IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH R.F.A.No.1268/2003 (PAR) BETWEEN:
1. SMT. AMMAYAMMA SINCE DEAD BY LRS.
1(A). SMT. NEELAMMA W/O. KRISHNAPPA D/O. GUNDAPPA AGED ABOUT 47 YEARS R/AT JADIGENAHALLI VILLAGE AND POST HOSKOTE TALUK BENGALURU DISTRICT.
1(B). SRI G. SRINIVAS S/O. GUNDAPPA AGED ABOUT 39 YEARS R/AT. BILEKALLI BEGUR HOBLI BENGALURU-76.
1(C). G. NAGARAJ S/O. GUNDAPPA AGED ABOUT 37 YEARS R/AT. BILEKALLI BEGUR HOBLI BENGALURU-76.
1(D). SMT. GOVINDAMMA W/O. SRINIVASA D/O. GUNDAPPA AGED ABOUT 33 YEARS R/AT MUDDAHALLI VILLAGE BANGARPET TALUK KOLAR DISTRICT.
2. SRI. MUNIRAJU SINCE DEAD BY LRS., 2(A). PARVATHAMMA W/O. LATE MUNIRAJU AGED ABOUT 37 YEARS 2(B). SRI. KOHITHA S/O. LATE MUNIRAJU AGED ABOUT 18 YEARS 2(C). KUMARI NIRMALA D/O. LATE MUNIRAJU AGED ABOUT 17 YEARS REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER SMT. PARVATHAMMA-2(A). … APPELLANTS (SRI. B.K. CHANDRASHEKAR, ADV.) AND:
1. SRI. GUNDAPPA S/O. MUNIVEERAPPA SINCE DECEASED THE APPELLANTS ARE THE LRS.
2. SMT. VISHALAKSHAMMA W/O. G.C. REDDY SINCE DEAD BY LRS.
2(A). SRI. G. DHANANJAYA REDDY S/O. G.C. REDDY AGED ABOUT 48 YEARS 2(B). SRI. SAI PRAKASH S/O. G.C. REDDY AGED ABOUT 42 YEARS 2(C). SMT. NIRMALA D/O. G.C. REDDY AGED ABOUT 46 YEARS ALL ARE RESIDENT OF NO.518, BILEKAHALLI MAIN ROAD OPP. TO BANNERGHATTA ROAD IIM POST, BENGALURU.
3. SMT. VIJAYA AGED ABOUT 55 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
4. SMT. VIJAYALAKSHMI AGED ABOUT 52 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
5. SRI. K. JAYAKUMAR S/O. KRISHANAPPA AGED ABOUT 36 YEARS 6. SRI. K. VIJAYAKUMAR S/O. KRISHANAPPA AGED ABOUT 34 YEARS 7. SMT. LAKSHMAMMA W/O. KRISHANAPPA AGED ABOUT 55 YEARS RESPONDENT NOs.5 TO 7 ARE R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
8. SMT. LAKSHMAMMA W/O. LATE PACHAPPA AGED ABOUT 52 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
9. SMT. SARAWATHI W/O. GUNDAPPA AGED ABOUT 34 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
10. SMT. PARVATHI D/O. PACHAPPA AGED ABOUT 24 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76.
11. SMT. GOWRAMMA D/O. PACHAPPA AGED ABOUT 26 YEARS R/AT BILEKHALLI BEGUR HOBLI BENGALURU-76. … RESPONDENTS (BY SRI.Y.R.SADASIVA REDDY,SR. COUNSEL FOR SRI.RAHUL. S. REDDY, ADVOCATE FOR R2(A-D) (R1-DECEASED-APPELLANTS ARE TREATED AS LRS. OF DECEASED R1) VIDE ORDER DT. 29.09.2011 SRI. B.M. JAGADEESH, ADVOCATE FOR R3 SRI. A. NAGARAJAPPA, ADVOCATE FOR R5-R7) R8, R9, R10, R11 ARE SERVED R4 – SERVICE OF NOTICE HELD SUFFICIENT VIDE ORDER DATED 04.04.2019) THIS APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 16.08.2003 PASSED IN O.S.No.835/1991 ON THE FILE OF THE XX ADDL. CITY CIVIL JUDGE, BENGALURU CITY, (CCH.No.32), DISMISSING THE SUIT FOR PARTITION.
THIS APPEAL COMING ON FOR HEARING AND HAVING BEEN RESERVED FOR JUDGMENT ON 05.07.2019, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
JUDGMENT This appeal is filed against the judgment and decree dated 16th day of August 2003 passed in O.S. No.835/1991 on the file of 20th Additional City Civil Judge (CCH No.32), Bengaluru city, dismissing the suit of the plaintiffs for the relief of partition.
2. The parties are referred to by their ranking before the trial Court for the convenience of the Court.
3. The facts of the case are that the first plaintiff – Smt. Ammayamma is the wife of Sri Gundappa – defendant No.1 in the suit. They have two daughters, namely, Smt. Neelamma and Smt. Govindamma, who are arrayed as plaintiff Nos.2 and 5 respectively in the suit and two sons, namely, Sri G. Srinivas and Sri G. Nagaraj, who are plaintiff Nos.3 and 4 respectively in the suit. Sri Gundappa’s father is Sri Muniveerappa and his mother is Smt. Muniyellamma. Sri Pachappa is the brother of Gundappa. Plaintiff No.6 – Smt. Lakshmamma is the wife of Sri Pachappa. They have three daughters and a son, who are arrayed as plaintiff Nos.7, 9, 10 and original plaintiff No.8 in the suit. Sri Pachappa is no more. Smt. Gowramma – plaintiff No.9 and Smt. Parvathi – plaintiff No.10 are minors and they are represented by their mother, Smt. Lakshmamma – plaintiff No.6. It is the case of the plaintiffs that Muniveerappa’s mother, Smt. Muniyellamma, was the absolute owner of the suit ‘A’ schedule property i.e., land bearing Sy. No.2/6 of Bilekahalli village, Begur hobli, Bangalore South Taluk. After the death of Smt. Muniyellamma, the said property was inherited by Sri Muniveerappa. Sri Muniveerappa and his sons, Gundappa and Pachappa constituted members of an undivided joint Hindu family. Plaintiffs claimed 1/12th share each in the suit ‘A’ to ‘C’ schedule properties and for permanent injunction restraining defendant No.2 from entering upon the suit ‘A’ schedule property as averred in the plaint.
