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.1891/2007 BETWEEN:
KRISHNAPPA, SON OF MUNISHAMY @ PINJARAPPA, AGED ABOUT 55 YEARS, RESIDING AT BALLERI VILLAGE, HUNASIKOTE POST, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT-563 101. … APPELLANT (BY SMT. M.R. SHALAMALA, ADVOCATE FOR KESVY AND CO.) AND:
1. SHRI. SHAMANNA, SINCE DEAD BY LRS.
1(a). SMT. LAKSHMAMMA, W/O. LATE SHAMANNA, AGED ABOUT 75 YEARS.
1(b). MALLESH, S/O. LATE SHAMANNA, AGED ABOUT 40 YEARS.
1(c). RAMESH, S/O. LATE SHAMANNA, AGED ABOUT 35 YEARS, R-1(a) TO (c) ARE R/AT OBATTI VILLAGE, HALEPALYA POST, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT-562 101.
1(d). SMT. BHAGYAMMA, D/O. LATE SHAMANNA, W/O. NARAYANA SWAMY, AGED ABOUT 37 YEARS, R/AT BOODHIGUTTE VILLAGE, BANGARAPET TALUK, KOLAR DISTRICT-563 114.
1(e). SMT. SHANTHAMMA, D/O. LATE SHAMANNA, W/O. GOPALAPPA, AGED ABOUT 33 YEARS, R/AT KOLAGONDANAHALLI VILLAGE, KOLAR TALUK AND DISTRICT-563 114.
2. SRI KRISHNAPPA, S/O NARAYANAPPA, AGD ABOUT 58 YEARS, R/AT BALLERI VILLAGE, HUNASIKOTE POST, TEKAL HOBLI, MALUR TALUK, KOLAR DISTRICT – 563 101. ... RESPONDENTS (BY SRI J.R. MOHAN, ADVOCATE FOR SRI SURESH M., ADVOCATE FOR R-1(a) TO (c), R-1(d) SERVED, VIDE ORDER DATED 7.3.2018 APPEAL STANDS DISMISSED AGAINST R-1(e), R-2 SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CPC AGAINST THE JUDGMENT AND DECREE DATED 28.06.2007 PASSED IN O.S.NO.180/2004 ON THE FILE OF THE 2ND ADDL. CIVIL JUDGE (SR. DN.), KOLAR, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.8.2019, COMING ON THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/defendant No.1 challenging the judgment and decree passed in O.S.No.180/2004 dated 28.6.2007, on the file of the II Additional Civil Judge (Sr.Dn.), Kolar.
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
Brief facts of the case:
3. The plaintiff had filed a suit for relief of declaration and permanent injunction against the defendants contending that the suit schedule property is a dry land bearing Survey No.11/2 totally measuring 2 acres 18 guntas situated at Balleri Village, Tekal Hobli, Malur Taluk, Kolar District. Originally the suit schedule property was the Hindu Joint Family property consisting of plaintiff and the defendants. The suit schedule property was allotted to the father of the plaintiff by virtue of partition. After the demise of the father of the plaintiff, the plaintiff and his brothers have alienated the suit schedule property to one Munnaiah on 16.8.1962. The revenue records stood in the name of Munishamy @ Pinjarappa, the father of the defendant No.1 and paternal uncle of the plaintiff. Hence, the said Munishamy @ Pinjarappa has signed the sale deed. Hence, Munnaiah acquired the title in respect of the suit schedule property and he became the absolute owner.
4. It is the further case of the plaintiff that he has purchased the suit schedule property from the said Munnaiah by virtue of a registered sale deed dated 11.3.1963 and hence it has become the self-acquired property of the plaintiff. Since then, the plaintiff is in possession and enjoyment of the property and has become the owner. The plaintiff was also paying the land revenue, but his name has not appeared in the revenue records. Even though the property was alienated to Munnaiah by the plaintiff, his brothers and Munishamy @ Pinjarappa, the name of Munishamy @ Pinjarappa has been continued in the revenue records. The plaintiff came to know the same on 2.1.2004 and the plaintiff filed an application to Nadakacheri of Tekal. Hence, the plaintiff’s name has been entered to an extent of 1/3rd share in the suit schedule property and defendant No.1 without any right, interest or possession over the suit schedule property has unlawfully trespassed over the suit schedule property on 8.7.2004 and denied the ownership of the plaintiff. The plaintiff has resisted the illegal acts of the defendant No.1 with the help of the family members. Hence, the plaintiff had filed a suit.
