IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.187 OF 2001 C/W REGULAR FIRST APPEAL Nos.208 OF 2001 AND 209 OF 2001 In RFA 187/2001 BETWEEN 1. Sri. H.K.Rama Rao, Since dead by his Legal Representatives 1(a) Smt. Saraswathi Bai, Aged about 70 years. W/o. Late H.K.Rama Rao, 1(b) Sri. R.Srinivas, Aged about 48 years, S/o. Late H.K.Rama Rao, 1(c) Sri. Krishnaji Rao, Aged about 44 years, S/o. Late H.K.Rama Rao, All are residing at No.128, 5th Cross, Kurubarahalli, Nazarabad, Mysore-570011.
Appellants 1 (a) to (c) are amended Vide order dated 15.12.2009 2. Sri. Ramaboyi, Major, S/o. Late Nuggehalli Chinnaboyi, Since dead by Legal Representatives 2(a) Sri. R.Ramaswamy, Aged about 54 years, S/o. Late Sri. Rama Boyi, Residing at G-U Colony, Padukote Post, Y.R.R.P. Colony, H.D.Kote Taluk, Mysore District.
2(b) Sri. R.Ramamma, Aged about 60 years, D/o. Late Sri. Rama Boyi, Residing at Giriyabovipalya, Nazarabad Mohalla, Mysore.
(Appellants 2(a) & (b) amended vide Court order dated 9.4.2009) 3. Sri. P. Thimmaiah, Major, S/o. Sri. Puttaiah, No.15, Giriyabovipalya, Nazarabad Mohalla, Mysore, 4. Smt. Lakshmamma, Aged about 58 years, W/o. Sri. Thimmaiah, 5. Sri. L.T.Ravikumar, Aged about 35 years, S/o. Sri. Thimmaiah, Both Residing at Old No.1812/1, New No.34, 2nd Cross, Giriya Bovi Palya, Nazarbad Mohalla, Mysore-570010.
(Appellants 4 and 5 impleaded vide order dated 19.3.2015) …Appellants (By Sri. Y.K.Narayana Sharma, Advocate, for A4 & A5) AND 1. Sri. K.Srinivasa, Aged about 40 years, S/o. Sri. Krishna, 1815/2, (New No.36/2), Giriyabovipalya, Nazarabad Mohalla, Mysore, 2. Sri. Basavaraju, Major, S/o. Sri. Hanumaiah Alias Gajjoda, Kandur Mutt, Channarayapatna Town, Hassan District.
3. The Mysore Urban Development Authority, Jhansi Lakshmibai Road, Mysore, Represented by its Commissioner.
4. The Mysore City Corporation, New Sayyaji Rao Road, Mysore-represented by its Commissioner.
…Respondents (By Sri S.Subhash, Advocate, for R1; Sri H.C.Shivaramu, Adv., for R3; Ms.Geetha Devi M.P., Advocate, for R4) This RFA is filed under Section 96 of CPC against the judgment and decree dated 18.11.2000 passed in O.S.No.12/92 by the Small Causes and Additional Civil Judge, Sr. Dn. Mysore, decreeing the suit for declaration, mandatory injunction and permanent injunction.
In RFA 208/2001 BETWEEN 1. Sri. H.K.Rama Rao, Major, S/o. Late Krishnaji Rao, R/at 545, Ashoka Road, Mysore, Represented by his GPA Holder, Sri. P.Thimmaiah, Major, S/o. Sri. Puttaiah, 15, Giriyaboyipalya, Nazarbad Mohalla, Mysore.
2. Smt. Lakshmamma, Aged about 58 years, W/o. Sri. Thimmaiah, 3. Sri. L.T.Ravikumar, Aged about 35 years, S/o. Sri. Thimmaiah, Both Residing at Old No.1812/1, New No.34, 2nd Cross, Giriya Bovi Palya, Nazarbad Mohalla, Mysore-570010.
(Appellants 2 and 3 impleaded vide order dated 19.3.2015) …Appellants (By Sri.Y.K.Narayana Sharma, Advocate, for A2 & A3) AND Sri. K.Srinivasa, Aged about 40 years, S/o. Sri. Krishna, 1815/2, (New No.36/2), Giriyabovipalya, Nazarabad Mohalla, Mysore.
(By Sri S.Subhash, Advocate) …Respondent This RFA is filed under Section 96 of CPC against the judgment and decree dated 18.11.2000 passed in O.S.No.95/93 on the file of the Small Causes and Additional Civil Judge, (Sr. Dn.), Mysore, decreeing the suit for declaration, mandatory injunction and permanent injunction.
In RFA 209/2001 BETWEEN 1. Sri. H.K.Rama Rao, Major, S/o. Late Krishnaji Rao, R/at 545, Ashoka Road, Mysore, Represented by his GPA Holder, Sri. P.Thimmaiah, Major, S/o. Sri. Puttaiah, 15, Giriyaboyipalya, Nazarbad Mohalla, Mysore.
2. Smt. Lakshmamma, Aged about 58 years, W/o. Sri. Thimmaiah, 3. Sri. L.T.Ravikumar, Aged about 35 years, S/o. Sri. Thimmaiah, Both Residing at Old No.1812/1, New No.34, 2nd Cross, Giriya Bovi Palya, Nazarbad Mohalla, Mysore-570010.
