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Friday, October 2, 2015

NO NOTICE IS NECESSARY= as a municipal council is not a public officer, and no notice is necessary when a suit is filed against a municipality. Thus, the question of sufficiency of notice under Section 80 of the CPC does not arise at all. Further, the issuance of notice under Section 284(1) of the Karnataka Municipalities Act, 1964 also does not arise for the reason that the dispute between the parties in the suit in O.S. No. 39 of 1993 does not attract the above provision of the Act and therefore, we need not advert to and answer the above contention.ONCE THE PLAINTIFF PROVED HIS TITLE , BURDEN SHIFTS ON DEFENDANT TO PROVE HIS CASE = In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title.”=The deceased respondent no. 1 also stated in his evidence that he had alienated a further 3 acres 03 guntas in favour of Chaturbhuj Heda. Thus, out of his entire ancestral property, only an area of 5 acres and 22 guntas remained in his ownership. He produced before the learned Civil Judge the khasra patrak for the village for the year 1954-55 as Exh. P9. On the basis of the same, the learned judge rightly came to the conclusion on facts and evidence on record and held that the land in Sy. Nos. 249 and 250 was the ancestral property of the deceased respondent no.1. He further produced before the court the extract of the revision survey register as “Exh. P24” and a copy of the village map as “Exh. P28”. From a perusal of these two documents, the learned Civil Judge came to the correct conclusion that it was proved that the old Sy. Nos. 249 and 250 had become Sy. Nos. 179 to 184. The learned judge also took into consideration the documents marked as “Exh. P37” which was the plaint in the suit O.S. No. 130 of 1980 filed by Chaturbhuj Heda to get the records of revenue rectified. Sri Chaturbhuj had admitted in the plaint in that suit that there was an interchange in the Sy. Nos. 182 and 184 and that he was wrongly shown as the owner of the land in Sy. No. 184, when infact he was the owner of the land in Sy. No.182. Thus, the deceased respondent no.1 has established his title to the suit property. The learned Civil Judge further observed that the appellant Municipality has not produced any document to prove their title to the suit property. Even if it was their case that the suit property was also acquired by the state government, it should have produced the acquisition notifications under Sections 4 and 6 of the Land Acquisition Act of 1894 and award passed under Section 11 of the Act. The learned Civil Judge further held that since the appellant Municipality had denied the title to the deceased respondent no.1 and his ancestors over the suit property, there is no question of them having acquired adverse title over the same. Since the appellant Municipality had no title over the suit property, it did not have any right to confer better title upon the suit schedule property upon the other defendants in the suit in O.S. No. 39 of 1993. We find no merit in the claim of the appellant Municipality, as the reversal of the findings of fact on the relevant points answered by the High Court in exercise of its jurisdiction by recording valid and cogent reasons on the substantial questions are perfectly correct and there is no miscarriage of justice in the interference by the High Court in the judgment and order passed by it in the second appeals. Answer to Point No.3 In view of the reasons mentioned supra, we are of the view that no error has been committed by the High Court in setting aside the erroneous findings of the first appellate court in its judgment and order passed in the Regular Appeals and restoring the judgment and order passed by the learned Civil Judge in O.S. No. 39 of 1993. We accordingly dismiss the Civil Appeals.

                                                                  REPORTABLE

    IN THE SUPREME COURT OF INDIA                         CIVIL APPELLATE
                                JURISDICTION
           CIVIL APPEAL NOS. 8044-8048 OF 2015
                (Arising Out of SLP (C) Nos.21561-21565 of 2005)


THE CITY MUNICIPAL COUNCIL BHALKI,
BY ITS CHIEF OFFICER                 …………APPELLANT
                                     Vs.
GURAPPA (D) BY LRs & ANR.          …………RESPONDENTS

                                 J U D G M E N T


V. GOPALA GOWDA, J.



  Leave granted in the Special Leave Petitions.



The present appeals arise out of the  common  impugned  judgment  and  order
dated 15.07.2005 passed by the High  Court  of  Karnataka  at  Bangalore  in
Regular Second Appeal Nos. 1053, 1054, 1055, 1056 and 1057 of 2001,  whereby
the High Court set aside the judgment and order dated 22.09.2001  passed  by
the Additional District and Sessions Judge, Bidar in RA Nos. 9,  10,11,12  &
13 of 1997.



