IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R. KRISHNA KUMAR REGULAR SECOND APPEAL No.1282 OF 2007 (DEC) BETWEEN:
Sri. H.G. Nareppa S/o Shri. Chennabaseppa, Aged about 45 years, Agriculturist, R/at Hoovinamadu Village, Davanagere Taluk – 577 001.
(By Smt. Rakshitha V.N., Advocate for Sri.K.Raghavendra Rao, Advocate) AND:
1. Smt. Rudramma D/o Shivalingappa, Aged 34 years, 2. Smt. Manjamma D/o Shivalingappa, Aged about 32 years, 3. Smt. Revamma D/o Shivalingappa, Aged about 30 years, …Appellant All are Residents of Hoovinamadu Village, Davanagere Taluk – 577 001. … Respondents (By Sri. R. Gopal, Advocate) This Regular Second Appeal is filed under Section 100 of Code of Civil Procedure against the judgment and decree dated 23.12.2006 passed in R.A. No.16/2003 on the file of the Additional Sessions Judge, Fast Track Court – II Davanagere, allowing the appeal and setting aside the judgment and decree dated 25.11.2002 passed in O.S. No.406/1998 on the file of the Principal Civil Judge (Jr. Dn.), Davanagere.
This appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT Heard learned counsel for appellant and learned counsel for respondents.
2. During the course of hearing it was pointed out that material on record would indicate that Substantial Questions of Law framed by this Court on 19.11.2009 has to be reformulated and reframed as under:
“Whether the Lower Appellate Court was justified in coming to the conclusion that the plaintiff was not the owner of the suit schedule property in the absence of any denial or dispute with regard to plaintiff’s title and identity of the suit schedule property raised by the defendant?”
3. This appeal arises out of the impugned judgment and decree dated 23.12.2006 passed by Lower Appellate Court allowing the appeal in R.A.No.16/2003 filed by the respondents thereby dismissing the suit filed by the appellant by reversing the judgment and decree passed by the trial Court which had decreed the suit in favour of the appellant.
4. I have heard the learned counsel for the appellant as well as learned counsel for respondents on the merits of the matter including the substantial question of law which has been reformulated as stated supra. For the sake of convenience the parties are referred to by their respective ranks before the trial Court.
5. The appellant who was the plaintiff filed the suit in O.S.No.406/1998 before the trial Court for declaration of his title over the suit schedule property and for a direction to the defendants-respondents to deliver vacant possession of plaint schedule property to the plaintiff and for other reliefs.
6. The plaintiff in his plaint specifically contended that the suit schedule property was purchased by his father Channabasappa and plaintiff’s grand father Mahadevappa under a registered sale deed dated 17.07.1948. It was contended that the suit schedule property is a house premises bearing khaneshmari No.174 measuring East to West : 17’ North to South : 72’ bound by on the East by House of Marulasiddappa, West by House of Murigeppa, North by House of Bhimachar, South by Road. It was contended that the plaintiffs father and grandfather were enjoying the suit schedule property as its owner and upon their death, plaintiff succeeded to the plaint schedule property as its owner. It was further contended that one Shivalingappa father of the defendant was in fact the brother of the plaintiff’s mother. The said Shivalingapppa and his daughters, i.e., the defendants herein did not have any place of residence and requested the plaintiff for temporary accommodation in the suit schedule property which was then vacant and pursuant to plaintiff permitting the said Shivalingappa to reside/occupy the suit schedule property as a licensee. The defendants along with their father started to live in the suit schedule property. After the death of Shivalingappa, the defendants instead of vacating suit schedule property trespassed into the same and refused to hand over the possession of the suit schedule property to the plaintiff. It was therefore contended that the plaintiff was left with no option but to file the present suit for the reliefs stated supra.
