G.T.Bheemaiah Sharma Vs Rajeevi

(BY SRI. H R ANITHA FOR R1, R2 & R4., ADVOCATE SRI. C G SHANMUKHAPPA, ADVOCATE FOR C/R4) (VIDE ORDER DATED 22.06.2016, R-3 IS DIED HENCE R1,R2,R4 ARE TREATED AS LEGAL REPRESENTATIVES OF R3)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 5.11.2012 PASSED IN R.A.NO.36/2009 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 3.6.2009

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PASSED IN OS.NO.211/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) SAGAR.

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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 appellant challenging the judgment and decree dated 05.11.2012 passed in R.A.No.36 of 2009 by the Additional Senior Civil Judge and JMFC, Sagar (for short ‘the first appellate Court’), and the judgment and decree passed in O.S.No.211 of 1999 dated 03.06.2009 by the learned Additional Civil Judge, (Jr. Dn.), Sagar (for short ‘the trial Court’).

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For convenience, the parties are referred to as per their ranking before the trial Court. The appellant was the plaintiff and 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 plaintiff filed a suit for declaration and permanent injunction declaring that the plaintiff is the absolute owner of the suit schedule property and restraining the defendants from interfering with the peaceful possession and enjoyment over the suit schedule property.

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It is the case of the plaintiff that the suit schedule property is a vacant land measuring 90x21 feet, suit property along with southern vacant land measuring 90x51 feet, originally the said property was owned and possessed by Town Municipal Council, Sagar. There was a house structure built in the southern vacant land by one Gangadhar Bhat prior to 1965. He was in possession and enjoyment of the entire property. The said property was mortgaged in favour of R.S.Pai during 1968. He sold the property in favour of one S.N. Bhaskar Rao under the registered

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sale deed dated 15.11.1973. Bhaskar Rao in turn

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sold the said property in favour of the plaintiff under a register sale deed dated 14.05.1979 and the plaintiff was put in possession of the suit schedule property. The Town Municipal Council has issued a notice on 04.02.1997 in favour of the plaintiff calling upon the plaintiff to deposit an amount so as to regularise the unauthorised construction and occupation. After enquiry, the plaintiff learnt that the suit schedule property belongs to TMC, Sagar. During September 1988, plaintiff arranged to construct a new fence and by erecting stone pillars and barbed wires. The defendants interfered with the plaintiff's peaceful possession and enjoyment over the suit schedule property and denied the title of the plaintiff. Thus, a cause of action arose for the plaintiff to file a suit for declaration of title and perpetual injunction.

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The defendants filed a written statement denying the averments made in the plaint, and it is also denied

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that the plaintiff is the owner and in possession of the suit schedule property. It is contended that issuance of a sale certificate, title and possession certificate are got created. It is contended that filing

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of suit in O.S.No.484 of 1998 and the municipal Records continued in the name of TMC. It is also contended that the plaintiff approached the Deputy Commissioner and the Deputy Commissioner directed to rectify the records are denied. It is contended that the defendants No.1 to 4 are the sons of late Panduranga Shet and defendant no. 5 is brother of Panduranga Shet. Panduranga shet s/o Ganapathi shet was in possession of the suit schedule property and sold the same under a unregistered sale deed dated 05.08.1965 in favour of Panduranga shet s/o Anand shet i.e., father of defendants No. 1 to 4. The father of defendants No. 1 to 4 was in possession of the suit schedule property till his demise. After his demise, the defendants came in possession of the suit

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schedule property and they also perfected their title against the Town Municipal Council, Sagar. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties framed the following issues.

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��ಾ�ಾಂಶಗಳ�

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�ಾ�ಯು�ಾ�ೇದ ಪ�ಣ� �ೊ��ನ �ಾ�ೕಕ�ರುವ�ೆಂದು ದ!"ೊ#ಸುವ�ೇ?

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�ಾ�ಯು �ಾ�ೆ �ಾಖಲ 'ಾ(ೕ)�ಂದ �ಾ�ಾ �ೊ��ನ *ಾನೂನು ಬದ!�ಾದ �ಾ,-ೕನವನು. /ೊಂ�ರುವಳ� ಅಂ'ಾ �ಾ� ದ1"ೊ#ಸುವ�ೇ?

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ಪ2��ಾ�ಗಳ� �ಾ�ಾ �ೊ��ನ �ಾ�ಯ �ಾ,-ೕ3ಾನುಭವ*ೆ5 ಅ67 ಆತಂಕ "ೊ#ಸು��ರುವರು ಅಂ'ಾ �ಾ� ದ!"ೊ#ಸುವ�ೇ?

