VERDICTUM.

IN

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF APRIL, 2024 R

BEFORE

THE HON'BLE MR. JUSTICE H.P. SANDESH

R.S.A. NO.1837/2008 (DEC)

C/W.
R.S.A. NO.1838/2008 (DEC)

IN R.S.A. NO.1837/2008:

BETWEEN:

1. PATEL VEERAPPAIAH
S/O VEERABASAIAH
AGED ABOUT 84 YEARS

SINCE DEAD BY HIS LRS

1(a) P.V.SIDDAIAH
S/O LATE PATEL VEERAPPAIAH
AGED ABOUT 40 YEARS

1(b) P.V.GANGADHARASWAMY
S/O LATE PATEL VEERAPPAIAH
AGED ABOUT 35 YEARS

BOTH ARE R/O. AVERAGOLLA VILLAGE

DAVANAGERE TALUK & DISTRICT-577589.

(AMENDED VIDE COURT ORDER DATED 14.03.2017)

2. D. SIDDAIAH
S/O MURUGENDRAIAH
AGED ABOUT 74 YEARS
SINCE DEAD BY HIS LR
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D.S.GANGADHARASWAMY
S/O LATE D.SIDDAIAH
AGED ABOUT 45 YEARS
R/O. AVERAGOLLA VILLAGE
DAVANAGERE TALUK & DISTRICT-577589.

(AMENDED VIDE COURT ORDER DATED 14.03.2017)

3. B.M. SHANMUKHAIAH
S/O EKAMBARAIAH
AGED ABOUT 54 YEARS

ALL ARE AGRICULTURISTS

R/O. AVERAGOLLA VILLAGE
DAVANAGERE TALUK AND
DISTRICT-577589.
… APPELLANTS

[BY SRI SUNIL KUMAR PATEL, ADVOCATE FOR

SRI S.K.VENKATA REDDY, ADVOCATE]
AND:

SRIMAN MAHARAJA NIRANJANA JAGADGURU

SRI SRI SHIVAMURTHY MURUGHARAJENDRA
MAHASWAMIGALU, SRI BRUHANMATH,
CHITRADURGA-577 501.
BY POWER OF ATTORNEY HOLDERA
M.PARAMESHWARAIAH S/O RUDRAIAH
AGED ABOUT 56 YEARS
BRUHANMUTT
CHITRADURGA TALUK & DISTRICT.
… RESPONDENT

(BY SRI M.P.SRIKANTH, ADVOCATE)

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGEMENT AND DECREE DATED 28.06.2008
PASSED IN R.A.NO.21/2006 ON THE FILE OF THE ADDL.
SESSIONS JUDGE, FAST TRACK COURT-II, DAVANAGERE,
 VERDICTUM.IN

DISMISSING THE APPEAL AND FILED AGAINST THE JUDGEMENT

AND DECREE DATED 25.02.2006 PASSED IN O.S.NO.202/1995
ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) DAVANAGERE
AND ETC.

IN R.S.A. NO.1838/2008:

BETWEEN:

1. PATEL VEERAPPAIAH
S/O VEERABASAIAH
AGED ABOUT 84 YEARS

SINCE DEAD BY HIS LRS

1(a) P.V.SIDDAIAH
S/O LATE PATEL VEERAPPAIAH
AGED ABOUT 40 YEARS

1(b) P.V.GANGADHARASWAMY
S/O LATE PATEL VEERAPPAIAH
AGED ABOUT 35 YEARS

BOTH ARE R/O. AVERAGOLLA VILLAGE

DAVANAGERE TALUK & DISTRICT-577589.

(AMENDED VIDE COURT ORDER DATED 14.03.2017)

2. D. SIDDAIAH
S/O MURUGENDRAIAH
AGED ABOUT 74 YEARS
SINCE DEAD BY HIS LR
D.S.GANGADHARASWAMY
S/O LATE D.SIDDAIAH
AGED ABOUT 45 YEARS
R/O. AVERAGOLLA VILLAGE
DAVANAGERE TALUK & DISTRICT-577589.

(AMENDED VIDE COURT ORDER DATED 14.03.2017)

 VERDICTUM.IN

3. B.M. SHANMUKHAIAH
S/O EKAMBARAIAH
AGED ABOUT 54 YEARS

ALL ARE AGRICULTURISTS

R/O. AVERAGOLLA VILLAGE
DAVANAGERE TALUK AND
DISTRICT-577589.
… APPELLANTS

[BY SRI SUNIL KUMAR PATEL, ADVOCATE FOR

SRI S.K.VENKATA REDDY, ADVOCATE]
AND:

SRIMAN MAHARAJA NIRANJANA JAGADGURU

SRI SRI SHIVAMURTHY MURUGHARAJENDRA
MAHASWAMIGALU, SRI BRUHANMATH,
CHITRADURGA.
BY POWER OF ATTORNEY HOLDERA
M.PARAMESHWARAIAH
S/O RUDRAIAH
AGED ABOUT 56 YEARS
BRUHANMUTT
CHITRADURGA TALUK & DISTRICT.
… RESPONDENT

(BY SRI M.P.SRIKANTH, ADVOCATE)

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGEMENT AND DECREE DATED 28.06.2008
PASSED IN R.A.NO.20/2006 ON THE FILE OF THE ADDL.
SESSIONS JUDGE, PRESIDING OFFICER, FTC-II, DAVANAGERE,
DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND
DECREE DATED 25.02.2006 PASSED IN O.S.NO.198/1994 ON
THE FILE OF THE PRL. CIVIL JUDGE, (SR.DN), DAVANAGERE
AND ETC.