(Appellants 2 and 3 impleaded vide order dated 19.3.2015) …Appellants (By Sri. Y.K.Narayana Sharma, Advocate, for A2 & A3) AND 1. Sri. K.Srinivasa, Aged about 40 years, S/o. Sri. Krishna, 1815/2, (New No.36/2), Giriyabovipalya, Nazarabad Mohalla, Mysore.
(By Sri S.Subhash, Advocate) …Respondent This RFA is filed under Section 96 of CPC against the judgment and decree dated 18.11.2000 passed in O.S.No.92/93 on the file of the Small Causes and Additional Civil Judge, (Sr. Dn.), Mysore, dismissing the suit for declaration, mandatory injunction and permanent injunction.
These appeals coming on for orders this day, the court delivered the following:
JUDGMENT The common judgment in the suits O.S.No.12/1992, O.S.No.91,92,94, 95 & 97/1993 passed by Addl. Civil Judge, (Sr. Dvn., ), Mysore on 18.11.2000 gave rise to five appeals viz.,RFA.No.187/2001,RFA.No.208/2001, RFA.No.209/2001, RFA.No.210/2001 and RFA.No.211/2001. Of these five appeals, RFA.No.210/2001 and RFA.No.211/2001 were dismissed on 5.1.2015 and only three appeals have now remained for consideration.
2. Since there are totally six suits in respect of the same property, it is better to narrate the facts with reference to the names of the parties instead of referring to them with respect to the rank of each of them in the suits.
3. RFA.No.187/2001 arises from the suit O.S.No.12/1992. The appellants were H.K.Rama Rao, Ramboyi and P.Thimmaboyi. Subsequently, Lakshmamma and L.T.Ravikumar got impleaded as appellants 4 and 5. RFA.No.208/2001 is filed by H.K.Rama Rao and thereafter Smt. Lakshmamma and L.T.Ravikumar were added as appellants 2 and 3 respectively. RFA.No.209/2001 was also filed by H.K.Rama Rao and then Smt. Lakshmamma and L.T.Ravikumar became parties as appellants 2 and 3 respectively.
4. RFA.No.187/2001 is the main appeal as it arises out of a comprehensive suit for declaration of title, possession and mandatory injunction. The other two appeals arise out of suits for injunction.
5. Given a brief account of the pleadings in all the three suits, they are as follows:
O.S.No.12/1992 was filed by K.Srinivasa. Schedule A of the plaint in the suit describes a vacant site bearing No.1812(New No.33) situated at Giriyaboyipalya, Nazarabad Mohalla, Mysore that measures East to West 80 ft. and North to South 31 ft. ‘B’ and ‘C’ schedule properties are part of A schedule property. A schedule property earlier belonged to one Puttamma, wife of Thimma Boyi and she gifted the said property to one Pillamma on 10.02.1941. In the gift deed the property was described as one comprising of a house measuring 6 ankanas in extent and a vacant site lying towards Eastern side of the said house measuring East to West 45 ft. and North to South 31 ft. Conventionally one ankana means six ft. in extent and as such, the measurement of the house was 36 ft. from East to West and 31 ft. from North to South, thus the entire measurement of the property gifted to Pillamma was 84 ft. from East to West and 31 ft. from North to South.
6. On 26.04.1945, the said Pillamma and her sister Thyamma sold the said property in favour of one Giriyamma and her son Hanuma Boyi. The said purchasers held the possession till 08.09.1955 and then Hanuma Boyi executed a sale deed in favour of Giriyamma conveying his rights in her favour. Thus Giriyamma became absolute owner of the ‘A’ schedule property and then on 25.09.1986, Giriyamma and her grandson Madappa executed a relinquishment deed in favour of Basavaraju, another grandson of Giriyamma, in respect of the same property. Basavaraju, i.e., the 4th defendant having become the absolute owner of the property sold the same in favour of K.Srinivas, the plaintiff. Actually when release deed was executed in favour of Basavaraju, the house that existed there had collapsed and the entire property was a vacant site; therefore, the property that K.Srinivas purchased was actually a vacant site. He obtained municipal khata in his name and was paying the tax also.