7. The defendants entered appearance and filed their written statement inter alia denying the allegations made in the plaint. It was contended that the suit schedule property never belonged to the plaintiff or his family and that the katha of the property stood in the name of Shivalingappa for more than three decades till he died in the year 1990. After the death of Shivalingappa, katha was mutated into the name of his second wife Naramma in the year 1991-92. The defendants are children of Shivalingappa’s first wife Kalamma. Shivalingappa and his legal representatives have paid taxes in respect of the suit schedule property. It was further contended by the defendants that since there was a dispute between defendants and the aforesaid Naramma in respect of estate of Shivalingappa, the defendants were constrained to file O.S.No.133/1995 before the Civil Court for partition and separate possession of their share in the estate of Shivalingappa including suit schedule property. It was further contended that in the said suit, plaintiff who is none other than the brother of Naramma gave evidence as PW2 and supported his sister. The said suit having been decreed in favour of the defendants against the said Naramma, she has instigated and set up her own brother, the plaintiff to file the present and frivolous suit which is liable to be dismissed.
8. Based on the above pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that he is the owner of the suit schedule property?
2) Whether the plaintiff proves that the defendants are trespassers and are in unlawful possession of the suit schedule property?
3) Whether the plaintiff is entitled for the vacant possession of the suit property from defendants?
4) Whether the plaintiff is entitled for future mesne profits?
5) Whether the plaintiff is entitled for the reliefs sought for?
6) What order or decree?
9. The plaintiff examined himself as PW1 and one witness Rudrachari as PW2 and documentary evidence Exs.P1 to P4(a) were marked on behalf of the plaintiff. On the other hand, defendant No.1 examined herself as DW1 and documentary evidence at Exs.D1 and D12 were marked on behalf of the defendants. By its judgment and decree dated 25.11.2002, the Trial Court came to the conclusion that the plaintiff was the absolute owner of the suit schedule property and since the defendants did not prove their right, title and interest of possession over the suit schedule property, they were liable to hand over vacant possession of the same to the plaintiff. Accordingly, the trial Court decreed the suit in favour of the plaintiff against the defendant.
10. Aggrieved by the said judgment and decree passed by the trial Court, the defendants preferred an appeal in R.A.No.16/2003 before the Lower Appellate Court. By the impugned judgment and decree, the Lower Appellate Court allowed the appeal filed by the defendants and consequently dismissed the suit filed by the plaintiff. While doing so, the Lower Appellate Court came to the conclusion that plaintiff had failed to establish his title over the suit schedule property as well as its identity since there was variance in the boundaries of the suit schedule property found in Ex.P1 and in the schedule to the plaint. The Lower Appellate Court also held that the plaintiff had not succeeded in establishing his title as well as the identity of the suit schedule property. The Lower Appellate Court also took into account the admission in the cross-examination of PW1 to the effect that he has sold the property purchased under Ex.P1 and that in the absence of any evidence to show that the suit schedule property had been retained by him by his father or grand father, the plaintiff had failed to establish his title over the suit schedule property. The Lower Appellate Court has also taken into consideration the fact that the plaintiff had not produced any revenue records including katha extracts, tax paid receipts etc., standing in the name of his grandfather, his father or the plaintiff which would indicate that the plaintiff’s title and possession over the suit schedule property. The Lower Appellate Court also noticed that apart from the fact that the alleged licence granted in favour of Shivalingappa had not been proved, the various discrepancies contradictions and inconsistencies with regard to said licence in the pleadings and evidence of the plaintiff clearly establishes that the plea regarding the said property having been given as licence to Shivalingappa had not been established by the plaintiff. Further, the Lower Appellate Court also took into account the evidence produced by the defendants which would indicate that Shivalingappa and defendants have been in possession and enjoyment of the suit schedule property for a long period prior to 1990 during which year the licence is alleged to have been granted and this circumstance establishes that the plaintiff had failed to prove his title over the suit schedule property. Under these circumstances, after re-appreciating the entire material on record, the Lower Appellate Court reversed the judgment and decree of the trial Court and allowed the appeal filed by defendants and thereby dismissed the suit filed by the plaintiff.
