Sri Rajegowda Vs Sri Muddegowda

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.11.2023 PASSED IN R.A. NO. 18/2011 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA AND ETC.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the respondent/plaintiff before the Trial Court that he is the absolute owner of the suit schedule property and he has purchased the said property from one Bettegowda S/o Singrigowda on 15.04.1980 as per registered sale deed. Since the date of purchase, the plaintiff claims to be in possession of the suit schedule property and the revenue entries stands in his name. It is also the contention of the plaintiff that the defendant who is an utter stranger to the suit schedule property causing interference with the possession of the plaintiff and made an attempt to dig the foundation and put up construction without obtaining a licence. The plaintiff has given the complaint and the police did not take any action. Hence, he has filed the suit

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for the relief of declaration and consequential relief of permanent injunction.

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In view of service of notice, the

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appellant/defendant appeared before the Trial Court and filed the written statement contending that the vendor of the plaintiff Bettegowda had brothers by name Narasimhegowda, Kempsingegowda and Singrigowda. The father of the defendant i.e., Singrigowda had filed the suit in O.S.No.956/1961 for partition and separate possession of ancestral joint family properties including the suit schedule properties against his brothers and the said suit came to be decreed in his favour on 17.06.1963 and against the said judgment and decree, regular appeal was preferred and it came to be dismissed and hence, final decree proceedings filed in FDP No.3/1980. The suit site bearing Gramatana No.24 measuring 12 ankanas i.e., item No.21 of the suit schedule property in O.S.No.956/1961 is bounded on east by road; west by Narasimhaiah’s site; south by Kempegowda and north by Chikkegowda’s site

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was acquired by the father of this defendant in the final decree proceedings. Since 28.02.1985, the father of the defendant was in possession of the said property and after his death, the defendant and his two brothers by name Krishnegowda and Swamy got divided the said property in three portions in a oral partition. After the said partition, the defendant is in possession of east to west 46 feet and north to south 18 feet; his brother Krishnegowda is in possession of 46 x 18 feet and Swamy is in possession of 46 x 18 feet, totally it measures 12 ankanas. It is contended that the vendor of the plaintiff by name Bettegowda had no right to sell the suit schedule property in view of the decree passed in O.S.No.956/1961 and hence, it is contended that plaintiff did not get any right over the suit schedule property and not in possession of the suit schedule property and without seeking the relief possession, suit itself is not maintainable.

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The Trial Court having considered the grounds

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urged in the plaint as well as in the written statement,

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framed the issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiff, he got examined himself as PW1 and got examined two witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P8. On the other hand, defendant

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had not adduced any evidence and not marked any documents. The Trial Court having considered the material on records, decreed the suit of the plaintiff declaring that the plaintiff is the owner of the property in site No.8 measuring east to west 42 feet and north to south 27 feet situated at Masagonahalli village, Bindiganavile hobli, Nagamangala taluk and also restrained the defendant from interfering with the possession of the plaintiff.

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Being aggrieved by the said judgment, an appeal is filed in R.A.No.18/2011. The First Appellate Court having considered the grounds urged in the appeal formulated the points and re-appreciated both oral and documentary evidence placed on record and taken note of the boundaries mentioned in the suit as well as boundaries

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mentioned in O.S.No.956/1961 and also in FDP No.3/1980 and extracted the same in paragraph 17 of the judgment. The First Appellate Court also discussed the admission given by the defendant in the cross-examination that is DW1 and comes to the conclusion that even though the property number is not mentioned in the sale deed but boundaries prevails over the extent and number and comes to the conclusion that even though this Court given opportunity to lead evidence to defendant, he has failed to establish his defense and rebut the plaintiff evidence. The First Appellate Court considering the material available on record dismissed the appeal. Hence, the present appeal is filed challenging the concurrent finding of both the Courts.

