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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.

2. 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.

3. The facts which are required to appreciate the

rival legal contentions urged on behalf of the parties

are stated in brief hereunder:

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 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

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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,

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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.  

4. 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:

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“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

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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:

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“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).”

5. 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,

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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.

6. 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

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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.

7. 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-

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

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

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3.What order?

Answer to Point No.1 8. 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.

9. 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

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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.

10. 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.

11. Mr. Shekhar Naphade, learned counsel appearing

on behalf of some of the legal heirs of the deceased

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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

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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.

12. 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

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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 Kunwar1 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

1  AIR 1966 SC 1332

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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 & Ors2 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.”

13. 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  Bala3 that  for  the  bar  of  res

2  AIR 1976 SC 1569 3  AIR 1971 SC 664

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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

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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”

14. 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

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of 1993 was barred by res judicata as contended by the

learned senior counsel Mr. Basava Prabhu S. Patil.

15. 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

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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 16. 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,

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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.

17. 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

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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.

18. 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

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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.

19. 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 Puri4 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

4  AIR 1965 SC 1506

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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.

20. 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

5  (2003) 8 SCC 752

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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

21. 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

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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

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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

22. 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

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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