M K Baig Vs Sri a S Rajendra Prasad

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.10.2020 PASSED IN R.A.NO.15080/2019 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, DEVANAHALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 27.06.2017 PASSED IN O.S.NO.305/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE JR.DN. AND JMFC, DEVANAHALLI.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri G.V.Shashi Kumar, learned counsel for the appellant and Sri A.Madhusudhana Rao, learned counsel for the respondents.

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Second Appeal by the unsuccessful plaintiff is admitted on the following substantial questions of law:

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1. Whether the First Appellate Court has committed an error in eschewing the document Ex.P.3 of the year 1962 and passing a perverse judgment against the material available on record?

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2. Whether the First Appellate Court has committed an error in coming to the conclusion that the plaintiff is not in possession prior to the filing of the suit ignoring the document of Exs.P.1 and 2 particularly, and also Exs.P-7 and 8?

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Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under:

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A suit for bare injunction came to be filed in respect of property bearing Sy.No.124, measuring 4 acres 19 guntas

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including 2 guntas of Kharab land, situated at Sadahalli, Kasaba Hobli, Devanahalli Taluk, hereinafter referred to as ‘suit schedule property’.

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Plaintiff contended that he is in lawful possession and enjoyment of the suit schedule property from the year 1973-74 as per the entries in the RTC extract which depicted the name of the father of the plaintiff in the cultivator column.

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During the lifetime of the father of the plaintiff viz., Mohadin Baig, he was in possession of the property along with plaintiff and name of the plaintiff’s father found in RTC extract consistently from the year 1973-74 till upto 2006 in the cultivator column.

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After the death of father of the plaintiff, plaintiff is paying the taxes in respect of the suit schedule property and there are coconut trees which are 40 years old, apart from chikoo trees.

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It is also contended that there is a pump house adjacent to the electric pole. Service of electricity has been taken to the said pump house from last several years apart from a watchman house.

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It is further contended that one Rajgopal who is the real owner of the suit schedule property is not available in the recent years and his whereabouts are not known.

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When the matter stood thus, Sri Rajgopal @ B.N.Rajgopal Iyer S/o late B.N.Neelakanta Shastry, who is a stranger to the original owner Rajgopal and the plaintiff, said to have executed a sale deed on 13.04.2007 in favour of the defendant and based on such concocted sale deed, defendant is making hectic efforts to dispossess the plaintiff from the suit schedule property and therefore, he has approached the Court for permanent injunction restraining the defendant and his agents and assignees from interfering with the peaceful possession and enjoyment of the suit schedule property.

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Said suit on due contest, came to be decreed.

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Defendant filed an appeal in R.A.No.15080/2019 on the file of the V Addl. District and Sessions Judge, Devanahalli, Bengaluru Rural District.

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Learned Judge in the First Appellate Court, secured the records and after hearing the parties, raised necessary points and recorded a categorical finding that the plaintiff failed to prove his possession and enjoyment over the suit schedule property as on the date of the suit and therefore, grant of permanent injunction by the learned Trial Judge in the suit filed by the appellant is incorrect.

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Being aggrieved by the same, plaintiff is before this Court in this appeal on the following grounds:

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The judgment and decree passed by the First appellate Court is arbitrary, bad in law and without application of the judicial mind to the facts and circumstances of the case. Hence the same is liable to be set aside.

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The First appellate Court has failed to consider the oral and documentary evidence placed by the Plaintiff in the right perspective and has passed the judgment on wrong assumption.

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The First appellate Court without noticing the fact that the Ex.P.3 was not disputed by the Defendant, ought not to have opined and eschewed the consideration of the said document, when the First appellate court was aware of the fact that substantial justice is the mandate of the Law and issues can also be framed on the basis of the documents.

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The First appellate Court, while passing the impugned judgment and decree has failed to take note of the fact that the revenue records in respect of the suit schedule property were changed from the name of Plaintiff to the name of Defendant, and the fact that the defendant is not claiming title from the plaintiff, clearly demonstrates that the entries made in the RTC extracts are without following the procedure prescribed under the provisions of the Karnataka Land Revenue Act, 1964.

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The First Appellate Court while passing the impugned judgment and decree, has failed to take note of the fact that the existence of coconut trees, sapota trees and other trees, and also the pump house provided with electricity connection having been admitted in the written statement, the Hon'ble Court ought not to have opined that the Plaintiff has failed to produce the documents regarding the said aspect, without appreciating the settled principles of law, that the facts admitted need not be proved.

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The First Appellate Court prior to passing of the impugned judgment, has further failed to take note of the fact that the Ex.P-3 is marked without any objections and that there is no dispute with regard to the fact that the Plaintiff is the son of Mohiddin Baig, to whom Ex.P-3 was executed by the original owner H. Rajgopal who had also delivered possession of the suit land in favour of Mohiddin Baig on 20/05/1965 and the said possession is protected under Section 53A of the Transfer of Property Act.