7. When one Nuggehalli Chinnaiah and P.Thimmaiah, i.e., defendant no.3 started interfering with the possession of K.Srinivas over A schedule property, he was constrained to file a suit O.S.No.2660/1990 (newly numbered as 91/93) for permanent injunction. In the said suit an order of temporary injunction was granted. After suit summons and temporary injunction order were served on Nuggehalli Chinnaiah, it is stated that he instigated H.K.Rama Rao, the 1st defendant to file a suit against K.Srinivas. Thus H.K.Rama Rao filed the suit O.S.No.2736/1990 against K.Srinivas in respect of the property bearing No.1812/1, (New No.34), situated at Giriyaboyi Palya, Nazarabad Mohalla, Mysore measuring East to West 136 ft. and North to South 40 ft. K.Srinivas contested the suit and took up a contention in his written statement that the property as described by H.K.Rama Rao in his plaint did not exist. When these two suits were pending, Sri.K.Srinivas learnt that H.K.Rama Rao was making attempts to obtain A plan and licence for undertaking construction in the site in respect of which he had filed the suit. Therefore K.Srinivas issued a legal notice to the Mysore Urban Development Authority and the Mysore City Corporation i.e., defendants no.5 and 6 objecting issuance of plan and license. Despite this notice the defendants 5 and 6 without considering the objections of the plaintiff sanctioned the plan in favour of H.K.Rama Rao Thereafter the plaintiff got issued another notice to defendants 5 and 6 for canceling the plan and licence. Since they did not take any action and H.K.Rama Rao started interfering with his possession, he filed a suit in the vacation court, Mysore for permanent injunction against H.K.Rama Rao. An order of temporary injunction was passed against H.K.Rama Rao. The suit was later on renumbered as O.S.No.916/91. It is stated that H.K.Rama Rao, after coming to know about order of injunction passed against him by the vacation court, instigated Ramaboyi i.e., the 2nd defendant to file a suit against K.Srinivas and therefore Ramaboyi filed a suit O.S.No.811/91 in the court of III Addl. First Munsiff, Mysore in respect of property bearing No.1813 (New No.36) situated at Giriyaboyipalya, Nazarabad, Mysore City, giving the measurement of the property as 26 x 26 ft and showing the Eastern boundary as property belonging to H.K.Rama Rao. H.K.Rama Rao did not stop his attempts to put up construction in ‘A’ schedule property and therefore K.Srinivas thought it fit to file another suit questioning the legality of the grant of plan and licence and accordingly he instituted the suit O.S.1026/91 in the court of Prl. 1st Munsiff, Mysore for mandatory injunction directing the Mysore Urban Development Authority and the Mysore City Corporation to cancel the plan and licence. He prayed for interim order in the said suit, but it was not granted. Taking advantage of the situation and in utter violation of the interim order granted by the vacation court, H.K.Rama Rao encroached upon ‘A’ schedule property somewhere in the month of July, 1991and raised a construction there. The measurement of the encroached portion is 30 ft. East to West and 31 ft. North to South. Encroached portion is described in ‘B’ schedule of the plaint. However K.Srinivas continued to be in possession and enjoyment of the remaining portion of A schedule property measuring East to West 50 ft. and North to South 31 ft. described in ‘C’ schedule of the plaint. These circumstances led to institution of another suit O.S.No.12/1992 by K.Srinivas for the relief of declaration that he is the absolute owner of A schedule property, mandatory injunction to defendant no.1 for demolishing the construction in the ‘B’ schedule property as also for its possession, and permanent injunction to restrain all the defendants 1 to 3 and 5 and 6 from interfering with his possession and enjoyment of ‘C’ schedule property and also for mesne profits.
8. The 1st defendant H.K.Rama Rao, 2nd defendant Ramaboyi and 3rd defendant P.Thimmaiah filed their common written statement denying almost all the plaint averments and the allegations levelled against them. They disputed the measurement of the plaint ‘A’ schedule property to be 30 x 80 ft. as stated by the plaintiff, but they admitted that the said property earlier belonged to Puttamma, wife of Thimmaboyi. Their specific defence is that this Puttamma, under a registered sale deed dated 26.09.1938 sold two ankanas of vacant site measuring 26 x 26 ft. in favour of Ramaboyi son of Nuggenahalli Chinnaboyi i.e., the 2nd defendant. To this sale deed, Pillamma the daughter of Puttamma was a witness. The property thus purchased by him is described in ‘B’ schedule of the written statement.
9. For this reason the property purchased by K.Srinivasa could not have measured 80 x 38 ft. and even in the earlier title deed referred to by K.Srinivasa, the total measurement of the site owned by Puttamma was shown as 48 x 31 ft. only. K.Srinivasa deliberately suppressed these facts. The various registered sale deeds referred to by K.Srinivasa do not confer on him any right, title or interest in respect of plaint ‘A’ schedule property.
10. It is stated further in the written statement that H.K.Rama Rao, on 03.07.1968 purchased site No.1812/1 (New No.34) described in schedule ‘A’ of the written statement from one M.Madappa and his brother Rajanna. The measurement of this site is East to West 136 ft. and North to South 40 ft. After obtaining approval from the City Corporation, he constructed a house in an area measuring 30 x 30 ft. and there is a vacant land measuring 106 ft. x 40 ft. The 3rd defendant P.Thimmaiah was in possession of that property. It is stated that when the 2nd defendant Ramaboyi purchased written statement ‘B’ schedule property, there was a house measuring two ankanas abutting the vacant space. Since that house fell down, the entire ‘B’ schedule property became a vacant site. The corporation assigned the number 1813 and New No.36 to that property. Ramaboyi had mortgaged the said property in favour of one Thimmanna on 02.07.1942 and then got the mortgage redeemed. In O.S.2736/1990, the court appointed a Commissioner for spot inspection. The Commissioner gave a report along with a sketch showing the existence of the properties owned by H.K.Rama Rao and Ramaboyi. As per the report of the Commissioner, property bearing No.1811/1, New No.34 measured 42 x 136 ft. and property bearing No.1813, (New No.38) measured 26 x 26 ft. The Commissioner also made it very clear in his report that the property of the plaintiff did not measure East to West 80 ft and North to South 31 ft. Admitting the institution of various suits as stated in the plaint, H.K.Rama Rao, Ramaboyi and P.Thimmaiah contended that the plaint ‘A’ schedule property including ‘B’ and ‘C’ schedule properties does not exist. They prayed for dismissal of the suit.