11. I have heard the learned counsel for the appellant as well as learned counsel for respondents.
12. The learned counsel for appellant invited my attention to the plaint averments wherein plaintiff has categorically stated that he was the owner of the suit schedule property having purchased the same under the sale deed Ex.P1 dated 17.07.1948. He submitted that despite the categorical plea put forth by the plaintiff in the plaint, there was no denial of the title of the plaint in the written statement filed by the defendants. It was also contended that in the written statement, defendants have never denied or disputed the sale deed at Ex.P1 relied upon by the plaintiff. It was pointed out that a reading of the entire written statement would indicate that the defendants did not plead anything with regard to their source of title of suit schedule property and the only plea put forth in the written statement is that the defendants were in possession and enjoyment of suit schedule property without referring to any title documents.
13. Secondly, it was contended that the plaint referred to the sale deed at Ex.P-1 which contained specific boundaries which were capable of being identified and despite the plaintiff specifically identifying the plaint schedule property by giving definite boundaries and measurements, the defendants in their written statement did not raise any dispute with regard to identity of the property and that defendants did not specifically say that the plaint schedule property bearing No.174 was not in existence. In other words, it was contended that in the absence of any dispute in the written statement of the defendants denying the title or identity of the suit schedule property, no amount of evidence in this regard adduced by other parties can be looked into and as such, Lower Appellate Court had completely fallen into error by evaluating the evidence on this aspect without there being necessity in this regard and this has resulted in erroneous conclusion by the Lower Appellate Court.
14. The learned counsel would also drew my attention to the written statement filed by the defendants specifically contending that they are in possession and enjoyment of property bearing kaneshmari No.124 but did not state any thing with regard to their right, title and interest and identity of property bearing No.174 which was plaint schedule property and consequently, Lower Appellate Court could not have embarked upon on enquiry as to the title and identity to suit schedule property. The learned counsel also pointed out that if there is any discrepancy in the boundaries of the suit schedule property during the year 1948 when the sale deed was executed and in1998 when the suit was filed, the same was on account of long lapse of time of 50 years. The Lower Appellate Court did not take this factor into account while rendering the impugned judgment.
15. The learned counsel also submitted that the Lower Appellate Court misdirected itself in basing the entire judgment on irrelevant consideration such as age of the plaintiff, conduct of the plaintiff etc. which are neither relevant nor there exists any controversy in this regards between the parties. It is further contended that the Lower Appellate Court failed to consider and appreciate that the defendants have not produced any title deeds and did not claim title except referring to the revenue records which are not documents of title. It was also contended by the learned counsel for the appellant that so long as earlier suit in O.S.No.133/1995 wherein the plaintiff was examined as PW2 did not relate to the suit schedule property, the evidence given by the present plaintiff as PW2 in the said suit and his conduct in the present suit or this suit are not relevant for adjudication involved in the present suit.
16. The learned counsel lastly submitted that the Lower Appellate Court failed to appreciate that the present suit schedule property was not subject matter of O.S.No.133/1995 and that the present plaintiff was not a party to that suit.
17. Based on the above submission, learned counsel submits that impugned judgment and decree passed by the Lower Appellate Court requires to be set aside and the judgment and decree passed by the Trial Court is to be restored.
18. Per contra, learned counsel appearing on behalf of the respondents submits that a perusal of the plaint averments would clearly establish that the entire claim made by the plaintiff in this suit is based on Ex.P1 dated 17.07.1948. In other words, in a suit for declaration and possession in which the entire claim of the plaintiff is based on title, it was incumbent upon the plaintiff to prove over his title over the suit schedule property as described in the plaint.
