundaries of the properties as found in the said registered sale deed is as under:
East by : Property of Anandappa and defendant West by : Land of defendant North by : Anandappa’s land and South by : Road 17. The property sold to the extent of 2 acres 15 guntas of land. The revenue entries in the beginning in preliminary records is stated as Sy.No.123/2 is to the extent of 6 acres 12 guntas and Sy.No.123/3 to the extent of 2 acres and 3 guntas. However Ex.D-5 is one of the prime documents relied upon by the defendant and it is of the year 1930. However RTC extract marked as Ex.P-1 to P-9 commencing from 1970-71 to 1991-92 bear the names of plaintiff and in the said documents the extent is shown as 6 acres 1 gunta along with foot kharab A and B. Insofar as plaintiff is concerned it is his version that it is an ancestral property. Thus, none of the document contains the boundaries more particularly they are revenue entries which do have presumptive value. In this connection learned counsel for appellant would submit that mistake crept in preliminary records and that was rectified subsequently when the revenue department started issuing RTC. The defendant is concerned he claims that he has been in possession and that the property is to the extent of 6 acres 1 gunta and not 2 acres 15 guntas. If such being the case the defendant invariably has to give account of source of acquisition of 4 acres 26 guntas. If it is ancestral property whether Sy.No.123/3 or other the same should be evidenced by revenue record inspiring confidence.
18. A mistake or an error in mentioning the extent by itself cannot confer title. In this connection the sketch that was filed in the case are Ex.D-12 and Tippani Book-Ex.D-13. In this connection learned trial Judge considering the documents filed by plaintiff came to the conclusion that title of the land and possession of plaintiff is to the extent of 6 acres 1 gunta. However in appeal the first appellate Judge dismissed the suit of the plaintiff by allowing the appeal. Learned appellate Judge found that the defendant is in possession of 6 acres 1 gunta in Sy.No.123/2 and possession of the plaintiff is 2 acres 15 guntas in Sy.No.123/3.
19. In the context and circumstances nodoubt that the plaintiff cannot succeed on the basis of weak points of the defendant but he is expected to sink or sail on the basis of materials.
20. Thus, in the present case the documents, version, pleading sink with one aspect i.e., Sy.No.123/3 in the preliminary records was mentioned as 2 acres 3 guntas and Sy.No.123/2 6 acres and 12 guntas. It is a process of perusal and transfer of revenue entries that has resulted in RTC right from the year 1971 that endorses the entries in favour of the ancestors of the plaintiff and subsequently in the name of the plaintiff. It is necessary to mention Section 133 of the Karnataka Land Revenue Act regarding presumptive value of revenue entries.
“Section 133 – Presumption regarding entries in the records – An entry in the Record of Rights and a certified entry in the Register of Mutations (or in a patta book) shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.”
21. Whatever the wrong entries in the preliminary record that were rectified by the revenue department and the same is evidenced by RTC extracts Ex.P-1 to P-9. In this connection presumptive value favour the documents filed by the plaintiff more particularly there is no allegations of fraud or fabrication of the revenue entries or documents. Learned counsel for defendant would submit in the preliminary records the order of mentioning land as per Ex.D-5 and D-10 Sy.No.123/1 followed by Sy.No.123/3 and then 123/2 vertically. No explanation is given regarding the entries. Finally the point that boils down is that the revenue entries were erroneously made in the preliminary records and subsequently rectified continuously from 1970-71 till 1991-92. The entries are in favour of the ancestors of plaintiff and subsequently plaintiff. In the circumstances the learned trial Judge has disposed of the matter by decreeing the suit with his sound reasoning. Learned Civil Judge (Sr.Dn), Challakere erred seriously in assigning reasons beyond the scope of the suit and has not at all considered the aspect of law under Section 133 of the Karnataka Land Revenue Act and revenue entries are not challenged right from the year 1971 till the suit is filed in the year 1994. The defence of the respondent/defendant appears to have been made to take advantage of the error that prevailed in the revenue documents in respect of the extent of land. The Judgment and decree passed by the appellate Judge is erroneous and faltered insofar as reasons are concerned and the same is liable to be set aside and that the Judgment and decree passed by the trial court in O.S.No.207/94 deserves to be confirmed. Substantial question of law is answered accordingly.
Hence, the following:
ORDER Appeal is allowed. Judgment and decree dated 09.08.2006 passed in R.A.No.173/2002 by the Civil Judge (Sr.Dn), Challakere, is set aside and Judgment and decree dated 18.12.1999 passed in O.S.No.207/94 by the Civil Judge (Jr.Dn) and JMFC, Challakere is confirmed.
No order as to costs.
I.A.1/2013 filed for production of additional documents is allowed. Documents are considered.
Sd/- JUDGE tsn*/Nvj/SBN