suit for declaration and permanent injunction,

suit for declaration and permanent injunction,

The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
—————————————————————————————————————

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 3725-3726 OF 2015
[Arising out of Special Leave Petition (Civil) Nos. 3377-3378 of2011]

H. Lakshmaiah Reddy & Ors. .. Appellants

-vs-

L. Venkatesh Reddy .. Respondent

J U D G M E N T

C. NAGAPPAN, J.

Leave granted.
These appeals are preferred against judgment dated 8.9.2010 in R.S.A.
No.1500 of 2009 by which the High Court of Karnataka at Bangalore allowed
the Second Appeal filed by the respondent herein and against the final
order dated 25.11.2010 in RP No.398/2010 by which the High Court dismissed
the Review Petition filed by the appellant.
The respondent herein filed the suit against the appellants seeking for
the relief of declaration of his title to the suit property and for
consequential relief of permanent injunction restraining the appellants
herein from interfering with his physical possession. Briefly the case of
the plaintiff is that the suit property belonged to Guramma wife of the
first defendant and the mother of the plaintiff and on her death the first
defendant had given declaration before the revenue authorities to change
the Katha in the name of the plaintiff in respect of the suit schedule
property and mutation was effected accordingly and the revenue record stood
in the name of the plaintiff for a long period of time. It is the further
case of the plaintiff that the first defendant entered into second
marriage with one Jayamma and defendants 2 to 5 are their children and they
denied the ownership of the plaintiff in the suit property and therefore,
the suit came to be filed.
A common written statement was filed by the defendant stating that the suit
property was purchased in the name of Guramma under registered sale deed
dated 14.11.1959 and sale consideration was paid by the first defendant and
after the death of Guramma, the first defendant married Jayamma in 1973 and
defendants 2 to 5 were born out of the wedlock and the plaintiff as well as
the first defendant being the legal heirs of Guramma had succeeded to the
suit property and the first defendant gifted a portion of suit property
measuring 5 acres in favour of defendants 2 to 5 by registered gift deed
dated 12.12.2003 and the suit is liable for dismissal.
The trial court framed seven issues and after consideration of oral and
documentary evidence dismissed the suit. On the appeal preferred by the
plaintiff, the lower appellate court held that the plaintiff and the first
defendant being class-I heirs of deceased Guramma are entitled to half
share each in the suit property and decreed the suit in part. Challenging
the same the plaintiff preferred second appeal and the High Court allowed
the same by setting aside the judgment of the lower appellate court and
decreed the suit in full as prayed for. Aggrieved by the same the
defendants have preferred the present appeals. For the sake of convenience,
the parties are described in this judgment as arrayed in the suit.
6. Mr. Basavaprabhu S. Patil, the learned senior counsel appearing for
the appellants mainly contended that the High Court has failed to note that
the plaintiff himself had never pleaded a case of relinquishment of the
share by the first defendant in the suit property and what was pleaded in
the plaint was that he had succeeded to the property of his mother
absolutely and his father namely the first defendant has consented before
the revenue authorities for change of name in the Katha in favour of the
plaintiff in respect of the suit schedule property and thus the first
defendant had acquiesced to the fact of the entire suit property being put
in the name of the plaintiff and according to the learned counsel the
mutation entry can never be considered as relinquishment of right or title
and the High Court has committed a serious error in accepting the case of
the plaintiff and in support of his submissions relied on the decision of
this Court in Balwant Singh and another vs. Daulat Singh (Dead) by Lrs.
And ors. [(1997) 7 SCC 137].
7. Per contra the learned Senior counsel appearing on behalf of the
respondents contended that pursuant to the statement made by the 1st
defendant to the Revenue Authorities, the entire suit property was put in
the name of plaintiff, by effecting mutation entry in Katha and revenue
records and thus the 1st defendant, by his conduct had acquiesced to the
said fact, as rightly held by the High Court. Alternatively the learned
senior counsel contended that even if this Court holds in law that the 1st
defendant continues to be the title holder of half of suit property as
class-I heir of deceased Guramma, in view of special circumstances, the
justice of the case does not require interference or the relief could be
moulded in a different fasion. In support of his submission he relied on
Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad (1999) 2 SCC 635 and
Chandra Singh & Ors. Vs. State of Rajasthan & Anr. (2003) 6 SCC 545).
8. We considered the rival contentions. There is no dispute in the
factual matrix. Guramma was the first wife of 1st defendant and the
plaintiff was their only son and suit property was purchased by Guramma by
Exh. P-1 sale deed dated 14.11.1959 and the property stood in her name in
revenue record. The plaintiff was born on 1.10.1965 and Guramma died on
20.1.1966. As per Section 15 of the Hindu Succession Act, the husband and
the son of deceased Guramma, namely 1st defendant and the plaintiff, being
class-I heirs succeeded to the suit property. As per Exh. P-8, Katha of
suit property was changed to the name of plaintiff from his mother on
9.1.1990 and the endorsement therein made by the Tahsildar reveals that
the 1st defendant accepted the mutation of entry in the name of the
plaintiff, being their only son and on the basis of the said declaration,
the mutation was effected and it was not challenged. Exh. D-10 is the RTC
extract covering the period from 1989 to 1992 and the plaintiff was shown
as the owner of the suit property.
9. As rightly contended by the learned senior counsel apearing for the
appellants, 1st defendant did not relinquish or release his right in
respect of the half share in the suit property at any point of time and
that is also not the case pleaded by the plaintiff. The assumption on the
part of the High Court that as a result of the mututation, 1st defendant
divested himself of the title and possession of half share in suit
property is wrong. The mutation entries do not convey or extinguish any
title and those entries are relevant only for the purpose of collection
of land revenue. The observations of this Court in Balwant Singh’s case
(supra) are relevant and are extracted below :
“21. We have considered the rival submissions and we are of the view that
Mr Sanyal is right in his contention that the courts were not correct in
assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi
lost her title from that date and possession also was given to the persons
in whose favour mutation was effected. In Sawarni vs. Inder Kaur (1996) 6
SCC 223, Pattanaik, J., speaking for the Bench has clearly held as
follows: (SCC p. 227, para 7)
“7. … Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue in
question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire judgment.”

