Venkatachala Iyengar and Others vs K.V. Krishnamurthy and Others

A.V. Chandrashekara, J.

The appellants herein are the defendants of a original suit bearing O.S.No. 87/84, subsequently numbered as O.S. No. 543/1992, pending on the file of the Civil Judge, Jr.Dvn. and JMFC, Hassan.

Originally the suit was filed by one K.V. Krishnamurthy s/o. K. Venkatakrishnaiah for the reliefs of declaration of title and for permanent injunction relating to 12.22 acres in S. No. 47 of Kalthammanahalli village of Hassan Taluk. Subsequently, during the pendency of the said suit, Jayalakshmamma and Rajalakshmamma were impleaded as plaintiffs 2 and 3 in the said suit. Suit had been filed against Venkatachala Iyengar and K.T.J. Iyengar. Original plaintiff-K.V. Krishnamurthy is alive and plaintiffs 2 and 3 viz. Jayalakshmamma and Rajalakshmamma, who were impleaded subsequently in the suit, are no more and their LRs are brought on record in this Appellate Court.

Defendants 1 and 2 also died during the pendency of this appeal and their LRs have been brought on record.

The parties would be referred to as plaintiffs and the defendants as per the rankings given in the trial Court.

According to the plaintiffs, land measuring 12.22 acres in S. No. 47 of Kalathammanahalli village of Hassan Taluk originally belonged to two persons by name Ranga and Betta. According to them the said Ranga and Betta who were the owners of the land did not pay the arrears of land revenue and hence their land was resumed to the Government. It is averred by the plaintiffs that after resumption of the land in question, the Tahsildar of Hassan taluk granted the schedule land in favour of Sri. K. Venkatakrishnaiah, father of the plaintiff, on 11.6.1940 in grant bearing S.RNo. 704/38-39 and ever since the grant of the land, Venkatakrishnaiah was stated to be in lawful possession and enjoyment of the schedule property. After his death, plaintiffs are stated to be in possession of the schedule property. The said land was being looked after by the first plaintiff-Sri. K.V. Krishanamurthy as the Manager of the Joint family of late Venkatakrishnaiah.

Since the second defendant started a dispute in respect of the suit schedule property before the Tahsildar, Hassan relating to the change of khatha, the plaintiff was left with no option but to file a suit for the relief of declaration of title and permanent injunction. According to the plaintiffs cause of action arose in the month of July, 1993 when the endorsement was issued to the plaintiff by the Tahsildar. It is averred that plaintiffs are in lawful possession and enjoyment of the suit schedule property. After the written statement was filed, plaintiffs chose to amend the prayer column of the plaint to include the alternative relief of possession of the suit schedule property.

The deceased first defendant had filed written statement denying all material averments. The averment that the land in question belonged to Ranga and betta has been admitted. The averment that the said Ranga and Betta did not pay the arrears of land revenue and hence the land was resumed by the Government has been specifically denied. The plaintiffs have been called upon to prove the contents of the plaint strictly. According to the defendants, the land in question was in lawful possession and enjoyment of the above two persons and that they had sold the schedule land in favour of one Thirumalachar on 1.3.1938 through the registered sale deed and the said Thirumalachar was the father of the 2nd defendant. It is also averred that Ranga and Betta, being in possession of the schedule property, handed over possession of the suit land to the purchaser Thirumalachar and since then Thirumalachar was stated to be in lawful possession and enjoyment of the schedule property as the owner till his death.

The alleged grant relied upon by the plaintiffs has been specifically denied. It is further averred Venkatakrishnaiah, father of the plaintiff, was the Shanbhog of the village and he had used his influence to get necessary entries in his favour in the revenue records without their being any actual grant or resumption of land by the Government. The suit is stated to be false, frivolous and vexatious. Second defendant did not file any written statement.

On the basis of the above pleadings following issues came to be framed on 19.12.1996:--

"1) Whether the plaintiff prove that he is the absolute owner of the suit property?

2) Whether the plaintiff proves that the entries in the RTC from the year 1972-73 to 1981-82 are incorrect and he is entitled for rectification?

3) Whether the plaintiff proves that he is in lawful possession of the suit property on the date of the suit?

4) Whether the plaintiff proves the alleged obstruction to the suit property by the defendants ?

5) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed?

6) What order or decree?"