THESE APPEALS HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 15.04.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT

1. Heard the learned counsel for the appellants and

also the learned counsel for the respondent in both the

appeals.

2. The parties are referred to as per their original

rankings before the Trial Court in order to avoid confusion

and for the convenience of the Court.

3. These two appeals are filed by the defendants

questioning the judgment and decree passed in

O.S.No.198/1994 and also O.S.No.202/1995 and confirming

the same in the Regular Appeal in R.A.No.20/2006 and

R.A.No.21/2006 respectively. These two second appeals are

filed against the concurrent findings.

4. The suit in O.S.No.198/1994 is filed for the relief

of declaration and injunction claiming in respect of land in

Sy.No.73 measuring 8 acres 12 guntas of land in Avaragolla

village, Davanagere Taluk and one deceased Kotraiah was

the convener of the plaintiff and plaintiff is in lawful

 VERDICTUM.IN

possession over the suit schedule property as on the date of

suit and title is vested with the plaintiff. The defendants

tried to interfere with the suit schedule property. Hence,

the plaintiff is entitled for the relief of declaration and

injunction. The defendants in pursuance of suit summons

appeared before the Trial Court and filed written statement

contending that suit schedule property originally belongs to

‘Igalu Samastharu’ and plaintiffs are not the owner of the

suit schedule property and not having title to the suit

schedule property. Hence, the Trial Court taking into note of

the averments of the pleadings and also the contention in

the written statement framed the following issues:

ISSUES IN O.S.No.198/1994

1) Whether plaintiff proves its title to the suit

schedule property?

2) Whether plaintiff further proves that

deceased Kotraiah was convener of
plaintiff?
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3) Whether plaintiff further proves its lawful

possession over suit property as on date of
suit?

4) Whether plaintiff proves interference by

defendants as alleged?

5) Whether plaintiff is entitled for declaration

and injunctions as sought for?

6) Whether defendants prove that suit

property originally belonged to ‘Igalu
Samastharu’ as pleaded in the written
statement?

7) To what relief/s the parties are entitled to?

8) What order or decree?

5. The plaintiffs have also filed another suit in

O.S.No.202/1995 contending that the Gaddige and the site

measuring 40 x 80 belongs to the plaintiff and they are the

owners of the suit schedule property and also contend that

the defendants are trying to interfere with the possession of

the plaintiff. Hence, sought for the relief of declaration and

 VERDICTUM.IN

injunction. In pursuance of the suit summons, defendants

appeared and filed written statement contending that they

are perfected their title of suit schedule property by adverse

possession and also suit is bad for non-joinder of necessary

parties. The suit is also barred by limitation under Article 65

of Limitation Act and the suit has to be dismissed with

exemplary cost. Hence, the Trial Court taking into note of

the averments of the pleadings and also the contention in

the written statement framed the following issues:

ISSUES IN O.S.No.202/1995

1) Whether plaintiff proves its title to the suit

property?

2) Whether plaintiff proves interference by

defendants as alleged?

3) Whether defendants prove that they have

perfected their title to the suit property by
adverse possession?
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4) Whether plaintiff is entitled for declaration

and injunction sought for?

5) Whether the suit is bad for non-joinder of

necessary parties?

6) Whether the suit is barred under Section

65 of Limitation Act as alleged by
defendants?

7) Whether defendants are entitled for

exemplary costs of Rs.5,000/-?

8) What order or decree?

6. Both the suits are clubbed together since the

parties are one and the same in both the suits. The

plaintiffs in order to prove their case, examined PW1 to

PW8 and got marked Ex.P1 to Ex.P23. On the other hand,

the defendants have also examined 5 witnesses as DW1 to

DW5 and got marked Ex.D1 to Ex.D119. The Trial Court

having considered both oral and documentary evidence

available on record, answered issue Nos.1 to 5 in

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10

O.S.No.198/1994 and also issue Nos.1 to 4 in

O.S.No.202/1995 as affirmative. The Trial Court answered

issue No.6 in O.S.No.198/1994 as negative and so also

issue Nos.5 to 7 in O.S.No.202/1995 as negative and

accepted the case of the plaintiff in both the suits and

granted the relief as prayed in both the suits declaring that

the plaintiff is the absolute owner and in possession of the

suit land bearing Sy.No.73 and also the property bearing

kaneshumari No.2 of Avaragolla village, Davanagere Taluk

as described in the schedule. The Trial Court also granted

permanent injunction restraining the defendants from

interfering with the suit possession and enjoyment of the

suit schedule property in O.S.No.198/1994 and

O.S.No.202/1995. Being aggrieved by the judgment and

decree of Trial Court, the defendants have filed Regular

Appeal in R.A.No.20/2006 and R.A.No.21/2006 on the file

of Addl. Sessions Judge, Fast Track Court-II, Davanagere.