19. Learned counsel for defendants invited my attention to the written statement filed by the defendants in paragraph 2 wherein defendants have categorically, clearly and unambiguously denied the title of the plaintiff over the suit schedule property and as such, the contention urged on behalf of the learned counsel for appellant that the title of the plaintiff is not disputed is incorrect and untenable. The learned counsel for defendants also submit that in para 5 of the written statement the defendants have clearly and specifically stated that the plaintiff was not the owner of the suit schedule property and that he has no right to seek possession of the property. Under these circumstances, it was submitted that the title of the plaintiff over the suit schedule property had been seriously denied and disputed by the defendants at the earliest point of time in their written statement.
20. Learned counsel for the defendants also invited my attention to para 5 of the written statement filed by the defendants wherein the defendants have clearly disputed the identity of suit schedule property. He invited my attention to specific contention put forth that they are in possession and enjoyment of property bearing No.124 which is undisputedly different from katha No.174 alleged to have been purchased under the sale deed Ex.P1. A reading of the written statement at para 5 coupled with the other contention urged in the written statement will clearly establish that the defendants had seriously and specifically disputed and denied the identity of the suit schedule property of plaintiff as well as the sale deed Ex.P1. It is therefore contended that in view of there being a serious dispute raised by the defendants in the written statement at the earliest point of time with regard to very identity of suit schedule property, the Lower Appellate Court was fully justified in re-appreciating evidence of the parties in this regard and come to the conclusion that the plaintiff had failed to establish the very identity of suit schedule property.
21. Learned counsel for the respondents specifically submits that in the written statement at para 5 referred supra, defendants have categorically stated that their father Shivalingappa and others have been in possession and enjoyment of suit schedule property in their own right thereby indicating that they had claimed title and possession over the suit schedule property as owners in their own right and not as licensee or trespassers as alleged by the plaintiff.
22. The learned counsel also submits that in view of there being serious dispute with regard to identity coupled with the fact the boundaries found in Ex.P1 did not contain any measurements as well as the fact that the boundaries of the property conveyed under Ex.P1 and the boundaries of the plaint schedule property are completely different, it was incumbent upon the plaintiff to explain and prove the identity of suit schedule property in relation to Ex.P1 and plaintiff having failed to establish the same, his suit was rightly dismissed by the Lower Appellate Court. It was also contended by the learned counsel that the suit proceeded on the basis Shivalingappa was a licensee under the plaintiff and the pleadings and evidence on record being highly discrepant, inconsistent and contradictory with regard to the alleged licence, the plaintiff had not proved the alleged licence in accordance with law. He submitted that it is well settled that in a suit for declaration and possession of title, the burden is on the plaintiff to establish his claim and he has to stand and fall on the strength of his own case and not on the weakness of the defendants. In this context, the learned counsel would place reliance on a judgment in the case of Moran Mar Basselios Chatholicos and another V/s Most Rev. Mar Poulose Athanasius and others reported in AIR 1959 SC 526, Ramachandra Sakharam Mahajan V/s Damodar Trimbak Tanksale reported in (2007) 6 SCC 737.
23. The learned counsel invited my attention to the categoric, unequivocall, clear & definite admission in the cross-examination of PW1 wherein he has admitted that the property purchased under the sale deed Ex.P1 had already been sold in favour of three persons and in the absence of any evidence to show either the plaintiff, his father or grand father had retained any portion of the property purchased under Ex.P1 and also that what was retained was in fact the suit schedule property, the suit for declaration of title and possession was liable to be dismissed.
