IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL No.2613/2011 BETWEEN:
A BASAVANTHAPPA S/O UJJANAPPA, AGED ABOUT 53 YEARS, AGRICULTURIST, R/O AGRAHARA, HOLALKERE TALUK-577 526. ... APPELLANT (BY SRI R SHASHIDHARA, ADVOCATE) AND:
1. PARAMESHWARAPPA S/O HANUMANTHAPPA AGED ABOUT 41 YEARS 2. THIMMAPPA S/O THIMMAPPA AGED ABOUT 56 YEARS 3. DASAPPA S/O THIMMAPPA AGED ABOUT 66 YEARS ALL ARE AGRICULTURIST, R/O PUNAJUR VADDARAHATTY VILLAGE HOLALKERE TALUK-577 526. ... RESPONDENTS (BY SRI D L SURESH, ADV. FOR R1 TO R3) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.08.2011 PASSED IN R.A.NO.54/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE, HOLALKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 06.04.2005 PASSED IN O.S.NO.50/2003 ON THE FILE OF THE CIVIL JUDGE (JR. DN) HOLALKERE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT PASSED THE FOLLOWING:
JUDGMENT Though this matter is posted for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. This appeal is directed against the judgment and decree dated 17.08.2011 passed in R.A.No.54/2005 by the Senior Civil Judge at Holalkere wherein the appeal filed by the defendants is allowed and the judgment and decree passed by the trial Court in OS.No.50/2003 is set aside.
3. In order to avoid overlapping and confusion, the parties are referred as per the ranks held by them before the trial Court.
4. The appeal is preferred by the plaintiff.
5. The plaintiff filed the suit in O.S.No.50/2003 against the defendants for permanent injunction in respect of land bearing Survey No.22/3, New Survey No. 22/2 measuring 5 acres, as described in the schedule to the plaint contending that his father purchased the same vide registered sale deed in the year 1970. In the partition that took place in the year 1986, the suit schedule property had fallen to his share, the revenue records are changed in his name, since then he is in possession of the same and that the defendants have no right over the suit schedule property, the land of the defendants is situated towards the south of the suit schedule property. The revenue officials made some differences in the survey numbers and measurements in the related RTC extracts. Hence, he approached the revenue authorities for rectification of the revenue records, but they by colluding with the defendants, did not consider the request of the plaintiff. The defendants taking undue advantage of the said revenue entries made an attempt to encroach the suit schedule properties.
On service of summons, the defendants appeared and the third defendant filed written statement denying all the averments made in the plaint and contended that one Thimmabhovi, the father of the defendants 2 and 3 and grand father of defendant No.1 had purchased the land bearing Survey No.22/1 measuring 6 acres 26 guntas of Punajur village from one Abdul Ghani Sab under the registered sale deed dated 28.08.1970, subsequently another bit of land measuring 4 acres in Sy.No.22 of the same village was purchased from Kairunbi under the registered sale deed dated 23.11.1970, thereafter Thimmabhovi was in possession of the same. After the death of Thimmabhovi, the father of first defendant and defendants 2 and 3 got divided the same and as per the said partition, the southern portion of the suit land has fallen to the share of 3rd defendant. Further contended that in between the lands of plaintiff and defendants, there is a bund, the defendants are enjoying their lands from the date of purchase. Hence, they prayed to dismiss the appeal.
In support of his case, plaintiff examined himself as P.W.1 and got examined another witness as P.W.2 and got marked three documents as Exs.P1 to P3. The third defendant got himself examined as D.W.1 and got examined two more witnesses as D.Ws.2 and 3 and got marked as many as 10 documents as Exs.D1 to D10.
The trial Court after considering the oral and documentary evidence on record allowed the suit. Being aggrieved by the same, the defendants filed appeal in R.A.No.54/2005, which came to be allowed, dismissing the suit filed by the plaintiff. Hence, the present appeal by the plaintiff.
