R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1646 OF 2015 (DEC) BETWEEN:
SRI G.K.SHEKHARAPPA S/O SHANTHAPPA AGED ABOUT 65 YEARS R/AT PANDOMATTI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 114 …APPELLANT (BY SRI P.M.SIDDAMALLAPPA, ADV. FOR M/S MYLARAIAH ASSOCIATES) AND:
1. THE STATE OF KARNATAKA BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE – 560 001 2. THE DEPUTY COMMISSIONER DAVANAGERE DISTRICT DAVANAGERE – 577 114 3. THE ASSISTANT COMMISSIONER DAVANAGERE SUB-DIVISION DAVANAGERE – 577 114 4. THE TAHASILDAR CHANNAGIRI TALUK DAVANAGERE – 577 114 5. SRI PRAKASH @ PRAKASHAPPA S/O MAHADEVAPPA AGED ABOUT 45 YEARS R/AT PANDOMATTI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT – 577 114 ...RESPONDENTS (BY SRI S.B.SHAHAPUR, HCGP FOR R1 TO R4; R-5 SERVED AND UNREPRESENTED) THIS APPEAL IS FILED UNDER SECTION 100 OF THE C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 16.06.2015 PASSED IN RA NO.05/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.09.2013 PASSED IN OS NO.324/2009 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appellant was the plaintiff before the Trial Court. The subject matter of the suit is land bearing No.20/p measuring 2 acres situated in Maravanji Village of Channagiri Taluk, Davanagere District.
2. Appellant filed O.S. No.324/2009 before the Principal Civil Judge and J.M.F.C., Channagiri claiming declaration of title to the said property and directions to the defendants 2 to 4, the Deputy Commissioner, the Assistant Commissioner, Davanagere and the Tahasildar, Channagiri Taluk to mutate his name in the revenue records of the suit property.
3. The case of the plaintiff in brief is as follows:
That one Karigowdappa and Barilingappa were the brothers and the property bearing Sy.No.20/p in all measuring 18 acres 03 guntas belonged to them. Karigowdappa’s grand children, Kenchabommappa and Gurusiddappa died issue less. There by his branch did not survive. Barilingappa had a son by name Shanthappa. Plaintiff and Smt. Chandramma were the children of the said Shanthappa. Thus they succeeded to the estate of Karigowdappa and Barilingappa. Out of Sy.No.20/p one Rudrappa, Lokeshappa, Kaliveerappa, Shivappa and Shekarappa were granted occupancy rights in respect of 3 acres each by the order of Land Tribunal and an extent of 2 acres remained to the original land owners and revenue entries were effected in the name of those tenants and Kenchabommappa. Plaintiff is entitled to the estate of Kenchabommappa as his heir.
4. Plaintiff filed application before the Tahasildar to mutate his name alleging that when respondents 1 to 4 introduced computerized RTC system, name of Kenchabommappa was omitted from the records of rights and to mutate his name as the heir of Kenchabommappa. Defendant No.5 contested the application claiming that he is in possession of 2 acres out of Sy.No.20/p by virtue of the order of the Land Tribunal in LRF.CR.5/1999-2000. The Tahasildar rejected the application of the plaintiff.
5. That order was challenged before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal as per order Ex.P.4. Plaintiff challenged that order before the Deputy Commissioner in Appeal No.20/2001- 2002, which came to be dismissed on 16.08.2002. Plaintiff challenged that order before this Court in W.P.No.16380/2003 (KLR-RR/SUR).
6. This Court vide order Ex.P.6 dated 19.07.2006 held that the mutation entry dated 13.07.1999 was passed based on the order of the Land Tribunal and unless order of the land Tribunal is set aside, the question of change of the said entry does not arise. It was further held as follows:
“I do not find any reason to interfere with the order of the Deputy Commissioner confirming the order of the Assistant Commissioner and in view of the fact that order passed by the Deputy Commissioner is always subject to the declaration that may be given by the Civil Court, it is open to the petitioner to work out his remedy in accordance with law before the competent Civil Court.
Accordingly, writ petition is disposed of with the above said observations”.
7. Thereafter the plaintiff/appellant filed O.S.No.324/2009 as aforesaid. Defendants 1 to 4 did not file any written statement. Defendant No.5 filed written statement contending that he is not aware of the relationship of the plaintiff with Karigowdappa and others and put the plaintiff to strict proof of his case. He further contended that plaintiff’s sister Chandramma is necessary party to the suit and in her absence suit is bad of non- joinder of necessary parties. His defence was that, out of land in Sy.No.20, occupancy rights for 2 acres was granted to him under order in LRF. CR.5/1999-2000 and by virtue of that order he is in possession and enjoyment of the said 2 acres. He contended that unless the said order is set aside, plaintiff cannot claim right over the said property.
