- 1 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 500 OF 2015 BETWEEN: VENKATEGOWDA S/O DASEGOWDA AGED ABOUT 48 YEARS R/O DODDAKAAGALU VILLAGE KASABA HOBLI, ALUR TALUK HASSAN DISTRICT-573213 …APPELLANT (BY SRI. K V NARASIMHAN., ADVOCATE) AND: SRI H T MANJEGOWDA S/O LATE THIMMEGOWDA @ PUTTEGOWDA AGED ABOUT 62 YEARS R/O HOSAPURA VILLAGE KASABA HOBLI, ALUR TALUK HASSAN DISTRICT-573213 …RESPONDENT (BY SRI.H J ANANDA, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.02.2015 PASSED IN R.A NO.51/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.06.2012 PASSED IN O.S NO.93/2010 ON THE FILE OF THE COURT OF CIVIL JUDGE, ALUR. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 ORAL JUDGMENT This appeal is preferred by the defendant assailing the judgment and decree dated 13.02.2015 passed in RA No.51/2012 by the Principal Senior Civil Judge, Hassan, dismissing the appeal and confirming the judgment and decree dated 18.06.2012 passed in OS No.93/2010 by the Civil Judge, Alur, decreeing suit of the plaintiff. 2. For the sake of convenience, the parties are referred to their ranking before the Trial Court. 3. It is the case of the plaintiff that the land bearing Sy.No.100/2 measuring an extent of 14 acres 20 guntas is belonged to the father of the defendant. He further stated that, the brother of the plaintiff - H T Bhimegowda had purchased the 5 acres of land in Sy.No.100/2, from the father of the defendant as per the registered Sale Deed dated 24.02.1960. Thereafter, as the said purchase was made by the brother of the plaintiff through the nucleus of the joint family, and as such, the members of the joint family of the plaintiff got partitioned the 5 acres of land on 15.12.1982, wherein, 1 acre 10 guntas of land was allotted to the share among four - 3 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 brothers including the plaintiff, as per the partition deed. Hence, it is the case of the plaintiff that, the plaintiff got 1 acre 10 guntas of land in Sy.No.100/2 of Doddakanagalu village, Kasaba Hobli, Aluru Taluk. 4. It is also stated in the plaint that, the defendant has formed a road in the `B' schedule property, and as such, the defendant has interfered with the schedule property belonging to the plaintiff, and as such, the plaintiff has filed OS No.93/2010 seeking relief of declaration of title and consequential relief of possession in respect of the suit schedule property. 5. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant that, the land bearing Sy.No.100/2, belonged to the family of the defendant, and the extent of 5 acres of land was sold in favour of H T Bhimegowda-brother of plaintiff as per registered sale deed dated 24.02.1960. It is also stated in the written statement that the father of the defendant, has retained 1 acre of land in Sy.No.100/2 after excluding 5 acres of land - 4 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 sold in favour of the brother of the plaintiff-H T Bhimegowda. Accordingly, it is the case of the defendant that the brother of the plaintiff - H T Bhimegowda is in actual possession and enjoyment of the entire extent of land having been purchased by him, and therefore, the plaintiff has suppressed the aforementioned aspect, and accordingly, sought for dismissal of the suit. 6. The Trial Court based on pleadings on record formulated the issues for its consideration. 7. In order to establish the case, the plaintiff has examined four witnesses as PW.1 to PW.4 and got marked seven documents as Exs.P1 to P7, defendant has examined himself as DW1 and produced twelve documents, and the same were marked as Exs.D1 to D12. 8. The Trial Court after considering the material on record, by judgment and decree dated 18.06.2012, decreed the suit holding that the plaintiff is the absolute owner of the suit schedule property. - 5 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 9. Feeling aggrieved by the judgment and decree passed in the suit, the defendant preferred RA No.51/2012 before the First Appellate Court, and the same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by judgment and decree dated 13.02.2015, dismissed the appeal, and as such, confirmed the judgment and decree dated 18.06.2012 passed in OS No.93/2010. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 10. This Court, vide order dated 04.04.2016, has formulated the following substantial question of law: "Whether the findings recorded by the courts below with regard to the title of the plaintiff to the suit property, is perverse?" 11. Heard Sri K V Narasimhan, learned counsel appearing for the appellant/defendant, and Sri H J Ananda, learned counsel appearing for the respondent. 12. Sri K V Narasimhan, learned counsel for the appellant/defendant, invited the attention of the Court to the findings recorded by the Trial Court in respect of issue No.1, and submitted that, the plaintiff has not produced the Partition - 6 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 Deed dated 15.12.1982, under which, the plaintiff is deriving title to the suit schedule property, and in the absence of the same, the Trial Court has decreed the suit erroneously, and the same has been confirmed by the First Appellate Court, and accordingly, sought for interference of this Court. 13. It is further argued by the learned counsel appearing for the appellant/defendant that, originally the land bearing Sy.No.100/2 belonged to the father of the defendant and thereafter, the brother of the plaintiff - H T Bhimegowda had purchased 5 acres of land as per the registered Sale Deed dated 24.02.1960, and therefore, the claim made by the plaintiff is only with regard to the 5 acres of land sold in favour of the brother of the plaintiff, and therefore, it is contended by the learned counsel appearing for the appellant that, both the courts below have committed an error in appreciating the material on record, and accordingly, sought for interference of this Court. 14. Per contra, Sri H J Ananda, learned counsel appearing for the respondent/plaintiff, invited the attention of the Court to survey sketch (Exs.P3 and P4). He further - 7 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 contended that the revenue proceedings have been filed before the Revenue Authority under Section 136(3) of the Karnataka Land Revenue Act, 1964, in which, the boundary dispute has been raised with regard to the schedule property, and therefore, he contended that as per Ex.P7, which discloses that, the appeal preferred by the plaintiff regarding cancellation of durast made in favour of the defendant in the year 2007, substantiate the right of the plaintiff with regard to the suit property. Accordingly, sought for dismissal of the appeal. 