5. In pursuance of filing of the suit, suit summons were issued and defendant No.1 entered appearance and filed his written statement denying the plaint averments and contended that the suit schedule property originally belonged to his father. Till his death, his father was in possession of the suit schedule property. After the demise of his father, the defendant No.1 and his brothers continued to be in possession. It is contended that all the documents pertaining to the suit schedule property stands in the name of defendant No.1 and he has paid the land revenue. The defendant No.1 and his father had planted eucalyptus trees on the suit schedule property. The plaintiff has no right, title, interest and possession over the suit schedule property. The plaintiff has created false documents and has filed the suit. Hence, he prayed the Court to dismiss the suit. The defendant No.2 filed the written statement supporting the case of the plaintiff.
6. The Court below considering the pleadings of both the parties, framed the following issues:
1. Whether the plaintiff proves title to suit schedule property?
2. Whether the plaintiff proves lawful possession over suit property?
3. Whether the plaintiff proves interference by defendants?
4. What decree or order?
7. The plaintiff in order to substantiate his case, examined himself as P.W.1 and also examined two witnesses P.Ws.2 and 3 and got marked the documents at Exs.P.1 to 31. The defendant No.1 examined himself as D.W.1 and got examined three witnesses as D.Ws.3 to 5 and got marked Exs.D1 to 11. The Court below after hearing both the parties, decreed the suit declaring that the plaintiff is the absolute owner of the suit schedule property and also granted permanent injunction in favour of the plaintiff. Being aggrieved by the judgment and decree, defendant No.1 has preferred the present appeal.
8. In the appeal memorandum, the main contention of the appellant/defendant No.1 is that the Court below has committed an error in decreeing the suit solely relying on the concocted and fabricated sale deeds. The learned Trial Judge has not considered that defendant No.1 is in settled possession of the suit schedule property with the knowledge of the plaintiff. The plaintiff is making efforts to deprive defendant No.1 of his lawful share in the property, since the value of the land has increased in the recent years. The sale deeds at Exs.P1 and 31 are not proved. The learned Judge has presumed those documents to be of 30 years old and it was duly executed as it came from proper custody but failed to notice that powers under Section 90 of the Indian Evidence Act, 1872 are only discretionary and not obligatory. The discretion has to be exercised judiciously and not arbitrarily.
9. There are reasonable grounds for suspecting its genuineness and the Court below fails to notice that the suit schedule property was given to the father of defendant No.1 by virtue of partition and the land situated at Obatti Village was given to the father of the plaintiff. Hence, the father of defendant No.1 was in continuous and uninterrupted possession. Even assuming that the suit schedule property belongs to the plaintiff since the date of purchase, i.e., from 11.3.1963, since 44 years the plaintiff did not make any attempt to change the revenue records in his name. Nothing prevented him from doing so over this long period of time. At no point of time the plaintiff is in possession of the property and the plaintiff has fabricated the documents to knock off the valuable property from defendant No.1. The father of defendant No.1 and subsequently defendant No.1 is in possession since 1932. The ample oral and documentary evidence produced by defendant No.1 has not been appreciated by the learned Trial Judge in its proper perspective. Hence, prayed this Court to set aside the judgment.
10. The learned counsel for the appellant – defendant No.1 in his arguments vehemently contended that defendant No.1 has produced number of documents to show that defendant No.1 has been in possession of the suit schedule property. The plaintiff has not proved the execution of the sale deed and possession was admitted. The plaintiff has not sought for any better relief and in the absence of seeking better relief, the very suit itself is not maintainable. The Court below failed to appreciate all these factors and committed an error in passing the judgment and decreeing the suit.
