Karnataka High Court
Parayya S/O Ishwarayya Bhanvi vs Basaparayya S/O Ningayya Bhanvi on 26 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
RSA NO. 2348 OF 2005
Rr
C/W RSA NO. 2367 OF 2005
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE, 26TH DAY OF JULY, 2024
BEFORE
HON'BLE JUSTICE MR HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.2348 OF 2005
C/W
REGULAR SECOND APPEAL NO.2367 OF 2005
IN RSA NO. 2348 OF 2005
BETWEEN
PARAYYA,
S/O ISHWARAYYA BHANVI,
AGE: 56 YEARS,
OCC: PUJARAKI,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADVOCATE)
AND
1. BASAPARAYYA,
S/O NINGAYYA BHANVI
AGE: 52 YEARS,
OCC: PUJARIKI
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
2. MAGAYYA
S/O NINGAYYA BHANVI,
AGE: 49 YEARS,
OCC: PUJARAKI,
2
RSA NO. 2348 OF 2005
Rr
C/W RSA NO. 2367 OF 2005
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
MAGAYYA
S/O PARAYYA BHANVI,
SINCE DECEASED BY HER LRS
SMT. KALLAWWA
3. W/O MAGAYYABHANVI,
AGE: 59 YEARS,
OCC: HOUSEHOLD
4. SHANKARAYYA
S/O MAGAYYA BHANVI
AGE: 44 YEARS,
OCC: AGRICULTURE
5. RACHAYYA
S/O MAGAYYA BHANVI,
AGE: 41 YEARS,
OCC: AGRICULTURE
6. MALAYYA
S/O MAGAYYA BHANVI,
AGE: 38 YEARS,
OCC: AGRICULTURER
7. SMT MALLAWWA
W/O RACHAYYA MATHAPATHI,
AGE: 36 YEARS,
OCC: HOUSEHOLD
8. SMT. PARAWWA,
W/O IRAYYA PUJARI,
AGE 39 YEARS,
ALL ARE R/O
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
3
RSA NO. 2348 OF 2005
Rr
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9 (a) GADIGAYYA
S/O PARAYYA BHANVI,
AGE: 57 YEARS,
SINCE DECEASED BY HIS LRS,
9 (b) SHRISHAILA,
S/O LATE. SADIGAYYA ,
AGE ABOUT 69 YEARS,
9 (c) BASAYYA
S/O LATE. SADIGAYYA ,
AGE ABOUT 66 YEARS,
ALL ARE R/O NEAR PRABHUDEVASWAMY MATH,
TERDAL, JAMAKANDI TALUK,
BAGALKOT DISTRICT.
9 (d) SMT. NEELAWWA
W/O GIRIMALLAYA MATHAPATHI,
AGE ABOUT 53 YEARS,
OCC; HOUSEHOLD
R/O NEAR PRABHUDEVASWAMY MATH,
TERDAL, JAMAKANDI TALUK,
BAGALKOT DISTRICT.
9 (e) SMT. MAHADEVI,
W/O SHANKARAYYA,
AGED ABOUT 49 YEARS,
OCC: HOUSELHOLD WORK,
R/O KALUTI NAGAR, TERDAL,
JAMAKHANDI TALUK,
BANGALORE DISTRICT.
CAUSE TITLE AMENDED AS PER ORDER DATED
28.07.2021 PASSED ON IA NO.1 /20 TO 3/20
10. DUNDAYYA
S/O ALLAYYA BHANVI,
4
RSA NO. 2348 OF 2005
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C/W RSA NO. 2367 OF 2005
AGE: 53 YEARS,
SINCED DECEASE BY HIS LRS
10(A) SMT. SIDDALINGAWWA,
W/O LATE DUNDAYYA BHAVI,
AGED ABOUT 55 YEARS,
10(B) GUBESHWAR
S/O LATE DUNDAYYA BHAVI,
AGED ABOUT 32 YEARS,
10(C) MAHESH
S/O LATE DUNDAYYA BHAVI,
AGED ABOUT 29 YEARS,
ALL ARE R/O NEAR
PRABHUDEVASWAMY MATH,
TERDAL,
JAMAKANDI TALUK,
BAGALKOT DISTRICT.
10(D) SMT. GOWURAWWA
W/O PANCHAYYA MATHAPAATHI,
AGED ABOUT 35 YEARS
OCC: HOUSEHOLD WORK,
R/O SHURPALI,
JAMAKANDI TALUK,
BAGALKOT DISTRICT
CAUSE TITLE AMENDED AS PER ORDER DATED
06.01.2014 PASSED ON IA NOS 1/13 TO 3/13
11 . MAGAYYA
S/O ALLAYYA BHANVI,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
....RESPONDENTS
5
RSA NO. 2348 OF 2005
Rr
C/W RSA NO. 2367 OF 2005
(BY SRI. MRUTHYUNJAYA TATA BANGI , ADVOCATE FOR R1 AND
R2;
SRI. ANIL KALE, ADVOCATE FOR R3 TO R8
SRI. SRINIVASA A PACHHEPURE ADVOCATE R11;
R9(B TO E) ARE LRS OF DECEASED R9(A)
R9 (B), R9 (C) , R9 (D), R9 (E) NOTICE HEARD SUFFICIENT;
R 10 (A-D) ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DT. 23.8.2005, PASSED IN R.A.