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The First Appellate Court further failed to take note of the fact that the Respondent herein was the appellant before

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the First Appellate Court, did not possess any subsisting interest in the suit property as on the date of filing of the appeal and the same is also hit by lis-pendency and also suppression of material facts.

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The First Appellate Court while passing the impugned judgment ought not to have accepted the pleadings of the Defendant wherein allegation of insertion of name of Plaintiff in the revenue records is made, without any enquiry and finding regarding alleged claim by the respondent by the appropriate authority.

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The First Appellate Court prior to passing the judgment and decree has failed to take note of the fact that the Defendant has failed to produce evidence to prove his alleged possession or transfer of revenue records in his name in accordance with the procedure under the Karnataka Land Revenue Rules, 1965.

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The First Appellate Court further failed to take note of the fact that the Respondent herein had transacted the suit schedule property under the alleged sale deed dated 26/12/2016 during the pendency of the suit and by suppressing the same has filed the Regular Appeal and sought for interim relief.

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The judgment and decree passed by the First Appellate Court is not in consonance with the Order XLI Rule 23A and 33 of the Civil Procedure Code, 1908.

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The First Appellate Court has exercised the jurisdiction arbitrarily and further failed to consider the scope and ambit of first appeal and has passed the impugned judgment without complete adjudication which has resulted

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in impugned judgment and hence the same is liable to be set aside.

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Sri G.V.Shashi Kumar, learned counsel for the appellant/ plaintiff reiterating the grounds urged in the appeal memorandum, contended that the plaintiff is in possession of the suit property by virtue of part performance of contract vide Ex.P.3 which is an unregistered agreement to sale executed by the real owner of the suit property viz., H.Rajagopal in favour of the father of the plaintiff. Therefore, learned Judge in the First Appellate Court in the impugned judgment not considering the probative value of Ex.P.3 has resulted in grave miscarriage of justice and sought for allowing the appeal.

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He further contended that the finding recorded by the learned Judge in the First Appellate Court to the effect that for want of pleadings, probative value of Ex.P.3 cannot be considered, is incorrect. More so, when the parties have understood the case of each other and when Ex.P.3 came to be marked before the Trial Court, learned Judge in the First Appellate Court ignoring the probative value of Ex.P.3 only on

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the ground of want of pleadings has resulted in miscarriage of justice.

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Per contra , Sri A.Madhusudhan Rao, learned counsel for the respondent/defendant has supported the impugned judgment passed by the First Appellate Court.

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He would further contend that as per Ex.P.3, father of the plaintiff was put into possession of the property on 20.05.1965. But the very plaint averments itself would go to show that plaintiff was put into possession of the property in the year 1973-74 which itself exposes the hollowness in the claim of the plaintiff with regard to the alleged part performance of the contract. Therefore, learned Judge in the First Appellate Court was justified in eschewing Ex.P.3 which is admittedly a concocted is just and proper.

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He further contended that Exs.P.1 and P.2/RTC extracts coupled with Exs.P.7 and 8/patta book and tax paid receipts would establish that case of the plaintiff contradictory and same is not proved by the plaintiff by placing necessary evidence on record. Therefore, the learned Judge in the First Appellate

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Court dismissing suit of the plaintiff holding that plaintiff was not in lawful possession of the suit schedule property is just and proper. Thus, he sought for dismissal of the appeal.

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Having heard the parties in detail in the light of the appeal grounds as well substantial questions of law referred to supra, this Court perused the material on record, meticulously.

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On such perusal of the material on record, it is pertinent to note that not a single word is pleaded with regard to the part performance of the alleged agreement of sale said to have been executed by H.Rajagopal in favour of father of the plaintiff. Had it been so, at least in the plaint averments it could have been mentioned that he is in possession of the property by virtue of Ex.P.3 on and from 20.05.1965. On the contrary, in the plaint it is categorically mentioned that father of the plaintiff was in possession of the property from the year 19731974. Mode of father of plaintiff put into possession of the property is not even whispered in the said paragraph of the plaint. Plaint averments in this regard is vague and bald.

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On the contrary, according to the plaintiff one H.Rajgopal is the owner of the property. To establish that H.Rajgopal is the owner of the property, Exs.P.1 and 2 and other revenue documents are placed on record.

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If H.Rajagopal is the owner of the suit schedule property and if he had subscribed his signature to Ex.P.3, necessarily his details such as residential address etc., would have been mentioned in Ex.P.3 itself. Whereas, no such details are forthcoming in Ex.P.3.

