IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA REGULAR SECOND APPEAL No.1150/2011(DEC) BETWEEN:
SRI THAMMAIAH, S/O SANNAIAH AGED ABOUT 52 YEARS OCC AGRICULTURE , R/AT ITTAPATTANA VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT-573147.
...APPELLANT (BY SRI PRASANNA V. R., ADVOCATE) AND:
1 . SRI NARASEGOUDA S/O RAMEGOUDA, AGED ABOUT 49 YEARS R/AT ITTAPATTANA VILLAGE MALLIPATTANA HOBLI, ARKALGUD TALUK HASSAN DISTRICT.-573147.
2 . SRI SWADESHKUMAR S/O BOREGOUDA AGED ABOUT 42 YEARS R/AT ITTAPATTANA VILLAGE MALLIPATTANA HOBLI, ARKALGUD TALUK HASSAN DISTRICT.-573147.
3 . SRI RAMEGOUDA S/O KARIGOUDA, AGED ABOUT 49 YEARS R/AT YADIYUR VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK HASSAN DISTRICT 573147.
4 . SRI MARIYAIAH S/O HELAVAIAH, AGED ABOUT 52 YEARS R/AT ITTAPATTANA VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT 573147 5 . SRI REVAPPA S/O REVAPPA AGED ABOUT 34 YEARS R/AT ITTAPATTANA VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT 573147 6 . SRI NAGARAJU S/O REVAPPA, AGED ABOUT 29 YEARS R/AT ITTAPATTANA VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT 573147.
(BY SRI H.N. SHASHIDHAR, ADVOCATE FOR KESVY AND CO, ADVOCATE FOR R1 AND R3;
…RESPONDENTS R4,R5 AND R6 ARE SERVED BUT UNREPRESENTED;
VIDE ORDER DATED 3.3.2014 SERVICE OF NOTICE ON R2 HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 20.1.2011 PASSED IN R.A. No.18/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, ARKALGUD, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:4.3.2010 PASSED IN O.S.No.101/2008 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) ARKALGUD.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The unsuccessful plaintiff has filed the present Regular Second Appeal against the judgment and decree dated 20.01.2011 made in R.A.No.18/2010 dismissing the appeal with cost, confirming the judgment and decree dated 04.03.2010 made in O.S.No.101/2008 (10/2007) dismissing the suit for declaration and permanent injunction.
2. The plaintiff (present appellant) filed suit in O.S.No.
101/2008 for declaration and permanent injunction contending that the suit schedule property is landed property bearing Sy.No.40/P3 measuring 4 acres excluding 23 guntas of kharab land situated at Ittapattana village, Mallipattana Hobli, Arakalagud Taluk. The said property originally belonged to the government. On 05.01.1999, the said land was granted to the plaintiff under Hemavathi Reservoir Project Rehabilitation Scheme. On 23.06.1999, the Tahsildar, Arakalgud, issued saguvali chit in favour of the plaintiff. From the date of said grant the plaintiff is in possession and enjoyment of the said property as owner. The defendants, without any manner of right, title and interest over the said property, tried to interfere with the title of the plaintiff. Therefore, plaintiff was constrained to file O.S.No.36/2004 before the Civil Judge (Jr.Dn.), Arakalagud. The said suit came to be dismissed on 17.01.2007 holding that the plaintiff has failed to prove his possession over the property. Aggrieved by the said judgment and decree, the plaintiff filed R.A.No.424/2008 on the file of the Civil Judge (Senior Division), Arakalgud. The said appeal was pending as on the filing of O.S.No.101/2008 and subsequently, came to be dismissed on 04.03.2010.
3. The defendant Nos.1 to 6 appeared through their respective counsel. Defendant Nos.1 to 3 filed written
statement. The defendant Nos.1 to 3, while denying the averments made in the suit, contended that the defendants did not trespass into the suit property. There is no cause of action to file the suit and the plaintiff has not valued the suit property properly and has not paid the correct court fee. It is further contended that the suit schedule property shown with the boundaries in the plaint is with the possession of the defendant Nos.1, 3 and 4, the property belongs to them and they are cultivating the same. The said property also included some government land and was granted to one H.S.Boregowda, brother-in-law of the 1st defendant as he was in military. Accordingly, 1st defendant constructed a house and residing therein. With an intention to grab the suit property in cultivation of 1st defendant, plaintiff created false documents and filed O.S.No.36/2004 which came to be dismissed and therefore, sought to dismiss the suit.