The facts which are required  to  appreciate  the  rival  legal  contentions
urged on behalf of the parties are stated in brief hereunder:



  The plaintiff-deceased respondent  no.1  herein  (since  died  during  the
pendency of these appeals, is being represented by his LRs  i.e.  respondent
Nos. 1a to 1g)  had filed a suit O.S. No. 255 of 1984 before the  Additional
Civil Judge (Sr. Divn.), Bidar against the Deputy  Commissioner,  Bidar  for
declaration that he is the owner of the land bearing Sy. No.  183  measuring
1 acre 13 guntas and Sy. No. 184  measuring  4  acres  9  guntas  which  are
arising out of the old Sy. Nos. 249 and 250 situate at  Balki  and  as  such
sought for a declaration that they are the owners of the said  property  and
the assignments of property, if any, created  by  the  defendants-appellants
as ineffective. The deceased respondent no.1 also sought for  correction  to
correct the revenue records in respect of the suit land. The  learned  Civil
Judge dismissed the said suit on  the  ground  that  the  plaintiff-deceased
respondent no.1:

“has filed the present suit against the Deputy Commissioner  and  the  Chief
Officer on some misconception of the fact. If wants to  obtain  a  effective
decree, he has to implead various persons who are in  actual  possession  of
various portion of  the  suit  land  and  seek  the  effective  relief  like
declaration of possession etc as  the  plaintiff  has  miserably  failed  to
prove his possession over the suit property……”

The land in old Sy. Nos. 249 and 250 of Kasba Balki previously  belonged  to
the ancestors of respondent  no.1  herein,  Gurappa  (since  deceased).  The
total extent of this land was 41 acres 18 guntas. Out of the above land,  20
acres 29 guntas was owned by the first cousin brother  of  Gurappa,  and  he
was the owner of the remaining 20 acres and 29 guntas.  Parts of it came  to
be acquired by the state government.  Ultimately,  the  deceased  respondent
no.1 retained ownership over 5 acres and  22  guntas  of  land.  During  the
revision of survey and resettlement of the lands in the  village,  the  land
in the said Sy. Nos. 249 and 250 was divided into six new Sy.  Nos.  179  to
184. It is the case of the legal heirs of the deceased respondent no.1  that
some discrepancies had crept in while preparing the new revenue records  and
that due to the wrong entries, the names of  the  owners  and  their  actual
possession did not tally with the survey numbers. The suit land measuring  4
acres and 9 guntas which belonged to the deceased respondent no.1 was  shown
in the name of one Chaturbhuj Heda and allotted Sy.  No.184.  Another  land,
which actually belonged to Chaturbhuj Heda was allotted Sy. No. 182  and  it
was shown in the name of the deceased respondent no.1. Chaturbhuj  Heda  got
his land  surveyed  and  the  Assistant  Director  of  Land  Records  (ADLR)
directed him to get his name entered in  the  RTC  of  Sy.  No.  182,  which
actually belonged to him. The revenue records of the suit schedule  property
of the deceased respondent no.1, however, remained uncorrected.
The deceased respondent No.1 thereafter filed Suit No.  39  of  1993  before
the Civil Judge, Sr. Div. at Basavakalyan,  herein  after  called  as  Civil
Judge, impleading several defendants, and prayed for grant of the decree  of
declaration of the title of the respondents to the suit  land,  recovery  of
possession of  the  suit  land  and  perpetual  injunction  restraining  the
defendants therein from constructing shops over the suit land.  The  learned
Civil Judge after examining the evidence  on  record  decreed  the  suit  in
favour of the deceased respondent no.1, and declared him  as  the  owner  of
the suit property. On the issue of the ownership of the suit  property,  the
learned Civil Judge held as under:

“PW1 has marked Ex P9 to show that Sy.No  249  and  250  are  his  ancestral
properties. Ex. P9 is Khasra Patrak. It is for the  year  1954-1955.  It  is
maintained as per  the  Hyderabad  Land  Revenue  Act  1917.  This  Act  was
repealed on 01.04.1964  and  Karnataka  Land  Revenue  Act  1954  came  into
effect. In view of Section 133 KLR Act, there is presumptive value  for  the
entries of the RoRs of  the  land………Ex.  P9  unequivocally  shows  that  the
plaintiff and Ghallappa were joint owners and joint possessors of  land  Sy.
Nos. 249 and 250 of Kasba Balki.”





