Byrappa Vs M. Paramesh

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 6.9.2013 PASSED IN R.A.NO.7/2011 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 29.10.2010 PASSED IN O.S.NO.191/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN) CHIKMAGALUR.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This appeal is filed by the appellant challenging the judgment and decree dated 06.09.2013 passed in RA No.7/2011 by the learned II Additional District Court, Chikmagalur (‘First Appellate Court’ for short), allowing the appeal against the judgment and decree dated 29.10.2010 passed in OS No.191/2005 by the learned Principal Senior Civil Judge, Chikmagalur (‘Trial Court’ for short), and setting aside the same.

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For convenience, the parties are referred to based on their ranking before the Trial Court. The

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appellant was the plaintiff and the respondent was the defendant.

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Brief facts leading rise to the filing of this appeal are as follows:

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3.1. The plaintiff filed a suit against the defendant for declaration of title and possession. It is the case of the plaintiff that, the plaintiff had purchased the suit schedule property under a registered sale deed dated 12.06.2003 from one Sri. Laxmana. After purchasing the said property, the suit schedule property was transferred in the name of the plaintiff by virtue of a registered sale deed dated 12.06.2003. It is stated that, the suit property was the joint family property of one Sri. Ramashetty, who in turn sold and conveyed the same in favour of one Sri. H.K.Payanna S/o Sri. Kenchashetty under a registered sale dated 17.02.1975. The said Payanna in turn sold the property in favour of one Sri. H.E.Laxmana under a registered sale deed dated 09.04.1984. The said Laxmana had sold the suit schedule property in favour of the

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plaintiff under a registered sale deed dated 12.06.2003. It

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is the case of the plaintiff that, earlier Sy.No.405 was measuring 3 acres 12 guntas, out of which, 1-08 acres of land was sold by the original khata holder Ramashetty and the remaining extent in the said Sy.No. was with the original khata holder. The entire documents pertaining to Sy.No.405 measuring 1-08 acres is in the name of the plaintiff. Suring durast of the suit property, it was revealed that the suit property is in the possession of the defendant. Hence, the plaintiff approached the defendant and requested for delivery of possession. But the same was refused by the defendant. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and possession. Accordingly, prays to decree the suit.

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The defendant filed a written statement denying

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the averments made in the plaint and contented that, Sy.No.405 measuring 3 acres 12 guntas was the property of one Halaga S/o Sidda, the grandfather of the defendant and the said property is the ancestral property of the

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defendant. The defendant and his ancestors are in possession and enjoyment of 1 acre 18 guntas of land in Sy.No.405/1. It is contented that, the alleged sale transactions are fraudulent to cheat the defendant. It is also contented that, the boundaries shown in the plaint

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are incorrect. It is contented that, the suit filed by the plaintiff is barred by time and prays to dismiss the suit.

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The Trial Court, based on the pleadings of the

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parties, framed the following issues:

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(1) Whether plaintiff proves that the boundaries given to the suit schedule property are correct?

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(2) Whether plaintiff proves that he has purchased the suit schedule property from one Laxmana for himself and on behalf of his minor children through Registered Sale deed dt: 12.6.2003 and acquired valid title over the suit property?

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(3) Whether plaintiff is entitled for possession of the suit schedule property ?

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(4) Whether the suit is barred by limitation?

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(5) Whether plaintiff is entitled for reliefs sought for?

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(6) What order or decree?

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The plaintiff, to substantiate his case, examined

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himself as PW-1, examined one witness as PW-2 and marked 6 documents as Exs.P1 to P6. In rebuttal, defendant examined himself as DW-1 and no documents were marked on his behalf.

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After recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, the Trial Court answered issue Nos.1 to 3 and 5 in the affirmative, issue No.4 in the negative, issue No.6 as per the final order. The suit of the plaintiff was decreed and it was declared that the plaintiff is the absolute owner of the suit schedule property and it is also held that, the plaintiff is entitled for possession of the suit schedule property and the defendant was directed to deliver the possession of the suit schedule property to the plaintiff within 6 months from the date of the decree.

