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2025 DAILYLAW 70834 (KAR)

SRI VISHWARDHYA v. SRI D V CHANDRASHEKARAIAH

RSA/516/2014 · 2025-08-30

Anant Ramanath Hegde

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Judgment text

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- 1 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 516 OF 2014 (DEC/INJ) BETWEEN: 1. SRI VISHWARDHYA, SINCE DEAD REP. BY HIS LRS 1(A). SRI SIDDALINGA ARADYA, S/O. VISHWARDHYA, AGED ABOUT 49 YEARS R/AT DODDAGUNI, NITTUR HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572211. 1(B). SRI D.B.VIVEKANANDA S/O. VISHWARDHYA, AGED ABOUT 46 YEARS, R/AT DODDAGUNI, NITTUR HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572211. …APPELLANTS (BY SRI. RAJANNA L., ADVOCATE) AND: SRI D V CHANDRASHEKARAIAH S/O VEERATHAIAH MAJOR R/O DODDAGUNI, NITTUR HOBLI GUBBI TALUK TUMKUR DISTRICT …RESPONDENT (BY SRI. PRASAD S T FOR C/R.,ADVOCATE) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 21.12.2013 PASSED IN R.A.NO.18/2009 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 2.1.2009 PASSED IN OS.NO.243/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., GUBBI.TRAIL COURT PARTLY ALLOWED THE SUIT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This second appeal is arising from the concurrent finding in a suit for declaration of title and injunction. The Trial Court granted decree of injunction, however, declined the relief of declaration of title. 2. The defendant accepted the said decree and did not question the decree granting permanent injunction. 3. The plaintiff filed First Appeal to the extent of denial of relief of declaration of title. First Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. - 3 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 4. This appeal was admitted on 20.06.2016 to answer the following substantial questions of law: (1) Were the courts below justified in dismissing the suit for declaration and granting permanent injunction without considering the material documents Ex.P1 to P35? (2) Were the courts below justified in refusing to grant the relief of declaration when both the courts concurrently held that the plaintiff is in possession and enjoyment of suit schedule property and there is no challenge by the defendants for grant of injunction in favour of the plaintiff? (3) Were the courts below justified in dismissing the suit for declaration, title in the facts and circumstances of the present case? 5. The plaintiff has filed the suit in respect of Sy.No.2/1 measuring 2 acres 7 guntas, situated at Doddaguni Village, Nittur Hobli, Gubbi Taluk. The plaintiff claims that this property was earlier allotted to his father's share and after the demise of his father, the plaintiff inherited the said property. - 4 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 6. The defendant contested the suit and took a stand that the property belonged to his father and prayed for dismissal of the suit. 7. Learned counsel for the plaintiff/appellant would submit that one Marulaiah was the propositus and he had three sons namely, Siddalingappa, Thotappa and Veerathaiah. The plaintiff claims that there was a partition in the family and in the said partition the property was allotted to his father Thotappa’s 's share and after Tothappa’s death, the plaintiff being his son inherited the suit property and consequently, sought relief of declaration of title and injunction as defendant –son of Veerathiah disputed the plaintiff's title over the property. 8. The defendant claimed title over the property on the premise that the property is allotted to his share. After recording the evidence, the Trial Court came to the conclusion that the plaintiff is in possession of the property, however, declined the relief of declaration of title on the - 5 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 premise that the plaintiff has failed to establish his title to the property by producing the title deed. 9. The Trial Court also came to the conclusion that the defendant is not in possession of property and issue No.3 which is framed casting burden on the defendant to prove his contention that the property was allotted to his father and the issue is answered in the negative and consequently the decree for injunction is granted against the defendant and in favour of the plaintiff. 10. Learned counsel for the plaintiff/appellant would contend that the plaintiff has produced the records standing in the name of the plaintiff to show that the property is allotted to the plaintiff's father and after the death of the plaintiff's father, the plaintiff’s name is mutated in the property records. Having recorded the finding that the plaintiff is in possession of the property the trial court could not have declined relief of declaration of title of the property. 11. It is submitted that the properties were divided orally among the ancestors and there cannot be any title - 6 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 deed in a situation like this and the Trial Court and First Appellate Court could not have insisted for a title deed. It is also his further submission that Hindu law recognizes oral partition and the longstanding entries in the record of right have the presumptive value and the presumption is not rebutted. 12. It is also urged that the finding that the plaintiff is in possession of the property is not questioned by the defendant, though there is a decree for permanent injunction against defendant and it would logically lead to the conclusion that the plaintiff has acquired title over the property from his father and earlier, the plaintiff's father was the absolute owner of the property. 13. It is urged that there are two more suits between the plaintiff and defendant and both suits have been decided in favor of the present plaintiff and the trial Court could not have declined the relief of declaration of title by referring to earlier two judgments which are decided in favour of the plaintiff. - 7 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 14. There is no appearance on behalf of the defendant/ respondent. 