IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 1971 of 2015 Between:
SRI. KANTHARAJU AGED ABOUT 50 YEARS, SON OF UGRAPPA, RESIDING AT CHAMBANAHALLI DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572 112.
(BY SRI. NATARAJ. R., ADVOCATE) And:
1. SRI. SIDDALINGAPPA SON OF CHIKKANARASAPPA AGED ABOUT 67 YEARS RESIDING AT CHAMBANAHALLI DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572 112.
2. SRI. NANJUNDAPPA AGED ABOUT 65 YEARS, SON OF LATE KARIYAPPA, RESIDING AT CHAMBANAHALLI DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572 112.
... APPELLANT ... RESPONDENTS (BY SRI.P. M. SIDDAMALLAPPA., ADVOCATE FOR R-1 NOTICE TO R-2 SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 19.08.2015 PASSED IN RA.NO.591 OF 2009 ON THE FILE OF THE 4th ADDL. DISTRICT AND SESSIONS JUDGE MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 26.10.2009 PASSED IN OS.NO.27 OF 2004 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DVN.) AND JMFC., MADHUGIRI.
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the plaintiff in O.S.No.27/2004 on the file of the Prl. Civil Judge (Sr.Dn.) and J.M.F.C., Madhugiri (for short, the ‘Trial Court’) for declaration of title to the property measuring 7 guntas of land in Sy.No.118 of Chambenahalli Village, Dodderi Hobli, Madhugiri Taluk, and for a direction to deliver vacant possession of the portion of this property measuring East - West 22’ feet and North - South 32’ feet, with further prayer for recovery of arrears of rent and mesne profits. The entire extent of 7 guntas in this Sy.No.118 of Chambenahalli Village, Dodderi Hobli, Madhugiri Taluk, is described in the plaint as schedule ‘A’ property (for easy reference is hereafter called, the 'suit schedule ‘A’ property'), and the property measuring East - West 22’ feet and North - South 32’ feet is described in the plaint as schedule ‘B’ property (for easy reference is hereafter called, the 'suit schedule ‘B’ property').
2. The trial Court by its judgment dated 26.10.2009 decreed the appellant’s suit declaring the appellant the owner of the schedule ‘A’ property and directing the respondent No.1 to deliver the vacant possession of the schedule ‘B’ property holding that the appellant was entitled for rental arrears and for ascertaining mesne profits under Order 20 Rule 12 of the Code of Civil Procedure.
3. The respondent No.1 carried this judgment of the trial Court in an appeal in R.A.No.591/2009 on the file of the IV Additional District and Sessions Judge, Madhugiri (for short, ‘appellate Court’). The appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court consequentially dismissing the suit. As such, the plaintiff - appellant is in this second appeal.
4. For reasons of convenience, the parties are referred to as they are arrayed before the trial Court.
5. The plaintiff’s case is that the land in Sy.No.118 of Chambenahally Village, Dodderi Hobli, Madhugiri Taluk, which totally measured 2 acres and 15 guntas, was the ancestral property of three brothers– Sri Nanjundappa (the defendant No.2), Sri Gopanna and Sri. Chikkabasappa. The defendant No.2 transferred this land in Sy.No.118 of Chambenahally Village in different portions. The defendant No.2 transferred 7 guntas in two portions of 4 Guntas and 3 Guntas in Sy.No.118 of Chambenahally Village - suit schedule ‘A’ property - in favour of Sri. Gopanna under the Sale Deed dated 18.7.1994. Sri. Gopanna transferred these two extents in favour of the plaintiff under the Sale Deed dated 13.4.1998. The plaintiff constructed a farm house measuring 22’ x 32’ feet in the suit schedule ‘A’ property, and this constructed extent is Schedule ‘B’ Property.