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The defendant, aggrieved by the judgment and decree passed in OS No.191/2005, preferred an appeal in RA No.7/2011 on the file of the First Appellate Court.

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The First Appellate Court, after hearing the

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learned counsel for the parties, framed the following points for consideration:

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(1) Whether the plaintiff has proved that he is the absolute owner of the suit schedule property as alleged in the plaint?

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(2) Whether the suit is barred by limitation?

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(3) Whether the plaintiff is entitled for possession of the suit schedule property as prayed?

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(4) Whether the judgment of the trial court calls for interference by this court?

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(5) What order?

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and 3 in the negative, point Nos.2 and 4 in the affirmative, point No.5 as per the final order. The First Appellate Court allowed the appeal and set aside the judgment and decree passed in OS No.191/2005 and consequently, dismissed the suit of the plaintiff.

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The plaintiff, aggrieved by the judgment and decree passed in RA No.7/2011, preferred this Regular Second Appeal.

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Heard the arguments of learned counsel for the plaintiff and learned counsel for the defendant.

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Learned counsel for the plaintiff submits that, the plaintiff is the absolute owner of the suit schedule property, as he had purchased the suit schedule property under the registered sale deed and the name of the plaintiff was included in the revenue records. He submits that, the defendant is in possession of the suit schedule property illegally. He submits that, the plaintiff has produced the title deeds marked as Exs.P1 and P2. He submits that, there is a recital in Ex.P2 that how the vendor had acquired the title. The First Appellate Court, without considering the recital of Ex.P2, has recorded its finding that the plaintiff has not produced the title deeds to show that how the plaintiff's vendor had acquired the title over the suit schedule property. He submits that,

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Ex.P2 is marked and there is no cross-examination in respect of the recital in Ex.P2 regarding to how the plaintiff's vendor had acquired the title. He submits that, the First Appellate Court has reversed the judgment of the Trial Court solely on the ground that the plaintiff has not the produced records to establish that how the plaintiff's vendor had acquired the title over the suit schedule property and also observed and recorded finding that in the absence of the title deeds and revenue records, it cannot be held that the previous vendor Ramashetty had acquired a title over 1 acre 8 guntas of land in Sy.No.405/1P of Aldur Village. He submits that, the First Appellate Court committed an error in reversing the judgment and decree passed by the Trial Court and contrary to the records. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the defendant supported the impugned judgment and contended that, the plaintiff has not produced any records to show that

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how the plaintiff’s vendors had acquired a title over the suit schedule property. In the absence of the title deeds and revenue records of previous vendor Ramashetty , the First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, vide order dated 17.02.2016, admitted the appeal to consider the following substantial question of law:

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Whether the Judgment and decree passed by the Lower Appellate Court in allowing the appeal and setting aside the judgment and decree passed by the trial Court is sustainable in law?

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Reg. Substantial Question of Law:

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The plaintiff, to prove his case, examined himself as PW-1. He has deposed that, the suit schedule property was originally owned and possessed by Ramashetty. Ramashetty sold the suit schedule property in favour of H.K.Payanna under a registered sale deed dated 17.02.1975. The said Payanna in turn sold and

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conveyed the said property in favour of H.E.Laxmana under a registered sale deed dated 09.04.1984. The said Laxmana had sold the said suit property in favour of the plaintiff under a registered sale deed dated 12.06.2003. On the basis of the registered sale deed dated 12.06.2003, the property was transferred in the name of the plaintiff. The plaintiff became the absolute owner of the suit schedule property by virtue of a registered sale deed dated 12.06.2003. It was revealed that actually, the property which was sold in favour of the plaintiff was not in possession of the plaintiff, but the same was in possession of the defendant. The plaintiff requested the defendant to hand over the vacant possession of the suit schedule property. The defendant denied to vacate and hand over the suit schedule property.