24. In this regard, the learned counsel also contended that except sale deed Ex.P1 dated 17.07.1948 , there is absolutely no other material, viz., revenue records etc., which would corroborate the title and possession of the plaintiff or his ancestor or at least evidence of the fact that any of them exercised any manner of right, title, interest or possession over the suit schedule property. This aspect becomes relevant in the light of admission of PW1 that property purchased under Ex.P1 had been sold prior to filing of suit itself. On the other hand, the revenue records would indicate that the defendants are in possession of property bearing kaneshmari No.124 for a very long period of time, revenue records stand in their name and they had paid taxes which would show that the defendants are in possession and enjoyment of the property in their own right and not as licensee. It was therefore contended that the findings recorded by the Lower Appellate Court are completely in the realm of re-appreciation of evidence and this Court being precluded from re- appreciating the evidence in the exercise of its jurisdiction under Section 100 of CPC, even if different view is possible, it was not permissible to re-appreciate the evidence and take a different view in the light of law laid down by the Apex Court in the case of Veerayee Ammal V/s Seeni Ammal reported in (2002) 1 SCC 134. It was therefore contended that having regard to pure findings of fact based on evidence recorded by the Lower Appellate Court, no question of law much less Substantial Question of Law arises for consideration in this appeal and the same deserves to be dismissed.
25. By way of reply learned counsel for appellant would reiterate the submission made on behalf of the appellant and would invite my attention to the provisions containing in Order 8 Rule 5 of CPC to the effect that any fact not denied in pleadings would be deemed to be admitted and evidentiary value of any such admission in pleadings is extremely high and can be acted upon by the Court as held by the Apex Court in the case of Nagindas Ramdas V/s Dalpatram Iccharam alias Brijram and others reported in AIR 1974 SC 471.
26. A perusal of the plaint filed by the plaintiff will indicate that it was the specific contention put forth by the plaintiff at Paragraph 2 that the suit schedule property was purchased by his father Channa Basappa and grandfather Mahadevappa under registered sale deed dated 17.07.1948. At Paragraph 4 of the plaint, the plaintiff has specifically stated that the relevant documents of title are produced. In the schedule to the plaint, the plaint schedule property is described as kaneshmari property bearing No.174 measuring East to West 17’, North to South 72’, bound on the East by House of Marulasiddappa, West by house of Murigeppa, North by house of Bhimachar and south by road.
27. Defendants have filed their written statement contesting the suit interalia putting forth various contentions. To appreciate the defence put forth by the defendants in their written statement, it would be appropriate to extract relevant portions of the written statement.
“ 2. The allegation made in the 2nd para of the plaint to the effect that during the life time of Mahadevappa and Channabasappa, they has acquired the suit schedule house jointly under a registered sale deed dated 17.07.48 from one Halappa, and that since then they were enjoying the same as owners and after their death the plaintiff being their legal heir was exercising his rights as a owner, are all false and the plaintiff is put to strict proof of the allegations.
5. The plaintiff has come forward with a false suit. He is not the owner of the suit house. Actually the suit house never belonged to the plaintiff nor his family. It was the father of this defendant Sri. Shivalingappa who constructed the suit house long ago and has been residing in the said house. There are documents to show that the Khata of the suit property was standing in the name of deceased Shivalingappa since 3 decades. Shivalingappa died in the year 1990 and after his death the Khata of the house was mutated in the name of his second wife Naramma as per orders passed in PF.54/91-92. All along Shivalingappa and after his death his legal heirs have been paying taxes in respect of the property, which bears Khaneshmari No.
124. Thus earlier Shivalingappa and after him his legal representatives have been in possession and enjoyment of the said property as owners in their own right. The plaintiff is fully aware of these facts. But he is a person who has developed an inimical attitude towards the defendants, as the defendants did not listen to his advice on an earlier occasion in respect of the family dispute as detailed infra.
7. The plaintiff is not the owner of the suit schedule property. He has no right to seek possession of the suit schedule property from the defendants. Likewise he is not also entitled for mesne profits.”
28. The primary contention urged on behalf of the plaintiff is that whilst the plaintiff has specifically contended in Paragraph 2 of the plaint that he was the owner of the suit schedule property having acquired the same from his father and grandfather, who in turn acquired the property under registered sale deed dated 17.07.1948, neither the sale deed nor the title of the plaintiff has been disputed by the defendants in their written statement. It is therefore contended that in view of non-denial, much less specific denial of the sale deed as well as title of the plaintiff in respect of the suit schedule property by the defendants in their written statement, in view of the provisions contained in order VIII Rule 5 CPC, the title of the plaintiff over suit schedule property stood established and the lower Appellate Court failed to appreciate this and came to the wrong conclusion that the plaintiff has failed to establish his title over the suit schedule property.
