IMPORTANT POINT
Mutation does not give title.

JUDGMENT

C. NAGAPPAN, J.

1. Leave granted.

2. These appeals are preferred against judgment dated 8.9.2010 in R.S.A. No.1500 of 2009 by which the High Court of Karnataka at Bangalore allowed the Second Appeal filed by the respondent herein and against the final order dated 25.11.2010 in RP No.398/2010 by which the High Court dismissed the Review Petition filed by the appellant.

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

4. A common written statement was filed by the defendant stating that the suit property was purchased in the name of Guramma under registered sale deed dated 14.11.1959 and sale consideration was paid by the first defendant and after the death of Guramma, the first defendant married Jayamma in 1973 and defendants 2 to 5 were born out of the wedlock and the plaintiff as well as the first defendant being the legal heirs of Guramma had succeeded to the suit property and the first defendant gifted a portion of suit property measuring 5 acres in favour of defendants 2 to 5 by registered gift deed dated 12.12.2003 and the suit is liable for dismissal.

5. The trial court framed seven issues and after consideration of oral and documentary evidence dismissed the suit. On the appeal preferred by the plaintiff, the lower appellate court held that the plaintiff and the first defendant being class-I heirs of deceased Guramma are entitled to half share each in the suit property and decreed the suit in part. Challenging the same the plaintiff preferred second appeal and the High Court allowed the same by setting aside the judgment of the lower appellate court and decreed the suit in full as prayed for. Aggrieved by the same the defendants have preferred the present appeals. For the sake of convenience, the parties are described in this judgment as arrayed in the suit.

6. Mr. Basavaprabhu S. Patil, the learned senior counsel appearing for the appellants mainly contended that the High Court has failed to note that the plaintiff himself had never pleaded a case of relinquishment of the share by the first defendant in the suit property and what was pleaded in the plaint was that he had succeeded to the property of his mother absolutely and his father namely the first defendant has consented before the revenue authorities for change of name in the Katha in favour of the plaintiff in respect of the suit schedule property and thus the first defendant had acquiesced to the fact of the entire suit property being put in the name of the plaintiff and according to the learned counsel the mutation entry can never be considered as relinquishment of right or title and the High Court has committed a serious error in accepting the case of the plaintiff and in support of his submissions relied on the decision of this Court in Balwant Singh and another vs. Daulat Singh (Dead) by Lrs. And ors. [(1997) 7 SCC 137].

7. Per contra the learned Senior counsel appearing on behalf of the respondents contended that pursuant to the statement made by the 1st defendant to the Revenue Authorities, the entire suit property was put in the name of p