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The learned counsel for the appellant would vehemently contend that the witness has been examined before the Appellate Court as DW1 and marked the documents at Ex.D1 to D11 and certified copy of the decree passed in FDP also marked but both the Courts have committed an error in appreciating the material on

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record when the plaintiff failed to prove the identity of the property the Trial Court ought not to have granted the relief of declaration and injunction. The counsel would contend that the Trial Court committed an error by wrongly casting the burden of proof on the defendant instead of casting the burden of the plaintiff in proving the case when the suit is filed for the relief of declaration and injunction and also the counsel contend that both the Courts committed an error by not properly considering the evidence on record by misreading and not considering the documents produced as evidence. The counsel would vehemently contend that the evidence extracted by the First Appellate Court is not a proper perspective and the counsel contend that it was stray admission on the part of DW1 with regard to the boundaries and the same cannot be accepted. Hence, it requires interference of this Court.

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The counsel also in support of his arguments relied upon the several judgments reported in AIR 1971

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SC 1542 in the case of CHIKKAM KOTSWARA RAO vs

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CHIKKAM SUBBARAO AND OTHERS; AIR 1981 KANT

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40 in the case of PARAMESHWARI BAI vs MUTHOJIRAO SCINDIA AND 2007(3) AIR KAR R 21 in the case of PUTTANNA SHETTY vs PADMA SHETTY

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with regard that admission must be clear and stray admission cannot be relied upon and also relied upon the judgments reported in (1994) 4 SCC 659 in the case of

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BILLA JAGAN MOHAN REDDY AND ANOTHER vs BILLA SANJEEVA REDDY AND OTHERS; ILR 1991 KAR 3014 in the case of MUNIVENKATAPPA vs CHIKKAPAPAMMA AND AIR 2022 SC 1372 in the case

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of SANJAY KUMAR SINGH vs STATE OF JHARKHAND with regard to the production of additional documents in appeal and also relied upon the judgments reported in AIR 2008 SC 2033 in the case of ANATHULA SUDHAKAR vs P BUCHI REDDY BY LRS AND OTHERS

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AND AIR 2024 SC (CIVIL) 978 in the case of VASANTHA (DEAD) THROUGH LRS vs RAJALAKSHMI ALIAS RAJAM (DEAD) THROUGH LRS with regard to

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suit for declaration of title without consequential relief of possession is not maintainable. The counsel referring these judgments would vehemently contend that the matter requires detail consideration. Hence, this Court has to frame the substantive question of law by admitting the appeal.

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Per contra, the learned counsel appearing for the respondent would vehemently contend that the sale deed was executed in the year 1980 and said sale deed was not challenged by the appellants herein at no point of time. The counsel contend that when the sale was made in the year 1980, subsequent documents also standing in the name of the respondent in all the revenue records, apart from that the counsel would vehemently contend that the property which they are claiming is in respect of property No.24 and the claim of the plaintiff is in respect of property No.8. The counsel would vehemently contend that when the property is distinct and also even though not led any evidence before the Trial Court and adduced

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the evidence before the Appellate Court and admissions

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are given with regard to the boundaries mentioned in the suit is correct and though denied the measurement east to west 42 feet and north to south 27 feet, categorically admitted that the suit schedule property originally belongs

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to Bettegowda S/o Singrigowda and also when the admission was given that the property was sold in the year 1980 i.e., on 15.04.1980 and not disputes the same fact that the property was sold and says may be sold in the year 1980 itself. The counsel also would vehemently contend that the First Appellate Court also in paragraph 18 taken note of the documents which have been placed by the appellant before the First Appellate Court. In paragraph 20 discussed in detail with regard to the title and possession over the suit schedule property and also comes to the conclusion that the defendant failed to establish that the suit schedule property and item No.21 in O.S.No.956/1961 are one and the same and also fails to rebut the plaintiff’s evidence and definite finding is given.