11. On the other hand, the learned counsel for the respondent No.1/plaintiff would contend that defendant No.1 in his written statement has not denied the very sale transaction and the Court below rightly considered the evidence available on record. The Court below has taken into note that the sale deed was executed in favour of Munnaiah in the year 1962 and thereafter the plaintiff has purchased the suit schedule property. It is further contended that while selling the property in favour of Munnaiah, the father of defendant No.1 was also present and he has signed the document. The Court below has also taken note of the continuation of revenue records in the name of the father of defendant No.1 and also observed that no efforts were made to change the revenue records in the name of the plaintiff. It also made an observation that those documents does not create any right and has rightly come to the conclusion that in terms of the sale deed, the plaintiff became the absolute owner of the property.
12. The Court below invoked Sections 91 and 92 of the Evidence Act and also observed that in Exs.D.1 and 2, the name of the plaintiff was found in the cultivator’s column and hence it is clear that the plaintiff has been in possession of the property. The witnesses who have been examined as D.Ws.3 and 4 have deposed that defendant No.1 has been in possession of the property. The Court below rightly disbelieved the evidence of D.Ws.3 and 4, since they are not the neighbours. It came to the conclusion that D.W.1 is an interested witness and his evidence cannot be believed and rightly decreed the suit in coming to the conclusion that the plaintiff has been in possession of the suit schedule property and the Court below has not committed any error in decreeing the suit.
13. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in decreeing the suit in favour of the plaintiff and whether it requires interference of this Court?
(ii) What order?
Points (i) and (ii):
14. Before considering the material on record, this Court would like to make a mention in brief the pleadings of the parties. The plaintiff in the suit has contended that he is the absolute owner and he is in peaceful possession and enjoyment of the suit schedule property, as the same has been purchased by him in the year 1963 from one Munnaiah. It is also the case of the plaintiff that his vendor Munnaiah had purchased the suit schedule property from Munishamy @ Pinjarappa and his brother Malleshappa’s son, namely the plaintiff and his brothers as the suit schedule property fell to the share of the plaintiff’s father. Though the khatha of the suit schedule property stood in the name of Munishamy @ Pinjarappa, a registered sale deed 1962 was executed jointly by two brothers and Munishamy @ Pinjarappa, father of the defendant No.1. It is contended that from the date of purchase, the plaintiff is in undisturbed peaceful possession by cultivating the land by raising eucalyptus trees. He also relies upon the tax paid receipts. But for the reasons best known to the revenue authorities, the plaintiff has paid the kandaya and RTC stands in the name of the plaintiff, the khatha has not been mutated in the name of the plaintiff. Hence, prayed the Court to grant the relief of declaration.
15. The defendant No.1 in the written statement has totally denied the averments made in the plaint, but contended that the suit schedule property originally belonged to his father and he was in peaceful possession and enjoyment over the suit schedule property. After his demise, the defendant No.1 and his brothers are continuing with the possession and enjoyment of the suit schedule property and all the revenue and other documents are standing in the name of defendant No.1 and his father. The defendant No.1 is also paying the tax and he himself and his father have raised the eucalyptus trees in the suit schedule property and the plaintiff does not have any right and hence he is not entitled for any relief.
