- 1 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100186 OF 2021 (DEC/INJ) BETWEEN: 1. SMT. DEVAKEWWA W/O YALLAPPA GASTI AGE. 53 YEARS, OCC. AGRICUTLURE, R/O. LOKAPUR, TQ. MUDHOL, DIST. BAGALKOT. 2. SMT. SUNANDA W/O HOLABASU BIDARI AGE. 47 YEARS, OCC. AGRICULTURE, R/O. MACHAKANUR, TQ. MUDHOL, DIST. BAGALKOT. 3. SMT. JEEJABAI W/O HANAMANT NAIK @ DALAWAI, AGE. 43 YEARS, OCC. AGRICULTURE, R/O. LOKAPUR, TQ. MUDHOL, DIST. BAGALKOT. NOTE: APPELLANT NO.1 IS THE PA HOLDER OF APPELLANT NO.2 AND 3. …APPELLANTS (BY SRI. PAVAN B. DODDATTI, ADV) AND: 1. TIPPANAGOUDA S/O PARUTAGOUDA PATIL AGE. 49 YEARS, OCC. AGRICULTURE, R/O. BANTANUR VILLAGE, TQ. MUDHOL, DIST. BAGALKOT- 587313. 2. SMT. MANJULA W/O AJAY SANDI AGE. 31 YEARS, OCC. HOUSEHOLD WORK, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:19:53 +0530 - 2 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 R/O. BANTANUR VILLAGE, TQ. MUDHOL, DIST. BAGALKOT -587313. 3. SMT. ANJANA W/O SURESH KAGI AGE. 27 YEARS, OCC. HOUSEHOLD WORK, R/O. BELAGALI VILLAGE, TQ. MUDHOL, DIST. BAGALKOT -587313. 4. HANAMANT S/O VITTAL NAIK AGE. 27 YEARS, OCC. AGRICULTURE, R/O. BELAGALI VILLAGE, TQ. MUDHOL, DIST. BAGALKOT -587313. 5. SMT. BANDAWWA W/O VITTAL MASALI @ NAYAK, AGE. 52 YEARS, OCC. HOUSEHOLD WORK, R/O. BANTANUR, TQ. MUDHOL, DIST. BAGALKOT 587313. …RESPONDENTS (NOTICE TO R1 TO R3 & R5 ARE SERVED & UNREPRESENTED SERVICE OF NOTICE TO R4 IS HELD SUFFICIENT) THIS RFA IS FILED UNDER SEC. 96 OF THE CODE OF THE CIVIL PROCEDURE READ WITH ORDER 41 OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.01.2020 PASSED IN O.S.NO.55/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DISMISSING THE SUIT FILED FOR DECLARATION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants, challenging the judgment and decree dated 14.01.2020 passed in O.S.No.55/2017 by the learned Principal Senior Civil Judge and JMFC, Mudhol. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The Appellants were plaintiffs, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this regular first appeal, are as follows: The plaintiffs filed the suit against the defendants for declaration and permanent injunction. It is the case of the plaintiffs that one Parutagouda was the propositus. The plaintiffs and defendant No.1 are the children of Parutagouda. He died on 12.11.2008 leaving behind the plaintiffs and defendant No.1 as his legal heirs. Defendant No.2 is a stranger to their family. The plaintiffs and - 4 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 defendant No.1 are the members of the Hindu undivided family that owns the suit property. It is contended that the suit property is the ancestral property of the plaintiffs and defendant No.1, and there are no other persons, other than the plaintiffs and defendant No.1, as a members of the family. The plaintiffs and defendant No.1 succeeded to the properties of deceased Parutagouda as his legal heirs and their mother pre-deceased their father. They became the joint owners of the suit property after the demise of their father Parutagouda. It is contended that defendant No.2 obtained a collusive compromise decree in O.S.No.355/2000, and managed to transfer the property in his name without any legal and valid transfer. Defendant No.2, by committing fraud, transferred the said property in his name. The compromise decree passed in O.S.No.355/2000 is not binding on them. It is contended that the plaintiffs were not parties to the proceedings in O.S.No.355/2000. Defendant No.2 is trying to interfere with the peaceful possession and enjoyment of the plaintiffs over the suit property, based on the compromise - 5 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 decree passed in O.S.No.355/2000. The plaintiffs requested defendant No.2 to rectify the records, but defendant No.2 did not agree to it. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 3.1. Summons was issued to defendant No.1. Defendant No.1 remained unrepresented, and was placed exparte. 3.2. Defendant No.2 died during the pendency of the suit. His LRs were brought on record. The defendant No.2, during his life-time, filed a written statement denying the entire averments made in the plaint and it is contended that the suit property is his ancestral joint family property and his forefathers were personally cultivating the lands. The plaintiff’s father and their forefathers were exclusive owners of the property bearing R.S No.66/3. Due to a mistake made in the revenue records, his name was entered in the record of rights - 6 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 regarding the suit schedule property. The possession of the suit land is with defendant No.2. It is contended that defendant No.2 filed a suit in O.S.No.355/2000 against defendant No.1 and his father Parutagouda to rectify the mistake that crept into the record of rights. Defendant No.1 and his father admitted the mistake crept in Records of Right and also admitted the ownership of defendant No.2, and his forefathers over the land bearing RS No.66/3 and a compromise decree