- 1 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.104 OF 2015 (DEC/INJ) BETWEEN: 1. MOHAMMED AZEEZULLA S/O KAZI MOHAMMED YASIM SAHEB AGED ABOUT 63 YEARS R/A DOOR NO. 1473, KAZI MOHALLA NELLURUPALA VILLAGE, HONAGODU HOBLI, HUNSUR TOWN MYSORE DISTRICT-571105. 2. MOHAMMED KALEEMULLA S/O KAZI MOHAMMED YASIM SAHEB AGED ABOUT 61 YEARS R/A MES QUARTERS, HUNSUR TOWN MYSORE DISTRICT-571105. …APPELLANTS (BY SRI. SUNEEL S NARAYAN.,ADVOCATE) AND: 1. GHOUSE SHARIFF S/O LATE CHANDA HUSSAIN SAHEB AGED ABOUT 73 YEARS R/AT DOOR NO. 1478/1 KAZI MOHALLA, HUNSUR TOWN MYSORE DISTRICT-571105. …RESPONDENT (BY SRI. S V SHASTRI .,ADVOCATE) Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.09.2014 PASSED IN R.A.NO.18/2014 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, HUNSUR, MYSORE DISTRICT, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 02.12.2013 PASSED IN O.S.NO.281/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., HUNSUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH JUDGMENT This appeal is preferred by the defendants assailing the judgment and decree dated 22.09.2014 passed in RA No.18/2014 on the file of the Fast Track Court at Hunsur, Mysore District, (hereinafter referred to as `First Appellate Court') allowing the appeal and setting aside the judgment and decree dated 02.12.2013 passed in OS No.281/2006 on the file of the Senior Civil Judge and JMFC, Hunsur (hereinafter referred to as `Trial Court'). 2. For the sake of convenience, the parties are referred to their ranking before the Trial Court. 3. The plaint averments are that the properties bearing No.733/644, 1476/1, 1476/2 belong to the father of the plaintiff - Chanda Hussain Saheb. It is also stated that the - 3 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 municipal records stand in the name of the father of the plaintiff. It is contended by the plaintiff that since there was an old house situated in the schedule property, the same was demolished as it was in dilapidated condition, and therefore now it is a vacant site. It is also stated that the plaintiff has made an application seeking license to construct wall in the suit schedule property before the Municipal Authority, and the Municipal Authority has sanctioned approved plan, and the license for construction of wall is also made, and further, it is contended by the plaintiff that the defendants are interfering with the suit schedule property. It is also stated that the plaintiff has filed OS No.154/2003 before the Civil Judge (Jr.Dn.) and JMFC, Hunsur seeking permanent injunction, which came to be dismissed, and thereafter, the appeal was preferred in RA No.199/2005. It is contended by the plaintiff that the defendants are interfering with the suit schedule property. Hence, the plaintiff has filed OS No.281/2006 before the Trial Court seeking relief of declaration with consequential relief of permanent injunction. - 4 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 4. After service of notice, the defendants entered appearance and filed detailed written statement disputing the title of the plaintiff. It is also stated in the written statement that the plaintiff has failed to establish his title and possession in OS No.154/2003 and therefore, sought for dismissal of the suit. 5. The Trial Court based on pleadings on record formulated the issues and additional issues for its consideration. 6. In order to prove their case, the plaintiff himself examined as PW.1 and produced twelve documents and same were marked as Exs.P1 to P12. The defendants have examined one witness as DW1 and marked ten documents as Exs.D1 to D10. A Court Commissioner was appointed during the pendency of the suit, and he was examined as CW1 and on his behalf, sixteen documents were marked as Exs.C1 to C16. 7. The Trial Court after considering the material on record, by judgment and decree dated 02.12.2013, dismissed the suit. - 5 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 8. Feeling aggrieved by the same, the plaintiff has preferred RA No.18/2014 before the Fast Track Court at Hunsur, Mysore District. The said appeal was contested by the defendants. The First Appellate Court after re-appreciating the material on record, by judgment and decree dated 22.09.2014, allowed the appeal and as such, set aside the judgment and decree passed in OS No.281/2006. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. 9. This Court, vide order dated 30.07.2019, has formulated the following substantial questions of law: "(i) Whether the Appellate Court could have decreed the suit in view of the provisions contained under Section34 of the Specific Relief Act without the appropriate relief for possession. (ii) Whether the Appellate Court's judgment is based on evidence on record?" 10. Heard learned counsel appearing for the appellants/defendants, and learned counsel appearing for the respondent/plaintiff. - 6 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 11. Learned counsel appearing for the defendants/appellants submitted that the First Appellate Court has committed an error in decreeing the suit of the plaintiff without there being any title deed produced by the plaintiff before the Trial Court. It is also argued by the learned counsel appearing for the defendants/appellants that the First Appellate Court has not considered the scope and ambit of Section 34 of the Specific Relief Act, 1963. Therefore, he sought for interference of this Court. 