   Further, the learned Civil Judge also  recorded  a  finding  of  fact  on
appreciation of evidence on record, that the old Sy. Nos. 249 and  250  were
divided into six new Sy. Nos. (179 to 184) during  the  revision  of  survey
and resettlement of land.

     The  learned  Civil  Judge  further  directed  the  defendant  nos.2-22
therein to put the deceased  respondent  no.1  in  possession  of  the  suit
property. On the issue of the wrong area being mentioned by  the  plaintiff-
deceased respondent no.1 in the earlier suit, the learned Civil  Judge  held
as under:
“Upon perusal of all the records and upon hearing argument what  appears  to
us is that 1) in his previous suit the plaintiff showed the  area  of  Sy.No
184 as 6 acres 35 guntas in his present suit he showed the area of  Sy.  No.
184 as 4 acres 09 guntas such error was due to the mistakes of  the  revenue
department. Inspite of notice under Ex. P30 D-1 kept mum.  Such  conduct  of
D1 was against the purpose of Section 80 CPC. The purpose of such notice  is
to give an opportunity to the government, reconsider the legal  position  to
make amends or to settle the claim without litigation. It was  his  duty  to
take steps for corrections of the entries of revenue records. He did not  do
so. Thereby the plaintiff was led to file the suit mentioning the  incorrect
area. It appears the plaintiff did what he could.  If  one  carefully  reads
Ex. P30 he will understand the pain, helpless and awkward  position  of  the
plaintiff. If D1 remained lethargic, if D1 did not do his  duty  inspite  of
notice, if the plaintiff filed a suit with incorrect available materials  of
revenue records, it appears, it would be unjust to  penalize  the  plaintiff
for such an error on his part. The plaintiff could not  have  undertaken  by
himself the detailed survey of the concerned  land.  The  plaintiff  himself
could have done any of this to set right  the  revenue  records.  Therefore,
one has to believe the plaint allegations, noted supra.”

The plea of the suit being barred by res judicata was  also  raised  in  the
suit proceedings by the defendants therein. The learned Civil Judge came  to
the conclusion on proper appreciation of facts and evidence on  record  that
the “lis” involved in the previous suit between the parties was not  finally
heard and decided, and was only ‘closed’ for non availability  of  necessary
and sufficient records and held as under:
“Therefore I am inclined to hold that the  properties  and  reliefs  in  the
suit are different also that the matter in this suit has not been heard  and
finally decided in all its perspectives in the previous suit (i.e O.S.  255/
84 C.J Bidar).”

Aggrieved, of the judgment and decree passed in the O.S. No. 39 of 1993  the
appellants herein filed Regular Appeal Nos. 9 of 1997, 10  of  1997,  11  of
1997, 12 of 1997 and 13 of 1997 before the Additional District and  Sessions
Judge at Bidar urging various grounds. The learned Additional  District  and
Sessions Judge by his judgment and order dated  22.09.2001,  set  aside  the
judgment and order of the Civil Judge, Bidar. Firstly, it was held that  the
suit filed by the deceased respondent no.1 herein was not  maintainable,  as
the same had been filed without issuing  notice  to  the  appellants  herein
under Section 80 of Code of Civil  Procedure  (hereinafter  referred  to  as
“CPC”) and Section 284(1) of  the  Karnataka  Municipalities  Act.   It  was
further held that the suit is also not maintainable as it is barred  by  res
judicata. The learned Additional District and Sessions judge  held  that  in
the instant case, the  earlier  suit  in  O.S.  No.  255  of  1984  was  not
dismissed on technical grounds, but  on  merits  after  framing  issues  and
taking into consideration the evidence of  both  the  parties.  The  learned
judge also came to the conclusion that the deceased respondent  no.1  herein
had not succeeded in proving his title to the suit land.