NO.23/2000 ON THE FILE OF THE DIST. AND SESSIONS JUDGE
NAD PRESIDING OFFICER, FAST TRACK COURT, JAMAKHANDI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DT. 15.3.2000 PASSED IN O. S. NO. 80/1990 ON
THE FILE OF THE CIVIL JUDGE (JR. DN.), BANHATTI. TRIAL
COURT DECREED THE SUIT. APPELLATE COURT DISMISSED THE
APPEAL SUIT FOR DECLARATION AND INJUNCTION.
IN RSA NO.2637 OF 2005
BETWEEN
PARAYYA,
S/O ISHWARAYYA BHANVI,
AGE: 56 YEARS,
OCC: PUJARAKI,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADVOCATE)
AND
1 . MAGAYYA
S/O PARAYYA BHANVI,
SINCE DECEASED BY HER LRS
1(a) SMT. KALLAWWA
W/O MAGAYYABHANVI,
AGE: 59 YEARS,
OCC: HOUSEHOLD
SINCE DECAEASED BY HER LRS,
6
RSA NO. 2348 OF 2005
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C/W RSA NO. 2367 OF 2005
1(b) SMT MALLAWWA
W/O RACHAYYA MATHAPATHI,
AGE: 62 YEARS,
OCC: HOUSEHOLD
R/O NEAR LAXMI TEMPLE, RABAKAVI,
BANHATTI TALUK,
BAGALKOT DISTRICT.
1(c) SMT. PARAWWA,
W/O IRAYYA PUJARI,
AGE 39 YEARS,
OCC; HOUSEHOLD WORK.
R/O NEAR LAXMI TEMPLE, RABAKAVI,
BANHATTI TALUK,
BAGALKOT DISTRICT.
CAUSE TITLE AMENDED AS PER
ORDER DATED 28.07.2021 PASSED ON
I.A.NO. 1/20 TO 3/20.
2. RACHAYYA
S/O MAGAYYA BHANVI,
AGE: 41 YEARS,
OCC: AGRICULTURE
3. MALAYYA
S/O MAGAYYA BHANVI,
AGE: 38 YEARS,
OCC: AGRICULTURE
4. SHANKARAYYA
S/O MAGAYYA BHANVIAGE: 44 YEARS,
OCC: AGRICULTURE
RESPONDENT NOS. 2 TO 4 ARE
R/O TERDAL,
JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315.
7
RSA NO. 2348 OF 2005
Rr
C/W RSA NO. 2367 OF 2005
....RESPONDENTS
(BY SRI. ANIL KALE, ADVOCATE FOR R2 TO R4;
R1 (A) AND R1(B) ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DT. 23.8.2005, PASSED IN R.A. NO.
24/2000 ON THE FILE OF THE DIST. AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT, JAMAKHANDI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DT. 15.3.2000 PASSED IN O.S.NO. 71/1994 ON THE FILE
OF THE CIVIL JUDGE (JR.DN.), BANHATTI. TRIAL COURT
DECREED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL
SUIT FOR DECLARATION AND INJUNCTION.
THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR) RSA.No.2348/2005 and RSA.No.2367/2005 are filed by defendant No.1 against the judgment and decree passed in RA.No.23/2000 and RA.No.24/2000 respectively dated 23.08.2005 passed by the District and Sessions Judge & Presiding Officer, Fast Track Court at Jamakhandi and the judgment and decree passed in OS.No.80/1990 and 8 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 O.S.No.71/1994 respectively dated 14.03.2000 (common judgment) passed by the Court of Civil Judge (Jr.Dn.,) Banhatti.
2. Both the suits are filed for declaration and injunction and the trial Court has decreed both the suits and the regular appeals filed by defendant No.1 were dismissed. Therefore, against the concurrent findings of fact by both the courts below, defendant No.1 has preferred the present regular second appeals.
3. The ranks of the parties, is as stated before the trial Court for easy reference and convenience. FACTS:
4. The brief facts as set out by the plaintiff in O.S.No.80/1990 are as follows:
The plaintiff's father one Ningayya S/o Basaparayya Bhanvi was the owner of the suit property have succeeded to the suit property by way of succession and till today, the plaintiff's father name is continued in the revenue records property extract. The plaintiffs are in lawful possession and 9 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 enjoyment of the suit property. The suit property bearing TMC.No.1119, Division No.2 of Terdal Town is originally measuring East to West 100 feet and North to South 112 feet as more fully described in the schedule of suit property and out of which, the plaintiff was claiming that he was making wahiwat (enjoyment) to the extent of East to West 50 feet and North to South 112 feet for more than 50 years. The remaining half portion is owned and possessed by one Channayya Parayya Bhanvi and defendant Nos.2 to 5. The said Channayya Parayya Bhanvi and defendant are claiming ownership in the remaining half portion of Eastern side of the said property. The deceased father of plaintiff had sold the land to the extent of East to West 5 feet and South to North 112 feet for Rs.500/- on 19.07.1984 under a registered sale deed to Chennayya Parayya Bhanvi out of his property then measuring 50 feet by 112 feet. Therefore, the plaintiffs became the owners of East to West 45 feet and South to North 112 feet as more fully described in the suit schedule property.10
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005
5. It is contended that the plaintiffs are in possession of the suit schedule property for 50 years. Therefore, the plaintiffs are claiming property as marked as "ABCD" in the hand sketch annexed to the plaint. Defendant Nos.2 to 5 and one Channayya Parayya Bhanvi are claiming ownership of remaining half portion shown as "MNOP" in the hand sketch map.