The Appellate Court on re-appreciation of both oral and

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11

documentary evidence available on record, formulated the

points whether the plaintiff in both the suits proved that the

suit schedule property owned by “Virakta Mutt” and that,

the ‘Virakta Mutt ’ of Avaragolla village is the Shaka Mutt of

Sri.Bruhanmutt, Chitradurga, Whether the defendant have

proved that the suit schedule property in both the suits

formerly belonged to ‘Igalu Samstharu’ of Avaragolla

Village. The name of ‘Virakta Mutt’ is misnomer. The entries

in revenue records as ‘Virakta Mutt’ is incorrect. The same

is entered by ignorance of concerned revenue officials. It is

infact ‘Puravargamutt’ (Shaka Mutt of Sri Rambhapuri

Peeta). The possession and management of the suit

schedule property is vested with the five families of ‘Igalu

Samastharu’ of Avaragolla village, who are subjected to the

supervision, control and jurisdiction of Sri Rambhapuri

Peeta as alleged in the written statement, whether the

defendants have proved alternatively that, they have

perfected the title by adverse possession, Whether the

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12

suits are bad for non-joinder of necessary parties as

contended in the written statement, whether the suit is

barred by time, whether the common judgment and decree

dated 25.02.2006 the granting the decree in favour of the

plaintiffs requires interference by this Court.

7. The First Appellate Court having re-assessed

both oral and documentary evidence placed on record

answered point No.1 as affirmative in coming to the

conclusion that both the suit schedule properties are owned

by ‘Virakta Mutt’ and ‘Virakta Mutt’ of Avaragolla village is

the Shaka Mutt of Sri Bruhanmutt, Chitradurga. The other

point for considerations are answered as negative not

accepting the case of the defendants/appellants.

8. Being aggrieved by the judgment and decree of

Trial Court as well as the First Appellate Court, these two

second appeals are filed before this Court and contended in

both the appeals that both the Courts committed an error in

decreeing the suit and the suit schedule land was owned
 VERDICTUM.IN

13

and possessed by the Paldar Patel’s family and its

members. There was a usufructuary mortgage deed

executed by one Mahalingappa S/o of Kodihalli Rudrappa in

favour of Swamiji of Veeragangadhara Rambhapuri Peetha

by paying an amount of Rs.400/- for enjoying the said

property for a period of 10 years. In the said process one

Sri.Ganji Veerappa, who was an M.L.C, Davanagere had

accepted the mortgage amount and credited to the Mutt of

Rambhapuri Peethadhyaksha namely

Veerasimhasanadheeshwara Shree Veeragangadhar

Shivacharya Mahaswamiji of Balehonnur, Rambhapuri

Peetha. The said usufructuary mortgage deed came to be

registered on 11.06.1952. On the basis of said registered

document, the entries in revenue records, i.e., R.R-V and

R.R-VI came to be made in the name of Rambhapuri Peetha

as they are the owners of the schedule land and defendants

are looking after the same. The names of the

defendants/appellants herein shown as actual cultivators

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14

who are in possession and the mode of cultivation as self

(swantha) as such schedule land is under the ownership of

the said Sangha through the appellants/defendants who are

the Moola Hiduvalidars i.e., original owners and cultivators.

In order to prove the same, the counsel relied upon the

document Ex.D17 i.e., notification dated 28.07.1970

wherein a portion of land measuring about 7 guntas in

Sy.No.73 came to be acquired for the purpose of Bhadra

canal and also for formation of road Davanagere-Kondajji,

where the compensation in respect of acquired land was

awarded and disbursed to the defendants/appellants and

their family members.

9. It is also contended that defendants/appellants

offered 20 guntas in Sy.No.73 to a co-operative society, 2G

for ANM quarters and about 1 gunta for construction of

water tank. It is also contended that 2 guntas was acquired

for laying Kondajji-Davanagere road in terms of Ex.D48. It

is also contended that there is a inscription (Shilashasana)

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15

in the stone found in the schedule land, which discloses the

origin that the land was given to Bisiaggani Channabasappa

Swamy from Igalu Samstharu of Avaragolla Village which is

apparent from Ex.D54 to Ex.D56. There are kandaya

receipts paid by the defendants as per Ex.D52 and Ex.D53.

