IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1515/2006 (INJ) BETWEEN:
SMT.PARVATHAMMA W/O LATE SHIVASHANKARAIAH MAJOR R/O NO.1212, 1ST CROSS ‘K’ BLOCK, RAMAKRISHNANAGAR MYSORE – 570 001 … APPELLANT (BY SRI G.LAKSHMEESH RAO, ADVOCATE) AND:
V.S.KRISHNOJI RAO S/O LATE V.K.SEETHARAM RAO SINCE DECEASED BY HIS LRS:
(DELETED AS PER ORDER DATED 11.08.2015) 1. RADHA BAI W/O KRISHNOJI RAO AGED 76 YEARS R/O TULAJABHAWANI STREET SHIMOGA – 577 201 2. V.K.SURESH RAO S/O LATE V.S.KRISHNOJI RAO AGED 57 YEARS R/O MALAVAGAPPA SHIMOGA – 577 201 3. V.K.RAMESH S/O LATE V.S.KRISHNOJI RAO AGED 55 YEARS R/O TULUJABHAVANI STREET SHIMOGA – 577 201 4. V.K.NAGESH S/O LATE V.S.KRISHNOJI RAO AGED 55 YEARS R/O TULUJABHAVANI STREET SHIMOGA – 577 201 …RESPONDENTS (BY SRI S.GANGADHARA AITHAL, ADVOCATE FOR R2-R4;
VIDE ORDER DATED 24.07.2015 R1-NOTICE DISPENSED WITH) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 2.1.2006 PASSED IN R.A.NO.49/2001 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.02.2001 PASSED IN O.S.NO.525/92 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.), SHIMOGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.10.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This defendant’s appeal arises out of the judgment and decree dated 02.01.2006 in R.A.No.49/2001 passed by the Principal Civil Judge (Senior Division) and C.J.M., Shimoga.
2. By the impugned judgment and decree, the first appellate court reversed the judgment and decree dated 26.02.2001 in O.S.No.525/1992 passed by the Principal Civil Judge (Junior Division), Shimoga and decreed the suit of the plaintiffs for permanent injunction.
3. Respondents were the plaintiffs and the appellant was the defendant before the trial court. Plaintiff U.S.Krishnoji Rao filed O.S.No.525/1992 against the defendant for permanent injunction. Pending the suit, he died and the present respondents-1 to 4 were brought on record as his legal representatives (plaintiff Nos.1 to 4).
4. For the purpose of convenience, the parties will be henceforth referred to as per their ranks before the trial court. The subject matter of the suit was house site bearing Municipal Khata No.1356/1322/1423 measuring 30 feet x 56 feet situated at 1st Cross, Vidyanagar, Shimoga.
5. The case of the plaintiff in brief was as follows:
One P.Siddaiah was the owner of the suit property. Plaintiff purchased the suit property from P.Siddaiah under a registered sale deed dated 30.11.1946. Since then he was in exclusive and peaceful possession and enjoyment of the said property. When the City Municipality, Shimoga tried to meddle with the khata standing in favour of the plaintiff, he filed O.S.No.59/1980 against the City Municipal Council for mandatory injunction. That suit was decreed and khata in favour of the plaintiff was restored. Eastern boundary of the plaintiff’s property was one Khatejabi’s house. Defendant filed O.S.No.231/1977 before the Prl.Civil Judge (Jr.Dn.), Shimoga, against Khatejabi for possession of said property of Khatejabi. That suit was decreed. Defendant filed Execution Petition No.73/1992. In the guise of taking possession of Khatejabi’s property in that case, the defendant claims to have taken possession of suit schedule ‘C’ site forming part of plaintiff’s site and trying to put up construction there. Thus, he seeks permanent injunction.
6. Defendant filed the written statement and contested the suit. The gist of his written statement was as follows:
The plaintiff’s title and possession was denied. It was denied that the property the possession of which was purportedly taken by the defendant in execution of the decree forms part of the plaintiff’s property. The boundaries mentioned in the plaint were disputed. He has taken possession of the property in due execution of the decree. The suit for bare injunction was not maintainable.
7. On the basis of such pleadings, the trial court framed the following issues:
“1. Whether the plaintiff proves that he is in lawful possession of the suit property?
2. Does he prove the alleged obstruction by defendant?
3. What decree or order?”
8. The parties adduced evidence. The trial court on hearing the parties dismissed the suit on the following grounds:
(i) Plaintiff’s title and possession of the suit property was not proved;
(ii) The identity of the property was not proved;
(iii) There is inconsistency in the evidence of PW-1 and his documents Exs.P2 to P4;
(iv) Plaintiff or his legal representatives did not enter the witness box but they chose to examine their Power of Attorney Holder.
9. The plaintiffs challenged the said judgment and decree in R.A.No.49/2001 before the Principal Civil Judge (Senior Division) and C.J.M., Shimoga. Before the first appellate court, the plaintiffs filed an application to adduce additional evidence. The first appellate court on hearing the parties by the impugned judgment and decree rejected the application of the plaintiffs to adduce additional evidence.
