Sannegowda Since Dead by His Lrs Vs Sri Kempegowda

SRI THAMMEGOWDA, S/O LATE SANNEGOWDA, AGED ABOUT 56 YEARS, APPELLANT 1 TO 3 ARE RESIDING AT LAKKANAKOPPALU VILLAGE, GADAVAGERE HOBLI, HUNSUR TALUK, MYSORE DISTRICT, PIN - 571 105.

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3 SMT GOWRAMMA, W/O DASEGOWDA, D/O LATE SANNEGOWDA, AGED ABOUT 54 YEARS, HEBBAL VILLAGE, HEBBAL HOBLI, K.R.NAGARA TALUK, MYSORE DISTRICT, PIN: 571602.

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4 SRI SANNTHAMMEGOWDA, S/O LATE SANNEGOWDA, AGED ABOUT 51 YEARS,

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SRI PAPEGOWDA, S/O LATE SANNEGOWDA, AGED ABOUT 48 YEARS, APPELLANT 5 AND 6 ARE RESIDING AT LAKKANAKOPPALU VILLAGE,

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GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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SMT BASAMMANI, W/O ANNAJIGOWDA, AGED ABOUT 46 YEARS, MARAGOWDANAHALLI VILALGE, HEBBAL HOBLI, K.R.NAGARA TALUK, PIN: 571602.

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SMT KEMPAMMA, W/O BUNDEGOWDA, AGED ABOUT 68 YEARS, LAKKANAKOPPALU VILLAGE, GADAVAGERE HOBLI, HUNSUR TQ, PIN - 571105.

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…APPELLANTS

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(BY SRI. B S NAGARAJ,ADVOCATE APPELLANTS 2 & 3 ARE THE LRS OF DECEASED APPELLANT NO.1 V.C.O DT 03.02.2016)

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AND:

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SRI KEMPEGOWDA, S/O LATE KARIGOWDA, AGED ABOUT 49 YEARS,

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MUDDEGOWDA, S/O LATE KARIGOWDA, AGED ABOUT 49 YEARS,

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SRI KUMAR S/O LATE KARI GOWDA, AGED ABOUT 42 YEARS,

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SANNAMMA SINCE DEAD BY HER LRS

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4(a) SRI KEMPEGOWDA, S/O LATE KARIGOWDA, AGED ABOUT 66 YEARS, R/AT SHANKAREGOWDANAKOPPA, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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4(b) SMT CHANNAMMA, W/O CHANNAPPA, D/O SANNAMMA KARIGOWDA, AGED ABOUT 48 YEARS,

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RESPONDENT NO.4(a) & 4(b) ARE R/AT SHANKAREGOWDANAKOPPA, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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4(c) SRI NAGEGOWDA, S/O SANNAMMA KARIGOWDA, AGED ABOUT 41 YEARS,

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4(d) SRI SHIVAPPA, S/O SANNAMMA KARIGOWDA, AGED ABOUT 38 YEARS,

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4(e) SRI MUDDEGOWDA, S/O SANNAMMA KARIGOWDA, AGED ABOUT 36 YEARS,

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4(f) SRI KUMARA S/O SANNAMMA KARIGOWDA, AGED ABOUT 34 YEARS,

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4(g) SRI BASAVARAJU, S/O SANNAMMA KARIGOWDA, AGED ABOUT 33 YEARS, R4(a) TO R4(g) ARE RESIDING AT LAKKANAKOPPAL VILLAGE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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4(h) SMT JYOTHI, W/O SAHADEVA, D/O SANNAMMA KARIGOWDA, AGED ABOUT 31 YEARS, SEERENAHALLI VILLAGE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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4(i) SMT MAHADEVI, W/O RAJEGOWDA, D/O SANNAMMAKARIGOWDA, AGED ABOUT 33 YEARS, MALLINATHAPURA VILLAGE, BILIKERE HOBLI, HUNSUR TALUK, PIN:571105.

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SRI JAVAREGOWDA S/O LATE KEMPEGOWDA, AGED ABOUT 65 YEARS,

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SRI THAMMANNEGOWDA, ADOPTED SON OF LATE MUDDEGOWDA, AGED ABOUT 69 YEARS, R5 & 6 ARE RESIDING AT LAKKANAKOPPALU VILLAGE, MULLURU DAKALE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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SRI MUDDEGOWDA SINCE DEAD BY HIS L.RS.

