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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01st DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.258 of 2020 [DEC/INJ]
BETWEEN:
SRI KARIYAPPA
S/O LATE DODDA THAMMEGOWDA,
SINCE DECEASED BY HIS LRS.
1. SMT. RAJAMMA,
W/O LATE KARIYAPPA,
AGE 66 YEARS,
2. SMT.SUNANDA
D/O LATE KARIYAPPA,
AGE 49 YEARS,
3. SRI.GANGADHAR
S/O LATE KARIYAPPA,
AGE 45 YEARS,
4. SRI.KRISHNA
S/O LATE KARIYAPPA,
AGE 43 YEARS,
5. SRI.RAJU @ RAJESH
S/O LATE KARIYAPPA,
AGE 41 YEARS,
ALL ARE RESIDENTS OF
AREPALYA VILLAGE,
KEMPANAPALYA POST,
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KOLLEGALA TALUKA-571 440.
CHAMARAJANAGARA DISTRICT.
...APPELLANTS
(BY SRI.T.N.RAGHUPATHY, ADVOCATE)
AND:
SRI PUTTASWAMY
S/O. LATE KASIVISI SIDDEGOWDA
SINCE DECEASED BY HIS LRS.
1. SMT. KEMPAMMA
W/O. LATE KASIVISI SIDDEGOWDA,
AGED ABOUT 71 YEARS,
2 . SRI.BANGARU
S/O. LATE KASIVISI SIDDEGOWDA,
AGED 53 YEARS,
3 . SRI. P. KEMPEGOWDA
S/O. LATE KASIVISI SIDDEGOWDA,
AGED 49 YEARS,
4 . SMT.SHANTHAMMA
D/O. LATE KASIVISI SIDDEGOWDA,
AGED 47 YEARS,
ALL ARE RESIDENT OF AREPALYA VILLAGE,
KEMPANAPALYA POST,
KOLLEGALA TALUKA- 571 440,
CHAMARAJANAGARA DISTRICT.
5. SMT.NAGAMANI, W/O NAGE GOWDA,
AGE: 51 YEARS,
R/AT DODINADUVADI VILLAGE,
KOLLEGALA TALLUK-571440
CHAMARAJANAGAR DISTRICT.
...RESPONDENTS
(BY SRI.K.KALYAN ADVOCATE FOR
SRI.P.MAHADEVA SWAMY, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 100 OF C.P.C.,
AGAINST THE JUDGMENT AND DECREE DATED 29.07.2019
PASSED IN R.A. No.6/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND J.M.F.C., KOLLEGALA DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 06.12.2018 PASSED IN O.S. No.108/2007 ON THE
FILE OF THE PRL. CIVIL JUDGE AND J.M.F.C., AT KOLLEGALA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 28.01.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. This second appeal is by the legal representatives of the deceased defendant.
2. Sri.Puttaswamy Gowda, the original plaintiff, instituted a suit initially seeking for a decree of declaration and for injunction. The suit property was originally described as the land bearing Sy.No.655/C, measuring an extent of 1 acre 80 cents out of total extent of 4 acres 10 guntas bounded on the East by Canal; West by the land of Devaraju Gowda; North by Canal and his property; and South by the land of Kariyappa.
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3. Subsequently, an application to amend the plaint was made but the same was rejected by the Trial Court. The plaintiff thereafter approached this Court in W.P. No.2186/2014 and this Court allowed the said writ petition and thereby the plea for amendment. By the said amended plea, it was stated that he was dispossessed after the interim order was vacated and hence, was entitled for a decree of possession.
4. The plaintiff also got the schedule of the plaint amended. Instead of 4 acres 10 guntas, the total measurement of Sy.No.655/C was stated to be 3 acres 40 guntas. The boundaries were also changed to state that it was bounded on the East by the land of Gurusiddanayak; West by the land of Timmirangegowda; North by the land of Puttaswamy Gowda bin Singari Gowda; and South by Hebballa.
5. It was the case of the plaintiff that he had purchased the suit property from Smt.Chikkatayamma, who was the wife of Puttaswamy Gowda, under the 5 registered sale deed dated 22.04.1980 and he was put in possession of the said property. It was stated that the revenue entries were also changed in his favour and he was in lawful possession and as the defendant sought to interfere with his possession he was constrained to file the suit seeking for a decree of declaration.
