Ismailkhan and Others vs Hussain

B. Veerappa, J.—This is an unsuccessful defendants'' Regular Second Appeal against the judgment and decree dated 26th of August, 2014 made in R.A. No. 83/2012 on the file of the Additional Senior Civil Judge, Haveri confirming the judgment and decree dated 5.11.2012 made in O.S. No. 161/2010 on the file of the Civil Judge, Savanur, decreeing the suit of the plaintiff declaring that the plaintiff is the absolute owner and in possession of the suit schedule property and granted permanent injunction as prayed for.

The respondent, who is the plaintiff before the trial Court, had filed a suit for declaration and permanent injunction against the defendants contending that he had purchased a red tiles roof house measuring east to west 168'' and north to south 52 1/2'' including open space measuring east to west 66'' and north to south 25 1/2'' under a registered sale deed dated 13.6.1959 from the original owner viz., Abdulkareemkhan son of Jabbarkhan Khanjade and from the date of purchase till today, the plaintiff along with his family members are in possession and enjoyment of the suit schedule property. The defendants in order to grab the suit schedule property, unnecessarily started obstructing the plaintiff''s possession and enjoyment. Therefore, the plaintiff issued a notice to the defendants not to obstruct his peaceful possession and enjoyment of the same. It is his further case that defendants had got their names entered in the revenue records with an intention to grab the suit schedule property and that the defendants have denied the right of the plaintiff and his possession over the suit schedule property, etc. Therefore, on all these grounds, the plaintiff filed a suit.

The 1st defendant filed his written statement, which was adopted by the other defendants. They denied the entire plaint averments specifically contended that the land bearing R.S. No. 470/2A measuring 6 acres 12 guntas being an agricultural land is not converted into non-agricultural land by them or by their elders. There was no non-agricultural open space belonging to the said Abdulkareemkhan abutting the said land bearing R.S. No. 470/2A and the said Abdulkareemkhan had no ownership title in respect of the said land. That the alleged sale deed does not belong to the said land and therefore, the same is null and void. It was further contended that they have the absolute right, title and interest which was partitioned between them and hence, they are in possession and enjoyment of their respective shares by growing crops and erecting a farmhouse for agricultural purpose. They also contended that the plaintiff is residing at Chikka Islampur in a rented house for more than 30-40 years, etc., and hence, prayed for dismissal of the suit.

Based on the pleadings, the trial Court framed the following issues:

i) Whether the plaintiff proves that he is absolute owner of the suit property?

ii) Whether the plaintiff proves that is in lawful and actual possession of the suit property as on the date of this suit?

iii) Whether the plaintiff proves that the defendants are illegally obstructing his possession and enjoyment over the suit property?

iv) Whether the defendants proves that the sale deed dated 13.6.1959 pertaining to the suit property is null and void?

v) Whether the court fee is paid is sufficient?

vi) Whether the plaintiff is entitled for the relief as prayed for?

vii) What order or decree?"

In order to establish the plaintiff''s case, he examined himself as P.W. 1 and marked the documents Exs.P.1 to 5. Defendant No. 1 is examined as D.W.1 and marked the documents as Exs.D.1 to 5.

After considering the entire material on record, the trial Court held that the plaintiff has proved that he is the absolute owner and in lawful possession of the suit schedule property as on the date of the suit and the plaintiff has proved the alleged interference of his possession by the defendants and the defendants have failed to prove that the sale deed dated 13.6.1959 pertaining to the suit schedule property is null and void and the Court fee paid is sufficient and accordingly, the suit of the plaintiff''s was decreed as prayed for, as against which the defendants filed an appeal in R.A. No. 83/2012 before the Additional Senior Civil Judge, Haveri, who on hearing both the parties by the impugned judgment and decree dated 26th of August, 2014 dismissed the appeal. Hence, the present second appeal by the defendants.

I have heard the learned Counsel for the parties to the lis.

Sri Sachin S. Magadum, learned Counsel for the appellants strenuously contended that both the Courts below have ignored the material document Ex.D.3, certified copy of the mutation entry No. 8332 effected in the name of the appellants in the year 1996 by the revenue authorities during the course of their official duty and the suit filed by the plaintiff for declaration without seeking relief of possession is not maintainable. Therefore, he sought for setting aside of the judgment and decree passed by the Court below.

Per contra, Sri Nandish B. Guddappanavar, learned Counsel appearing on behalf of Sri G.N. Narasammanavar for respondent No. 1/caveator sought to justify the impugned judgment and decree passed by the Court below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties to the lis and perused the entire material on record.