Plaintiff No. 1 K.V. Krishanmurthy is examined as PW1 and two witnesses have been examined as PWs 2 and 3. 23 exhibits have been marked on behalf of the plaintiffs.

One Jagannath Iyengar is examined as DW1 and two more witnesses have been examined on behalf of the defendants. Seven exhibits have been marked on behalf of the defendants. Ultimately issues 1 and 2 have been to be answered in the affirmative. Issues 3 and 4 have been answered in the negative and issue No. 5 has been answered partly in the affirmative and partly in the negative. Consequently the suit came to be decreed in part granting the relief of declaration only and the relief of permanent injunction had been negatived.

This considered judgment dt.8.8.2002 was called in question by filing an appeal before the Senior Civil Judge at Hassan in R.A.No. 69/2002 which was subsequently withdrawn and transferred to FTC-I at Hassan and numbered as R.A.No. 29/2005. Being aggrieved by the rejection of the relief of permanent injunction the plaintiffs chose to file cross appeal under Order 41 Rule 22 of CPC and the main appeal was filed by the defendants. Both were taken up together by the learned Judge of FTC-I at Hassan. Appeal of the defendants has been dismissed and the cross appeal has been allowed. Consequently the suit has been decreed as prayed for by granting both the relief of declaration of title and permanent injunction. It is these findings of the Appellate Court which are called in question by the defendants under Section 100 of CPC in this appeal.

The respondents had engaged an advocate to represent them in this Court. Subsequently, the Advocate engaged by them sought permission to retire from the case and it was granted. Later on Court notices were sent to the respondents and they have been duly served and they are unrepresented before this Court. Heard the learned counsel for the appellants/defendants Smt. S.N. Sudha at length.

She has contended that the Trial Court has failed to look into the fact that the plaintiffs have not produced any acceptable evidence regarding acquisition of title by way grant except some entries found in the revenue records. She has argued that in order to believe the entries found in the record of rights, there should have been some acceptable evidence relating to the very acquisition of title by late Venkatakrishnaiah and prior resumption of land for non-payment of arrears of land revenue. It is further argued that the First Appellate Court has not properly assessed the evidence placed on record in right perspective, more particularly in regard to the factum of possession. It is forcibly argued that the First Appellate Court has not at all considered the admissions elicited from the mouth of PW1. It is argued that both the courts have misread the depositions while granting the relief sought for and thus serious injustice is caused.

Following are the points formulated by the First Appellate Court to dispose of the First Appeal:

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

Whether for non-impleading of legal representatives of second respondent, the entire appeal abates? Or in the alternative, the matter needs any remand for getting the legal representatives of respondent No. 2, impleaded on the file of the trial Court?

Are there any ground to allow I.A.No. 7 filed under Order 41 Rule 27 of CPC by the present appellants?

Whether the appellants prove that the trial Court had no pecuniary jurisdiction?

Whether the respondent-plaintiff proves that he is the absolute owner of the suit property?

Whether the respondent-plaintiff proves his lawful possession over the suit property?

Whether the respondent-plaintiff proves interference by the defendants?

Whether the respondent-plaintiff is entitled to declaration of title to the suit property?

Whether the respondent-plaintiff is entitled to rectification of entries in the R.T.C. for the years 1972-73 to 1981-82?

Whether the respondent-plaintiff is entitled to the relief of possession?

Whether the respondent-plaintiff is entitled to the relief of permanent injunction?

Whether the judgment and decree of the trial Court needs any interference?

What order?"

Plaintiffs have relied upon exhibits P1 and P2 i.e. the record of rights and the index of lands relating to S. No. 47. In Ex.P1 the name of the original owners/kathedars are mentioned as Betta s/o Ranga and Ranga s/o. Giddegowda and the land in question was their ancestral property and they were in joint possession of the same. This is evidenced from columns 1 to 4 of Ex.P1 i.e. the record of rights. The names of Ranga and Betta are found even in Ex.P2-mdex of lands issued on 10.8.1983 by the Tahsildar of Hassan Taluk. There is entry in Ex.P2 for having treated the land as Sarkari Beelu vide N.R. No. 704-38 dt.11.6.1940. This information found in Ex.P2 is not to be found in Ex.P1. In Ex.P1 name of Venkatakrishnaih is found as a grantee vide ADR. No. 38/43-44 and this is not reflected in Ex.P2 the index of land and in Ex.P1 the name of Venkatakrishnaiah is found and it is issued based on Reg. No. 2255 dt.18.7.1960.

