Shri. N. Krishnappa Vs Shri Ramachandrappa

RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 20.10.2012 PASSED IN R.A.NO.9/2009 ON THE FILE OF DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPUR, ALLOWING THE APPEAL AND DISMISSING THE JUDGEMENT AND DECREE DTD 11.12.2008 PASSED IN OS.NO.79/1995 ON THE FILE OF CIVIL JUDGE (SR.DN.) AND JMFC, CHINTHAMANI.

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THIS APPEAL, COMING ON FOR 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 Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 20.10.2012 passed in R.A.No.9/2009 by the learned District Judge at Chickkaballapur.

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For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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

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The plaintiffs filed a suit against the defendants for a declaration to declare that the plaintiffs are the absolute owners of the suit schedule property and for a perpetual injunction restraining the defendants from interfering with

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a peaceful possession and enjoyment of the suit schedule

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property.

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3.1. The suit schedule property is the ancestral and joint family property of the plaintiffs. It is contended that the property stood in the name of Narayanappa i.e., the father of the plaintiffs and the said Narayanappa and the plaintiffs constituted a joint Hindu family and the said Narayanappa was originally a resident of Sidlaghatta, owned several properties, and subsequently, he shifted his residence to Boodagere Village of Devanahalli Taluk about 20 years back. The plaintiffs and their father continued in possession of the suit schedule property and for that purpose the plaintiffs used to visit Sidlaghatta frequently depending upon the circumstances. The plaintiffs' father passed away on 02.08.1989 leaving behind the plaintiffs' as his legal heirs. It is contended that after the demise of Narayanappa, the plaintiffs succeeded to the suit schedule property, and became the absolute owners of the suit schedule property. It is contended that the defendants are

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strangers to the family of the plaintiffs. About 2 years ago, defendant No.1 had approached the plaintiffs requesting to sell the suit schedule property in his favour, however the plaintiffs refused to sell the property to him. Defendant No.1 threatened the plaintiffs with dire consequences. Thereafter, when the plaintiffs visited Sidlaghatta, they learnt that defendant Nos.2 and 3 claims to have purchased the suit schedule property from defendant No.1. The plaintiffs made an enquiry and found that defendant No.1 had illegally, and unlawfully executed a registered side deed in favour of defendant Nos.2 and 3 on 17.12.1994 regarding the suit schedule property as if he is the GPA holder of the plaintiffs' father Narayanappa. It is contended that Narayanappa never executed any GPA in favour of defendant No.1 at any point of time. It is contended that Narayanappa died on 02.08.1989 and the defendant No.1 fabricated the general power of attorney dated 26.03.1994 by impersonating the deceased Narayanappa. Defendant No.1 had no right to execute a registered sale deed in favour of defendant Nos.2 and 3 on

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17.12.1994. Defendant Nos.2 and 3 did not acquire any right, title or interest under the registered sale deed dated 17.12.1994 over the suit schedule property. It is contended that the defendants have denied the title of the plaintiffs over the suit schedule property, and made an attempt to trespass into the suit schedule property. The plaintiffs requested the defendants not to interfere with the peaceful possession and enjoyment of the suit schedule property, however the defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration of title and for a permanent injunction. Accordingly, prays to decree the suit.

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3.2. The defendants filed a written statement denying the averments made in the plaint and also denied that the plaintiffs are the absolute owners and in possession of the suit's scheduled property. It is contended that the suit schedule property originally belonged to B.Narayanappa. Narayanappa is not the father

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of the plaintiffs. The plaintiffs are 'Thigalas' by caste and

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the name of Narayanappa S/o Byrappa shown in the revenue records is "Golla' by caste and is not the father of the plaintiffs and not related to him. The plaintiffs' father has nothing to do with the suit schedule property, and they are not the residents of Sidlaghatta. They are strangers to the suit schedule property. The adjacent landowner colluded with the plaintiffs and filed the present suit to knock off the suit property. It is contended that the adjacent landowner, who is inimical towards the defendants, instigated the plaintiffs to file the false suit. At the instance of the adjoining owner, the plaintiffs have filed a suit in O.S.No.309/1995. The said suit was dismissed on merit vide judgment dated 20.11.1995. It is contended that the original owner of the suit schedule property, Narayanappa, was not the father of the plaintiffs. He executed an agreement of sale dated 26.03.1994 agreeing to sell the suit schedule property for a valuable consideration of Rs.85,000/-, and he has received the entire sale consideration amount. Defendant