6. But the defendant No.1 without having right, title and interest over the suit schedule property is attempting to obstruct the plaintiffs' peaceful possession and disputed the title of the plaintiffs' over the suit property. Therefore, the plaintiffs have filed the suit for declaration and permanent injunction.
7. The written statement of defendant Nos.4 and 5 in OS.No.80/1990:
7.1 It is submitted by defendant Nos.4 and 5 that defendant No.1 is claiming ownership and right in the property belonging to defendant Nos.4 and 5. Defendant Nos.4 and 5 together owned a space to the extent of East to 11 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 West 50 feet and North to South 36 feet, which is lying to the East to the property of the plaintiff. Defendant Nos.4 and 5 have produced the hand sketch map with written statement and by showing their property by letters "BLMN", the deceased father of defendant Nos.4 and 5 namely Allayya Magayya Bhanvi has purchased the said portion under two registered sale deeds dated 21.09.1984 and 14.02.1986 from Channayya Parayya Bhanvi and his brothers. Thus, defendant Nos.4 and 5 have got their title and their names have been mutated in the municipal records. Defendant Nos.4 and 5 are residing in the said property and accordingly, they are in possession of the property. It is stated that the plaintiffs are the owners of the suit schedule property shown by letters "ABCD" and they are in lawful possession of the said property. Further stated that some portion of the property was sold by Ningayya Bhanvi (father of plaintiffs) to Channayya Parayya Bhanvi who is the vendor of defendant Nos.4 and 5. Therefore, they have filed the written statement.12
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 The written statement of defendant no.2 in o.s.no.80/1990
8. Defendant No.2 has filed the written statement and admitted the hand sketch map produced by the plaintiffs annexed to the plaint. Defendant No.1 has no right, title or interest over the suit schedule property bearing TMC.No.1119, Division No.2 of Terdal and originally the entire suit property is measuring East to West 100 feet and North to South 112 feet. The plaintiffs and defendant Nos.3, 4 and 5 are the owners of the suit properties in their respective portions as shown in the hand sketch map of the defendants. Hence, neither defendant No.1 nor his forefather have no right, title and interest in respect of the entire suit property. It is the case of defendant No.2 that this defendant No.1 has no right, title and interest over the suit schedule property and wahiwhat of property "DEFG" a portion as shown in the hand sketch map to the written statement. Defendant No.2 admitted that the plaintiffs are the owners 13 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 and in actual possession of the property shown by the letters "ABCD" in the hand sketch map.
9. The written statement of defendant No.1 (contesting defendant) in O.S.No.80/1990 and O.S.No.71/1994:-
9.1 The contesting defendant is defendant No.1. This defendant No.1 denied all the pleadings made by the plaintiff and other defendants. This defendant has denied that the father of the plaintiff namely Ningayya Bhanvi was the owner of the suit schedule property. Further pleaded that the plaintiffs are not in possession over "ABCD" property as shown in the hand sketch map. Further defendant No.1 pleaded that the extent of property originally was East to West 100 feet and North to South 112 feet. Further denied the fact that the plaintiffs' father was enjoying and making wahiwat of property measuring East to West 50 feet and North to South 112 feet for more than 50 years. Further denied that the remaining half portion as alleged by the plaintiffs is claimed by Channayya Parayya Bhanvi. The said 14 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Channayya Parayya Bhanvi absolutely is not concerned over the suit property or any other portion of it.
9.2 It is further pleaded that the alleged sale deed dated 19.07.1984 alleged to have been executed by deceased Ningayya Bhanvi in favour of Channayya Parayya Bhanvi is sham, bogus and concocted document. There is no division of property on the strength of this alleged sale deed.
Defendant No.1 is not a party to the said document. The said document/sale deed is collusive one. Through the sale deed dated 19.07.1984, the plaintiffs have never asserted their right. Defendant No.1 denied that the plaintiffs are enjoying and making wahiwat of portion of "ABCD" property.
9.3 It is the specific case of defendant No.1 as pleaded in the written statement that the property bearing TMC.No.1119 is measuring East to West 98 feet and North to South 114 feet, but not 100 feet x 112 feet. The property is divided into two portions only as shown by defendant No.1 in his hand sketch map. The defendant No.1 is in possession of Western half portion of property measuring East to West 49 15 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 feet and North to South 114 feet as shown in the hand sketch map. Defendant No.1 is in actual possession and wahiwat of Western half portion of property for the last 30 to 40 years from his forefather's time.
9.4 Defendant No.1 further pleaded that during the year 1987, some changes were made behind the back of defendant No.1 and his father, in collusion with the plaintiff and Channayya Parayya Bhanvi. Immediately, he approached the Town Municipal Council, Terdal and the Town Municipal Council has rectified revenue entries by virtue of General Body Resolution dated 31.01.1987 after enquiry as per the provisions of Karnataka Municipalities Act. After death of father of defendant No.1, the name of defendant No.1 is entered to the property No.1119 under resolution No.103 dated 18.03.1987.
9.5 Further defendant No.1 pleaded that the family of the plaintiffs is in possession of Eastern portion, but now the plaintiffs are asserting to claim over the Western portion, but the said Western portion belongs to the defendant No.1. 16
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 9.6. It is further submitted by defendant No.1 that the suit filed by plaintiff is barred by res judicata. One Channayya Parayya Bhanvi has filed a suit in O.S.No.12/1987 against of defendant no.1 and father of plaintiff. In the said suit, defendant No.1 filed his written statement and specifically contended that he is in possession of Western half portion. This fact was never denied by father of plaintiff at any time. Hence, the principle of res judicata is applicable. Further pleaded that suit filed by plaintiff is a clear bar of estoppel to the suit filed by plaintiff. Plaintiffs are estopped to contend otherwise than the one stated in O.S.No.12/1987.
