P. Kishore Kumar vs Vittal K Patkar

REPORTABLE 2023 INSC 1009 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7210 OF 2011

P. KISHORE KUMAR …APPELLANT

VS.

VITTAL K. PATKAR …RESPONDENT

JUDGMENT

DIPANKAR DATTA, J.

THE APPEAL

1. This civil appeal arises from the judgment and decree dated 29th 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

2. The factual matrix of the case, insofar as is relevant for the purpose of a Signature Not Verified Digitally signed by satish kumar yadav Date: 2023.11.20

decision on this appeal, is set out hereinbelow:

17:35:24 IST Reason:

1 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

2 Sl. No. Order of proceedings with Signature of signature of Presiding parties or Officer 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 Inamdar 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 plaintiff the lawful owner with the better

3 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

plaintiff vide registered sale deed dated 12th 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 different 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’ property, against the defendant. The prayers

in the plaint are reproduced hereinbelow for the sake of clarity:

“a) declaring that the plaintiff is the absolute owner of the schedule property? (sic)

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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 in 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 24th 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 plaintiff is 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 plaintiff over the suit schedule A and B properties.”

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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 plaintiff referred to the order dated 24th March,

1959, the same was not led in evidence.

xi) A second appeal carried by the plaintiff before the High Court

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 plaintiff was,

therefore, held to have established the better title, resulting in

upholding of the decree passed by the Trial Court.

6 CONTENTIONS OF THE PARTIES

3. Learned senior counsel for the defendant, Mr. A Diwakara, highlighted the

dissatisfaction recorded by the High Court with the evidence adduced by the

plaintiff, and stressed that in view of the same, the Court could not have

held the plaintiff to 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.

4. Per 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 having rightly

interpreted the Commissioner’s order to mean that ownership vested in the

plaintiff’s vendor.

7 ANALYSIS

5. This 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 specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. 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 principle. 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.”

6. Although 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 constitute a

‘substantial question of law’ within the meaning of section 100, CPC has not

changed over the years and the jurisdiction continues to be limited 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.

7. We have held earlier that much would depend on the Commissioner’s order,

the true interpretation of which was fiercely contested by senior counsel on

1 (2020) 19 SCC 57

8 either side. However, before embarking on the process of determining if the

question of ownership of the suit property was rightly 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 which 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 before the date of vesting.” (emphasis supplied by us)

8. A 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.

9. Let 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,

9 were ordered to be rejected. It was further said that their respective survey

numbers were to be registered in favour of the Inamdars under 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 vested 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 with the

argument advanced on behalf of the plaintiff.

10. Mr. S.N. Bhat for the plaintiff sought 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.

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

12. This 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.

2 (1996) 6 SCC 223 10

13. This 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, title and interest

in the land.

14. In Jitendra Singh vs. State of Madhya Pradesh and Ors.4, this Court

after considering a catena of judgments, reiterated the principle 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.”

15. We may also profitably refer to the decision of this Court in Sita Ram Bhau

Patil vs. Ramchandra Nago Patil (Dead) by LRs. and Ors.5 wherein it

was held that there exists no universal principle that whatever will appear

in the record of rights will be presumed to be correct, when there exists

evidence to the contrary.

16. In 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.

17. An 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 categorical recital in

3 (1997) 7 SCC 137 4 2021 SCC OnLine SC 802 5 (1977) 2 SCC 49

11 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,

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 have

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.

18. It 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.

19. In 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. Srinivasa 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.

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20. The 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 plaintiff in the present case has evidently

shirked such duty for which the law cannot come to his rescue.

21. It is also curious to note that the plaintiff has placed on record

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 help 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.

22. Contention advanced on behalf of the plaintiff that through the record of

rights the plaintiff has established his title by a preponderance of

probabilities is not sustainable. As noted above, the plaintiff failed 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 plaintiff

to reasonably establish the probability of better title, which the plaintiff in

the present case, has manifestly failed to do.

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23. This 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 burden always lies on the Plaintiff to 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.”

24. This decision was affirmed, and further elaborated upon, in Jagdish Prasad

Patel (Dead) thr. LRs. and Ors. vs. Shivnath and Ors.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 their own title and not on the weakness of the case of the Defendants-Appellants. The burden is on the Plaintiffs-Respondents to establish their title to the suit properties to show that they are entitled 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 them are also held to be not genuine. In any event, revenue entries for 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.”

25. Mr. S.N. Bhat placed reliance on the decision of this Court in R.V.E.

Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.

Temple8 to contend that the plaintiff was 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 decisions 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

6 (2014) 2 SCC 269 7 (2019) 6 SCC 82 8 (2003) 8 SCC 752

14 present case, the plaintiff has been unable to assert his case to a high

degree of probability. It is, therefore, not enough that the plaintiff led in

evidence records of rights for a number of years in an attempt to establish

his title; such records would not counter the proof of occupancy rights

furnished by the defendant, in a test of probative value.

26. This 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 plaintiff was 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.

27. In 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 court 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.

28. The first appellate court having examined the facts in extenso, the High

Court ought not to have interfered with the findings rendered therein by

9 (1969) 3 SCC 129

15 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 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.

29. That 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 render it in

consonance with the law, the failure of which leads to the inescapable

conclusion that the same is indefensible.

30. The 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 plaintiff having failed

10 (2007) 1 SCC 546

16 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.

32. We, 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.

…………………………………….J (BELA M. TRIVEDI)

…………………………………….J (DIPANKAR DATTA)

NEW DELHI 20th NOVEMBER, 2023.

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