The resolution book Ex.D46 discloses that the office bearers

of Renuka Mandir headed by convener Kotraiah shows the

particulars of auctioning of cultivation right which further

discloses accounts. But the appreciation made by both the

Courts is erroneous and registered mortgage deed dated

11.06.1952 as per Ex.D62, wherein there is a recital that

the same was executed in favour of Veeragangadhara

swamy of Rambhapuri Peetha. The documentary evidence

before the Trial Court was not considered by both the

Courts. Hence, it requires interference.

10. In second appeal R.S.A.No.1838/2008 also the

counsel would vehemently contend that the property

belongs to ‘Paldar Patel Veerappaiah’ family, the said plaint

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16

schedule property originally belongs to ‘Igalu Samstharu’

and as per the inscription in the very land (Ephigrahica)

carnation of Davangere number (96), it is shown that the

schedule land was offered by all the said Igalu to Basaganni

Channabasava Swamiji who was the head of the only Mutt

in Avaragolla village, which is also called as Puravarga Mutt

a holyman held in high esteem, the successors of said Igalu

and the members of the Veerashaiva community are the

devotees of the said Swamiji and his successors in his

office. The said Mutt was popularly known as Virakta Mutt

by some misnomer might be at the instance of the disciples

or the revenue officers, but the said Mutt is a Shaka Mutt of

one of the Pancharaya Peeta of Sri.

Veerasimhasanadheeshwara of Sri Rambhapuri

Mahasamsthan founded by Sri.Renukacharya. The

customary traditions and practice followed by the said 5

families of ‘Paldar Patel Veerappaiah’ family, the swamiji of

said Mutt is to adorn the Peeta. The suit schedule land was
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17

owned and possessed by Paldar Patel family and its

members. In this case also contended that there was a

mortgage in the year 11.06.1952 and similar defense was

taken in the written statement. It is also contended that

both the Courts have committed an error in granting the

relief of declaration and fails to take note of relevant

document of registered mortgage i.e., Ex.D62 and other

materials which have been placed before the Court and only

committed an error in taking note of revenue wrong entries

made in the documents and the same will not create any

title. Both the Courts have committed an error in granting

the relief of declaration only based on the revenue records.

11. This Court taking into note of the grounds

urged in both the second appeals has framed the following

substantial question of law on 15.11.2011:

1) Whether the Courts below are right

and justified in law in declaring the plaintiff as
owner of the suit property without the
documents of title in favour of plaintiff just on
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18

the basis of revenue entries, in contravention of

Section 17(1)(b) of Registration Act and settled
law by Apex Court?

2) Whether the Courts below are

justified in law in granting the relief of perpetual
injunction, when the plaintiff failed to prove title,
through which alleged possession is claimed?

12. The counsel appearing for the appellant in his

argument vehemently contend that both the Courts have

committed an error in granting the relief of declaration and

injunction only based on the revenue entries. The counsel

would vehemently contend that when the relief is sought for

the relief of declaration and ought to have produced the

document of title deeds and without the document of title

deed in favour of the plaintiff, on the basis of revenue

entries, there cannot be granting of any relief of declaration

and the same is in contravention of Section 17(b) of

Registration Act. Both the Courts have committed an error

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in granting the relief of permanent injunction. The counsel

would vehemently contend that the said Kotraiah is

appointed as Vice President of Mutt and he was the Vice

President of defendant Mutt and also there was a mortgage

for Rs.400/- in favour of Rambhapuri Mutt for a period of 10

years. The counsel also would vehemently contend that

with regard to the said fact, there is an entry in R.R–V and

R.R-VI even prior to 1952 mortgage. The counsel would

vehemently contend that when the land was acquired to the

extent of 7 guntas, compensation also paid to the

defendants and these materials have not been considered

by both the Trial Court as well as the First Appellate Court.

The counsel would vehemently contend that permission was

given to construction of quarters as well as water tank and

also for formation of road. The counsel also would

vehemently contend that Shilashasan found for giving the

land and tax receipts are also produced. No title of

ownership in favour of plaintiff, though examined PW1 to

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PW7 and got marked the exhibit P-series of documents and

the same not evidence the fact of title. The DW1 to DW5

have examined and got marked 119 documents and those

documents are not considered and without any title, passed

the judgment of declaration and injunction.

13. The counsel in support of his argument he relied

upon the judgment reported in 2023 Live Law (SC) 999

in case of P.Kishore Kumar V/s Vittal.K.Patkar and

Apex Court categorically held that the revenue records are

not documents of title. The Trial Court erred in decreeing

the suit by placing on a higher probative pedestal the

revenue entries.

14. The counsel in support of his argument he relied

upon the judgment reported in 1993 Supp (2) Supreme

Court Cases 560 in case of Sri Chand V/s Inder and

others and referring this judgment, the counsel would

vehemently contend that when the plaintiff fails to establish

his case, the question of whether the defendant had

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lawfully acquired any sub-tenancy rights under the

predecessor interest need not be gone into as even in

absence thereof, weakness of defendant’s case would not

strengthen the plaintiff’s case.