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Moreover, contents of Ex.P.3 and signature of H.Rajagopal on Ex.P.3 in the form of are all in one and the same ink. Further, even after the signature, there is no mention as to who has identified the signature. Names of witnesses to Ex.P.3 are also not legible and their addresses are also not found.

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Being the propounder of Ex.P.3 on which the plaintiff wants to protect the possession of the property by virtue of part performance of contract of agreement of sale which has been executed in the year 1965, non examination of witnesses

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or the legal representatives of H.Rajagopal, if H.Rajagopal was not alive as on the date of suit, has resulted in non proving of Ex.P.3 in proper perspective.

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However, there is slight force in the argument put forth on behalf of the appellant that First Appellate Court without conducting such an enquiry or discussing the probative value of Ex.P.3, only on the ground that pleadings that Ex.P.3 is to be eschewed has resulted in slight miscarriage of justice.

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But the case of the plaintiff as a whole, when appreciated, neither Exs.P.1 and 2 nor Exs.P.7 and P.8 coupled with probative value of Ex.P.3 would make out a case for the plaintiff that he is in lawful possession of the property on and from 20.05.1965 inasmuch as, father of the plaintiff himself did not get revenue entries transferred in his name if he is in possession of the suit property as part performance of contract of agreement to sell vide Ex.P.3 from the year 1965 to 1973. What prevented the plaintiff or father of plaintiff to do so is a question that remains unanswered.

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It is pertinent to note that if the right of the plaintiff is by virtue of part performance of contract, it was all the more necessary for the plaintiff to seek for specific performance of contract from 1965 to atleast 1973.

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Even in 1973-1974 there is no effort made by the father of the plaintiff or after death of the father of plaintiff, his legal representatives to seek for specific performance of contract from alleged owner of the property i.e., H.Rajagopal.

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Non examination of H.Rajagopal or atleast making efforts to summon H.Rajagopal or his legal representatives if he is dead by the time the evidence was recorded in Trial Court, is a significant factor in appreciating the case of the parties.

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Further, an allegation is made in the plaint that taking advantage of non availability of whereabouts of H.Rajagopal, the vendor of the defendant has impersonated himself as H.Rajagopal and sold the property in favour of the defendant whereby defendant did not derive better title than the plaintiff is incapable of any comprehension inasmuch as the defendant

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is claiming right over the property by virtue of a registered sale deed.

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Further, mere marking of Ex.P.10 which is a voter list to the effect that name of H.Rajagopal @ Rajagopal Iyer are two different persons, without making any effort, atleast in summoning Rajagopal Iyer as a witness on behalf of the plaintiff, would serve no purpose.

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Under such circumstances, only on the basis of Ex.P.3, lawful possession of the plaintiff could not have been inferred by the learned Trial Judge is the finding recorded by First Appellate Court, if not in so many happy words.

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It is to be looked that whenever a person approaches the Court with a prayer for grant of permanent injunction the important aspect that has to be established by such person is to establish lawful possession.

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In the case on hand, the RTC extracts are of the year 2006 and 2007. Though, in the plaint it has been mentioned that continuously the names of the plaintiff and father of the plaintiff are forthcoming in RTC extracts from 1973 till date of

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suit, no such documents are placed nor marked before the Court.

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An attempt is no doubt made to place those records before this Court by way of additional documents.

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Having regard to the scope of Second Appeal, where there is no jurisdiction for the Court to consider the additional evidence in view of Section 100 of the Code of Civil Procedure, the additional evidence placed before this Court, is only an attempt to plug the loopholes. As such, same cannot be taken into consideration while appreciating the case of the parties.

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There is no rule that in every case where divergent finding is recorded by the Courts, the Court of the Second Appeal is required to consider the additional evidence either.

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Taking note of these aspects of the matter, even though in the first substantial question of law, the year is mentioned as 1962, it should be construed as the year 1965, the First Appellate Court was not completely justified in eschewing Ex.P.3, but the first Appellate Court ought to have considered

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the probative value. Nothing prevented the parties to advance arguments about the said aspects of the matter.

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Further, non mentioning of the date of Ex. P.3 or mentioning about the possession of the property from the year 1965 by virtue of Ex. P.3, this Court can only say that even if the probative value of the Ex.P.3 is taken into consideration, the case of the appellant would not get improved to any extent in holding that plaintiff is in lawful possession of the suit schedule property.

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Thus, the substantial question of law though needs to be answered that eschewing is incorrect but the probative value thereof when considered by this Court would not help the plaintiff in getting the suit decreed. Accordingly first substantial question of law is answered against plaintiff.

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Insofar as the second substantial question of law is concerned, as discussed supra Exs. P1 and P2 are of the year of the suit and Exs. P.7 and P 8 would not improve the case of the plaintiff in establishing that he was in possession of the property on and from the date of Ex. P3 being 20^th May 1965.

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