4. Based on the aforesaid pleadings, the Trial Court, framed the following issues:
(i) Whether plaintiff proves that he is the absolute owner of the suit schedule property?
(ii) Whether the plaintiff proves that he is in possession of the suit schedule property as on the date of the suit?
(iii) Whether the plaintiff proves the alleged interference of the defendant over the suit schedule property?
(iv) Whether the defendants prove that the defendant No.1 is in possession of the suit schedule property?
(v) Whether the plaintiff is entitled for relief of declaration?
(vi) Whether the plaintiff is entitled for relief of permanent injunction?
(vii) What Order or decree?
5. In order to prove his case, plaintiff examined himself as P.W.1 and got marked Exs.P.1 to P.16. The 1st defendant was examined as D.W.1 and got marked Exs.D.1 to D.10.
6. The Trial Court, considering both oral and documentary evidence on record, recorded a finding that the plaintiff failed to prove that he is the absolute owner of the suit schedule property, plaintiff failed to prove that he is in possession of the property as on the date of the suit, plaintiff failed to prove the alleged interference of the defendant over the property and the defendants proved that the 1st defendant is in possession of the suit schedule property and accordingly, by the judgment and decree dated 04.03.2010, dismissed the suit holding that the plaintiff is not entitled to the relief of declaration and permanent injunction.
7. Aggrieved by the judgment and decree passed by the Trial Court, the plaintiff filed R.A.No.18/2010 on the file of the Fast Track Court, Arakalgud. The lower appellate Court, after framing the points for determination as contemplated under Order XLI Rule 31 of the Code of Civil Procedure and considering the applications filed under Order VI Rule 17, Order XLI Rule 27 and Order XXVI Rule 9 of the Code of Civil Procedure, by the impugned judgment and decree dated 20.01.2011, dismissed the appeal along with the applications, confirming the judgment and decree passed by the Trial Court.
8. Against the concurrent findings of fact recorded by the Courts below did not deter the present appellant from preferring the present appeal as a last ditch attempt.
9. I have heard the learned counsel for the parties to the lis.
10. Sri Prasanna, learned counsel for the appellant contended that the impugned judgment and decree passed by the Courts below dismissing the suit of the plaintiff for declaration and permanent injunction in respect of the suit schedule property are erroneous and contrary to the material on record. Both the Courts below failed to consider the oral and documentary evidence available on record and failed to come to correct conclusion ignoring the correct and proved facts. Therefore, the impugned judgment and decree cannot be sustained. He further contended that the Trial Court misread the relief sought by the plaintiff and failed to consider the document Ex.P.5-mutation entry which depicts that the land granted is in Sy.No.40, Block No.2 whereas, RTC-Ex.P.4 and P.6 to P.13 shows the land in which the plaintiff is in possession of Sy.No.40/p3 and both the lands show in grant certificate, sketch, mutation and RTCs are one and the same. The said aspect has not been considered by the Courts below and thereby, proceeded to pass the erroneous judgment and decree.
11. Learned counsel further contended that the Trial Court erred in holding that the suit of the plaintiff is hit by the provisions of Section 11 of Code of Civil Procedure as his earlier suit in O.S.No.36/2004 is dismissed. He contended that the earlier suit was for bare injunction and any finding in the said suit is only incidental and does not decides the title of the plaintiff and therefore, Section 11 of Code of Civil Procedure is not applicable. The appellant/plaintiff has also filed an application under Order XLI Rule 27 before this Court for production of documents as additional evidence, furnishing the application dated 30.01.2012 filed before the Tahsildar under the Right to Information Act as Document No.1, endorsement dated 25.02.2012 issued by the Tahsildar informing that Sy.No.40/p3 and Sy.No.40 Block No.2 are one and the same as Document No.2, the encumbrance certificate depicting Sy.No.40/p3 measuring 4 acres showing the name of Thammaiah executed in favour of the Manager, CKGB, as Document No.3, the RTC extract for the years 2010-11 in respect of Sy.No.40/p3 measuring 4 acres as Document No.4 and RTC extract for the years 2011-12 in respect of Sy.No.40/p3 measuring 4 acres is produced as Document No.5. Therefore, he sought to allow the application and the appeal and set-aside the judgment and decree passed by the Courts below.