15. The counsel in support of his argument he relied

upon the judgment reported in ILR 2014 KAR 1311 in

case of Smt.Sumitra Bai V/s P.Siddesh and another

wherein also this Court has observed that burden heavily

rests on the plaintiff to prove his title, need to produce

convincing and cogent evidence to the satisfaction of the

Court to establish the title to the property in dispute and

made an observation that weakness of the defendant’s case

would not strengthen plaintiff’s case. The plaintiff has to

prove his case to the satisfaction of the Court to means of

convincing and cogent evidence not necessarily beyond

reasonable doubt. If this burden is discharged, then only

onus shifts on to the defendant to establish the plaintiff’s

case as false and on the other hand the defendant’s case is

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22

probabalized on the basis of the materials on record. The

Courts cannot on the basis of distorted admission or on the

basis of the disputed/not proved documents draw an

inference in order to grant any remedy to any of the parties

to the suit.

16. The counsel also relied upon the judgment

reported in (2014) 2 Supreme Court Cases 269 in case

of Union of India and others V/s Vasavi Co-operative

housing society limited and others wherein also an

observation is made when the suit is filed for a declaration

of title and possession, burden is on the plaintiff to establish

its case, irrespective of whether defendants prove their

case or not. In the absence of establishment of his own

title, the plaintiff must be non-suited even if title set up by

defendants is found against them, weakness of case set up

by defendants cannot be a ground to grant relief to plaintiff

and discussed Section 101 to 103 of Evidence Act, 1872.

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The entries in revenue records, do not confer any title and

also discussed Section 35 of Evidence Act, 1872.

17. Per Contra, the counsel appearing for respondent

in his argument would vehemently contend that Section

110 of Evidence Act is very clear with regard to the

possession with the plaintiff and the evidence of DW1 and

DW3 is very clear in admission with regard to the title of

the plaintiff and when there is clear admission on the part

of the defendant that the property belongs to the plaintiffs

and question of disturbing concurrent finding of both the

Courts cannot be done. The counsel in support of his

argument he also brought to notice of this Court the very

proviso of Section 110 of Evidence Act with regard to the

presumption as to possession both backward and forward

can be raised.

18. The counsel in support of his argument relied

upon the judgment reported in (2008) 5 SCC 25 in case

of Patinhare Purayil Nabeesumma V/s Miniyatan

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Zacharias and another and brought to notice of

paragraph No.24 wherein discussion was made with regard

to the appellant-plaintiff has been able to prove for her title

as also the possession. The counsel also would vehemently

contend that when the presumption of possession when can

be drawn under Section 110 of Evidence Act also discussed

in the said judgment and in order to find out which party

would be entitled assigned for right, title, interest and

possession, it has to be found out who was the cultivating

tenant within the meaning of Section 13.

19. The counsel also relied upon the judgment

reported in (2013) 9 SCC 319 in case of State of

Andhra Pradesh and others v/s Star Bone Mill and

Fertiliser Company and counsel referring this judgment

would vehemently contend that ownership and title and

proof presumption of title in favor of possessor under

Section 110 of Evidence Act and discussed Evidence Act,

1872, presumption of title as a result of possession arises

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only where the fact discloses that no title vests in party,

further held, where possession of plaintiff is not prima facie

wrongful, and his title is not proved, it certainly does not

mean that because a man has title over same land, he is

necessarily in possession of it. It in fact means that, if at

any time a man with title was in possession of said

property, the law allows the presumption that such

possession was in continuation of title vested in him. Thus,

all that Section 110 of Evidence Act provides for is that

where apparent title is with the plaintiffs, then in order to

displace the said claim of apparent title and to establish

good title in himself, it is incumbent upon defendant to

establish by satisfactory evidence in the circumstances that

favor defendant’s version. Presumption of possession

and/or continuity thereof, both forward and backward can

be raised under Section 110 of Evidence Act, 1872.

20. Having considered the grounds urged in the

appeal memo and also the respective submissions of both

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26

the counsel and so also the principles laid down in the

judgments referred supra and also the substantial question

of law, this Court has to exercise the powers conferred

under Section 100 of CPC. It is not in dispute that if

findings of both the Courts are perverse and not on material

on record, the Court can exercise the power under Section

103(a) and (b), the material on record also discloses that in

both the suits, the plaintiff has sought for the relief of

declaration and injunction. It is also not in dispute that the

main contention of the appellant before this Court is that

there was a mortgage for Rs.400/- in favour of Rambhapuri

Mutt for a period of 10 years, the same does not convey

any title in favour of the appellant also. The other

contention is also that an extent of 7 guntas of land was

acquired and compensation was also paid to the

appellants/defendants, the same has not been considered

by both the Courts. It is also the contention of the

appellant’s counsel that permission was given to construct

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27

quarters, water tank and also for formation of road. The

document which have relied upon by the defendants are not

the title deeds. No dispute with regard to the acquisition of

land to an extent of 7 guntas and gazette is also marked.