4. The Court below after filing of the suit, issued notices against the defendants.
5. Defendant No.1 appeared through his counsel and filed the written statement contending that: the claim made by the plaintiffs cannot be considered; he had sold the suit ‘B’ schedule property in favour of Sri K. Jayakumar on 04.11.1999; Sri Pachappa, the husband of plaintiff No.6 and the father of plaintiff Nos.7 to 10 died long back and subsequently, plaintiff Nos.6 and 8 had jointly executed a registered general power of attorney in favour of Sri V. Krishnappa and the said Sri Krishnappa had also joined in the execution of the sale deed dated 04.11.1999. So far as the suit ‘C’ schedule property is concerned, the case of defendant No.1 is that it was granted to him by the Government and that he was in possession of the same and subsequently, he had sold the said property in favour of Smt. K. Lakshmamma. He also stated that himself and Sri Pachappa, the husband of plaintiff No.6 and the father of plaintiff Nos.7 to 10, had jointly purchased the suit ‘B’ schedule property on 21.01.1963. The said property was the self acquired property of defendant No.1 and Sri Pachappa. Subsequently, there was a division of property among defendant No.1 and Pachappa under palupatti dated 25.07.1964. In the said partition, each of them had got separate possession of their respective property and they were entitled to alienate the same. He has denied that suit ‘A’ and ‘B’ schedule properties are the undivided properties and that both Pachappa and Gundappa had an undivided share in the said properties. He sought for dismissal of the suit.
6. Defendant No.2 – Smt.Vishalakshamma put forth her contention in the written statement that one Sri Pachappa, who is the brother of defendant No.1 and also husband of plaintiff No.6 had sold half portion of the suit ‘A’ schedule property to Muniswamyraju in the year 1964 when Sri Pachappa was alive. Similarly, defendant No.1 - Sri Gundappa, the brother of Sri Pachappa, had also sold the remaining half of the suit ‘A’ schedule property to Smt.Kannamma, wife of Sri Muniswamyraju in the year 1968. It is stated that the said property was their self- acquired property and they had every right to alienate the same in whatever manner they liked. Defendant No.2 has further stated that she purchased the aforesaid property from Sri Muniswamyraju and Smt.Kannamma under registered sale deed dated 05.01.1981 for a valuable consideration. She has been in lawful possession and enjoyment of the suit ‘A’ schedule property without any interruption or hindrance. It is stated that after purchase of the suit ‘A’ schedule property, defendant No.2 requested the revenue authorities to change the khata, R.T.C., R.R., index of land and other revenue records and accordingly, village panchayat of Bilekahalli had effected transfer of the suit ‘A’ schedule property in her favour in all the revenue records. She contended that she applied for conversion of the suit ‘A’ schedule property from agricultural to non- agricultural purpose before the competent authority, but the competent authority i.e., Special Deputy Commissioner, Bangalore District, by his order dated 20.11.1981, rejected her claim on the ground that it conflicted with the proposal of the approved O.D.P Bengaluru. The said documents clearly demonstrated that she is the absolute owner in lawful possession of the suit ‘A’ schedule property and no other persons including the plaintiffs had any right, title or interest in respect of the suit ‘A’ schedule property. She further contended that she had obtained approval of plan and licence from village panchayath in the year 1981 and had put up building on the said land. There was no joint family as alleged by the plaintiffs among the brothers of Gundappa, Pachappa including Smt. Muniyellamma and Sri Muniveerappa. The suit ‘A’ schedule property was the self-acquired property of Gundappa and Pachappa and they have sold the same during their life time in favour of her vendors.
7. Defendant Nos.3 and 4 appeared through their counsel and filed separate written statement contending that defendant No.2 - Smt. Vishalakshamma was the absolute owner of the entire property bearing Sy. No.2/6 of Bilekahalli village, Begur hobli, Bengaluru, and by virtue of gift deed executed by defendant No.2 in their favour, they had acquired right over the sites formed in Sy. No.2/6. It is stated that defendant No.3 after obtaining approval of plan from the Village Panchayat, had put up construction of the residential building on the said land. Hence, they sought for dismissal of the suit.
8. Defendant Nos.5 to 7 appeared through their counsel and filed written statement contending that the plaintiffs have to prove the averments made in the plaint. They have stated about sale agreement executed by some of the plaintiffs in respect of portion of the suit ‘B’ schedule property in favour of Sri V. Krishnappa, the husband of defendant No.7 and the father of defendant Nos.5 and 6 and that defendant No.7 purchased the suit ‘C’ schedule property from defendant No.1 under registered sale deed dated 17.11.1995 for a valuable consideration. They sought for dismissal of the suit in respect of the suit ‘B’ and ‘C’ schedule properties.
9. The Court below though framed several issues on different occasions, ultimately, framed issue Nos.1 to 5, which read as under:
“(1). Whether the plaintiffs prove that the suit schedule properties are the joint family properties of the plaintiffs and defendant No.1?
(2) Whether the defendants prove that the suit schedule properties are self acquired properties of Pachappa and Gundappa?
(3) Whether the plaintiffs prove that they are entitled for 1/12th share each in the suit properties in the partition by metes and bound and for separate possession of the same by metes and bounds?
(4) To what reliefs are the parties entitled to?
(5) To what order or decree ?”
10. The plaintiffs in support of their case, examined plaintiff No.1 as P.W.1 and two witnesses as PWs.2 and 3 and got marked the documents, Exs.P1 to P48. On behalf of the defendants, original defendant No.1 examined himself as DW.2 and examined witnesses as DWs.1, 3 to 6 and got marked documents as Exs.D1 to D50. The trial Court after the closure of the evidence, heard the arguments of the learned counsel for the parties and answered issue No.1 in the negative by holding that the plaintiffs failed to prove that the suit schedule properties are the joint family properties of plaintiffs and defendant No.1. The trial Court answered issue No.2 in the affirmative by holding that the defendants proved that the suit schedule properties are the self-acquired properties of Pachappa and Gundappa. The trial Court answered issue No.3 in the negative and consequently, dismissed the suit of the plaintiffs.
