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NC: 2024:KHC-K:5087
RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 18TH DAY OF JULY, 2024

BEFORE

THE HON'BLE Mrs JUSTICE K S HEMALEKHA

REGULAR SECOND APPEAL NO.662 OF 2007 (DEC/INJ)

C/W

REGULAR SECOND APPEAL NO. 638 OF 2007

REGULAR SECOND APPEAL NO. 661 OF 2007

IN RSA NO.662/2007:-

BETWEEN:

ANNAPPA,
S/O MALLIKARJUNAPPA INGANSHETTY,
AGED ABOUT 50 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
GULBARGA DISTRICT-585 102.
…APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)

AND:

SRI CHANNAPPA S/O SHANKARAPPA,

AGED ABOUT 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 102.
…RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)
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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING

TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.347/2002 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.20/2005.

IN RSA NO.638/2007 :-

BETWEEN:

1. SMT. UMADEVI,
W/O MALLIKARJUNAPPA INGANSHETTY,
AGED: 48 YEARS,

2. SRI. ANNAPPA,
S/O MALLIKARJUNAPPA INGANSHETTY,

BOTH RESIDING AT
KADEHALLI VILLAGE,
CHITAPUR TALUK,
GULBARGA DISTRICT-585 308.

…APPELLANTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)

AND:

SRI CHANNAPPA S/O SHANKARAPPA,

AGED ABOUT 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 308.
…RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING

TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.219/2002 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.18/2005.
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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

IN RSA NO.661/2007:-

BETWEEN:

UMADEVI,
W/O MALLIKARJUNAPPA INGANSHETTY,
AGED 51 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
GULBARGA DISTRICT-585 102.

…APPELLANT
(BY SRI SACHIN M. MAHAJAN, ADVOCATE)

AND:

SRI CHANNAPPA
S/O SHANKARAPPA,
AGED ABOUT 36 YEARS,
R/AT KADEHALLI VILLAGE,
CHITAPUR TALUK,
DIST: GULBARGA-585 102.

…RESPONDENT
(BY SRI R. S. SIDHAPURKAR, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 CPC, PRAYING

TO SET ASIDE THE JUDGMENT AND DECREE DATED:
07.04.2005 PASSED BY THE LEARNED CIVIL JUDGE (SR.DN.)
SEDAM IN O.S. NO.133/2003 AND THE JUDGMENT AND
DECREE DATED 05.01.2007 PASSED BY THE LEARNED
PRINCIPAL DISTRICT JUDGE, GULBARGA IN R.A. NO.21/2005.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

JUDGMENT

All the appeals are taken up together since they

arise out of the common judgment and decree of the

Courts below.

2. RSA 638/2007 is preferred by the defendants in

O.S No.219/2002.

3. Suit O.S No.219/2002 was filed by one

Channappa against the appellant Umadevi and one

Annappa for relief of declaration with respect to land

Sy.No.38/1 measuring 9 acres 26 guntas, recovery of

possession of 1 acre 12 guntas of land from the

defendants. The suit of Channappa was decreed. R.A

No.18/2005 preferred by the defendants Umadevi and

Annappa, the said appeal was dismissed confirming the

judgment and decree of the Trial Court. Aggrieved, the

defendants are before this Court in RSA No.638/2007.

4. RSA No.661/2007 is preferred by Umadevi the

plaintiff in O.S No.133/2003, seeking for a relief of

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

declaration and injunction with respect to land Sy.No.38/2

measuring 4 acres 26 guntas. The Trial Court dismissed

the suit of the plaintiff. Aggrieved, the plaintiff preferred

appeal in R.A No. 21/2005. The First Appellate Court

confirmed the judgment and decree of the Trial Court

against which the Umadevi is in second appeal.

5. RSA No.662/2007 is preferred by the plaintiff

in O.S No.347/2002, seeking for relief of declaration and

injunction with respect to land Sy.No.38/3 measuring 12

acres 32 guntas. The Trial Court dismissed the suit of the

plaintiff Annappa. Appeal preferred by the plaintiff in R.A

No.20/2005 was dismissed confirming the judgment and

decree in O.S No.347/2002.

6. The parties herein are referred to as

Channapa- plaintiff and Umadevi and Annappa as

defendants for the sake of convenience.

