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RSA No. 7250 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
REGULAR SECOND APPEAL NO.7250/2011(DEC-INJ)
BETWEEN
MARUTHI S/O AMBANNA NAGANKERI
AGED ABOUT 61 YEARS, OCC: LABOUR
R/O SIRSI(A) VILLAGE
TQ. AND DIST. BIDAR
..APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND
1. MANIK S/O GHALEPPA CHILAMPALLI
AGE: MAJOR
R/O SIRSI(A) VILLAGE
Digitally signed
by SOMANATH TQ. AND DIST. BIDAR
PENTAPPA
MITTE
Location: High
Court of
Karnataka 2. MALLAPPA S/O MANIK CHILLAMPALLI
AGE: MAJOR
R/O SIRSI(A) VILLAGE
TQ. AND DIST. BIDAR
RESPONDENTS
(SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD.
22.01.2011 PASSED IN R.A.NO.22/2010 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AT BIDAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
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RSA No. 7250 of 2011
DATED 16.09.2008 PASSED IN O.S. NO.115/2000 ON THE FILE
OF THE ADDL. CIVIL JUDGE (JR. DN.), AT BIDAR.
THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT
ON 03.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
1. This appeal is by the plaintiff against the concurrent judgments by both the Courts below in O.S. No.115/2000 dated 16.09.2008 passed by the Add. Civil Judge (Jr. Dn.) at Bidar and in R.A. No.22/2010 dated 22.01.2011 passed by the Principal Senior Civil Judge, Bidar, whereby the suit filed by the plaintiff came to be decreed in part and rejected the claim for declaration of ownership over the suit schedule property.
2. Parties would be referred to as per their status before the trial Court for the sake of convenience.
3. The brief facts are as below:
The plaintiff filed a suit for declaration of the title over the suit schedule property and to restrain the -3- RSA No. 7250 of 2011 defendants from obstructing his peaceful possession and enjoyment of the suit schedule property. The plaint described the suit schedule property a room and a shop measuring East-West 18' and North-South 66' situated at Sirsi(A) Village and the plaint was accompanied by a hand sketch of the suit schedule property. The plaintiff contended that the suit schedule property is an ancestral property, which he got as part of his share in the family partition between himself and his brother Jatteppa. He contended that he is in the capacity as exclusive owner and in possession along with his family members. It was stated in the plaint that even prior to the partition, the suit property was standing jointly in the names of the plaintiff and his brother Jatteppa and since from the date of partition the name of the plaintiff is appearing in all the records of the Gram Panchayat. He contended that the defendants are in no way concerned either to the plaintiff or to the property of the plaintiff, nor the defendants are the neighbours of the plaintiff. It was contended that defendants simply started to harass the plaintiff by -4- RSA No. 7250 of 2011 creating unnecessary quarrels, nuisance and disputed the ownership of the plaintiff over the suit property. Defendant No.1 also started squatting in the shop portion along with his son and other antisocial elements with the help of political leaders of the village. The plaintiff requested the defendants not to squat over the suit property and create any nuisance, but such requests failed on the deaf ears of the defendants and he flatly denied the title of the plaintiff. Therefore, plaintiff was constrained to gather a panchayat and requested the defendants not to create any obstructions, but they refused to heed to the request of the villagers and as such plaintiff constrained to file a suit seeking declaration that he is the owner in possession of the suit schedule property measuring 18' East-West and 66' North-South, bearing Gram Panchayat No.58/40-2 and to issue perpetual injunction against the defendants.