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No.1 purchased the same from the original owner. He had executed the general power of attorney in favour of defendant No.1 on very same day after receiving the entire sale consideration amount. Defendant No.1, based on the general power of attorney executed by the original landowner i.e. Narayanappa, executed a registered sale deed in favour of defendant Nos.2 and 3 on 17.12.1994 for consideration of Rs.80,000/-. Defendant No.1 delivered the possession of the suit schedule property to defendant Nos.2 and 3. It is contended that defendant Nos.2 and 3 are in possession and enjoyment over the suit schedule property. It is also contended that defendant Nos.2 and 3 have sold the suit property defendant No.5 for a consideration of Rs.90,000/- under a registered sale deed dated 13.09.1995. The revenue records stands in the name of defendant No.5. It is also contended that the suit filed by the plaintiffs is not maintainable. Hence, prays to dismiss the suit.

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3.3. The Trial Court, based on the above said

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pleadings, framed the following issues:

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1) Whether plaintiffs proves that the suit schedule properties are their ancestral properties and they succeeded to the said properties after death of their father Narayanappa and they are the owners of the said properties?

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2) Whether plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule properties on the date of suit?

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3) Whether defendants prove that suit schedule land belonged to one Narayanappa son of Byrappa, Golla by caste and the said Narayanappa is not the father of plaintiffs?

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4) Whether plaintiffs prove that 1^st defendant illegally and unlawfully executed the sale deed in favour of defendant No.2 and 3 on 17.12.1994?

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5) Whether plaintiffs prove that defendant No.1 concocted and fabricated the power of attorney dated 26.03.1994 as contended in the written statement?

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6) Whether defendant No.5 proves that the schedule property was purchased under registered sale deed dated 13.09.1995?

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7) Whether defendants prove that suit is bad for mis-joinder of unnecessary parties?

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8) Whether plaintiffs prove the alleged interference caused by the defendants?

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9) Whether plaintiffs are entitle for declaration and permanent injunction as prayed in the plaint?

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10) What order or decree?

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3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined three witnesses as PW.2 to PW.4, and marked 37 documents as Exs.P1 to P37. Conversely, defendant No.5 was examined as DW.1 and marked 22 documents as Exs.D1 to D22.

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3.5. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1, 2, 4, 5, 8 and 9 in the affirmative, issue Nos.3 and 7 in the negative, issue No.6 do not survive for consideration, and issue No.10 as per the final order. The suit of the plaintiffs was decreed with costs vide judgment dated 11.12.2008 and it was declared that the plaintiffs are the absolute owners of the suit schedule property, and the defendants

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were restrained permanently from interfering with the suit schedule property.

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3.6. Defendant Nos.4 and 5, aggrieved by the

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judgment and decree passed in O.S.No.79/1995 preferred an appeal in R.A.No.9/2009 on the file of the Learned District Judge, Chickkaballapur.

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3.7. 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 appellants have made out a case under Order 41 Rule 27 of CPC as pleaded under I.A.III & IV respectively?

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2) Whether respondents/plaintiffs prove their title to the plaint schedule property by way of inheritance from their father?

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3) Whether respondents/plaintiffs prove their lawful possession over the plaint schedule property?

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4) Whether appellants 1 and 2 prove that one Narayanappa son of Byrappa, Golla by caste who was the real owner of the suit schedule property, but not the father of respondents?

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5) Whether respondents 1 and 2 prove that 1^st defendant illegally executed sale deed in favour of defendants 1 and 2 on 17.12.1994?

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6) Whether respondents 1 and 2 further prove that 1^st defendant got concocted and fabricated the General Power of Attorney, dated 26.03.1994?

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7) Whether appellant No.2/defendant No.5 proves that she has got a good title for plaint schedule property under registered sale deed dated 13.09.1995?

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8) Whether respondent 1 and 2 prove the alleged interference caused by the defendants?

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9) Whether respondents 1 and 2 are entitled for declaration of title and permanent injunction for suit property?

