P. Kishore Kumar v. Vittal K. Patkar

JUDGMENT

DIPANKAR DATTA, J. THE APPEAL

¶1This civil appeal arises from the judgment and decree dated 29 th November, 2010 rendered by the Karnataka High Court, whereby an appeal under section 100 of the Code of Civil Procedure, 1908 (“CPC”, hereafter) was allowed, resulting in restoration of the decree passed by the Trial Court and setting aside of the first appellate decree dismissing the suit of the plaintiff – respondent (“plaintiff ”, hereafter). BRIEF RESUME OF FACTS

¶2The factual matrix of the case, insofar as is relevant for the purpose of a decision on this appeal, is set out hereinbelow:

i) The pleaded case in the plaint is that land comprised in Sy. No. 3, measuring 187 acres 38 guntas, in Navarathna Agrahara, Hobli, Devanhalli Taluk, Bangalore, devolved upon the plaintiff ’s predecessor-in-interest, K. Muniyappa @ K. Shamaiah vide a Family Settlement Deed dated 30th July, 1953.

ii) 15 acres out of the said land was sold by K. Shamaiah to the vendor of the plaintiff , i.e., Smt. Akula Yogamba (“plaintiff ’s vendor” hereafter) vide registered sale deed dated 14th February, 1958.

iii) The Mysore (Personal & Miscellaneous) Inam Abolition Act, 1954 (“the Act” hereafter), enacted for abolition of Inams in the State of Mysore, came into force on 15th March, 1955. By virtue of the Act, all rights, title and interests in the land, hitherto vested in the Inamdars, ceased and came to be vested absolutely in the State of Mysore. However, the Act provided for an opportunity to the Inamdars to make an application under section 9 thereof to register as an occupant of the land.

iv) The plaintiff ’s vendor applied under section 9A of the Act and sought occupancy rights in respect of 15 acres of Sy. No. 3. According to the plaintiff , the claim of the plaintiff ’s vendor succeeded before the Special Deputy Commissioner of Inams (“Commissioner”, hereafter). The Commissioner passed an order dated 25th November, 1958 (“Commissioner’s order”, hereafter) while deciding this application, which reads as follows: “Order sheet In the Order of Special Case No. 51/1958-59 Sl. No. Order of proceedings with signature of Presiding Officer Signature of parties or pleaders when necessary The persons noted below have purchased the lands noted against them after the date of vesting from jodidars 1 Sri. Keralavarma S.No. 13_33-00 2 Sri. Lokaranjan, S. No. 13_20-00 3 Smt. Akula Yogama S. No. 3_15_00 4 Sri Venkata Rao S.No. 3_1-4 5 Sri M. Raja Rao S. No. _ Dry 3-26, 6-00 6 S. No. 3 ____ 12-00 7 Hence, the claim of the applicants may be rejected and Khata u/s 9 of the Act in the name of the jodidar may be made. Sd/- Special Deputy Commissioner for Abolition of Inams Kolar District, Kolar 25th November, 1958 Order Order The claimants were not tenants at the time of vesting. Therefore, claims of Sri Keralvarma, Yogamba, Bheemavarapu Venkata Rau, Sri Ranga Rao are ordered to be rejected. These numbers are separately registered in favour of the Inamdars under Section 9. 13/33, 13/20 are registered in favour of the Inamda r Sri K. Srinivasamurthy u/s 9 and 3/15, 3/1-2, 2/3-36, 16/2-6, 3/12 are ordered to be registered as occupant. Dictated, transcript edited by me and then pronounced in open court.

(sign) Special Deputy Commissioner for Abolition of Inams, Bangalore” It is the interpretation of the Commissioner’s order which forms the fulcrum of the present dispute.

v) While the plaintiff alleged that the claim of the plaintiff ’s vendor was accepted, thus making the plaintiffthe lawful owner with the better title, the appellant – defendant (“defendant” hereafter) in his written statement alleged that the Commissioner’s order granted occupancy rights under section 9 in favour of his predecessor-in-interest, i.e., K. Srinivasa Murty, the Inamdar, from whom the defendant purchased 5 acres and 28 guntas, thus vesting him with the better title.

vi) Amendments made to the Act in 1979 vested the powers of the Special Deputy Commissioner with the Land Tribunal. Upon applications being made by other tenants for occupancy rights in Sy. No. 3, the Land Tribunal, vide order dated 20th September, 1982, conferred occupancy rights on the defendant’s predecessor-in-interest, with respect to an extent of 21 acres in Sy. No. 3. An endorsement to the same effect was also led in evidence by the defendant.