12. Per contra, learned counsel appearing for the plaintiff/respondent sought to justify the judgment and decree passed by the First Appellate Court. It is the submission of the learned counsel appearing for the plaintiff/respondent that the suit schedule property belonged to the father of the plaintiff and on his demise, the plaintiff inherited the suit schedule property and the entire revenue record stands in the name of the father of the plaintiff, and therefore, the learned counsel appearing for the plaintiff/respondent sought to justify the impugned judgment and decree passed by the First Appellate Court. - 7 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 13. In the light of the submissions made by the learned counsel appearing for the parties, on careful examination of the finding recorded by the Trial Court, particularly, with regard to the issue Nos.1 and 2 concerned, undisputedly, the plaintiff has not produced any relevant document to establish the title over the suit schedule property. The documents marked on behalf of the plaintiff are nothing but the revenue documents, and no title document has been produced before the Trial Court. 14. Upon perusal of the evidence of PW1, wherein PW1 admitted that towards the eastern and southern side of the suit schedule property, the property is shown to be the property of Meharunnisa and that of the defendants' property is situated, and therefore, the said admission makes it clear that, the boundaries specified by the plaintiff in the plaint is incorrect. It is also to be noted that the Court Commissioner has filed the report, particularly, Ex.C13, wherein the boundaries mentioned is contrary to the boundaries mentioned in the plaint by the plaintiff. Undisputedly, the suit is one for seeking relief of declaration, and therefore, it is the duty of the plaintiff to - 8 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 establish his right over the property by producing the title deed in respect of the suit schedule property. 15. At this stage, it is relevant to cite the judgment of this Court in the case of Hullappa v. The State of Karnataka, through Deputy Commissioner, Bidar and others reported in ILR 2012 Kar. 4958, wherein this Court has held that in a suit for declaration, it is the duty of the plaintiff to produce relevant document of title to establish his right over the property in question. It is also stated that relief of declaration cannot be granted on the basis of revenue documents like RTC, tax paid receipt, mutation extract etc. It is also stated that unless the plaintiff produces the document of title in respect of the suit schedule property, the Civil Court cannot grant relief of declaration. Therefore, following the declaration of law made in the case of Hullappa (supra), I am of the view that, the Trial Court has rightly dismissed the suit, and the First Appellate Court has erroneously interfered with the finding recorded by the Trial Court. 16. It is also relevant to follow the declaration of law by the Hon'ble Supreme Court in the case of Bhimabai Mahadeo - 9 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 Kambekar (Dead) through legal representative v. Arthur Import & Export Company and others reported in (2019) 3 SCC 191, wherein the Hon'ble Supreme Court has held that the production of the mutation entries or revenue records would not create title in respect of the suit schedule property. Therefore, following the declaration of law made by the Hon'ble Supreme Court referred to above, I am of the view that, the First Appellate Court has committed an error in interfering with the well reasoned judgment and decree passed by the Trial Court, and further granted relief of declaration without there being any document to prove the title of the plaintiff. It is also to be noted that the plaintiff has filed suit in OS No.154/2003 against the defendants before the Civil Judge (Jr.Dn.) and JMFC, Hunsur which came to be dismissed. It is argued by the learned counsel appearing for the defendants/appellants that the appeal preferred by the plaintiff against the judgment and decree in OS No.154/2003 in RA No.199/2005 which also came to be dismissed, and therefore, the same has reached finality. 17. In that view of the matter, the First Appellate Court has committed an error in misconstruing the factual aspect on record and has erroneously granted the relief of declaration - 10 - HC-KAR NC: 2025:KHC:34262 RSA No. 104 of 2015 without considering the scope and ambit of Section 34 of the Specific Relief Act, 1963. Accordingly, the substantial questions of law favours of the defendants. 18. In the result, I pass the following: ORDER i) The appeal is allowed. ii) The impugned judgment and decree dated 22.09.2014 in RA No.18/2014 on the file of the Fast Track Court at Hunsur, Mysore District is hereby set aside. iii) The judgment and decree dated 02.12.2013 in OS No.281/2006 on the file of the Senior Civil Judge and JMFC, Hunsur is hereby confirmed, consequently, OS No.281/2006 is dismissed. SD/- (E.S.INDIRESH) JUDGE BKM List No.: 1 Sl No.: 41