9.7. Further pleaded that Channayya Parayya Bhanvi has absolutely no concern whatsoever over the suit schedule property. The present suit is collusive in nature between plaintiffs, Channayya Parayya Bhanvi and defendant Nos.2 to
5. The said Channayya Parayya Bhanvi has withdrawn the suit in O.S.No.12/1987 after having convinced that he will 17 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 not succeed in the suit. Therefore, defendant No.1 has prayed to dismiss the suit.
10. The Trial Court after framing issues and appreciating the evidence on record has answered issues that the plaintiff proved that they are owners and of the suit property to the Western portion of Tardal TMC No.1119/2 described as 'ABCD' in the plaint hand sketch map and are in lawful possession over the property. The Trial Court has disbelieved the case of defendant No.1 that defendant No.1 in both the suits is owner and in possession of Western 'ABCD' property. The Trial Court has decreed both the suits O.S.No.80/1990 and O.S.No.71/1994 and declared that plaintiffs in O.S.No.80/1990 are owners of the suit schedule property and granted permanent injunction.
11. Being aggrieved, defendant No.1 in both the suits has preferred Regular Appeals before the First Appellate Court. The First Appellate Court has dismissed the appeal on the reason that defendant nos.4 and 5 in O.S.No.80/1990 18 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 have admitted the case of plaintiffs by stating that the plaintiff has proved that he is the owner of the suit schedule property as they have purchased the suit property by way of a sale deed in the year 1984 and accordingly, paid property tax and therefore, proved that after purchase they have put up construction on the said land. Therefore, confirmed the judgment and decree passed by the Trial Court. Further accepting the case of defendants no.4 and 5 held that they purchased portion of the property on the eastern side from their vendor Channayya Parayya Bhanvi under two different sale deeds and they have constructed residential house and shop in the purchased property and they are in possession. Also defendant No.2 Magayya and defendant no.3 Gadagayya Parayya Bhanvi are claiming to be purchasers of portion of the property of the Eastern side of Channayya Parayya Bhanvi under registered sale deed and constructed the house for residential purpose and they are paying property tax as per document produced by them. Therefore, by relying upon Ex.P.18 sale deed and considering the boundary mentioned 19 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 therein has dismissed the appeal filed by defendant no.1. Further, the Trial Court has assigned reason that Channayya Parayya Bhanvi in O.S.No.12/1987, who is plaintiff in said suit, and in the said suit O.S.No.12/1987 the defendant no.1 herein, who was also defendant no.1 in O.S.No.12/1987, has contended that he is the owner of Western half portion of TMC No.1119 and remaining Eastern half portion is owned by plaintiff's father Ningaiah Bhanvi. But contrary to the suit in O.S.No.80/1990, defendant no.1 has contended that Eastern half portion of the property is owned by Magayya, Gadigeyya and Dundayya and not the aforesaid Channayya Parayya Bhanvi. But in this regard, there are documents of title produced before the Trial Court to have purchased the property from their vendor Channayya Parayya Bhanvi and as such declined the case of defendant no.1 and hence dismissed the appeals.
12. Being aggrieved by the dismissal of Regular Appeals, defendant No.1 in both the suits has preferred the present Regular Second Appeals. This Court while admitting 20 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 the appeals has framed the following substantial question of law : -
"Whether the courts below were justified in granting a decree for declaration in the absence of any material produced to show how the title to the property was traced to the plaintiffs ?"
Submissions of counsel for the appellants:
13. Learned counsel for the appellant, Sri Ravi S Balikai, vehemently argued that both the courts below have committed serious error in not considering the aspect whether the vendors have title so as to sell the land. Therefore, Ex.P.18 sale deed cannot be relied upon. Ex.P.18 is the registered sale deed dated 14.5.1984 in which the vendor is Allappa Payappa Desai and the buyer is Channayya Parayya Bhanvi and the extent of the property is 50 ft. East- West and 119 ft. South-North bounded by, towards East- Prabhudevara godown, West-open space belonging to Ningayya Basaparayya Bhanvi. But the vendor has no title. Therefore, the plaintiff could not rely upon the sale deed 21 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Ex.P.18 in the absence of title of the vendor. Therefore, the recitals in the sale deed Ex.P.18 showing towards western side there is open space belonging Ningayya Basaparayya Bhanvi (plaintiff's father) is not correct and cannot be relied upon. Further submitted that in sale deed Ex.P.19 dated 19.7.1984, the vendor is Ningayya Basaparayya Bhanvi and purchaser is Channayya Parayya Bhanvi and the property sold is out of the western portion measuring east-west 5 ft and south-north 118 ft. but the vendor Ningayya Basaparayya Bhanvi did not have title. Therefore, reliance placed by both the courts below on Exs.P.18 and P.19 holding that the plaintiff is owner of the property is not correct. Therefore, in the absence of title to the vendors, both in respect of the sale deeds 14.5.1994 and 19.7.1984, it cannot be proved that the plaintiff is in western portion of the property. It is argued that the plaintiff's suit being one for declaration and title of ownership unless the plaintiffs produced valid title deeds, they are not entitled to declaratory relief of title over the suit property. But, 22 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 admittedly the plaintiff has not produced any title deed in support of their claim for title.