was passed on 30.11.2000. Based on the compromise decree, M.E.No.4588 was effected. Defendant No.2 dug borewells in the suit land and installed electric motors after obtaining an electricity supply. He had obtained a loan from Banks by hypothecating the suit property for its improvement. He spent a huge amount on the development of the suit property. He submits that the suit is barred by limitation. The suit filed by the plaintiffs is collusive, colluding with defendant No.1, and submits that, the suit for mere declaration without seeking a consequential relief of - 7 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 possession is not maintainable. Hence, prays to dismiss the suit. The LR’s of defendant No.2 filed an additional written statement adopting the written statement filed by defendant No.2, and contended that they are in actual possession and enjoyment of the suit schedule property. Hence, prays to dismiss the suit. 3.3. The trial Court, based on the pleadings of the parties, framed issues and additional issues. ISSUES 1. Whether the plaintiffs proves, that the suit schedule property is the ancestral joint family property of themselves and defendant No.1 who are the legal heirs of deceased Parutagouda Patil? 2. Whether the plaintiffs proves, that the defendant No.2 has obtained a collusive decree in O.S.No.355/2000 and got transferred the suit property in his name fraudulently? 3. Whether the plaintiffs proves, that the defendant No.2 along with defendant No.1 is trying to disturb their peaceful possession and enjoyment of the suit property? 4. Whether the defendants proves, that the name of the father of plaintiffs was wrongly entered in record of rights of the suit property and to rectify the same, the suit filed in O.S.No.355/2000 was compromise ? - 8 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 5. Whether the defendants proves, that the suit is barred by limitation? 6. Whether the plaintiffs are entitled for the suit relief as prayed for? 7. What order or decree? ADDITIONAL ISSUE FRAMED ON 30.10.2019 1. Whether the suit is bad for non-joinder of necessary parties? 4. The plaintiffs to substantiate their case, plaintiff No.1 was examined as PW.1, examined two witnesses as PWs 2 and 3, and marked 7 documents as exhibits P.1 to P.7. On the other hand, defendant No.2 was examined as DW.1, and examined one witness as DW.2, and marked 6 documents as exhibits D.1 to D.6. After recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue nos.1 to 3, 6 and additional issue in the negative, issue nos.4 and 5 in the affirmative and issue No.7 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 14.1.2020. The plaintiffs, aggrieved by the - 9 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 impugned judgment passed in O.S.No.55/2017, filed this Regular First Appeal. 5. Heard Sri Pawan B Doddatti, learned counsel for the plaintiffs. Though, a notice was issued to respondents No.1 to 3 and 5, they have remained unrepresented. 6. Learned counsel for the plaintiffs submitted that the trial Court committed an error in passing the impugned judgment without considering the admission of DW.1, who had admitted the fact that, the name of Parutagouda Patil was entered in the revenue records regarding the suit schedule properties till 2000. Even though, defendant No.2 contended that the suit property belongs to his mother Rayavva, he has not produced any records. He submits that, the trial Court has dismissed the suit based on the compromise decree passed in O.S.No.355/2000 wherein, the plaintiffs are not parties to the said suit. The said compromise decree passed in O.S.No.355/2000 is not binding on the plaintiffs. Hence, on these grounds, he prays to allow the appeal. - 10 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 7. Perused the records and considered the submissions of the learned counsel for the plaintiffs. 8. The points, that arise for our consideration are : i) Whether the plaintiffs prove that the suit schedule property is the ancestral joint family property of themselves and defendant No.1, who are the legal heirs of deceased Parutagouda Patil? ii) Whether the defendants prove that the suit for mere declaration, without calling for the consequential relief of possession, is not maintainable? iii) Whether the plaintiffs prove that the judgment and decree passed by the trial Court is perverse and arbitrary? iv) What order or decree ? Re.Point No.1 : 9. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1. She has reiterated the plaint averments in the examination-in-chief and to prove that the suit schedule property is the ancestral joint family property of plaintiffs and defendants, produced Ex.P.1, a record of rights of R.S.No.54/3 of Bantanur village - 11 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 standing in the name of Vittal Naik- Hanamappa; Ex.P.2 is the copy of the award passed by the Legal Services Committee in O.S.No.355/2000; Ex.P.3 is the general power of attorney executed by the plaintiffs in favour of PW.2 authorizing him to depose of behalf of the plaintiffs, Exs.P.4 to P.6 are the mutation entries, and Ex.P.7 is the copy of the record of rights in respect of Sy.No.54/3. 