11. The 5th and the 6th defendants also filed their written statement, there is no need to refer to the same.
12. The trial court framed issues in all the suits and held a joint trial. The plaintiff in O.S.No.12/1992 adduced evidence as PW-1 and produced 26 documents as per Ex.P.1 to P.26. From the defendants side 4 witnesses DW.1 to DW4 adduced evidence and got marked 36 documents as per Ex.D.1 to D.36. After appreciating evidence the trial court came to conclusion to decree the suits O.S.12/1992, 91/93 and 95/93. The plaintiff in O.S.12/92 has been declared to be the owner of site No.1812, New No.33 as described in schedule ‘A’ to the plaint in O.S.12/92 and the defendants 1 to 3 have been directed to remove the construction and materials from plaint ‘B’ schedule property. The trial court also directed that to avoid loss by demolishing the building, the option was given to the plaintiff Srinivas to sell the vacant site to the defendants or vice versa within three months and in case this kind of a settlement was not possible, it was held by the trial court that plaintiff Srinivas could remove the building and take over vacant B schedule property from the defendants. Consequential relief of injunction was also passed against defendants 1 to 3 in O.S.12/92. Hence these appeals aggrieved by the judgment in all these suits.
13. The appellants in RFA.No.197/2001 have filed two applications I.A.1/15 and 2/18 for production of additional evidence. The first respondent has also filed 4 interlocutory applications I.A.1/18 and 3/18 to 5/18. I.A.1/18 is filed for dismissing the appeal, RFA.187/01. I.A.4/18 is for recalling the order date 11.08.2016 and I.A.3/18 has been filed for condoning the delay in making the application as per I.A.4/18. I.A.5/18 is filed under Section 151 of the Code of Civil Procedure (‘CPC’ for short) to hold that the 4th and 5th appellants in RFA.187/01 have no legal right or locus standi to prosecute the appeal and consequently to dismiss the appeals. All these applications are pending for consideration.
14. I have heard the arguments of the learned counsel for the appellants and the respondent on the merits of all these appeals and the pending applications.
(i) Whether I.A.1/2018, I.A.3/2018, I.A.4/2018 and I.A.5/2018 can be granted?
15. These applications can be decided together, the reason for all these applications being filed has a common cause. The legal representatives of first appellant, H.K. Rama Rao sold written statement ‘A’ schedule property to one Lakshmamma by executing a sale deed on 29.4.2010. Thereafter Lakshmamma gifted eastern portion of this property to an extent of 60 x 40 feet in favour of her son L.T.Ravikumar by executing a gift deed on 16.11.2012. On 3.1.2012, this court passed an order dismissing all the appeals as they had become infructuous because of sale of property by the appellants (LRs of H.K.Rama Rao). Thereafter, the purchaser under the sale deed dated 29.4.2010 namely Lakshmamma and her donee i.e., L.T.Ravi Kumar wanted to come on record in these appeals, therefore they filed a set of applications I.A.1/2014 to I.A.3/2014. I.A.1/2014 was filed seeking condoning delay of 1029 days in filing application I.A.2/2014 for recalling the order dated 3.1.2012 and I.A.3/2014 was made under Order 22 Rule 10 CPC for permitting them to come on record. On 19.3.2015, all these three applications were allowed, of course it was not a speaking order; it was just a one line order. Consequently, the appeals RFA 187/2001, RFA 208/2001 and RFA 209/2001 were restored, and the applicants namely Lakshmamma and L.T.Ravi Kumar came on record as appellants 4 and 5. On behalf of first respondent K.Srinivas, his counsel filed an application, I.A.2/2015 for recalling the order dated 19.3.2015, and this application was dismissed on 11.8.2016. K.Srinivas has got filed the applications under consideration. Sri Subhash, the learned counsel for K.Srinivas, argued that once all the appeals were dismissed on 3.1.2012, the court became ‘functus officio’ to consider the applications filed by Lakshmamma and Ravikumar. His argument was that the sale in favour of Lakshmamma and gift to Ravikumar took place during pendency of the appeals.
These two persons being the transferees had every right to get themselves impleaded according to Order 22 Rule 10 of CPC had the appeals been not dismissed on 3.1.2012. Order 22 of CPC applies to pending proceedings. When they made the applications to recall the order dated 3.1.2012 and to come on record, the appeals were not pending, therefore this court lacked jurisdiction to consider these applications. He argued that on 19.3.2015, when the order dated 3.1.2012 was recalled, he could not appear before the court for certain reasons and therefore he sought to recall the order dated 19.3.2015 by making an application as per I.A.2/2015. Sri Subhash submitted that on 11.8.2016, when that application was posted before court for orders, he was not allowed to make his submission; he was very badly treated and his application was dismissed. He argued that the first respondent K.Srinivas still had a right to urge for dismissal of the appeals because the fourth and the fifth appellants, Lakshmamma and L.T.Ravikumar have no locus standi to prosecute the appeal. According to him, they had no right to come on record after dismissal of the appeal on 3.1.2012. In support of his arguments, he relied upon judgment of Madras High Court in the case of R.V.Srinivasa Aiyengar vs Ry.Pratap Simha Rajah Saheb, the Junior Prince of Tanjore [AIR 1926 Madras 244].
16. Sri Y.K.Narayana Sharma for the appellants countered his argument by replying that Rules 3, 4 and 10 of Order 22 of CPC are no doubt applicable to pending proceedings. The appeals should not have been dismissed on 3.1.2012 as having become infructuous, the transfers in the nature of sale and the gift did not render the appeals infructuous. Therefore application was made for recalling the order dated 3.1.2012, once it was allowed, the appeals revived and thereby the court could consider the application, I.A.3/2014 filed under Order XXII Rule 10 of CPC. The applications filed by K.Srinivas as per I.A.1/2018 and I.A.3/2018 to I.A.5/2018 are misconceived. They deserve dismissal.