4. On issuance of suit summons, defendants appeared before the trial Court and filed their written -5- RSA No. 7250 of 2011 statement contending that the plaintiff is not the owner of the entire suit property bearing Gram Panchayat No.58/40-2 measuring 18' x 66'. He contended that the shop is shown in the red colour and he is in possession as owner and it is not a part and parcel of Gram Panchayat No.58-40-2, instead the shop bears the Gram Panchayat No.58/41-1 and it belongs to the defendants. He denied the claim of the plaintiff that the plaintiff is in possession and enjoyment of the suit schedule property since the time from his ancestors and that the plaintiff had got it in the partition. Apart from denying the contention of the plaintiff in the plaint, the defendants contended that the father of the plaintiff Ambanna had sold open space measuring 20' x 25' and the defendants have constructed a shop over it and the Gram Panchayat has given the number as 41/1 and the name of the defendant No.1 had been entered in the suit property in the Gram Panchayat records. He contended that he is paying the Panchayat Tax and they are in possession and enjoyment of the same and therefore, the suit of the plaintiff is not maintainable. -6-
RSA No. 7250 of 2011 In other words, he contended that the shop portion demarcated in the hand sketch map is not the part and parcel of the Gram Panchayat No.58-40/2 and it is given separate number as 58/41-1. Therefore, he sought for dismissal of the suit.
5. In the light of these contentions the following issues were framed by the trial Court:
"1. Whether the plaintiff proves that he is the absolute owner in lawful possession of suit property as on the date of suit?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitle for suit claimed reliefs?
4. What order or decree?"
6. The plaintiff entered witness box and deposed as PW1, Exs.P1 to P19 were marked. Two other witnesses were also examined as PW2 and PW3 on his behalf. The defendants did not cross-examine PW1 to PW3 nor -7- RSA No. 7250 of 2011 adduced any evidence on their behalf in spite of granting sufficient opportunities and therefore closed their side and posted for hearing arguments. Even the counsel for the defendants did not appear for advancing the arguments. The trial Court answered issue Nos.1 and 3 partly in the affirmative and issue No.2 in the affirmative and proceeded to decree the suit in part. It rejected the claim for declaration of title over the suit property. However, granted injunction against the defendants and restrained them from interfering with the possession and enjoyment of the plaintiff over the suit schedule property.
7. Aggrieved by the said judgment, the plaintiff approached the first appellate Court in Regular appeal No.22/2010. Even in the said appeal, the defendants did not appear despite of service of notice and therefore the first appellate Court proceeded with the hearing of the case and heard arguments of the plaintiff, perused the entire records. The following points were framed by the first Appellate Court for its consideration: -8-
RSA No. 7250 of 2011 "1. Whether the finding on the declaratory relief of ownership of plaintiff and dismissing the suit is illegal and incorrect and against the law?
2. Whether the interference of this Court is necessary to set aside the Judgment and Decree in connection with the dismissal of suit for declaratory relief and to decree the suit for declaration of ownership of plaintiff?
3. What order or decree?"
8. The first Appellate Court held point Nos.1 and 2 in the negative and proceeded to dismiss the appeal by confirming the partial decree passed by the trial Court.
9. Aggrieved by the said judgment, the plaintiff has approached this Court in the second appeal. The appellant/plaintiff contended that though the plaintiff has produced all necessary documents regarding the ownership of the property, both the Courts below have insisted for some title deed. It is contended that the trial Court as well as the first appellate Court erred in -9- RSA No. 7250 of 2011 disbelieving the evidence placed on record by the plaintiff to show that the suit schedule property was an ancestral property of the plaintiff and he is in possession and enjoyment of the same by virtue of the ancient partition, which was not disputed. It is contended that since property is ancestral property the plaintiff did not have any title deed with regard to the suit schedule property and therefore the documents which are already on record in the form of the Gram Panchayat records, the payment of the Taxes etc., are sufficient to prove title of the plaintiff. It is further contended that in the absence of any rebuttal evidence by the defendants, the Courts below have erred in holding that the plaintiff failed to prove title over the suit schedule property and came to a erroneous conclusion that the declaration of title cannot be granted to the plaintiff.