The deceased respondent no.1  then  preferred  Regular  Second  Appeal  Nos.
1053, 1054, 1055, 1056 and 1057 of 2001 before the High Court  of  Karnataka
by framing certain substantial questions of law. The  learned  single  judge
of the High Court set  aside  the  judgment  and  order  of  the  Additional
District and Sessions Judge in the first appeals dated  22.09.2001  referred
to supra. On the issue of dismissal of suit for want of notice, the  learned
single judge held that the dismissal of the suit on  the  technical  grounds
was bad in law. The learned single judge also restored the finding  of  fact
recorded by the learned Civil  Judge  in  O.S.  No.  39  of  1993  that  the
deceased respondent no.1 herein had  succeeded  in  proving  his  title  and
ownership over the suit property. Further, on the issue of res judicata,  it
was observed that to take the plea of res judicata, one of  the  ingredients
is that the litigating parties must be the same and that the subject  matter
of the suit also must be identical. The earlier suit was  dismissed  not  on
merits but for want of clarity and for want of necessary parties. Thus,  all
the substantial questions of law framed  were  answered  in  favour  of  the
deceased respondent no.1 herein. Aggrieved, the appellant  Municipality  has
filed these present appeals before us questioning  the  correctness  of  the
judgment of the learned single judge of the Karnataka High Court by  raising
various questions of law and urging grounds in support of the same.



We have heard the learned counsel appearing on behalf of both  the  parties.
On the basis of the factual evidence on record produced before  us  and  the
circumstances of the  case  and  also  in  the  light  of  the  rival  legal
contentions urged by the learned senior counsel for  both  the  parties,  we
have broadly framed the following points which  require  our  attention  and
consideration-



Whether the suit in O.S. No. 39 of 1993 filed before the Civil Judge,  Bidar
was barred by res judicata?



Whether the deceased respondent no.1 has  succeeded  in  proving  his  title
over the ownership of the suit property?



What order?


Answer to Point No.1
The deceased respondent no.1 had filed a suit  in  O.S.  No.  255  of  1984,
which was dismissed. Thereafter, he filed a suit in  O.S.  No.  39  of  1993
before the Civil Judge, Bidar, after  impleading  certain  other  defendants
therein and changing the description of the suit property.



Mr. Basava Prabhu S. Patil, learned senior counsel appearing  on  behalf  of
the appellant Municipality contends that  the earlier suit in O.S.  No.  255
of 1984 having been filed by the deceased respondent no.1 against  the  same
defendants;  in  respect  of  the  same  subject  matter,  with   the   same
allegations and having been decided by a court  of  competent  jurisdiction,
on merits after due consideration of  the  extensive  evidence  led  by  the
parties, attracts the bar of res judicata and the subsequent  suit  in  O.S.
No. 39 of 1993 was not maintainable. It is further contended that  the  suit
in O.S. No. 255 of 1984 was not dismissed  on  technical  grounds,  but  the
Trial Court gave a well reasoned order, passed after considering the  matter
on merits. The learned senior counsel contended that  the  Trial  Court  had
recorded a finding of fact that the land claimed by the deceased  respondent
no.1 was not created out of the land in Sy. Nos. 249 and  250.  The  learned
senior counsel further contends that the impleadment of respondent nos.3  to
22 herein in the subsequent suit O.S. No. 39  of  1993  was  not  enough  to
overcome the bar of res judicata, as they all  claimed  title  to  the  suit
land through the appellant Municipality. The learned senior counsel  further
contends that the Trial Court had not granted the liberty  to  the  deceased
respondent no.1 to file a fresh suit, and that since  the  matter  had  been
decided on merits, the subsequent suit brought on the same grounds  was  not
maintainable in law.



The learned senior counsel further contends  that  the  deceased  respondent
no.1 was barred from seeking relief  in  respect  of  Sy.  No.  183  in  the
subsequent suit in O.S. No. 39 of 1993 as it was hit by the bar of Order  II
Rule 2 of the CPC.