11. Being aggrieved by the judgment of dismissal of the suit, appellants who are the legal heirs of Gundappa and Muniraju, have filed the present appeal. In this appeal, they contend that the trial Court has committed an error in coming to the conclusion that the suit ‘A’ schedule property belonged to Smt.Muniyellamma and on her death, it devolved on her legal heirs, namely, her husband, Sri Sri Muniveerappa, and her two sons, namely, Sri Pachappa and Sri Gundappa and that it was her self-acquired estate and she died intestate. The trial Court erred in holding that even if there was no partition amongst Muniveerappa, Pachappa and Gundappa and after the death of Muniveerappa, it would devolve upon his sons and not upon his grandsons or great grandchildren. The trial Court erred in holding that as the property belonged to Smt.Muniyellamma, it is not the ancestral property belonging to the joint family. The trial Court also erred in not noticing that after the death of Smt.Muniyellamma, Sri Muniveerappa got the property and after his death, it was represented by his two sons and thereafter, it is the ancestral property in their hands and grandsons and grandchildren have a right. The trial Court erred in asserting that they are the self acquired properties of Smt. Muniyellamma. The subject matter of the sale deed is Sy. No.124 and not Sy. No.2/6. The suit ‘A’ schedule property is Sy. No.2/6 and not Sy. No.124. That the identity of the property has not been established. This aspect of the matter has not been considered by the trial Court though it is referred in the judgment and Ex.D2 does not refer to Sy. No.2/6. The very admission of defendant No.2 that he has not purchased land in Sy. No.2/6 has not been considered and no rectification deed has been executed. The written statement does not say anything about land in Sy. No.2/6. The respondents failed to establish that land in Sy. No.2/6 was sold. It is admitted by DW.2 that Sy. No.124 is sold under Ex.D28.
12. Learned counsel for the appellants in his arguments would contend that defendant No.2 – Smt. Vishalakshi @ Vishalakshamma has purchased the land measuring 26 guntas including 01 gunta phut kharab in Sy. No.2/6 on 05.01.1981 in terms of Ex.D2 and the vendors of defendant No.2 i.e., Sri Muniswamyraju and Smt. Kannamma, had purchased the said property from Pachappa in the year 1964 and also in the year 1968. The fact that the property originally belonged to Smt. Muniyellamma is not in dispute. Plaintiff Nos.1 to 5 are the wife and children of Gundappa and plaintiff No.6 is the wife of Pachappa, original plaintiff No.8, plaintiff Nos.7, 9 and 10 are the children of Pachappa. The property sold is only Sy. No.124 and not Sy. No.2/6 and hence, land in Sy. No.2/6 is available for partition. Though defendant No.2 contended that there was partition between Sri Pachappa and Sri Gundappa, no document was placed before the trial Court. The schedule is different and the judgment and decree passed by the trial Court is against his admission and the sale transaction was made in respect of Sy. No.124 and not in respect of Sy. No.2/6. Learned counsel also contended that the first plaintiff is also having the right of maintenance and the very execution of sale deed by Pachappa and Gundappa does not convey any right in favour of the vendors of defendant No.2 and the defective title of the vendors of the second defendant also does not convey any right in favour of the defendant No.2. Hence, he prayed this Court to allow the appeal and set aside the judgment and decree of the trial Court.
13. Learned counsel for the appellants in support of his contentions, has relied upon the judgment rendered by coordinate bench of this Court ( Kalaburagi Bench) in the case of SRI DAULATARAO RAMACHANDRA JADHAV, SINCE DEAD BY LRS., V. SMT. JANABAI ANANDARAO JADHAV AND OTHERS reported in (ILR 2017 Kar 5513) with regard to Section 14 of the Hindu Succession Act, 1956. Learned counsel brought to my notice the observations made by this Court in para No.23 of the said judgment, wherein it is stated that Section 96 of the CPC., is a substantive provision, which gives a right to the party to file an appeal. The first appellate Court has to consider both the question of fact and the question of law. Learned counsel also relied upon the judgment rendered by the Apex Court in the case of C. VENKATA SWAMY v. H.N. SHIVANNA (DEAD) BY LEGAL REPRESENTATIVE AND ANOTHER reported in (2018) 1 SCC 604 and would contend that it is a settled principle of law that a right to file first appeal against decree under Section 96 of the Code of Civil Procedure is a valuable legal right of litigant and it is open to the appellant to attack all findings of fact or/and of law in first appeal.
14. On the other hand, learned counsel appearing for the respondent would contend that the suit against husband by the wife, who is first plaintiff, cannot be filed and she is not entitled for any share and her daughters are also not entitled for any share in the suit properties and injunction as sought in the suit. Plaintiffs have not pleaded anything regarding the sale made by the husband of plaintiff No.1 and also the husband of plaintiff No.6. Learned counsel would contend that Court Commissioner has been appointed and in his evidence, he has stated that the schedule mentioned is wrong and the boundaries mentioned in Exs.D3 and D4 is correct in respect of Sy. No.2/6. Ex.D2 is the sale deed executed in favour of defendant No.2, wherein the property is mentioned as Sy. No.2/6 and no doubt, he contends that Exs.D3 and D4 though mentions Sy. No.124 and sale was effected in respect of Sy. No.2/6 only and further contended that the boundaries will prevail in the documents which mention survey number.
15. The other contention that defendant No.1 is the husband of plaintiff No.1 has admitted in the written statement that he has sold the property and properties are not available for partition. Learned counsel would contend that the plaintiffs have to succeed on their own and not on the weakness of the defendants and also cannot claim any relief on the weakness of the defendants and first to prove their case, the property which has been mentioned as the ‘A’ schedule property is the property of Pachappa and Gundappa and both of them have sold the property, which has been the exclusive property of both of them. Hence, the Court below has considered the said aspect and rightly dismissed the suit and the impugned judgment and decree does not require any interference.
16. Learned counsel appearing for the appellants in his reply would contend that the Commissioner’s report not tallies with any schedule mentioned in Exs.D3 and D4 and also Ex.D2 and hence, the very finding of the trial Court is erroneous and prayed this Court to allow the appeal.
17. Learned counsel appearing for the appellants after arguing the matter on merits filed an application under Order 41 Rule XXVII of Code of Civil Procedure seeking permission of this Court to produce additional documents of Hissa Survey Record of Rights and RTC records from the year 1970-71 to 1974-75. In support of the said application, an affidavit was sworn to by appellant No.1(c). In the affidavit, it is sworn to that 'A' Schedule Property is the land bearing Sy.No.2/6 of Bilekahalli Village measuring an extent of 26 guntas including kharab of 1 gunta. Respondent No.2 claims to have purchased the 'A' Schedule Property, whereas the appellants have specifically contended that they have sold the land bearing Sy.No.124/2 of Belakahalli Village.
18. It is further sworn to in para No.6 of the affidavit that the reasons for non-production of these two documents on the earlier occasion is that the litigation in the above suit is not the only litigation between the parties and admittedly, there are other litigations also. While conducting the litigations and dealing with the documents, the documents now sought to be produced were misplaced. Both the appellants as well as their earlier Advocate have lost sight of the existence of these documents. The documents now sought to be produced could not be made available while conducing the present litigation. They were diligent in prosecuting the case and due to over sight, the documents could not be produced before the Trial Court. Non-production of the documents is not intentional but bona fide one.