vii) Sale deeds were thereafter executed for the same parcel of land by both sides. While the plaintiff ’s vendor sold an extent of 15 acres to the plaintiffvide registered sale deed dated 12 th November, 1987, the defendant purchased 5 acres and 28 guntas comprised in Sy. No.3 vide registered sale deeds dated 20th June, 1984 from his respective vendors.

viii) Portions of Sy. No.3 being sold to two differe nt parties, a dispute between the two parties became imminent and, in fact, triggered O.S. 506/1995 (“the suit” hereafter) instituted by the plaintiff , inter alia, praying for declaration of title and permanent injunction with respect to Schedules ‘A’ and ‘B’ pr operty, against the defendant. The prayers in the plaint are reproduced hereinbelow for the sake of clarity: “a) declaring that the plaintiffis the absolute owner of the schedule property? (sic) b) for permanent injunction restraining the defendant or his henchmen, person from in any way interfering with the plaintiff ’s lawful peaceful possession in both A and B schedule property. c) and for the costs and such other reliefs as this Hon’ble Court deems fit to grant in the circumstances of the case, in the interest of justice and equity.” The property schedules are extracted hereinbelow: “Schedule – A 15 Acres of land situated in Sy No. 93, Old No. 3 i n Navarathna Agrahara, Jala Hobli Devanahalli Taluk, Bangalore District** Schedule – B All the piece and parcel of the 5.28 guntas of land in Re. S. No. 93, Old No. 3, situated at Eastern side of by passing mud road situated in Navarathna Agrahara, Jala Hobli Devanahalli Taluk, Bangalore**”

ix) The learned Civil Judge (“Trial Court”, hereafter) after extensive examination of revenue records adduced by the plaintiff , and the Commissioner’s order, held that the ownership of the suit property vested in the plaintiff ’s vendor. In arriving at such a conclusion, the court was predominantly persuaded by Ext. P8 (Record of Rights), which recorded that vide order dated 24 th March 1959 passed by the Special Deputy Commissioner, Inam Abolition, occupancy rights had been conferred on the plaintiff ’s vendor. However, no order or endorsement of the said date was actually exhibited before the Trial Court. The decree passed by the Trial Court is quoted below for facility of understanding: “After contest, it is ordered and decreed that the suit of the plaintiffis hereby decreed. It is declared that the plaintiff is the absolute owner of the B Schedule property and the defendant or any persons claiming through him are hereby permanently restrained from interfering with the peaceful possession and enjoyment of the plaintiffover the suit schedule A and B properties.”

x) Aggrieved by the decree, the defendant carried it in an appeal under section 96 of the CPC before the learned District Judge. The first appellate court overturned the findings of the Trial Court, on the premise that revenue records alone could not aid the plaintiff in establishing his title, especially in the glaring absence of any Inam grant in favour of the plaintiff ’s vendor. It was noted by the appellate court that though the plaintiffreferred to the order dated 24th March, 1959, the same was not led in evidence.

xi) A second appeal carried by the plaintiffbefore the High C ourt succeeded vide the judgment and order impugned herein. The High Court framed the following question of law for decision which, according to it, was a substantial question of law: “Whether the lower appellate court had erred in law in not considering Ex P-1 to Ex P-29 and the admissions made by defendant (DW-1)?” The High Court interpreted the Commissioner’s order to be in favour of the plaintiff ’s vendor, such interpretation being bolstered solely by the revenue records exhibited by the plaintiff . Though it was noted that the grant of occupancy rights in favour of the plaintiff ’s vendor under section 9A was contrary to the provisions of the Act, it was observed that the decision having attained finality could not be challenged after such extensive passage of time before a civil court. The plaintiffwas, therefore, held to have established the better title, resulting in upholding of the decree passed by the Trial Court. CONTENTIONS OF THE PARTIES

¶3Learned senior counsel for the defendant, Mr. A Di wakara, highlighted the dissatisfaction recorded by the Hig h Court with the evidence adduced by the plaintiff , and stressed that in view of the same, the Court could not have held the plaintiffto establish a better title than the defendant, more so when the Court itself recorded the fact that the grant of occupancy rights in favour of the plaintiff ’s vendor under section 9A of the Act was contrary to its import. It was argued by him that the plaintiff ’s vendor being a purchaser, could not have applied as an “occupant” under the provisions of the Act, such application being restricted only to tenants. The Commissioner’s order categorically recorded that the plaintiff ’s vendor was not a tenant at the time of vesting of the land; therefore, the order could not, by any stretch of imagination, be interpreted to vest occupancy rights in the plaintiff ’s vendor.