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10) Whether the judgment and decree of the trial Court decreeing the suit for declaration and permanent injunction needs any interference?

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11) What order or order?

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3.8. The First Appellate Court, on hearing the parties

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and after re-appreciating the verbal and documentary evidence, answered point Nos.1 to 9 in the negative, point No.10 in the affirmative and point No.11 as per the final order. The First Appellate Court allowed the appeal and set

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aside the judgment and decree passed in O.S.No.79/1995 and consequently, dismissed the suit of the plaintiffs vide its judgement dated 20.10.2012.

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3.9. The plaintiffs, aggrieved by the judgment and decree passed in R.A.No.9/2009, filed this Regular Second Appeal.

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This Court, on 05.07.2019, admitted the appeal to consider the following substantial question of law:

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“When the trial Court decreed the suit of the appellants herein granting the relief of declaration and injunction on appreciation of the material placed on record, whether the first Appellate Court was justified in reversing the said judgment and decree by dismissing the suit instituted by the appellants herein and in doing so, did not assign proper and valid reasons to over-come the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?"

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Heard the arguments of the learned counsel for

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the plaintiffs, and also the learned counsel for the defendants.

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Learned counsel for the plaintiffs submit that

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originally the suit schedule property was purchased by the grandfather, and he died leaving behind the father of the plaintiffs i.e. Narayanappa. Narayanappa sold the portion of the suit schedule property in favour of Bayamma. He submits that the remaining portion, i.e., 19 guntas in respect of which the plaintiffs, are the owners and in possession of the suit schedule property. To prove that the plaintiffs are the owners and in possession, they examined three witnesses as PW.2 to PW.4. He submits that the First Appellate Court has not adequately re-appreciated the entire evidence on record and committed an error in dismissing the suit. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the defendants submits that the plaintiffs have filed a suit for declaration of title based on the revenue records. He also submits that the plaintiffs have not produced the title deeds to prove

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their ownership over the suit schedule property. He submits that the revenue records are not title deeds. He also submit that Narayanappa is not the original owner of the suit schedule property and is not related to the plaintiffs and the said Narayanappa is not the father of the plaintiffs. Narayanappa is a stranger to the family of the plaintiffs. He submits that the First Appellate Court, considering the entire evidence on record, has rightly passed the impugned judgment. He also submits that the trial Court has decreed the suit based on the weakness of the defendants.

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To buttress his arguments, he has placed a reliance on the judgment of the Hon'ble Apex Court in the case of JAGDISH PRASAD PATIL (DEAD) THROUGH LEGAL. REPRESENTATIVES & OTHERS Vs. SHIVNATH & OTHERS reported in (2019) 6 SCC 82 . He also submits that a suit for a declaration of title cannot be decreed based on the revenue records, and the revenue records are not the proof of title. He also submits that the First Appellate

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Court has properly reappreciated the entire evidence on record. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records, and considered the

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submissions of the learned counsel for the parties.

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10. Reg. Substantial Question of Law: The

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plaintiffs filed a suit for a declaration to declare that the plaintiffs are the absolute owners in possession of the suit schedule property. It is the case of the plaintiffs that their grandfather had purchased the suit schedule property under the registered sale deed, and he died, leaving behind the father of the plaintiffs, i.e., Narayanappa, as his legal heir, and he succeeded to the suit schedule property. During his lifetime, he sold a portion of the suit schedule property in favour of a third party. The remaining extent of land was in the possession of Narayanappa. After his demise, the plaintiffs succeeded to the suit schedule property, and they continued in possession of the suit

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schedule property. When the plaintiffs visited Sidlaghatta they learnt that defendant No.1 had created a general power of attorney alleged to have been executed by the late Narayanappa in favour of defendant No.1. Based on the alleged general power of attorney, defendant No.1 sold the suit schedule property in favour of defendant Nos.2 and 3. It is contended that Narayanappa never executed the general power of attorney in favour of defendant No.1. The said general power of attorney is a concocted and fabricated document. To prove that the plaintiffs are the absolute owners of the suit schedule property, plaintiff No.1 was examined as PW.1 and he reiterated the plaint averments in the examination-in-chief and they produced the documents marked as Exs.P1 to P37. The plaintiffs also examined three witnesses to prove their possession of the plaintiffs over the suit schedule property.