10. This Court after hearing arguments by the learned counsel for the appellant-plaintiff admitted the
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RSA No. 7250 of 2011 appeal on 02.06.2017 and framed the following substantial question:
"Whether the Courts below were justified in dismissing the suit insofar as the relief of declaration of title sought by the plaintiff and thereby concluding that the plaintiff was not the owner of the suit schedule property?"
11. The trial court records and the first appellate court records have been secured.
12. On issuance of notice to the respondents- defendants, they did not appear.
13. I have heard the arguments of the learned counsel appearing for the plaintiff and perused the records.
14. It is submitted that the plaintiff has produced all relevant documents before the trial Court and the names of the plaintiff and his brother appear in the village records since long time and therefore it was not fair on the part of the Courts below to say that the title deed was not
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RSA No. 7250 of 2011 produced by the plaintiff. In the absence of any rebuttal evidence by the defendants, the trial Court as well as the first appellate Court could not have come to the conclusion that the partition is not proved. He submitted that the question of partition was never a bone of contention by the defendants and when the cogent evidence is placed on record in the form of panchayat records and the ocular evidence of the witnesses; the same should have been accepted by the Courts below. He submits that, continuous use, occupation, the entry in the panchayat records, payment of Taxes are indication of the title of the plaintiff and when it is not disputed, prima facie there is an error on the part of the Courts below.
15. It is evident that the ocular evidence placed on record by the plaintiff in the form of his own testimony as PW1 and the affidavit evidences of PWs.2 and 3 are not shown to be unbelievable. The plaintiff placed on record as many as 20 documents in support of his case. The Ex.P1 happens to be a Certificate issued by the President
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RSA No. 7250 of 2011 of Gram Panchayat and it states that the plaintiff is the owner in possession of suit property. The Ex.P2 happens to be a Sketch issued by the Gram Panchayat which is in consonance with the hand sketch map produced by the plaintiff along with the plaint. The Ex.P4 happens to be the extract of the Tax Assessment Register of the Panchayat for the year 1993-1994 and it shows that the suit property is in the names of the plaintiff and his brother Jatteppa. A similar extract is produced at Ex.P5 pertaining to the year 2000-01, wherein the name of the plaintiff alone is mentioned as the owner of the property. The Ex.P6 is the Certificate of Residence showing that the plaintiff is resident of Sirsi-A Village. The Ex.P7 happens to be an intimation by the Panchayat, whereby, the plaintiff was informed that his brother Jatteppa had objected for the grant of permission to construct a building and therefore certain documents are required and the plaintiff has to furnish the same. It is evident that certain documents alleged to have been produced by the defendants are also marked during the evidence of the
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RSA No. 7250 of 2011 plaintiff, but in Para 5 of the judgment of the trial Court has clarified when the mistake was brought to the notice of the Court, it was rectified as per the order dated 09.07.2008. The order dated 09.07.2008 disclose that the documents at Exs.P8 to P18 were not the documents produced by the plaintiff, but the documents of the defendants and as such the said marking was cancelled.
16. The ocular evidence of PWs.1, 2 and 3 is nothing but reiteration of the contentions of the plaintiff as mentioned in the plaint.
17. It is trite Law that a civil matter has to be decided by the Courts on the principles of preponderance of probabilities. The trial the Court should weigh the evidence on record and come to a conclusion. If the party to the suit refrained from either cross-examining the witnesses of the other side and do not produce any rebuttal evidence, such a conduct has to be construed to be withdrawal from the trial. However, if the case of the
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RSA No. 7250 of 2011 plaintiff is improbable and has inbuilt contradictions in it, the suit would fail. In the absence of any such inbuilt contradictions in the case of the plaintiff and if the plaintiff has not produced the evidence on the contentions taken up in the pleadings, then alone Court is bound to draw an adverse inference that evidence is not placed on the basis of the pleadings and may dismiss the suit. However, if the evidence is placed on record in pursuance to the pleadings and there are no such inbuilt contradictions which are brought out or noticed by the Court, the Court is bound to grant the decree as claimed. It is also to be noted that the Court is at liberty to take judicial note of certain facts, when it is brought to the notice of the Court. In the absence of inbuilt contradiction being noticed by the Court, it would not be appropriate on the part of the trial Court to deny the relief claimed by the parties. It cannot be forgotten that a decree against the defendants cannot be said to bind any other party. No doubt a declaration of title by a Court is declaration in rem, such declaration is
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RSA No. 7250 of 2011 susceptible for challenge by any 3rd party that it is not binding on him.