Present appeal is admitted to consider the following substantial question of law:

"Whether the courts below have erred in decreeing the suit of the plaintiffs solely on the basis of the revenue entries in the absence of grant certificate relating to the suit land?"

The name of Venkatakrishnaiah came to be mutated as the kathadar and was accepted on 28.2.2004 which is found in Ex.P3. Mutation bearing No. 3/43-44 dt.2829. In Ex.P3 the mutation extract, date of grant is not found except to the number of grant mentioned as ADR 38''. After the death of Venkatakrishaniah his son Krishnamurthy preferred an application to include his name as the kathedar and his name was included vide MR.No. 26/93-94 and it is marked as Ex.P4. Name of Venkatakrishnaiah is found in record of rights S. No. 47 issued for the years 1964-65 upto 1971-72. Nature of his possession is mentioned as ''own''. Names of Venkatachala Iyengar, Janardhana Iyengar and Varadaraj Iyengar are found in RTC marked at Ex.P6 which is issued for the year 1976-78 and 78-79. RTC marked as Ex.P7 is silent about the names. Name of Krishnamurthy is there in the RTC marked as Ex.P8. Name of K.V. Krishnamurthy is found in Coloumn 2 of Ex.P9. RTCs are also produced for the years subsequent to the filing of the suit. Therefore, the RTCs prior to the filing of the suit will have to be considered.

The plaintiffs have furnished the land revenue receipt Exs.P11 to P15 for the years 1992-93 to 97-98 and they do not pertain to the period prior to the filing of the suit. No significance can be attached to Ex.P16 the certificate issued by the Village Accountant on 8.3.1994. Ex.P17 is the order passed by the Tahsildar Hassan on 28.9.1976. An application was filed against the deceased plaintiff Venkatakrishaniah by Sri. K.T.J. Iyengar. The said application was dismissed mainly on the ground that Venkatakrishnaiah was in possession for more than 29 years after the entry made in his favour. Against this appeal was filed before the Asst. Commissioner, Hassan in R.A.No. 14/76-77 dismissing the appeal for non-prosecution. The appeal had been filed against the order dated 28.9.1976.

Ex.P19 is the endorsement issued by the Tahsildar Hassan Taluk to the Sri. Venkatakrishnaiah directing him to approach the Civil Court for rectification of the entries found in the land revenue records for the years 1972-75 to 1981-82. This order is dated 21.7.1983. This is stated to be the cause of action for filing of the suit for declaration of title and for permanent injunction. Ex.P20 is the application filed by Sri. K.V. Krishnamurthy seeking copy of the grant certificate issued in favour of his father in ADR-38/43-44. Ex.P21 is the endorsement issued by the Tahsildar, Hassan Taluk authorizing one Shiresthedar Sri. Vishweshvaraiah to depose before the Civil Judge. Ex.P22 is the record relating to S. No. 47 measuring in all 12 acres 22 guntas which was in the names of Betta s/o. Ranga and Ranga s/o. Giddegowda.

Ex.P23 is the certificate issued by the Special Deputy Amildar, Record of rights Hassan. Deceased Thirumalchar had been called upon to produce documents before the Special Deputy Amildar on 10.8.1938.

The defendants have produced documentary evidence regarding the possession of the land in question. Ex.D1 is the power of attorney and ExD2 is the RTC extract issued for the year 1972-73 to 81-82 relating to S. No. 47 which was issued by the Tahsildar on 12.7.1984. Though the name of Venkatakrishnaiah is found as kathadar in Col.9 on the basis of the Dharkasth, his name is not found in Col. No. 12(2). In Ex.D2 for the years 1972-73 onwards names of Venkatachala Iyengar, Janardha Iyengar and Varadaraja Iyengar are found as persons in possession during the year 1981-82. In Ex.D3 issued for the years 1985-86, it is left blank and for the year 1986-87 it is mentioned as ''in court'' and ''Vekatachala Iyengar''. Ex.D4 is the mahazar drawn by the Revenue Inspector, in the presence of villagers and much credence cannot be attached to the same since it was after the filing of the suit. Ex.D5 is another mahazar stated to have been drawn by the Village Accountant on 21.10.1983 prior to the filing of the suit. It was drawn in the presence of several villagers. It is specifically mentioned that Venkakrishnaiah and his family members were not living in that village and had never cultivated the land in question at any point of time. Ex.D5 mahazar is stated to have been drawn on 1.4.1984 by the Revenue Inspector Salgame hobli in the presence of the villagers relating to the actual persons in possession of the land. It is mentioned that Venkatachala Iyengar was cultivating the land. Ex.D7 is the certified copy of the sale deed dated 1.3.1938 executed by Ranga and Betta in favour of Thirumalachar, father of second defendant relating to 12.22 acres in S. No. 47 of Kalathammanahalli village. Of course the extent of the land has not been mentioned in Ex.D7.

