IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No.1509 OF 2005 BETWEEN B.Umapathy S/o. Basavalingachar, Aged about 45 years, R/at Harohalli village, Kanakapura Taluk-562117. …Appellant (By Sri. N.Vasudevan, Advocate) AND 1. Muthurayappa, S/o. Krishnappa, Since deceased by his LRs, a). Giriyamma, W/o. Muthurayappa, Aged about 68 years, b). Alumeluyamma, W/o. Venkataraju, D/o. Muthurayappa, Aged about 48 years, c). Venkatesh, S/o. Muthurayappa, Aged about 44 years, d). Thulasamma, W/o. Venkatappa, D/o. Muthurayappa, Aged about 46 years, e). Saraswathi, W/o. Ramesh, D/o. Muthurayappa, Aged about 42 years, f). Lakshmi, D/o. Muthurayappa, Aged about 40 years g). Nagaraju, S/o. Muthurayappa, Aged about 38 years, All are residing at Janatha Colony, Sindhyanagar, Harohalli village, Kanakapura Taluk, Ramanagar District, Pin code-562112.
(R1 (a) to (g) amended vide court Order dated 07/09/2017) (By Sri. T.Subramanya, V.Achutha Rao & Sri G.Manjunatha, Advocates) (absent) …Respondents This RSA is filed under Section 100 of CPC, against the judgment & decree dated 22.1.2005 passed in R.A.No.20/1994 on the file of the Presiding Officer, Fast Track Court, Ramanagaram, Dismissing the appeal and confirming the judgement and decree dated 28.1.1994 passed in O.S.No.230/1986 on the file of the Munsiff & JMFC, Kanakapura.
This RSA having been heard and reserved on 08.11.2017, coming on for pronouncement this day, the Court pronounced the following :
JUDGMENT The plaintiff in O.S.No.230/1986 on the file of Civil Judge, Junior Division, Kanakapura has filed this second appeal. His suit was dismissed and aggrieved by this judgment dated 28.01.1994, he preferred an appeal, R.A.No.20/1994 to the District Court. The learned judge of the Fast Track Court sitting at Ramanagara, who decided the appeal dismissed it by judgment dated 22.01.2005, and aggrieved by this judgment the plaintiff is before this Court.
2. The plaintiff pleaded before the trial court that the suit property i.e., shop premises in a portion of property bearing K.No.29, measuring East to West 10 ft. and North to south 15 ft. situated at Harohalli, Kanakapura Taluk belonged to him absolutely. He purchased the said property from Smt. Hayath Bee on 28.04.1983 under a registered sale deed. The defendant is a tenant in the said suit property on a monthly rent of Rs.50/- and in that connection he had executed a lease agreement in favour of the husband of the vendor of the plaintiff on 01.08.1968. The defendant induced the Tahsildar to grant the suit property to him on the ground that suit schedule properly was revenue land. Therefore the plaintiff aggrieved by the order of Tahsildar filed an appeal to the Assistant Commissioner, Ramanagara. The Assistant Commissioner set aside the grant. Then the defendant preferred an appeal, R.A.No.38/1986 before the Deputy Commissioner, Bengaluru. The plaintiff stated that the possession of the defendant over the suit property was unlawful in the background of the circumstances and therefore he filed a suit to recover the suit property from the defendant.
3. The defendant contended that Smt. Hayath Bee was not the owner of the suit property and that he was not a tenant there also. He denied to have executed lease agreement in favour of the husband of the vendor of the plaintiff. He took a specific stand that schedule property was part and parcel of Sy.No.704 of Harohalli village and it was a government land. For this reason the plaintiff could not claim that he was the owner of the said property. The plaintiff nor his predecessor in title was the owner of the suit property. He stated that he was in continuous and peaceful possession of the suit property for more than 30 years and as such the plaintiff had no right to recover possession from him.
4. The learned trial judge after appreciating the evidence both oral and documentary came to conclusion that the plaintiff failed to prove that any portion of land in Sy.No.704 was sold or granted to Venkata Sanjeevaiah who was the vendor of Smt. Hayath Bee.