16. Now let this Court consider both oral and documentary evidence available on record. The plaintiff in order to prove his case examined himself as P.W.1 and he reiterated the averments of the plaint and also relied upon Exs.P.1 to 31. He was subjected to cross-examination. In the cross-examination, it is elicited that his father is the elder one and there were four brothers. The second one is Munishamy @ Pinjarappa, i.e., father of the defendant No.1, third one is Narayanappa and fourth one is Narappa and he cannot tell when they have got the property partitioned. He admits that 1½ acres in Survey No.19 and 4 guntas in Survey No.21 of Obatti Village belongs to them. It is suggested that the suit schedule property belonged to the father of the defendant No.1 and the same was denied. However, he admits that the same belonged to the father of the defendant No.1 and the khatha was standing in the name of the father of the defendant No.1 earlier. It is suggested that the suit schedule property was allotted in favour of the father of the defendant No.1 in the partition and the same was denied. However, he admits that the revenue records from 1965-66 to 2002-03, the name of the father of the defendant No.1 has been continued. But he volunteers that he himself, father of the defendant No.1 and his brother Siddappa all of them have jointly sold the property in favour of Munnaiah. The said Munnaiah did not get the khatha transferred to his name and immediately one year after the said sale, he re-purchased the property from the said Munnaiah. He also did not get the transfer of the khatha to his name. He also admits that he did not make any efforts to transfer the khatha to his name, but he claims that he has paid the taxes. However, he admits that Munnaiah was not in possession but he denies the suggestion that Munishamy @ Pinjarappa was in possession of the suit schedule property and after his death, the defendant No.1 is in possession of the suit schedule property and the same was denied. It is suggested that the suit schedule property was not sold to Munnaiah at any point of time and the same was denied. But he admits that the suit schedule property stands in the name of the father of the defendant No.1. He also admits that he did not file any appeal when the property was standing in the name of the defendant No.1. He admits that 32 guntas of land stand in the name of the defendant No.1 and remaining land is standing in the name of his father.
17. The plaintiff also examined one witness as P.W.2 and he says that the plaintiff has been in possession of the suit schedule property for the last 40 years and he dug the bore well in the suit schedule property ten years ago. But he did not get the water in the said bore well and hence the said bore well was closed. Now the plaintiff has grown the eucalyptus trees in the suit schedule property and he denies the possession of defendant No.1. He admits that in the suit schedule property eucalyptus trees have grown. He says that from last 40 years, he is seeing that the plaintiff has been in possession of the property. But he admits that in his affidavit he has stated that from the last 40 years he has been in possession. It is suggested that he was not having any cordiality with defendant No.1 and the same was denied. It is suggested that they were not cordial from the last 4-5 years and the same was denied.
18. The plaintiff also examined other witness P.W.3 and he reiterated the evidence of P.W.2. In the cross-examination, a suggestion was made that he was not having any property near the land of the suit schedule property and he is falsely deposing before the Court and he is giving false boundary and the same was denied. He admits that there are eucalyptus trees in the suit schedule property and the same are five year old. He claims that the plaintiff got the said property from his ancestors and there was a partition 50 years ago and he cannot give the description of the said partition. It is suggested that the plaintiff is not in possession of the suit schedule property and the same was denied. He admits that the plaintiff only brought him to the Court. It is suggested that the suit schedule property is in possession of defendant No.1 and the same was denied.
19. On the other hand, defendant No.1 has been examined as D.W.1 and he claims that the suit schedule property is his ancestral property and he reiterates the averments of his written statement in the affidavit claiming that his father was in possession and after his death, he has been in enjoyment of the suit schedule property. He claims that the suit schedule property fell to the share of his father and his father has not sold any land to Munnaiah, as stated by the plaintiff. Neither Munnaiah nor plaintiff were in possession of the suit schedule property at any point of time and the said two documents are created and fabricated documents. He relied upon the documents at Exs.D.1 to 6.
