1. The captioned second appeal is filed by the plaintiff feeling aggrieved by the divergent findings wherein the appellate Court has allowed the appeal filed by the defendants and has consequently dismissed the suit filed by the plaintiff.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The subject matter of the suit is the agricultural land bearing Survey No.298/2. The plaintiff is claiming that he is the absolute owner of the agricultural land bearing Survey No.298/2 measuring 12 acres which was allotted to his father's share in the partition pursuant to which plaintiff's father became the owner of the same. The plaintiff has also contended that vendors of defendant No.2 were also allotted 13 acres 7 guntas in Sy.No.298/1.
4. At Para 3 of the plaint, the plaintiff has stated that he has mortgaged a portion of the suit land to clear off the debts. The mortgaged extent is 5 acres 21 guntas. The same was mortgaged to one Hunchappa. The plaintiff has admitted that the mortgagee is in possession of 5 acres 21 guntas. However, the plaintiff claims that remaining portion measuring 6 acres 19 guntas is still retained by the plaintiff and the same is under cultivation of the plaintiff.
5. The grievance of the plaintiff is that defendant No.2, was the owner of the land bearing Survey No.298/1 which was originally measuring 13 acres 7 guntas in collusion with the Patwari of the Gobbur village has got altered the extent of the lands and the entries in the revenue records are altered without following procedure. The plaintiffs grievance is that though the agricultural land bearing Survey No.298/1 measures only 13 acres 7 guntas, the extent is wrongly shown as 19 acres and therefore, the plaintiff contended that the said alteration is without any basis and the same is not binding on the plaintiff. The plaintiff has further alleged that defendant No.2 taking undue advantage of the illegal entries tried to encroach the plaintiff's property. Therefore, the present suit seeking the relief of declaration and consequential relief of injunction.
6. The first defendant on receipt of summons contested the proceedings. The first defendant contended that second defendant-Gundubhat is the owner of Survey No.298/1. In reply to para 5 of the plaint, first defendant contended that there was a revision settlement register in 1967. The first defendant claimed that Survey No.298 of Gobbur –B village was totally measuring 28 acres 7 guntas and in terms of the revision settlement Register Survey No.298/1 was shown to be measuring 19 acres 13 guntas, Survey No.298/2 was shown to be measuring 5 acres 21 guntas and Survey No.298/3 was shown to be measuring 3 acres 13 guntas.
7. Third defendant has contested the proceedings by filing written statement. Apart from denying the entire allegations made in the plaint in regard to the extent of land claimed in the plaint, the third defendant also contended that plaintiff mortgaged the agricultural land bearing Survey No.298/1 measuring 5 acres 21 guntas. The third defendant contended that it was a conditional sale and since plaintiff failed to seek redemption, the mortgagee has sold the said land under registered sale deed dated 5.4.1980 to one Bhimasha Kalburgi.
8. The plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence. The plaintiff to establish his case examined himself as P.W.1 and adduced documentary evidence which are marked as Exs.P1 to 8. The defendants to counter the claim of plaintiff have let in rebuttal evidence by examining D.Ws.1 to 3 and have produced documentary evidence vide Exs.D1 to 11.
9. The trial Court having examined oral and documentary evidence decreed the suit declaring the plaintiff as the absolute owner of the suit land and further granted injunction by holding that plaintiff is in lawful possession of the suit land. While answering Issue No.4 in the negative, the trial Court has recorded a finding that first respondent failed to prove that the entries in the revenue records were made in terms of revision settlement register.
10. Feeling aggrieved by the judgment and decree of the trial Court, the third defendant preferred an appeal before the appellate Court. The appellate Court being the final fact finding authority has reassessed the entire material on record independently. The appellate Court on examination of pleadings however, drew adverse inference against plaintiff. The appellate Court was of the view that the plaintiff has failed to discharge his initial burden. In the opinion of the appellate Court, the plaintiff having claimed that his father was allotted 12 acres in the family partition, no documents are produced. Therefore, the appellate Court was of the view that the plaintiff has failed to substantiate that there was a partition in the family and 12 acres of land was allotted to his father's share. It is in this background, the appellate Court held that the entire burden was on the plaintiff to prove that there was a partition and the same has not been discharged by producing clinching evidence.
11. The appellate Court also found that the theory of partition set up by plaintiff indicating that there was sub-division and the land was divided into two portions was also found to be misconceived and also contrary to the evidence on record which in fact demonstrates that the land bearing Survey No.298/A was divided into three parts. Referring to the very documents relied on by the plaintiff, more particularly Ex.P1, which is the record of rights, for the years 1963-64 to 1967-68, the appellate Court held that measurement of Survey No.298/2 is shown to be 5 acres 21 guntas. At the same time, the appellate Court also found that 12 acres is shown to be pot kharab land which is subsequently rounded off. The appellate Court has further recorded a categorical finding that the survey settlement was introduced in the State of Karnataka and during the course of survey, the authorities found that survey No.298/1 in fact measures 19 acres 13 guntas. Therefore, in view of the report of the survey settlement, the extents pertaining to Survey No.298/1, 298/2 and 298/3 were rightly reflected in the revenue records. Referring to Ex.D4 which was prepared at the time of undertaking the work of survey, the appellate Court found that survey No.298 is divided into three parts. The appellate Court has also taken cognizance of Ex.D2 which is mortgage deed executed by plaintiff in favour of one Bheemsha s/o. Hanumantappa Kalburgi, wherein the extent of Survey No.298/2 is clearly shown as 5 acres 21 guntas.