Mr. Shekhar Naphade, learned counsel appearing on  behalf  of  some  of  the
legal heirs of the deceased respondent no.1, on  the  other  hand  contended
that the bar of res judicata does not operate  on  the  subsequent  suit  in
O.S. No. 39 of 1993 by virtue of the judgment  and  order  dated  09.01.1986
passed in O.S. No. 255 of 1984 as the earlier suit  had  been  dismissed  on
the ground of non-joinder of necessary parties, and  the  said  order  could
not be said to operate as res judicata. He further contended that  the  suit
property and even the  parties  involved  in  the  two  original  suits  are
different. The learned senior  counsel  further  contended  that  the  Trial
Court in the order passed in O.S. No. 255 of 1984 has given liberty  to  the
deceased respondent no.1 to file a fresh suit, as  the  suit  was  dismissed
only on the ground that no effective relief  can  be  granted.  The  learned
counsel further contended that the bar of Order II Rule 2 of the CPC  cannot
operate against the heirs of the deceased respondent  no.1,  as  they  could
not identify the property due to the mismanaged revenue records,  and  thus,
they should not be made to suffer for the same. Mr. K Nagmohan Das,  learned
senior counsel appearing on behalf of some of the other legal heirs  of  the
deceased respondent no.1 argued that  the  bar  of  res  judicata  does  not
operate on the suit in O.S. No. 39 of 1993, as the earlier  suit  cannot  be
said to have been dismissed on merits. The learned senior  counsel  contends
that for the bar of res judicata to operate, there must have  been  a  final
adjudication on substantial issues between the  same  parties  on  the  same
subject matter, which was not done in the instant case.



We agree with  the  contentions  advanced  by  the  learned  senior  counsel
appearing on behalf of the legal heirs of the deceased respondent no.1.

 The principle of res judicata has been codified under Section 11 of CPC  in
the following terms:
“11. Res judicata— No Court shall try any suit or issue in which the  matter
directly and substantially in issue has been directly and  substantially  in
issue in a former suit between the same parties, or  between  parties  under
whom they or any of them claim, litigating under the same title, in a  Court
competent to try such subsequent suit or the suit in which  such  issue  has
been subsequently raised, and has been heard and  finally  decided  by  such
Court.”


The principle of res judicata is a need of any judicial system, that is,  to
give finality to the judicial decisions of the disputes between parties.  It
also aims to prevent multiplicity of proceedings between  the  same  parties
of the same subject matter of the lis.  An  issue  which  was  directly  and
substantially involved in a former suit between the same  parties,  and  has
been decided and has attained finality  cannot  be  re-agitated  before  the
courts again by instituting suit or proceeding by the same  parties  on  the
same subject matter of earlier lis. This court in  a  catena  of  cases  has
laid down the law relating  to  the  essential  elements  that  need  to  be
satisfied before a plea of res judicata can be raised by  a  party.  In  the
case of Sheodan Singh v. Daryao Kunwar[1] it was held as under:
“A plain reading of s. 11 shows that to constitute a  matter  res  judicata,
the following  conditions  must  be  satisfied,  namely  -  (i)  The  matter
directly and substantially in issue in the subsequent suit or issue must  be
the same matter which was directly and substantially in issue in the  former
suit; (ii) The former suit must have been a suit between  the  same  parties
or between parties under whom they or any of them claim; (iii)  The  parties
must have litigated under the same title in the former suit; (iv) The  court
which decided the  former  suit  must  be  a  court  competent  to  try  the
subsequent suit or the suit in which such issue is subsequently raised;  and
(v) The matter directly and substantially in issue in  the  subsequent  suit
must have been heard and finally decided by the Court in the first suit.”

The above legal principles laid down by this Court have been  reiterated  in
the case of Syed Mohd. Salie Labbai  &  Ors.  v.  Mohd.Hanifa  &  Ors[2]  as
under:

“…….it may be necessary to mention that before a plea of  res  judicata  can
be given effect, the following conditions must be proved-


(1) that the litigating parties must be the same;


(2) that the subject-matter of the suit also must be identical;


(3) that the matter must be finally decided between the parties; and

(4) that the suit must be decided by a court of competent jurisdiction.”


Thus, for the bar of res judicata to  operate  in  the  subsequent  original
suit proceedings, the litigating parties must be the same, and  the  subject
matter of the suit must also be identical. Further, it has  also  been  held
by this court in the case of Ram Gobinda v. Bhakta Bala[3] that for the  bar
of res judicata to operate in the subsequent original suit proceedings,  the
decision in the former suit must have been decided on  merits  on  the  same
substantial questions both on facts and in  law  that  would  arise  in  the
subsequent original suit.