29. As against this, the learned counsel for the defendants invited my attention to Paragraphs 2, 5 and 7 of the written statement referred to supra wherein the defendant has repeatedly not only denied/disputed title of the plaintiff over the suit schedule property, but the defendants have specifically contended that the plaintiff was not the owner of the suit schedule property.
30. I have carefully perused the pleadings of the parties. In my opinion, at paragraphs 2, 5 and 7 of the written statement, the defendants have clearly and unequivocally denied and disputed the sale deed relied upon by the plaintiff as well as the title of the plaintiff over the suit schedule property as pleaded by them. It is well settled that moffusil pleadings should be construed liberally and not in a strict manner. At any rate, the averments in the written statement referred to above clearly demonstrate that the defendants have specifically denied/disputed the sale deed dated 17.07.1948 as well as the title of the plaintiff over the suit schedule property. In my considered view, learned counsel appearing for the defendants is right in submitting that the sale deed dated 17.07.1948 as well as the title of the plaintiff have been specifically denied by the defendants in their written statement and consequently, the question of placing reliance on the provisions contained in order VIII rule 5 CPC or the judgment of the Apex Court reported in Nagindas Ramdas case supra in this regard does not arise.
31. The second contention urged on behalf of the plaintiff is that in their written statement, the defendants have not disputed the identity of the suit schedule property. It is contended that in the absence of there being any dispute with regard to the identity of the suit schedule property, the lower appellate Court committed a serious error in making much of the discrepancies in the pleadings and evidence of the plaintiff with regard to the identity of the suit schedule property and this investigation/enquiry by the lower appellate Court not being warranted in the facts and circumstances of the case, the same has resulted in erroneous conclusion.
32. Per contra, learned counsel for the defendants would invite my attention to the averments made in Paragraphs 2, 5 and 7 of the written statement supra and contend that having regard to what is stated therein, there was in fact a serious dispute with regard to the very identity of the suit schedule property.
33. I have carefully perused the plaint averments, the plaint schedule, the written statement averments as well as contents of the sale deed-Ex.P.1.
34. As stated above, it is well settled that moffusil pleadings should be construed liberally and not in a strict manner and cannot be dissected with mathematical/arithmetic precision. A perusal of paragraphs 2, 5 and 7 will indicate that if the averments made therein are read cumulatively and harmoniously and in conjunction with each other and if the averments made in the said three paragraphs are read as a whole, it becomes clear that the defence set up by the defendants in their written statement with regard to disputing/denying the title of the plaintiff over the suit schedule property clearly encompasses the dispute with regard to identity of the suit schedule property also. I say this because in Paragraph 5 of the written statement, the defendants have categorically stated that they are in occupation of the suit schedule property bearing kaneshmari No.124 which is undisputedly different from kaneshmari No.174 which has been claimed by the plaintiff. The defendants have also stated that they are in occupation of the said kaneshmari No.174 in their own right thereby indicating that they had not only set up title in themselves, but had disputed the very identity of the suit schedule property. It is well settled that identity of a property includes the number of a property, its extent, its boundaries, its location etc., and other surrounding circumstances. In their written statement, the defendants may not have used the word “identity” and the averments made therein may not be happily worded. But however, a conjoint and cumulative reading of all the averments in the written statement would clearly establish that there existed a serious dispute with regard to the very identity of the suit schedule property.