6. The suit was contested by the defendant stating that the plaintiff was not in possession of the suit schedule property. It was stated that the defendant had purchased the suit property under a sale deed dated 20.12.1978 and under the said sale deed, an extent of 1.87 acres had been conveyed. It was stated in the said sale deed, the survey number was wrongly mentioned as Sy.No.654/B, though the boundaries had been correctly stated.
7. It was stated that the defendant did not notice the said mistake until recently and the defendant was therefore, seeking for a counter-claim by way of a declaration that he was the owner in possession of the 6 property bearing Sy.No.655/C measuring 1.87 acres by rectifying Sy.No.654/B as 655/C in the sale deed dated 20.12.1978. The defendant in his counter-claim also sought for a decree of injunction.
8. The Trial Court, on considering the evidence adduced before it, concluded that the plaintiff had proved that he was the owner of the suit property and that there was interference with his possession. The Trial Court held that the defendant had failed to prove that he was the owner in possession of Sy.No.655/C measuring 1.87 Acres and his claim for rectification of Sy.No.654/B as 655/C in his sale deed dated 20.12.1978 could not be granted. The Trial Court also concluded that the plaintiff had proved that the defendant had obtained possession of the suit schedule property, after the interim order had been vacated. The Trial Court accordingly decreed the suit of the plaintiff and dismissed the counter-claim of the defendant. The defendants were also directed to vacate and deliver the 7 possession of the suit schedule property to the plaintiff within two months from the date of the judgment.
9. Being aggrieved, the legal representatives of the defendant preferred an appeal.
10. The Appellate Court on re-appreciation of the evidence came to the conclusion that there was no error committed by the Trial Court in decreeing the suit and in dismissing the counter-claim of the defendant. The Appellate Court accordingly dismissed the appeal.
11. It is against these concurrent findings, the present second appeal has been preferred.
12. The learned counsel for the appellants, Sri.T.N.Raghupathy, contended that the plaintiff could not have been permitted to amend the schedule and changed the entire boundaries. He also contended that an application for amendment had been filed in I.A. No.V, but the same had been withdrawn without liberty to file a fresh application and yet I.A. No.VI had been 8 filed seeking for amendment. He submitted that I.A. No.VI had been rightly rejected by the Trial Court. He submitted that I.A. No.VI was allowed by this Court in Writ Petition No.2186/2014 [GM-CPC] by order dated 04.08.2015. He submitted that since the said order was passed in the absence of the appellant, this Court in exercise of its power under Section 105 of the Code of Civil Procedure, 1908, could nullify the said amendment in this second appeal.
13. The learned counsel pleaded that the documents produced by the defendant as per Exs.D-2 to 5 clearly indicated that it was the defendant who was in possession of Sy.No.655/C and the plaintiff had made a categorical statement that he was in possession of Sy.No.681 and in the light of these documents, the Courts below could not have decreed the suit.
14. The learned counsel for the appellants also submitted that both the Courts had acted upon the rectification deed obtained by the plaintiff after the 9 institution of the suit, by which the entire boundaries had been changed and since the rectification had been obtained after the suit had been filed, the same could not have been taken cognizance of.
15. He submitted that the suit was required to be tried on the basis of the original boundaries and not on the basis of the amended boundaries or on the basis of the rectification deed. The learned counsel lastly submitted that it was impermissible for rectification of a sale deed which was executed in the year 1980, and the entire basis of the plaintiff's claim was on the basis of the rectification deed, the plaintiff would not be entitled for a decree.
16. The learned counsel for the respondents, on the other hand, supported the impugned judgment and decrees. He submitted that under the sale deed executed in favour of the defendant, the survey number had been correctly mentioned as Sy.No.655, but, by oversight, the boundaries of entire Sy.No.655 had been 10 mentioned and only in order to rectify this anomaly, a rectification deed was executed by the vendor who admitted the mistake in mentioning the boundaries of the entire survey number.
17. He submitted that the other revenue documents produced by the defendant clearly and conclusively establish that the defendant's vendor's husband Puttaswamy Gowda was the owner of Sy.No.655/C and in view of the conveyance by his wife, it would have to be held that the plaintiff was indeed the owner of Sy.No.655/C and was entitled for possession thereof.