¶4Per contra, Mr. S.N. Bhat, learned senior counsel for the plaintiff , argued that the plaintiff ’s vendor had made an application for occupancy rights in 15 acres of Sy No. 3, and the Commissioner, while noting that the vendor was not a tenant at the time of vesting, went on to record that occupancy registration under section 9A be done. He strenuously advanced the record of rights for the year 1983 in the name of the plaintiff ’s vendor, along with subsequent revenue entries in the name of the plaintiff , to argue that it was the plaintiff , and his vendor before him, who were being treated as the rightful owners by the revenue authorities, such authorities havin g rightly interpreted the Commissioner’s order to mean that ownership vested in the plaintiff ’s vendor. ANALYSIS

¶5This Court in Nazir Mohamed vs. J. Kamala1 has crisply analysed numerous decisions rendered by this Court on section 100 of the CPC and summarised the law as follows: “30. Where no such question of law, nor even a mixed question of law and fact was urged before the trial court or the first appellate court, as in this case, a second appeal cannot be entertained. ***

33.2. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any spe cific provisions of law or settled legal principle emerging from bi nding precedents, and, involves a debatable legal issue. 1 (2020) 19 SCC 57

33.3. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principl e. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.”

¶6Although it is true that Nazir Mohamed (supra) is a decision of recent origin and the High Court cannot be said to have the benefit of perusal thereof, there can be little doubt that the law on what would con stitute a ‘substantial question of law’ within the meaning of section 100, CPC has not changed over the years and the jurisdiction continues to be limite d in the sense that interference ought not to be made unless the appeal involves a substantial question of law as distinguished from a mere question of law.

¶7We have held earlier that much would depend on the Commissioner’s order, the true interpretation of which was fiercely contested by senior counsel on either side. However, before embarking o n the process of determining if the question of ownership of the suit property was ri ghtly decided by the High Court, an examination of sections 9 and 9A of the Act is considered imperative. “9. Lands and buildings to vest in the Inamdar :-

(1) Every Inamdar shall, with effect on and from the date of vesting, be entitled to be registered as an occupant of all lands other than:-

(i) communal lands, waste lands, gomal lands, forest lands, tank beds, mines, quarries rivers, streams, tanks and irrigation works;

(ii) lands in respect of which any person is entitled to be registered under Sections 4, 5, 6, 7 or 8; and (iii) lands upon which have been erected buildings owned by any person other than the Inamdar.

(2) Every building situated within the limits of the inam whic h was owned immediately before the date of vesting by the Inamdar shall , with effect on and from such date, vest in the Inamdar. Explanation: In this section ‘inamdar’ means an Inamdar other than a holder of a minor inam referred to in Section 7. 9A. Other Tenants of Inamdar: Every tenant of the Inamdar, other than the tenants entitled to be registered as occupants under Sections 4, 5 and 6, shall, with effect on and from the date of vesting and subject to the provisions of Chapter III-A, be entitled to continue as a tenant of the land in respect of which he was a tenant immediately befor e the date of vesting.” (emphasis supplied by us)

¶8A bare perusal of the aforesaid provisions reveals that while section 9 allows an Inamdar to make an application for occupancy rights, a tenant is afforded an opportunity for the same under section 9A of the Act subject to the condition that he was a tenant in respect of the subject land immediately prior to the date of vesting. Therefore, it is only a tenant or an Inamdar, who could have made such an application.

¶9Let us now examine the Commissioner’s order. In the case before the Commissioner, the plaintiff ’s vendor was one of the applicants while the defendant’s predecessor-in-interest was one of the respondent Inamdars. The Commissioner lucidly stated that the claimants were not tenants at the time of vesting and, therefore, the claims of, inter alia, the plaintiff ’s vendor, were ordered to be rejected. It was further said that their respective survey numbers were to be registered in favour of the Inamdars unde r section 9. This, in our view, can have only one possible meaning, that the claim of the plaintiff ’s vendor for occupancy right as a tenant was rejected, and that of the defendant’s predecessor-in-interest was acknowledged. The plaintiff ’s vendor having failed to satisfy the condition of being v ested with tenancy rights as on the date stipulated by section 9A and such order having remained unchallenged for all times, we are unable to agree wit h the argument advanced on behalf of the plaintiff .