7. Sy.No.38 of Kadehali village measuring 25

acres 25 guntas in extent belonged to common owners

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

viz., Sharanappa, Erappa and Basappa. Sharanappa had

eastern half share in the land under the registered sale

deed dated 8 Meher 1343 Fasli corresponding to August

1934 AD, extent of 12 acres 32 guntas sold in favour of

the grandfather of the appellant-Annappa in RSA

No.662/2002, grandfather of the appellant by name

Shivalingappa Inganshetty and defendant No.2. Annappa

contends that he is in possession and enjoyment to the

said extent. The remaining extent of 12 acres 33 guntas in

Sy.No.38 situated on the Western side belonged to

Sharanappa’s brothers namely, Erappa and Basappa, the

Shikmidars and Hissedars. One of the Hissedars, Erappa

was entitled to 1/3rd share and the other Hissedars

Basappa was entitled to 2/3rd share, out of the remaining

half. i.e., 8 acres 22 guntas. Erappa's grandson Gurappa

sold 1/3rd extent measuring 4 acres 26 guntas, situated in

the middle portion in favour of the appellant's mother

namely Umadevi (RSA No.661/2007) under registered sale

deed dated 18.05.1972. Basappa's son Sharanabasappa

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C/W RSA No. 638 of 2007
RSA No. 661 of 2007

and Shivashankar sold their 2/3rd extent of 8 acres 23

guntas to Channappa-the plaintiff under registered sale

deed dated 12.2.1986. The Khasra Pahani of the year

1954-55, shows the following extent:

1. Sy.No. 38/1 - 8 acres 22 guntas.

2. Sy.No. 38/2 - 4 acres 11 guntas.
3. Sy.No. 38/3 - 12 acres 32 guntas.

8. As per the Khasra Pahani, the measurement of

Sy.No.38/1 in which the plaintiff-Channappa is seeking for

declaration is measured only 8 acres 22 guntas in extent.

The plaintiff filed suit seeking decree of declaration and

injunction claiming that he had purchased 9 acres 26

guntas in extent from his previous owner and further that

the defendants had encroached upon an extent of 1 acre

12 guntas of the land belonging to him. The suit was

resisted by the defendants - appellants herein.

9. The Trial Court and the First Appellate Court

taking into consideration the settlement register, wherein

an entry is made showing that Sy.No.38/1 is 9 acres 26

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

guntas, Sy.No.38/2 is shown as 4 acres 26 guntas and

Sy.No.38/3 as 11 acres 3 guntas and arrived at a

conclusion that the plaintiff – Channappa has proved that

he is the owner of Sy.No.38/1 measuring 9 acres 26

guntas and he is entitled for possession in respect of 1

acre 2 guntas and decreed the suit of the plaintiff Annappa

and dismissed the other suit O.S Nos.133/2003 and

347/2002. In the appeals preferred by the defendants

confirmed the judgment and decree of the Courts below.

10. This Court while admitting the appeal has

framed the following substantial question of law on

09.03.2007.

“ Whether the Courts below were justified in

decreeing the suit of the plaintiff on the basis of the
averments in the sale deed as well as the entries in
the survey settlement when the evidence on record
showed that the vendor of the plaintiff in fact really
did not acquire title to the property, the extent of
which is mentioned in the sale deed as well as the
survey settlement ?”

11. Learned counsel for the appellants Sri Sachin

M. Mahajan and R. S. Siddhapurkar learned counsel

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C/W RSA No. 638 of 2007
RSA No. 661 of 2007

appearing for the respondents have been heard on the

substantial question of law framed by this Court.

12. Learned counsel for the appellant submits that

the Courts below have committed a fundamental error in

not considering the Khasra Pahani of the year 1954-55

which clearly indicates that Sy.No.38/1 measures 8 acres

22 guntas, Sy.No.38/2 measures 4 acres 11 guntas and

Sy.No.38/3 measures 12 acres 32 guntas and the

respondent plaintiff has failed to prove that he is the

owner to the extent of 9 acres 26 guntas as per the sale

deed. Learned counsel submits that the khasara Pahani is

the document of title. When there is no other title deed

and invariably the sale deed executed in favour of the

plaintiff to the extent of 9 acres 26 guntas it is without

there being any title to the vendor and the Courts below

have blindly concluded that the respondent - plaintiff has

proved his title in respect of 9 acres 26 guntas in extent.

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
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13. Per contra the learned counsel appearing for

the respondent taking this Court to the settlement

register would contend that the settlement register is of

the year 1963-64 indicating the measurements carried

down and on the said basis Sy.No.31/1 the extent shown

is 9 acres 26 guntas and the sale in favour of the

respondent-plaintiff by a registered sale deed dated

12.02.1986 based on the resettlement register.