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7(a) SMT.CHANNAMMA, W/O LATE MUDDEGOWDA,

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AGED ABOUT 66 YEARS,

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7(b) SRI KEMPARAJU, S/O LATE MUDDEGOWDA, AGED ABOUT 46 YEARS,

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7(c). SRI JAVAREGOWDA, S/O LATE MUDDEGOWDA, AGED ABOUT 43 YEARS,

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R7(a) TO R7(c) ARE RESIDING AT LAKKANAKOPPALU VILLAGE, MULLUR DAKALE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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7(d) SMT SAROJAMMA, W/O APPAJIGOWDA, D/O LATE MUDDEGOWDA, AGED ABOUT 48 YEARS, SATHIGRAMA VILLAGE, KASABA HOBLI, K.R.NAGARA TALUK, PIN: 571602.

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7(e) SMT PRAMILA, W/O NAGESHA, D/O LATE MUDDEGOWDA, AGED ABOUT 42 YEARS, BAACHALLI VILLAGE, SALIGRAMA HOBLI, K.R.NAGARA TALUK, PIN: 571604.

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7(f) SMT SUNDRAMMA W/O MADEGOWDA, D/O LATE MUDDEGOWDA, AGED ABOUT 40 YEARS, LAKKANAKOPPALU VILLAGE, MULLURU DAKALE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN: 571105.

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L K MADEGOWDA, S/O LATE KARIGOWDA,

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AGED ABOUT 49 YEARS, LAKKANAKOPPALU VILLAGE, MULLURU DAKALE, GADAVAGERE, HOBLI, HUNSUR TALUK, PIN:571105. 9. L K KRISHNEGOWDA, S/O LATE KARIGOWDA, AGED ABOUT 49 YEARS, LAKKANAKOPPALU VILLAGE, MULLURU DAKALE, GADAVAGERE HOBLI, HUNSUR TALUK, PIN:571105.

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…RESPONDENTS

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(BY SRI SUNEEL S NARAYAN, ADVOCATE FOR C/R9, R1 TO R3, R4(c) AND (d), R5, R6, R7(a to c & e) & R8, R4(a), R4(b), R4(e), R4(f), R4(g), R4(h), R4(i), R7(d) & R7(f) ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 1.7.2013 PASSED IN R.A.NO.79/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 16.6.2007 PASSED IN OS.NO.106/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., HUNSUR.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is arising from the concurrent finding in a suit for declaration and possession. The suit is filed in respect of the property bearing Sy.No.29/2 of Manchabayanahalli Village, Gavadagere Hobli, Hunsur Taluk.

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The property bearing Sy.No.29/2 is described in two distinct schedules. Suit ‘A’ schedule refers to 8 acres 16 guntas excluding 16 guntas of kharab and the total extent including the kharab land would be 8 acres 32 guntas.

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Suit ‘B’ schedule property is part of the same Sy.No.29/2 which according to the plaintiffs measures 3 acres 30 guntas and said 'B' schedule property measuring 3 acres 30 guntas is said to be in possession of the defendants as encroachers. In substance, the plaintiffs have claimed title over 8 acres 32 guntas in suit ‘A’ schedule property and possession of 3 acres 30 guntas in suit ‘B’ schedule property.

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The defendants have contested the suit and have disputed the title of the plaintiffs over entire extent of suit ‘A’ schedule property and claims to be the owners in respect of

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suit ‘B’ schedule property. It appears that on two occasions, Surveyor was appointed on the basis of an application filed by the plaintiffs and survey was conducted and in two reports, it is reported that the defendants are in possession of the property as encroachers to the extent of 3 acres 30 guntas.

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The defendants have disputed the correctness of the survey which is said to have taken place before the institution of the suit. Then the defendants have filed a written statement contending that they are the owners of the property. The defendants have not mentioned in the written statement as to how the property is acquired by them.

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The Trial Court framed issues. Defendants have not referred to any specific title deeds in the written statement but have taken a contention that the property is ancestral property of the defendants.

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The Trial Court has come to the conclusion that the plaintiffs are the owners of ‘A’ schedule property and ‘B’ schedule property which is part of ‘A’ schedule property is in unauthorized occupation of the defendants and granted a decree for declaration of title and possession.