35. One more circumstance that would go to show that there was a dispute with regard to the identity of the suit schedule property is the undisputed fact that a perusal of the plaint schedule and the schedule to the property purchased under the sale deed at Ex.P.1 dated 17.07.1948 would indicate that there are serious inherent and patent discrepancies between the boundaries and measurements in the plaint schedule and the sale deed at Ex.P.1. While Ex.P.1 does not mention any extent whatsoever and its contents are silent with regard to the identity of the properties sold under the document, the boundaries of the property sold under Ex.P.1 and the boundaries of the property pleaded as the plaint schedule property are completely different. Though the learned counsel for the appellant made a sincere attempt to explain that this discrepancy arise on the ground that due to passage of time, the boundaries would automatically indicate an easy change, unfortunately, there is absolutely no material on record to accept the said contention particularly when nothing is produced to establish that the property purchased under Ex.P.1 and the plaint schedule property are one and the same. It is also relevant to state here that having regard to the obvious inherent ambiguity/patent discrepancy in the plaint as well sale deed at Ex.P.1, it was incumbent upon the plaintiff to reconcile discrepancies and explain the same which exercise has not been undertaken by him. Under these circumstances, it is not possible to accept the contention of the plaintiff that merely because the written statement does not contain averments with mathematical/arithmetic precision with regard to the identity of the property, the identity of the suit schedule property is not at all in dispute. As stated earlier, the mutually inconsistent and contradictory boundaries, extent and number of the property between the sale deed at Ex.P.1 and the plaint schedule is sufficient on its own accord to create a dispute regarding identity irrespective of whether the defendant had put forth such a defence or not.
36. It is well settled that in a case where discrepancies are patently visible in the pleadings and evidence on record, even if the defendants are placed exparte or do not contest the matter, it is the duty of the Court to evaluate the pleadings and documents and only thereafter, come to a conclusion whether the plaintiff has succeeded in establishing the claim put forth by him by adducing legal and acceptable evidence in support of his claim. Under these circumstances, I am of the opinion that the contention of the plaintiff that there is no dispute with regard to identity is liable to be rejected.
37. As stated above, in view of there being a serious dispute regarding the title as well identity, the burden rests heavily upon the plaintiff to establish his title and identity of the suit schedule property. It is not in dispute that except producing Ex.P.1, the plaintiff has not produced any other evidence whatsoever to establish either the title of the plaintiff over the suit schedule property or its identity as pleaded by him. Apart from a cryptic averment made in the plaint, in his evidence also, the plaintiff (P.W.1) has not made any attempt to explain the discrepancies in the pleadings and evidence pointed out above. So also the witness P.W.2 examined on behalf of the plaintiff has also not stated anything with regard to this apparent discrepancy in the pleadings and evidence. In the absence of any material produced by the plaintiff to explain this apparent/patent discrepancies in the pleadings and evidence, I am of the opinion that the plaintiff has failed to establish his title and identity over the suit schedule property as pleaded by him in the suit.
38. As rightly pointed out by the learned counsel for the defendants, in a comprehensive suit for declaration and possession, the burden rests heavily upon the plaintiff to prove his contention and the plaintiff cannot take advantage of the weakness in the defence urged by the defendants to compel the Court to come to the conclusion that the plaintiff was not owner of the suit schedule property as held by the Apex Court in the case of MORAN MAR BASSELIOS CATHOLICS AND ANOTHERS VS MOST. REV. MAR POCLOSE ATHANSPUS & OTHERS AIR 1954 SC 526 and RAMACHANDRA SAKHARAVAN MAHAJAN VS. DAMODAR TRIABALE TALUKSALE (DEAD) AND OTHERS 2007(6) SCC 737. It is well settled that the plaintiff has to stand or fall on the strength of his own case and cannot rely upon the weakness in the case of the defendant. As stated above, except producing the sale deed which did not even contain the measurements of the property bearing No.174 apart from several other ambiguities found therein, the plaintiff did not produce any document, much less the revenue record to corroborate the claim put forth by him in the suit. Despite stating in his cross-examination that the katha had been made out in the name of his grandfather and father, the plaintiff did not produce any evidence to establish this statement. It is therefore necessary to draw adverse inference against the plaintiff for not producing the best evidence to establish not only the identity of the suit schedule property, but also evidence to show that his grandfather, father and himself had exercised rights of ownership and possession over the suit schedule property for a period of 50 years from 1948 till the suit was filed in the year 1998.
