IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1579 OF 2015 Between: Muneppa, (Since dead by LR) Kenchamma, W/o.Muneppa, Aged about 65 years, R/o.Veerapura Village, Kasaba Hobli, Kolar Taluk – 563 101.
...Appellant (By Sri Srinivas M.Kulkarni, Advocate) And:
Imam Shareef @ Imam Sab, (Since dead by LR’s) 1. Pyaru Sabi, S/o. Imam Shareef @ Imam Sab, Aged about 38 years 2. Mahaboob, S/o. Imam Shareef @ Imam Sab, Aged about 35 years Both residing at:
Near Timber Depot, 3rd Cross, Poolsha Mohalla, Darga, Kolar – 563 101.
... Respondents This Regular Second Appeal is filed under Section 100 of CPC against the Judgment and Decree dated 23.06.2015 passed in R.A.No.268/2013 on the file of the I Addl. Senior Civil Judge, Kolar dismissing the appeal and confirming judgment and decree dated 29.07.2013 passed in O.S.No.1/2004 on the file of the Prl. Civil Judge and JMFC, Kolar and etc., This Regular Second Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T This is plaintiff’s second appeal against the judgment dated 23.06.2015 passed in R.A.No.268/2013 confirming the judgment and decree dated 29.07.2013 passed in O.S.No.1/2004 on the file of the Principal Civil Judge and JMFC, Kolar.
2. The case of the plaintiff before the trial Court is as follows:
The plaintiff filed a suit for declaration of title and permanent injunction by contending that he is the absolute owner of the suit schedule land. It is averred in the plaint that one Sri Mallappanavara Erabyrappa is the propositus and he is having four sons by name Veerappa, i.e. plaintiff’s Father, Sonnappa, Munivenkatappa and Venkatashamappa. The plaintiff further averred in the plaint that there was partition among the brothers and in the said partition, 1/4th share was allotted in favour of the plaintiff’s father Veerappa as per ‘A’ schedule. Pursuant to the said partition, the plaintiff’s father Veerappa was in exclusive possession of the property fallen to his share.
The plaintiff/appellant has further averred in the plaint that after the death of his father Veerappa, he succeeded to his properties and accordingly, he is enjoying the suit property without anybody’s obstruction. The appellant further averred in the plaint that the defendant is stranger to the suit schedule land, having no manner of right or title started causing obstruction and interfering with plaintiff’s possession. It is further averred that behind and back of the plaintiff, the defendant has got changed the khatha of the suit land in his name illegally and the defendant is trying to disposes the plaintiff from the suit schedule land. Hence, the appellant/plaintiff was constrained to file suit for declaration of title and consequential relief of permanent injunction against the defendant.
3. On receipt of suit summons, the original defendant appeared through his counsel and filed written statement denying the case of the plaintiff. The defendant in para 3 of his written statement contended that in fact the plaintiff sold the suit property to one Smt.Sarojamma under a registered sale deed dated 11.11.1965, who in turn, sold the same to Chengappa on 17.11.1965 through registered sale deed. It is further averred in the written statement that the said Chengappa and his son sold the suit land to the defendant through registered sale deed dated 17.01.1972 and accordingly, the respondents were put in possession over the suit land by their vendors. The defendant subsequently averred in the written statement that they are in exclusive possession and enjoyment of the suit property and therefore, sought to dismiss the suit of the plaintiff.
4. Based on the aforesaid rival contentions, the Trial Court formulated the following issues;
1. Whether the plaintiff proves that originally suit schedule land belongs to Mallappanavara Eerabyrappa?
2. Whether the plaintiff further proves that the suit schedule property fallen to the share of his father under a family partition taken place between his father Veerappa, Munichowdappa, S/o Sonnappa, Munivenkatappa and V.Muneppa S/o Venkatashamappa?
3. Whether the plaintiff further proves that he became the absolute owner and in possession and enjoyment of the suit schedule property?
4. Whether the plaintiff further proves the alleged interference caused by the defendant?
5. Whether the defendant proves that the plaintiff sold the suit schedule property to one Smt.Sarojamma, the said Sarojamma sold it to one Sri Chengappa and he purchased the suit schedule property from Chengappa through another registered sale deed?