18. The learned counsel submitted that there was absolutely no documents produced by the defendant to show that his vendor possessed any semblance of right, title or interest in respect of Sy.No.655/C. He submitted that the counter-claim of the defendant seeking for a declaration that he was the owner of Sy.No.655/C when his sale deed indicated that he had purchased Sy.No.654/B was rightly not granted by the Trial Court. 11 He submitted that even the sale deed of the defendant's vendor indicated that he had acquired Sy.No.654/B and therefore, the question of Sy.No.655/C being conveyed to the defendant would never arise.
19. Having heard the learned counsel for the parties and having perused the records, it is clear that it is not in dispute that the sale deed executed in favour of the plaintiff stated that Sy.No.655 measuring 1 Acre 80 cents, out of the total extent of 4 Acres 10 guntas in Sy.No.655 was being conveyed. The plaintiff in order to corroborate the fact that his vendor possessed title over Sy.No.655/C produced Ex.P-28, which was a record of rights of the year 1967-68, in which the name of Singari Gowda--father-in-law of his vendor, had been entered and had been stated to be the ancestral property. The plaintiff also produced record of rights of the years between 1976-77 and 2000-01 as per Exs.P- 29, 30, 31, 32 and 33, in all of which the name of his 12 vendor's husband--Puttaswamy Gowda had been entered.
20. In the light of these revenue records, both the Courts were justified in concluding that the plaintiff's vendor possessed title over Sy.No.655/C and she had conveyed a title that she possessed in respect of Sy.No.655/C in favour of the plaintiff.
21. It is also not in dispute that the plaintiff produced the sale deed executed in favour of the defendant's vendor, as per Ex.P-34. In this sale deed, what had been conveyed to the defendant's vendor was Sy.No.654/B measuring 1 acre 87 guntas. Admittedly, even in the sale deed executed in favour of the defendant, it is also mentioned that Sy.No.654/B was being conveyed. The defendant did not produce any documents to indicate that his vendor was the owner of Sy.No.655/C, so as to relate the sale deed as one pertaining to Sy.No.655/C. In the absence of any corroborative documents indicating that the defendant's vendor owned any portion 13 of Sy.No.655/C, both the Courts were justified in coming to the conclusion that the defendant had no right over Sy.No.655/C.
22. The argument of the learned counsel for the appellants that the plaint could not have been amended and the plaintiff could not have been permitted to substitute the boundaries, cannot be accepted. Admittedly, after contest, the application for amendment was rejected by the Trial Court. The plaintiff had challenged the said rejection in Writ Petition No.2186/2014. Despite service of notice of that writ petition, the defendant chose to remain absent and this Court, no doubt, without hearing the appellant, had allowed I.A. No.VI. This order of allowing I.A. No.VI has attained finality since there was no challenge to the said order by the appellants. The appellants cannot therefore contend that the boundaries to the plaint schedule could not have been amended.
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23. The argument that the defendant could urge that there was an error, defect or irregularity in allowing I.A. No.VI by virtue of Section 105 of C.P.C. in this second appeal, cannot also be accepted. It has to be stated that the decision of the Trial Court did not rest only on this order of amendment. It is to be stated here that in the plaint, the survey number was mentioned as Sy.No.655 and the only discrepancy was in the non-mentioning of the sub-number of the Survey number and in the mentioning of the boundaries, which was sought to be modified by way of the amendment. The curing of the mistake in the pleadings would not amount to an order which affected the decision of the case.
24. It may be pertinent to state here that the identity of the property was not really in dispute. In fact, the defendant had contended that the plaintiff was essentially seeking for a declaration in respect of the property that he had purchased and the boundaries stated in the plaint were relatable to his property. Since, 15 both parties went into trial with the clear understanding as to what was the property which was the subject matter of the dispute, the amendment of the plaint did not in any way affect the decision of the suit.
25. The further argument of the learned counsel that the revenue documents had established that the defendant was in actual possession of Sy.No.655/C cannot also be accepted. The Appellate Court has recorded a clear finding that these revenue documents had not been proved in the manner known to law. It is settled law that revenue documents cannot be considered as conclusive evidence to prove the possession of the defendant over Sy.No.655/C.
26. It must be stated here that in order to be entitled to claim a declaration that the defendant was the owner of Sy. No.655/C and was entitled to be in possession of Sy.No.655/C, primarily, the defendant would have to establish that he has title over Sy. No.655/C. If it is found that he had no title in respect of Sy.No.655/C, it is 16 obvious that he would have to yield possession to the true owner. In the instant case, both the Courts have recorded a clear finding that the plaintiff's vendor's husband owned Sy.No.655/C and on his death, the plaintiff's vendor had inherited the said property and therefore, had valid title over Sy.No.655/C.