19. Respondent No.2 filed objections resisting the said application and contended that the documents now sought to be produced by the appellants are the documents which were available to them even prior to filing of the suit and further, the appellants had the complete knowledge of existence of the said documents. The appellants have not produced the documents for the best reasons known to them. Now the appellants, in order to fill up the lacuna of the present litigation, which is being contested for the last 27 years, came up with these documents which are against the law. When there is no disclosure of due diligence in his affidavit, the appellants cannot invoke Order 41 Rule XXVII of Code of Civil Procedure. Hence, prayed this Court to dismiss the application.
20. Learned counsel appearing for the appellants in support of the application filed under Order 41 Rule XXVII of Code of Civil Procedure would contend that the additional documents are necessary to decide the issues involved between the parties and if the additional documents are not considered, it would affect the rights of the parties. The question involved in this litigation is the identity of the property. Hence, prayed to allow the application.
21. In support of his contention, learned counsel has relied upon the judgment reported in 2017 (4) KCCR 3521 in the case of SRI RAGHAVENDRA SWAMY MUTT REPRESENTED BY ITS PEETADHIPATHI, ANDHRA PRADESH VS. SRI UTTARADI MUTT REPRESENTED BY ITS PEETADHIPATHI, GANGAVATHI, KOPPAL DISTRICT.
Referring to this judgment, learned counsel has contended that the relevant consideration for allowing the application under Order 41 Rule XXVII of Code of Civil Procedure is to see whether the additional evidence is relevant and has a material bearing on the issues involved before the Court and secondly, whether the applicant was prevented by sufficient cause in not producing such additional evidence despite due diligence at earlier point of time. The tenets of Order 41 Rule XXVII of Code of Civil Procedure are relevance, due diligence, enable it to pronounce judgment.
22. Learned counsel also relied upon the judgment reported in 2017 (5) KCCR 725 (DB) in the case of M.K.POULTRY FARM VS. M/S. TINNA AGRO INDUSTRIES LIMITED regarding Order 41 Rule XXVII of Code of Civil Procedure. The Division Bench of this Court held that the evidence to be produced if it throws light to unearth the truth the same should be permitted, even at appellate stage.
23. Per contra, learned counsel appearing for respondent No.2 in his arguments vehemently contended that the documents which have been sought to be produced are not necessary to decide the issues involved between the parties. The party seeking permission to produce additional documents must satisfy Appellate Court that evidence was not within his knowledge or could not, in spite of due diligence, be produced by him in Trial Court. The plea of the party that he did not realize the importance of document in Trial Court, would not bring the case within expression “other substantial cause”. If the party was negligent, he is not entitled to seek for exercising the discretion of the Court in his favour. In support of his contention, he relied upon the judgment reported in 1999(2) Kar.L.J.32 in the case of S.M.BASAVARAJAPPA VS.
S.N.MANJUNATHA AND ANOTHER. Learned counsel relying upon this judgment would contend that the appellants have to satisfy the Court that with due diligence, they could not produce the documents. No such averments in the affidavit as to what prevented them in not producing those documents. Learned counsel would also contend that the documents on which the appellants are relying upon before this Court were in their custody. It is not their case that the existence of the documents was not within their knowledge and also not their contention that the said documents were obtained recently. Hence, the Order 41 Rule XXVII of Code of Civil Procedure cannot be invoked.
24. Learned counsel appearing for the appellants while arguing the matter has made it clear that though the suit is filed in respect of ‘A’ to ‘C’ schedule properties, the appellants are restricting their claim only in respect of Suit Schedule ‘A’ property and not in respect of ‘B’ and ‘C’ Schedule properties. In view of the said submission, this Court has to restrict the consideration of this appeal only in respect of ‘A’ Schedule property.
25. Having regard to the arguments of the appellants’ counsel and also respondents’ counsel, the points that arise for the consideration of this Court are:
1. Whether the Court below has committed an error in dismissing the suit filed by the plaintiffs in respect of ‘A’ Schedule property by coming to the conclusion that the plaintiffs do not have any right in respect of the same and whether it requires interference of this Court?
2. Whether the Court below has committed an error in coming to the conclusion that Suit Schedule ‘A’ property exclusively belongs to Pachappa and Gundappa?
3. Whether the appellants have made out grounds to allow the application filed under Order 41 Rule XXVII of Code of Civil Procedure permitting the plaintiffs/appellants to produce additional evidence before this Court?
4. What order ?
26. Point No.3:- Before considering the merits of the case, the appellants have filed an application invoking Order 41 Rule XXVII of Code of Civil Procedure seeking permission to produce the additional documents and the same has to be considered along with this appeal. Hence, it is appropriate to consider the said application at the first instance than considering the other points.
27. The main contention of the appellants’ counsel in the application is that 'A' Schedule Property is of the land bearing Sy.No.2/6 of Bilekahalli Village measuring about 26 guntas including kharab of 1 gunta. Respondent No.2 claims to have purchased the 'A' Schedule Property, whereas the appellants have specifically contended that they have sold the land bearing Sy.No.124/2 of Bilekahalli Village. Hence, the documents sought to be produced before this Court are necessary since it is in respect of Sy.No.124/2.
28. The other reasons assigned in the affidavit are that the documents now sought to be produced were misplaced, the litigation in the above suit is not the only litigation between the parties and admittedly, there are other litigations also. While conducting the other litigations and dealing with the documents, the documents which are sought to be produced were lost sight of by the appellants as well as the Advocate appearing for the appellants earlier and that the appellants were always diligent in conducting the case.
29. Respondent No.2 in the objection statement would contend that it is not the case of the appellants that the documents were not available with them and also it is not their contention that it was not the only litigation to produce the additional documents. There is no disclosure of any diligence in the affidavit and hence, the same cannot be entertained.
30. Both the parties have relied upon the judgments referred supra and this Court has given anxious consideration to the principles laid down in the judgment referred supra with regard to invoking of Order 41 Rule XXVII of Code of Civil Procedure. It is settled law that the party who is seeking permission under Order 41 Rule XXVII of Code of Civil Procedure must satisfy the Appellate Court that the additional documents was not within his knowledge and in spite of due diligence, he could not produce the same. It is also settled law that if the documents produced along with the application filed under Order 41 Rule XXVII of Code of Civil Procedure throws light to unearth the truth, the same should be permitted. It is also the settled law that the Court while receiving the additional evidence under Order 41 Rule XXVII of Code of Civil Procedure to see that whether additional evidence is relevant or has a material bearing on the issues involved before the Court and also whether any sufficient cause has prevented the appellants in not producing such additional evidence despite due diligence and then the Court has to decide permitting the appellants to produce the documents. Before considering the said documents this Court would like to make a mention in bringing the real issues involved between the parties.