6. The defendant No.1, who is his relative, approached the plaintiff with a request to permit him to occupy the schedule ‘B’ property stating that his residence, being old and dilapidated, had collapsed. The plaintiff, in view of the relationship, but subject to the condition that the defendant No.1 shall pay a monthly rent of Rs.300/-, permitted the defendant No.1 to occupy the schedule ‘B’ property as tenant. The plaintiff and the defendant No.1 did not sign any lease deed. The agreement was that the defendant No.1 shall vacate and hand over the vacant possession of the schedule ‘B’ property at the earliest. The defendant No.1 reneged on his assurance and went on postponing handing over vacant possession of schedule ‘B’ property.
7. Therefore, the plaintiff caused legal notice calling upon the defendant No.1 to vacate and hand over vacant possession of the schedule ‘B’ property. The defendant No.1 responded to such legal notice dated 13.01.2003 vide his reply notice dated 21.01.2003 denying that he was in occupation of the Schedule ‘B’ property as a tenant under the plaintiff. The defendant No. 1 asserted that he was in possession of the schedule ‘B’ property as the absolute owner having acquired title to the schedule ‘B’ property under the sale deed executed in his favour in the year 2002. As such, the plaintiff was constrained to file the suit for declaration of tile to the schedule ‘A’ property, for possession of schedule ‘B’ property and for rental arrears with mesne profits.
8. The defendant No.1 – the contesting defendant, on being served with the notice of the suit, filed Written Statement. The defendant No.1 denied the plaint assertions and specifically contended that the plaintiff’s suit is filed as a counter. Sri. Ganganna and Sri Gopanna, who are the brothers of the defendant No.1, filed suit in O.S.No.27/2003 on the file of the Principle Civil Judge (Sr.Dn.), Madhugiri in respect of certain properties belonging to them. The defendant No.1 was assisting Sri Gopanna and Sri.Ganganna in prosecuting this Suit in OS No.27/2003, and therefore, the plaintiff, as a counter, initiated the present suit to harass him.
9. Further, the defendant No.1 specifically contended that he had entered into an agreement with the defendant No.2, the undisputed owner of the land in Sy.No.118, on 18.5.1988 to purchase the property (claimed as schedule ‘B’ property by the plaintiff) for a total sum of Rs.15,000/-. The defendant No.2, in part performance of the terms of the agreement, put the defendant No.1 in possession of the land. The defendant No.1 put up construction in an area measuring 23’ x 33’ feet. Thereafter, the defendant No. 2 executed the Sale Deed dated 20.12.2002 conveying the Schedule ‘B’ Property in his favour, and he has been paying taxes and been in possession of the schedule ‘B’ property as the owner thereof.
10. Furthermore, the defendant No.1 contended that though possession of the Schedule ‘B’ Property was delivered to him simultaneously with the execution of the agreement dated 18.05.1988, by a mistake, it is recited in the sale deed dated 20.12.2002 that the possession of the Schedule ‘A’ property was delivered to him on the date of the execution of the sale deed. The defendant No.1 also denied the identity of the Schedule ‘B’ Property as claimed by the plaintiff as per the sketch annexed to the plaint in support of his defence that the property purchased by the plaintiff under the sale deed dated 13.4.1998 is different from the property described in schedule ‘A’ property.
11. The trial Court has framed total nine Issues.
The plaintiff in terms of the Issues that cast burden on him, is required to prove that he was the owner of the schedule ‘A’ property as per the boundaries mentioned in the schedule ‘A’ property with a specific Issue (Issue No.2) requiring the plaintiff to prove the description of schedule ‘A’ property as pleaded in the plaint. In terms of the Issue No.6 framed casting burden on the defendant No. 1, he is required to prove that he purchased the land measuring 4 guntas in Sy.No.118 from the defendant No.2 as asserted by him in his written statement i.e., that he had taken possession of this property in part performance of the agreement dated 18.5.1988 and thereafter secured absolute conveyance under the sale deed dated 20.12.2002.
