A suit for declaration may be maintained even if the plaintiff is not in possession, provided a consequential relief is sought, as mutation does not establish ownership.

JUDGMENT :

C. M. JOSHI, J.

Being aggrieved by the dismissal of O.S.No.60/1998 by the learned Civil Judge (Jr.Dn.) and J.M.F.C., Saundatti, the defendants had filed R.A.No.7/2007 before the Additional Civil Judge (Sr. Dn.) and J.M.F.C., Saundatti which came to be allowed by the judgement and decree dated 07.10.2009 and therefore, the defendants are before this Court in Second Appeal.

2. The factual matrix of the case that is relevant for the purpose of this appeal may be summarised as bellow:

a) It was contented by the plaintiff that he was given in adoption to one Gadigeppa when he was a minor and Mayavva was adoptive mother. After death of the Gadigeppa, the plaintiff and his mother were looking after the properties and thereafter, the plaintiff purchased block No.217 measuring, 7 acres, 4 guntas in the year 1966. The other property block No.218, measuring 5 acres, 8 guntas was granted by the Land Tribunal under the Karnataka Land Reforms Act, 1961.

b) Block No.217 and 218 measuring 7 acres 5 guntas and 5 acres 8 guntas respectively situated at Hirur village of Saundatti Taluka were acquired by the plaintiff, one by way of purchase in the year 1964 from the income of the adoptive family and the other by the grant through the Land Tribunal. The defendants are the genitive brothers of the plaintiff.

c) It is the case of the plaintiff that the genitive father of the plaintiff i.e., Laxman had obtained the signature of the plaintiff on a white paper in the year 1978 and subsequently, converted it in to a Varadi and on the basis of the same, got the properties changed in his name and in the names of the other sons i.e., defendant Nos.1 and 2 vide M.E No.1219 and 1220 without the knowledge of the plaintiff. At no point of time, the plaintiff had relinquished his rights over the suit schedule property in favour of the defendants.

d) After coming to know the said mutation entries, the plaintiff approached Assistant Commissioner, Bailhongal in an appeal and it was dismissed with a direction to approach the Civil Court. In 1998 when the defendants attempted to dispossess the plaintiff from the suit property, plaintiff was constrained to file the instant suit. Therefore, the plaintiff sought declaration of his ownership and consequential relief of injunction.

3. Pursuant to the summons, the defendants appeared and filed their written statement. While the defendants admitted the relationship between the parties, they denied that block No.217 was purchased by the plaintiff and it was in his exclusive possession. However they admitted that block No.218 was granted by the Land Tribunal. They contended that they are in lawful possession and enjoyment of the suit land as owners since time immemorial and it was Laxman Kuri who had actually paid sale consideration amount for the purchase of Block No.217 and the occupancy price in respect of Block No.218. It is contended that in the year 1978, there was a mutual understanding and a family arrangement, in which suit schedule properties were transferred to the defendants. It was the genitive father of plaintiff who had paid the premium towards the granted land and as such the plaintiff had relinquished his rights under the mutation entries on 08.06.1978. They also contended that they had perfected their right and title over the suit schedule property byway of adverse possession.

4. On the basis of the above pleadings, the trial Court framed following issues:

“1. Whether the plaintiff proves that the suit property bearing block No.217 measuring 7 aсгеs 4Gs was purchased by him in the year 1964 out of the income derived from the adoptive family properties?

2. Whether plaintiff prove