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2025 DAILYLAW 86922 (KAR)

SMT SHIVANANJAMMA v. SMT JAYAMMA

RSA/781/2025 · 2025-12-11

H P Sandesh

body2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.781 OF 2025 (DEC/INJ) BETWEEN: SMT. SHIVANANJAMMA W/O LATE M LINGANNA AGED ABOUT 62 YEARS R/AT NO.39, DEVALAPURA VILLAGE VARUNA HOBLI MYSURU – 570 010 …APPELLANT (BY SRI mrinal kuttappa, advocate for Smt. LEELA P devadiga, ADVOCATE) AND: SMT. JAYAMMA W/O LATE ANKANNA AGED ABOUT 65 YEARS R/AT DEVALAPURA VILLAGE (NEAR GURUMALLESHWARA MUTT) VARUNA HOBLI MYSURU – 570 010 …RESPONDENT (BY SRI BASAVANNA K M, ADVOCATE) This RSA is FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.02.2025 PASSED IN R.A.NO.4/2023 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU and etc. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 THIS APPEAL, COMING ON FOR admission, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of case of the plaintiff before the Trial Court that she is the owner of the suit schedule property by virtue of the registered sale deed dated 21.09.1987 and the same was purchased by her husband. Further, it is the case of the plaintiff that she is in actual physical possession of the suit schedule property as on the date of filing of the suit. It also contended that there is an interference by the defendant. The defendant appeared and filed the written statement contending that the suit is bad for non-joinder of necessary party and Court fee paid is insufficient and suit is barred by law of limitation. - 3 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 4. The Trial court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record, held that the very husband of the plaintiff gave the consent to change the revenue records in the name of his sister i.e., defendant. Accordingly, the suit schedule property was transferred to the name of the defendant under M.R.No.9/1991-92 and from that date, the defendant is in actual physical possession and enjoyment of the suit schedule property without any interference from anybody including the plaintiff and her husband. However, the husband of the plaintiff had challenged the revenue entries subsequently, filing an appeal before the Assistant Commissioner. The Assistant Commissioner having secured the records for transfer of property in favour of the defendant comes to the conclusion that the husband of the plaintiff himself gave the consent and records also reveals the same. Based on the consent only property got transferred in the name of the defendant and dismissed the appeal in the year 1999 itself. The order of the Assistant Commissioner is not challenged and the same has attained its finality. Thus, all the - 4 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 revenue records stands in the name of the defendant. Hence, the Trial Court comes to the conclusion that when the consent is given to transfer of the property in favour of the defendant, that too he voluntarily appeared and given consent to transfer the property in favour of the defendant, considering the case of the plaintiff does not arise and answer Issue Nos.1 to 3 in the negative and comes to the conclusion that plaintiff is also not in possession of the suit schedule property and dismissed the suit. Being aggrieved by the judgment of the Trial Court, an appeal is preferred before the First Appellate Court in R.A.No.4/2023. 5. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the Points and having reassessed both oral and documentary evidence placed on record comes to the conclusion that the appellant has not proved her case particularly taking into note of the documents of Ex.D4 to D21 and First Appellate Court held that defendant availed the loan from Kaveri Grameena Bank, Devalapura Branch, Mysore Taluk by mortgaging the suit schedule property and also from PCRD Bank, Mysore Taluk. When suggestion was made to PW1 during her cross-examination in this regard, she - 5 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 has stated that since RTC of the suit schedule property was standing in the name of the defendant, the defendant has availed the loan from said banks. Thus, PW1 not even disputed with regard to availing of loan from the concerned banks by the defendant. Hence, it is clear that property was transferred to the name of the defendant from 1991-1992 and defendant also availed the loan. Apart from that, the First Appellate Court comes to the conclusion that defendant is in possession over the suit schedule property and khatha of the suit schedule property also stands in the name of defendant. The First Appellate Court also taken note of admission on the part of PW1 with regard to the possession is concerned and so also the revenue documents and an observation is made in paragraph 23 that on the contrary, the plaintiff has not placed any evidence to show that either her husband or herself developed the suit schedule property by planting coconut saplings while drilling bore-well. If the plaintiff is in possession and enjoyment of the suit schedule property, there was no impediment for her to examine any other independent witness to substantiate her possession and also the alleged interference of the defendant. So, except self-serving statement of PW1, no other - 6 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 independent and cogent evidence is available before the Court to establish her case. The First Appellate Court also having considered the material on record particularly the transfer of property in favour of the defendant from the year 1991-1992 onwards and availing the loan and also all the revenue records which stand in the name of the defendant and also the defendant made an improvement over the suit schedule property, comes to the conclusion that the defendant is in possession and enjoyment of the suit schedule property ever since from 1991-1992. Thus, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 6. The learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in dismissing the suit of the appellant herein. The counsel would vehemently contend that existence of a valid registered sale deed proving title to the suit schedule property was not considered by both the Courts and also mutation entries altered without lawful authority or consent can confer title or override a registered deed. The counsel would - 7 