Sri Obalaiah Vs Sri Lakshminarasimhaiah

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 20.9.2012 PASSED IN R.A.NO.25/2008 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, GUBBI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 18.2.2008 PASSED IN OS.NO.198/1997 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, GUBBI.

¶22

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

¶23

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

¶24

ORAL JUDGMENT

¶25

This regular second appeal is filed by the appellant challenging the judgment and decree dated 20.09.2012 passed in R.A. No.25 of 2008 by the learned Senior Civil Judge, Gubbi.

¶26

For convenience, the parties are referred to as per their rankings before the Trial Court. The appellant was the defendant and the respondent was the plaintiff.

¶27

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

¶28

3 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶29

HC-KAR

¶30

The plaintiff filed a suit against the defendant for declaration of title and permanent injunction in respect of the suit schedule properties.

¶31

It is the case of the plaintiff that one Basavaiah had two sons, by name Bylaiah and Rangaiah; Bylaiah had a wife by name Seebamma alias Seebakka. Both of them are no more. They had no issues.

¶32

It is the case of the plaintiff that Rangaiah had a wife by name Narasamma and they had a son by name Obalaiah. The plaintiff is the son of Obalaiah.

¶33

After the death of Bylaiah, the plaintiff's grandfather i.e., Rangaiah succeeded to the properties as the son of Basavaiah by way of succession. He became the absolute owner in possession and enjoyment of the suit schedule properties. It is contended that the defendant is the son of late Sannamma and taking advantage of the fact that the name of the father of the plaintiff (Obalaiah) and of the defendant is same,

¶34

4 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶35

HC-KAR

¶36

the defendant created false documents in respect of the suit schedule properties, by virtue of pavati varasa (succession on death of parents) and managed to get the properties in his name in collusion with the Revenue Authorities and is trying to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties. It is contended that the defendant has no right, title or interest over the suit schedule properties.

¶37

The plaintiff filed an application before the Revenue Authorities for change of khata and pahani in the name of the plaintiff in respect of the suit schedule properties and the same is pending. A cause of action arose for the plaintiff to file a suit for declaration of title and injunction. Hence, prays to decree the suit.

¶38

The defendant filed a written statement admitting that Basavaiah had two sons by name Bylaiah and

¶39

5 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶40

HC-KAR

¶41

Rangaiah. It is denied that both Bylaiah and Rangaiah lived in the joint family. It is contended that Rangaiah was unmarried and hence, the question of succession of the suit properties by Obalaiah does not arise.

¶42

It is contended that the defendant is the son of Sannamma. Since Seebamma had no issues, she brought up Sannamma, i.e., mother of the defendant, from her childhood and she was under the care and custody of Seebamma. After attaining the majority, Sannamma was looking after the welfare of Seebakka alias Seebamma, and the sonin-law of Seebamma was doing coolie work and earned some money. After the death of Bylaiah, Seebakka was in a financial trouble and for the performance of a funeral ceremony of her husband, she decided to sell the properties of her husband, which were succeeded by her. After the demise of her husband-Bylaiah, Seebakka executed a

¶43

6 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶44

HC-KAR

¶45

registered sale deed dated 29.01.1948 and sold three items including Item Nos.1 and 2 of the suit schedule properties for a valuable consideration to defendant's mother-Sannamma and delivered the possession in favour of Sannamma; from the date of

¶46

purchase, Sannamma was in possession and enjoyment of the said two properties of the suit schedule till her death.

¶47

It is contended that Sannamma was cultivating Item No.3 of the suit schedule property and after the death of Seebamma, Sannamma succeeded to the said property. Further, after the death of Sannamma, defendant—being the son of the deceased Sannamma, succeeded to the suit schedule properties and the name of the defendant is appearing in the revenue records and he is paying the land revenue. It is contended that the plaintiff has no right, title or interest over the suit schedule properties. Hence, prays to dismiss the suit.

¶48

7 -

¶49

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶50

HC-KAR

¶51

The Trial Court, based on the rival pleadings of the parties, framed the following issues:

¶52

"1. Whether the plaintiff proves that he is the absolute owner and in lawful possession of suit properties as on the date of the suit?

¶53

Whether the plaintiff proves alleged interference by the defendant?

¶54

Whether the plaintiff is entitled for the reliefs as claimed in the suit?

¶55

What order or decree?"

¶56

The plaintiff, to substantiate his case, examined himself as PW1, and marked 5 documents as Exhibits P1 to P5; In rebuttal, the defendant examined himself as DW1 and marked 17 documents as Exhibits D1 to D17.

¶57

The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in

¶58

8 -

¶59

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶60

HC-KAR

¶61

the negative; and issue No.4 as per the final order. Consequently, the suit of the plaintiff was dismissed vide judgment dated 18.02.2008.