15. This Court has considered the contentions raised at bar and perused the records. 16. Issues No.1 and 3 framed by the Trial Court are relevant for adjudication of this case. Those two issues read as under: "1. Whether the plaintiff proves that the suit schedule property originally fell to the share of his father in the partition and after the death of his father, himself and his mother have been in possession of the suit schedule property? 2. XXXX 3. Whether defendant proves that the suit schedule property had fallen to the share of his father, in the partition and after the death of his father he has been in lawful possession and enjoyment of property in Sy.No.2/1 measuring 2 acres and 7 guntas of Doddaguni village?" 17. As can be seen from the aforementioned issues, the burden is cast on the plaintiff to prove issue No.1 and - 8 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 burden is cast on the defendant to prove issue No.3. The decree granting permanent injunction against the defendant and in favour of the plaintiff has attained finality. Defendant has not questioned the said decree. Thus it would go to show that the plaintiff is in possession of the suit property. 18. It is also noticed that the trial court has recorded a finding that the defendant has failed to establish that he inherited the property from his father. That finding has again attained finality. 19. It is further noticed that the trial court has declined to grant relief of declaration of title on the premise that the plaintiff has failed to establish his title over the property and he cannot stand on the weakness of the defendant to make a claim that he has acquired title of the suit property. 20. This Court has perused the evidence placed on record. The documentary evidence would reveal that the plaintiff has produced the property records from 1973 onwards. EX.P.8 is the record of right pertaining to the suit - 9 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 property for the year 1973-74 to 1975-76. Said property record would reveal that the property stands in the name of Vishwaradhya- plaintiff. 21. EX.P.6 is the certified copy of index of lands and column No.18 of the said property record would reveal that property stood in the name of Thotappa Marulaiah. Name of plaintiff is also shown as minor in column No.18. The records of right for the year 1978-79 to 1983-84 marked at EX.P5 and records of right at EX.P4 and P3 and rest of the records of rights marked at EXs.P1 to P4, would reveal the name of the plaintiff as the owner in possession. 22. The Trial Court has concluded that the plaintiff cannot succeed on the weakness of the defendant. However it is required to be noticed that the Trial court has failed to take note of the inference emerging from the index of land records at EX.P6 and revenue records starting from 1973 onwards. 23. As already noticed the entries in the record of right carry a presumptive value. Of course, that presumption - 10 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 is rebuttable. In the instant case, this Court has noticed that no evidence is placed on record to hold that the presumption arising from the entries in the record of rights produced is rebutted. In addition to that, the presumption gets strengthened given the fact that the decree for injunction granted against the defendant and in favour of the plaintiff is not questioned by the defendant. 24. It is also relevant to notice that the defendant contended that he acquired the property from his father and the property was allotted to his father's share is also negatived by answering issue No.3 against the defendant. Said finding is not questioned by the defendant. 25. Under these circumstances, this Court is of the view that the reasons assigned by the trial Court and first appellate Court in not granting the declaration of title in favor of the plaintiff are erroneous and not sustainable. 26. Though the case was heard on 28.08.2025, awaiting appearance of the learned counsel for the respondent, the matter was ordered to be listed on - 11 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 29.08.2025 for further hearing. On 29.08.2025, there was no appearance on behalf of the respondent and the case was adjourned for today for dictating judgment. Today also there is no representation on behalf of the respondent. 27. As already discussed above, the plaintiff has established his possession and said finding is not questioned. The possession of plaintiff is not questioned as the decree for permanent injunction has attained finality. Revenue records reveal that the plaintiff is the owner. The defendant’s claim relating to title is already rejected and said finding has attained finality. 28. Considering these aspects, this Court is of the view that the plaintiff has established title over the property and the Trial Court and First Appellate Court were not justified in declining the declaration. 29. The substantial questions of law are answered in favour of the plaintiff/appellant. 30. Hence, the following: - 12 - HC-KAR NC: 2025:KHC:33775 RSA No. 516 of 2014 ORDER (i) The Regular Second Appeal is allowed. (ii) The judgment and decree dated 21.12.2013 declining the relief of declaration in R.A.No.18/2009 on the file of III Additional District Judge, Tumkuru are set-aside. (iii) The judgment and decree dated 02.01.2009 declining the relief of declaration in O.S.No.243/2006 on the file of Civil Judge (Sr.Dn.) Gubbi are set-aside. Consequently the suit of the plaintiff is decreed as prayed for. (iv) Plaintiff is declared as the owner of the suit schedule property and the defendant is restrained from interfering in the plaintiffs peaceful possession and enjoyment of the property. SD/- (ANANT RAMANATH HEGDE) JUDGE YKL/GVP List No.: 1 Sl No.: 12 …