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 vehemently contend that the judgment and decree of both the Courts vitiated by non- consideration of fraud and lack of due process in the change of revenue entries and both the Courts misdirected itself in treating long possession as ownership in the absence of plea or proof of adverse possession in accordance with law. Hence this Court has to admit the appeal and to frame substantial question of law. 7. The counsel also in support of his arguments, relies upon judgment of the Apex Court reported in (2015) 14 SCC 784 in the case of H LAKSHMAIAH REDDY AND OTHERS vs L VENKATESH REDDY wherein, the Apex Court held that mutation of name in revenue records effect cannot amount to relinquishment of right or title to others. The counsel also relies upon the judgment of Apex Court reported in (1997) 7 SCC 137 in the case of BALWANT SINGH AND ANOTHER vs DAULAT SINGH (DEAD) BY LRS AND OTHERS wherein also the Apex Court held that entries in mutation must be taken as correct unless the contrary is established. The learned counsel for the appellant relying upon these judgments contend that - 8 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 this Court has to admit the appeal and frame substantial question of law. 8. Per contra, the learned counsel appearing for he respondent also relied upon the judgment reported in 2025 (3) KAR L R 53 in the case of SOMAYYA BELCHADA vs SANTHOSH AND OTHERS and contend that when the suit is filed for the relief of declaration without seeking the relief of possession when the possession is not with the appellant, cannot maintain that suit. The counsel also relied upon the judgment reported in ILR 2007 KAR 339 in the case of SRI ARALAPPA vs SRI JAGANNATH AND OTHERS and would contend that suit itself for declaration is not maintainable without seeking the relief of possession. Hence, the learned counsel for the respondent relying upon these judgments would vehemently contend that both the Courts have rightly dismissed the case of the appellant and thus, it does not requires interference of this Court. 9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that there is no dispute between the parties - 9 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 with regard to that appellant and the respondent are relatives. The appellant is the wife of the brother of the respondent. It is not in dispute that brother i.e., the husband of the appellant had purchased the property and subsequently, in the year 1991, he himself has given the consent to transfer the property in favour of his sister i.e., the respondent. The said fact is taken note of by both the Trial Court and the First Appellate Court. The document of mutation of the year 1991-1992 is also produced before the Court. Apart from that, when the very husband of the appellant had challenged the same before the Assistant Commissioner by filing an appeal, the said appeal got dismissed in coming to the conclusion that the husband of the appellant only gave the consent for transfer of property to the respondent and subsequent to the transfer of property, even possession is also delivered in favour of the respondent and respondent is in possession of the suit schedule property from the year 1991-1992 till even filing of the suit also. The records discloses that even the appellant also admits that possession is with the respondent and even also admits that the respondent has availed loan from the concerned banks subsequent to the transfer of property in favour of the respondent. Though, it is - 10 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 not legal transfer but the very owner of the property has given consent for transfer of the property that too consent is given in favour of his sister voluntarily. All these factors were taken note of by the Trial Court as well as the First Appellate Court. 10. No doubt, the counsel appearing for the appellant relies upon the judgments of the Apex Court with regard to the mutation of name in revenue records, the effect cannot amount to relinquishment of right or title to others. There is no dispute with regard to the principle laid down in the said judgment. But the fact is that the Court has to take note of the factual aspects of the each case. In the case on hand, it is a relationship between the brother and sister and brother had given the consent to transfer the property in favour of his sister. The consent was given long back in the year 1991-1992 itself. Though he had challenged the same in the year 1999 before the Assistant Commissioner filing an appeal, the said appeal also dismissed and the said order also attained its finality. Even the material on record clearly discloses that after the transfer of property in favour of his sister, possession was also delivered and the sister is also in continuous possession of the suit - 11 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 property from the year 1991-1992 and also availed the loan from the concerned banks. The said fact is also not disputed by the appellant herein. When such material available on record, it depends upon the facts and circumstances of each case. Thus, the judgments are applicable considering the facts and circumstances of each case. Apart from that even possession was delivered long back in the year 1991-92 and all the revenue records are standing in the name of the respondent, even not sought for the relief of possession. When the suit is filed for the relief of declaration without seeking the relief of possession, the Apex Court also in the judgment of VASANTHA (DEAD) THR. L.R. vs RAJALAKSHMI @ RAJAM (DEAD) THR. L.R. in CIVIL APPEAL No.3854/2014 held that suit for declaration without seeking the relief of possession is not maintainable and this Court also considering the said judgment dismissed the case of SOMAYYA BELCHADA referred supra on the ground that when the possession is not sought, mere filing of suit for declaration is not enough unless possession is sought. Thus, both the Courts have rightly considered both question of fact and question of law and there is no perversity in the judgments of both the Courts. When such being the case, - 12 - HC-KAR NC: 2025:KHC:52705 RSA No. 781 of 2025 I do not find any ground to admit the appeal and to frame substantial question of law invoking Section 100 of CPC. 11. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE SN