¶62

The plaintiff aggrieved by the dismissal of the suit in O.S. No.198 of 1997, pr eferred an appeal in R.A. No.25 of 2008 on the file of the learned Senior Civil Judge and JMFC, Gubbi.

¶63

The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

¶64

" 1. Whether the judgment and decree passed in O.S. No.198/1997 by the Civil Judge (Jr. Dn.), Gubbi, on 18.02.2008 requires interference at the hands of this Court?

¶65

2. What order? "

¶66

The First Appellate Court, after re-appreciating the

¶67

entire evidence on record, answered point No.1 in

¶68

the affirmative and point No.2: As per the final

¶69

9 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶70

HC-KAR

¶71

order; the appeal was allowed and the judgment and decree passed by the Trial Court was set aside. Consequently, decreed the suit of the plaintiff and declared that the plaintiff is the owner of the suit schedule properties and the defendant or anybody claiming under him are restrained by a decree of permanent injunction from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property.

¶72

The defendant, aggrieved by the judgment and decree passed in R.A. No.25 of 2008, filed this Regular Second Appeal.

¶73

Learned counsel for the defendant submits that the First Appellate Court reversed the judgment and decree passed by the Trial Court only on the ground that the defendant has not produced the original sale deed and it gives a room for doubt regarding the socalled purchase by the mother of the defendant.

¶74

10 -

¶75

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶76

HC-KAR

¶77

He submits that the mother of the defendant has purchased the suit properties under Exhibit D1. The plaintiff has not challenged the registered sale deed executed in favour of the defendant’s mother. In the absence of challenge to Exhibit D1, the plaintiff has no right to seek for a relief of declaration of title and injunction. Hence, the judgment and decree passed by the First Appellate Court is arbitrary and erroneous. Accordingly, prays to allow the appeal.

¶78

Per contra, learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule properties as the said properties were owned and possessed by Basavaiah. He had two sons by name Bylaiah and Rangaiah. Bylaiah died issueless. Rangaiah had a son by name Obalaiah and the plaintiff is the son of said Obalaiah. After the demise of Bylaiah, the plaintiff has succeeded to the suit schedule properties by way of succession.

¶79

11 -

¶80

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶81

HC-KAR

¶82

The defendant has no right, title or interest over the

¶83

suit schedule properties. He also submits that the defendant has not laid any foundation for leading the secondary evidence under Section 65 of the Evidence Act. The First Appellate Court was justified in discarding Exhibit D1 on the ground that the defendant had not produced the original registered sale deed and rightly reversed the judgment and decree passed by the Trial Court and decreed the suit of the plaintiff as prayed for. Hence, on these grounds, prays to dismiss the appeal.

¶84

This Court vide Order dated 10.02.2014 admitted the appeal to consider the following substantial questions of law :

¶85

"Whether the lower appellate Court was justified in not looking in to Ex.D1 to ascertain rights of defendant Obalaiah to the suit schedule property pursuant to the said document?"

¶86

12 - NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶87

HC-KAR

¶88

Reg. Substantial Question of Law :

¶89

The plaintiff to substantiate his case examined himself as PW1. He has deposed that Basavaiah had two sons, namely Bylaiah and Rangaiah. Byalaiah had a wife by name Seebamma and they had no issues. The second son of Basavaiah by name Rangaiah had a son Obalaiah and Obalaiah had married Narasamma and the plaintiff is their son. Hence, it is contended that the plaintiff has succeeded to the suit schedule properties by way of succession and became the absolute owner of the suit schedule properties.

¶90

To prove his case, the plaintiff has produced the documents:

¶91

Exhibits P1 and P2 are the RTC extracts, which disclose that Obalaiah is the owner and in possession of the land bearing Survey No.36/1 and Survey No.44/1 respectively, which stand in the name of Obalaiah.

¶92

13 -

¶93

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶94

HC-KAR

¶95

Exhibit P3 and P4 are the index of land, pertaining to the suit lands;

¶96

Exhibit P5 is the record of rights of the lands bearing different survey numbers.

¶97

PW1 during the cross-examination has admitted that the revenue records pertaining to the suit properties are standing in the name of the defendant.

¶98

In rebuttal, the defendant examined himself as DW1. He has stated that the suit Item Nos.1 and 2 were the properties purchased by his mother-Sannamma during her lifetime, from Sheebamma, and the mother of the defendant was in possession of the suit schedule properties till her death and after her death, the defendant continued in possession of the suit schedule properties and on the basis of the registered sale deed executed by Seebamma in favour of Sannamma, the defendant's mother's name was entered in the revenue records.