20. In the cross-examination, it is suggested that both defendant Nos.1 and 2 have signed the written statement and the same was denied. He states that only he signed the written statement. It is elicited that Munnaiah S/o Subbanna had passed away. He admits that Munisiddappa is his senior uncle’s son and the plaintiff is his brother. It is suggested that on 16.8.1962, suit schedule property was sold by Munisiddappa, Shamappa plaintiff’s brother Mallappa in favour of Munnaiah. It is suggested that his father is the signatory as witness to the said sale deed. He says that he does not know about the same. It is suggested that the suit schedule property was re-purchased by the plaintiff on 11.3.1963 and the same was denied. It is suggested that in the said sale deed also his father Munishamy @ Pinjarappa is the signatory and the same was denied. He claims that the suit schedule property has been purchased by his father in the year 1932 from Munnappa. But he admits that suit schedule property is not allotted to his father. He further admits that in his affidavit, he has not stated that the suit schedule property came to his father. However, he claims that his father and his brothers have got the property partitioned. But he claims that the land of Obatti Village was allotted to his father, but he has not seen the said document. He admits in Exs.P.3 to 8 that the plaintiff’s name has been mentioned as he has been in possession, but he claims that those documents are fabricated documents. He admits that he did not question the sale deed of the plaintiff dated 16.8.1962 in any Court of law. But he claims that he came to know about the same after the filing of the suit and after coming to know about the same also, he did not question the same. But he claims that in the revenue records his name is found and hence he did not question the sale deed. He admits that the plaintiff has dug the bore well and again volunteers that he dug the bore well in Survey No.15/2. He admits that five year old eucalyptus trees are in the suit schedule property.
21. He also examined the witness D.W.3 and he claims that the defendant No.1’s father and plaintiff’s father are brothers and their father Mallappa purchased the lands at Obatti Village. In the family partition between plaintiff’s father and brothers, the joint family properties situated at Obatti Village have fallen to the share of the plaintiff’s father and the suit schedule property fell to the share of the father of the defendant No.1. He claims that Munnaiah was not in possession and Munnaiah has not sold the land to the plaintiff. Neither Munnaiah nor plaintiff were in possession of suit schedule property at any point of time. He was subjected to cross-examination.
22. In the cross-examination, he admits that he cannot give the description of the property allotted in favour of the plaintiff and defendant No.1 and also he cannot tell which are all the properties which fell to the share of the father of the defendant No.1. He admits that Survey Nos.31/2 and 31/3 were allotted in the name of the father of the defendant No.1. He claims that he was present at the time of partition and the same is not produced in writing and he cannot tell the date of partition. It is suggested that the father of the plaintiff, father of the defendant No.1, father of the defendant No.2 and their brothers have jointly sold the property in favour of Munnaiah and the same was denied. It is suggested that on 11.3.1963 the plaintiff has purchased the property from Munnaiah and he says that he does not know. It is suggested that from the date of purchase, the plaintiff is the absolute owner and he has been in possession and the same was denied. It is suggested that at no point of time, defendant No.1 and his father were in possession of the suit schedule property, as he deposed and the same was denied.
23. The defendant No.1 also examined D.W.4 and he also reiterated the evidence of D.W.3. In the cross-examination, he admits that he accompanied defendant No.1 to the Court in a bus and defendant No.1 only has paid the bus charge. He admits that there are eucalyptus trees in the suit schedule property. It is suggested that the plaintiff was getting the water from the neighboring land and growing the crop in the suit schedule property and the same was denied, but he volunteers that he was growing the crop basing the rainfall. He does not know about the plaintiff digging bore well in the suit schedule property. He admits that there was a dispute between him and the father of the plaintiff. It is suggested that due to enmity, he is falsely deposing before the Court and the same was denied.
24. The other witness is D.W.5. He supported the case of the plaintiff and in the cross-examination he admits that there are eucalyptus trees and the same was planted by the plaintiff five years ago. The plaintiff dug the bore well, but he did not get the water. He claims that when he did not get the water from the said bore well, he planted eucalyptus trees. He admits that he has filed the suit against the defendant No.1 in terms of Ex.D.9. He admits that his grandfather, his father and their brothers when they were together have purchased the suit schedule property from Munnaiah. He admits that he does not have any documents to show that the suit schedule property was allotted to the father of the plaintiff. It is suggested that the same was not given to the father of the plaintiff and the same was denied. It is elicited that the defendant No.1 planted eucalyptus trees and again he volunteers that the same was planted by the plaintiff and the same are 5 years old. It is suggested that only to help the plaintiff he is falsely deposing before the Court and the same was denied.