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ಪ2��ಾ�ಗಳ� ತಮ; ��ಾದ ಪತ2ದ <ೊ'ೆ /ಾಜರುಪ6 ದ ಕರಡು /ಾ? ನ@ೆಯ�A 'ೋ( ದ �ಾ�ಾ �ೊ��ನ BೈD ಎ F ಇ ಎH ದ �ಾ,�ೕನವನು. 'ಾವI ಕ�ೆದ 20 ವಷ�ಗ#ಂದ /ೊಂ�ದು1 ಇದ*ೆ5 'ಾವI �ರುದ! ಕKೆL 3ಾ'ೆMಂದಲೂ �ಾ�ೕಕNಾOರುವNೆಂದು ದ1"ೊ#ಸುವNೇ?

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�ಾ� Kೇ6ದಂ'ೆ PೂೕಷQೆಯ ಬ"ೆR 6D5 ಪSೆಯಲು ಅಹ�#ರುವ�ೇ?

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�ಾ� Kೇ6ದಂ'ೆ ಪ2��ಾ�ಗಳ �ರುದ! Uಾ ಮ ಹುಕುಂ ಬ"ೆR 6D2 ಪSೆಯಲು ಅಹ�#ರುವ�ೇ?

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Vಾವ 6D2 ಇಲA�ೇ ಆWೆ ?

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The plaintiff to prove his case examined one Ranganatha Sharma as PW1 and marked 13 documents as Exhibit P1 to Exhibit P13. On behalf of defendants, one Chandrasekhar was examined as DW1 and marked 25 documents as Exhibit D1 to Exhibit D25. The trial court, after recording the evidence, hearing both sides and after assessing the verbal and documentary evidence, answered issue No.1 in affirmative, issues No. 2, 3, 5 and 6 in negative, issue No. 4 partly in affirmative and issue No. 7 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 03.06.2009.

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The plaintiff, aggrieved by the dismissal of suit in O.S.No.211 of 1999 preferred an appeal in R.A.No. 36 of 2009 on the file of learned Additional Senior Civil Judge and JMFC, Sagar.

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The first appellate court, after hearing the learned counsel for the parties, framed the following points for consideration:

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POINTS

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1) Whether trial court has erred in holding that appellant / plaintiff has failed to prove possession in the suit property ?

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2) Whether judgment and decree passed by learned Addl. Civil. Judge (Jr.Dn) Sagara dated 03-06-2009 in dismissing O.S.No.211/99 is opposed to the suit in law, facts, probabilities and oral as well as documentary evidence placed by the parties ?

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3) Are there any grounds to interfere in the judgment and decree of the trial court?

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3) What order or decree?

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The first appellate court, after re-appreciating the entire evidence on record, answered points 1 to 3 in the negative, point No. 4 as per the final order. The

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appeal was dismissed vide judgment dated 05.11.2012.

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The plaintiff aggrieved by the impugned judgments filed this regular second appeal.

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Heard the arguments of the learned counsel to the plaintiff.

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None appeared for the respondents.

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Learned counsel to the plaintiff submits that the

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plaintiff is the absolute owner and in possession of the suit schedule property by virtue of Exhibit P13 i.e., the sale deed. The plaintiff is in possession of the suit schedule property. Both the courts below have not properly appreciated and re-appreciated the entire evidence on record and committed an error in passing the impugned judgments. He also submitted that both the courts below have committed an error in recording its finding that there is no recital in Exhibit P13 and Exhibit D23 regarding delivery of possession of suit schedule property in favour of the plaintiff. He submits that the plaintiff prior to the execution of Exhibit D23, the plaintiff was an unauthorised occupant. Hence there is no recital in Exhibit D23 and Exhibit D13 regarding delivery of possession of the suit schedule property in favour of the plaintiff. He also submits that before issuing

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Exhibit P13, the authorities have visited the spot and issued Exhibit P13. Hence, prays to allow the appeal.

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This Court, vide order dated 02.07.2019, admitted the appeal to consider the following substantial questions of law:

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1. Whether the plaintiff was entitled for the relief of injunction against the defendants?

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2. When considering that the vendor of the plaintiff did not possess absolute title over the suit schedule property, however, was granted by Government considering the possession of the plaintiff along with similarly placed persons, whether the plaintiff ought to have been considered as a better possessor of the schedule property?

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3. Whether the concept of possessory title was available to the defendants?