39. Yet another circumstance which goes against the plaintiff is that despite pleading that the defendants’ father Shivalingappa was inducted as a licencee by the plaintiff in respect of the suit schedule property, absolutely no evidence is produced by the plaintiff in this regard. On the other hand, the specific contention of the plaintiff is that the defendants were in permissive possession from the year 1991-92 onwards which is falsified by the revenue records produced by the defendants which would clearly establish that the defendants and Shivalingappa were in occupation of the suit schedule property for a long period in time prior to 1991, at least from 1979 onwards. One more circumstance which would weigh in favour of the defendants is that despite the sale deed at Ex.D.1 specifically referring to the property conveyed therein as a vacant space, in the plaint, the plaintiff has specifically stated that the suit schedule property including the house was purchased in the year 1948 under Ex.P.1. This discrepancy with regard to the nature of the suit schedule property as pleaded in the plaint and the property purchased under Ex.P.1 not only shows that the plaintiff has failed to establish his title over the suit schedule property as described in the plaint, but also failed to establish the identity of the suit schedule property.
40. Learned counsel for the defendants was correct in inviting my attention to the admission in the cross-examination of P.W.1 wherein P.W.1 has clearly stated that the suit schedule property had been sold by his father to three different persons. This admission becomes relevant particularly having regard to the nature of recitals found in the sale deed-Ex.P.1 coupled with the undisputed fact that no measurements of the property which are conveyed under Ex.P.1 are mentioned in the document. These unambiguous, unequivocal and clear admissions of P.W.1 that the property purchased under Ex.P.1 had been sold by his father coupled with the fact that there is neither pleading nor evidence of the plaintiff to the effect that after such sale, the plaintiff or his father retained any portion of the property purchased by them under Ex.P.1 is sufficient to establish that the plaintiff had not proved his alleged title over the suit schedule property as on the date of the suit.
41. In so far as the contention of the defendants that the conduct of the plaintiff in filing the present suit after the defendants obtained a decree against his sister in O.S.No.133/1995 is concerned, as rightly pointed out by the learned counsel for the appellant, the said circumstance is neither relevant nor germane for the purpose of adjudication of the present suit, particularly when the suit involves proprietary and possessory rights over immovable property. In view of my findings recorded above that the plaintiff has failed to establish his title over the suit schedule property as well as its identity, it is not necessary to give any finding on this aspect for the purpose of disposal of the present appeal.
42. The aforesaid discussion would go to show that the lower appellate Court was fully justified in coming to the correct conclusion that the material on record establishes that the plaintiff had neither established his title over the suit schedule property nor its identity and as such, the suit filed by the plaintiff deserves to be dismissed.
43. Learned counsel for the respondent invited my attention to the judgment of the Apex Court reported in 2002(1) SCC 134 wherein the Apex Court has held that re-appreciation of evidence in second appeal under Section 100 CPC is not permissible and it is not open for this Court sitting in second appeal to take a different view than that of the lower appellate Court by reappreciating evidence. There is no quarrel with regard to the proposition of law laid down by the Apex Court in the said judgment. However, having examined the entire material on record, I am of the opinion that the judgment of the lower appellate Court in allowing the appeal filed by the defendants and dismissing the suit filed by the plaintiff based on legal, acceptable and admissible material and evidence is sound and proper and the same does not warrant interference at the hands of this Court. Accordingly, the substantial question of law formulated by this Court is answered in the negative against the appellant and in favour of the respondents.
44. In view of the aforesaid discussion, I do not find any merit in the appeal and the same is hereby dismissed. No costs.
Sd/- JUDGE UN/bnv