17. In my opinion, the applications filed by K.Srinivas are not founded on correct position of law. Though he had every right to seek recall of the order dated 19.3.2015 as it was passed in his absence, and he sought to give reasons for his counsel being unable to appear before the court on that day, it remains a fact that the first order dated 3.1.2012 was wrong, and probably to set it right, an order might have been passed on 19.3.2015; all that was required was to give reasons, but unfortunately reasons were not assigned. Therefore, the position of law is to be made clear. Indeed Order XXII of CPC is applicable to pending proceedings. The Hon’ble High Court of Madras in the case of R.V.Srinivas Aiyangar (supra) has held that Order XXII Rule 10 of CPC applies only to pending suits and enables a person deriving title from party is entitled to be brought on record. There is a subtle distinction between Rules 3 and 4, and Rule 10 of Order XXII of CPC. The death of a plaintiff or defendant during pendency of the suit results in abatement of the suit if legal representative of the deceased is not brought on record whenever cause of action survives in favour of legal representative. Rule 10 deals with another situation, it only enables a transferee to prosecute or defend a suit with the leave of the court. The language of sub-rule (1) of Rule 10 is so clear that in case of assignment, creation or devolution of interest during pendency of a suit, the suit may, by leave of the court be continued by or against the persons to or upon whom such interest has devolved. The word ‘may’ gives an option to the transferee to come on record in the suit. Even after transfer, the transferor or assignor does not lose right to continue the suit. Since the transferor is under an obligation to confer better title or interest to his transferee, he can continue in the suit. The transfer therefore does not render a suit infructuous. Whether a suit is rendered otiose or not has to be decided in the background of facts and circumstances of a given case. All these principles are very much applicable to appeals also in view of Order XXII Rule 11 of CPC. Therefore, the dismissal of appeals on 3.1.2012 was incorrect and it was set right on 19.3.2015. Once the order dated 3.1.2012 was recalled, the appeals were restored and application under Order XXII Rule 10 of CPC could be filed. Therefore, permitting Lakshmamma and L.T.Ravikumar to come on record in the appeals was not incorrect. The applications made by K.Srinivas do not deserve to be allowed.
(ii) Are the findings of the trial court that K.Srinivas is the absolute owner of plaint ‘A’ schedule property and that the property purchased by Rama Boyi under the sale deed dated 26.09.1938 does not exist, correct?
18. In O.S.12/1992, K.Srinivas is the plaintiff; since he has sought declaration of his title with respect to plaint ‘A’ schedule property, he has to establish the same. To prove his title, mainly he relies on Exs.P1 to P9. Ex.P1 is the sale deed dated 27.09.1990 executed in his favour by the fourth defendant, K.Basavaraju. The description of the property given in Ex.P1 is a site with no.1812 (new no.33) situate at Giriya Boyi Palya, Nazarabad Mohalla, Mysore City measuring East to West 80 feet and North to South 31 feet with below mentioned boundaries:-
East - Private Property West - Road, North - House of M.Rama Raju South - Lane (Galli) 19. This property is shown as a vacant site at the time of sale as house or a construction that existed there fell down many years ago. Ex.P2 is a sketch drawn by the plaintiff. Ex.P3 is a gift deed dated 10.02.1941 executed by Puttamma, the original owner, in favour of her daughter, namely Pillamma. This gift deed shows what was gifted to Pillamma consisted of two parts, a house with a dimension of 6 ankanas and a vacant place contiguous to this house on the eastern side measuring east to west 48 feet and North to South 31 feet. The boundaries given are, towards the East donor’s vacant land (£À£Àß ¨Á§ÄÛ SÁ° eÁUÀ), West – Government Road, South – House of Thimma Boyi S/o Hanuma Boyi and North by –House of Servegar Dodda Rama Boyi. Ex.P4 is the certified copy of Ex.P3, it does not require reference again. Ex.P5 is the sale deed dated 26.04.1945 executed by Pillamma and her sister Tayamma in favour of Giriyamma and her son Hanuma Boyi.
20. The description of property sold is a house measuring 6 ankanas and a vacant land on the eastern side of this house measuring East to West 48 feet and North to South 31 feet. But the boundaries given in this sale deed slightly vary. They are shown as, towards East - vacant site of Hanuma Boyi; West - Government road, North by house belonging to Servegar Dodda Rama Boyi. Ex.P7 is the sale deed dated 08.09.1955 and Ex.P8 is its certified copy. Under this sale deed, Hanuma Boyi sold to his mother, Giriyamma his half share in the property that he and his mother had purchased under Ex.P5. Ex.P9 is the release deed executed by Giriyamma and H.Madappa S/o. Hanuma Boyi on 20.05.1996 in favour of H. Basavaraju, the fourth defendant, this release deed does not contain description of any property; this deed recites that Giriyamma and H.Madappa have released their right in respect of all immovable properties owned by them. Thereafter H.Basavaraju Sold ‘A’ schedule property to K.Srinivas. This is how title of K.Srinivas is traceable.
21. Ex.D1 is a power of attorney executed by H.K.Ramarao in favour of the third defendant, P.Thimmaiah conferring on the latter powers to conduct the case on his behalf, this document is not relevant for deciding the issues in controversy.