25. Having considered oral and documentary evidence, it is clear that in terms of sale deed dated 11.3.1962, the very suit schedule property was sold in favour of Munnaiah by the plaintiff and his brothers. The father of the defendant No.1 is also a signatory to the said sale deed. It is also important to note that vide sale deed dated 11.3.1962, the plaintiff has purchased the suit schedule property from Munnaiah. The plaintiff in order to substantiate his contention has produced Exs.P.3 to 8 and on perusal of it, it is evident that in the possession column, it is shown that the plaintiff is in possession of the suit schedule property from 1967-68 onwards. The Court below taking note of the same held that no doubt the plaintiff as well as the defendant No.1 have examined the witnesses in support of their claim with regard to their possession, oral evidence of the witnesses cannot be taken into consideration when the documentary evidence of Exs.P.3 to 8 discloses that the plaintiff has been in possession of the suit schedule property. No doubt in the cross-examination of both the plaintiff witnesses and defendant No.1’s witnesses with regard to the possession, there are conflicting answers. The Court has to consider the documentary evidence.
26. The Court below also taking note of the sale deeds Exs.P.1 and 31 and also Exs.P.3 to 8 has rightly come to the conclusion that the plaintiff has proved the title as well as the possession. The defendant No.2 in his evidence also supported the case of the plaintiff that he has been in possession of the suit schedule property. The defendant No.1 who has been examined as D.W.1 did not deny the sale deed of the plaintiff of the year 1962 selling the property in favour of Munnaiah. It is suggested that his father has signed the documents as witness by putting his left thumb impression and D.W.1 has not denied the same and again he says he is not aware of the same. But in his evidence, he says that his father had purchased the property in the year 1932. But he categorically admits that the suit schedule property has not been allotted to the share of his father. He also admits that in his affidavit he did not claim that the said property is allotted to his father in the partition. The defendant No.1 voluntarily says that the property which is situated near Obatti Village is given to the father of the plaintiff, but again he says that he has not seen any documents and he is not having any documents to substantiate the same. He admits that the entries in Exs.P.3 to 8 shows that the plaintiff has been in possession of the property but he claims that those documents are created documents. But in the cross-examination, he categorically admits that he did not question the sale deed of the year 1962 and 1963 i.e., Exs.P.1 and 31. He further admits that he did not question those sale deeds when he came to know about those sale deeds. He further admits that in the suit schedule property the plaintiff dug the bore well. He also admits that there are eucalyptus trees which were 5 years old.
27. Having considered the evidence elicited from the mouth of D.W.1 and P.W.1 in his cross-examination, the plaintiff claims that he has been in possession for the last 20 years but in the affidavit he claims that he is in possession for the last 40 years. He further admits that he did not mention in his affidavit that he dug the bore well 10 years ago. But P.W.1 categorically admits that the revenue records stand in the name of defendant No.1 and his father. It is also the claim of the plaintiff that the revenue records are not changed to his name and the same is also an admitted fact that khatha was not changed in favour of the plaintiff. Mere entries in the revenue records does not create any right in favour of the defendant No.1 and the very contention of the appellant/defendant No.1 counsel that the Court can draw the presumption under Section 133 of the Land Revenue Act cannot be accepted. When the sale deeds are in favour of the vendor of the plaintiff and also the subsequent sale deed stand in the name of the plaintiff, the Court below considering the documents of the year 1963 and 1962 which are more than 30 years old documents, rightly considered the documentary evidence and did not accept the oral evidence of the defendant No.1.
28. Having considered both oral and documentary evidence available on record, the Court below has not committed any error and the very contention of the defendant No.1 that sale deeds are created cannot be accepted, since the same has not been questioned by the defendant No.1. Taking note of certain entries in the revenue records itself, the Court cannot come to the conclusion that the defendant No.1 has been in possession of the property. The very contention of the appellant’s counsel that the Court below did not consider both oral and documentary evidence and erroneously came to the conclusion considering the fabricated documents of the sale deeds cannot be accepted. There are no grounds in the appeal to reverse the findings of the Trial Court. The reasoning of the Trial Court is sound and proper considering the documentary evidence and there are no grounds to set aside the judgment and decree of the Trial Court.
29. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE MD