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It is relevant to notice that before the Trial Court, Survey Commissioner is appointed to measure the properties. The Survey Commissioner has submitted the report reporting encroachment. The defendants have filed statement of objection to the said report. The Survey Commissioner is not examined and suit is decreed.

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It is further relevant to notice that the defendants

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to substantiate their claim relating to the title over the property have produced 3 original sale deeds in respect of Sy.No.29. The particulars of the said deeds are as under:

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(i) Sale deed dated 08.03.1928 for 1 acre 30 guntas in Sy.No.29 (Ex.D1)

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(ii) Sale deed dated 16.04.1927 for 1 acre in Sy.No.29 (Ex.D2)

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(iii) Sale deed dated 25.08.1915 for 24 guntas in Sy.No.29 (Ex.D3)

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Purchaser in the said deeds is Basavegowda.

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Basavegowda is said to be grandfather of the defendants. It appears that there is not much of dispute relating to the relationship of the defendants with Basavegowda. The total

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extent of the properties purchased under the aforementioned three sale deeds would come to 3 acres 14 guntas in Sy.No.29. First Appeal filed by the defendants before First Appellate Court was also dismissed concurring with the finding recorded by the Trial Court.

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This Court vide order dated 23.07.2014 while admitting the appeal has framed the following two substantial questions of law:

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(a) Whether in a suit for declaration of title, are entries in the revenue records sufficient to establish ownership of the plaintiffs, when defendants have substantiated acquisition of the property under valid sale deeds Exs.D1 to D3?

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(b) Whether the Appellate Court is justified in rejecting the request of the appellants to tender additional evidence through application under Order XLI Rule 27 CPC?

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It is also relevant to notice that the application is filed by the appellants to tender additional evidence before First Appellate Court by invoking Order XLI Rule 27 of Code of Civil

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Procedure. Along with the said application, appellants intended to produce genealogical tree pertaining to the defendants.

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Learned counsel appearing for the appellants/ defendants would submit that the application to produce genealogical tree by the appellants before First Appellate Court could not have been rejected as the said document is necessary for adjudication of the case on hand. He would urge that the said document is necessary as the Trial Court doubted the relationship of the defendants with the purchaser mentioned in the sale deed, though there was no dispute raised relating to the relationship of the defendants vis-à-vis the purchaser in the sale deeds referred to above. Thus, learned counsel for the defendants would urge that First Appellate Court could not have rejected the said application and the document sought to be produced is necessary to answer the doubt raised by the Trial Court.

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Learned counsel for the appellants would also contend that even without additional document sought to be produced before First Appellate Court, the judgment and decree passed by the Trial Court can be shown to be erroneous with

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reference to the sale deeds marked at Ex.D-1 to D3. It is his contention that the survey number mentioned in one of the sale deeds, i.e., Sy.No.29 is wrongly read as Sy.No.21, though it is nobody’s case that the property purchased is Sy.No.21. Thus, he would contend that the title of the defendants over 3 acres 30 guntas is established and there could not have been a decree for possession in respect of 3 acres 30 guntas which is the ‘B’ schedule property.

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Learned counsel would further submit that objection is filed to the report of the Survey Commissioner. Said report is not marked and said report could not have been read in evidence and if it is read in evidence, it is to be noticed that the report is erroneous as the report does not take into account 3 acres 30 guntas purchased by the defendants’ ancestor under the three registered sale deeds referred to above.

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Learned counsel appearing for the plaintiffs/ respondents would submit that the defendants have admitted the title of the plaintiffs to the extent of 8 acres 32 guntas in Sy.No.29/2. Defendants have not led any evidence to establish their claim in respect of ‘B’ Schedule property and the total

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extent of land available in Sy.No.29/2 is only 11 acres. When 8 acres 16 guntas is admitted to the property of the plaintiffs, the defendants cannot claim right over 3 acres 30 guntas as the claim would go beyond 11 acres of land available in Sy.No.29. Learned counsel would also submit that the property was surveyed on two occasions and both times, Surveyor has reported encroachment and has come to the conclusion that the defendants have encroached the plaintiff’s property.