22. Ex.D2 is a sale deed dated 3.7.1969. This is the document based on which the defendants have founded their defence. One M.Madappa and Rajanna, both being sons of H.Muddu Ramaiah sold a vacant site bearing No.1812/1 measuring East to West 136 ft. and North to South 40 ft. situate at Giriya Boyi Palya, Nazarabad Mohalla, Mysore city to H.K.Ramarao. The boundaries of this property are:
Towards the East - Public road the West - House of Hanumaboi the North - House of Tolasi Thimma Boyi the South - Road 23. The other documents that the defendants have produced are Municipal Revenue records to establish that after execution of sale deed as per Ex.D2, that the name of H.K.Ramarao was entered in the Municipal records.
24. Ex.D29 is a Partition Deed dated 19.4.1957 which shows that the sons of Hanumaboyi viz., H.Mudduramaiah, H.Tammarasaiah, Lakshmaiah and M.Ramaiah divided certain joint family properties among themselves; and in this partition, site No.1812/1 and some other properties fell to the share of H.Mudduramaiah. This site No.1812/1 was later on sold to H.K.Ramarao as per Ex.D2 by the sons of H.Mudduramaiah. Before scrutinizing these documents, it is necessary to refer to here the findings of the trial Court that are as follows:-
‘Ankana’ is not an accurate measurement. The defendants have also not given correct measurement of ‘Ankana’. However, it can be said that measurement between two wooden beams in the roof around 5 ft. to 6 ft. is one ‘Ankana’. It is not disputed that the original owner of the property was Puttamma. The evidence on record shows that Hanumaboyi sold his share to Giriyamma by executing a sale deed as per Ex.P7. Giriyamma was Hanumaboyi’s sister. She became the absolute owner of the property. Then, she and M.Madappa released their right in favour of H.Basavaraju. The oral evidence shows that Madappa and Basavaraju are brothers. Though the release deed does not contain description and measurement of property released, it can be seen that Giriyamma and Madappa released their rights in all the properties in favour of Basavaraj, who then executed a sale deed in favour of K.Srinivas. The measurement of plaint ‘A’ schedule i.e, 80 ft. x 41 ft., is held to be probably correct. A small house that existed there fell down and therefore the total measurement given by plaintiff as 80 ft. x 31 ft. can be accepted. All the documents which came into existence since 6.10.1941 refer to one and the same property. Ex.P3 and P5 are 30 year old documents and presumption can be drawn with regard to its contents. The questions put and suggestions given to PW-1 in the cross examination show that the transactions that the plaintiff has referred to are admitted.
25. Examining the documentary evidence produced by the defendants, the trial Court has held that there are no supporting documents to show that the measurement of the property that H.K.Rama Rao purchased was 136 x 40 ft. The Court has given the reasons that Ex.D29, the partition deed shows that ‘one site’ worth Rs.25/- was allotted to Mudduramaiah, the son of Hanumaboyi. The measurement of this site is not mentioned in the partition deed, but it could be of any dimension, it may be 20 ft. x 30 ft. or 30 ft. x 30 ft. or 30 ft. x 40 ft. or 40 ft. x 60 ft.. Ex.P5 dated 26.04.1945 shows that a site of a larger dimension equal to 80 ft. x 31 ft. was sold for Rs.300/- and therefore a site allotted to Mudduramaiah under partition deed, Ex.D29 dated 19.04.1957 must obviously be a small site, its dimension should be less than the measurement of plaint ‘A’ schedule property. The trial Court has also held that the sale consideration amount of Rs.4,000/- shown in the sale deed dated 03.07.1969 in favour of H.K.Rama Rao was too low for a site measuring 136 ft. x 40 ft. This conclusion has been drawn by comparing the sale consideration amount of Rs.99,000/- mentioned in the sale deed Ex.P1. The trial Court has thus found improbabilities in the defence setup by H.K.Rama Rao.
26. In regard to property purchased by Ramaboyi, the 2nd defendant, on 26.09.1938 as per Ex.D24, the trial Court has given a finding that the vendors of that sale deed namely, Puttamma and Chinnaboyi might not be the same persons whom K.Srinivas has referred to in his plaint for tracing his title. Very particularly with regard to Puttamma, one of the executors of Ex.D24, it has been held by the trial Court that she could not be the same Puttamma who executed a gift deed in favour of Pillamma under Ex.P3. To come to this conclusion, the trial Court has referred to ages mentioned in Ex.P.3 and Ex.D.24. If in Ex.P.23, age of Puttamma in the year 1941 is mentioned as 85 years, in Ex.D24, Puttamma’s age in 1938 is mentioned as 65 years. The boundaries given in Ex.D.24 are considered to find out whether H.K.Rama Rao refers to plaint schedule properties. It is also held by the trial Court that evidence given by DW-2 and DW-3 does not help in any way to prove the existence of a site measuring 26 ft. x 26 ft. stated to have been purchased by Ramaboyi. The Commissioner’s report shows that description given by defendants is incorrect. Another important aspect that the trial Court has considered to find improbability in the defendants is the numbers given to the properties. It is held that properties bearing old numbers 1812 and 1812/1 and new numbers 33 and 34 respectively, must be situated adjacent to each other. The property of defendant no.2 Ramaboyi bears old number 1813 and new number 36. Property No.36 cannot exist in between 33 and 34, and there is no explanation for this anomaly. Therefore the defence is unacceptable.