31. The crux of the matter is whether 'A' Schedule Property is amenable for partition and whether defendant No.2 has purchased the 'A' Schedule Property. It is the case of the appellants that they have sold the property bearing Sy.No.124/2 and it is the contention of defendant No.2 that Sy.No.2/6 i.e., 'A' Schedule Property is purchased by her but due to over sight the survey number is mentioned as 124/2 and the same was rectified while purchasing the same by defendant No.2. The Court has to see the boundaries mentioned in the sale deeds. It is to be noted that there is no dispute with regard to the sale is concerned, but only this Court has to determine whether the property is Sy.No.2/6 or Sy.No.124/2 and while deciding the issue, the schedule mentioned in the documents are also essential.
32. Now the questions before this Court are whether the documents sought to be produced under Order 41 Rule XXVII of Code of Civil Procedure are necessary to decide the issue between the parties and whether those two documents have material bearing on the consideration to decide the germane issue involved between the parties. The documents sought to be produced are the Hissa Survey Record of Rights and the same discloses only the extent of land in respect of Sy.No.124/2 and the other document is the Xerox copy of pahani from the year 1970-71 to 1974-75. First of all Xerox document is not an admissible document and the same cannot be entertained. The crux of the matter is whether the property sold was Sy.No.124/2 or Sy.No.2/6. Hence, these two documents do not throw any light to decide the issue involved between the parties. The other aspect of the matter is as rightly pointed out by respondent No.2 counsel, it is not the case of the appellants that they were not having those documents and also not having complete knowledge about those documents and what prevented them in not producing the documents before the Court below has not been explained. On perusal of the document No.1, it shows that the document was obtained long back in the year 1994 i.e., 30.6.1994 and the suit was filed in the year 1991. Though the reason assigned that the documents were misplaced and there were more number of litigations, that is not a ground to invoke Order 41 Rule XXVII of Code of Civil Procedure. The ground is very much specific that the appellant has to show that he is very diligent, in spite of he being diligent, could not produce the same before the Court and also sufficient cause which prevented him in not producing the documents has not been sworn to in the affidavit. Hence, the Court cannot invoke Order 41 Rule XXVII of Code of Civil Procedure.
33. For these two reasons, it is the opinion of the Court that the appellants have not made out any grounds to invoke Order 41 Rule XXVII of Code of Civil Procedure. Hence, I answer point No.3 in the negative.
34. Point Nos.1 & 2:- On perusal of the plaint, it is clear that suit is filed seeking the relief of partition and separate possession in respect of suit schedule ‘A’, ‘B’ and ‘C’ properties. In view of restriction in respect of 'A'
Schedule Property, it is not necessary to discuss in detail the entire evidence adduced by the appellants before the Court below. This Court considers the pleadings and evidence in respect of the 'A' Schedule Property.
Sy.No.2/6 of Bilekahalli Village which is morefully described in the 'A' Schedule Property, originally belongs to Smt.Muniyallamma, after her death, it was inherited by her husband Muniveerappa and two sons Gundappa and Pachappa. All the three of them have constituted an undivided Hindu joint family. This land was succeeded by the joint family consisting of Muniveerappa and his sons. It is also the allegation in para No.6 of the plaint that defendant No.2 is trying to build a house on the 'A' Schedule Property. She is not entitled to put up construction. The land is not converted and she has not obtained any necessary license to put up construction. It is also contended that plaintiffs and the first defendant are in joint possession of the 'A' and ‘B’ Schedule Properties.
36. The first defendant, who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 5 in his written statement contended that the plaintiffs are very well aware that the Suit schedule properties are not existing and the same are sold by him for the benefit of legal necessity of his children. It is also contended in his written statement that he himself and his brother i.e., husband of the plaintiff No.6 and the father of plaintiff Nos.7 to 10 got separated from the joint family after purchasing the 'B' Schedule Property and the properties were also divided by executing a palupatti dated 25.07.1964. Since both of them got separated and partitioned the property, they became the absolute owners of their respective portions and as such, they are entitled to alienate their respective portions of the said properties i.e., 'A', ‘B’ & ‘C’ Schedule Properties and they are not in joint possession of the plaintiffs and the first defendant.
37. Defendant No.2, who is the contesting party in the suit, in his written statement contended that the property originally belongs to Smt.Muniyallamma and subsequently, her husband also passed away. Pachappa, who is the brother of first defendant has sold ½ portion of the 'A' Schedule Property to Muniswamy Raju in the year 1964 when he was alive. Similarly, first defendant herein also sold remaining ½ portion of the 'A' Schedule Property to Smt.Kannamma W/o Muniswamy Raju in the year 1968. Thus, both husband and wife have purchased the 'A' Schedule Property, which is the self acquired property of the defendants and they are legally entitled to alienate the same. It is the contention of 2nd defendant that she purchased these two properties from Muniswamy Raju and Smt.Kanamma under the registered sale deeds for a valuable sale consideration vide sale deed dated 05.01.1981 and since then she has been in lawful possession and enjoyment of the 'A' Schedule Property without any interruption. It is also the case of 2nd defendant that after purchasing the said property, she obtained license and also the approved plan from the Panchayath to put up factory shed for commercial purpose. Accordingly, the panchayath sanctioned the plan for the said purpose and even the Bengaluru Development Authority approved the said plan for the said purpose. Thereafter, she constructed the factory shed and rented the same. The remaining portion of the property was also utilized for residential purpose by constructing a house nearly measuring 12 squares building. It is also the case of the 2nd defendant that the portion of the 'A' Schedule Property has been gifted in favour of her two daughters defendant Nos.3 and 4 in the month of December 1981 under the registered gift deeds. Hence, the very contention that the 'A' Schedule Property is amenable for partition cannot be accepted.
38. Defendant Nos.5 to 7 have also filed the written statement in respect of 'B' Schedule Property, which they have purchased. In view of restricting the prayer in respect of ‘A’ schedule property by the plaintiffs, consideration of written statement filed by defendant Nos.5 to 7 is immaterial. Defendant Nos.3 and 4 have reiterated the contention of defendant No.2 and contended that defendant No.2 gifted the property bearing Sy.No.2/6 in their favour and claimed that they are in possession.