12. The plaintiff examined himself as PW.1 and examined Sri Bheemappa as PW.2, Sri Gopanna as PW.3 and Sri Krishnappa as PW.4. The plaintiff relied upon the sale deed in favour of his vendor - Sri Gopanna [Ex. P 1], revenue records, legal notices exchanged between himself and the defendant No.1 immediately prior to institution of the suit, the certified copies of the sale deed executed by the defendant No.2 in favour of different purchasers. The defendant No.1 examined himself as DW.1, and Sri Narasanna as DW.2 and Sri Chikkrangappa G.D. as DW.3. The defendant No.1 marked as Exhibits the sale agreement dated 18.5.1988, the sale deed dated 20.12.2002, revenue records and Certificates/ Demand Receipts/ Endorsements from BESCOM.
13. The trial Court found that the plaintiff had established that he is the owner of the schedule ‘A’ property as well as the description of the schedule ‘A property as per the plaint sketch. The trial Court also found that the plaintiff had inducted the defendant No.1 into the Schedule ‘B’ property. Insofar as Issue No.6 which required the defendant No.1 to prove that he has purchased 4 guntas of land in Sy.No.118 of Chambenahalli Village as asserted by him in his written statement, the trial Court found against defendant No.1.
14. The trial Court on reading of the description of the properties conveyed under Ex.P.1 and Ex.P.2 (the sale deeds in favour of the plaintiff’s vendor and in favour of the plaintiff) in conjunction with the description of the properties in the plaint schedule and the oral testimony of the witnesses examined on behalf of the plaintiff, concluded that the plaintiff was able to establish the ownership and identity of the Schedule ‘A’ property while observing that the defendant No.1 had not produced any documents to establish the identity of the property purchased by him. The trial Court took note of the fact that the defendant No.1, who claimed to have purchased that Schedule B Property under the sale deed dated 20.12.2002, had described the plaintiff as the owner of the properties to the west and south of the property purchased by him, but had not offered any explanation to justify description of the plaintiff as the owner of the properties on the western and southern side of the properties purchased by him.
15. The defendant No. 1 carried the judgment of the trial Court in the first appeal before the appellate Court, and the appellate Court formulated the following points for its determination:
“Whether the appellant has established that the judgment and decree passed in O.S.No.27/2004 by the trial Court on 26.10.2009 is perverse, illegal and capricious and liable to be interfered by this court?
What Order?”
16. The appellate Court while answering these points for determination concluded that the description of the properties in the plaint Schedule ‘A’ did not correspond to the description of the properties conveyed firstly in favour of the plaintiff’s vendor - Sri.Gopanna by the defendant No.2 under the sale deed dated 18.7.1994 and subsequently by Sri Gopanna in favour of the plaintiff. The appellate Court found that the entries in the revenue records for the land in Sy.No.118 of Chembenahally village, did not correspond to the transfers in favour of Sri Gopanna (plaintiff’s vendor). The appellate Court observed that the plaintiff’s vendor - Sri Gopanna, according to the plaintiff, had purchased 7 guntas of land in Sy.No.118 (schedule ‘A’ property) and later other extent of 1 acre in Sy.No.118 under the sale deed dated 22.8.1994 (Ex.P.20), but the revenue record showed Sri Gopanna as the owner of 7 ½ guntas without any details as to how such entry could be made for an additional extent of ½ guntas when Sri Gopanna had only purchased 7 guntas. The appellate Court opined that the plaintiff crucially had not furnished any details to justify Sri Gopanna had purchased additional ½ gunta, and the plaintiff had also not explained why the revenue entries did not show Sri.Gopanna as the owner of 1 acre that he had purchased under the sale deed dated 22.8.1994.
17. The appeal is admitted for consideration of the following substantial question of law:
1. Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court ignoring the material document - Ex.P.2, the registered sale deed dated 13.04.1998 mainly relying upon the unregistered agreement dated 18.05.1988 – Ex.D.1 when the agreement is not at all enforced.
2. Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court without following the procedure as contemplated under Sec. 48 of Transfer of Policy Act.
3. Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court without following the procedure under O.41 R.31 of Code of Civil Procedure.
4. Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court without considering the material evidence of DW.1 which showed the existence of the ‘B’ schedule property and the ownership of the plaintiff over the ‘A’ and ‘B’ schedule property.
5. Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court under the facts and circumstances of the present case.