The said land belonged to government and that no portion of it was granted to anybody. The burden was on the plaintiff to prove that Venkata Sanjeevaiah had valid title to the suit property. Since the plaintiff failed to substantiate that Venkata Sanjeevaiah had title, the sale deed said to have been executed by him in favour of Smt. Hayath Bee in respect of suit property did not confer any right or title on her and consequently the sale made by Smt. Hayath Bee in favour of the plaintiff was not a valid sale and therefore the plaintiff did not become the owner of the suit properly to recover possession. With these main observation the learned trial judge dismissed the suit.
5. In the appeal preferred by plaintiff before the District Court (Fast Track Court), the learned appellate judge also examined the evidence in entirety and he also came to conclusion that the entire land in Sy.No.704 of Harohalli village was a government land. The plaintiff was not able to prove his title. The first appellate court also upheld the findings of the trial court and dismissed the appeal.
6. On 22.01.2008 this appeal was admitted to examine the following substantial question of law.
“Whether the lower appellate court was justified in refusing to admit additional evidence produced before it which was by way of registered documents showing how the plaintiff’s vendor got title to the property when the trial court had dismissed the suit of the plaintiff on the ground that the plaintiff has failed to establish his vendor’s title?”
7. The learned counsel for the appellant / plaintiff argued that Ex.P.1 the sale deed produced by the plaintiff was a conclusive proof with regard to the title of the plaintiff. WP.No.23445/1993 was dismissed and thereby the defendant lost every right over the suit property. Concurrent findings given by the courts below was not a bar for allowing the second appeal. In support of his argument he referred to the judgment of the Supreme Court in Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequeira (dead) through LRs [(2012) 5 SCC 370].
8. I have gone through the judgment of the trial court as well as the first appellate court and also considered the case of the parties. The suit is for possession based on title. Unless the plaintiff establishes his title over the suit property, he is not entitled to possession. This is the basic principle. The trial court in the first instance has held that the plaintiff’s title has not been established. The first appellate court also re-appreciated the evidence and came to the same conclusion. As argued by the appellant’s counsel, there is no bar as such that in the second appeal there cannot be any interference with the concurrent findings given by the courts below. But the appellant must be able to point out a substantial question of law. Very strangely the learned counsel for the appellant argued that substantial question of law would not arise. If according to him, there is no substantial question of law, second appeal cannot be entertained. Anyhow this court while admitting the appeal framed substantial question of law which needs to be answered.
9. It is not the argument of the appellant counsel that the first appellate court perversely appreciated the evidence. Even I don’t find any infirmity in the re- appreciation of evidence by the first appellate court. All that is to be examined is because of non consideration of the appellant’s application under Order 41 Rule 27 Civil Procedure Code filed in the first appellate court, the substantial interest of the appellant has been affected or not.
10. The first appellate court came to conclusion that no purpose would be served even if the appellant was permitted to produce the additional evidence under Order 41 Rule 27 Civil Procedure Code. It has given the reasons that all the documents the appellant wanted to produce before the first appellate court pertained to some other property. Even if those documents were considered, they would not have improved the case of the plaintiff. Therefore the said application was dismissed.
11. I do not think that the reasons thus ascribed by the first appellate court for dismissing the application under Order 41 Rule 27 Civil Procedure Code are not proper. The Supreme Court has clearly held in the case of Wadi Vs. Amilal and others – ILR 2003 KAR 4637 that when considering an application under Order 41 Rule 27 Civil Procedure Code for additional evidence, vigilance or negligence of party is unnecessary and what is required to be considered is whether additional evidence is necessary because judgment without admitting the document is defective. If this principle is applied, it can be very well said that the documents that the appellant wanted to produce before the first appellate court by way of additional evidence were found to be irrelevant and they would not have served any purpose. So in these circumstances I find that rejection of the application was proper. Therefore the substantial question of law has to be answered in affirmative.
12. The judgment of the Supreme Court in the case of Maria Margarida Sequeira Fernandes (supra) that the appellant’s counsel has referred to does not come to the aid of the appellant. In this decision also it is held that the court must insist on documentary proof in support of the pleadings. Therefore the trial court and the first appellate court have not committed any error in holding that the plaintiff has not established his title.
13. From the above discussion I come to conclusion that this appeal deserves to be dismissed and ordered accordingly. There is no order as to costs.
Sd/- JUDGE sd