The trial Court has held that the land in question belonged to Ranga and Betta and it was resumed to the Government for non payment of land revenue and therefore it became a Government land. It chose to grant the same in favour of Venkatakrishnaiah during the year 1940 and hence, PW-1 has placed reliance on the revenue entries. Admittedly the suit filed by the plaintiffs is one for declaration of title and permanent injunction claiming that they are the absolute owners of the schedule property. Mere revenue entries would be sufficient to hold that they are owners of the land more particularly when the title is based on the grant made by the Government has been emphatically denied. Though Krishnamurthy the first plaintiff made an application to the Tahsildar to grant a copy of the grant order as well as saguvali chit, he has not placed any documents to that effect. PW2 Vishweshwaraiah, Shiresthedar has deposed that the said file could not be traced as it was misplaced.

Production of document relating to the acquisition of title is absolutely required. Initial burden was on the plaintiff to discharge the burden relating to the title and possession of the land. No documents relating to the alleged grant made in favour of Venkatakrishnaiah who was the Shanbhog during that time, is made available. Entry in the revenue records would not be sufficient. As already discussed the grant number is mentioned as ADR 38/43-44 in Ex.P1, but the same is not found in Ex.P2. Though the order of resumption is stated as 11.6.1940, the order passed by the Competent Authority is also not produced. But the entries found in Exs. P1 and P2, it would be very difficult to come to the conclusion that Venkatakrishnaiah has become the absolute owner of the property in question. The date on which the State has resumed is also not forthcoming, except Mutation entry accepted in 1940.

Smt. S.N. Sudha, has relied upon a decision of the Hon''ble Supreme Court rendered in the case of State of Himachal Pradesh v. Keshav Ram and others reported in ILR 1998 KAR 1 SC to contend that entry in a Revenue Record, by no stretch of imagination, can from basis for declaration of title. After holding detailed enquiry, the order for correction was passed and pursuant to the said order necessary correction was made in the settlement register.

Plaintiffs therein filed an application under Section 37 of the Himachal Pradesh Land Revenue Act but the Assistant Collector deciding the matter, directed that the matter should be referred to the Civil Court and hence the plaintiffs chose to file a suit for relief of declaration of title. The State contested the suit denying the allegations made in the plaint. The suit was decreed against the State and the appeal filed by the State was also dismissed. Concurrent findings were challenged before the High Court of Himachal Pradesh and the appeal was confirmed. Against the said concurrent findings an SLP was filed. The Apex Court has held that the Courts below have committed serious error. The appeal filed by the State was allowed and the suit filed by the plaintiff was dismissed.

The same analogy found in the above decision of the Apex Court is aptly applicable to the present case also. Suffice to state that the initial burden cast upon the plaintiff to prove the acquisition of title is not effectively discharged and therefore, the onus had shifted on the adversary as per Sections 102 and 103 of the Evidence Act. Thus the Trial Court and the First Appellate Court have committed serious illegality in attaching too much importance to the entries relating to the acquisition of title.

So far as the title is concerned, the First Appellate Court has held that the name of Venkatakrishnaiah was found in the revenue records for quite a long time. It has come to the conclusion that the name of Venkatakrishnaiah is found in the revenue records on the basis of a lost grant. This approach is absolutely incorrect.

The first appellate Court has upheld the findings of the trial Court in so far as it relates to possession is concerned. The trial Court has held that the plaintiffs have failed to prove that they are in possession of the suit schedule property. The trial Court has mainly relied upon the incorporation of the name of Venkatesha Iyengar in col. No. 22 of RTC for the year 1981-82 as indicated in Ex.D2. He has placed reliance on the mahazar drawn by the Revenue authorities as per Exs.D4 to D6.