15. In light of the submissions made by the learned counsel for the parties, and on careful examination of the original records, would indicate that originally the property bearing Sy.No.100/2, measuring to an extent of 14 acres 20 guntas, belonged to the father of appellant/defendant, out of which, 5 acres of land was sold in favour of the brother of the respondent/plaintiff - H T Bhimegowda as per the registered Sale Deed dated 24.02.1960 (Ex.P1). It is the case of the plaintiff that, the brother of the plaintiff had purchased the aforementioned 5 acres of land out of the joint family nucleus, and therefore, the partition was effected on 15.12.1982 among - 8 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 the plaintiff and his brothers, out of which, 1 acre 10 guntas each was allotted in favour of four brothers of the plaintiff, and accordingly, the plaintiff has acquired 1 acre 10 guntas of land in terms of the Partition Deed dated 15.12.1982. Un- disputably, the said partition deed, said to have been effected between the plaintiff and his brothers, was not produced before the Trial Court. In that view of the matter, taking into consideration the suit is filed by the plaintiff seeking declaratory relief, and in that view of the matter, it is settled principle of law that, in a suit for declaration of title unless the plaintiff produced the cogent document of title before the Civil Court, the relief of declaration cannot be granted based on the revenue records. In that view of the matter, it is relevant to cite the judgment of this Court in the case of Hullappa vs. The State of Karnataka through Deputy Commissioner, Bidar and others reported in ILR 2012 Kar 4958 at paragraph Nos.14 to 17 read as under : "14. A reading of the entire paragraph makes it clear that the defendants have put the plaintiff to strict proof of his assertion that plaintiff is the owner. Now the plaintiff has produced seven documents. None of the said documents are document of title. It is settled law that in a suit for declaration of title, unless the plaintiff - 9 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 produces the document of title, the Civil Court cannot grant declaration on the basis of the record of right, tax paid receipts or some communication or letters. This fundamental principles of law has not been kept in mind by the Trial Court. In this context it is necessary to restate the law on this point. 15. The Apex Court in the case of STATE OF H.P. VS. KESHAV RAM AND OTHERS, has held as under: "In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the Courts below were justified in declaring plaintiffs. As has been stated earlier the only piece of evidence on which the Courts below relied u-on to decree the plaintiffs suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relief upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned. It is to be seen that the disputed land original stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the Learned Counsel for the plaintiffs-respondents could not point out any other document part from - 10 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In the our considered opinion, the Courts below committed serious error of law in declaring plaintiff's title on the basis of the aforesaid order of correction and the consequential entry in the Revenue Papers." 16. Again the Apex Court in the case of NARAIN PRASAD AGGARWAL vs. STATE OF MADHYA PRADESH at paragraph 19 has held as under: "19. Record-of-right is n ot a document of title. Entries made therein in terms of Section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable. Exhibit P-4 and Exhibit P-6 whereupon reliance has been placed by the Learned Trial Judge to hold that the State had title over the property in question, were documents of year 1920-21, but failed to notice that the documents must have been taken into consideration and/or would be presumed to have been taken into consideration by the Settlement Commissioner when the aforementioned order dated 30-10-1992 (Exhibit P- 3) was passed wherein it had categorically been held that no deed of lease having been executed in respect of the land in question, the title of the said Putri Sethani should be deemed to be a permanent lessee." 17. Again the Apex Court in the case of GUJRUNATH MANOHAR PAVASKAR AND OTHERS vs. NAGESH SIDDAPPA NAVALGUND AND OTHERS at paragraph 12 has held as under: "12. A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can - 11 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 also raised under Section 110 of the Evidence Act. The Courts below were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind." 16. Following the declaration of law made by this Court, on careful examination of the findings recorded by the Trial Court on issue No.1, I find force in the submission made by the learned counsel appearing for the appellant/defendant that the respondent/plaintiff has not proved his title over the property in question by producing the relevant Partition Deed dated 15.12.1982, and therefore, the mutation entry evidencing the above schedule property has not been produced by the plaintiff except the revenue records. In that view of the matter, that itself is not sufficient to hold that the plaintiff is having title over the schedule property. In that view of the matter, the Courts below have committed serious error in decreeing the suit of the plaintiff without the essential requirement of title deed to the property is being produced by the plaintiff. 17. I also carefully examined the findings recorded by the First Appellate Court. The First Appellate Court, on erroneous conception of law by looking into the original Sale Deed dated 24.02.1960 (Ex.P1) said to have been executed by - 12 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 the father of the defendant in favour of the brother of the plaintiff - H T Bhimegowda has concluded with the findings recorded by the Trial Court without appreciating the material on record as required under Order 41 Rule 31 of CPC as well as the dictum of Hon'ble Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari (D) by LRs. reported in (2001) 3 SCC 179. In that view of the matter, both the Courts below have committed an error in arriving at the conclusion to declare that the plaintiff is the owner of the schedule property. I am of the view that, the substantial question of law framed above favours the defendant. 18. In the result, I pass the following: ORDER i) Appeal is allowed. ii) The judgment and decree dated 13th February, 2015 passed in RA No.51/2012 by the Principal Senior Civil Judge, Hassan, and the judgment and decree dated 18.06.2012 passed in OS No.93/2010 by the Civil Judge, Alur, are hereby set aside. - 13 - HC-KAR NC: 2025:KHC:30380 RSA No. 500 of 2015 iii) That the OS No.93/2010 filed by the plaintiff is accordingly, dismissed. SD/- (E.S.INDIRESH) JUDGE BKM List No.: 1 Sl No.: 38