10. Further, the first appellate court allowed the appeal, reversed the judgment and decree of the trial court and decreed the suit on the following grounds:
(i) The plaintiffs’ title and possession to the suit property is proved by Exs.P2 to P4 - the registered sale deeds and Ex.P5 - Demand Register extract;
(ii) Exs.D3 & D4 namely judgment and decree in O.S.No.231/1977 and R.A.NO.75/1986.
Ex.D13 the bailiff’s endorsement in Execution Petition No.73/1992, the only documents relied upon by the defendant were not inter-partes, therefore, inadmissible in evidence except for the purpose of ascertaining who the parties were in the said case, what was the property involved and what was the decree passed;
(iii) The trial court was not justified in relying on the Commissioner’s report, since the objections were filed to the Commissioner’s report by both side and despite that he was not examined;
(iv) The defendant’s own document Ex.D6 shows that the defendant’s alleged site No.80 situates in the layout allegedly formed by the Shimoga Municipality in Islapur village, but the said land was still standing in the name of a deity;
(v) Defendant in her deposition in O.S.No.231/1977 has admitted that she is not in actual possession of site No.19. Therefore, her possession is not proved.
11. This Court admitted the appeal to hear on the following substantial question of law:
“Whether the lower appellate court was justified in law in holding that judgments in O.S.No.231/1977 and R.A.No.75/1986 were not admissible in evidence having regard to the provisions contained under Sections 13 and 43 of the Indian Evidence Act and in the light of the decision of the Apex Court in Tirumala Tirupati Devasthanam –vs- K.M.Krishnaiah AIR 1998 SC 1132?”
12. The original plaintiff and defendant both claimed to have purchased the same property. As per the plaintiff, property bears khata No.1356/1322/1423. But as per the defendant, that bears site No.19. Plaintiff relied upon Exs.P2 to P4 i.e., his sale deed dated 30.11.1946, his vendor’s sale deed dated 9.4.1945 and his vendor’s vendor’s title deed dated 24.09.1942. He also relied on the Demand Register extract Ex.P5 and the judgment and decree in O.S.No.59/1980 as per Ex.P6 passed in his favour. Whereas, the defendant relied upon Ex.D1, the certified copy of his sale deed dated 23.03.1992 and Exs.D3 and D4, the certified copies of the judgment and decrees in O.S.No.231/1977 and R.A.No.75/1986.
13. The defendant had filed O.S.No.231/1977 against Khatijabi and others for declaration of her title to site No.19 and for possession. Siddaramappa, who allegedly sold the said site to the present defendant, was also a party in that suit. The said suit was decreed in favour of the present defendant. Plaintiff was not a party to the said suit. She contended that the decree in the said suit was outcome of collusion and that does not bind her.
14. The trial court relied upon the said judgment to hold that the defendant is the owner and is in possession of the suit property. However, the first appellate court held that since the judgment was not inter-partes, the same is not relevant and inadmissible to prove the title and possession of the defendant, but admissible only to the extent of ascertaining what was the property, who the parties were and what was the decree passed therein.
15. The learned Counsel for the appellant relying on Section 13 and 43 of the Indian Evidence Act, 1872 (‘the Act’ for brevity) and the judgment of the Hon’ble Supreme Court in Tirumala Tirupati Devasthanams – vs- K.M.Krishnaiah1 referred to supra contends that the Ex.D3, Ex.D3(a) and Ex.D4 were admissible in evidence to prove the title and possession of the defendant. Whereas plaintiff’s Counsel submits that the said judgment and decrees were not inter-partes, therefore were inadmissible.
16. Under the circumstances, it is relevant to examine Sections 13 and 43 of the Act and the judgment in Tirumala Tirupati Devasthanam’s case with reference to other judgments of the Hon’ble Supreme Court including the judgment of the Hon’ble Supreme Court in State of Bihar and others –vs- Sri Radha Krishna Singh and others2 relied upon by the first appellate court.
1 AIR 1998 SC 1132 2 AIR 1983 SC 684 17. Sections 13 and 43 of the Act read as follows:
“13. Facts relevant when right or custom is in question- Where the question is as to the existence of any right or custom, the following facts are relevant:-
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from.”
. . . . .
“43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.-Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.”
(Emphasis supplied) 18. In the case on hand, plaintiff did not dispute the existence of the judgment and decree in O.S.No.231/1977 and R.A.No.75/1986 as per Exs.D3, D3(a) and D4. Therefore they were not the facts in issue.
19. Section 40 of the Act deals with bar from the court taking cognizance of the case due to existence of the judgment. That means whether the issue is hit by the principles of res judicata.
20. Section 41 of the Act deals with the judgments in probate, matrimonial admiralty or insolvency jurisdiction, that means the judgments in rem.