18. The learned counsel for the plaintiff argued that central question for consideration in this appeal, as is obvious from the aforesaid substantial questions, would be: whether the plaintiff and the defendant No.1 are claiming right to the same property under two different sale deeds, and if the plaintiff and the defendant No.1 indeed claim title to the same property, whether the plaintiff is entitled for the benefit of precedence in title under the provision of Section 48 of the Transfer of Property Act. The learned counsel submitted that the substantial questions framed by this Court, at the time of admission of the appeal, essentially lead to the aforesaid substantial question of law. The learned counsel also argued that the appellate court has erred in formulating a perfunctory point for determination as, whether the impugned judgment of the trial Court was illegal or capricious, and the appellate Court in formulating this general point for determination as aforesaid has failed to adhere to the requirements of the provisions of Order XLI Rule 31 of Code of Civil Procedure.
19. The learned counsel for the plaintiff elaborating on these submissions, canvassed as follows:
(i) The plaintiff has produced all the sale deeds executed by the undisputed owner of the land in Sy.No.118 of Chembenahalli Village, including the sale deeds (Exs.P.1 and P.20.) in favour of his vendor - Sri Gopanna for the extent of 7 Guntas and 1 Acre. The description of the properties viz., measurement and the boundaries under these sale deeds correspond to the plaint sketch. As such, the plaint sketch is established in its entirety. There could not have been a bona fide controversy about the identity of either the Schedule ‘A’ property or Schedule ‘B’ property. Nevertheless, the appellate Court has concluded that the plaintiff has not explained the revenue entries as aforesaid, which in any event could not have been germane to the dispute.
(ii) The defendant No.1 has relied upon the sale deed executed in the year 2002 to assert that the property purchased by him under this sale deed is distinct and separate from the properties claimed by the plaintiff on the basis of the sale deeds in favour of his vendor- Sri Gopanna (Ex.P.1) and the sale deed in his favour (Ex.P.2). But, had not placed any credible evidence on record to substantiate the same.
(iii) On the other hand, the sale deed relied upon by the defendant No.1, who has made an unsuccessful effort to deny the correctness of the plaint sketch, also reinforces the plaintiff’s case, inasmuch as it is mentioned in the schedule of the sale deed dated 20.12.2002 that the property purchased by the defendant No.1 under this sale deed is bounded on the west by the plaintiff’s property, south by the plaintiff’s property and east by the plaintiff’s mother’s property. This description corresponds to the plaint sketch. Further, the defendant No.1 has also admitted in his cross examination that he had purchased the north-east corner of the total land in Sy.No.118.
(iv) The endorsement issued by BESCOM (Ex.D.38), and relied upon by the defendant No.1, itself demonstrates that the residential construction occupied by the defendant No.1 had collapsed and this corroborated the plaintiff’s case that the defendant No.1 approached him with a request to occupy the schedule ‘B’ property as a lessee because he was rendered shelter less. The evidence of PW.1 and PW.3 more specifically established the request made by the defendant No.1 for permission to occupy the schedule ‘B’ property as a tenant and the oral contract agreed to between the plaintiff and the defendant No.1 in the presence of the aforesaid two witnesses.
(v) The appellate Court should have seen that the evidence on record overwhelmingly established that the plaintiff and the defendant No. 1 were essentially claiming title to the Schedule B Property, but the plaintiff had acquired prior title to this property in the year 1998 much earlier than the Sale Deed in favour of the defendant No. 1. As such, the plaintiff was entitled for the benefit of prior title to the Schedule A Property as envisaged under the provisions of Section 48 of the Transfer of Property Act, 1882. The indubitable facts, as borne out by the evidence on record, established that the defendant was in possession of the Schedule B Property as a lessee under the plaintiff. As such, the plaintiff was entitled to recover possession thereof from the defendant No. 1.
