Kodavathi Gramapanchayathi Vs Smt Shanthamma

SRI RAVI S/O NOT KNONW TO THE APPELLANT AGED ABOUT 40 YEARS BILL COLLECTOR GRAMA PANCHAYATHI OFFICE KODAVATHI HULIYURDURGA HOBLI KUNIGAL TALUK TUMKUR DISTRICT-572123

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CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560001

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…RESPONDENTS

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(BY SRI. M RAJAKUMAR ADV. FOR R1, SRI. M.NAGESH, ADV. FOR R2, R3 - SERVED, SRI. B.J.ESHWARAPPA, AGA FOR R4)

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RSA FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 23.7.2013 PASSED IN R.A.NO.19/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KUNIGAL, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 3.3.2011 PASSED IN OS.NO.23/2007 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC., KUNIGAL.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: 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 appellant challenging the judgment and decree dated 23.07.2013 passed in R.A.No.19/2011 by the learned Civil Judge, (Sr. Dvn.), JMFC, Kunigal.

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For convenience, the parties are referred to,

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based on their rankings before the trial Court. The appellant was defendant No.2, respondent No.1 is the plaintiff, respondent No.2 was defendant No.1, and respondent Nos.3 and 4 were defendant Nos.3 and 4.

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

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The plaintiff filed a suit against the defendants for the relief of declaration of title and perpetual injunction. It

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is the case of the plaintiff that suit schedule property originally belongs to defendant No.1, who sold the said property in favour of the plaintiff under a registered sale deed dated 25.09.2000. Since from the date of purchase, the plaintiff is in possession and enjoyment of the suit schedule property. It is contented that the name of the plaintiff is entered in the panchayath records and he is paying the property tax. It is contented that the plaintiff has put up a hut and residing in the said hut along with his family members. It is contented that the defendants have no where concern to the suit schedule property, tried to disposes the plaintiff from the suit schedule property, denying the title of the plaintiff. The plaintiff filed a suit in O.S.No.213/2001, which was dismissed on technical ground on 30.06.2006. Thus, the plaintiff filed a suit for declaration of title and injunction.

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3.1. Defendant No.1 filed a written statement

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admitting the case of the plaintiff except denying that

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defendant Nos.2 and 3 interfered with her possession and

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prays to decree the suit.

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3.2. Defendant Nos.2 and 3 filed their written

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statement denying the averments made in the plaint and it is also denied that the plaintiff is the absolute owner and in possession of the suit schedule property. It is contended that the plaintiff is not in possession and enjoyment of the suit schedule property. It is contended that the instant suit filed by the plaintiff is not maintainable under Order II Rule 2 of the CPC. It is also contended that defendant No.1 has no right, title or interest over the suit schedule property and sold the same in favour of the plaintiff, without title. Hence, the plaintiff has not acquired any right, title or interest over the suit schedule property under a registered sale deed. There is no cause of action to file the suit. 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 the plaintiff proves she is the absolute owner of the suit schedule property?

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2) Whether the plaintiff proves he is in actual and lawful possession of the suit schedule property as on the date of the suit?

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3) Whether the plaintiff proves that the defendants are causing interference as alleged in the plaint?

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4) Whether the plaintiff is entitled to the relief sought for?

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5) What order or decree?

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3.4. The plaintiff, to substantiate her case, she

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examined herself as PW.1, examined four witnesses as PW.2 to PW.5, and marked 06 documents as Exs.P1 to P6. In rebuttal, ddefendant No.1 examined herself as DW.1, and the Secretary of Grama Panchayath was examined as DW.2 and marked one document as Ex.D1.

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3.5. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the

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verbal and documentary evidence, answered issue Nos.1, 2 and 4 in the negative, issue No.3 as does not arise for consideration and issue No.5 as per the final order. The suit of the plaintiff was dismissed with costs vide judgment dated 03.03.2011.

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3.6. The plaintiff, aggrieved by the judgment and

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decree passed in O.S.No.23/2007, preferred an appeal in R.A.No.19/2011 on the file of the learned Civil Judge, (Sr. Dvn.), JMFC, Kunigal.