13.1. Further submitted that the entries in revenue records do not create or extinguish the title. In the present case, plaintiffs have not produced any evidence in proof of their title. Further submitted that the burden of proof to prove that the plaintiffs are the owners of the property is upon the plaintiffs but the plaintiffs except producing property extracts, have not produced any material to prove their title over the suit property. Therefore, the plaintiffs have not proved their title over the suit property and produced relevant title deeds. Hence, in the absence of this, the plaintiff's suit is liable to be dismissed.
13.2. Further submitted that defendant no.1 has produced evidence of property extract right from the year of establishment of village panchayath at Tardal to show that name of late Eshwaraiah, father of defendant no.1, was entered in the property extracts as possessor and owner jointly along with the name of father of the plaintiff, 23 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Ningaiah. Therefore, defendant no.1 has proved they are in possession. Thus, owner by virtue of possession and has produced tax paid receipts. Further submitted that the sale deed Exs.P.18 and P.19 are not documentary title for the plaintiffs and they will not confer any title rights over the plaintiffs and to prove their title in respect of the particular portion of western side as claimed by the plaintiffs. Whereas the plaintiffs are owners and in possession of the eastern side half portion out of the suit property and presently the same is being in occupation and enjoyment of plaintiffs and their cousins who are defendants no.2 to 5.
13.3. Further submitted that in Exs.P.18 and P.19, sale deeds, the description of areas sold and boundaries mentioned in sale deed are not correct and as per the facts defendant No.1 and his father are not parties to the said sale deeds and thus they are not bound by recitals of the sale deeds. Further, the vendor Allappa Payappa Desai did not have title to the suit property. Hence, the sale deed executed by him will not confer any title to the purchaser Channayya 24 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Parayya Bhanvi. Also the plaintiffs father who is the vendor as per sale deed Ex.P.19 being owner of the half share has sold 5 feet strips out of his property by deliberately mentioning wrong boundaries to the suit according to his convenience and therefore, there is collusion between the father of the plaintiffs and Channayya Parayya Bhanvi. Therefore, unless the vendor produces valid title deeds to prove that he is the lawful owner and in possession of the western half share out of TMC No.1119 of Tardal, the purchaser Channayya Parayya Bhavi would not get any title over the property alleged to have sold and therefore, defendant no.1 or his late father Eswaraiah are not bound by the self serving recitals in the sale deeds. Therefore, arguing on the substantial question of law above framed by this Court, it is argued that in Exs.P.18 and P.19 to the western side, the description of the property is wrongly shown just to knock off the property of defendant no.1. Therefore, it is submission made by the counsel for the appellant/defendant no.1 that if the vendor of the sale deed Ex.P.18 Allappa 25 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Payappa Desai did not have any title even the plaintiff in O.S.no.71/94, who is claiming under the sale deed Ex.D.2 would not also get any better title. Therefore, reliance placed by both the courts below on Exs.P.18 and P.19 is not correct.
13.4. Channayya Parayya Bhanvi filed suit in O.S.No.12/1987 and in the said suit, he has specifically described himself to be the exclusive owner of entire area purchased by him in Ex.P.18 and he did not disclose the sale deed as Ex.D.2. However, argued that plaintiff has produced secondary evidence without laying foundation by pleadings and evidence for production of secondary evidence. Therefore, mandatory requirements of Section 65(c) of the Indian Evidence Act, are not complied with. Therefore, it is submitted that the appeals be allowed by setting aside the judgment and decree passed by the courts below.
13.5. The learned counsel for the appellant places reliance on the following judgments of Hon'ble Supreme Court and this Court :
26
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005
1. ILR 2004 KAR 4838 (K.P. KRISHNA KUMAR V/S SMT. RADHALAKSHMI AMMA)
2. ILR 2006 KAR 169 (GAFARSAB @ SATIGAFAR SAB V/S AMMER AHAMED)
3. (2000)9 SUPREME COURT CASES 241 STATE OF RAJASTHAN AND OTHERS V/S KHEMRAJ AND OTHERS
4. AIR 2006 RAJ 187 SHANKAR LAL AND OTHERS V/S THE CIVIL JUDGE (JR. DIV.) AND OTHERS
5. AIR 2004 SC 34082 DAYAVANTHI VS. K.S.SHAFI Submissions of counsel for the respondents(plaintiffs and defendant Nos.2 to 5)
14. On the other hand, learned counsel for the defendants/respondents submitted that as per Section 91 of the Indian Evidence Act, 1872 Ex.P.18 document is a registered document of sale deed and the contents therein are relevant and admissible unless it is challenged. Defendant No.1 has not challenged Ex.P.18-sale deed. Therefore, every content in the sale deed and the recitals therein are admissible unless it is challenged and get it aside 27 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 by the competent Civil Court. Further submitted that as per Section 31 of the Specific Relief Act, 1963 cancellation of registered instruments may be made by challenging the same but that has not been done. When defendant no.1 is much questioning Ex.P.18 registered sale deed, presumption arises in regard to contents therein including all the recitals and boundaries mentioned therein and unless it is cancelled, the said registered document is presumed to be valid. But, defendant no.1 has not challenged Ex.P.18 registered sale deed and in the absence of it, defendant no.1 does not have requisite locus standi to question Ex.P.18 sale deed. Further argued with reference to Section 110 of the Evidence Act, 1872 that the burden is on defendant no.1 to prove his ownership over possession of the suit schedule lands but that is not discharged by defendant no.1. Therefore, both the courts below are correct in their findings. Further submitted that as per Ex.P.18 registered sale deed it is proved towards the western portion of the suit schedule property, there is open space belonging to Ningayya Basaparayya Bhanvi 28 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 which proves that the plaintiff is in possession over the western portion and defendants no.2 to 5 in O.S.no.80/1990 and plaintiffs in O.S.no.71/1994 are in possession of the property. Further submitted that when defendant no.1 is claiming that he is owner of the suit schedule property towards the western portion of the property but there is no title deeds produced, mere entries in the revenue records does not prove ownership of defendant no.1 over the property and this is rightly considered by both the courts below. Therefore, justified the judgment and decree passed by both the courts below. Hence, prays to dismiss the appeal.