20. On the other hand, the learned counsel for the defendant No.1 submitted that the trial Court has re- appreciated the entire evidence in proper perspective, and thereafter has come to the conclusion that the plaintiff had failed to establish that he was the owner of the schedule ‘A’ property comprising of schedule ‘B’ property. The learned counsel emphasized that neither the property transferred under the sale deed dated 18.7.1994 in favour of the plaintiff’s vendor - Sri Gopanna nor the property transferred by Sri. Gopanna in favour of the plaintiff under the sale deed dated 13.9.1988 correspond to the description of schedule ‘A’ property in the plaint. The learned counsel drew the attention of this Court to the measurement of the two extents under these two sale deeds dated 18.7.1994 and 13.9.1988, and submitted that the properties could be as described in the plaint sketch.
21. The learned counsel endeavoured to point out that the first extent transferred under the sale deed is described as measuring 4 guntas within the boundaries measuring East- west 32 yards and north to south 16 yards and second extent of 3 guntas within the boundaries measuring 16 yards east to west and 16 yards north to south. Even if it could be argued that these properties could be one over the other, they would not make a rectangle as described in plaint sketch. The plaintiff in staking claim to the suit schedule A property is trying to take advantage of the description of the eastern and southern boundaries of the extents of 4 guntas and 3 guntas as properties belonging to Sri Gopanna and his mother.
22. The learned counsel for the defendant No.1 emphasized that the plaintiff has examined Sri.Gopanna as PW3, but this witness has not spoken about transfer of these two extents in favour of the plaintiff. The plaintiff, without making any effort to explain the identity of this Sri Gopanna, cannot assert that the two extents of 4 Guntas and 3 Guntas that are subject matter of the sale deeds dated 18.7.1994 and 13.9.1988 make one contiguous block and are as described in the plaint schedule A. This facet has been rightly appreciated by the appellate Court, and therefore, the appellate Court's judgment does not call for any interference. The learned counsel for the defendant No. 1 further argued that the appellate Court has rightly read the evidence and there cannot be any re-appreciation of the evidence in the second appeal.
23. The learned counsel for the defendant also argued that the plaintiff having failed to establish the identity of the schedule A property cannot assert that the property claimed by the defendant No.1 is his property. As such, the plaintiff cannot claim being the prior purchaser or claim the benefit of the provisions of Section 48 of the Transfer of Property Act, 1882. In any event, the execution of the agreement dated 18.5.1988 is established as required in law, and the agreement dated 18.5.1988 (Ex.D.1) being much prior to the sale deed dated 18.4.1994 executed in favour of the plaintiff’s vendor, the plaintiff cannot claim the advantage of Section 48 of the Transfer of Property Act. Lastly, the learned counsel for the defendant No.1 submitted that this Court cannot ignore equities, if there were to be any disturbance with title or possession at this length of time, the defendant No.1 would be put to difficulties and irreparable hardship.
24. The first of the grievance is that the appellate Court has not considered the relevant questions because it has failed to formulate appropriate points for determination. As such, the following substantial question of law is formulated for consideration:
Whether the lower appellate Court was justified in reversing the judgment and decree of the Trial Court without following the procedure under O.41 R.31 of Code of Civil Procedure The question framed by the appellate Court is, ‘Whether the appellant has established that the judgement and decree passed in OS No. 27/2004 by the trial Court on 26.10.2009 is perverse illegal and capricious and liable to be interfered by this Court’. It is in answering this question, the appellate Court has interfered with the trial Court’s judgement and set aside its judgement.
25. The Hon’ble Supreme Court1 has exposited that “the question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined in the nature of the judgment 1 In G. Amalorpavam and others vs. R C Diocese of Madurai and others reported in (2006) 3 SCC 224 delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court, there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point for determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides are clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination.
26. This is again reiterated by the Hon’ble Supreme Court in H Siddiqui vs. A Ramalingam2. Therefore, it will have to be seen whether the appellate Court has re- appreciated the evidence on record in the light of the real controversy between the parties viz., whether the plaintiff and the defendant No. 1 claim the same property and whether the plaintiff would be entitled to precedence in title over the title asserted by the defendant No.1. If the appellate Court has re-appreciated the evidence as aforesaid, the failure to formulate appropriate points for 2 Reported in (2011) 4 SCC 240 consideration would not be significant, but if it is otherwise, it would be.