9.1. During the course of cross-examination of PW.1- Devakewwa, stated that, she is aged about 40 years and her husband is residing at Lokapura, and since her marriage, she is residing with her husband and plaintiff No.2 is her sister, and the second plaintiff’s marriage was performed about 25 years back and she is residing with her husband. Plaintiff No.3 was married about 23 years back and she is residing with her husband. Defendant No.1 is a resident of Bantanur village and the family is possesses the land bearing Sy.No.66/3 measuring 4 acres 5 guntas, the said land is situated at Buntanur, whereas the witness volunteers that the measurement of the land is 5 acres 5 guntas and defendant No.2 is the resident - 12 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 Bantanur. A suggestion was made to PW.1 that defendant No.2, their ancestors were in possession of the suit schedule property, to which PW.1 pleads ignorance. The witness volunteers to say that, his father acquired Sy.No.66/3 measuring 5 acres 5 guntas. It is elicited that the name of the plaintiffs’ father was wrongly written in the revenue records and subsequently, it was rectified, to which PW.1 pleads ignorance. It is elicited that, defendant No.2, aggrieved by the wrong entries in the name of defendant No.1, and plaintiffs father filed the suit in O.S.No.355/2000. The said fact was admitted by PW.1. PW.1 admits that defendant No.2 is in possession of the suit schedule property. Further, PW.1 has deposed that she does know the contents of the documents produced by the plaintiffs. 9.2. The plaintiffs examined one Vittalappa as PW.2 who has deposed that plaintiffs are the sisters of defendant No.1 and defendant No.2 is a total stranger to their family. It is contended that the plaintiffs and defendant No.1 are the members of the Hindu undivided - 13 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 family and own a land in Sy.No.54/3 measuring 5 acres 4 guntas situated at Bantanur village and it is the ancestral property of plaintiffs and defendant No.1. He has deposed that defendant No.2 obtained a collusive decree in O.S.No.355/2000, and the said compromise decree is not binding on the plaintiffs and defendant No.1. 9.3. The plaintiffs also examined another witness by the name Shivappa as PW.3. He deposed in the same line as PW.2. 9.4. In rebuttal, defendant No.2 was examined as DW.1. He deposed that, the suit schedule property belongs to the ancestors of defendant No.2 and a mistake crept in the record of rights regarding the suit schedule property. He has deposed that, he has filed a suit in O.S.No.355/2000 against defendant No.1 and his father Parutagouda. The said suit was ended in a compromise wherein, defendant No.1 and his father have admitted the wrong entries made in the record of rights of the suit schedule property i.e., the property bearing RS No.54/3. Defendant No.1 and his father-Parutagouda and defendant - 14 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 No.2 filed a compromise petition in the said suit and a compromise decree was drawn. Based on the compromise decree, mutation was effected. Defendant No.2 is in possession and enjoyment of the suit schedule property. To prove the defence of defendant No.2, the defendant No.2 has produced the certified copy of the compromise decree passed in O.S.No.355/2000 at Ex.D.1(Ex.P.2). Ex.D.2 is the mutation register of M.E.No.4588 which discloses that, based on the compromise decree passed in O.S.No.355/2000, the property was mutated in the name of defendant No.2, Ex.D.3 is the record of rights wherein the name of defendant No.1 was rounded off and the name of plaintiffs as ‘owner and possessor of land’ in Sy.No.54/3 is shown, Ex.D.4 is the certified copy of the RTC of land R.S.No.66 standing in the name of Thippanagouda patil-Parutagouda, Ex.D5 is the bill issued by the Hubli Electricity Supply Company (HESCOM) which discloses that the defendant No.2 has dug borewell and taken electricity supply, Ex.D.6 is the 5 sugarcane weighment slips which disclose that, defendant No.2 has - 15 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 grown sugarcane in the suit schedule property and sold the same to the Sugarcane Factory. Defendant No.2 also examined one Ningappa as DW.2, who has deposed that, defendant No.2 is in possession of the suit schedule property and the plaintiffs are not in possession of the suit schedule property. 