39. Having considered the pleadings, this Court has to re-appreciate the evidence available on record both oral and documentary. The plaintiffs/appellants examined one witness as PW.1. PW.1, in his evidence reiterated the averments of the plaint and the evidence has been restricted only in respect of 'A' Schedule Property for consideration. In respect of the claim of the plaintiffs, PW.1 has also relied upon the documents Ex.P.1 to Ex.P.11. In the cross-examination, it is elicited that her husband is not residing with her and he is residing separately. It is also admitted that 2nd defendant has constructed two houses on 'A' Schedule Property. It is suggested that apart from two houses, other 2-3 persons have constructed the house and the same was denied. It is elicited that she is residing in the rented house opposite to the 'A' Schedule Property. She admits that Pachappa and Gundappa are brothers. It is suggested that both of them have sold their respective portions of the 'A' Schedule Property to Muniswamy Raju and Smt.Kannamma and the same was denied. PW.1 admits that Muniyallamma died in the year 1960. It is admitted that 2nd defendant is residing in the 'A' Schedule Property. It is elicited that she does not know whether Village Panchayath had issued license for construction of house and she also does not know whether 2nd defendant is paying Kandayam in respect of 'A' Schedule Property since 1981. It is elicited that she does not know whether they are trying to demolish the said two houses. It is elicited that she does not know whether Muniswamy Raju and his wife sold the 'A' Schedule Property to 2nd defendant, but she claims that she has got document to show that she is paying Kandhayam. PW.1 also further examined and marked the additional documents up to Ex.P.38. In the further cross- examination, it is elicited that she does not know the execution of sale deed made by the brother of her husband Pachappa in the year 1964 in favour of Muniswamy Raju i.e., vendor of defendant No.2.
40. Plaintiffs also examined PW.2-Kullappa. PW.2, in his evidence says that Gundappa and Pachappa were living together. The first defendant is not residing with the first plaintiff and he is residing along with his kept mistress. 'A' Schedule Property is at a distance of 2 furlong from his house. There are two houses in the property and rest is vacant land. He does not know who are residing in those two houses, but he claims that the defendants are in possession of the vacant land. In the cross-examination, it is elicited that he does not know whether there was a partition in between them in the year 1961. He does not know whether Pachappa and Gundappa sold the 'A' Schedule Property to Kannamma and Muniswamy Raju. He does not know after selling the same, the first plaintiff was a tenant under Muniswamy Raju. He does not know whether Muniswamy Raju and Kannamma together sold 'A'
Schedule Property in favour of defendant No.2. It is suggested that there is a factory in 'A' Schedule Property and he denies the same. He does not know whether Vijaya and Vijayalakshmi i.e., defendant Nos.3 and 4 have constructed two houses in the 'A' Schedule Property, but he claims that the suit schedule property is measuring an extent of 26 guntas.
41. The plaintiffs have also examined PW.3. PW.3, in his evidence says that defendant No.1 is residing separately from the first plaintiff. The first defendant and his brother Pachappa are the owners of suit schedule properties. He has seen the 'A' Schedule Property and the same is at a distance of 1 kilo meter from his house. There are two houses in the suit site and the remaining portion is vacant. The remaining vacant land is in possession of the first plaintiff. The evidence of PW.3 is similar to the evidence of PW.2.
42. On the other hand, the 2nd defendant examined her husband, who is the Power of Attorney holder as DW.1 and got marked the Power of Attorney as Ex.D.1. It is also his evidence that 2nd defendant has purchased the 'A' Schedule Property from Muniswamy Raju and Kannamma on 05.01.1981 vide sale deed, which is marked as Ex.D.2. The plaintiff has the knowledge about the purchase of 'A' Schedule Property by defendant No.2 since the plaintiff and Kannamma are close friends. The first plaintiff also told defendant No.2 that she can purchase the property from Kannamma and Muniswamy Raju. At that time, he was also present. Their vendors had purchased the 'A' Schedule Property from Pachappa and Gundappa, both of them have sold their respective ½ portion of the 'A' Schedule Property. The sale deeds are marked as Exs.D3 and D4. At that time, plaintiff Nos.2 to 5 were not yet born. The 'A' Schedule Property came to Gundappa and Pachappa through their mother. After purchasing the 'A' Schedule Property, the name of 2nd defendant has been entered in all the records and the same are marked as Exs.D.5 to D.7. They obtained the sanctioned plan for the construction of the industrial shed.
Ex.D.9 is the license and Ex.D.10 is the approved plan. Thereafter, they constructed industrial sheds and also the watchman shed in the ‘A’ Schedule property. They also constructed the residential house by obtaining loan from the Bank and they relied upon the other documents which are marked upto Ex.D.18.
43. D.W.1 was also subjected to cross- examination. In the cross-examination, he admits that he is residing along with his wife. It is elicited that in 'A' Schedule Property, there are five structures. Out of that, one is factory, other one is watchman shed, two houses and a car shed. The watchman shed and factory were put up in the year 1981, the construction of one house was started in the year 1981 and completed in the year 1991 and another house was constructed in the year 1983. The car shed was completed in the year 1991. The other two structures were constructed by Vijaya. The factory was constructed by his sister out of her money and by borrowing the loan from the Bank. His sister was running the said factory upto 1987. She was manufacturing the boards in the name and style of ‘Ajay Boards’. She was also manufacturing waterproof oil. His sister had obtained the license and plan for the construction of the factory shed. The said factory was registered under the Small Scale Industries. He was subjected to further cross- examination. In the further cross-examination, he claims that he gave instructions to the counsel to prepare written statement. He admits that there is no mention of Sy.No.2/6 in the sale deed obtained by their vendors. His vendors have purchased Sy.No.124 and not Sy.No.2/6. Before purchasing the same, they have gone through the documents of their vendors and Kannamma did not deliver the original sale deed. In R.R. and I.L., the name of Muniyallamma is entered in respect of Sy.No.2/6. Originally, the katha of Sy.No.2/6 was in the name of Muniyallamma and she was paying kandayam. There are no documents to show that the katha has been changed in favour of Kannamma in respect of Sy.No.2/6. It is elicited that Sy.No.124 is not changed as Sy.No.2/6. Pachappa sold his share in respect of Sy.No.2/6 in favour of Muniswamy Raju. In that sale deed also, Sy.No.2/6 is not mentioned. Only Sy.No.124 was purchased by Muniswamy Raju from Pachappa. The Village Accountant has not issued any notice. At the time when they purchased Sy.No.124 or Sy.No.2/6, it was vacant. Building construction was started in the year 1981 i.e., within 2 or 3 months of their purchase. He has no documents regarding partition effected in respect of Sy.No.2/6. He has no documents to show that Sy.No.124 is renumbered as Sy.No.2/6. He admits in terms of Ex.D.28 that only the property bearing Sy.No.124 was sold, but he claims that katha number is mentioned as 124 and survey number is mentioned as 2/6.