14. As stated supra, the entry of the survey

numbers in the Khasra Pahani of the year 1954-55 is 8

acres 22 guntas in Sy.No.38/1, Sy.No.38/2 is shown as

measuring 4 acres 11 guntas and Sy.No.38/3 is shown as

12 acres 32 guntas. Annappa who is the defendant No.2,

who is the owner of the Eastern half portion of the land in

Sy.No.38 measuring 12 acres 32 guntas which he has

purchased under the sale deed in August 1934 and as

per the Khasra Pahani as on 1954-55 the entry shown is

an extent of 12 acres 32 guntas and which is now given

Sy.No.38/3. The Western side of the property of

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

defendant No.2, the property of his mother Umadevi is

situated. The Umadevi's title is disputed by the

respondents to the extent of 4 acres 26 guntas,

contending that Sy.No.38/2 is measuring only 4 acres 11

guntas as per the settlement and also that the Annappa’s

land Sy.No.38/3 is reduced to 11 acers 3 guntas.

15. Consequent to the merger of Hyderabad State

with India in 1948, the Jagirs were abolished by the

Andhra Pradesh (Telangana area), Abolition of Jagirs

Regulation, 1358 Fasli. The Hyderabad record of rights

in land regulation, 1358, Fasli (‘Regulation’ for brevity)

was established to expedite to amend the law relating to

the preparation and maintenance of a record of rights in

land in Hyderabad State.

16. Section 4 sub clause 1 of the Regulation

envisages the preparation and maintenance of the record

of rights for every village included in the local area, a

record of rights in all the lands belonging thereto, the said

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C/W RSA No. 638 of 2007
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record of rights shall include the following particulars

namely:

I. The names of all persons who are holders,

occupants, owners or mortgagers of land or
assignees of the rent or revenue thereof;
II. The nature and extent of the respective
interests of such persons and conditions or
liabilities (if any) attaching;
III. The rent or revenue (if any) is payable by
or to any of such person;

17. Section 4 (1) of the Regulation reads as under:

“Sec.4 (1) As soon as may be after the issue of a Preparation and

maintenance of
notification under sub-section (4) of section 1
record of rights.
directing the provisions of this Regulation to apply to
a village or local area there shall be prepared and
thereafter maintained for that village or, as the case
may be, for every village included in that local area,
a record of rights in all lands belonging thereto; the
said record of rights shall include the following
particulars, namely:-
(a) the names of all persons who are holders,
occupants, owners or mortgagees of land or
assignees of the rent or revenue thereof;
(b) the nature and extent of the respective
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C/W RSA No. 638 of 2007
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interests of such persons and the conditions

or liabilities (if any) attaching;
(c) the rent or revenue (if any) payable by or to
any of such persons;
(d) such other particulars as may be prescribed.
Provided that notwithstanding anything
contained in clause(a) the names of tenants shall not
be included in the record of rights unless their
tenancies are perpetual tenancies or tenancies of any
such other description as Government may by
notification specify in this behalf either generally or
for the purposes of any specified village or of villages
included in any specified area.”

Section 13 of the Regulation reads as under:

Presumption of “Sec.13. Any entry in the record of rights and a

correctness of
entries in record certified entry in the register of mutations shall be
of rights and
register of presumed to be true until the contrary is proved or a
mutations.
new entry is lawfully substituted therefor.”

18. Section 13 of the Regulation envisage the

presumption of correctness of entries in the record of

rights and register of mutations to be true until the

contrary or new entry is lawfully substituted there. The

Khasra Pahani is a register recording the incidents of

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RSA No. 661 of 2007

tenure and an historical record. Khasra would serve the

purpose of deed of title, when there is no other title deed.