27. Sri. Y.K.Narayana Sharma, appearing for appellants, argued that the plaintiff K.Srinivas cannot claim to be have purchased a site meaning 80 ft. x 31 ft. The measurement and boundaries given in Ex.P3, Ex.P5 and Ex.P7, do not establish the existence of plaint ‘A’ schedule property. The boundaries given in the plaint ‘A’ schedule do not tally with description of property given in the gift deed and the sale deeds. Therefore the sketch Ex.P2 is disputed. In the sale deed Ex.P1 executed in favour of K.Srinivas, excess measurement is given. Since in the earlier documents of title, the measurement is mentioned in ‘ANKANA’, there is no proof with regard to actual measurement, and for this reason Ex.P1 does not convey any title to K.Srinivas. The plaintiff has to establish the identity of his property with exact measurements. The trial court has proceeded on assumptions and presumptions by making a comparison of sale consideration amount mentioned in various instruments. He further argued that the release deed in favour of 4th defendant H.Basavaraju does not contain description of any property and therefore, H.Basavaraju did not derive any interest under the release deed. With respect to release deed, Sri. Y.K.Narayana Sharma, argued that H.Basavaraju did not have preexisting right to claim release in his favour by Giriyamma and Madappa. This transaction of release was inherently void and thus K.Srinivas did not derive any right or interest. According to him the trial court has given misplaced reasons for decreeing the suit.
28. Sri. Subhash, learned counsel appearing for respondents/plaintiff contended that Ex.P3 to P7 describe plaint ‘A’ schedule property as six (6) ‘Ankana’ house with vacant land measuring 48 ft. x 31 ft. In course of time, the house collapsed and the entire property became vacant land. Therefore total measurement of the property is taken as 84 ft. x 31 ft., (1 ankana being equal to 6 ft.). It was also contended by him that the lengthy cross examination of PW1 did not result in his being discredited and the suggestions given to PW1 in the cross examination would show that the defendants also admitted plaintiff’s title to ‘A’ schedule property. The evidence given by DW1 in his examination in chief is nothing but clear admission of plaintiff’s title to ‘A’ schedule property. It was his further argument that the defendants only dispute the release deed, and they do not dispute the other title deeds. The release deed can also be treated as gift deed in the circumstance where release was made without consideration. It is a registered instrument attested by two witnesses. There was valid transfer of property in favour of H.Basavaraj. Moreover DW1 in the cross examination has admitted that Giriyamma was the owner of plaint ‘A’ schedule property and therefore all these events probalize the plaintiff’s case. He submitted that the trial court has given cogent reasons.
29. In the light of the above arguments, if the evidence is analyzed, it is seen that the property belonged to one Puttamma, there is no dispute about this. If Srinivas claims that Puttamma gifted the property to her daughter Pillamma who in turn sold the same to Giriyamma and Hanumaboyi and thus tries to trace his title, the first defendant has contended that in the year 1938 itself, Puttamma had sold the property to Ramaboyi S/o Nuggehalli Chinna Boyi and therefore the gift made in favour of Pillamma, who was consenting witness to the sale deed of the year 1938, does not convey title to subsequent transferees. The trial Court has given a finding that Puttamma who executed the sale deed in the year 1938 could not be the same Puttamma who executed the gift deed in favour of Pillamma.
30. Now if the oral evidence is perused, it is seen in the cross examination of PW-1 that suggestions are given to him in such a way as the defendants too admit all the transactions that PW-1 has pleaded to trace his title over ‘A’ schedule property. Of course, there is one suggestion that Puttamma had sold the property to Rama Boyi, but PW-1 asserts that Puttamma was wife of Arakalagudu Thimma Boyi, a different person altogether. From the defendants’ side, four witnesses have adduced evidence. It is important to note here that the first defendant, H.K.Rama Rao did not enter the witness box. DW-1 is third defendant, P.Thimmaiah. His oral evidence shows that he too is aware of transactions starting from execution of gift deed by Puttamma upto Srinivas purchasing ‘A’ schedule property from Basavaraj. But he has stated that the measurement of the property that belonged to Puttamma who executed the sale deed in the year 1938 was 54’ x 35’ and out of this, she sold to an extent of 26’ x 26’ to Rama Boyi. DW-2 also speaks that his father purchased a property measuring 26’ x 26’ from Puttamma and this property consisted of a house measuring 2 Ankanas and adjoining vacant site. DW-3 – Raju has given evidence that measurement of H.K.Rama Rao’s property is East to West 136 feet and North to South 40 feet. DW-4 is Madappa M S/o H.Mudduramaiah. It appears that he has been examined to establish that in the year 1969, he and his brother sold a site to H.K.Rama Rao. He has stated in his examination in chief that, that site had been allotted to his father in a partition that took place as per Ex.D.29. But in the cross examination he has very clearly admitted that in the partition deed, measurement of property is not mentioned as 136 x 40 feet.
31. On collation of oral and documentary evidence, certain inferences are possible to be drawn. The entire dispute revolves around measurement of properties belonging to K.Srinivas and H.K.Rama Rao. The measurement of one ankana can be taken approximately as 6 feet distance between two beams in the roof; this was how the measurement of a house used to be given conventionally in the yesteryears. Going by this measurement, the measurement of ‘A’ schedule property given by K.Srinivas appears to be correct. H.K.Rama Rao gives measurement of his property as 136’ x 40’. But except sale deed in his favour there is no other document which provides proof for holding this measurement to be correct. The document which he relies upon as a source of title is Ex.D.24. What was conveyed under this document was a house measuring 2 ankanas and adjacent vacant land. DW-1 has clearly stated Puttamma owned a property measuring 54 x 35 feet and out of this property measuring 26 x 26 feet was sold to Rama Boyi. In the partition deed, Ex.D.29, measurements are not given and this is admitted by DW-4 also. Therefore in the documents produced as source of title, measurement is not shown as 136 x 40 feet; it is not understandable as to how H.K.Rama Rao could lay claim on a property measuring 136 x 40 feet. It is not his case that he purchased some other property situate adjacent to property comprised in Ex.D.24 so as to say that the total measurement comes to 136 x 40 feet. He might have produced some municipality records to show the said measurement, but they are not primary documents when question of title is involved. Therefore the existence of property belonging to Rama Rao, as described in the schedule to written statement becomes doubtful.