         In the instant case, no doubt the Trial Court in the suit  in  O.S.
No. 255 of 1984 filed by the deceased respondent no.1 framed certain  issues
and even examined the documents produced by  the  parties.  The  fact  which
cannot be lost sight of is that ultimately the learned trial judge  came  to
the following conclusion:
“For all the reasons mentioned above, I come  to  the  conclusion  that  the
plaintiff has failed the present suit against the  Deputy  Commissioner  and
the chief officer on some mis-conception of fact. If he wants to  obtain  an
effective decree, he has to  implead  various  persons  who  are  in  actual
possession of various portions of the  suit  land  and  seek  the  effective
relief like declaration and possession etc as the  plaintiff  has  miserably
failed to prove his possession over the suit property……”

The prayer in suit in O.S. No. 255 of 1984 was for:
“declaration of title holding that the illegal and  unauthorized  assignment
if any created by defendant no.2 shall stand void ab  initio  and  issue  of
perpetual injunction in respect of land Sy.No. 184  measuring  06  acres  35
guntas, situated at Balki……”

Whereas, the prayer in the suit of O.S. No. 39 of  1993  instituted  by  the
deceased respondent no.1 reads as under:
“1) Declaration of plaintiff’s title to the suit land
2) Recovery of possession of the suit land
3) Perpetual injunction, restraining D3 to D22 from constructing shops  over
the suit land.
4) Correction of R.O.Rs”

Thus, it can be seen that neither the parties, nor the  subject  matter  was
the same in the earlier suit O.S. No. 255 of 1984 and O.S. No. 39  of  1993.
It also becomes crystal clear that the deceased respondent no.1  herein  has
availed the indirect liberty granted by the Additional Civil Judge  in  O.S.
No. 255 of 1984 that
“if he wants to obtain an  effective  decree,  he  has  to  implead  various
persons who are in actual possession of various portions of  the  suit  land
and seek the effective relief like declaration of possession etc”

Since neither the reliefs claimed in the two suits were identical,  nor  the
parties are the same and nor could the decision in the first  suit  said  to
have  been  on  merits,  it  cannot  be  held  in  the  singular  facts  and
circumstances that the suit in O.S.  No.  39  of  1993  was  barred  by  res
judicata as contended by the learned senior counsel  Mr.  Basava  Prabhu  S.
Patil.



At this stage, we also direct our attention to the contention raised by  Mr.
Basava Prabhu S. Patil, learned senior counsel appearing on  behalf  of  the
appellant Municipality that the  suit  in  O.S.  No.  39  of  1993  was  not
maintainable, as the notice was issued under Section 80 of CPC in suit  O.S.
No. 255 of  1984  could  not  be  said  to  be  sufficient  notice  for  the
institution of the suit in O.S. No. 39 of 1993. We  cannot  agree  with  the
said contention. The High Court  of  Karnataka  in  the  Second  Appeal  had
dismissed the contention on the ground that the notice issued  in  the  suit
O.S. 255 of 1984 can be said to  be  constructive  notice.  The  High  Court
considered that the object of the Section is  the  advance  of  justice  and
securing of public good.

         In our opinion, this issue does not arise at all,  as  a  municipal
council is not a public officer, and no notice is necessary when a  suit  is
filed against a municipality. Thus, the question of  sufficiency  of  notice
under Section 80 of the CPC does not arise at all. Further, the issuance  of
notice under Section 284(1) of the Karnataka Municipalities Act,  1964  also
does not arise for the reason that the dispute between the  parties  in  the
suit in O.S. No. 39 of 1993 does not attract the above provision of the  Act
and therefore, we need not advert to and answer the above contention.
Answer to Point no.2



Mr. Basava Prabhu S. Patil, the learned senior counsel appearing  on  behalf
of the appellant Municipality contends that the onus  of  proving  title  to
the suit property heavily rests on deceased respondent no.1,  and  that  the
mere failure on part on the appellant Municipality to  establish  its  title
to the suit schedule property does not entitle the deceased respondent  no.1
to obtain a decree of declaration, possession and consequential  reliefs  as
sought for in respect of the suit schedule property  in  the  original  suit
proceedings.