21. Section 42 of the Act deals with the judgment and decrees, which relate to the matter of public nature. But still it says that such judgments and orders are not conclusive proof of what they state. The judgments and decree in Exs.D3, D3(a) and D4 were not covered under Sections 40 to 42 of the Act.
22. In the light of the fact that the judgments did not fall under any of the components of Section 43, the attempt was made to connect Section 43 to Section 13 of the Act.
23. Chapter-II of the Act under which Section 13 falls relates to the relevancy of facts. Section 5 of the Act states that evidence may be given in a suit or proceeding of a fact in issue or the facts, which are declared as relevant by the other provisions of the Act.
24. Section 13 of the Act states that where the question is as to the existence of any right or custom, a transaction by which the right or custom in question was recognized, disputed or asserted or departed or the transaction which was inconsistent with the existence of such fact is relevant.
25. In Tirumala Tirupati Devasthanam’s case, the Bench of Two Judges in para-9 of the judgment held that in Srinivas Krishna Rao Kango –vs- Narayan Devji Kango’s case and Sital Das –vs- Sant Ram’s case, the larger Bench of the Hon’ble Supreme Court has held that judgment not inter-partes was also admissible in evidence having regard to Section 13 of the Act.
26. Reading of the judgments in Mahant Sital Das –vs- Sant Ram and Others3 and Shrinivas Krishnarao Kango –vs- Narayan Devji Kango and Others4, shows that in those cases though the judgments relied on were not inter-partes they were between the parties through whom the litigating parties claimed. Therefore, they are not applicable. Whereas the three Judges Bench of the Supreme Court in State of Bihar and others –vs- Sri Radha Krishna Singh’s case relied upon by the first appellate court had the occasion to consider the mutual effect of Sections 13 and 43 of the Act and the effect of the judgments, which are not inter-partes. Examining all earlier case laws and the 3 AIR 1954 SC 606 4 AIR 1954 SC 379 provisions of Sections 13 and 43 of the Act in the said case, the Hon’ble Supreme Court held as follows:
“121. Some Courts have used Section 13 to prove the admissibility of a judgment as coming under the provisions of S.43, referred to above. We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the Court to call into aid other general provisions in order to make a particular document admissible. In other words if a judgment is not admissible as not falling within the ambit of Section 40 to 42, it must fulfill the conditions of S.43 otherwise it cannot be relevant under S.13 of the Evidence Act. The words “other provisions of this Act” cannot cover S.13 because this section does not deal with judgments at all.
133. The cumulative effect of the decisions cited above on this point clearly is that under the Evidence Act a judgment which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject matter of the suit. In these circumstances, therefore, it is not open to the plaintiffs-respondents to derive any support from some of the judgments which they have filed in order to support their title and relationship in which neither the plaintiffs nor the defendants were parties. Indeed, if the judgments are used for the limited purpose mentioned above, they do not take us anywhere so as to prove the plaintiffs’ case.”
(Emphasis Supplied) 27. Thus, it was held that, if the judgment is not admissible as not falling within the ambit of Sections 40 to 42 of the Act, it must fulfill the conditions of Section 43, otherwise it cannot be relevant under Section 13 of the Act.
28. In Tirumala Tirupati Devasthanams’s case, the larger Bench judgment of the Hon’ble Supreme Court in State of Bihar’s case referred to supra, was not referred to. Under such circumstances, this court has to follow the said larger Bench judgment in State of Bihar’s case. In that event, the lower appellate court was justified in holding that the judgments in O.S.No.231/1977 and R.A.No.75/1986 were not admissible in evidence except for the purposes stated therein. Therefore, the substantial question of law formulated is answered in affirmative.
29. Learned Counsel for the appellant vehemently argued that the first appellate court did not consider the evidence with regard to the identity of the property and properly appreciate the Commissioner’s report, etc. He further argued that this court has to formulate additional substantial question of law on those aspects.
30. The Hon’ble Supreme Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs.5 and Gurnam Singh (Dead) by LRs & Others –vs- Lehna 5 AIR 2001 SC 965 Singh (Dead) by LRs.6 has held that on the question of facts, the first appellate court is the last court unless perversity is shown.
31. Though the defendant claimed that she has purchased the property on 23.3.1992 from one M.Siddaramappa, she did not produce her own original title deed or the title deed of her vendor. Her only trump cards were judgment and decrees as per Exs.D3, D3(a) and D4. On their exclusion from evidence, absolutely her defence has no legs to stand. Therefore, the question of considering the identity of the property did not arise. Probably considering all those aspects only, this court formulated substantial question of law only with regard to the applicability of Sections 43 and 13 of the Act and the judgment of the Hon’ble Supreme Court in Tirumala Tirupati Devasthanams’s case.
32. Under the circumstances and the judgments in Santosh Hazari and Gurnam Singh’s case, this 6 AIR 2019 SC 1441 court does not find that the questions sought to be raised constitute substantial questions of law. Therefore, those arguments are unacceptable.
For the aforesaid reasons, the appeal is dismissed with costs.
Sd/- JUDGE KNM/-