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Regarding substantial question of law No. 1:

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The plaintiff filed a suit for declaration of title and permanent injunction. The plaintiff, in order to

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substantiate his case, examined one Ranganath Sharma as PW.1. He has deposed that earlier the suit property was owned and possessed by the Town Municipal Council, Sagar. He has deposed that the suit schedule property is a vacant site measuring 21 feet north south and 90 feet east west. Another property measuring 51 feet north south and 90 feet east west situated adjacent to the suit schedule property. It is contended that originally the suit property was owned and possessed by the Town Municipal Council, Sagar. On the southern side of the property measuring 51 x 90 feet, a house was constructed by one Gangadhara Bhat. Prior to 1965, he was in possession of the suit schedule property. He borrowed a loan from one R.G.Pai in 1968. He could not repay the said loan amount. For repayment of the said lone amount, he sold the suit schedule property in favour of one Gangadhara Bhat. He in turn has sold the property in favour of S. N. Bhaskar

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Rao under a registered sale deed dated 15.11.1973.

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The said Bhaskar Rao sold the suit schedule property in favour of the plaintiff under an unregistered sale deed dated 14.05.1979 and the plaintiff was put in possession of the suit schedule property. He has deposed that the defendants have no right, title or interest over the suit schedule property. The defendants tried to interfere with the peaceful possession and enjoyment over the suit schedule property. The plaintiff, in order to substantiate his case, examined through the power of attorney and produced the documents i.e., Ex.P1 and Ex.P2 are

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the general power of attorneys, Ex.P3 is the partition deed, Exs.P4 and P5 are the notices issued by the TMC, Sagar, Exs.P6 and P7 are the assessment register extracts, Exs.P8 and P9 are the demand register extracts, Ex.P11 is the license issued by the TMC, Sagar, Ex.P12 is the approved plan, and Ex.P13 is the certified copy of the registered sale deed

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alleged to have been executed by Bhaskar Rao in favour of plaintiff on 17.11.1973. During the course of cross-examination of PW1, it was suggested that the said documents produced by the plaintiff's are got created only for the purpose of filing the suit. In rebuttal, on behalf of the defendants, one Chandrasekhar was examined as DW1. He has deposed that the plaintiff is not the absolute owner and in possession of the suit schedule property. He has deposed that the defendants are in possession and enjoyment of the suit schedule property. He also deposed that the suit filed by the plaintiff is not maintainable. Hence, he prays to dismiss the suit and the defendants in support of their defence, produced the documents i.e., Ex.D1 is the Special Power of Attorney, which discloses that the defendants have authorized Chandrasekhar to depose on behalf of the defendants, Ex.D2 is the memo issued by the TMC, Exs.D3 to D10 are the tax paid receipts, which

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clearly discloses that the defendants have paid the tax of the suit schedule property, Ex.D11 is the certified copy of the sale deed, Ex.D12 is the document, Ex.D13 is the certified copy of the hypothecation deed in regard to the concerned portion, Exs.D14 to D20 are the assessment demand register, Ex.D21 is the stay order issued by the TMC, Sagar, Ex.D22 is the order issued by the TMC, Sagar, Ex.D23 is the certified copy of the registered sale deed, Ex.D24 is the order sheet pertaining to O.S.No.84/1988, and Ex.D25 is the certified copy of the memo.

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From the perusal of the material on record, it clearly discloses that the plaintiff has filed a suit for declaration of title based on Ex.P13 i.e., the certified copy of the registered sale deed alleged to have been executed by Bhaskar Rao in favour of the plaintiff. The TMC has executed the sale certificate in favour of the plaintiff. From the perusal of Ex.P13, it clearly

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discloses that there is no recital in respect of delivery

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of possession of the suit schedule property in favour of the plaintiff. The defendants have produced Ex.D23, which clearly discloses that one Gangadhar Bhat was in unauthorised occupation of the property measuring 51 x 84 and same was regularised in his favour. Further, the TMC has executed a registered sale deed in favour of Gangadhar Bhat. After the execution of the sale certificate in favour of Gangadhar Bhat it came to the knowledge of the Town Municipal Council, Sagar that the said property belongs to the Town Municipal Council, Sagar. The said Gangadhar Bhat had mortgaged the property in favour of one R.G.Pai in 1968. The defendants have produced Ex.D12 i.e., the certified copy of the registered mortgage deed dated 01.05.1968 executed by said Gangadhar Bhat which measures north-south 51 feet and east-west 84 feet within the boundaries and the plaintiff during the course of