12. Per contra, Sri Shashidhar, learned counsel for respondent Nos.1 and 3, sought to justify the impugned judgment and decree passed by the Courts below and contended that both the Courts below concurrently held that the alleged grant was made in favour of the appellant in respect of Sy.No.40/2 and not Sy.No.40/p3 measuring 4 acres. Admittedly, the plaintiff filed suit for declaration and permanent injunction in respect of Sy.No.40/p3 but no document was produced before the Court. Both the Courts held that earlier suit filed by plaintiff in respect of Sy.No.40/2 in O.S.No.36/2004 for injunction came to be dismissed on 17.01.2017 and the appeal in R.A.No.424/2008 also came to be dismissed on 04.03.2010. Therefore, the Courts below are justified in dismissing the present suit filed by the plaintiff for declaration and permanent injunction. The findings of fact record by the Courts below based on the oral and documentary evidence cannot be interfered by this Court in exercise of powers under Section 100 of the Code of Civil Procedure. Therefore, he sought to dismiss the Regular Second Appeal.
13. In view of the rival contentions urged by learned counsel for the parties, the only substantial question of law that arises for consideration is:
Whether the plaintiff has made out a case to interfere with the impugned judgment and decree passed by the Courts below based on oral and documentary evidence on record?
14. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including original records, carefully.
15. It is the specific case of the plaintiff in the present suit that suit in O.S.No.101/2008 that suit schedule property i.e., Sy.No.40/p3 measuring 4 acres excluding 23 guntas kharab land was granted by the jurisdictional Tahsildar on 05.01.1999 and he has been in possession and enjoyment of the same. It is further case of the plaintiff earlier, defendants tried to interfere with the plaintiff’s possession and therefore, he was forced to file O.S.No.36/2004 for injunction which came to be dismissed. The defendants 1 to 3 colluding with other defendants are trying to interfere with the plaintiff’s property. Therefore, the present suit is filed. It is the case of the defendants that they are in possession and enjoyment of the property and suit filed by the plaintiff in respect of Sy.No.40/p3 measuring 4 acres is not maintainable.
16. The Trial Court, considering the entire material on record, recorded a finding that, earlier O.S.No.36/2004 filed by the plaintiff in respect of Sy.No.40/2 of same village measuring 4 acres for injunction. After contest, the suit came to be dismissed holding that the plaintiff is not in possession of the suit schedule property. That was subject matter of R.A.No.424/2008. The lower appellate Court, after reconsidering the entire material on record, came to the conclusion that the plaintiff failed to prove possession in respect of Sy.No.40/2 and accordingly, dismissed the appeal. The said judgment and decree passed by the Courts below dismissing the suit of the plaintiff holding that the plaintiff is not in possession of Sy.No.40/2 has reached finality. It is also not in dispute that the present suit filed by the plaintiff is in respect of Sy.No.40/p3 measuring 4 acres excluding 23 guntas kharab morefully described in the schedule to the plaint.
17. In order to prove his case, plaintiff produced Grant Certificate-Ex.P.1, Darakhast sketch-Ex.P.2, Official Memorandum-Ex.P.3, R.T.C.Extract-Ex.P.4, certified copy of the mutation register-Ex.P.5, RTC extracts-Exs.P.6 to P13, certified copy of mutation register-Ex.P.14 and tax paid receipts-Exs.P.15 and 16. Ex.P.1-Grant Certificate discloses that Sy.No.40/2 measuring 4 acres (4 acres 20 guntas land, 20 guntas kharab land) situated at Ittapattana village was granted to the plaintiff on 23.01.1999. Ex.P.2 is the survey sketch. Ex.P.3-official memorandum clearly depicts Sy.No.40 Block-2 measuring 4 acres. Exs.P.5 and 14 are mutation registers in respect of Sy.No.40/2 measuring 4 acres showing the name of the plaintiff as khatedar. The entry in Ex.P.13- RTC extract shows Sy.No.40/2.