9.5. From a perusal of the records, though it is the case of the plaintiffs that the suit schedule property is the ancestral joint family property of plaintiffs and defendant No.1, the plaintiffs have not produced any records to establish that, it was standing in the name of their ancestors. The records produced by the plaintiffs disclose that RS No.52/4 was granted land in favour of Dyavamma and Hanamavva, and the plaintiffs have not disclosed how they are related to their family. In a suit for partition and separate possession, the initial burden is on the plaintiff to establish the relationship between the parties to the suit and the nature of the suit schedule properties. Admittedly, in the instant case, the plaintiffs have not produced any records to establish that the suit schedule - 16 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 property is the ancestral joint family property of the plaintiffs and defendants. The plaintiffs have failed to establish that the suit schedule property is the ancestral and joint family property of the plaintiffs and defendant No.1. In view of the above discussion, we answer point No.1 in the negative. Re.point No.2 : 10. It is the defence of the defendants that, there was a mistake crept in the revenue records. Instead of reflecting the name of the ancestors of defendant No.2, the name of defendant No.1 and his father, Parutagouda patil, is reflected. Defendant No.2, aggrieved by the entries in the record of rights regarding Sy.No.66/3, filed a suit in O.S.No.355/2000, against defendant No.1, and his father Parutagouda. Defendant No.1, and his father have entered an appearance in O.S.No.355/2000. The parties have entered into a compromise, and filed the compromise petition in O.S.No.355/2000. The said compromise petition was accepted by the Legal Services Committee, Mudhol Taluk and a compromise decree was drawn as per Ex.D1. - 17 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 The plaintiffs are claiming title through defendant No.1 and Parutagowda. Based on the compromise decree, the name of defendant No.2 was mutated, and the name of defendant No.1 and Parutagowda was deleted. The plaintiffs are claiming a right through Parutagowda, who was a party in O.S.No.355/2000. The said compromise decree is binding on the plaintiffs as well as on defendant No.1. Defendant No.1 has filed the present suit through the plaintiffs to harass defendant No.2. The compromise decree was passed on 30.11.2000 and the present suit was filed on 22.4.2017. Parutagouda died on 12.11.2008. Parutagouda, during his life-time, did not challenge the compromise decree passed in O.S.No.355/2000. The compromise decree was acted upon. Hence, defendant No.2 has proved that, he has acquired possession by the compromise decree Ex.P.2, which is binding on the plaintiffs and defendant No.1. Further, the plaintiffs have filed a suit for declaration of title and a consequential relief of permanent injunction. Admittedly, the plaintiffs are not in possession of the suit schedule property. Mere filing a - 18 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 suit for declaration, without seeking the consequential relief of possession, is not maintainable as per the provisions of Section 34 of the Specific Relief Act, 2018. The Hon’ble Apex Court in the case of Vasantha (Dead) Thr. L.R. vs Rajalakshmi @ Rajam (Dead) Thr. Lrs. on 13 February, 2024, at paragraph No.58 has held as under : “58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1- plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by the provisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same." The Hon’ble Apex Court has held that, the suit for declaration of title, without seeking the relief of possession, is barred by the provisions of Section 34 of the Specific Relief Act, and the suit is liable to be dismissed on that ground. Admittedly, in the instant case, the plaintiffs are not in possession of the suit schedule property and also have not sought the relief of possession. Hence, the - 19 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 suit filed by the plaintiffs for a mere declaration of title and permanent injunction is not maintainable without seeking the recovery of possession. In view of the above discussion, we answer point No.2 in the affirmative. Re.point No.3 11. Considering the evidence of the parties, the trial Court, has rightly recorded a finding that the plaintiffs have failed to establish their title over the suit schedule property, and also the plaintiffs are not in possession of the suit schedule property. The trial Court placing reliance on the compromise decree passed in O.S.No.355/2000, has held that the decree is binding on the plaintiffs and defendant No.1 and has also held that the suit filed for declaration of title and injunction is not maintainable as per the provision of Section 34 of the Specific Relief Act and rightly dismissed the suit. In view of the above discussion, we answer point No.3 in the negative. - 20 - NC: 2025:KHC-D:3141-DB RFA No. 100186 of 2021 Re.point No.4 12. As we have already answered points No.1 to 3 in favour of defendant No.2, we, accordingly, proceed to pass the following order : ORDER i) The appeal is dismissed. ii) The judgment and decree dated 14.01.2020 in O.S No.55/2017 passed by the Prl. Senior Civil Judge and JMFC, Mudhol, is hereby confirmed. No order as to costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE rs CT: BSB List No.: 1 Sl No.: 14