¶10Mr. S.N. Bhat for the plaintiffsought to rely on Ext. P8 and the other revenue entries containing the name of the plaintiff and the plaintiff ’s vendor to argue that the Commissioner’s order vested the plaintiff ’s vendor with occupancy rights, and it is only in accordance with such order did the revenue authorities enter the plaintiff ’s vendor’s name in the records. However, we are also unable to agree with such an argument.

¶11It is trite law that revenue records are not documents of title.

¶12This Court in Sawarni vs. Inder Kaur and Ors.2 held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. All it does is entitle the person in whose favour mutation is done to pay the land revenue in question.

¶13This was further affirmed in Balwant Singh & Ors vs. Daulat Singh (Dead) by LRs and Ors.3 wherein this Court held that mere mutation of records would not divest the owners of a land of their right, titl e and interest in the land.

¶14In Jitendra Singh vs. State of Madhya Pradesh and Ors. 4, this Court after considering a catena of judgments, reiterated the princi ple of law as follows: “6. ***mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.”

¶15We may also profitably refer to the decision of this Court in Sita Ram Bhau Patil vs. Ramchandra Nago Patil (Dead) by LRs. an d Ors.5 wherein it was held that there exists no universal principle t hat whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary.

¶16In the present case, the Commissioner’s order distinctly denying the rights of occupancy to the plaintiff ’s vendor is evidence that renders these revenue entries unworthy of acceptance.

¶17An examination of the sale deed executed in favour of the plaintiff , also tilts the balance against him. The deed simply states that the plaintiff ’s vendor traces her title not to a grant in her favour by the government, but through a sale deed executed in her favour. Further, there is a cate gorical recital in the deed that the property is neither Inam land nor tenanted land, and that there is no legal impediment to the sale of such property. Some element of mischief being present is clear inasmuch as a relevant fact was concealed, 2 (1996) 6 SCC 223 3 (1997) 7 SCC 137 4 2021 SCC OnLine SC 802 5 (1977) 2 SCC 49 i.e., the plaintiff ’s vendor had indeed applied for occupancy rights under the Act but had failed to secure them. Such an application would never h ave been necessary, had the property not been Inam or tenanted land, thus laying bare the deficiency in the plaintiff ’s title. The High Court, while observing that there existed a lawfully registered sale deed in favour of the plaintiff , failed to identify this inherent defect in the title claimed by the plaintiff .

¶18It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”. In the present case, the plaintiff ’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.

¶19In contrast, when the sale deed dated 20th June, 1984 executed in favour of the defendant is examined, there is an unequivocal and categorical recital that the vendor purchased the land from Sri K. Sriniva sa Murthy, in whose favour occupancy rights were granted vide the Commissioner’s order. A comparative study of the two sale deeds leaves none in doubt that the defendant’s sale deeds, supported by the Commissioner’s order, weigh heavier in the scales of justice as compared to the plaintiff ’s sale deed, which is only supported by revenue documents.

¶20The deficiencies in the plaintiff ’s case are further revealed by the deposition of the plaintiff , wherein he has admitted that he had not seen the Commissioner’s order, and that he “was not told that Smt. Akula Yogamba is merely a tenant and that, she had no right over the land”. The doctrine of caveat emptor tasks a vendee with the duty to diligently investigate the title he is purchasing, but the plaintiffin the present case has evidently shirked such duty for which the law cannot come to his rescue.

¶21It is also curious to note that the plaintiffhas placed on reco rd endorsements issued by the Commissioner in favour of four other tenants, but has failed to produce one in his own vendor’s name. We cannot hel p but take an adverse view of the same against the plaintiff , since it only goes towards making denser the cloud which has been cast on the plaintiff ’s title.

¶22Contention advanced on behalf of the plaintiffthat through the record of rights the plaintiffhas established his title by a preponderance of probabilities is not sustainable. As noted above, the pla intifffailed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiffto reasonably establish the probability of better title, which the plaintiffin the present case, has manifestly failed to do.

¶23This Court, in Union of India and Ors. vs. Vasavi Co-operative Housing Society Limited and Ors.6, held as under: “15. It is trite law that, in a suit for declaration of title, the b urden always lies on the Plaintiffto make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the Defendants would not be a ground to grant relief to the Plaintiff .”