6. The following substantial questions of law are framed in the memorandum of appeal:
“1.Whether the first appellate court is right in law in dismissing the suit of the plaintiff without considering the documents at Exs.P-1 and 2?
2.Whether the first appellate court is right in law in reversing the findings recorded by the trial Court, though the plaintiff has proved his possession of entire suit property measuring 5 Acres?
3. Whether the first appellate court is right in law in reversing the finding recorded by the trial court though Ex.D-10 appears to be corrected?
4. Whether the first appellate court is right in law in reversing the findings recorded by the trial court, though the plaintiff specifically denied the measurement and sketch prepared by the taluk surveyor?
5.Whether the first appellate court is right in law in reversing the findings of the trial court, though DW-2 has specifically admitted the fact that there is a dispute from last 2 years between plaintiff and defendant?
6.Whether the first appellate court is right in law in believing Ex.D-10, though the defendants not at all proved it by examining the Taluk surveyor?”
7. The learned counsel for the appellant would submits that he proved the ownership and possession in respect of the suit schedule property to the satisfaction of the Court. He would further submit that the property was derived by the appellant from his father through succession and earlier, father of the plaintiff purchased the schedule property to the extent of five acres in Survey No.22/3 of Kunugali village.
8. The learned counsel for the respondents submits that the plaintiff-appellant is trying to grab more extent of properties by making enhanced measurements than the actuals. Further, there is a difference between the extent as mentioned in the title deed of the plaintiff and plaint schedule.
Having heard the learned counsel for the parties, the relevant point would be the identity of the property and the proper alignment and as such the following substantial question of law arises for consideration:
“Whether the extent notified under the registered sale deed Ex.P1 prevails over subsequent revenue documents and whether the relief of permanent injunction is available on the basis of the boundaries?”
9. The brief point that would come up for discussion would be admitted facts and the nature of relief.
10. The learned counsel for the appellant submitted that the property was derived by the appellant from his father through succession. Earlier, father of the plaintiff purchased the schedule property to the extent of five acres in Survey No.22/3 of Kunugali village. Ex.P2 is the mutation extract. Ex.P3 is the RTC Extract. In the said documents, the details of the land are depicted as under Survey No.22/2, extent of 4 acres 35 guntas assessment Rs.3.40, owner A. Basavanthappa s/o.Ujjinappa, who is the plaintiff, acquisition of ownership as MR.No.31/85-86 MR 25/2002, possession-plaintiff. The inference was claimed by the defendants. The learned trial Judge decreed the suit of the plaintiff and restrained the defendants from interfering with the possession of the plaintiff over the suit schedule property. The appeal was preferred by the defendants and that was allowed by setting aside the judgment and decree passed in O.S.No.50/2003. It is against the said judgment and decree, the present appeal is filed.
11. It is necessary to make a mention that the suit property in the plaint is mentioned as Sy.No.22/3, Sy.No.22/2. Insofar as Ex.P1 is concerned, it is the registered sale deed written in Kannada executed on 29.8.1970 in respect of the landed property mentioned as No.22 poaded No.3, dry land, to the extent of five acres being bound on the East by Gomal, West by Boodanada land and railway road, North by Silli Hallappa’s land and South by Jaibunnisa’s land. It is to be seen that the boundaries mentioned in the plaint are East by Government Gomala, West by Gomala Land and Railway Track, North by land of Silli Halappa and on the South by land of defendants. As such eastern and northern boundaries are reflected as per the sale deed. Insofar as western boundary is concerned, in the sale deed-Ex.P1 it is mentioned as Boodanada land and southern boundary is stated as land belonging to Jaibunnisa. However, in the plaint, it is reflected as the land of defendants. Incidentally, as stated above, the plaint schedule bears survey Nos.22/3 and 22/2. Regard being had to the fact that Survey No.22/2 is handwritten in correction ink and thus reiterated that plaint itself is in respect of Survey No.22/2.