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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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PÉ¼À £ÁåAiÀiÁ®AiÀÄªÀÅ N.J¸ï.23-2007gÀ°è ªÀiÁrzÀAvÀºÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæAiÀÄÄ PÁ£ÀÆ£ÀÄ ºÁUÀÆ «zÁåªÀiÁ£ÀUÀ¼À jÃvÁå ¸Àj EgÀÄªÀÅ¢®èªÉAzÀÄ C¦Ã®ÄzÁgÀgÀÄ gÀÄdÄªÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

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K£ÀÄ DzÉÃ±À?

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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 No.1 in the affirmative and point No.2 as per the final order. The First Appellate Court allowed the appeal and set aside the judgment and decree passed in O.S.No.23/2007 and consequently, decree the suit of the plaintiff and declared that the plaintiff is the absolute owner and in possession of the suit schedule property and restrained the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.

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3.9. Defendant No.2, aggrieved by the judgment

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and decree passed in R.A.No.19/2011, filed this Regular Second Appeal.

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This Court, on 04.07.2014, admitted the appeal

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to consider the following substantial questions of law:

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1) Whether the first Appellate Court is justified in discarding the document Ex.P.1?

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2) Whether the first Appellate Court is justified in allowing the appeal though the plaintiff failed to prove the title of her vendor and conveyance of title and possession to her over the suit schedule property?

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Heard the arguments of the learned counsel for

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defendant No.2 and also the learned counsel for the plaintiff.

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Learned counsel for defendant No.2 submits

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that the plaintiff has filed a suit for declaration of title on the basis of a registered sale deed executed by defendant No.1. He submits that defendant No.1 had no right, title or interest over the suit schedule property and she had no right to execute the registered sale deed in favour of the plaintiff. He submits that the plaintiff had not acquired any right, title or interest under the said registered sale deed. He also submits that the plaintiff has not produced any records to show that the vendor had a title, to sell the suit

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schedule property in favour of the plaintiff. The said aspect

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was not considered by the First Appellate Court and committed an error in reversing the judgment and decree passed by the trial Court. He also submits that the plaintiff has failed to prove the title of the vendor and possession over the suit property. He submits that the impugned judgment passed by the First Appellate Court is arbitrary, erroneous and perverse. Hence, on these grounds, he prays allow the appeal.

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7. Per contra , learned counsel for the plaintiff

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submits that defendant No.1 was the absolute owner of the suit schedule property. She acquired the said property from the Panchayath, wherein the Panchayath has passed the resolution. In support of the said contention, he submits that the plaintiff has filed an application under Order XLI Rule 27 of the CPC for production of additional evidence to show that the Panchayath has passed the resolution allotting the suit schedule property in favour of

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defendant No.1. He submits that defendant No.1 was the absolute owner of the suit schedule property and she sold the same in favour of the plaintiff under the registered sale deed. Thus, she became the owner of the suit schedule property and she is in possession of the suit schedule property since from the date of purchase. The First Appellate Court has rightly

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re-appreciated the evidence on record and decreed the suit. There is no error committed by the First Appellate Court in decreeing the suit. The judgment and decree passed by the First Appellate Court is just and proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal and allow I.A.No.1/2016.

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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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9. Reg. Substantial Question of Law

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Nos.1 & 2 : Substantial question of law Nos.1 and 2 are interlinked with each other and are taken together for common discussion to avoid the repetition of facts.

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The plaintiff, in order to prove her case, examined herself as PW.1. She has deposed that defendant No.1 was the absolute owner of the suit schedule property and she sold the suit schedule property under a registered sale deed dated 25.09.2000. To prove that she is absolute owner of the suit schedule property, plaintiff produced the original sale deed, marked as Ex.P1, which discloses that defendant No.1 sold the suit schedule property in favour of the plaintiff, Ex.P2 is the license which discloses that the plaintiff has obtained the license for construction of a building, Ex.P3 is the MR copy, Ex.P4 is the judgment passed in O.S.No.213/2001, wherein the plaintiff filed a suit against the defendants for permanent injunction. The said suit was dismissed against the

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defendants. After the dismissal of suit, the plaintiff got issued a legal notice marked as Ex.P5 and Ex.P6 is the postal receipt. The plaintiff, to prove the ownership or to prove the possession of the suit schedule property, examined four witnesses as PW.2 to PW.5, who have deposed that defendant No.1 was the absolute owner of the suit schedule property. She sold the said suit schedule property in favour of the plaintiff under a registered sale deed and the plaintiff has constructed the house and residing along with the family members.