¶99

14 -

¶100

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶101

HC-KAR

¶102

To prove that the mother of the defendant has purchased the suit schedule properties, and defence of the defendant, he has produced the document:

¶103

Exhibit D1, a certified copy of the registered sale deed executed on 29.01.1948, which discloses that Seebamma executed a registered sale deed in respect of Item Nos.1 and 2 in favour of the mother of the defendant and delivered the possession;

¶104

Exhibits D2 and D3 are the mutation register extracts which disclose that defendant’s mother’s name was mutated in the revenue records in respect of Item Nos.1 and 2;

¶105

Exhibits D4 to D7 are the RTC extracts of the suit schedule properties;

¶106

Exhibit D8 is the record of rights;

¶107

Exhibit D9 is the index of lands;

¶108

Exhibits D10 to D12 are the RTCs;

¶109

Exhibits D13 to D17 are the tax paid receipts;

¶110

To substantiate the case of the plaintiff that Byalaiah and Rangaiah—the grandfathers of the plaintiff were

¶111

15 -

¶112

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶113

HC-KAR

¶114

in possession of the suit schedule properties earlier, the plaintiff has not produced any revenue records, except Exhibits P3 to P5, which are index of lands.

¶115

Admittedly, the plaintiff has filed a suit for declaration of title based on revenue records. However, the plaintiff has not produced any records to show that the suit schedule properties were possessed by his ancestors. In the absence of the oral and documentary evidence, it cannot be held that the plaintiff is the owner of the suit schedule properties.

¶116

In rebuttal, the defendant has produced Exhibit D1, i.e., certified copy of the registered sale deed dated 29.01.1948. Exhibit D1 is the certified copy of the registered sale deed, which discloses that Seebamma executed a registered sale deed in favour of Sannamma in the year 1948. Based on the registered sale deed, Item Nos.1 and 2 of the suit

¶117

16 -

¶118

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶119

HC-KAR

¶120

scheduled properties were transferred in the name of Sannama i.e., the mother of the defendant under M.R. No.3 of 1947-48 which is marked as Exhibit D2. Sannamma died leaving behind the defendant. After the demise of his mother, the said property was transferred in the name of defendant as per M.R. No.1 of 1991-92 as per Exhibit D3.

¶121

Defendant also produced the RTC extract regarding the suit schedule properties which clearly disclose that the defendant is the owner and in possession of the suit schedule properties and further, from the perusal of the recital of Exhibit D1, it clearly discloses that Seebamma, i.e., the vendor, delivered the possession in favour of Sannamma, i.e., Vendee-the mother of the defendant.

¶122

The said sale deed was executed on 29.01.1948, and as such, the said document is 30 year old document.

¶123

17 -

¶124

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶125

HC-KAR

¶126

The First Appellate Court has failed to draw a

¶127

presumption under Section 90¹ of the Indian Evidence Act, 1872, as Exhibit D1 is 30 year old document.

¶128

The Trial Court has rightly recorded a finding that the plaintiff has failed to prove that he is the absolute owner and in lawful possession of the suit schedule properties as of the date of the suit. On the other hand, the defendant has produced Exhibit D1, the certified copy of the registered sale deed of 1948, which discloses that the mother of the defendant had purchased the suit properties from Seebamma, and on the basis of Exhibit D1, the defendant has proved that his mother was the absolute owner of the suit schedule properties and after her demise, the

¶129

1 90. Presumption as to documents thirty years old. –– Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

¶130

Explanation.–– Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.

¶131

18 -

¶132

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶133

HC-KAR

¶134

defendant has succeeded to the suit schedule properties by way of succession.

¶135

The First Appellate Court has reversed the judgment and decree passed by the Trial Court only on the ground that the mode of acquisition under Exhibit D1 and Exhibit D10, in respect of suit Item No.2 property, are contrary to each other and the original sale deed is not produced by the defendant and that it gave room for a doubt regarding the so-called purchase by the mother of the defendant.

¶136

Admittedly, there is a registered sale deed marked as Exhibit D1 and the said document is marked without any objection. The said aspect was not properly considered by the First Appellate Court and committed an error in reversing the judgment and decree passed by the Trial Court.

¶137

Further, the First Appellate Court has reversed the judgment and decree passed by the Trial Court based

¶138

19 -

¶139

NC: 2025:KHC:50744 RSA No. 2025 of 2013

¶140

HC-KAR

¶141

upon the weakness of the defendant. Thus, the First

¶142

Appellate Court failed to consider the wellestablished principles of law that the plaintiff, who has filed a suit for declaration of title, must establish his case independently and cannot depend on the weakness of the defendant. The said view is supported by the judgment of the Hon'ble Apex Court in the case of Union of India vs. Vasavi Cooperative Housing Society Ltd., reported in AIR 2014 SC 937 .

¶143

The judgment and decree passed by the First Appellate Court is contrary to the exposition of law laid down by the Hon'ble Apex Court in Vasavi Cooperative Housing Society Ltd .

¶144

Thus, the judgment and decree passed by the First Appellate Court is perverse, arbitrary and contrary to the records. In view of the same, the substantial question of law is answered in the affirmative .

¶145