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cross-examination had admitted that Gangadhar Bhat had sold out his property in favour of S.N.Bhaskar Rao under a registered sale deed dated 15.11.1973. Ex.D23 is the certified copy of the registered sale deed executed by Gangadhar Bhat in favour of Bhaskar Rao and the plaintiff has also admitted in the plaint that S.N.Bhaskar Rao sold his property in favour of original plaintiff under a registered sale deed dated 14.05.1975 and the said sale deed is marked as Ex.D11. From the perusal of Exs.D11 to D13 i.e., the registered sale deeds executed by Gangadhar Bhat in favour of S.N.Bhaskar Rao and S. N. Bhaskar Rao in turn sold the property in favour of the plaintiff. The properties mentioned in both the sale deeds are measures north-south 51 feet, and east-west 84 feet. The plaintiff is claiming the suit schedule property to the extent of 21 feet north-south and 90 feet east-west. The boundary shown in the plaint doesn't tally with

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the boundary shown in the registered sale deeds executed in favour of the plaintiff. From the perusal of Ex.D23 i.e. the registered sale deed executed by the Town Municipal Council, Sagar in favour of Gangadhar Bhat relating to the southern side property measuring 51 x 84 feet. The plaintiff in order to substantiate that the suit schedule property was owned and possessed by the Town Municipal Council, tSagar, the plaintiff has not produced any records to establish that the land was owned and possessed by the Town Municipal, Sagar. Admittedly, the suit is one for declaration of title and permanent injunction. The plaintiff must establish his case. The plaintiff must stand on his own legs. He cannot depend upon the weakness of the defendants in view of the proposition laid down by the Hon'ble Apex Court in case of Union of India and others Vs. Vasavi Co-operative Society Ltd., and other reported in (2014) SCC 269. Admittedly, the plaintiff has failed

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to prove that he is the absolute owner of the suit schedule property. Further, the plaintiff has not produced any record to show that the plaintiff is in possession of the suit schedule property. The plaintiff has filed a suit for declaration of title and permanent injunction. As per proviso to Section 34 of the Specific Relief Act, 1963, the suit for mere declaration without seeking a consequential relief of possession is not maintainable. In view of the proposition laid down by the Co-ordinate Bench of this case in the case of S RI A RALAPPA V S . S RI J AGANNATH AND OTHERS reported in ILR 2007 K ARNATAKA 339, wherein the Co-ordinate Bench has held that in a suit for declaration of ownership and permanent injunction, when the plaintiff has to prove his title to the property and also possession over the property on the date of suit when the plaintiff is not in possession of the suit schedule property as on the date of suit, relief of permanent injunction is not an

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appropriate consequential relief. The appropriate relief consequential is to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, mere suit for declaration is not maintainable. In view of the mandate laid down by this Court that mere suit for declaration without seeking a consequential relief of possession the trial Court has rightly dismissed the suit and the First Appellate Court has rightly confirmed the judgment and decree passed by the trial Court. As the plaintiff has failed to prove that he is in possession of the suit schedule property and the plaintiff is not entitled for relief of injunction. In view of the above discussion, I answer substantial question of law No.1 in the negative.

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Substantial question of law No.2 : The plaintiff contended that the TMC, Sagar was the owner in possession of the suit schedule property. In order to

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prove the ownership of the TMC, Sagar over the suit schedule property, the plaintiff has not produced any records to establish the ownership of the TMC, Sagar. The TMC Sagar had executed a registered sale deed in favour of the plaintiff as per Ex.P13. It is settled law that in order to establish the title over the suit schedule property, the plaintiff is required to establish that his vendor had a title over the suit schedule property. In view of the proposition laid down by the Hon'ble Apex Court in case of A RALAPPA (S UPRA ), the plaintiff has failed to prove that the TMC, Sagar was the absolute owner of the suit schedule property. Both the Courts below considering the entire evidence on record, has recorded a finding that the TMC, Sagar has absolutely no right, title or interest over the suit schedule property and the sale

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deed executed by the TMC, Sagar in favour of the plaintiff as per Ex.P13 is without the authority. Further, the plaintiff has not produced any records to

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show that the said land was granted by the Government and further, the plaintiff has not produced any records to establish that the said lands were granted in favour of similarly placed persons. Thus, the plaintiff has failed to establish the possession over the suit schedule property. Thus, both the Courts below have rightly considered the material placed on record and rightly passed the judgments. In view of the above discussion, I answered substantial question of law No.2 in the negative.

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Substantial question of law No.3 : As observed above, the plaintiff has failed to prove the possessory title over the suit schedule property. As already discussed in substantial question of law Nos.1 and 2 in detail and held that the plaintiff has failed to establish his possession over the suit schedule property. In view of the above discussion, substantial question of law No.3 is answered in negative.

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