H E Sathish Vs Byresh

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.05.2021 PASSED IN R.A.NO.1/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, CHITRADURGA AND ETC.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This second appeal is filed against the concurrent

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finding of both the Courts.

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This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the plaintiffs

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before the Trial Court while seeking the relief of declaration and injunction is that suit schedule property

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originally belonged to Hullur Village Panchayath. But one Byrappa was in possession of the suit schedule property for long period and perfected his title and hence, he is in peaceful possession and enjoyment of the same without any hindrance. After his death, his legal heir Hanumanthappa was in possession and enjoyment of the suit schedule property. After the death of said Hanumanthappa, his wife and son were in possession and enjoyment of the same and katha of the suit schedule property was also transferred to their names jointly. For their family necessity, they sold the property on 04.04.2009 for valuable sale consideration in favour of the plaintiffs and from the date of purchase, the plaintiffs are in possession of the property and hence, they are the absolute owners and hence, the Court has to grant the relief of declaration and injunction in favour of the plaintiffs. The plaintiffs have also pleaded in the plaint that defendant encroached the suit schedule property to an extent of east-west 90 feet and north-south 11 feet

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towards the northern side of the suit schedule property which is shown in the rough sketch as A, B, C, D, E. Hence, the plaintiffs are entitled for the relief of mandatory injunction in respect of the encroached portion as well as declaration and permanent injunction.

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The defendant appeared and filed the written statement contending that the suit itself is not

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maintainable.

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The Trial Court after considering the pleadings of the parties, allowed the parties to lead evidence. In order to prove the case of the plaintiffs, they examined four witness as PW1 to PW4 and got marked the documents at Ex.P1 to P24. On the other hand, the defendant examined the witnesses as DW1 to DW3 and got marked the documents at Ex.D1 to D6. The Trial Court having considered both oral and documentary evidence available on record comes to the conclusion that in order to prove the factum of title is concerned, except producing

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the sale deed at Ex.P2, not placed any documentary proof with regard to the title of the vendor of the plaintiffs. Apart from that when the plaintiffs relies upon the document of Ex.P1 - DCB register extracts, the same is of the year 2012-13 and not the previous document of the sale deed

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of the plaintiffs. Thus, the pleading and evidence not supports the case of the plaintiffs. Hence, answered all the Issues as negative and dismissed the suit of the plaintiffs.

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Being aggrieved by the judgment and decree of he Trial Court, an appeal was preferred in R.A.No.1/2019. The First Appellate Court having considered the grounds which have been urged in the appeal memo, formulated the Points. The First Appellate Court having reassessed both the oral and documentary evidence on record comes to the conclusion that the defendant has disputed the title over the suit schedule property particularly the vendor of the plaintiffs. When such being the case, the burden is on the plaintiffs to establish the right and title of their vendor over the suit schedule property, but the plaintiffs have not

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produced any material to establish that their vendor was having alienable right or title to dispose of the suit property and also comes to the conclusion that when the plaintiffs fail to place it any material on record and in the absence of relevant materials, it cannot be accepted that the plaintiffs’ vendor was having an alienable right over the suit schedule property and hence, confirmed the judgment of the Trial Court by dismissing the appeal. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellants before this Court is that in Ex.P1 though it is mentioned as of the year 2012-13 but below, it is mentioned as 2009 and both the Courts committed an error in considering Ex.P1. The counsel also vehemently contend that Ex.P24 is very clear that subsequent to the purchase of the property, the same was transferred in favour of the plaintiffs and ought to have taken note of

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those documents but both the Courts disbelieved those documents hence, both the Courts are not right in law in recording the finding that Ex.D1 to D6 has been proved though there is no basis for the entries found in the above said documents. Hence, this Court has to admit the appeal and frame substantive question of law.

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Per contra, the counsel appearing for the respondent would vehemently contend that very pleading in paragraph 3 of the plaint is very clear that property originally belongs to Hullur Village Panchayath and no document is placed before the Court to show that the property was granted in favour of vendor of the plaintiffs but only their contention is that they have perfected the title by long possession and even not filed any suit against the Panchayat and only based on the sale deed at Ex.P2, they claim the absolute ownership over the suit schedule property and the said fact was taken note of by the Trial court as well as the First Appellate Court and rightly dismissed the suit.

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Heard the learned counsel appearing for the

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respective parties and also perused of the material on record particularly the averments made in paragraph 3 of the plaint wherein the plaintiffs specifically pleaded that the property belongs to the Hullur Village Panchayath. In order to substantiate that the Hullur Panchayat had allotted the property either to the vendor of the plaintiffs or to their family members, nothing is placed on record except pleading that they were in long possession and mainly relies upon Ex.P1. The counsel for the appellants would vehemently contend that in Ex.P1, mistakenly it is mentioned as 2012-13 and the said document is prior to the sale of the property in favour of the appellants. The said contention cannot be accepted since, the document clearly discloses that the same is of the year 2012-2013. Apart from that document of Ex.P1 will not create any right in favour of the vendor of the plaintiffs unless any grant or any document executed by the Village Panchayath in favour of the vendor. The specific case of the plaintiffs

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that originally, the property was belongs to the Hullur Panchayat. In order to substantiate that Hullur Panchayat allotted or granted the property in favour of the vendor or the plaintiffs or to the family members of the vendor, nothing is placed on record. The Trial Court has taken note

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of the material placed on record particularly, while considering Issue No.1 whether the plaintiffs are entitled for the relief of declaration and comes to the conclusion that Ex.P2 and P3 not substantiate the title of the plaintiffs since the very plaintiffs’ vendor was not having any title. Apart from that First Appellate Court also having considered the case of the plaintiffs in paragraph 24 comes to the conclusion that plaintiffs have not produced any material to establish that their vendor was having alienable right or title to dispose of the suit schedule property in favour of the plaintiffs. Hence, in the absence of any documentary proof with regard to the title of the vendor of the plaintiffs, the question of granting the relief of declaration and consequential relief of injunction does

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