18. Admittedly, in the present case, the suit was filed by the plaintiff in respect of the property bearing Sy.No.40/P3 measuring 4 acres. It is not the case of the plaintiff that Sy.No.40/2 and 40/P3 are one and the same. In the entire plaint, except stating in the present application – I.A.I/2012 filed for permission to produce documents as Additional Evidence and they are one and the same placing reliance on document Nos.1 and 2, there is nothing on record to prove the same. The trial Court considering the material on record has recorded a finding that the plaintiff is claiming the land bearing Sy.No.40/P3, but as per the grant certificate, the land granted to the plaintiff in Sy.No.40/2, Block No.2 but it is not known as to how the above said land i.e., Sy.No.40, Block No.2 has been converted or changed into Sy.No.40/P3? The trial Court has further observed that there is no explanation from the plaintiff either in the pleadings or in the oral evidence. It has been further held that the plaintiff has also not placed any revenue documents in this regard. There is no explanation from the plaintiff as to when the above said survey number is changed and moreover, to prove the boundaries to the suit property, the plaintiff has not produced any documents before this Court. The plaintiff has produced Ex.P.2, the sketch to show that it is annexed by Ex.P.1 the grant certificate. But in the said Ex.P.2, the boundaries to the land granted to the plaintiff as per Ex.P.1 are not mentioned.
19. The trial Court has further observed that the plaintiff has not produced any other revenue documents to prove the boundaries of the suit land and therefore, was of the opinion, that instead of plaintiff claiming his ownership over the land bearing Sy.No.40, Block No.2 as per the grant certificate, he is claiming his right over Sy.No.40/P3 which is not correct. The trial Court has further recorded a finding that the plaintiff had already filed Original Suit in O.S.No.36/2004 for permanent injunction in respect of land bearing Sy.No.40/2 against defendant Nos.1 and 3 which was dismissed on the ground that the plaintiff has failed to prove his possession over the suit schedule property.
20. It is also not in dispute that the appeal filed by the plaintiff came to be dismissed. Thus it is clear that earlier suit filed by the plaintiff claiming his right in respect of the property bearing Sy.No.40/2 for injunction which was dismissed and the same was confirmed by the Appellate Authority. Subsequently, he has filed the present suit in respect of land bearing Sy.No.40/P3, but all the documents produced are in respect of land bearing Sy.No.40/2. The trial Court considering the entire material on record and based on the admission of P.W.1 in his evidence as per Ex.D.10, has come to the conclusion that the plaintiff has failed to prove his title in respect of the suit schedule property in question and accordingly, dismissed the suit for declaration and title.
21. On the appeal filed by the present appellant, the Lower Appellate Court framed the following points for determination under Order XLI Rule 31 of the Code of Civil Procedure, 1908 which reads as under:
1. Whether the trial Court has failed to appreciate the oral and documentary evidence of both side on case facts in accordance with law and the impugned judgment is deserves to be set aside?
2. Whether these I.A.s No.1 to 3 under order 6 Rule 17, under order 41 Rule 27 and also under order 26 Rule 9 Code of Civil Procedure filed by the appellant are deserves to be allow?
3. Whether there are any reasons for this court to interfere with the judgment of the trial Court?
4. What order?
22. The Lower Appellate Court considering the entire material and on re-appreciation of the evidence on record has recorded a finding that the oral and documentary evidence produced by the plaintiff show that the land bearing Sy.No.40/2 measuring 4 acres was granted to him, but in the appeal, the plaintiff is claiming the relief of declaration and injunction in respect of land bearing Sy.No.40/P3 measuring 4 acres of Ittapattana village and therefore, held that the property granted to the plaintiff under Exibits ‘P’ series and the properties shown in the suit schedule, are not one and the same. There is neither pleadings nor evidence or explanation in the arguments as to how and when the survey number of the suit schedule property was changed from Sy.No.40 to Sy.No.40/P3. It is to be noted that now the plaintiff is seeking the relief of declaration and injunction in respect of 4 acres in Sy.No.40/P3 for which no supportive documents are produced.
23. It is further observed that the plaintiff himself has admitted that he had filed a suit i.e., O.S.No.36/2004 for permanent injunction against the present defendant in respect of Sy.No.40/P3 as well as the learned Counsel for the plaintiff in his argument has admitted that no relief is granted and the said suit was dismissed. There is also a finding that during the pendency of the suit, the plaintiff filed applications I.As.1 to 3 under the provisions of Order VI Rule 17 of the Code of Civil Procedure for amendment of the suit schedule land; for adducing and producing additional oral and documentary evidence; and also for appointment of Survey Commissioner to identify the spot and report to the Court respectively. The plaintiff had also produced the list of documents pertaining to Sy.No.40/2 and also the copy of the judgment in O.S.No.36/2004. No doubt the plaintiff had failed to prove his title and ownership over Sy.No.40/P3 to an extent of 4 acres, he is urging his relief over the said land.