21. It is also important to note that either the

defendant or the plaintiff have not produced any title deed

which conveys the title in respect of any of the parties. This

Court also framed the substantial question of law without

the documents of title in favour of plaintiff and on the basis

of revenue entries, whether the Court can grant the relief of

declaration in contravention of Section 17(1)(d) of

Registration Act and also settled law by the Apex Court. It

is also important to note that the judgment which have

been relied upon by the appellants also, in the recent

judgment of P.Kishore Kumar reported in (2023) Live Law

SC 999 is also clear that revenue records are not

documents of title. The Trial Court erred in decreeing the

suit by placing on a higher probative predestine in the

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revenue entries. It is also important to note that both the

Courts have taken note of revenue entries found in the

documents which have been relied upon by both the

plaintiffs as well as defendants. I have already pointed out

that seeking for the relief of declaration, it is also settled

law that revenue entries cannot be the basis for granting

the relief of declaration and the same is also taken note of

by the Trial Court while answering issue in favour of the

plaintiffs in both the suits. However, the Trial Court taken

note of Ex.P1 –Pahani for the year 1992-93 and 1993-94, it

reveals that the suit schedule property stands in the name

of Kotraiah who is none other than the convener of the

plaintiffs Mutt as per column No.12(2). The Trial Court also

taken note of column Nos.9 and 10 of the said document, it

reveals that the suit property comes to the Mutt through

Hiduvalidar and the said property is in the possession of

‘Virakta Mutt‘.
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22. The Trial Court also taken note of the document

Ex.P3-Local publication of Davanagere times, it has been

published about the litigation of the said property. So also

taken note of Ex.P5 issued by the Tahsildar,

Narasimharajapura Taluk, it further reveals that the suit

schedule does not belongs to Rambhapuri Mutt and the said

fact is also reveals under Ex.P6. The Trial Court also taken

note of the defendants have also produced RTC extracts

Ex.D4 to Ex.D11 for the year 1966-67 to 1971-72, 1972-73

to 1976-77, 1977-78 to 1981-82, 1980-81 to 1984-85,

1985-86 to 1989-1990, 1990-91 to 1994-1995, 1995-96

and 1998-99. Taking into note of Ex.D4 to Ex.D11 also, suit

schedule property is in the possession of the ‘Viraktha Mutt’

as per column No.9 of the said document. The said property

came to them as Moola hiduvalidar as per column No.10 of

the said document. The Ex.D12 also reveals that after the

death of Kotraiah, it was mutated in the name of

Veerappaiah S/o Veerabasaiah and his son name is entered

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at column No.12(2) in the RTC extract. Further taken note

of Ex.D13 suit schedule land bearing Sy.No.73 is in the

name of the Virakta Mutt and also taken note of Ex.D14 R R

extract of index of land also clearly reveals that the land

bearing Sy.No.73 of the Avaragolla village measuring,

measuring 8 acres 27 guntas of land stand in the name of

Virakta Mutt. These are the document which have been

relied upon by the Trial Court considering the possession of

the plaintiff.

23. Both the Trial Court and the First Appellate Court

carried away the admission given by DW1 and DW5. During

the cross-examination, both of them stated that Puravarga

Mutt belongs to the Panchapeeta and Peetadishwara of

Bhruhan Mutt of Chitradurga is called as

Shoonyapeetadhishwara and Panchapeeta is not called as

Shoonyapeetadhishwara and Panchapeetadhishwara is

called as Shri Shri Shri 1008 Jagadguru. Taken note of the

fact that both the Panchacharyas and Shoonyapeeta are

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different and distinct entities. DW1 further categorically

admits that Virakta Mutt not belongs to their sect and also

admitted that the suit schedule property belongs to Virakta

Mutt. The admission of DW1 is extracted in paragraphs 27

to 29 of the judgment of the First Appellate Court and also

taken note of the admission on the part of DW3 and the

same is extracted in paragraph 32 of the judgment of the

First Appellate Court that Puravarga Mutt belongs to

Panchapeeta and Virakta Mutt belongs to Shoonya Mutt.

Both Panchapeeta and Bhruhan Mutt are different and

Bhruhan Mutt of Chitradurga belongs to Shoonyapeeta. He

categorically admits that the suit schedule property belongs

to Virakta Mutt and people of Panchapeeta are not belongs

to Virakta Mutt and Virakta Mutt not comes under the

Rambhapuri Mutt. Based on all these admissions of DW1

and DW3 and other admission on the part of DW4 and

DW5, the First Appellate Court comes to the conclusion that

both are separate and distinct entities. Whereas Virakta

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Mutt comes under the direct control and jurisdiction of Sri

Bhruhanmutt, Chitradurga. In paragraph 36, the First

Appellate Court also taken note that revenue records are

not title deeds. The observation is made that in the

absence of title deeds, the entries found in revenue records

could be used to trace the title to the disputed property.