44. The first defendant, who is the husband of the first plaintiff has been examined as DW.2. In his evidence, he says that he has not engaged any Advocate in the above case. Defendants No.2 to 4 have asked him to put his signature on blank papers and he has not instructed the Advocate to file written statement on his behalf. He claims that he has not executed any sale deeds in favour of Muniswamy Raju and Smt.Kannamma. He was subjected to cross-examination. In the cross-examination, he admits that the land bearing Sy.No.2/6 was formerly belonged to his paternal grand-mother Muniyallamma. After her death, the said property was inherited by her husband and he himself and his brother Pachappa. He claims that at present, the said land is in possession of the plaintiffs and himself. It is suggested that he is not in possession of Sy.No.2/6 and Vishalakshamma is in possession of the said land and the same was denied. He has not produced any document to show that he is being in possession of the said land. He does not know about the documents produced by defendant No.2 in relation to Sy.No.2/6. It is suggested that 2nd defendant Vishalakshamma purchased the land bearing Sy.No.2/6 from Kannamma in the year 1981 and the same was denied. It is suggested that 2nd defendant constructed the house on the land bearing Sy.No.2/6 and she is in possession of the same and the same was denied. It is suggested that even though Pachappa and he himself sold the land bearing Sy.No.2/6 to Kannamma and Muniswamy Raju, he has falsely deposed before the Court and the same was denied.
45. The defendants have examined one witness- DW.3 and in his evidence, he says that he is the neighbouring owner of 'A' Schedule Property. His property bearing Sy.No.4 is adjoining to 'A' Schedule Property. The 'A' Schedule Property is situated to the eastern side of his property and 2nd defendant is in possession and enjoyment of the 'A' Schedule Property since 1981. Prior to 1981, Muniswamy Raju and Kannamma were in possession and enjoyment of the 'A' Schedule Property. In the year 1968, Pachappa sold the half portion of the property to Muniswamy Raju. The first defendant sold the remaining half portion in the year 1968 to Kannamma. 'A' Schedule Property is Sy.No.2/6. The 2nd defendant has put up foundation and completed the construction of the house in the year 1991. There are five sites in the 'A' Schedule Property which are belonging to defendant Nos.2 and 3.
46. D.W.3 was subject to cross-examination. In the cross-examination, it is elicited that the property bearing Sy.No.2/6 of the 2nd defendant is to the Eastern side of Sy.No.4 and Annaiahappa’s property to the western side and he does not know the survey number. He claims that the Sy.No.2/6 measures an extent of 25 guntas and he is not signatory to the sale deeds. He know the 2nd defendant since 1985 since she has purchased his neighbouring property. Five sites are formed by the 2nd defendant and he does not know whether those sites are approved or not. It is suggested that 2nd defendant is not having any right in respect of Sy.No.2/6 and the same was denied. It is suggested that 2nd defendant has not constructed any house in 'A' Schedule Property and the same was denied.
47. Defendant No.4 is the purchaser of other property and his evidence is immaterial since there is no issue before this Court, in view of restricting the appeal only in respect of 'A' Schedule Property. DWs.5 and 6 are claiming their rights in respect of 'A' Schedule Property through the 2nd defendant and hence, there is no need to discuss their evidence.
48. Keeping in view the contentions of both learned counsel appearing for the appellants as well as learned counsel appearing for respondent No.2, this Court has to re-appreciate the evidence available on record before this Court. There is no dispute with regard to the principles laid down in the judgment referred by the appellants’ counsel with regard to the First Appellate Court could consider the question of fact and also the question of law and the scope of the First Appellate Court is to consider both and all the issues involved between the parties can be considered. The judgment quoted by the appellants’ counsel with regard to the scope and ambit of Section 96 of Code of Civil Procedure, there is no dispute.
Hence, those judgments are applicable and it is also the settled law.
49. Keeping in view the principles laid down in the judgments and also the material available on record, the property originally belongs to Muniyallamma is not in dispute and she died intestate leaving behind her husband and two sons is also not in dispute. It is also important to note that the plaintiffs/appellants also claim that the property belongs to Muniyallamma, but their contention is that they have sold the property bearing Sy.No.124/2 and not the Sy.No.2/6. The Sy.No.2/6 is amenable for partition. The contention is that the Court below has committed an error in dismissing the suit. It is to be noted that in the original sale deed Ex.P.28, the survey number is mentioned as 124/2. It is also not in dispute that the husband of the first plaintiff and husband of defendant No.6 have sold the property in favour of Muniswamy Raju and also in favour of Kannamma. On perusal of the sale deeds, it is clear that Sy.No.124/2 is mentioned and the said sale deeds are of the year 1964 and 1968.
50. It is also the undisputed fact that the 2nd defendant has purchased the property from those persons in the year 1981 under the sale deed-Ex.D.2. It is to be noted that while selling the property, the survey number is mentioned as 2/6. The very contention of the appellants that the very identification of the property is in dispute and defendant No.2 had purchased only Sy.No.124/2. It is to be noted that PW.1 in his cross-examination has categorically admitted that the 2nd defendant has been in possession of the 'A' Schedule Property. It is to be further noted that the plaintiffs have described in the plaint the Sy.No.2/6 as the 'A' Schedule Property and not Sy.No.124/2. It is pertinent to note that it is also not the case of the plaintiffs/appellants that the 2nd defendant has been in possession of Sy.No.124/2. PW.1 has categorically admitted the construction of house by the 2nd defendant, but tried to improve their case by examining PWs.2 and 3 and their evidence is similar. An attempt was made to show that the vacant land other than the constructed area is in possession of the plaintiffs through PW2 and PW3. No document has been placed before the Court to show that the plaintiffs have been in possession. It is pertinent to note that defendant No.1 is also examined as DW.2, who is non other than the husband of plaintiff No.1. His written statement is contrary to his oral evidence. In the written statement, he contends that the suit schedule properties are not amenable for partition, but he had gone to the extent of denying the said averments in his oral evidence. Hence, it is clear that he has adduced contrary evidence against his written statement. He did not dispute, the property bearing Sy.No.2/6 not belong to their family, but in the cross-examination, he has categorically admits that he has not produced any document to show that he has been in possession of the said land. Further, he says that he does not know about the documents produced by defendant No.2 in relation to Sy.No.2/6. It is suggested that the 2nd defendant Vishalakshamma purchased the land bearing Sy.No.2/6 from Kannamma in the year 1981 and he denies the same. It is suggested that Vishalakshamma constructed the house on the land bearing Sy.No.2/6 and she is in possession of the same and the same was denied, but he claims that her children have constructed the said house and he has not produced any document before this Court. It is to be noted that while examining PWs.2 and 3, an attempt was made to show that the plaintiffs have been in possession in respect of the vacant land, but it is important to note that PW.1- plaintiff No.1 has categorically admitted that 2nd defendant has constructed the building in Sy.No.2/6, though she has not specifically admitted it is in Sy.No.2/6 and further, she also categorically admits that defendant No.2 made construction in 'A' Schedule Property. The 'A' Schedule Property is described as Sy.No.2/6. Hence, it is clear that the defendant No.2 has been in possession of Sy.No.2/6 by constructing industrial shed and houses.