27. The undisputed facts are that the defendant No.2 is the absolute owner of the land in Sy.No.118, measuring 2 acres 15 guntas in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk. The defendant No.2 has transferred the entire extent of land in question in Sy.118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk retaining for himself an extent of 10 guntas. There is no dispute about these transfers by the defendant No.2 in favour of different purchasers and about the purchasers being in possession of their respective portions. There is also no dispute that the plaintiff’s vendor – Sri Gopanna has purchased three parcels of this land in Sy.No.118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk from the defendant No.2. The undisputed details of the transfer by the defendant No. 2, including the transfers in favour of the plaintiff’s vendor are as follows:
Defendant No.2 plaintiff’s Vendor extents of 4 Guntas and 3 Guntas) 18.7.1994 Sri Gopanna – The plaintiff’s Vendor 1 acre 22.8.1994 The defendant No.1, in the cross examination, has accepted that respective transferees as aforesaid are in use and occupation of the respective portions though he has stated that he has not aware whether the title documents have been executed in their favour. The defendant No. 1 disputes the identity of the two parcels of the properties viz., 4 guntas and 3 Guntas purchased by the plaintiff’s vendor- Sri Gopanna under the sale deed dated 18.7.1994.
28. The plaintiff claims that his vendor – Sri Gopanna purchased north-east portion of the land in Sy.No.118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk (suit schedule A property) totally measuring 7 guntas in two extents of 4 Guntas and 3 Guntas under the sale deed dated 18.7.1994, and that these two extents are adjacent lands with the extent measuring 4 guntas being the southern portion and the extent measuring 3 guntas being the northern portion. The sale deeds executed by the defendant No. 2, which are marked as exhibits, show that all the parcels of lands in Sy. No. 118 (except one acre purchased by the plaintiff’s vendor) are described as being bound by Cart Road either on the Western Side or the Eastern Side with the corresponding boundaries on the north and the south. The description of the boundaries of the two extents (suit schedule A property) purchased by the plaintiff are as follows:
4 GUNTAS 3 GUNTAS East by: Smt. Gowramma’s property East by: Smt. Gowramma’s property West by: Cart Road West by: Cart Road North by: Sri Gopanna’s property South by: Sri Ugrappa’s property in the same Survey number viz., 118 North by: Government Land South by: Sri. Gopanna’s property in same survey number viz., 118 The description of the boundaries of these two extents as being bound on the east by Smt. Gowramma’s property (the plaintiff’s mother) on the west by Cart road, fits in with the description of the boundaries of the different parcels in Sy No. 118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk transferred under the different sale deeds executed by the defendant No.2 as asserted by the plaintiff. There is no dispute that the plaintiff’s mother, Smt. Gowramma is the owner of the property to the east of these two extents. Significantly, the defendant No.1 in his cross examination also admits that the plaintiff’s vendor has purchased, and he is in possession of, one acre along with the southern side boundary of the total extent of land in Sy.No.118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk. He admits this in the cross examination when it is so suggested to him with the only clarification that this the extent of 1 acre that was purchased by the plaintiff’s vendor – Sri Gopanna is not bounded on the south by a halla but it is bounded by a canal.
29. These circumstances show that the plaint sketch depicts the true location of the different parcels transferred by the defendant No. 2, including the schedule A property transferred in favour of the plaintiff’s vendor under the Sale deed as per EX. P1. The learned counsel for the defendant No.1 argues against placing reliance upon the plaint sketch contending that because of the corresponding measurements of the two extents, the plaintiff’s property pictorially cannot be as depicted in plaint sketch. But, this argument cannot be accepted because it is nobody’s case that plaint sketch is drawn to a scale and if it is not drawn to a scale, it could only be pictorial representation and its significance confined to that.