8. On the basis of such pleadings, Trial Court framed the following issues:
“1) Whether plaintiff proves that he is the owner in possession and enjoyment of the suit property?
2) Whether plaintiff is entitled for the suit reliefs?
3) What order or decree?”
9. The plaintiff to substantiate his contention got himself examined as P.W.1 and two witnesses P.Ws.2 & 3 and got marked Exs.P.1 to P.8. Defendant No.5 got examined himself as D.W.1 and no document was produced on his behalf.
10. The Trial Court on hearing both the parties dismissed the suit holding that :
i) Except Ex.P.1, no documents were produced to show that Kenchabommappa S/o Rudrappa had 4 acres of land in Sy.No.20/p;
ii) Plaintiff has not proved his relationship with the said Kenchabommappa;
iii) Plaintiff’s witnesses i.e., P.W.2 & P.W.3 do not state what is the right of the plaintiff in the suit property;
iv) There is variance in the pleadings and evidence of the plaintiff;
v) P.W.3 admitted that defendant No.5 is in possession of 2 acres of land as the occupant/land owner; and vi) plaintiff failed to discharge his burden of proof.
11. The plaintiff challenged the said judgment and decree before the Senior Civil Judge & J.M.F.C. in R.A. No.5/2014. The learned Senior Civil Judge by the impugned judgment and decree dated 16.06.2014 concurred with the findings of the Trial Court and dismissed the appeal.
12. Sri P.M. Siddamallappa, learned counsel for M/s Mylaraiah Associates seeks to challenge the said judgment and decree in this Second appeal contending that the following substantial question of law is involved in the case:
i) Defendant No.5 had not disputed the relationship of the plaintiff with the original owner of the property. Without framing an issue on that aspect both the Courts below have negatived his contention, therefore, the judgment and order of the Courts below are perverse.
13. Defendant No.5/respondent No.5 though served remained absent.
14. Sri S.B. Shahapur, learned H.C.G.P. representing respondents 1 to 4 submits that when the plaintiff claimed the title to the property tracing the source of the same to its original owner, the burden was on him to prove the said aspect. He failed to do so. Therefore, no substantial question of law is involved in the case.
15. Under these circumstances, the point that arises for consideration, whether the case involves substantial question of law?
16. The substantial questions of law 1 to 3 framed in the appeal memorandum are to the effect that the judgment of the court below is perverse and contrary to the evidence on record.
17. Only during the course of his arguments, learned counsel for the appellant tried to submit that non framing of issues regarding the relationship is substantial question of law.
18. What is the substantial question of law in the second appeal is sufficiently expounded by the Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs AIR 2001 SC 965. Para 14 of the said judgment read as follows:
“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any list.
On the question of fact, the First Appellate Court is the last Court.
19. Section 101 of the Indian Evidence Act explains the burden of proof as follows:
“101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
20. Therefore in view of Section 101 of Evidence Act, it is for the party who approaches the Court to prove his case. He cannot say that his adversary did not dispute, he had no burden to prove the said fact. Defendant No.5 in his written statement at paragraph 1 & 2 has clearly stated that he is not aware of the relationship of erstwhile owner and plaintiff and plaintiff is put to strict proof of his blood relationship.
21. Plaintiff did not adduce any evidence to prove his relationship with Kenchabommappa whose name appears in Ex.P.1 the mutation register extract. He traces his relationship with Kenchabommappa with intervening many generations. Absolutely no material was produced in proof of his relationship.
22. Though it was contended that the land granted to defendant No.5 in LRF.CR.5/1999-2000 related to different property than the suit property, plaintiff did not produce neither the said order nor the order referred in Ex.P.1. As against that, it was contended that defendant did not produce order.
23. As already pointed out in Section 101 of the Indian Evidence Act, burden lies on the plaintiff to establish his case. So far his contention of non framing of the issues, this Court in Vishwaraj & Another –vs- B.M.Byrappa & Others LAWS (KAR) 2013 3 50 has held that if a fact raised in the suit was dealt with by courts below, the non-framing of the issue of that fact, does not amount to substantial question of law.
24. The plaintiff sought injunction against defendants 1 to 4, Government and its Officials to enter his name in the revenue records, Section 135 of the Karnataka Land Revenue Act bars the suit seeking such relief. If the plaintiff succeeds in his prayer for declaratory relief he has to produce the copy of the Judgment granting him declaratory relief before the revenue authorities and then seek for mutation entry. Under these circumstances, this Court does not find any substantial question of law to admit the appeal. Therefore, appeal is dismissed.
Sri S.B. Shahapur, learned HCGP is permitted to file memo of appearance for respondents No.1 to 4 within two weeks.
Sd/- JUDGE HR