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In rebuttal, defendant No.1 was examined as DW.1, who supported the case of the plaintiff. The Secretary of defendant No.2 was examined as DW.2, who has deposed that defendant No.1 had no right, title or interest over the suit schedule property and the sale deed alleged to have been executed by defendant No.1 in favour of the plaintiff is void and also contended that the plaintiff is not in possession of the suit schedule property

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and to show that the suit schedule property is owned and possessed by defendant No.2, produced the Panchayath Uttar, marked as Ex.D1.

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From the perusal of the entire pleadings and evidence on record, defendant No.2 has seriously disputed the title of defendant No.1 over the suit schedule property. Though defendant No.1 is the party, has supported the case of the plaintiff, but defendant No.1 has not produced any records to show that how defendant No.1 had acquired the suit schedule property. In the absence of the title deed of defendant No.1, the sale deed executed by defendant No.1 in favour of the plaintiff has no sanctity and the plaintiff had not acquired any right, title or interest over the suit schedule property. Admittedly, the suit is one for declaration of title. The plaintiff except producing the registered sale deed marked as Ex.P1 executed by defendant No.1 in favour of the plaintiff, has not produced the title deeds of defendant No.1. The trial

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Court has rightly dismissed the suit holding that there is a doubt regarding the vendor's title over the suit schedule property and the right has not been passed in favour of the plaintiff.

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Further, the trial Court has placed reliance on the judgment of this Court in the case of T.L. NAGENDRA

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BABU VS MANOHAR RAO PAWAR reported in ILR 2005 KAR

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884 . The First Appellate Court without considering the said aspect decreed the suit of the plaintiff and declared that the plaintiff is the absolute owner of the suit schedule property. The First Appellate Court did not consider that the plaintiff had not produced any records to show that how the defendant No.1 had acquired the suit schedule property. The plaintiff without verifying the title of defendant No.1 had purchased the suit schedule property. The plaintiff has not acquired any title by virtue of Ex.P1. Thus, the First Appellate Court has committed an error in reversing the judgment and decree passed by the trial

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Court. The judgment and decree passed by the First Appellate Court is arbitrarily, erroneous and contrary to the records. Thus, in view of the above discussion, I answer question of law Nos.1 and 2 in the negative.

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Respondent No.1 filed an application under

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Order XLI Rule 27 of CPC seeking for production of additional evidence.

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14.1. In support of an application, respondent No.1

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filed an affidavit stating that respondent No.1 has filed a suit for declaration and permanent injunction. The said suit was dismissed by the trial Court and the First Appellate Court has reversed the judgment and decree passed by the trial Court and consequently, decreed the suit of respondent No.1. It is contented that respondent No.1 obtained the certified copy of the proposed documents of the Resolution dated 18.01.2000, Demand register during 1993-1995 and House Demand Register in

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the year 2012-13. It is also contended that the proposed documents were handed over to the counsel who was conducting the case before the First Appellate Court, but unfortunately could not produced in R.A.No.19/2011.

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Hence, on these grounds, prays to allow the application.

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14.2. Admittedly, the suit was filed in the year 2007. Though defendant No.1 is a party to the suit, defendant No.1 has not produced any records as observed above in substantial question of law Nos.1 and 2 that defendant No.1 has not produced any records to show that how she had acquired the suit schedule property. The plaintiff has produced the documents. From the perusal of the said documents, the plaintiff has not produced any records to show how defendant No.1 acquired the suit schedule property. Though the said documents is of the year 2012 and 2013, the said documents are public documents. The said documents were available during the pendency of the suit. The plaintiff had not made any

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attempt to produce the said documents either before the

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trial Court or before the First Appellate Court. The application for production of additional documents cannot be entertained as a matter of right in view of the proposition of law laid down by the Hon'ble Apex Court in

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the case of N.KAMALAM (DEAD) AND ANOTHER VS. AYYASAMY AND ANOTHER reported in (2001) 7 SCC 503. Considering the proposition of law laid down by the Hon'ble Apex Court in the case of N.KAMALAM (Supra), I do not find any grounds to entertain I.A.No.1/2016. According, I.A.No.1/2016 is liable to be rejected.

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