32. The trial court has referred to Commissioner’s report. According to this report, the Commissioner has found the existence of property of K.Srinivas, and has expressed doubt about the measurement as given by H.K.Rama Rao. With regard to this report, Sri Y.K.Narayana Sharma argued that the court relied on second Commissioner’s report; it was bad because the first Commissioner’s report was not rejected. But, Sri Subash argued that the report given by the first Commissioner was rejected. It appears there was no cross-examination of second Commissioner by H.K.Rama Rao. If objection of Sri Y.K.Narayana Sharma is seriously considered and report of Commissioner is kept aside, still it can be said that there is no evidence weighing in favour of H.K.Rama Rao.
33. Sri Y.K.Narayana Sharma has argued about release deed executed by Giriyamma and H.Madappa on 20.5.1996 in favour of H.Basavaraju as per Ex.P9. His argument was that there could not be release in favour of H.Basavaraj as he did not have pre-existing right, and that registration of that deed was not done in Book No.1 prescribed under the Indian Registration Act. Sri Subash argued that the said deed can be considered as gift deed. He has relied upon judgment of the Supreme Court in the case of Kuppuswamy Chettiar vs S.P.A.Armugam Chettiar and Another [AIR 1967 SC 1395]. It is held as below : -
“4. The question is whether Ex. B-1 on its true construction conveyed properties to the respondents. In T. Mammo vs. K. Ramunni, AIR 1966 SC 337 at p 340 this Court held :
"a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may ,operate as a conveyance, if the document clearly discloses an intention to effect a transfer".
In the present case, the release was without consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by, or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. Exhibit B-1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took, effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses”.
34. This principle is very much applicable to construction of Ex.P9. Relinquishment was without consideration; it was attested by two witnesses and it was registered also. Therefore, the argument of Sri Subash is acceptable. Though in Ex.P9 there is no specific reference to ‘A’ schedule property, it is found that Giriyamma and H.Madappa released their rights in all the properties owned by them in favour of Basavaraj; obvious inference is ‘A’ schedule property was also a part of it.
35. On behalf of appellants, three applications, I.A.1/2015, I.A.2/2018 and I.A.2/2019, all under Order 41 Rule 27 of the Civil Procedure Code have been filed. They have also made another application under Order XXVI Rule 9 CPC, I.A.1/2019 for appointment of a Commissioner. The respondents have filed statement of objections to these applications. I do not think that all these applications deserve to be allowed. Under I.A.1/2015, a sketch and a few photographs are produced. I do not think the sketch and the photographs can be based to come to any conclusion. I.A.2/2018 is filed by appellants 4 and 5 and they want to produce sale deed dated 29.4.2010 and a gift deed dated 16.11.2012. These transactions took place in their favour during pendency of these appeals; therefore no credence can be attached to these transactions. I.A.1/2019 and I.A.2/2019 were filed on behalf of appellants 4 and 5, on 11.3.2019, after conclusion of oral arguments. These appellants want to produce (1) certified copies of city survey records (2) an endorsement dated 8.3.2019 issued by City Survey Office (3) plaint in O.S.1319/2008 and report and sketch submitted by Court Commissioner in O.S.1319/2008. Sri Y.K.Narayana Sharma sought to argue that in one of the documents, i.e., property card, the measurement is shown as 158.5 sq.mtrs., and this measurement probalizes the measurement of H.K.Rama Rao’s property. This application cannot be granted. Property card was issued by the Office of City Survey. As discussed above, when there is no primary evidence in support of measurement as put forward by H.K.Rama Rao, all the documents sought to be produced under I.A.2/2019 are not helpful.
36. In regard to I.A.1/2019 for appointment of Court Commissioner, I do not think there is necessity to issue commission. The sale deed of Rama Rao cannot be based to measure and find out encroachment for the aforesaid reasons.
37. Therefore the above discussion takes me to conclude that though existence of property of H.K.Rama Rao cannot be totally ruled out, its measurement as given by him is unacceptable. For this reason, I find preponderance of probability in the case put forward by K.Srinivas. The judgment of the trial court does not suffer from infirmity. Though RFA 187/2001 is the main appeal, the other two appeals RFA 208/2001 and RFA 209/2001 also do not survive. Hence, all these three appeals are dismissed.
38. In the operative portion of the judgment, the trial court has given a direction that one party to the suit may purchase the property of other party to the suit, i.e., the plaintiff may purchase the defendants property or vice versa. The option given to the parties is kept open for a period of three months from today. If nothing comes about or if the parties fail to arrive at a settlement within three months, the decree of the trial court becomes executable thereafter.
39. Interlocutory applications, I.A.1/2015, I.A.1/2018 to I.A.5/2018 and I.A.1/2019 and I.A.2/2019 are all dismissed.
There is no order as to costs in all the three appeals.
Sd/- JUDGE sd/ckl