27. Both the Courts have noticed that a portion of the said Sy.No.655/C had been conveyed to another person and this was also borne out in the evidence. The Courts have noticed that by oversight, the boundaries of the entire survey number had been mentioned instead of only 1.80 acres that the plaintiff had purchased. A mere rectification of this mistake would not disentitle the plaintiff from claiming the title over the suit schedule property.
28. The Hon'ble Supreme Court in the case of SHEODHYAN SINGH & OTHERS Vs. Mst.SANICHARA KUER & OTHERS, [AIR 1963 SC 1879], has held as follows:
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"6........ It was pointed out that a property fully identified in the schedule may be in some respects mis-described which would be a different case. Thus, the effect of this decision is that where there is no doubt as to the identity and there is only misdescription that could be treated as a mere irregularity.
7...... But where we have both the boundaries and the plot number and the circumstances are as in this case, the mistake in the plot number must be treated as a mere misdescription which does not affect the identity of the property sold. The contention of the appellants therefore with respect to this plot must fail."
29. Further, in the judgment rendered by this Court in the case of TIBBA BOYI @ KARIYA & OTHERS Vs. K.VENKATAPPA, [(1987) 2 Kant.L.J. 379], it has been held as follows:
"5. ... ... A decree for declaration of title can be granted even without the rectification of the mistake in the document on the basis of which the title is sought if the title is proved in spite of such mistake by evidence aliunde. If without seeking a relief of rectification of the mistake in 18 the document, the plaintiff is able to prove his title to the suit property, it is permissible in law and the Court has an undoubted jurisdiction to pass a decree declaring the title of the plaintiff to the suit property as claimed in the plaint.
The relief of declaration of title is an
independent relief. It does not depend upon
Section 26 of the Act. Therefore, Section 26 of the Act does not, and cannot be held to take away the jurisdiction of the court or come in the way of the court to pass a decree declaring the title of the plaintiff even without the rectification of the mistake crept in the document of title. It is the ordinary general jurisdiction of the civil court to grant a decree for declaration of title."
30. In the light of the above decisions, it will have to be held that the mentioning of a wrong survey number in a document could only be treated as a mere irregularity and if the plaintiff is able to prove his title to the suit property, it is permissible for the civil courts to pass a decree declaring the title of the plaintiff even without seeking for rectification of the instruments. 19
31. In view of these decisions, it will have to be held that the incorrect mentioning of the survey number as Sy.No.655 was only a misdescription and a mere irregularity. The plaintiff has been able to establish that he had in fact, purchased Sy.No.655/C and this is also confirmed with the execution of the rectification deed in his favour.
32. The last submission of the learned counsel that the rectification deed procured by the plaintiff after filing of the suit cannot be taken into consideration at all, cannot be accepted. His further reliance on the judgment of the Orissa High Court in KHALIL NAHAK vs. HADU NAHAK (DEAD) AND OTHERS, [AIR 2006 Orissa 131] can also be of no avail.
33. It has to be stated here that, in the schedule to the plaint, the survey number of the property was mentioned as Sy.No.655/C. It has also come out in the evidence that the entire boundary of Sy.No.655 had been mentioned. Admittedly, the plaintiff had purchased only 20 a portion of Sy.No.655. The vendor of the plaintiff on being informed of this anomaly had come forward to execute the rectification deed. No doubt, this rectification deed was executed only on the plaintiff becoming aware of the discrepancy after filing of the suit. If the vendor, in order to convey Sy.No.655/C which was the true intention of the parties while executing the sale deed, comes forward and executes a rectification deed, the same cannot be disregarded. As stated above, the evidence on record clearly established that the vendor did possess title over Sy.No.655/C and by executing a rectification deed, all that being done was to confirm the conveyance of Sy.No.655/C.
34. In fact, even in the decision relied upon by the learned counsel, it has been stated that it is permissible for a rectification deed be executed only if the mistake was clerical or bona fide one. I am, therefore, of the view that there is no merit in the argument of the learned counsel.
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35. In my view, there is absolutely no question of law arising for consideration in this appeal. Accordingly, this second appeal is dismissed.
36. It is however required to be clarified that the dismissal of this second appeal would not, however, come in the way of the defendant to establish his claim over Sy.No.654, which he has purchased.
Sd/-
JUDGE RK CT:SN