30. If the plaint sketch is accepted, and contrasted with the claim of the defendant No. 1, it is obvious that that the defendant No. 1 is claiming the same property that is asserted by the plaintiff. The defendant No. 1 also claims the north – eastern portion of the land in Sy No. 118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk which is bound on the eastern side by Gowramma’s - the plaintiff’s mother property. The defendant No.1 is very categorical in asserting that he has purchased north- eastern portion of the larger extent of land in Sy.No.118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk. In fact, the sale deed -Ex.D.2 - under which he has purchased mentions the properties along the western and southern boundaries as the plaintiff’s property.
31. The dispute by the defendant No.1 about the identity of the two parcels purchased by the plaintiff’s vendor/ plaintiff, when examined in the light of these circumstances, does not appear bona fide, and the appellate Court has not examined this facet at all. The appellate Court has completely ignored these material facts, and the failure to consider these circumstances has led to exclusion of material circumstances on record. Further, the appellate Court has misdirected itself in overlooking material aspects and laying overemphasis on the entries in Revenue Records.
32. The appellate court has concluded that the description of the properties in the plaint does not conform to the sale deeds as per ExP.1 (executed by the defendant No. 2 in favour of the plaintiff’s vendor) and Ex.P.2 (executed by the plaintiff’s vendor in favour of the plaintiff) relying upon the revenue entries and the discrepancies therein. But, the appellate court could not have relied upon the revenue entries or the discrepancy in the revenue entries when the sale deeds executed by the defendant No.2, and respective use and occupation of the corresponding partials of the lands are not disputed. The discrepancies emphasised by the appellate court are that the revenue entries are made in favour of the plaintiff’s vendor appellate for an additional extent of ½ guntas and that there is no entry in favour of the plaintiff’s vendor - Sri Gopanna insofar as the purchase of 1 acre by him under the sale deed dated 22.8.1994. These circumstances would be totally extraneous to the present dispute in the light of the other circumstances already discussed.
33. Thus, it is established that the appellate Court’s decision is based on consideration of circumstances that would not be relevant for the purposes of deciding on the real controversy between the plaintiff and the defendant No. 1, and overlooking material circumstances. This could have been avoided if the appellate Court had formulated appropriate points for determination as contemplated under the provisions of Order XLI Rule 31 of CPC instead of a general question whether the trial Court’s judgement is perverse or capricious. Therefore, this Court is of the considered opinion that the appellate Court because of its failure to formulate appropriate points for determination, and also because of its failure to consider material circumstances, has not been able to adjudicate on the real controversy between the parties. Further, this Court, in the light of the aforesaid discussion, is also of the opinion that the plaintiff and the defendant No. 1 are staking claim to the same parcel viz., a portion the north-eastern portion of the land in Sy No. 118.
34. This Court in arriving at this conclusion is only elucidating the evidence that should have been, and should not have been, considered by the appellate Court given the real controversy between the parties. It is settled3 that interference with finding on facts would be justified under two circumstances viz., firstly when material evidence is not considered which, if considered would have to led to an opposite conclusion and secondly when the appellate Court has relied upon inadmissible evidence which, if omitted would lead to opposite conclusion. Accordingly, the Substantial questions as regards non-compliance with the provisions of Order XLI Rule 31 of CPC and the appellate Court unjustly interfering with the trial Court’s judgment is answered in favour of the appellant – plaintiff.
35. Once it is established that the plaintiff and the defendant No.1 are claiming the same property with the plaintiff, the next substantial question formulated would come up for consideration. If the date of the sale deeds respectively in favour of the plaintiffs and the defendant No.
1 were to prevail, the plaintiff's vendor, under whom the 3 Ishwar Dass Jain v. Sohan lal reported in (2000) 1 SCC 434 plaintiff has claimed, has first purchased the suit schedule B property under the sale deed dated 13.4.1998 because the purchase by the defendant No.1 is much later i.e., on 20.12.2002. However, defendant No.1 relies upon a sale agreement of0 1the year 1998 to assert that his purchase would relate back to 1998 which would be much before the date of the purchase even by the plaintiff's vendor.