22. Applying the above legal position, we hold that the widow had not
divested herself of the title in the suit property as a result of Mutation
No. 1311 dated 19-7-1954. The assumption on the part of the courts below
that as a result of the mutation, the widow divested herself of the title
and possession was wrong. If that be so, legally, she was in possession on
the date of coming into force of the Hindu Succession Act and she, as a
full owner, had every right to deal with the suit properties in any manner
she desired.”

In the circumstances, we are of the opinion that the High Court erred in
concluding that the 1st defendant by his conduct had acquiesced and
divested himself of title of his half share in suit property and the
said erroneous conclusion is liable to be set aside.
10. The learned senior counsel appearing for the respondent/plaintiff
strenuously contended that the 1st defendant is now 90 years old and owns
lots of properties as enumerated in the list furnished by him before this
Court and the plaintiff is his only son through first wife and litigation
pertains to only one property namely the suit property and though this
Court gave ample opportunities, no settlement could be arrived at
between the parties and considering the special circumstances, this Court
in exercise of jurisdiction under Article 142 of the Constitution may not
interfere with the High Court judgment, which will do complete justice to
the parties and relied on the decisions cited supra.
11. We are not in a position to appreciate this contention. The High
Court misdirected itself and committed serious error warranting our
interference with the impugned judgment.
12. In the result the impugned judgment and decree of the High Court are
set aside and the judgment and decree of the lower appellate court is
restored and the appeals are allowed in the above terms. No costs.

…………………………….J.
(V. Gopala Gowda)

…………………………….J.
(C. Nagappan)
New Delhi;
April 17 , 2015

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