18. In the case on hand, the plaintiff has placed on record all material documents which are available with him. Plaintiff claims that he is in possession and enjoyment of the property and acquired the same in a partition. Under Hindu law there need not be a registered deed of partition. If the house properties are divided on oral partition and the plaintiff is in possession of the property by virtue of such partition, he would not be able to produce any title deed. Therefore, when the plaintiff has produced the documents like Gram Panchayat records, receipts for payment of the Tax, Certificate by the Gram Panchayat and the ocular evidence of the two respectable persons of the village, the weight of evidence should have been considered by the Courts below. Obviously, there was no rebuttal evidence.
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RSA No. 7250 of 2011
19. The trial Court in its judgment observed that the documentary evidence placed on record by the plaintiff is insufficient to prove title. It states that to declare the ownership of a person, the evidence placed on record should have been cogent and satisfactory. It also observed that the defendants have not produced any documents showing that they have purchased the property from Ambanna and the trial Court also observed that in the absence of any registered sale deed, the defendants would not acquire any title over the said property. Thus, it is evident that the trial Court has failed to appreciate the weight of the evidence placed on record by the plaintiff in support of his contention.
20. The first appellate Court in its judgment, observed that despite a decision reported in AIR 2005 SC 3652 that in the absence of cross-examination, the evidence of the plaintiff has to be accepted, it proceeds to hold that the trial Court has rightly appreciated the evidence available on record. Further, it observes that the
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RSA No. 7250 of 2011 plaintiff has to stand on his own legs and he cannot depend upon the weakness of the defendants. It fails to recognize that the question of partition between the plaintiff and his brother Jatteppa was not in dispute. It also fails to note that in the year 1993-94, the name of the plaintiff as well as the name of Jatteppa was appearing in the panchayat records, but later in the year 2000-01 it was the name of the plaintiff alone which remained in the panchayat records as the holder of the property. When the plaintiff had entered witness box stating that he acquired the title over the property in the partition between himself and his brother, the first appellate Court has erred in rejecting the evidence placed on record by the plaintiff.
21. The title of a person over an immovable property has to be assessed on the basis of the long usage, occupation, enjoyment and assertion of his right over the same. The payment of the tax and entry in the panchayat records are only indication of the title.
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RSA No. 7250 of 2011 Obviously, there will not be any title deed in respect of ancestral properties which are inherited from the ancestors. A document of title is not sine-qua-non to prove the title. Therefore, it is clear that both the Courts below have failed to appreciate the evidence on record in the proper perspective. They failed to notice that there was no oral evidence placed on record by the defendants. When defendant No.1 contended that he has purchased the property from the father of the plaintiff it was for him to produce such title deed as required under law. On the part of the plaintiff he stated that he acquired the property from his ancestors. Therefore, the Courts below are not justified in dismissing the suit insofar as the relief of declaration of title is concerned. Consequently the substantial question of law raised by this Court is answered in the negative. As a consequence, the appeal deserves to be allowed. Hence, the following:
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RSA No. 7250 of 2011 ORDER The appeal is allowed.
Both the judgment and decree passed by the Courts below in O.S. No.115/2000 dated 16.09.2008 and in R.A. No. 22/2010 dated 22.01.2011, so far as dismissal of the claim of declaration of title of the plaintiff is concerned, are hereby set aside. The plaintiff is declared to be an absolute owner of the suit schedule property.
Sd/-
JUDGE SBS List No.: 1 Sl No.: 65