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In rebuttal, defendant No.5 was examined as DW.1. She reiterated the written statement averments in the examination-in-chief and in support of his defence

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produced the documents at Exs.D1 to D27 and the defendants have specifically denied in the written statement as well as in the examination-in-chief that the deceased Narayanappa is related to the plaintiffs' family and that he is a stranger. The plaintiffs, to prove the relationship with the deceased Narayanappa, have not examined any witnesses, i.e., to establish that they are the children of Narayanappa. The original landowner, Narayanappa, has nothing to do with the family of the plaintiffs. It is also contended that the original landowner agreed to sell the suit Schedule property in favour of defendant No.1 for consideration of Rs.85,000/-. The original landowner, Narayanappa, could not execute a registered sale deed, however he had executed a general power of attorney in favour of defendant No.1. Defendant No.1 based on the general power of attorney, executed a registered sale deed in favour of defendant Nos.2 and 3. Thereafter, defendant Nos.2 and 3 have executed a registered sale deed in favour of defendant No5 as per Ex.D1. The original registered sale deed is marked as

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Ex.D1 (certified copy of the sale deed is marked as Ex.D22).

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From the perusal of the entire records, it is evident that the plaintiffs filed a suit for a declaration of title. In fact, in support of the plaintiffs' contention, the plaintiffs have not produced any title deeds. The plaintiffs are relying upon the revenue records, and seeking a relief of a declaration of title. It is settled law that the revenue records are not the title deeds as held by the Hon'ble Apex Court has consistently held that revenue records are not title deeds and cannot be used to establish ownership, meaning a declaration of title cannot be granted based on them. The revenue entries serve a fiscal purpose of land revenue collection, not to determine or extinguish title. Therefore, title can only be proved through proper legal documents like sale deeds, Wills or Court decrees and a party must present strong independent evidence is a title dispute.

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Admittedly, in the instant case, the plaintiffs have not produced any title deeds to show that they are the absolute owners of the suit schedule property. The trial Court has decreed the suit of the plaintiffs considering the weakness of the defendants. It is settled law that a plaintiff must succeed on the strength of their own case and evidence not on the weakness or deficiencies of the defendants. The said proposition of law is supported by the judgment of the Hon'ble Apex Court in the case of JAGDISH PRASAD PATIL (Supra), wherein the Hon'ble Apex Court has held in para No.41 which reads as follows:

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41. In the suit for declaration for title and possession, the plaintiffs-respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants-appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration. The plaintiffs-respondents have neither produced the title document i.e. patta-lease which the plaintiffsrespondents are relying upon nor proved their right by adducing any other evidence. As noted above, the revenue entries relied on by them are also held to be not genuine. In any event, revenue entries for few Khataunis are not proof of title; but are mere statements for revenue purpose. They cannot confer any right or title on the party relying on them for proving their title. Observing that in a suit for declaration of title, the plaintiffs-respondents are to succeed only on the strength of their own title

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irrespective of whether the defendants-appellants have proved their case or not, in Union of India and others v. Vasavi Co-operative Housing Society Limited and others (2014) 2 SCC 269, it was held as under:-

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"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff."

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As observed above, admittedly, in the instant case, the plaintiffs have not produced the title documents to show that their grandfather had purchased the suit schedule property, and after his demise, the plaintiffs' father had succeeded to the suit schedule property. In the absence of a title deeds, the suit for declaration of title is not maintainable. The First Appellate Court has reappreciated the entire evidence on record, i.e., the evidence of PW.1 to PW.4 and DW.1, and all the documents produced by the parties to the suit, and has rightly held that the plaintiffs have failed to prove their ownership and possession over the suit schedule property, and rightly reversed the judgment and decree passed by

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the trial Court. The First Appellate Court has assigned the valid reasons to overcome the findings of the trial Court, and the judgment and decree passed by the First Appellate

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Court is in compliance with Order XLI Rule 31 of the CPC.

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As observed above, the plaintiffs have failed to produce the title deeds to prove their title over the suit schedule property and the plaintiffs are not entitled to the relief of a declaration of title. I do not find any error in the impugned judgment. In view of the above discussion, I answer a substantial question of law in the affirmative.

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