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Having heard the learned counsel appearing for

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the respective parties and also on perusal of the material on record, this Court has to consider the material on record. Admittedly, the suit is filed for the relief of declaration and permanent injunction. The very claim of the plaintiff that property was purchased in the year 1980 and also the plaintiff was put in possession in terms of the sale deed. It is also the contention of the respondent that earlier there was a suit for partition in O.S.No.956/1961 and there was a decree in O.S.No.147/2006. The contention of the plaintiff that he is in possession from the date of purchase. It is not in dispute that the sale made in favour of the plaintiff was not challenged by the appellants herein as rightly pointed out by the counsel for the respondent.

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It is also important to note that when the plaintiff seeks the relief of declaration producing the relevant records, nothing is placed on record before the Trial Court by the appellant herein and not adduced any

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evidence. The Trial Court also taken note of the said fact into consideration held that even though claimed the right and also the plaintiff is not in possession of the property, nothing is placed on record. However it is important to note that in the appeal, the evidence is adduced and documents are also marked.

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It is important to note that when an opportunity is given and the First Appellate Court also considered the evidence on record in paragraph 18 which the documents have been relied upon by the appellant and also in paragraph 19 taken note of the fact that the defendant disputes the title of the vendor in executing the sale deed and also taken note of the fact during the crossexamination, answer was given by DW1 who has been examined and the First Appellate Court extracted the admission in respect of the suit schedule property is in respect of revenue site No.8 and also same is in respect of house and vacant land. No doubt, suggestion was made that suit schedule property is not measuring 42 x 27 feet

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as claimed and the same was denied. But categorical admission was given that the property was sold in the measurement of gaja that is east to west 20 gaja and north to south 13½ gaja and also categorical admission was given that the boundaries which is mentioned in the suit is correct.

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It is also important to note that further admission was given that the suit schedule property originally belongs to Bettegowda S/o Singrigowda and also sale deed was executed in the year 1980 and same is not disputed and answer was given that may be sold the same. These answers taken note of by the First Appellate Court and specific admission was given in respect of property No.8 which was claimed by the plaintiff that is measurement of gaja that the suit schedule property originally belongs to plaintiff’s vendor Bettegowda. This admission is corroborative evidence to Ex.P1. Though the appellant counsel would vehemently contend that it is only the stray admission and not given any clear admission

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with regard to the suit schedule property and the same cannot be accepted. The First Appellate Court also taken note that though in the sale deed definite area is not mentioned but he is claiming the relief less extent than the sale deed is acceptable under law. Even though the property number is not mentioned in the sale deed but boundaries prevails over the extent and number and the said observation is not erroneous. In the case on hand also, when the admissions are elicited that boundaries are clearly mentioned, the very contention that property was not identified cannot be accepted as contended and the counsel also would vehemently contend that property is not identified properly and this Court has to frame substantive questions of law. When there is a clear admission that the boundaries mentioned in the suit is correct, the very contention that the boundaries are not clear cannot be accepted. The other contention of the appellant counsel that burden is casted upon the defendant cannot be accepted and the plaintiff has proved

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his case by examining the witness and placing the records. Though, at the first instance, the defendant has not led any evidence, however, an opportunity is given to the defendant to prove the case.

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It is also important to note that the appellate court having considered the boundaries mentioned in item No.21 of the earlier suit in O.S.No.956/1961 comes to the conclusion that the plaintiff has proved his title and possession over the suit schedule property. On the other hand, it is observed that the defendant failed to establish the fact that the suit schedule property and item No.21 in O.S.No.956/1961 are one and the same and failed to rebut the plaintiff’s evidence and definite conclusion was given with regard to the factual aspects is concerned. When both factual aspects have been considered by both the Courts with regard to the identity of the property as well as title, the contention that the suit for declaration and injunction is not maintainable when plaintiff is not in possession cannot be accepted when the plaintiff has

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produced the document with regard to the sale deed, tax paid receipt, demand register extract and proved the factum of possession by placing the documents on record. When such being the case, the question of admitting the appeal does not arise and no grounds is made out to frame the substantive questions of law in the appeal since both the Courts have taken note of factual aspects as well as question of law. Hence, no grounds are made out.

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