The First Appellate Court also observed that both the rival

parties do not have the title deeds to prove the ownership

and the dispute has to be settled on the basis of

preponderance of probabilities.

24. Having considered the material available on

record and also discussion made by the First Appellate

Court, it discloses that there are no title deeds but

considered the documents at Ex.P1, P15 and P17 wherein

the entries are found in the name of Virakta Mutt and also

taken note of Ex.D14 – Index of land, Ex.D17 – Land

Acquisition notification which also reflects in the relevant

column as ‘Virakta Mutt’ and considering all these revenue

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entries comes to the conclusion that the plaintiff has proved

the case.

25. It has to be noted that while considering the suit

for the relief of declaration, only on the basis of admission,

the Court cannot grant the relief of declaration. While

seeking the relief of declaration, there must be a title deed

when the ownership is claimed. In this regard, this Court

would like to rely upon the judgment reported in 1958 SCC

ONLINE SC 77 in the case of RAZIA BEGUM vs

SAHEBZADI ANWAR BEGUM AND OTHERS wherein the

Apex Court in paragraph 10 discussed with regard to the

admission is concerned. The Apex Court held that no doubt,

Order VIII Rule 5 of the Code, it has to be noted that the

Court may in its discretion require any fact so admission to

be proved otherwise than by such admission. The proviso

to Section 58 of the Evidence Act, which lays down that

facts admitted need not be proved. Reading all these

provisions together, it is manifest that the Court is not

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bound to grant the declarations prayed for, even though the

facts alleged in the plaint, may have been admitted. The

Court has to insist upon the burden of the issue being fully

discharged, and if the Court, in pursuance of the terms of

Section 42 of the Specific Relief Act, decides, in a given

case, to insist upon clear proof of even admitted facts, the

Court could not be said to have exceeded its judicial

powers. In paragraph 23 of the said judgment, the Apex

Court held that in a suit under Section 42 of the Specific

Relief Act, it is discretionary with the Court to make or not

to make the declaration asked for. The exercise of that

discretion, however, has to be judicial.

26. This Court also would like to rely on the

judgment reported in (2006) 12 SCC 552 in the case of

AVTAR SINGH AND OTHERS vs GURDIAL SINGH AND

OTHERS wherein the Apex Court discussed with regard to

Sections 58, 17 and 31 of the Evidence Act, 1872, that is

proof by admission and held that, admission forms the best

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evidence. As per Section 58 of the Evidence Act, 1872,

things admitted need not be proved and also observed that

though admission does not create any title, nature of land

can form subject mater of admission. Hence, it is clear that

the admission does not create any title. In paragraph 8 of

the judgment, the Apex Court held that admission, it is well

known, forms the best evidence. It may be that admission

does not create any title, but the nature of the land can

form subject matter of admission. Thus, this judgment is

aptly applicable to the facts of the case.

27. This Court also would like to rely on the

judgment reported in (2007) 12 SCC 27 in the case of

KAMAKSHI BUILDERS vs AMBEDKAR EDUCATIONAL

SOCIETY AND OTHERS wherein the Apex Court held that

denial of title of landlord, question of possession,

application for mutation, presumption regarding nature of

possession, held, an application for mutation of one’s name

in revenue records by parties, although would not by itself

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confer any title, but a presumption in regard to nature of

possession can be drawn. Hence, it is clear that admission

will not confer any title. Even the Apex Court held that

when there is a denial of title of landlord, conduct may be a

relevant fact, so as to apply procedural law like estoppel,

waiver or acquiescence, but thereby no title can be

conferred. Acquisition of title is an inference of law arising

out of certain set of facts, if any law, a person does not

acquire title, the same cannot be vested only by reason of

acquiescence or estoppel on the part of other. It is also

held that by reason of presumption alone, the burden on

the tenant to prove his title is not discharged, a title is not

thereby created.

28. This Court would like to rely on the judgment

reported in (2012) 8 SCC 148 in the case of UNION OF

INDIA vs IBRAHIM UDDIN AND ANOTHER wherein the

Apex Court discussed with regard to the admission is

concerned. Admission made by a party though not

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conclusive, is a decisive factor in a case unless the other

party successfully withdraws the same or proves it to be

erroneous. Even if the admission is not conclusive it may

operate as an estoppel in certain circumstances. But with

regard to title is concerned, there must be a title to declare

as owner and mere admission cannot be a conclusive proof.

29. No doubt, the counsel for the respondent relied

upon the judgment in the case of STATE OF ANDHRA

PRADESH referred supra wherein discussed with regard to

the ownership and title and proof of presumption of title in

favour of possessor under Section 110 of the Evidence Act.