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It is further urged on behalf of the respondents that the Surveyor appointed by the Trial Court who conducted the survey has also reported encroachment and said report is part of the record and defendants though have filed objection, have not taken steps to cross-examine the Survey Commissioner and both Courts were in justified in referring to the said report. It is also urged that PW.3, the witness examined on behalf of the defendants has also admitted the title of the plaintiffs over the suit schedule property and both Courts were justified in decreeing the suit.

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This Court has considered the contentions raised at the bar and perused the records.

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The defendants have raised a contention that their ancestors owned ‘B’ schedule property. Though there is no specific reference to the title deeds in the written statement, since it is their case that the ancestors owned the property, during evidence they have produced title deeds of Sy.No.29 under which their ancestor claims to have purchased the properties. The execution of the said sale deeds is not in dispute.

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The Trial Court has read one of the sale deeds as the sale deed in respect of Sy.No.21 instead of Sy.No.29. That reading is incorrect as the sale deed would reveal that the sale deed executed is in respect of Sy.No.29 and not Sy.No.21 as recorded by the Trial Court.

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It is also relevant to notice that the plaintiffs have not produced any title deeds relating to the suit schedule property. In the reply notice sent by the defendants, the defendants have admitted that the plaintiffs are the owners to the extent of 8 acres 16 guntas . However, in the written statement, there is no such specific admission relating to the plaintiffs' title. Since the suit is for declaration of title relating to

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immoveable property, merely based on the content of the reply notice one cannot conclude that the title is established.

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Under Section 58 of the Indian Evidence Act, 1872, the Court’s power to insist for a better proof is recognised. The Court in appropriate circumstances can insist for further proof relating to the fact which is said to have been admitted.

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This Court has also noticed from the survey sketch produced before the Trial Court and also the report submitted by the Commissioner appointed by the Trial Court, that the Surveyors have proceeded based on the entries in the record of right when they conducted the survey. There is no reference to three sale deeds said to have been executed in favour of the defendants’ ancestor in respect of Sy.No.29.

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Thus, this Court is of the view that the survey has to be conducted by taking into account three sale deeds in respect of the property bearing Sy.No.29 which are said to have been executed in favour of the defendants’ ancestor.

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After identifying the said properties under the aforementioned three sale deeds, Surveyor has to ascertain as

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to how much portion of the property is in possession of the descendants of the purchaser under the aforementioned sale deeds. Only after measuring the properties with reference to the title deeds and other relevant records, the Surveyor can come to the conclusion as to whether there is any encroachment and if any encroachment, by whom. It appears that the Commissioner has conducted the survey on the premise that the plaintiffs are the owner of 8 acres 16 guntas in Sy.No.29. Again the plaintiffs' ownership has to be ascertained from the title deeds if any, or the long standing mutations or the property records which were in existence prior to the sale deed in the name of the defendants' ancestor.

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By taking all these factors into consideration, there has to be a fresh survey. For this reason, this Court is of the view that the impugned judgment and decree passed by the First Appellate Court have to be set-aside. This Court would have ideally remanded the matter to the Trial Court for fresh consideration based on the additional evidence. However, since the suit is of the year 2004, this Court deems that instead of

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remitting the matter to the Trial Court, it would be appropriate to remit the matter to First Appellate Court.

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Hence, the following:

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ORDER

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(i) Appeal is allowed in part .

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(ii) The judgment and decree dated 01.07.2013 in R.A. No.79/2007 on the file of Senior Civil Judge, Hunsur are set-aside.

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(iii) First Appellate Court shall appoint a Commissioner with a specific direction to measure the suit properties by taking into account all the relevant title deeds placed by the parties and to be produced by the parties before First Appellate Court.

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(v) Plaintiffs are also at liberty to produce revenue records if any, prior to the property purchased by the defendants’ ancestor.

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(vi) First Appellate Court shall also permit the parties to lead additional evidence if they desire.

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(vii) After considering the materials placed on record including the Survey report to be filed by the Court Commissioner pursuant to this

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order, First Appellate Court shall hear the parties on merits and dispose of the appeal in accordance with law.

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(viii) Merely because the impugned judgment and decree of First Appellate Court have been setaside, it should not be construed that the opinion is expressed against the plaintiffs/ respondents or in favour of the defendants/ appellants.

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