K M Aliyulla Khan S/O Moosa Khan vs R Sarvesha Murthy S/O M.S. Revanna ...
2022 Latest Caselaw 1259 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF JANUARY, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

            R.S.A.No.2476/2008(DEC/INJ)

BETWEEN:

K.M.ALIYULLA KHAN,
S/O MOOSA KHAN,
AGED 68 YEARS,
HURA ROAD, NANJANGUD TOWN,
MYSORE DISTRICT - 571 301.            ... APPELLANT

(BY SMT. DEEPASHREE, ADV., FOR SMT.V.H.VASUNDARA,
ADV.,)

AND:

1.     R.SARVESHA MURTHY,
       S/O M.S.REVANNA MURTHY,
       AGED 48 YEARS,
       MAMBALLY VILLAGE AND POST,
       NANJANGUD TALUK - 571 301.

2.     M.S.REVANNA DEVARU,
       S/O LATE SHIVA BASAVA DEVARU.,
       SINCE DEAD BY LRs.,

2(a) VISHALAKSHAMMANI,
     SINCE DEAD BY LRs         Amended as per Court
     R-2(b) TO 2(k) THEY       order dated 15.02.2010.
     ALREADY ON RECORD

2(b) SHIVABASAVASWAMY, AGED 60 YEARS,

2(c) R.CHIKKANNA SWAMY, AGED 52 YEARS,
                              2



2(d) R.SUNDARESHA MURTHY, 49 YEARS,

2(e) R.SARVESHA MURTHY, 48 YEARS,

2(f)   R.NAGARAJA MURTHY, 43 YEARS,

2(g) R.SHASHIDHAR KUMAR, AGED 41 YEARS,

2(h) R.SUMITRA, AGED 47 YEARS,
     W/O M.S.PALAKSHA MURTHY,

2(i)   ANNAPURNA, 55 YEARS,
       W/O B.N.PRABHAKARA SHARMA,

2(j)   MALLIKA, 46 YEARS,

2(k) MENAKA, 44 YEARS,

       R-2(b) TO (k) ARE CHILDREN OF LATE
       2ND RESPONDENT.
       R-2(a) TO (k) ARE RESIDENT OF MAMBALLY,
       YELANDUR TALUK, CHAMARAJNAGAR DISTRICT.

3.     G.N.AZEESULLA,
       S/O SABJAN SAB,
       SINCE DEAD BY LRs.,

3(a) SAGIR AHMED, 55 YEARS,
     S/O AZEEZULA,

3(b) JAVEED AHMED,
     SINCE DEAD BY LRs.,

3(b)(a) MRS. MASUDA BEGUM,
        53 YEARS,

3(b)(b) NOOR MOHD ALI, 27 YEARS,

3(b)(c) NOOR MOHD FAZ, 26 YEARS,
       S/O JAVEED AHMED.
                               3



       R-3(a) TO 3(b)(c) ARE RESIDENTS OF
       CITIZEN ENGLISH SCHOOL BLDG,
       KHB COLONY, NANJANGUD,
       MYSORE DISTRICT - 571 301.
                                 ... RESPONDENTS

(BY SRI. D.R.RAJASHEKHARAPPA, ADV., FOR C/R-1 AND FOR
R-2(b to k);
VIDE ORDER DATED 15.02.2010, R-2(b to k) ARE LRs OF
DECEASED R-2(a);
R-3(a), R-3(b)(a), R-3(b)(b) & R-3(b)(c) ARE SERVED)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 01.09.2008,
PASSED IN R.A.No.79/2000, ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) AND JMFC., NANJANGUD, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 26.05.2000 PASSED IN O.S.NO.328/1989 ON THE
FILE OF THE ADDL. CIVIL JUDGE (JR.DN) AND ADDL. JMFC.,
NANJANGUD.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

1. Sri R.Sarvesha Murthy and his father M.S.Revanna

Devaru instituted the suit in O.S.No.328/1989 seeking for a

declaration that Sarvesha Murthy was the owner of the suit

schedule property or in the alternative to declare that both

R.Sarveshamurthy and M.S.Revanna Devaru were the owners

of the suit schedule property. A consequential decree for

injunction was also sought for.

2. The suit property was stated to be the land bearing

Sy.No.322/1 measuring 3 acres 5 guntas with a bungalow in

it and out of the said property, the suit was in respect of the

vacant land excluding the building and 12 guntas of land that

had been acquired by the Government.

3. It was stated that the suit schedule property originally

belonged to late Gulam Mohammed @ Sahibjan, father of

T.N.Ajeejulla (defendant No.2) and he had mortgaged the suit

schedule property along with other properties to late Sahukar

Chikkannadevaru of Mamballi under a registered Mortgage

Deed dated 21.07.1923 It was stated that later Gulam

Mohammed @ Sahibjan had borrowed `4,000/- from

M.C.Subbanna @ Jayashekara Swamy of Mamballi, son of

Sahukar Chikkannadevaru of Mamballi to discharge the

balance amount due under the Mortgage Deed dated

21.07.1923 and he, therefore, executed another Mortgage

Deed dated 16.10.1927. The suit schedule property along

with other properties were the subject matter of this

mortgage.

4. It was stated that M.C.Subbanna @ Jayashekara

Swamy had filed a suit in District Judge Court, Mysuru, in

O.S.No.12/1935-36 against late Gulam Mohammed @

Sahibjan for foreclosure of mortgage and for sale of the suit

schedule property and this suit ended in a decree being

passed his favour. It was stated that the decree was

executed in Ex.No.59/1938-39 and in those proceedings, the

mortgaged properties were ordered to be sold and in the

auction/sale so conducted, with the permission of the Court,

M.C.Subbanna purchased the suit schedule property and the

sale was also duly confirmed and possession was also

delivered through the Court on 05.03.1940 in Miscellaneous

No.93/1939-40.

5. It was stated that M.C.Subbanna @ Jayashekara

Swamy thereafter sold the suit schedule property to the 2 nd

plaintiff - M.S.Revanna Devaru under a registered Sale Deed

dated 26.06.1940 and put him in possession of the same.

6. It was stated that there was a bungalow in the suit

property in which the Special First Class Magistrate Court had

been housed. It was stated that thereafter the Court was

shifted, and the building was leased to the Swamiji of Suttur

Shivarathreeswara Mutt, who had in turn permitted running a

High School in the suit property. It was stated that vacant

land was used by the school as a playground. It was also

stated that an extent of 12 guntas of land in the northern

side of the suit property had been acquired by the

Government.

7. It was stated that in a partition amongst the members

of M.S.Revanna Devaru's (2nd plaintiff) family, the suit

property had fallen to the share of the 1st plaintiff and he was

in possession of the same.

8. It was stated that a mistake had crept in the description

of the suit schedule property in O.S.No.12/1935-36 and in

the subsequent documents which had culminated in issuance

of a Sale Certificate and the delivery receipt in as much as

the survey number of the schedule property was mentioned

as "122" instead of "322". It was stated that this mistake

was carried over even in the Sale Deed dated 26.06.1940,

though, the boundaries of all the documents, including the

Sale Certificate corresponded to Sy.No.322.

9. It was stated that in the first Mortgage Deed dated

21.07.1923, one of the lands mortgaged amongst other

lands, had been described as land bearing Sy.No.322 and

that very property had once again mortgaged (along with

other properties) under the Mortgage Deed dated

16.10.1927. It was, therefore, stated that it was clear that all

the documents which were the subject matter of

O.S.No.12/1935-36 related to "Sy.No.322" and not

"Sy.No.122". It was thus submitted that mention of

Sy.No.122 in the documents was a misdescription and was

required to be disregarded and the boundaries would

determine the actual property, which would mean Sy No 322.

10. It was stated that defendant No.2 - T.N.Ajeejulla was

the son of late Gulam Mohammed @ Sahibjan, who had

suffered a decree and whose property was ordered to be sold

in the Court auction. It was stated that notwithstanding the

fact that his father had lost title over the suit schedule

property, defendant No.2 had sold the suit schedule property

excluding the building and the portion acquired by the

Government to defendant No.1 - Aliyulla Khan. It was stated

that the name of the father of defendant No.2 had continued

in the revenue records and after his demise, this was

changed in favour of defendant No.2.

11. It was stated that the predecessor-in-title of the

plaintiffs i.e., M.C.Subbanna, who had purchased the suit

schedule property in a Court auction, had paid phodi charges

and had also received the compensation amount in respect of

12 guntas that had been acquired by the Government. It

was, therefore, necessary that the plaintiffs be declared as

owners of the suit schedule property.

12. On service of summons, defendant No.1 entered

appearance and contested the suit. The 1st defendant apart

from denying the averments in the plaint, put forth the

defence that Gulam Mohammed @ Sahibjan, father of the 2nd

defendant was the original owner of 2 acres 8 guntas of land

in Sy.No.322/1 of Chamalapura in Nanjangud Town and was

in possession of the same till his death and after his demise,

the 2nd defendant became the absolute owner of the said

property. It was stated that on 22.11.1979 under a registered

Sale Deed, the 2nd defendant had sold 28 guntas of land in

Sy.No.322/1 of Chamalapura to the 1st defendant for a

consideration of `10,000/- and put him in possession of the

same. Similarly, by another Sale Deed dated 23.11.1979, the

2nd defendant had sold 1 acre 20 guntas of land in

Sy.No.322/1 for a sum of `21,000/- and had put the 1st

defendant in possession of the same. It was stated that ever

since, the 1st defendant was in possession of 2 acres 8 guntas

of land in Sy.No.322/1 as owner.

13. The 1st defendant contended that before he purchased

the suit schedule land, he had referred to the various revenue

records and also the encumbrances and had found that the

suit schedule land was standing in the name of the father of

the 2nd defendant and there was no other person claiming any

interest in the said land. It was stated that even if the

plaintiffs' assertions were to be accepted as true, the same

would not bind the 1 st defendant as he had purchased the

said suit schedule land in good faith for valid consideration

and after verifying the records. He also stated that he had

been in continuous possession to the knowledge of the true

owner and adverse to the rights of the true owner and at no

point of time, for the past 40 years, M.C.Subbanna or the

plaintiffs were in possession of the said lands. It was stated

that even if M.C.Subbanna had any title in respect of 2 acres

8 guntas, it had stood extinguished because the 1st defendant

had perfected his title by adverse possession.

14. A plea was also taken that the suit of the plaintiffs was

barred by time.

15. The assertion of the plaintiffs that they had leased the

suit schedule property in favour of the Court and thereafter,

in favour of a School was also denied and the acquisition of

12 guntas and receipt of compensation was also denied.

16. The 2nd defendant, who had also entered appearance

through a counsel, adopted the written statement of the 1 st

defendant.

17. The Trial Court, on consideration of the pleadings

framed, in all, the following twelve issues:

"1. Whether the plaintiff proves that the father of the 2nd defendant mortgaged the schedule property in favour of Sahukar Chikkannadevaru and further mortgaged the same in favour of M.C.Subbanna alias Jayashekaraswamy s/o Chikkannadevaru through a registered mortgage deeds dated 21/7/23 and 16/10/27 respectively?

2. Whether the plaintiffs prove that M.C.Subbanna further purchased the schedule property through Court sale on 5/3/1940 in Mis.Petition No.93/39-40?

3. Whether the plaintiffs prove that 2nd plaintiff purchased the schedule property from Subbanna through a registered sale deed dated 26/6/1940?

4. Whether the plaintiffs prove that they have leased the schedule property to Swamiji of Suthur?

5. Whether the plaintiffs prove that the vacant land mentioned in the schedule property is used as play ground?

6. Whether the plaintiffs prove that there is mis-description of S.No. of the schedule property as 122 instead of 322 and the said mistake is crept in during the proceedings O.S.12/35-36 and subsequent document as contended in para 7 of the plaint?

7. Whether the 1st defendant proves that he has purchased 28 guntas and 1 acre 20 gts., of land in S.No.322/1 from the 2nd defendant on 22/11/79 and 23/11/79 respectively and in possession of the same?

8. Whether the plaintiffs prove that 2nd plaintiff is in possession of the schedule property through his tenant?

9. Whether the plaintiffs prove the alleged interference by the defendant?

10. Whether the defendants prove that they have perfected their right by law of adverse possession?

11. Whether the suit is barred by limitation?

12. To what relief the parties are entitled?"

18. On a consideration of the evidence, the Trial Court held

that the plaintiffs had proved that the father of the 2nd

defendant had mortgaged the suit schedule property in

favour of Sahukar Chikkannadevaru vide Mortgage Deed

dated 21.07.1923 and had also further mortgaged the very

same property in favour of M.C.Subbanna, son of Sahukar

Chikkannadevaru through a registered Mortgage Deed dated

16.10.1927. The Trial Court also held that the plaintiffs had

proved that M.C.Subbanna had purchased the suit schedule

property through a Court sale on 05.03.1940 in Miscellaneous

No.93/1939-40. The Trial Court also held that the plaintiffs

had purchased the suit schedule property from M.C.Subbanna

through a registered Sale Deed dated 26.06.1940 and they

had leased the suit property in favour of Swamiji of Suttur

Mutt and the vacant land in the suit schedule property was

being used a playground of the High School run by the said

Mutt.

19. The Trial Court also held that the plaintiffs had proved

that there was a misdescription of survey number as

"Sy.No.122" instead of "Sy.No.322" and the said mistake had

also crept in the proceedings in O.S.No.12/1935-36 and the

subsequent documents.

20. The Trial Court held that the 1st defendant had failed to

prove that he had purchased 28 guntas and 1 acre 20 guntas

in Sy.No.322/1 from the 2nd defendant under the Sale Deeds

dated 22.11.1979 and 23.11.1979 respectively.

21. The Trial Court accordingly decreed the suit and

declared that the plaintiffs were the owners of the suit

schedule property and restrained the defendants from

interfering with their possession.

22. This decree of declaration was accepted by the 2nd

defendant i.e., the vendor of the 1st defendant and only the

1st defendant preferred an appeal.

23. In appeal, the Appellate Court, on re-appreciation of

evidence, came to the conclusion that the plaintiffs had

proved that they were the owners of the suit schedule

property by virtue of the Sale Deed dated 26.06.1940 and

M.C.Subbanna had purchased the suit schedule property in a

Court auction. The Appellate Court also held that the plaintiffs

had proved that they were in lawful possession and

enjoyment of the suit schedule property and there was

interference by the defendants. The Appellate Court held that

the 1st defendant had failed to prove that he had purchased

the suit schedule land under two Sale Deeds dated

22.11.1979 and 23.11.1979 from the 2nd defendant. The

Appellate Court accordingly confirmed the decree of the Trial

Court and dismissed the regular appeal.

24. This second appeal was admitted to consider the

following substantial questions of law:

"(i) Whether the Courts below are justified in granting decree for declaration of title in favour of the Respondent/plaintiff in respect of suit schedule property bearing Sy.No.322 based on sale certificate issued by the District Court, Mysore, in O.S.12/35-36, though both the Mortgage Deed and the Decree passed by the Court based on such Mortgage Deed were in

respect of land bearing Sy.No.122 and not Sy.No.322 or 322/1?

(ii) Whether the Courts below were right in correcting the decree passed by the District Judge, Mysore, in O.S.12/35-36 about 65 years ago by holding that the property sold under the Sale Certificate was Sy.No.322 and not Sy.No.122?"

25. At the outset, the purpose of identifying a property in

law is required to be understood. The principal and

fundamental reason for providing a description of the

property while transferring an interest in it is essentially to

identify the property.

26. It is for this reason Section 21 of the Registration Act

makes it clear that no non-testamentary document relating to

immovable property shall be accepted for registration unless

it contains a description of such property sufficient to identify

the same.

27. Sub-section (2) of Section 21 of Registration Act goes

on to state that houses in town shall be described as situate

on the north or other side of the street or road to which they

front, and shall be described by their existing and former

occupancies, and by their numbers, if the houses in such

street or road are numbered.

28. Sub-section (3) of Section 21 of Registration Act states

that other houses and lands shall be described by their name

and as being in the territorial division in which they situate

and by their superficial contents, they abut and their existing

occupancies and also whenever it is practicable by reference

to a Government map or survey.

29. It is thus clear that the basic underlying intention

mandating the description of property while transferring it is

to fundamentally identify the property.

30. Similarly, even in respect of a suit which is filed relating

to an immovable property, Order VII Rule 3 of the Code of

Civil Procedure states that the plaint shall contain a

description of the property sufficient to identify it and in case

such property can be identified by boundaries or numbers in

a record of settlement or survey, the plaint shall specify such

boundaries or numbers. Thus, the intent behind Order VII

Rule 3 of Code of Civil Procedure is also to essentially identify

the property.

31. In law, if the property contains a number and is

referable to a survey, the same would have to be indicated.

However, the non-mentioning of or a wrong mentioning of a

number would not by itself lead to an inference that an

unidentifiable property is being transferred or that property

which has been wrongly described is referable to a completely

different property. If the description of the property on the

whole is adequate to identify the suit property, the mere

incorrect mentioning or the non-mentioning of a number,

whether it is a house number or a survey number, will not

lead to an inference that the property mentioned in the

document cannot be relatable without reference to the

number.

32. In other words, though the mentioning of the number

of a property while transferring it, is no doubt important and

would be beneficial to identify the property, the mere

misdescription of a number in the instrument of transfer

would not mean that the mis-described property was being

transferred or that property being transferred cannot be

identified at all. As to which property is being transferred will

have to be ascertained from the manner in which the

property has been identified in the instrument and the

surrounding circumstances behind the execution of the

document.

33. If for example, 'A' owns property bearing No.1 and

while transferring it, in the instrument of transfer, the

property is mentioned as property bearing No.11, that does

not mean that property No.11 was being transferred. In such

a case, the ownership of 'A' over property No.1 and his intent

in transferring it would be the determinative factor and not

just the number mentioned in the instrument of transfer.

34. It is in this background, it would have to be examined

as to what was the property that was the subject matter of

two mortgages, the final decree for sale and the sale

certificate issued pursuant to the said sale in the present

second appeal.

35. Both the Courts have recorded a finding that

Sy.No.322/1 had been mortgaged in favour of Sahukar

Chikkannadevaru under the Mortgage Deed dated 21.07.1923

vide Ex.P13.

36. It may be pertinent to state here that in 1923 itself,

under Ex.P.13, amongst several properties which were

mortgaged in favour of Sahukar Chikkannadevaru by Gulam

Mohammed @ Sahibjan, Sy.No.322 had also been

mortgaged. This establishes the fact that Sy.No.322 was

owned by Gulam Mohammed @ Sahibjan, father of the 2nd

defendant.

37. The boundaries in respect of Sy.No.322 were described

as follows:

"£ÀAd£ÀUÀÆqÀÄ mË£ï ¤Ã°Vj gÉÆÃqÀÄ §½¬ÄgÀĪÀzÀÄ ¥ÀƪÀðPÉÌ ¤Ã°Vj gÉÆÃqÀÄ, ¥À²ª Ñ ÀÄPÉÌ ZÀ£ÀߥÀà£À ºÉƯÁ zÀQt ë PÀÄÌ ZÀ£ÀߥÀà£À ºÉƯÁ GvÀg Û PÀ ÉÌ gÀ¸A ÉÛ iÀÄ ªÀÄzsÉå EgÀĪÀ ZÁªÀįÁ¥ÀÄgÀzÀ UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸Àªð É £ÀA§gÀÄ ªÀÄÆgÀ£ÀÆgÀ E¥ÀàvÉÛgq À PÀ ÀÆÌ «¹ÛÃtð ªÀÄÆgÀÄ JPÀgÉ K¼ÀÄ UÀÄAmÉ DPÁgÀ ªÀÄÆgÀÄ gÀÆ¥Á¬Ä AiÀÄAmÁuÁªÀżÀî d«ÄãÀÄ ªÀÄvÀÄÛ EzÀg° À è PÀnÖgÀĪÀ ¨sÁUÀ ¯É¸ÀºÀ ªÀÄvÀÄÛ £ÀAd£ÀUÆ À qÀÄ vÁ®ÆèPÀÄ aPÀÌAiÀÄå£À bÀvÀæzÀ ºÉÆç½ KZÀU½ À î UÁæªÀÄzÀ°ègÀĪÀÅzÀÄ £À£ÀUÉ ¦vÁæfðvÀªÁV §AzÀÄ £À£Àß ºÉ¸j À UÉ SÁvÉAiÀiÁV £À£Àß ¸Áé¢üãÁ£ÀĨsÀªz À ° À ègÄÀ ªÀÅzÀÄ."

38. It is also held by both the Courts that Gulam

Mohammed had mortgaged the very same property under

another registered Mortgage Deed dated 16.10.1927 and this

Mortgage Deed was executed in favour of M.C.Subbanna, son

of Sahukar Chikkannadevaru under Ex.P.26. The property

described in Ex.P.26 is as follows:

"£ÀAd£ÀUÀÆqÀÄ mË£ï ¤Ã®Vj gÉÆÃr£À §½¬ÄgÀĪÀÅzÀÄzÀ£ÀÄß ¸ÀéAiÀiÁfðvÀª À ÁzÀzÀÄÝ ¥ÀƪÀðPÉÌ ¤Ã®Vj gÉÆÃqÀÄ ¥À²ª Ñ ÄÀ PÉÌ ZÀ£ÀߥÀ£ à À ºÉƯÁ zÀQëtPÀÆÌ ZÀ£ÀߥÀà£À ºÉƯÁ GvÀg Û PÀ ÉÌ F ªÀÄzsåÉ EgÀĪÀ ZÁªÀįÁ¥ÀÄgÀzÀ UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸Àªð É £ÀA§gÀÄ MAzÀ£Æ À gÀÄ E¥ÀàvÛÉgÀqPÀ ÌÉ «¹ÛÃtð ªÀÄÆgÀÄ JPÀgÉ K¼ÀÄ UÀÄAmÉ DPÁgÀ ªÀÄÆgÀÄ gÀÆ¥Á¬ÄAiÀÄ AiÀÄAmÁuÁªÀżÀî d«ÄãÀÄ ªÀÄvÀÄÛ EzÀg° À è PÀnÖgÀĪÀ §AUÀ¯Éà ¸ÀºÀ £ÀAd£ÀUÀÆqÀÄ vÁ®ÆÌ aPÀÌAiÀÄå£À bÀvÀæzÀ ºÉÆç½ KZÀU½ À î UÁæªÀÄzÀ°è £À£ßÀ ºÉ¸ÀjUÉ SÁvÉAiÀiÁV £À£Àß ¸Áé¢üãÁ£ÀĨsª À z À À°ègÀĪÀÅzÀÆ."

39. As could be seen from the said registered Mortgage

Deeds, the boundaries described in respect of Sy.No.322 in

Ex.P.13 (Mortgage Deed dated 21.07.1923) and Sy.No.122 in

Ex.P.26 (Mortgage Deed dated 16.10.1927) are identical

including the extent of land. It is, therefore, obvious that

what was mortgaged was land bearing Sy.No.322, though it

had been described as Sy.No.122 in Ex.P.26.

40. It has also been recorded by both the Courts that in

view of the failure on the part of Gulam Mohammed to repay

the mortgage amount, M.C.Subbanna instituted a suit for

recovery of the mortgage amount in O.S.No.12/1935-36 and

a decree was also passed in his favour, as evidenced by

Ex.P.24 - preliminary decree for sale. It is also recorded by

both the Courts that a final decree for sale of the suit

schedule property mortgaged was passed in O.S.No.12/1935-

36 as evidenced by Ex.P.25 and the property ordered to be

sold was the land bearing Sy.No.122 measuring 3 acres 7

guntas, which has been described in Ex.P25 as follows:

"µÉqÀÆå®Ä: (1) £ÀAd£ÀUÀÆqÀÄ PÀ¸À¨Á ¤Ã®Vj gÉÆÃr£À°g è ÀĪÀÅzÀÄ ¥ÀƪÀðPÉÌ ¤Ã®Vj gÀ¸ÉÛ ¥À²ÑªÀÄPÉÌ ZÀ£ßÀ ¥Àà£À ºÉÆ® zÀQëtPÀÆÌ ¸ÀºÀ ZÀ£ÀߥÀà£À ºÉÆ® GvÀg Û PÀ ÉÌ gÀ¸,ÉÛ F ªÀÄzsåÉ EgÀĪÀ ZÁªÀįÁ¥ÀÄgÀzÀ UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸Àªð É £ÀA§gÀÄ 122PÉÌ «¹ÛÃtð 3 JPÀgÉ 7 UÀÄAmÉ DPÁgÀ 3-8-0 G¼Àî d«ÄãÀÄ ªÀÄvÀÄÛ EzÀgÀ°è PÀnÖgÄÀ ªÀ §AUÁè PÀlÖqÀ ¥ÀÆvÁð ¸ÀévÀÄ.Û "

41. Both the Courts have also recorded a finding that

pursuant to the final decree, the property was also sold and a

Sale Certificate - Ex.P.15 was issued in favour of

M.C.Subbanna. In Ex.P.15 - Sale Certificate, the property

sold has been described as follows:

"µÉqÀÆå®Ä: (1) £ÀAd£ÀUÀÆqÀÄ PÀ¸À¨Á ¤Ã®Vj gÉÆÃr£À°g è ÀĪÀÅzÀÄ.

¥ÀƪÀðPÉÌ ¤Ã®Vj gÀ¸ÉÛ, ¥À²ª Ñ ÄÀ PÉÌ ZÀ£ßÀ ¥Àà£À ºÉÆ®. zÀQt ë PÉÌ ¸ÀºÀ ZÀ£ÀߥÀà£À

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42. As could be seen from the description of the property in

all these documents, a property having the same boundaries

has been the subject matter of not only the two Mortgage

Deeds but also the Final Decree and the Sale Certificate.

43. It cannot thus be in doubt that the very same property

was mortgaged and sold. It, therefore, follows that

notwithstanding the fact that the land was described as

Sy.No.122 in the second Mortgage Deed, what was in fact

mortgaged was Sy.No.322.

44. This becomes vividly clear from the very first Mortgage

Deed dated 21.07.1923 that Gulam Mohammed created in

favour of Sahukar Chikkannadevaru where it is clearly

mentioned that Sy.No.322 was being mortgaged.

45. It is nobody's case that Gulam Mohammed in the

subsequent mortgage had mortgaged some property other

than Sy.No.322. A reading of both the Mortgage Deeds

makes it clear that Gulam Mohammed was essentially

mortgaging the same set of properties, firstly, in favour of

the father, Sahukar Chikkannadevaru and thereafter, his son

M.C.Subbanna. If the very same property was the subject

matter of both the mortgages and also the consequential

court sale, it also follows that the misdescription in the

second Mortgage Deed was essentially carried over not only

in the suit but also in the sale certificate. This would therefore

not lead to an inference that Sy.No.122 was sold and not

Sy.No.322.

46. It may be pertinent to state here that Gulam

Mohammed did not own Sy.No.122 at all. In order to

establish this fact, the plaintiffs produced the Index of Land in

respect of Sy.No.122 which measured only 37 guntas and

stood in the name of "Mysuru Co-operative Bank,

R.Damodaram Mudaliar son of Ramaswamy Mudaliar".

47. It is, therefore, clear that M.C.Subbanna had purchased

Sy.No.322, though the Sale Certificate did mention

Sy.No.122. Undoubtedly, M.C.Subbanna sold the property

that he had purchased in a Court sale in favour of the 2nd

plaintiff i.e., M.S.Revanna Devaru under the Sale Deed dated

26.06.1940.

48. It was also held by both the Courts that a portion of

Sy.No.322 was acquired by the State Government and an

award notice was issued to M.S.Revanna Devaru. The award

notice has been produced as Ex.P.22, which reads as follows:

"DUPLICATE CªÁqÀÄð £ÉÆÃnøï

¯ÁåAqï CQéfµÀ£ï D¦üù¤AzÁ K¼ÀAzÀÆgÀÄ vÁ®ÆèPÄÀ 107 ªÀiÁA§½î ºÉÆç½ ªÀiÁA§½î UÁæªÀÄzÀ°ègÀĪÀ ¸ÁºÀÄPÁgï dAiÀıÉÃRgÀ ¸Áé«ÄjUÉ w½AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ ¤ªÀÄä ¨Á§vÀÄ ZÁªÀįÁ¥ÀÄgÀ UÁæªÀÄzÀ ¸Àªð É

£ÀA.322/1 d«ÄãÀÄ-J 12 UÀÄA. «¹ÛÃtð G¼ÀîzÄÀ Ý CPÉéöÊgï DVgÀĪÀÅzÀPÁÌV F «¹ÛÃtðPÉÌ £ÀUÀzÄÀ ¥ÀjºÁgÀ CªÁqÀÄð ªÀiÁrgÀÄvÉ.Û ¤ÃªÀÅ F ¸ÀA§AzsÀªÁV ¤ªÀÄä°ègÀ§ºÀÄzÁzÀ zÁR¯ÁwUÀ¼ÉÆqÀ£É vÁ|| ........ 194 £Éà ¢« 11 WÀAmÉUÉ 8/2/51 ªÉÆPÁÌAUÉ £ÀªÄÀ ä gÀÆ§Ä gÀÆ§Ä ºÁdgÁV CªÁqÀÄð ªÉƧ®UÀÄ AiÀiÁ ZÉPÄÀ Ì ¥ÀqÉAiÀÄvÀPÌÀ zÀÄÝ. vÀ¦àz° À è CªÁqÀð ªÉƧ®UÀÄ gÉ«£ÀÆå r¥ÁfnÖ£° À q è ¯ À ÁUÀÄvÉÛ. EzÀPÉÌ §rØ zÉÆgÉAiÀįÁgÀzÄÀ ."

49. This award notice would also establish that what was

purchased by M.C.Subbanna @ Jayashekara Swamy and sold

to M.S.Revanna Devaru was Sy.No.322/1. Thus, the finding

of fact recorded by both the Courts that Sy.No.322/1 had

been mortgaged by Gulam Mohammed and was subsequently

sold to M.C.Subbanna through a Court sale which was in turn

purchased by the 2nd plaintiff - M.S.Revanna Devaru is

unexceptionable.

50. It may also be pertinent to state here that during the

course of cross-examination, as noticed by the Trial Court,

the 1st defendant admitted that the suit schedule property

was being used as a playground by the School and the

running of the School in the building situated in Sy.No.322/1

was not disputed. This finding also goes to establish that the

plaintiffs were in possession and enjoyment of the suit

schedule property including the building comprised in it. The

leasing of the property in favour of the school also stood

established by the rent receipts/vouchers (Exs.P1, P2, P4)

which were of the year 1977-80 that is nearly 10 to 12 years

prior to the filing of the suit.

51. Smt.Deepashree, learned counsel for the appellant - 1st

defendant, however, contended that both the Courts were not

justified in granting a declaration without there being a plea

for rectification of the Sale Certificate or the subsequent Sale

Deed in favour of the 2nd plaintiff - M.S.Revanna Devaru.

She placed reliance on the provisions of Section 26 of the

Specific Relief Act to support her argument.

52. Sri D.R.Rajashekharappa, learned counsel for the

respondents/plaintiffs, on the other hand, contended that

without seeking for a relief of declaration, if a party is able to

prove his title to the suit property, it was permissible in law

for a Civil Court to pass a decree declaring the title of the

plaintiff to the suit property as claimed in the plaint. He

placed reliance on the judgment of this Court in the case of

TIBBA BOYI @ KARIYA & OTHERS Vs. K.VENKATAPPA -

(1987) 2 Kant LJ 379.

53. He also placed reliance on the judgment of the Apex

Court in the case of SHEODHYAN SINGH & OTHERS Vs.

Mst.SANICHARA KUER & OTHERS - AIR 1963 SC 1879,

wherein it has been 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."

54. In the judgment rendered by this Court in the case of

Tibba Boyi referred to supra, it has been held as follows:

"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 S. 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."

55. In the light of the enunciation of law by the Apex Court

and by this Court, it will have to be held that the mere

mentioning of a wrong survey number in the Sale Certificate

would only be a misdescription of the property which would

not have the effect of divesting title in favour of

M.C.Subbanna and the consequential conveyance in favour of

M.S.Revanna Devaru.

56. Thus, notwithstanding the description of the suit

property as Sy.No.122 in the Sale Certificate, by virtue of the

fact that the boundaries of the suit property tallied in all the

documents it will have to be held that Sy.No.322 was the

subject matter of the sale certificate. The Courts below while

exercising their undoubted jurisdiction to grant a declaratory

decree possessed the jurisdiction to declare title of the

plaintiffs without having to rectify the error in the sale

certificate as enunciated in the said decisions.

57. At the cost of repetition, it is to be reiterated that in the

very first mortgage, the property mortgaged was stated as

Sy.No.322 and since at the very genesis of all the

transactions, admittedly, Sy.No.322 was mentioned as being

mortgaged, the subsequent transactions including the court

sale arising out of the said mortgage will have to be

considered as relating to Sy.No.322 and not Sy.No.122. As a

further and necessary consequence, it will have to be held

that what was purchased by M.C.Subbanna was Sy.No.322

and not Sy.No.122 in the court sale conducted pursuant to

the final decree passed in the suit for foreclosure and sale of

the mortgaged property.

58. The misdescription in the Sale Certificate which was

carried over in the Sale Deed executed in favour of the 2nd

plaintiff - M.S.Revanna Devaru would also have to be

construed as an instrument where Sy.No.322/1 has been

conveyed and not Sy.No.122.

59. Having regard to the fact that both the Courts have

concurrently identified the suit schedule property by its

boundaries and have related it to Sy.No.322, it would have to

be held that the Courts had merely identified the property

and had not corrected the decree passed by the District Judge

in O.S.No.12/1935-36 or the Sale Certificate issued pursuant

to the decree passed in the said proceedings.

60. Consequently, both the Courts were justified in granting

a decree for declaration of title in favour of the plaintiffs as

prayed for notwithstanding the fact that the Sale Certificate

mentioned the land bearing Sy.No.122.

61. The substantial questions of law are accordingly

answered in favour of the plaintiffs/respondents. The second

appeal is accordingly dismissed.

Sd/-

JUDGE

PKS