24. Ultimately, the Lower Appellate Court held that if the interim applications are allowed, the nature of the suit schedule property completely changes, the question of cause of action also arises for consideration and it is nothing but a new case, dismissed the applications and also the appeal with liberty to the plaintiff to file a separate and independent proceedings in respect of Sy.No.40/2.
25. Though the learned Counsel for the appellant has filed I.A. under Order XLI Rule 27 r/w Section 151 of the Code of Civil Procedure for production of certain documents viz., endorsement issued by the Tahsildar on 25.2.2012 informing the appellant that Sy.No.40/P3 and Sy.No.40/2 Block are one and the same; Encumbrance Certificate issued by the Sub-Registrar, Arakalgud in respect of the land bearing Sy.No.40/P3 and RTC Extract for the years 2010-11 and 2011-12 in respect of land bearing Sy.No.40/P3, all these documents now sought to be produced have come into existence after the suit was decreed on 4.3.2010 and the appeal was dismissed by the Lower Appellate Court on 20th January, 2011, but during the pendency of the present appeal. Similar applications along with application for amendment were also filed before the Lower Appellate Court wherein it was held that the documents proposed to be filed under Order XLI Rule 27 r/w Section 151 of the Code of Civil Procedure do not pertain to any property in question. I.A.3 filed under Order XXVI Rule 9 of the Code of Civil Procedure for appointment of Survey Commissioner to identify the spot was also rejected since it would definitely change the nature of the suit schedule property. The parties to an appeal shall not be entitled to produce any additional evidence whether oral or documentary, in the Appellate Court. But if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or documents to be produced or witness to be examined.
26. Admittedly, in the present case, it is not the case of the appellant that the additional evidence proposed to be produced was not in existence, when the suit was filed or when the appeal was filed before the Appellate Court and inspite of due diligence, the additional evidence was not within the knowledge or could not be produced inspite of due diligence. Very curiously the oral and documentary evidence produced along with the application shows that the Tahsildar has issued an endorsement that land bearing Sy.No.40, Block No.2 measuring 4 acres is granted to the plaintiff, but the plaintiff is claiming the declaration and injunction in respect of the land bearing Sy.No.40/P3 measuring 4 acres of Ittapattana village. It is not forthcoming as to how Sy.No.40, Block No.2 has been converted or changed to Sy.No.40/P3; under what circumstances it was changed; whether survey has been done by the Competent Authority and whether permission was granted to change Sy.No.40, Block No.2 into Sy. No.40/P3? As stated supra, when the suit i.e., O.S.No.36/2004 was filed by the plaintiff in respect of land bearing Sy.No.40, Block No.2, the very Tahsildar has issued all the documents pertaining to Sy.No.40, Block No.2. Unfortunately the petitioner has filed the application in the year 2012 stating that the land bearing Sy.No.40, Block No.2 has been changed into Sy.No.40/P3 and both the lands are one and the same, but there is no order passed by the competent authority to that effect. The litigants approach the Tahsildar/Magistrate with great expectations and therefore, as and when the applications are filed, they will have to act in accordance with law verifying the documents from the beginning till the end and they cannot act as per their whims and fancies and change the documents ignoring the original material on record in the office of the Tahsildar.
27. The documents proposed to be produced along with present appeal under the provisions of Order XLI Rule 27 of the Code of Civil Procedure are all subsequent documents after filing of the present appeal. It is not the case of the plaintiff as stated supra that despite exercising due diligence he could not produce the documents. Therefore, the appellant has neither made out any ground to allow the present application nor has shown sufficient cause for non production of the documents either before the trial Court or before the Lower Appellate Court. Therefore, the said application cannot be allowed, at this stage, when he has failed to succeed in O.S.No.36/2004 and the said judgment has been confirmed in R.A.No.424/2008 in respect of Sy.No.40, Block No.2. Both the Courts below based on the oral and documentary evidence have concurrently recorded a finding that the plaintiff has failed to prove his title and possession in respect of Sy.No.40/P3 measuring 4 acres of Ittapattana village which is a finding of fact and the same cannot be interfered with by this Court.
28. For the reasons stated above, the substantial question of law framed in the present case has to be answered in the affirmative holding that the plaintiff has not made out any ground to interfere with the concurrent findings of fact recorded by the Courts below and no substantial question of law arises for consideration to admit the appeal.
29. In view of the above, this Regular Second Appeal is dismissed as devoid of merits at the stage of admission itself.
Sd/-
JUDGE Page-1 to 14 -Kcm Page 15 to end -Nsu/-