Per contra, the First appellate Court has doubted the authenticity of the mahazars drawn by the revenue authorities on the ground that the plaintiff was not present when the mahazar were drawn and that they were drawn behind his back.

Learned Judge of the First Appellate Court has relied upon the incorporation of the name of Shanbhog Venkatakrishnaiah in Col. No. 12(2) of the RTC for the year 1964-65 to 1971-72. Therefore, the Appellate Court has come to the conclusion that at an undisputed point of time, plaintiff Venkatakrishnaiah was in possession of the schedule property and therefore, he continued to be in possession of the property. Apart from this, the first Appellate Court has given much importance to the long standing name of Venkatakrishanaiah and has held that it is a case of lost grant. The first Appellate Court held that stray entries should be eschewed. This cannot be considered in the light of the facts of the case.

Mr.K.V. Knshnamurthy-PW1 has been cross examined at length by the counsel for the defendants. He has specifically admitted that he has not produced the dharkasth order and he does not have any documents to demonstrate resumption of the land by the Government. In para 11 of his deposition, he has stated that the land in question originally belonged to Betta and Ranga and they sold the same to one Thirumalachan i.e. the father of the defendant and that Thirumalachan was in possession of the schedule property even prior to 1940. He has further admitted that after the death of Thirumalachan, defendants were in possession of the schedule property for a period of 20 years. He has further admitted that the name of the father of first defendant was Srinivasa Iyengar. This admission elicited from the mouth of PW1 has been overlooked by the First Appellate Court. This is a clear admission as per Section 17 of the Evidence Act. How the long standing entries in the revenue records will have to be dealt with has been discussed by the Hon''ble Apex Court in the case of Ambika Prasad Tahkur and others v. Ram Ekbal Rai (dead) by his legal representatives and others etc. reported in 1966 Supreme Court 605. Relying upon the provisions of Section 114 of the Evidence Act necessary discussion is found in paragraph 15 of the said decision. The same is as follows :--

(D) Evidence Act (1 of 1872), S.114, Illus(d) -Presumption of continuance backward When open.

If a thing or a state of this is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illus.(d) to S.114. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this section, though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognized both in India. This is rule of evidence by which one can presume the continuity of things backwards. The presumption of continuity weakness with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances. Case law ref."

The incorporation of the name of the first defendant in the RTC in col.12(2) of the RTC, will have to read in the light of clear admission found in paragraph 11 of his deposition. Possession always follows tide and the entries in the revenue records have to be read in the light of the said concept.

The first appellate Court has attached too much of importance on the entries found in the records i.e. Venkatakrishnaiah and the mutation entries regarding resumption of land by the Government. If really the grant had been made in favour of Vekatakrishnaiah, there would have been saguvali chit issued by the Tahsildar indicating the date of grant with reference to the boundaries of the land granted. Nothing had come in his way at least to produce the saguvali chit or atleast the extract of the saguvali chit issue register. In the light of the non production of these material documents no presumption can be drawn under Section 133 of the Karnataka Land Revenue Act regarding the genuineness of the entries relating to the resumption of land by the Government from Ranga and Betta for non-payment of arrears of land revenue and subsequent grant.

Viewed from any angle both the courts have wholly misread and misinterpreted the material evidence relating to acquisition of title by Venkatakrishnaiah, the father of the first plaintiff and the factum of possession.

Both the courts have misapplied the law. As such the approach adopted was wrong approach to the real state of affairs. The first appellate Court being the first final court of law could not have up turned the finding insofar as it relates factum of possession which is a vital aspect.

Viewed from any angle the judgment of the trial Court insofar as granting of relief of declaration is concerned and the approach of the first appellate Court in granting both the relief of declaration is incorrect and illegal. The courts could not have granted the equitable reliefs of declaration of title as well as injunction merely on the basis of the revenue entries that too in the absence of grant certificate or saguvali chit relating to the suit land. Accordingly, the substantial question of law is answered in the affirmative as a consequence of which the appeal is to be allowed.

Accordingly, the appeal is allowed. The judgment of the first appellate Court as well the judgment of the Trial court are set aside. Consequently the suit filed in O.S.No. 87/84, subsequently numbered as O.S. No. 543/1992, pending on the file of the Civil Judge, Jr.Dvn. and JMFC, Hassan, stands dismissed in its entirety.

Parties to bear their own costs.