        The learned senior counsel further contends that  the  variation  in
the extent of land claimed by the  deceased  respondent  no.1  at  different
stages, that is, 6 acres and 35 guntas in the suit O.S. No. 255 of 1984  and
5 acres and 21 guntas in the suit  in  O.S.  No.  39  of  1993  without  any
explanation offered by the  deceased  respondent  no.1  for  such  variation
itself if indicative of the falsity of  the  claim  of  deceased  respondent
no.1. The learned senior counsel has further contended that the  entries  in
the revenue records in respect of the suit schedule property  stand  in  the
name of one Ghallappa and Chaturbhuj Heda and thus no presumption  from  the
RTC records as to the ownership of suit  property  the  deceased  respondent
no.1 or his legal heirs can be raised by them. The  learned  senior  counsel
contends that the learned Civil Judge and the High Court of  Karnataka  have
erred in coming to the conclusion that the  deceased  respondent  no.1,  has
succeeded in establishing his title over the suit property.
On the other hand, Mr. Shekhar Naphade, the  learned  counsel  appearing  on
behalf of some of the legal heirs of the respondent no.1 contends that  they
have succeeded in establishing  their  title  of  ownership  over  the  suit
property. He has further contended that the variations in the extent of  the
land have only crept in due to the mistake of  the  appellant  Municipality.
The onus was on the Municipality to maintain the  record  properly  and  the
same has not been done in the instant  case.  The  same  cannot  be  made  a
ground to disentitle the deceased respondent no.1, especially  in  light  of
the fact that the Civil Judge in O.S. No. 39 of  1993,  on  appreciation  of
evidence  on  record  recorded  the  finding  of  fact  that  the   deceased
respondent no.1 was the owner of the land bearing  Sy.  Nos.  249  and  250,
which has been proved by way of the khasra pahni patrak,  produced  as  Exh.
P9 before  it.  The  learned  Civil  Judge  further  examined  the  document
produced as “Exh. P28”, the map of land bearing  Sy.  Nos.  179  to  184  of
Balki village, and “Exh. P33”, copy of land revenue receipts in the name  of
the deceased respondent no.1 to show that the land revenue tax  is  paid  by
him in respect of land bearing Sy. Nos. 179, 182, 183  for  the  year  1983-
1984.



We are unable to agree with the  contentions  advanced  by  the  Mr.  Basava
Prabhu S. Patil learned senior counsel appearing on behalf of the  appellant
Municipality. The learned Civil Judge, Bidar decreed the suit  in  O.S.  No.
39 of 1993 in favour of the legal heirs of  the  deceased  respondent  no.1,
which judgment and order was restored by the Karnataka  High  Court  in  the
second appeal, after it was set aside  judgment  and  order  passed  in  the
first appeals. The learned senior counsel on behalf  of  the  Appellant  has
not brought to our attention, any evidence, which can lead  us  to  come  to
the conclusion that the learned Civil Judge, Bidar and the learned judge  of
the High Court of Karnataka have erred in decreeing the suit  in  favour  of
the deceased respondent no.1.



It is a settled position of law that in a suit for declaration of title  and
possession, the onus is upon the plaintiff to prove his title. Further,  not
only is the onus on the plaintiff, he must prove  his  title  independently,
and a decree in his favour cannot be awarded for the only  reason  that  the
defendant has not been able to prove his title, as held  by  this  Court  in
the case of Brahma Nand Puri v. Neki Puri[4] as under:

“………the plaintiff's suit being one for ejectment he has to succeed  or  fail
on the file that he establishes and if he cannot succeed on the strength  of
his  title  his  suit  must  fail  notwithstanding  that  the  defendant  in
possession has no title to the property………”



The same view has been reiterated by this Court in the more recent  case  of
R.V.E Venkatachala Gounder  v.  Arulmigu  Viswesaraswami  &  V.P.  Temple  &
Anr.[5] as under:

“In a suit for  recovery  of  possession  based  on  title  it  is  for  the
plaintiff to prove his title and satisfy the  Court  that  he,  in  law,  is
entitled to dispossess the defendant  from  his  possession  over  the  suit
property and for  the  possession  to  be  restored  with  him.  …………In  our
opinion, in a suit for possession based on  title  once  the  plaintiff  has
been able to create a high degree of probability so as to shift the onus  on
the defendant it is for the defendant to  discharge  his  onus  and  in  the
absence thereof the burden of proof lying on the plaintiff shall be held  to
have been discharged so as to amount to proof of the plaintiffs title.”