12. Referring to all these significant details, the appellate Court was of the view that the trial Court has totally misread the entire evidence on record. The burden which initially rested on plaintiff was never discharged. The appellate Court also found that the trial Court erred in casting the burden on defendant to prove the extent of survey No.298/2 which is the subject matter of suit. Therefore, the appellate Court found that the reasons and conclusions recorded by the trial Court being contrary to the evidence on record is not at all sustainable and consequently, the appeal was allowed and the suit came to be dismissed.
Feeling aggrieved by the same, the present second appeal is preferred by the plaintiff.
13. This Court vide order dated 25.3.2009 has admitted the appeal to consider the following substantial question of law:
"Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court"
14. Heard the learned counsel appearing for the plaintiff. There is no representation on behalf of defendants. I have given my anxious consideration to the judgments rendered by both the trial Court and appellate Court.
15. The plaintiff has approached the Court by claiming title over the suit land measuring 12 acres. The first and primary defect in the plaint is that the plaintiff could not have sought the relief of declaration to an extent of 12 acres. Even if plaintiff's version is accepted, in view of the admitted fact that 5 acres 21 guntas was morgaged by plaintiff, the plaintiff could not have sought the relief of declaration to an extent of 12 acres. Though at para 3, the plaintiff has admitted the fact that there was compelling reasons for him to mortgage 5 acres 21 guntas, but still the relief of declaration is sought including the mortgaged portion. Therefore, the relief of declaration sought by the plaintiff in view of the admitted facts at para 3 of the plaint would disentitle the plaintiff from seeking the relief of declaration of title.
16. Now the entire foundation and the basis to claim title to an extent of 12 acres is based on family partition. The plaintiff at Para(3) has contended that there was a family partition and his father was allotted 12 acres. To substantiate the same, there is absolutely no material on record. The plaintiff has placed heavy reliance on Ex.P5 which is the khasara pahani which is the revenue record maintained by the erstwhile Nizam. This khasara pahani vide Ex.P5 is of the year 1954. Coupled with this the plaintiff has also placed reliance on Ex.P8 which is the akarband register. Except these two documents, the plaintiff has not produced any documents to demonstrate as to how his father acquired title to an extent of 12 acres. The revenue records which are prepared by the revenue department post revision settlement register would prevail over these documents i.e. Ex.P5 and P8. Ex.D4 is the survey sketch prepared by the competent authority by carrying out survey work. Based on the survey sketch, there is a fresh settlement extract prepared by the revenue authorities vide Ex.D5. Based on the revision settlement register as well as survey sketch prepared at the time of survey, the extents are clearly given effect to in the revenue records. The said revenue records are mutated way back in 1963-64. Neither plaintiff's father nor plaintiff have questioned the survey sketch nor have questioned the entries maintained in the revision settlement vide Ex.D5 nor an appeal is preferred under the provisions of Section 136(2) questioning the entries reflected way back in 1963-64.
17. The trial Court by placing reliance on Exs.P5 and P8 has wrongly cast burden on the defendant while deciding the controversy in regard to the extent of Survey No.298/2. While dealing with Issue Nos.4, 5 and additional Issue Nos.1 to 3, the trial Court has wrongly placed burden on the defendants to prove the extent of Survey No.298/2. It is more than a trite that a party who approaches the Court seeking relief of declaration of title, the entire burden would be on the plaintiff to establish his case. Therefore, the entire approach of the trial Court is found to be defective. The trial Court also erred in misreading the entire evidence on record. The trial Court has not properly appreciated the evidence let in by both the parties. In fact, the clinching rebuttal evidence would virtually displace the plaintiff's case and would prevail over the evidence let in by the plaintiff. These significant details are dealt by the appellate Court while re-appreciating the entire evidence on record. If the extents reflected in the revenue entries are based on revision settlement, the plaintiff, in the absence of documentary evidence indicating that his father was allotted 12 acres in the family partition, the relief of declaration cannot be granted. Therefore, the trial Court erred in granting the relief of declaration to an extent of 12 acres when plaintiff has already mortgaged 5 acres 12 guntas. There is rebuttal evidence let in by the contesting defendants indicating that the mortgagee has dealt with the property and has in turn sold it.
18. The appellate Court on re-appreciation of the entire evidence on record independently has rightly proceeded to dismiss the suit. In absence of title documents and the clinching evidence indicating that plaintiff's father was allotted 12 acres, the appellate Court was justified in declining to grant the relief of declaration of title. The judgment and decree rendered by the appellate Court is in accordance with law. Therefore, the substantial question of law is accordingly answered in the affirmative.
19. Accordingly, the second appeal is dismissed.
20. In view of dismissal of the second appeal, all pending I.As., if any, stand disposed of.