51. Defendant No.2 also examined one witness as DW.3, who is the neighbour of the land bearing Sy.No.2/6. He categorically says in his evidence that 2nd defendant is in possession and enjoyment of the 'A' Schedule Property since 1981. He also admits that prior to 1981, Muniswamy Raju and Kannamma was in possession and enjoyment of the suit schedule property. He also says in the year 1968, Pachappa sold ½ portion of the 'A' Schedule Property in favour of Muniswamy Raju and Gundappa sold remaining ½ portion of the property in favour of Kannamma. Both of them have sold the property in favour of 2nd defendant in the year 1981. It is his specific evidence that the 2nd defendant put up foundation and completed the house in the year 1991. There are five sites in the 'A' Schedule Property which belongs to defendant Nos.2 and 3. In the cross-examination of DW.3, he categorically says that to the eastern side of his property, the property of the 2nd defendant is situated i.e., Sy.No.2/6 and Annaiappa’s property to the western side, but he does know the survey number. He also says that the Sy.No.2/6 is measuring an extent of 25 guntas, but he is not the signatory to the sale deeds. His evidence is that the 2nd defendant formed 5 sites in Sy.No.2/6. It is suggested that 2nd defendant is not having any right in respect of Sy.No.2/6 and the same has been categorically denied.
52. Having considered all these admissions and the evidence available on record, it is clear that though in the sale deeds of vendors of 2nd defendant, Sy.No.124/2 is mentioned in the year 1964 and 1968, but in the sale deed in terms of Ex.D.2, Sy.No.2/6 is mentioned. It is also an admitted fact that subsequent to the purchase of the property by the 2nd defendant, she obtained the plan and constructed the building and also it is the categorical admission of the 1st plaintiff, who has been examined as PW.1 that 2nd defendant has constructed factory shed, two houses and a car shed and also the residential house and they are in possession of the said property. The specific admission is in respect of 'A' Schedule Property in which they are in possession. The plaintiffs have claimed the partition in respect of 'A' Schedule Property i.e., Sy.No.2/6 and the material available before the Court including documentary evidence and also the admission of PW.1 is clear that the 2nd defendant has been in possession of Sy.No.2/6.
53. It is pertinent to note that when the property is identifiable and when there are admissions that defendant No.2 is in possession of Sy.No.2/6 i.e., 'A' Schedule Property, the Court has to take note of the boundaries mentioned in the documents. The Apex Court in the judgment reported in LAWS (SC) 1995 2 32 in the case of P.UDAYANI DEVI VS. V.V.RAJESHWARA PRASAD RAO held that the matter may have been different if no boundaries had been given in the final decree for sale as well as in the sale certificate and only the plot number was mentioned. But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as mere misdescription which does not affect the identity of the property sold.
54. Having considered the admissions of PW.1 available on record, it is clear that it is only the misdescription of survey number as 124/2 instead of 2/6. Learned counsel also relied upon the unreported judgment passed in RSA No.2504/2011 and in para No.5 of the judgment, this Court held that the boundaries of the property will prevail over the wrong description of survey number and extent. The boundaries of the property in occupation of the plaintiffs tally with the boundaries as shown in the sale deeds. However, there is wrong mentioning of Sy.No. in the sale deeds. Hence, the boundaries of the property will prevail over the wrong description of survey number and extent. The very same principle is also reiterated by the Madras High Court in the judgment reported in LAWS (MAD) 2009 8 330 in the case of PERIASAMY VS. NAINAMALAI. The judgments quoted by the 2nd defendant are aptly applicable to the case on hand.
55. Having considered the materials available on record and also oral and documentary evidence, it is clear that the property sold is Sy.No.2/6 and not Sy.No.124/2 as contended by the plaintiffs/appellants. There is clear admission in respect of Sy.No.2/6 and the defendant No.2 has been in possession of the same. The Court below also has taken note of the Commissioner Report and its description given by the Commissioner. It is to be noted that the plaintiffs/appellants have given the description in the 'A' Schedule Property and also the same does not tally with the original sale deeds executed in favour of the vendors of defendant No.2. If really the Sy.No.124/2 was sold, the description should have been different. However, the description mentioned in the plaint does not tally with the other documents. The Court below has considered the Report given by the Commissioner and the Commissioner also pointed out that defendant No.2 has been in possession of Sy.No.2/6. Though DW.2-husband of PW.1 denies the possession of defendant No.2 in Sy.No.2/6, the very admission of PW.1 is clear that Defendant No.2 has been in possession of Sy.No.2/6. The evidence of DW.3, who is the neighbour of defendant No.2 also clearly deposed that on the eastern side of his property, Sy.No.2/6 is located and defendant No.2 is in possession. Nothing is elicited in the cross-examination of DW.3 that he is falsely deposing in order to help defendant No.2. His evidence is also very clear that defendant No.2 took up the construction work immediately after the purchase of property in the year 1982 and materials available on record also disclose that from the date of purchase, the 2nd defendant and her daughters are in possession of the same. The plaintiffs have not disputed the construction undertaken by defendant No.2 in the initial stage. Though, it is contended by the plaintiffs through PWs.2 and 3 that the plaintiffs have been in possession of the remaining area of the land, nothing has been placed before the Court in respect of Sy.No.2/6 to prove the same. Therefore, the boundaries would prevail over the misdescription of Sy.No.124/2. The plaintiffs taking advantage of the misdescription of survey number are trying to get the benefit and relief as sought in the plaint. Hence, considering oral and documentary evidence and particularly, the admission by PW.1, I am of the opinion that there are no good grounds to entertain the appeal filed by the appellants/plaintiffs.
In view of the discussion made above, I pass the following:-
ORDER (i) The appeal is dismissed.
(ii) I.A. filed under Order 41 Rule XXVII of Code of Civil Procedure is also dismissed.
(iii) No cost.
Sd/- JUDGE Sma/PYR