The plaintiff filed a suit seeking declaration and permanent injunction based on the registered sale deed dated 13.6.1959 vide Ex.P.4 and adduced evidence as P.W.1 and marked the documents - Exs.P.1 to 5. The trial Court considering the sale deed - Ex.P.4 dated 13.6.1959 held that D.W.1 in his cross-examination has admitted the suggestions as thus:

The said admissions and Ex.P.4 prove that the original owner - Abdulkareemkhan was the owner of the suit schedule land and he sold the same in favour of the plaintiff under Ex.P.4 and in view of the provisions of Section 128(1) of the Karnataka Land Revenue Act, 1964, any person acquiring the right by virtue of a registered documents shall be exempted from the obligation to report to the prescribed officer which means, if a person has acquired right over an immovable property by virtue of registered document or sale deed, he/she is exempted from the obligation to report the acquisition of the right to the prescribed officer. Section 128 Sub-Cause (4) of the Karnataka Land Revenue Act, 1964 mandates that it is the part of the concerned officer to make necessary entry in the Record of Rights and registers referred to in Section 129 ; and on the registration of such a document, the Registering Authority shall make a report of the acquisition of the right to the Prescribed Officer.

The said view is fortified by the dictum of this Court in the case of Holiyappa Vs. The Deputy Tahsildar, Guledgud and Others, . But in the present case, the concerned authority has not discharged the duty as contemplated under Section 128(4) of the Karnataka Land Revenue Act and the plaintiff/respondent need not report the acquisition of the suit schedule property to the prescribed officer.

Though the defendants contended that the sale deed dated 13.6.1959 Ex.P.4 is not pertaining to the suit schedule property and it clearly depicts that the said Abdulkareemkhan was the owner and in lawful possession of the entire land bearing No. 470/2A, who had erected the suit property for the agricultural purpose and had sold the same to the plaintiff by virtue of Ex.P.4, in the cross-examination, D.W.1 has admitted to the suggestion that the said Abdulkareemkhan was the original owner of the said land wherein the suit property shows that Abdulkareemkhan had the lawful right and title of ownership to sell the suit property in favour of the plaintiff. The oral admissions made by D.W.1 in the cross-examination and Ex.P.4 ex-facie prove that the sale deed-Ex.P.4 is pertaining to the land bearing R.S. No. 470/2A wherein the suit property is located. The defendants have failed to prove that the sale deed-Ex.P.4 is not pertaining to the said land of the suit schedule property and is null and void. Ultimately, the trial Court has held that the plaintiff has proved his lawful right of ownership, title, interest and possession as on the date of the suit and the alleged illegal obstruction made by the defendants is also proved. It has also held that the defendants have failed to prove that the sale deed dated 13.6.1959 not pertaining to the suit schedule property is null and void and accordingly, the suit came to be decreed declaring that the plaintiff is the absolute owner and possession of the suit schedule property and granted an injunction restraining the defendants or anybody on their behalf from obstructing the plaintiff''s peaceful possession and enjoyment of the suit schedule property.

The Lower Appellate Court after reconsidering the entire material on record has concurred with the finding of fact recorded by the trial Court and held that D.W.1 in his cross-examination has admitted as thus:

The said admission clearly depicts that the vendor of the plaintiff Abdulkareemkhan was the owner of the suit schedule property and the same was purchased by the plaintiff by virtue of a registered sale deed dated 13.6.1959.

It is a well settled law that the revenue entries are not a proof of title and the said revenue entries are in no way helpful to the defendants as held by the Apex Court in the case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, that the revenue records are not the documents of title which reads as under:

"(B) Civil P.C. (1908), S.100 - Question of law - Revenue record is not document of title - Interpretation of revenue record is not question of law - Finding of fact rendered by lower court on basis of interpretation of revenue record--Interference with finding by High Court is illegal."

So also the judgment of the Hon''ble Supreme Court in the case Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, . Therefore, the case putforth by the defendants cannot be accepted. The very registered sale deed Ex.P.4 produced by the plaintiff clearly indicates that the original owner i.e. the grandfather of the defendants has sold the property in favour of the plaintiff under a registered document. Admittedly, the said registered document has not been challenged. Therefore, the Lower Appellate Court has rightly dismissed the appeal.

The plaintiff has filed the suit for declaration and permanent injunction based on the registered sale deed - Ex.P.4 dated 13.6.1959 and other collateral documents to prove that he is the owner and in possession of the suit schedule property. Except the RTC and the mutation entries, the defendants have not produced any other material to controvert the evidence and documents adduced by the plaintiff. Both the Courts below based on the oral and documentary evidence have concurrently held that the plaintiff has proved his ownership on the basis of registered sale deed dated 13.5.1959 under Ex.P.4. Admittedly, the said sale deed is not at all questioned by any of the defendants till today. Therefore, the same is binding on the defendants. The said findings recorded by the Courts below is on the basis of cogent and legal evidence on record and the appellants/defendants have not made out any prima facie case to interfere with the concurrent finding of fact recorded by the Courts below under the provisions of Section 100 of the Code of Civil Procedure, 1908.

No substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed.