Sri Kariyappa vs Sri Puttaswamy
2022 Latest Caselaw 1433 Kant

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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.

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

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

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

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

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

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

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.

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

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

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.

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,

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

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:

"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

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.

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

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.

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