ANALYSIS:
15. Upon considering the entire evidence on record, the plaintiffs is claiming declaration that they are owners of the suit schedule property and it is decreed by the Trial Court on the reason that in Ex.P.18 original sale deed dated 3.12.1984, towards the western side the boundaries stated is, open space belonging to Ningayya Basaparayya Bhanvi. 29
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 The plaintiffs and defendant no.1 have not produced any title deeds to prove their ownership over the suit schedule property. Both have relied only on revenue records. The substantial question of law is framed to the effect that the vendor viz. Desai did not have title so as to sell the property in favour of father of defendants no.2 to 5 viz. Channayya Bhanvi. The counsel for defendant no.1 submitted that the vendor of Channayya Bhanvi did not have title. Therefore, in the absence of title then Ex.P.18, registered sale deed, cannot be believed. It is pertinent to note here that defendant no.1 has not challenged Exs.P.18 and 19 documents. From the evidence of Exs.P.18 and P.19, the western portion of the land is shown as open space belonging to Ningayya Basaparayya Bhanvi. It is pertinent to note here that the said Channayya Bhanvi has filed suit in O.S.no.12/1987 against defendant no.1 and the father of plaintiffs Ningayya Bhanvi for the relief of permanent injunction in respect of very same property bearing TMC no.1119 of Terdal village in which the Channayya has 30 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 specifically pleaded he is the owner of the eastern half portion of TMC No.1119 of Terdal and the remaining half portion of the property is owned by father of plaintiffs. In the said suit also defendant no.2 herein has contended that he is the owner of the western portion but failed to produce the evidence. The entire claim of defendant no.1 is based on the property extract only. Unless registered instrument is cancelled by competent court of law, the said instrument including their contents and recitals are presumed to be valid. Defendant no.1 is contending that recital mentioned in Ex.P.18 sale deed is not correct. If defendant no.1 is being aggrieved of any of recitals therein or boundaries mentioned therein are incorrect then, it is open for defendant no.1 to challenge the same but he did not do so. If the boundaries are mentioned wrongly in the sale deed and it affects defendant no.1 then, he can challenge that portion of recital or the whole instrument itself but cannot question the competency of vendor of Channayya Bhanvi unless the said instrument is challenged. The plaintiff is contending that 31 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 towards the western side, there is an open space belonging to father of plaintiff and by relying on this, the plaintiff is contending that he is the owner of the property. Now, defendant no.1 is trying to depict that plaintiff is in eastern portion of the property in TMC no.1119 of Terdal village and if plaintiff is going to declare as eastern portion then, defendants no.2 to 5 are to be evicted. It is an attempt made by defendant no.1 that if the plaintiff goes to the eastern portion of the property then, defendant no.1 will get western portion and defendants no.2 to 5 are to be ousted from the possession. Therefore, defendant no.1 has contended that only on the basis of boundaries mentioned in Ex.P.18 that the western side portion of the property is wrongly shown by questioning the vendors title. It is not disputed that the vendor in Ex.P.18 registered sale deed is one Desai who has sold the property to Channayya as per Ex.P.18 registered sale deed. As per Ex.P.19 a strip of land measuring 5 ft. x 118 ft. was sold by father of plaintiff to Channayya Bhanvi. Defendant no.1 has not disputed that 32 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 originally the property belongs to Desai family and the said Desai family had given lands to the deity of Prabhuling temple and now the plaintiff and defendants no.2 to 5 are in possession of the property. Defendant no.1 has not questioned the instruments Ex.P.18 and Ex.P.19. Unless it is questioned, the recitals and boundaries mentioned therein are not said to be incorrect. This is not the suit filed by defendant no.1 seeking declaration but opposing the suit of the plaintiff in O.S.no.80/90 and opposing the suit of defendants no.2 to 5, who are the plaintiffs in O.S.no.17/94. When upon noticing the evidence on record as discussed above, the plaintiff proves on all probability on the western side of property TMC no.1119 of Terdal village, the plaintiff is in possession of the property. When both the plaintiffs and defendant no.2 are claiming title through possession without producing document of title, but the plaintiff proves by the boundaries mentioned in Ex.P.18 that western side portion of the property belongs to father of plaintiff. This probabalises the fact that plaintiffs are owners in possession of the 33 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 property. Towards more of this, defendant no.1 has not produced evidence except producing property extract.
16. Admittedly, neither the plaintiffs nor defendants have produced the title documents to prove their ownership over the suit property; their case is mainly based on possession, thereby claiming ownership by virtue of possession by relying on the entries made in the revenue/property extract records. It is well known law that entries in the revenue records do not prove the title of the property, but in the present case, the plaintiff is mainly relying on Ex.P-18 and Ex.P-19-sale deeds, based on which he is going to prove his possession, thereby claiming ownership over the property. Defendant No.1 has not produced any documents to prove the title except property entries in the property extracts. Therefore, under these circumstances, who is more probable to prove their possession, thereby claiming their ownership is to be assessed. First and the main contention of the plaintiff is that he is the owner and is in possession of the Western half 34 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 portion of the property, measuring 49 ft. East-West and 114 ft. South-North.