36. The defendant No.1 relies upon a sale agreement executed in his favour in the year 1988, and he claims he was put in possession of the property in part performance of this agreement. The defendant No.1 has in his own pleading stated that though he was put in possession of the property in part performance of the agreement in the year 1988, but by mistake in the sale deed executed in his favour in the year 2002, it is recited that he was put in possession of the property in the year 2002. Though he describes this as an error, this alleged error is not established as required in law. An error would be a fact which would be required to be established. If this is not established, the entire case as regards execution of the sale agreement and being put in possession of the property in the year 1988 would be too contrived to be accepted. The witnesses examined in support of the execution of the sale agreement dated 18.5.1998 have mentioned that sale deed was not executed and registered because law against fragmentation was in force, an assertion that is not mentioned by the defendant No.1 himself. In the light of these circumstances, the appellate court could not have ignored registered sale deed dated 13.4.1998 in favour of the plaintiff, or even the earlier sale deed in favour of the plaintiff's vendor.
37. The provision of section 48 of the Transfer of property Act reads as follows:
“48. Priority of rights created by transfer: Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation biding the earlier transferees, be subject to the rights previously created.”
It is settled that the provisions of Section 48 of the Transfer of Property Act, 1882 recognises the very basic tenet in law that a person cannot convey any more than what he possesses. Therefore, it is prescribed that when a person purports to create by transfer at different times rights in or over the same immoveable property and if such different rights cannot all exist or be exercised to their full extent together, each later right shall yield in favour of the previously created right.
38. The undisputed owner, the defendant No.2 has executed the sale deed dated 18.7.1994 in favour of plaintiff’s vendor conveying the north-eastern extent measuring 7 guntas bounded on the north by road, south by property of Sri S.K.Ugrappa, east by property of Gowramma (the plaintiff's mother) and west by cart road in the survey No. 118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk. The later conveyance of 3 guntas in survey No. 118 in Chembenahalli Village, Dodderi Hobli, Madhugiri Taluk4 would be in respective of very same property. The rights conveyed under these sale deeds cannot exist in two different persons or be exercised to the fullest by these two persons simultaneously. Therefore, rule of priority as contemplated under Section 48 of the Transfer of Property Act 1882 will have to prevail in favour of the plaintiff. As such, the substantial question of law as regards precedence to sale deed dated 13.4.1998 (and the sale deed dated 18.7.1994 in favour of the plaintiff's vendor) over the unregistered sale agreement dated 4 Described as bounded on the south by S.K.Ugrappa’s land, north by road, south by plaintiff’s road, east by Gowramma’s land and west by plaintiff’s land 19.5.1988 and the rule of priority as contemplated under Section 48 of the Transfer of Property Act 1988 will have to be answered in favour of the plaintiff.
39. The plaintiff is able to establish that he is entitled to the absolute ownership of the suit schedule B property, and the defendant No.1 is not able to establish his claim of ownership. Therefore, the plaintiff’s prayer for delivery of possession of the suit schedule ‘B’ property will have to follow because undisputedly the defendant No.1 is in possession. However, the oral tenancy as pleaded by the plaintiff not being established as required, the plaintiff will not be entitled for recovery of arrears of rent . The plaintiff would also not be entitled for mesne profits because the plaintiff himself admits he has put the defendant No.1 in possession of the suit schedule B property because of his admitted relationship with defedant No. 1. As such, the following:
ORDER The appeal is allowed, and the impugned judgment in RA No.591/2009 on the file of the IV Addl. District and Sessions Judge, Madhugiri, is set aside and the judgment and decree dated 26.10.2009 in OS No.27/2004 on the file of the Prl. Civil Judge (Sr.Dn.) and JMFC, Madhugiri, is restored insofar as declaration of the plaintiff - appellant as the absolute owner of the suit schedule ‘A’ and ‘B’ properties and direction to the respondent No. 1 - defendant No.1 to deliver vacant possession of the schedule ‘B’ property to the plaintiff - appellant within a period of three weeks from the date of receipt of certified copy of this order.
The office to draw decree, and no order as to costs.
SA Ct:sr Sd/- Judge