¶24This decision was affirmed, and further elaborated upon, in Jagdish Prasad Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Or s.7, wherein this Court has succinctly summarized the law on burden of proof in suits for declaration of title as follows: “44. In the suit for declaration for title and possession, the Plaintiffs-Respondents could succeed only on the strength of t heir own title and not on the weakness of the case of the Defendan ts-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitl ed for a decree for declaration. The Plaintiffs-Respondents have neither produced the title document i.e. patta-lease which the Plaintiffs-Respondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by th em are also held to be not genuine. In any event, revenue entries fo r few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title.” 6 (2014) 2 SCC 269 7 (2019) 6 SCC 82

¶25Mr. S.N. Bhat placed reliance on the decision of this Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesarasw ami & V.P . Temple8 to contend that the plaintiffwas only expected to prove his title to a high degree of probability and not beyond reasonable doubt. The principle of law argued by the learned senior counsel is not one we wish to dispute, the same having been well settled through numerous decis ions of this Court. However, having led in evidence only revenue documents which are essentially fiscal in nature, we have no hesitation in holding that in the present case, the plaintiffhas been unable to assert his case to a high degree of probability. It is, therefore, not enough that the plaintiffled in evidence records of rights for a number of years in an attempt to estab lish his title; such records would not counter the proof of occupancy rights furnished by the defendant, in a test of probative value.

¶26This Court, in Somnath Burman vs. S.P . Raju and Ors.9 held that possession can be regarded as a better title against all, except the true and lawful owner. Therefore, the multitude of revenue documents put to use to argue that the plaintiffwas cultivating the suit property would not adequately meet the demands of proof made by law. The only credible document of title led as evidence in the present case was in favour of the defendant’s predecessor-in-interest; hence, it must follow that it is only the defendant who can be declared the lawful owner of the ‘B’ schedule property.

¶27In the light of the discussions made above, we hold that the Trial Court erred in decreeing the suit by placing on a higher probative pedestal the revenue entries. In our considered opinion, the first appellate c ourt rightly overturned the findings of the Trial Court and dismissed the suit. The Commissioner’s order was correctly interpreted to determine as to in whom occupancy rights vested in respect of the ‘B’ schedule property.

¶28The first appellate court having examined the facts in extenso, the High Court ought not to have interfered with the findings rendered therein by virtue of being, in second appeal, a court of law. As was astutely said by this Court in Gurdev Kaur vs. Kaki10, a second appellate court is not expected 8 (2003) 8 SCC 752 9 (1969) 3 SCC 129 10 (2007) 1 SCC 546 to conduct a “third trial on facts” or be “one more dice in the gamble.” The decision rendered by the first appellate court, not being in violation of the settled position of law, ought not to have been interfered with. With utmost respect to the High Court, we are constrained to observe that the question framed by it could be regarded as one of law, if it all, but did not merit the label of a substantial question of law so as to warrant interference with the first appellate decree under section 100 of the CPC.

¶29That apart, the High Court was remiss in reversing the findings of facts rightly arrived at by the first appellate court. The decision to adopt the Trial Court’s approach of interpreting the Commissioner’s order within the framework of the revenue records that were exhibited was yet another aspect in which the High Court fell in error. An attempt ought to have been made by the High Court to harmoniously read the Commissioner’s order with the provisions of the Act and to interpret the same so as to re nder it in consonance with the law, the failure of which leads to the ine scapable conclusion that the same is indefensible.

¶30The sequitur of this discussion, with respect, is that the High Court while rendering the judgment and order under challenge proceeded on an erroneous approach and contrary to settled law. The plaintiffhaving failed to meet the burden of proof imposed on him by law, his suit against the defendant must fail.

31.The impugned judgment and decree are, accordingly, set aside. The civil appeal stands allowed and the decree passed by the Trial Court, extracted hereinabove, is set aside with the result that the plaintiff ’s suit shall stand dismissed. There shall be no order as to costs.

¶32We, however, make it clear that any observation made in this judgment may not prejudice the plaintiff ’s right, if any, in respect of ‘A’ schedule property; if in future his right is put to jeopardy and the appropriate forum is approached to protect such right, such forum shall proceed to decide the lis on its own merits. Headnotes prepared by: Appeal allowed. Ankit Gyan

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7210 of 2011. From the Judgment and Order dated 29.11.2010 of the High Court of Karnataka at Bangalore in RSA No.1333 of 2009.

A. Diwakara, Sr. Adv., Kashi Vishweshwar, Ms. A. Sumathi, Advs. for the Appellant. S. N. Bhat, Sr. Adv., Anand Sanjay M. Nuli, Ms. Akhila Wali, Shiva Swaroop, Nanda Kumar K. B. for M/s Nuli & Nuli, Advs. for the Respondents.