17. It is the case of defendant No.1 that the plaintiffs are in possession of the Eastern portion of the property measuring 49 ft. East-West and 114 ft. South-North out of the suit property. Both the plaintiff and defendant No.1 are claiming their title and possession through their ancestors and defendant No.1 had denied defendant Nos.2 to 5 and Channyya Parayya Bhanvi, that they have rights over the suit property, either Eastern or Western portion. Further, it is the case of defendant No.1, that the said Channayya Parayya Bhanvi and defendant Nos.2 to 5 have colluded with the plaintiffs and are making a false claim over the portion of the property belonging to defendant No.1.
18. The plaintiffs have not produced any title documents to prove their ownership, the plaintiffs are claiming ownership over the property in possession, which is from their ancestors. Likewise, defendant No.1, is also claiming ownership by virtue of possession from their 35 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 ancestors. Though Ex.P-18 and Ex.P-19 are not documents of title for the plaintiffs, the recitals and boundaries shown in the Ex.P-18-sale deed towards Western side, the property belonging to Ningayya Basaparayya Bhanvi is shown, Ex.P- 18-sale deed dated 14.06.1984 in the year 1984, the vendor is Allappa Payappa Desai and vendee is Channayya Parayya Bhanvi. It is stated that the Desai family was the earlier owner of the suit property and other surrounding lands, on which the Prabulinga Devara Temple is situated. Though there is no documents to show that Allappa Payappa Desai was erstwhile owner of the suit property but this fact is not denied by defendant No.1. Though their title documents show that the Desai family was owner of the lands including the suit property, the plaintiffs and defendant Nos.2 to 5 have stated that the earlier Desai family was the owner of the lands, which is also not specifically denied by defendant No.1, where, the properties are inherited from generations, there may not be the production of documents of title. In this regard, what arrangement is made over a long period of 36 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 time can be considered. The vendor-Allappa Payappa Desai has sold Eastern half portion of land to Channayya Parayya Bhanvi measuring 50 ft. East-West and 119 ft. South-North and boundary in the sale deed towards Western side is shown as the land belonging to father of plaintiffs namely Ningayya Basparayya Bhanvi. Defendant No.1 is claiming that this is the wrongly shown boundary that is towards the western side of the land that does not belong to Ningayya Basparayya Bhanvi, but claiming that he is in possession of Western half portion of the property. Defendant No.1 is disputing the boundaries mentioned in Ex.P-18-sale deed by claiming that towards the Western portion of the property, defendant No.1 is in possession of the property. The substantial question of law framed is to the effect that the vendor Allappa Payappa Desai did not have title therefore, there is no valid transfer of property by virtue of Ex.P-18- sale deed to Chennayya Parayya Bhanvi and also, in the absence of title of the plaintiffs, the plaintiffs are not able to prove their title, hence, not entitled to relief of declaration. 37
RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005
19. As discussed above both plaintiffs and defendant Nos.2 to 5 have not produced any documentary of title, and the plaintiffs are claiming their ownership by virtue of possession by relying on the entries made in the property extracts of Town Municipal Counsel, Terdal. Likewise, defendant No.1 is also claiming ownership on the basis of possession, relying on the entries in the property extracts. Under these circumstances, who is in possession of the property is to be considered on the basis of possession only, and who is more probable to prove their case is to be analyzed. In Ex.P-18-sale deed, towards Western side it is shown that the property belongs to plaintiff's father namely Ningayya Basparayya Bhanvi. Whereas, on the other hand, defendant No.1 except entries in the property extracts does not have any documents. Ex.P-28-notice issued by the Town Municipal Counsel, Terdal, that the plaintiff's father had applied for permission to construct a structure on the property dated 08.12.1977, which prove the plaintiff's father was in possession over the property. The plaintiffs are 38 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 claiming their ownership through inheritance by their father, Exs.P-30 & 31 are the tax paid receipts issued by the Town Municipal Counsel, Terdal, collecting of property taxes from the year 1990-91-92, Ex.P-32 is the tax paid receipts that the plaintiffs father had paid property taxes and Ex.P-33 is the assessment list of buildings and lands liable to taxation for the years 1998-99 issued by the Town Panchayath Counsel, Terdal, in which the name of owner is shown as ingayya Basparayya Bhanvi. All these documents probabilises proof of the facts in issue that the plaintiffs are in possession over the suit property.
20. Likewise, defendant No.1 has produced the property extracts as per Exs.D-8, 9, 10, 11 and 12, which prove that Ningayya Basparayya Bhanvi is also joint owner of the property of TMC No.1119, measuring 114 ft. X 98 ft. Therefore, the plaintiff's father is also the owner of half portion of the property along with Ishwarayya Parayya Bhanvi and this is not disputed by defendant No.1. The only dispute in the crux of the matter is which portion of the 39 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 property is in possession of which party. The total extent of property is 114 ft. X 98 ft. as per Exs.D-8 to D-12, it is proved that the plaintiff's father was also a joint owner along with Ishwarayya Parayya Bhanvi and whether, the plaintiff is in Western portion or father of defendant No.1 is in possession of the Western portion is the crux of the dispute involved in the case. There is no dispute by defendant No.1 that the plaintiff's father is entitled to half portion of the property. Whether, the plaintiff's father was in possession of Western side or Eastern side is the question involved in the case.