The Hon’ble Apex Court, in the case of Jt. Collector,

Ranga Reddy Dist v. D. Narsing Rao etc.1 has held at

Para No. 9 as under:

“9. Consequent to the merger of Hyderabad State

with India in 1948 the Jagirs were abolished by the
Andhra Pradesh (Telangana Area) Abolition of Jagirs
Regulation, 1358 Fasli. ‘Khasra Pahani’ is the basic
record of rights prepared by the Board of Revenue
Andhra Pradesh in the year 1954-55. It was gazetted
under Regulation 4 of the A.P. (Telangana Area)
Record of Rights in Land Regulation 1358F. As per
Regulation No.13 any entry in the said record of
rights shall be presumed to be true until the contrary
is proved. The said Regulation of 1358-F was in
vogue till it was repealed by the A.P. Rights in Land
and Pattadar Pass Books Act, 1971, which came into
force on 15.8.1978. In the 2nd edition (1997) of
“The Law Lexicon” by P. Ramanatha Aiyar (at page
1053) ‘Khasra’ is described as follows:
“Khasra is a register recording the
incidents of a tenure and is a historical
record. Khasra would serve the purpose of a

1
AIR 2015 SC 1021
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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

deed of title, when there is no other title

deed.”

19. The Khasra Pahani of the year 1954-55

indicated 12 acres 32 guntas of Sy.No.38/3, purchased by

defendant No.2 – Annappa in 1934. Sy.No.38 is

measuring 25 acres 25 guntas. The first sale is in favour of

defendant No.2. The second sale was in the year 1972 in

favour of the mother of the defendant No.2 namely,

Umadevi. The purchase of 4 acres 26 guntas is as per the

settlement register after settlement in the record of rights.

No material is forthcoming to indicate the basis for entry

in the settlement register showing the extent of lesser

portions than that is shown in the khasra Pahani. This

Court on 01.10.2021 on the application filed by the

appellant to appoint ADLR Shahabad as Court

Commissioner to conduct the survey and measure the land

Sy.Nos.38/1, 38/2 and 38/3 appointed the ADLR as a

Court Commissioner and directed the Court Commissioner

to conduct the survey and measure the lands.

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C/W RSA No. 638 of 2007
RSA No. 661 of 2007

20. The survey report has been received by this

Court indicating that Sy.No.38/A as on 1954-55

measurement is 8 acres 22 guntas, 38/B 4 acres 11

guntas, 38/C 12 acres 32 guntas, totally measuring 25

acres 25 guntas as per the Khasra Pahani. The report

indicates that as per the sale deed 38/A equivalent to 38/1

is 9 acres 26 guntas, 38/B equivalent to 38/2 is 4 acres 26

guntas and 38/C equivalent to 38/3 is 12 acres 32 guntas,

in all 27 acres 4 guntas. As per the settlement 38/1 is

measuring 9 acres 26 guntas, 38/2 is measuring 4 acres

36 guntas and 38/3 is measuring 11 acres 3 guntas, in all

25 acres 25 guntas.

21. The survey conducted by the Court

Commissioner indicates that 38/1 is 8 acres 22 guntas and

38/2 and 38/3 together is 17 acres 3 guntas. The report of

the Commissioners is in collaboration with the evidence

and materials placed before the Court. The Khasra Pahani

of the year 1954-55 is a document of the title and in the

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RSA No. 662 of 2007
C/W RSA No. 638 of 2007
RSA No. 661 of 2007

absence of the contrary being proved, i.e., settlement

register was not prepared after the proper survey and the

extent of the lands. The Khasra Pahani of the year 1954-

55 prevails and Sy.No.38/1 is to the extent of 8 acres 22

guntas, Sy.No.38/1 and 38/2 and 38/3 in consolidation are

17 acres 3 guntas, in all the Sy.No.38 is measuring 25

acres 25 guntas.

22. The substantial question of law framed by this

Court is answered in favour of the appellants and this

Court pass the following –

ORDER

(i) RSA No.638/2007 is allowed in part.

(ii) Suit in O.S No.219/2002 is decreed in part, declaring

the plaintiff-Channappa as owner of Sy.No.38/1
measuring 8 acres 32 guntas and recovery of
possession is hereby dismissed.

(iii) RSA No.661/2007 is allowed in part.

(iv) Suit in O.S No.133/2003 is allowed in part, declaring

the plaintiff-Umadevi to be the owner of Sy.No.38/2
to the extent measuring 4 acres 11 guntas.
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RSA No. 661 of 2007

(v) RSA No.662/2007 is allowed.

(vi) The plaintiff-Annappa is declared to be the owner of

Sy.No. 38/3 measuring 12 acres 32 guntas, the
plaintiff-Channappa and respondent in O.S
No.133/2003 and O.S No.347/2002 is hereby
restrained from interfering with the possession of
Sy.No.38/2 and Sy.No.38/3 in all measuring 17 acres
3 guntas.

Sd/-
JUDGE

AT
List No.: 1 Sl No.: 59
CT: VD