Presumption of title as a result of possession arises only

where the fact discloses that no title vests in party and

where possession of plaintiff is not prima facie wrongful and

his title is not proved, it certainly does not mean that

because a man has title over same land, he is necessarily in

possession of it. The said judgment is not applicable to the

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facts of the case since the same is in respect of

presumption of possession is concerned and not as title.

30. On the other hand, it has to be noted that the

judgments which have been relied upon by the appellants’

counsel in a case of P KISHORE KUMAR referred supra the

Apex Court categorically held that the revenue records are

not documents of title and so also in a case of SRI CHAND

referred supra, the Apex Court held that when the plaintiff

fails to establish his case, the question of whether the

defendant had lawfully acquired any sub-tenancy rights

under the predecessor interest need not be gone into as

even in absence thereof, weakness of defendant’s case

would not strengthen the plaintiff’s case. The other

judgment relied by the appellant’s counsel is in the case of

SUMITRA BAI referred supra, wherein this Court held that

the plaintiff has to prove his case to the satisfaction of the

Court to means of convincing and cogent evidence not

necessarily beyond reasonable doubt. The burden shifts on

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the defendant when the case of the plaintiff was false and

also categorically held that the Court cannot on the basis of

distorted admission or on the basis of disputed/not proved

documents draw an inference in order to grant any remedy

to any of the parties to the suit. In a case of UNION OF

INDIA referred supra relied by the appellant’s counsel, the

Apex Court discussed Section 101 to 103 of the Evidence

Act, 1872 and categorically held that entries in the revenue

records, do not confer any title and so also discussed

Section 35 of the Evidence Act. All these materials are

clear with regard to the granting of declaration is concerned

that too a title and admission given by the defendant

cannot create any title in favour of the plaintiff unless title

deed is produced before the Court for claiming ownership

over the suit schedule property. hence, both the Courts

carried away taking into note of the admission as well as

the entries found in column No.9 that the suit schedule

property belongs to Virakta Mutt and mere entries in

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column No.9, does not create any title and revenue

documents cannot confer any title as held by the Apex

Court and this Court in the judgments referred supra.

Thus, both the Courts have committed an error in declaring

that the plaintiff is the owner of the suit schedule property

without the document of title in favour of the plaintiff just

on the basis of entries found in the revenue records and the

same is in contravention of Section 17(1)(b) of the

Registration Act and law is settled by the Apex Court that

based on the revenue entries, there cannot be any decree

and entries found in revenue records will not create any

title. Hence, I am of the opinion that both the Courts have

committed an error in declaring that the plaintiff is the

owner of the suit schedule property. Accordingly, I answer

first substantial question of law accordingly.

31. The other substantial question of law is that

whether the Courts below are justified in law in granting the

relief of perpetual injunction, when the plaintiff failed to

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prove title, through which alleged possession is claimed. In

order to grant the relief of perpetual injunction, the plaintiff

has to establish his possession as on the date of filing of the

suit. Both the Courts taken note of the evidence and also

the admission on the part of particularly, DW1 and DW3 as

well as taken note of the fact that in column No.9 of the

documents which have been relied upon by the parties even

including the documents relied upon by the defendant in ‘D’

series wherein also there is an entry in favour of the

plaintiff. Even though when the plaintiff failed to prove his

title but the Court can grant the relief of permanent

injunction but regarding possession is concerned, deed of

title is required. In granting the relief of perpetual

injunction, I do not find any error committed by the Trial

Court and both the Courts are justified in law granting the

relief of perpetual injunction even in the absence of title

wherein the Court has to take note of the possession as on

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the date of filing of the suit. Hence, the second substantial

question of law is answered accordingly.

32. It is the contention of the appellants’ counsel

that there is an entry in the RR-V and RR-VI even prior to

1952 mortgage and mere creating of mortgage also not

convey any title to the defendant also. The other contention

of the counsel that the land was acquired to the extent of 7

guntas and compensation also paid and merely payment of

compensation also not create any title. Another contention

of the counsel that permission was given to construct

quarters as well as water tank. If any person gives any

consent or permission to construct quarters and water tank

as well as formation of road, same also does not convey

any title in favour of the defendant also and admittedly,

both the plaintiffs as well as the defendant are not having

any title. Hence, the very contention of the defendant that

the defendant succeeds cannot be accepted. Having

considered both the substantial questions of law and

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answering the same, judgment and decree of both the

Courts requires to be modified.

33. In view of the discussion made above, I pass the

following:

ORDER

The regular second appeals are allowed in part.

The judgment and decree dated 25.02.2006 in

O.S.Nos.198/1994 and 202/1995 and the judgment and

decree dated 28.06.2008 in R.A.Nos.20/2006 and 21/2006

are modified setting aside granting the relief of declaration

but confirmed the judgment and decree in respect of

granting the relief of permanent injunction.

Sd/-
JUDGE

RHS/SN