12. The doctrine of ‘documentary estoppel’ contemplates that whenever a person is a party to a document or files a document in a proceedings, unless he has challenged the contents of the documents, it is legally not permissible for him to contest against the contents of the documents. As such, when a person as a party to the document/a signatory, which is admitted by him in the circumstances, cannot contend contrary. The plaintiff has produced the sale deed- Ex.P1 wherein it is seen that he has purchased five acres of land in Survey No.22/3. However, while filing the suit for the reasons best known to him, in addition to Survey No.22/3 he has also mentioned Sy.No.22/2, more particularly, it is written in correction ink thereby it goes to show that the plaintiff cautiously determined to claim the property in Sy.No.22/2 as well. Ex.P1- is the registered sale deed. Ex.P2 is the mutation extract, Ex.P3 is the RTC.
13. In the circumstances, it is necessary to mention Section 133 of the Land Revenue Act:-
“133. Presumption regarding entries in the records.—An entry in the Record of Rights and a certified entry in the Register of Mutations 1 [or in the patta book]1 shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.”
Ex.P2 is the mutation extract which is issued on the basis of the sale deed with reference to the date of sale deed, seller, purchaser, extent of land mentioned in the sale deed on no objection being raised during the stipulated period. However, in the RTC records, there are columns to enter the survey number, sub number, extent, assessment etc. wherein the revenue officials enters the extent of land in that document. It is in this connection, the extent is mentioned as 4 acres 35 guntas. That was issued to the plaintiff Basavantappa. Interestingly, he has no grouse insofar as the extent of land mentioned in the relevant document issued by the Government and it is clear that the said entry is not challenged before the jurisdictional Tahsildar.
14. Sri.Suresh, learned counsel for the defendants submits that as on the date of the sale deed, the property on the southern side of the schedule property was owned by Smt. Jaibunnisa, however, in the subsequent developments, the property on the southern side of the schedule property is owned by the defendants. Thus, the southern side of the schedule property, as admitted by the plaintiff, belongs to the defendants and the extent claimed by the plaintiff is five acres. The extent mentioned in the RTC is 4 acres 35 guntas, which is unchallenged till date. Incidentally, the RTC extract of plaintiff’s property is in respect of Survey No.22/2. Insofar as the plaintiff schedule property is concerned it is Survey No.22/3,Sy.No.22/2. The said Ex.P3 is equal to Ex.D2 wherein the survey number is mentioned as 22/1P2. However, in the same survey number the defendant Dasappa is stated to be the owner of 3 acres 6 guntas of land and another 3 acres 7 guntas of land in Survey No.22/1P4. In the whole set of circumstances, the detailed extent of land as stated to be in Sy.No.22 are many including the property of the plaintiff and defendants. In the circumstances, considering the description of the property in the plaint as Sy.No.22/3, Sy.No.22/2 and the extent of the same mentioned in Ex.P3-RTC as 4 acres 35 guntas, which is less than five acres as claimed in the plaint, it is undisputed that the RTC, which is issued by the Government is acceptable in between the extent mentioned in the title deed i..e. RTC and the title deed which comes into effect through the act of the parties. In the circumstances, the plaintiff has failed to establish the identity of five acres of suit schedule property in the said survey number and in the entire property to the extent of 20 acres, the defendants are also said to be the owners of the property. In the circumstances, the learned Judge of the lower appellate Court has considered the matter on possession, ownership and revenue entry. It is undisputed fact that a person seeking the relief of injunction has to prove the actual possession over the suit schedule property which has not happened in the present case. The extent of the property of the plaintiff no doubt goes to the extent of 4 acres 35 guntas. Hence, I do not find any reasons to interfere with the findings recorded by the lower appellate Court in setting aside the judgment and decreed passed by the trial Court in OS.No.50/2003. Thus, the appeal is devoid of merit and is liable to be rejected.
15. Accordingly, the appeal is rejected.
Sd/- JUDGE *alb/-.