21. It is contended by defendant No.1 that he is in possession of Western portion and not the plaintiff's father but if Exs.D-8 to D-12-property extracts are considered with reference to Ex.P-18-sale deed, the Western portion is shown as the property belonging to Ningayya Basparayya Bhanvi. These Exs.D-8 to 12 start from the year 1965-66 and onwards, much prior to the Ex.P-18-sale deed, it is proved that the plaintiff's father Ningayya Basparayya 40 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Bhanvi, was in possession over the property in respect of half portion of the property measuring 119 ft. X 98 ft. and this is not disputed by defendant No.1. Therefore, it is proved that the plaintiff's father was in possession of half portion of the property measuring 119 ft. X 98 ft. To decide which portion the father of plaintiff is in possession is the question to be considered in this case. Defendant No.1 is contending that, as per Exs.D-8 to D-12 are the property extracts of Ishwarayya Parayya Bhavi, who is the father of defendant No.1, is in possession over the property along with Ningayya Basparayya Bhanvi to the extent of 119 ft. X 98 ft. Therefore, as per Exs.D-8 to D-12, it is shown in the property extracts that the father of defendant No.1 and the father of plaintiff's are joint in possession over the property in TMC No.1119, measuring 119 ft. X 98 ft. Now, the dispute is amongst them that who is in Western portion of the property in question is to be considered. Considering the property extracts as per Exs.D-8 to D-12 at an intermittent time, the name of Ishwarayya Parayya Bhanvi, was struck 41 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 down and the name of Chennayya Parayya Bhanvi, was inserted in place of Ishwarayya Parayya Bhanvi, from the year 1970-71. Subsequently, from the year 1986-87, as per Ex.D-12, the name of Ishwarayya Parayya Bhanvi, was re- entered in place of Chennayya Parayya Bhanvi. Though, Ishwarayya Parayya Bhanvi, has reclaimed of making entries in the property extracts but still the question remains as to which portion of the property Ishwarayya Parayya Bhanvi was in possession of the property. Defendant No.1 is silent in proving this aspect by producing the evidence, but as discussed above, upon considering Exs.D-8 to D-12, when it is proved that the plaintiffs father was also joint owner to the half extent of property and upon appreciating Ex.P-18-sale deed document towards the Western side portion, it is shown the boundary as the land belonging to Ningayya Basparayya Bhanvi. Therefore, these documents along with documents produced by the plaintiffs are discussed above the tax paid receipts, property extracts and house construction permit proved that the plaintiff is in possession of half portion of 42 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 property along with considering Exs.P-18, but the father of defendant No.1 may be in possession, but defendant No.1 has not claimed any of the Eastern side of the property but is claiming that defendant No.1, is in possession over the Western side of the property, but it is not proved. Therefore, upon considering all the evidence on record, it is proved that the plaintiffs are in Western side of the property out of the extent of 119 ft. X 98 ft. and in this regard, both the Trial Court and First Appellate Court are correct in declaring that the plaintiff is the owner of the suit property, which is in Western portion of the property out of the extent of 119 ft. X 98 ft. Therefore, in this regard, the judgment and decree passed by both the Trial Court and First Appellate Court are liable to be confirmed.
22. Though the defendant No. 1 is claiming through Exs.D-8 to D-12 that his father was in possession of half extent of property, it may be open to defendant No.1 to make claim as per law but there is no counter claim by defendant No.1 in this regard. But defendant No.1 is 43 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 claiming only on the Western side of the property, but for the reasons above discussed the plaintiffs are proved to be in possession over the Western side of the property, therefore, both the Trial Court and First Appellate Court are correct in declaring that the plaintiffs are the owners of the suit property, which needs no interference by this Court. As discussed above, the suit of the plaintiffs is mainly based on the possession and seeking declaration on the basis of the possession and in the absence of title of both the plaintiff and defendant No.1, the substantial question of law is answered to the effect that both Trial Court and First Appellate Court are justified in decreeing the suit of the plaintiffs for declaration based on the possession of the plaintiffs over the Western side portion of the property. Therefore, though, the plaintiffs have not produced any title, but the plaintiffs have successfully made out the case for grant of decree of declaration though in absence of title on the base of possession. Accordingly, substantial question of law is answered in the Affirmative, under the peculiar facts 44 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 and circumstances involved in the case. Therefore, the appeal is liable to be dismissed.
23. I have studied the decisions relied on by counsel for the appellant-defendant No.1, but the factual matrix in the said decisions are different from the instant case; hence, without elaborating the facts therein and ratio laid down, it is observed here that the said decisions are not applicable in the present case.
24. Hence, I proceed to pass the following.
ORDER
i. The Regular Second Appeals are
dismissed.
ii. The judgment and decree dated
15.03.2000 passed in O.S.No.80/1990
and O.S.No.71/1994 by the Learned Civil Judge, (Junior Division), Banahatti and the judgment and decree dated 23.08.2005 passed in R.A.No.23/2000 and R.A.No.24/2000 by the District and 45 RSA NO. 2348 OF 2005 Rr C/W RSA NO. 2367 OF 2005 Sessions Judge & presiding Officer, Fast Track Court, Jamakhandi are hereby confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
JUDGE
PB:Para Nos.1 to 9.5
RS:Para Nos.9.6 to 15
SRA:Para Nos.16 to end.