Karnataka High Court

Basappa S/O. Shivaputrappa ... vs Iravva W/O Ningappa Belligatti on 13 June, 2022

Bench: E.S.Indireshpresided Byesij

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

           DATED THIS THE 13TH DAY OF JUNE, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR SECOND APPEAL NO.100292 OF 2017

BETWEEN:

BASAPPA S/O. SHIVAPUTRAPPA DEVATAGI
AGE ABOUT 62 YEARS,
OCC:AGRICULTURE
R/O:UPPINBETAGERI VILLAGE
TQ and DIST:DHARWAD-581206
                                              ...APPELLANT

(BY SRI PRASHANT S HOSMANI, ADVOCATE)

AND:

1.   IRAVVA W/O NINGAPPA BELLIGATTI
     AGE ABOUT 69 YEARS,
     OCC:HOUSEHOLD WORK
     R/O:UPPINBETAGERI VILLAGE
     TQ and DIST:DHARWAD-581206

2.   SANJAY S/O NINGAPPA BELLIGATTI
     AGE ABOUT 35 YEARS,
     OCC:BUSINESS
     R/O:UPPINBETAGERI VILLAGE
     TQ and DIST:DHARWAD-581206

3.   BASAVARAJ S/O NINGAPPA BELLIGATTI
     AGE ABOUT 32 YEARS,
                                   2




     OCC:BUSINESS
     R/O:UPPINBETAGERI VILLAGE
     TQ and DIST:DHARWAD-581206

                                               ...RESPONDENTS

(BY SMT SUMANGALA A.CHAKALABBI, ADVOCATE)

     THIS REGULAR SECOND APPEAL FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
AND DECREE DATED 10.01.2017 PASSED IN RA NO.175/2013
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE, DHARWAD, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
01.10.2013 PASSED IN OS NO.705 OF 2010 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, DHARWAD, DECREEING THE SUIT FILED FOR
DECLARATION AND POSSESSION.

     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is filed by the defendant challenging the

judgment and decree dated 10.01.2017 passed in RA.No.175 of

2013 on the file of the I Additional Senior Civil Judge and CJM,

Dharwad, dismissing the appeal and confirming the judgment

and decree dated 01.10.2013 passed in OS.No.705 of 2010 on

the file of the II Additional Civil Judge and JMFC, Dharward,

decreeing the suit of the plaintiffs.

2. For the sake of convenience, the parties to this

appeal shall be referred to in terms of their status and ranking

before the trial Court.

3. The plaint averments are that the plaintiff No.1, is

the wife and plaintiff Nos.2 and 3 are the children of late

Ningappa, who died on 09.07.1995. It is the case of the plaintiff

that the plaintiffs are the owners of the suit schedule properties

and the said Ningappa had entered into Agreement of Sale with

the defendant during 1983 in respect of the suit schedule

properties, agreeing to sell the suit schedule property for total

consideration of Rs.30,000/- and received Rs.10,000/- as an

advance from the defendant and thereby the said Ningappa

handed over the possession of the suit schedule property to the

defendant with certain terms and conditions. It is further averred

in the plaint that, said agreement was not converted into a

registered Sale Deed and therefore, it is the case of the plaintiffs

that the said Agreement of Sale has become null and void and

therefore, the plaintiffs have filed suit seeking relief of

declaration that the plaintiffs are entitled for possession of the

suit schedule property as a Agreement of Sale executed in the

year 1983 is not binding on the plaintiffs.

4. After service of summons, the defendant entered

appearance and filed detailed written statement denying the

averments made in the plaint. It is the specific case of the

defendant that he disputes the alleged Agreement of Sale as

contended in the plaint and further stated that the property was

belonging to one Badiger and the said Badiger family, left the

place and thereafter, the defendant constructed the house in the

said property in the year 1975, and got electric connection and

developed the property and thereby, he become owner of the

property by way of adverse possession.

5. On the basis of the rival pleadings, the trial Court

has formulated issues for its consideration.

6. In order to establish their case, plaintiff No.2

examined himself as PW1 and got marked 10 documents as

Exs.P1 to P10. On the other hand, defendant examined three

witnesses as DW1 to DW3 and produced 12 documents as

Exs.D1 to D12.

7. The trial Court, after considering the material on

record, by its judgment and decree dated 01.10.2013 decreed

the suit in part holding that the plaintiffs are entitled for vacant

possession of the suit schedule property and thereby directed

the defendants to handover the possession of the suit schedule

property to the plaintiffs and being aggrieved by the same, the

defendant has preferred Regular Appeal in RA.No.175 of 2013 on

the file of First Appellate Court. The said appeal was resisted by

the plaintiffs. The First Appellate Court, after re-appreciating the

facts on record, by its judgment and decree dated 10.01.2017

dismissed the appeal and confirmed the judgment and decree

passed by the trial Court in OS.No.705 of 2010.

8. Being aggrieved by the same, the defendant has

preferred this Regular Second Appeal under Section 100 of CPC.

This court by order dated 27.04.2018 has formulated the

following substantial questions of law.

1) Whether the trial Court and the First Appellate Court have committed any serious legal error in decreeing the suit of the plaintiffs (respondents herein) in the absence of any declaration of the title and production of the documents of the title before the Court ?

2) Whether the trial Court and the First Appellate Court have committed any serious legal error in ordering for recovery of possession of the property without properly considering nature and right of the respondents over the suit schedule property ?

9. I have heard Sri Prashanth S Hosmani, learned

counsel for the appellant and Smt Sumanala A Chakalabbi,

learned counsel appearing for the respondents.

10. Sri Prashanth S.Hosamani, learned counsel for the

appellant argued that the relief claimed by the plaintiffs is for

declaration and possession without producing the title deeds and

further the plaintiffs had taken the contention that the husband

of the plaintiff No.1-Ningappa, had executed the Sale Agreement

with the defendant, however, nothing has been produced before

the trial Court to establish the right of the plaintiffs over the suit

schedule property nor the Agreement of Sale. Therefore, the trial

Court ought to have dismissed the suit of the plaintiffs.

Accordingly, he sought for interference of this court.

11. Smt Sumangala A.Chaklabbi, learned counsel for the

respondent submits that the defendant has admitted the

ownership of the plaintiffs and further she contended that, as

both the courts below have concurrently held that the plaintiffs

have proved their title in respect of suit schedule property and

therefore, no interference is called for in this appeal.

12. Heard the learned counsel appearing for both the

parties and perused the material on records. Perusal of the plaint

averments would indicate that the entire case of the plaintiffs

revolves around the fact that, the suit schedule properties,

originally belonging to Ningappa-husband of plaintiff No.1, and

the said Ningappa had entered into Agreement of Sale with the

defendant. In the regard, I have carefully examined the

pleadings on record which would substantiate the fact that the

plaintiffs have not stated about the date on which the agreement

was executed nor produced relevant documents to establish the

right over the suit schedule property. Though the entire case

revolves around Agreement of Sale as culled out in the plaint

and evidence, on the appreciation of the evidence of PW1,

wherein the PW1 deposed as follows:

"£À£Àß ¥Àw ªÀÄvÀÄÛ ¥Àwæ ªÁ¢AiÀÄ £ÀqÀÄªÉ AiÀiÁªÀÅzÉÃ Rj¢ ªÀåªÀºÁgÀ DV®è. Rj¢ JA§ «µÀAiÀÄ ¸ÀÄ¼ÀÄî EgÀÄvÀÛzÉ JAzÀÄ ¸ÁQëAiÀÄÄ £ÀÄrAiÀÄÄvÁÛg.É "

13. Perusal of the evidence of the plaintiff would indicate

that husband of PW1-Ningappa was working as Manager in Bank,

and PW1 deposed that she was not aware about the owner of

the property in question. Perusal of evidence of PW1 would

further indicate that, except PW1, no independent witnesses

were examined to prove that the suit schedule property is

belonging to late Ningappa and thereafter, the plaintiffs got

succeeded into estate of said Ningappa in respect of suit

schedule property. In this regard, no title deeds were produced

by the plaintiffs and having taken note of the pleadings in the

plaint, it is relevant to extract the object of Order VI Rule 1 and

2 of CPC in the case of Janatha Dal Party, Bangalore vs. The

Indian National Congress and others reported ILR 2014 KAR

4726 at paragraph 41 to 43, 61:

"LAW ON PLEADINGS:

41. Order 6 Rule 1 of the Code of Civil Procedure 1908, defines what the pleading means. Pleadings shall mean plaint or written statement. Order 6 Rule 2 of CPC states what the pleadings should contain. Every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Therefore pleading must state facts and not law. It must state material facts and material facts only. It must state only the facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved. The material facts on which the party pleading relies for his claim or defence are called facta probanda. The evidence or the facts by means of which they are to be proved are called facta probantia. Every pleading should contain only facta porbanda, and not facta probantia. The distinction is taken in the very rule itself between the facts on which the party relies and the evidence to prove those facts.

42. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. Provisions relating to pleadings are meant to give each side intimation of the case of the other so that it may be met, to enable the court to determine what is the real issue between parties and to prevent deviation from the course which litigation, on particular of causes of action, must take. It is to ensure that the litigants came to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. To ensure that each side is fully alive to the question that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the Court for its consideration. In order to have a fair trial it is imperative that the party should state the essential

material facts so that other party may not be taken by surprise.

43. When the facts necessary to make out a particular claim, or to seek particular relief, are not found in the plaint, the Court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. The general rule, is that the relief should be founded on pleadings made by the parties. It is equally well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.

61. It is plain and well-settled that in order to claim a decree for declaration of title and for recovery of possession in the civil suit, the plaintiff had to essentially plead necessary facts so that the defendant could meet that case in the written statement and the parties could adduce evidence on such claims. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by oral evidence. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. In so far as documents are concerned, Section 61 of the Evidence Act, mandates that the contents of the document may be proved either by primary or secondary evidence. Primary evidence means, documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., the document itself."

14. It is also argued by the learned counsel appearing

for the respondent Smt Sumangala A.Chakalabbi, that Ex.P10

would establishes the ownership of the plaintiffs. However, the

said arguments cannot be accepted as the same is the revenue

document and it is well established principle of law that the

revenue documents do not confer title to the parties. That being

so, it is very strange how both the courts below granted and

affirmed the fact that the plaintiffs are the owners in possession

of the suit schedule property.

15. In this regard, the declaration of law by the Hon'ble

Apex Court in the case of S.Subramanian vs.S.Ramaswamy

etc., reported in AIR 2019 SC 3056 while observing that

question of law cannot be considered to be as substantial

question of law at paragraph 8.02 of the judgment has held as

under:

8.2 Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the

CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

16. The Hon'ble Apex Court in the case of Haryana

State and others vs. Gram Panchayat Village Kalehri

reported in 2016(6) SCALE 157, at paragraph 15 has held as

under:

"15. As a matter of fact, having regard to the nature of controversy and keeping in view the issues involved, such as the issue regarding ownership rights coupled with the issue regarding proper interpretation of documents (exhibits) to prove the ownership rights over the suit land, we are of the view that these issues do constitute substantial questions of law, viz., whether the Courts below were justified in properly interpreting the documents/exhibits relied upon by the parties for determining the ownership rights over the suit land? In other words, we are of the view that where the Court is required to properly interpret the nature of the documents, it does not involve any issue of fact as such but it only involves legal issue based on admitted documents. It is, therefore, obligatory upon the High Court to decide the legality and correctness of such findings as to which party's documents are to be preferred for conferring title over the suit land. In this case, the High Court could do so only when it had first admitted the appeal and framed substantial questions of law as required under Section 100 of the Code.

17. The Hon'ble Apex Court in the case of Ishwar Dass

Jain (dead) through Lrs., Vs.Sohan Lal (Dead) by Lrs.,

reported in 2000(1) SCC 434 has held that, even if there is a

concurrent finding of fact by the courts below, the findings be

interfered with by the High Court under Section 100 of Code of

Civil Procedure, if the Courts below have omitted to consider the

vital evidence which could have law declared by the to a

different conclusion or when inadmissible evidence was relied

upon which resulted in arriving at a different conclusion. The

observation made by he Hon'ble Apex Court reads as follows:

"Under section 100 CPC, after the 1976 amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so.

There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would, have led to an opposite conclusion. The second situation in which interference with finding of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of above situations, a substantial question of law can arise."

18. On careful examination of the impugned judgment

and decree passed by the Courts below and on appreciation of

evidence by the trial Court with regard to the issues framed in

the suit is totally absurd and not supported by cogent materials

or documents. That part, the First Appellate Court has not

properly re-appreciated the material on record, following law

declared by the Hon'ble Apex Court in the case of Santhosh

Hazari vs.Purushottam Tiwari reported in AIR 2001 SC 965

with regard to Order 41 Rule 31 of Code of Civil Procedure.

19. Therefore, I am of the opinion that that the

defendants have made out a case for interference with regard to

factual finding recorded by the both the courts below as the