6. Whether the plaintiff is entitled for the reliefs sought for?
7. What order or decree?
5. The plaintiff/appellant in support of her contention examined herself as P.W.1 and to corroborate her evidence, got marked documents from Exs.P.1 to Ex.P.12. The respondents/defendants though contested the suit by filing their written statement, did not adduce any oral evidence. The Trial Court considering the entire materials on record, dismissed the suit holding that Ex.P.3, which is the suit document cannot be looked into and the same is inadmissible since it is not registered. Since the entire case of the plaintiff is based on Ex.P.3, the Trial Court for want of registration and admissibility of Ex.P.3 answered issue Nos.1 and 2 in the negative. The Trial Court also having examined the Ex.P.4 found that the plaintiff/appellant has failed to establish her title over the suit land since Ex.P.4 does not create any right in favour of the plaintiff. The Trial Court having examined the materials on record, dismissed the suit of the plaintiff holding that the plaintiff has failed to prove that the suit land was allotted in the family partition. The appellant/plaintiff being aggrieved by the order of the Trial Court, preferred an appeal before the lower Appellate Court. The Appellate Court on re-appreciation of the oral and documentary evidence, recorded a finding that the Trial Court has dealt with the materials on record and recorded its finding meticulously holding that the Ex.P.3 and Ex.P.4 does not warrant any interference by the Appellate Court. The Appellate Court also recorded a finding that the documents sought to be produced, by way of an additional evidence, cannot be looked into and consequently, dismissed the appeal. Being aggrieved by the concurrent finding of the Courts below, the appellant/plaintiff is before this Court.
6. Heard learned counsel for the appellant.
7. Learned counsel for the appellant vehemently argued that the Appellate Court was not justified in not taking the additional evidence on record. Counsel for the appellant also vehemently contended that though the defendants by filing the written statement have asserted their title over the suit land, but have failed to step into the witness box and lead evidence in support of their contention. Both the Courts were not justified in dismissing the suit. Therefore, he sought to allow the present Regular Second Appeal.
8. The appellant is claiming ownership over the suit land by contending that there was a partition on 18.03.1958 between the father of the plaintiff Veerappa and his brothers and in support of her contention, the appellant lead evidence and relied on Ex.P.3 which is Paalupatti. The Courts below have considered Ex.P-3 which is an unregistered partition deed. The appellant/plaintiff is asserting title over the property in question by relying on an unregistered partition deed which cannot be received in evidence and there is a bar under clause (c) of Section 49 of the Registration Act, 1908 and the same cannot be received in evidence. The best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act, the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under section 91 of the Evidence Act.
9. The contention of the appellant/plaintiff that respondent/defendant having taken a contention that they have acquired valid right, title over the suit land have not stepped into witness box, would be of no significance since it is the appellant/plaintiff who has approached the Court asserting title over the suit land and has accordingly, filed suit for declaration and injunction.
10. It is trite that the party approaching the Court needs to establish his title over the suit property by relying on title documents. In the present case on hand, the appellant/plaintiff is asserting his right by relying on the revenue records which are not title deeds and the same would not confer any right of ownership over the immovable property. The documents relied by the appellant/plaintiff vide Exs.P-4 and P-5 would also indicate that one acre was purchased by Smt. Sarojamma under whom the defendants are asserting their right and title. These revenue records indicate that there is alienation in respect of a portion of suit land in Sy.No.11 and this alienation is well within the knowledge of the appellant/plaintiff. The appellant/plaintiff though is quite aware of the sale deed in favour of the defendants, has not taken any steps to verify the sale deeds as mentioned in the revenue records vide Ex.P-6. The Trial Court as well as the Appellate Court have meticulously examined all these material aspects and have come to the conclusion that the appellant/plaintiff has not only failed to establish his title over the suit land, but has also failed to prove that his father was in continuous possession and enjoyment over the suit land.
11. The plaintiff is asserting absolute title on the premise that this property was allotted to her father in a family partition which is admittedly, an unregistered partition deed. This Court is of the view that Ex.P-3 on which the appellant/plaintiff is relying, since is not registered will not serve to create, declare, assign, limit or extinguish any right, title or interest in the immovable property comprised in it.
12. Both the Courts have dealt with this material issue in detail and have found that Ex.P.3 is not admissible. If this document is taken out, there is absolutely no evidence indicating the allotment of the suit land to the father of the plaintiff and in that view of the matter, I do not find any infirmity in the reasoning of the Trial Court while dealing with issue No.3 and the same would not warrant any interference by this Court since no substantial question of law arises on the findings of the Courts on issue Nos.1 and 2.
13. It is also relevant to note that though the defendants have not stepped into witness box, the documents relied on by the plaintiff, more particularly, Ex.P.4, which is an Index of land indicates and reflects that the suit land was subjected to alienation and the Courts below having rightly examined Ex.P.4 have recorded a finding to the effect that the said document would falsify the very case of the plaintiff that the suit land was subject matter of 1958 partition and the same was allotted to his father. Both the Courts have dealt in detail and having examined the materials on record have come to conclusion that the plaintiff has failed to establish that suit property was allotted to her father in a family partition.
14. For the reasons stated supra, no substantial questions of law would arise for consideration in the top noted appeal and accordingly, the appeal is dismissed.
No order as to costs.
Sd/- JUDGE PN/-