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The plaintiff, to prove that he is the absolute owner of the suit schedule property, produced the registered sale deed marked as Ex.P1 which discloses that the plaintiff’s vendor Laxmana had sold the suit schedule

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property in favour of the plaintiff under a registered sale deed dated 12.06.2003. Exs.P2 and P3 are the registered sale deeds executed in favour of plaintiff’s vendor. The said documents came into existence in the years 1975, 1984 and 2003. Ex.P3 is the sale deed executed by Ramashetty in favour of H.K.Payanna, who sold the land bearing Sy.No.405 with the boundaries mentioned in Ex.P3. Ex.P2 is the registered sale deed, which discloses that Payanna sold the said land in favour of H.E.Laxmana. Further, the plaintiff also examined one witness as PW-2, who has deposed that, the plaintiff had purchased Sy.No.405/1P measuring 1 acre 08 guntas in 2003 from one Laxmana and the said property earlier belonged to Ramashetty, who in turn sold in favour of H.K.Payanna and he knows the transactions which held between the plaintiff and said Laxmana. He deposed that, the plaintiff had purchased the said property under a registered sale deed for a valid consideration, but the plaintiff is not in possession of the suit schedule property. From the perusal

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of evidence of PWs-1 and 2, nothing has been elicited from

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the mouth of these witnesses to disbelieve their evidence.

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In rebuttal, the defendant examined himself as DW-1, who reiterated the written statement averments in the examination-in-chief and contented that, the defendant is in possession of the suit schedule property, and no documents were marked on behalf of the defendant.

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From the perusal of the entire evidence on record, it is an undisputed fact that, Sy.No.405 was owned and possessed by one Ramashetty, who in turn sold the portion of land measuring 1 acre 08 guntas in favour of H.K.Payanna under the registered sale deed dated 17.02.1975 and the said Payanna sold the suit schedule property in favour of H.E.Laxmana under the registered sale deed dated 09.04.1984 and the said Laxmana has sold the suit schedule property in favour of the plaintiff under a registered sale deed dated 12.06.2003. The defendant contended that, the defendant is not claiming

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any ownership over the land bearing Sy.No.405/1P measuring 1 acre 8 guntas of land. The plaintiff has produced the title deeds marked as Exs.P1 to P3. In Ex.P2, there is a recital that how the previous vendor had acquired the title of the schedule property. It is stated that, the previous vendor had acquired title under the registered document dated 17.02.1975 i.e., as per Ex.P3 that was executed in 1975. The First Appellate Court, without considering the contents of Ex.P3 which came into existence during an undisputed period, i.e., in 1975, has recorded a finding that the plaintiff has failed to prove that the previous vendor Ramashetty had title over 1 acre 8 guntas of land in Sy.No.405/1P of Aldur Village. The First Appellate Court, without considering the contents of documents Exs.P1 to P3, has reversed the judgment and decree passed by the Trial Court. The plaintiff has pleaded in the plaint that, the suit schedule property was possessed by Ramashetty. The suit schedule property is the ancestral property of Ramashetty and the same has

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been incorporated in the registered sale deed, executed in 1975. Without looking into the recitals in Ex.P3, the First Appellate Court committed an error in recording its finding that the previous vendors of the property have not taken any action to prove their title over the suit schedule property.

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The defendant has not disputed the title of Ramashetty in the written statement. The defendant has taken a defence in the written statement that the sale transactions are fraudulent. When the defendant has taken a defence that the sale transactions are fraudulent, the burden is on the defendant to prove that the sale transactions are fraudulent. Admittedly, except the oral testimony of DW-1, the defendant has not produced any records to show that the said sale transactions are fraudulent. Admittedly, the first sale deed was executed on 17.02.1975, the second sale deed was executed on 09.04.1984 and the third sale deed was executed on 12.06.2003, and the suit was filed in 2005. Thus, the sale

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dated 17.02.1975 is the 30 years old transaction, the said sale deed is 30 years old document. The First Appellate Court, without considering the said aspect, has committed an error in reversing the judgment and decree passed by the Trial Court. Thus, the impugned judgment passed by the First Appellate Court is contrary to Exs.P1 to P3. Hence, the judgment and decree passed by the First Appellate Court is arbitrary, erroneous and perverse.

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