In our opinion, on perusal of the material evidence  on  record,  the  legal
heirs of the deceased respondent no.1 herein have succeeded in  establishing
their title to the suit property.

The deceased respondent no.1 herein established  before  the  learned  Civil
Judge and the High Court of Karnataka that he was the owner of 20 acres  and
29 guntas of land, which formed part of  Sy.  Nos.  249  and  250  of  Balki
village. Part of  this  land  was  acquired  by  the  state  government  for
development around the area, the details of which are as under:





|Tahsil office               |3 acres 30 guntas                         |
|Munsiff court               |3 acres 00 guntas                         |
|School                      |4 acres 12 guntas                         |
|Hospital                    |0 acres 30 guntas                         |
|Road                        |1 acres 05 guntas                         |






The deceased respondent no. 1 also  stated  in  his  evidence  that  he  had
alienated a further 3 acres 03 guntas in favour of  Chaturbhuj  Heda.  Thus,
out of his entire ancestral property, only an area of 5 acres and 22  guntas
remained in his ownership. He produced before the learned  Civil  Judge  the
khasra patrak for the village for the year 1954-55 as Exh. P9. On the  basis
of the same, the learned judge rightly came to the conclusion on  facts  and
evidence on record and held that the land in Sy. Nos. 249 and  250  was  the
ancestral property of the deceased  respondent  no.1.  He  further  produced
before the court the extract of the revision survey register as  “Exh.  P24”
and a copy of the village map as “Exh. P28”. From a  perusal  of  these  two
documents, the learned Civil Judge came to the correct  conclusion  that  it
was proved that the old Sy. Nos. 249 and 250 had  become  Sy.  Nos.  179  to
184. The learned judge also took into consideration the documents marked  as
“Exh. P37” which was the plaint in the suit O.S. No. 130 of  1980  filed  by
Chaturbhuj Heda to get the records of revenue rectified. Sri Chaturbhuj  had
admitted in the plaint in that suit that there was  an  interchange  in  the
Sy. Nos. 182 and 184 and that he was wrongly shown as the owner of the  land
in Sy. No. 184, when infact he was the owner of  the  land  in  Sy.  No.182.
Thus, the deceased respondent no.1 has established his  title  to  the  suit
property. The learned  Civil  Judge  further  observed  that  the  appellant
Municipality has not produced any document to prove their title to the  suit
property. Even if it  was  their  case  that  the  suit  property  was  also
acquired by the state government, it should have  produced  the  acquisition
notifications under Sections 4 and 6 of the Land  Acquisition  Act  of  1894
and award passed under Section 11  of  the  Act.  The  learned  Civil  Judge
further held that since the appellant Municipality had denied the  title  to
the deceased respondent no.1 and  his  ancestors  over  the  suit  property,
there is no question of them having acquired adverse title  over  the  same.
Since the appellant Municipality had no title over  the  suit  property,  it
did not have any right  to  confer  better  title  upon  the  suit  schedule
property upon the other defendants in the suit in O.S. No. 39  of  1993.  We
find no merit in the claim of the appellant Municipality,  as  the  reversal
of the findings of fact on the relevant points answered by  the  High  Court
in exercise of its jurisdiction by recording valid  and  cogent  reasons  on
the substantial questions are perfectly correct and there is no  miscarriage
of justice in the interference by the High Court in the judgment  and  order
passed by it in the second appeals.





Answer to Point No.3





In view of the reasons mentioned supra, we are of the  view  that  no  error
has been committed  by  the  High  Court  in  setting  aside  the  erroneous
findings of the first appellate court in its judgment and  order  passed  in
the Regular Appeals and restoring the  judgment  and  order  passed  by  the
learned Civil Judge in O.S. No. 39  of  1993.  We  accordingly  dismiss  the
Civil Appeals.

                              …………………………………………………J.
                          [V. GOPALA GOWDA]


                              …………………………………………………J.
                              [AMITAVA ROY]

New Delhi,
September 29, 2015
-----------------------
[1]    AIR 1966 SC 1332
[2]    AIR 1976 SC 1569
[3]    AIR 1971 SC 664
[4]    AIR 1965 SC 1506
[5]    (2003) 8 SCC 752

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