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2017 DIGILAW 132 (KAR)

DAS MANIK v. LAXMAN RAO

2017-01-20

A.S.BOPANNA

body2017
JUDGMENT : A.S. BOPANNA, J. 1. The appellant is the plaintiff in O.S.No.84/1990. The suit in question was filed for declaration of ownership, possession and consequential relief of permanent injunction. The trial Court by its judgment dated 22.01.1997 had decreed the suit. The first defendant claiming to be aggrieved by the same filed an appeal in R.A.No. 165/2002. The Lower Appellate Court by its judgment dated 26.05.2005 has allowed the appeal, set aside the judgment of the trial Court and dismissed the suit. The plaintiff therefore claiming to be aggrieved by the same, is before this Court in this second appeal under Section 100 of the Civil Procedure Code. 2. This Court, while admitting the appeal on 18.02.2008 has framed the following substantial question of law for consideration: "Whether the Lower Appellate Court was right in denying the plaintiffs right to the suit schedule property on the ground that the property belongs to Smt. Bhimbai Joshi and not to plaintiffs father Kishan Rao, ignoring that Bhimbai Joshi is none other than the maternal grand-mother?" 3. For the purpose of convenience and clarity, the parties would be referred to in the same rank as assigned to them before the trial Court. 4. The case in brief is that the plaintiff contends that the plaintiff and defendants 2 to 4 are brothers being the sons of Hanumantha Rao Kulkarni. The plaintiff claims right in respect of the property bearing Sy.No. 117/2 measuring 5 acres 10 guntas and the land bearing Sy.No.29 measuring 4 acres 14 guntas situate at Ainoli village, Chincholi taluk, Gulbarga District. The case of the plaintiff is that the property which stood in the name of his father Hanumantha Rao has been transferred to the name of the plaintiff. In that regard, the plaintiff claiming right in respect of the property and contending that the first defendant who has no manner of right in respect of the property is seeking to deny the right and title of the plaintiff, has filed the suit seeking declaration in that regard and consequential reliefs of possession and injunction have also been sought. 5. Defendant No. 1 on appearing in the suit has filed a written statement disputing the claim as put forth by the plaintiff. 5. Defendant No. 1 on appearing in the suit has filed a written statement disputing the claim as put forth by the plaintiff. The defendant contends that he is in possession and cultivation of the lands in question and in that regard it is contended by the first defendant that the property originally was that of Kishan Rao and the plaintiff who was cultivating the lands was entitled to the occupancy of the same and in that regard had filed Form No. 1 and prior to which the father of the defendant No. 1 had also filed the Form No. 1. In that regard the defendant No. 1 had sought, for dismissal of the suit. 6. The trial Court on taking into consideration the rival contentions has framed as many as 9 issues for its consideration and thereafter 4 additional issues were also framed. The plaintiff examined himself as PW-1 and two witnesses were examined as PW-2 and PW-3. The documents at Exs.P1 to P18 were relied upon. The defendant No. 1 examined himself as DW-1 and examined two witnesses as DW-2 and DW-3. The documents at Exs.D1 to D40 were relied upon. Insofar as the consideration as made by the trial Court, the same being in favour of the plaintiff the conclusion by the trial Court was that the plaintiff was the owner of the property as claimed by him and therefore the relief had been granted. The Lower Appellate Court while reversing the judgment of the trial Court has arrived at the conclusion that the defendant No. 1 had been in possession of the property and the claim as put forth by the plaintiff based on the revenue documents had not been accepted. 7. In the light of the divergent findings rendered by the Courts below, keeping in view the substantial question of law framed by this Court, what is required for consideration is even though both the plaintiff as well as the first defendant were tracing the ownership of the property to one Bhimbai Joshi and in that light they were claiming right in respect of the same, the plaintiff having approached the trial Court was required to establish the flow of title and to claim ownership right in that regard. It is no doubt true that from the documents that had been relied on by the plaintiff the revenue records would indicate the name of the plaintiff and that of Hanumantha Rao the father of the plaintiff. When a right to seek declaration was being put forth by the plaintiff and in that light when there is sufficient material on record to indicate that the property originally belonged to Bhimbai Joshi, the relationship of the plaintiff to Bhimbai Joshi and in that regard the title having flown was required to be established in answer to the substantial question of law that is raised herein. 8. In that regard, the very averments as made in the plaint does not disclose the relationship between the plaintiff and Bhimbai Joshi so as to claim that the property had thus come to Hanumanth Rao. If the said Bhimbai Joshi was the maternal grand mother of the plaintiff and in that light if the father Hanumanth Rao had succeeded to the said property, pursuant to which the revenue entries were made in the name of Hanumanth Rao, these aspects were to be established before the trial Court to claim ownership over the property. As noticed there is neither pleading to that effect nor has the document been relied upon to indicate that in such manner the plaintiff had succeeded to the property. Though in the revenue records as relied on at Exs.P1 to P8 it is seen that the name of the father of the plaintiff was indicated, the document at Exs.P10 as also the document produced by the defendant would refer to the claim as that was being put forth by the defendant in respect of the property. 9. It is no doubt true that as pointed out by the learned counsel for the appellant the Land Tribunal had not considered the Form No. 1 which had been filed by the defendant No. 1. Even if in the said proceedings such consideration was not made and at the first instance the name of Hanumantha Rao was shown as the owner, when the plaintiff has failed to establish the manner in which the name of the father Hanumantha Rao was brought into revenue records so as to claim right in respect of the property, the weakness of the case of the defendant cannot enure to the benefit of the plaintiff. 10. 10. Therefore, if these aspects of the matter are kept in view, in response to the substantial question of law raised there is no material available on record to indicate that Bhimbai Joshi, the original owner of the property is the maternal grand mother of the plaintiff and in that light the title to the property had flown to Hanumantha Rao and thereafter to the plaintiff, if that be the position the substantial question of law raised herein is to be answered against the appellant-plaintiff. 11. In that view, the instant appeal would fail and the same is accordingly disposed of. No costs.