Sri K A Hafiz Khan vs Smt Sadamma
2022 Latest Caselaw 5836 Kant

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 31ST DAY OF MARCH, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.F.A NO. 425 OF 2007(INJ)

BETWEEN:

SRI K A HAFIZ KHAN
S/O LATE AZIZ KHAN
AGED 45 YEARS
R/A TANK ROAD, II CROSS,
K.R.PURAM, BANGALORE-560036

                                               ...APPELLANT

(BY SRI.T SESHAGIRI RAO, ADVOCATE)

AND:

SMT SADAMMA
W/O LATE GURUMURTHAPPA
AGED MAJOR
R/A SITE NO.127, A.K. COLONY,
TANK ROAD, I CROSS, K.R.PURAM
BANGALORE-560036
                                              ...RESPONDENT
(BY SRI.MARILINGE GOWDA, ADVOCATE)

     THIS RFA IS FILED U/O 41 RULE 1 OF CPC AGAINST THE
JUDGEMENT    AND    DECREE    DT.21.10.2006 PASSED     IN
OS.NO.2517/1989 ON THE FILE OF THE V ADDL.CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
                                 2


    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.03.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned regular first appeal is filed by unsuccessful

plaintiff who has questioned the judgment and decree dated

21.10.2006 passed in O.S.No.2617/1989 wherein the suit filed

for relief of declaration and injunction is dismissed.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

(a)The subject-matter of the suit is a vacant site bearing

assessment No.127/1 situated within the jurisdiction of ITI

Notified Area Committee, Krishnarajapuram, A.K. Colony, Tank

Road, 1st Cross, K.R. Puram, Bengaluru-560 036. The plaintiff

is asserting right and title over the suit schedule property. He

claims that the suit schedule property is a vacant site and the

same is purchased by his father from one Bajisab S/o Kasim

Saheb as per registered sale deed 22.5.1958. The plaintiff has

further contended that the erstwhile owner purchased the site

from one Chikkaramaiah S/o Thoti Erappa under the

registered sale deed dated 5.8.1957. The plaintiff has

specifically contended that at the time of purchase by his

father, the suit site was bearing House List No.138 in the year

1958. The plaintiff has further specifically pleaded that the

suit site after inclusion within the limits of Krishnarajapura

Village panchayath, was assigned Katha No.181/1 with

corresponding New House List No.270/1.

(b)At para 2(a) of the plaint, the plaintiff has also

narrated the flow of title. The plaintiff claims that one

Chikkaramaiah, purchased the suit schedule property and

other adjoining properties from its previous owners namely

Nandi Muniswamy and Chikka Annaiah under registered sale

deed dated 9.11.1956 whereas Bajisab who is the predecessor

in title purchased the same from one Chikkaramaiah under

registered sale deed dated 5.8.1957 and the plaintiff's father

purchased from the said Baji sab under the registered sale

deed dated 22.5.1958. The plaintiff claims that the original

owners Nandi Muniswamy and Chikka Annaiah have executed

a rectification deed dated 6.9.1962.

(c)The plaintiff has further contended that the

defendant's property bearing site No.127 is situated on the

eastern side of the suit property. Plaintiff claims to be in

exclusive possession and enjoyment over the suit site and

intends to put up construction in his property. Plaintiff alleges

that the defendant tried to tress pass over the suit site and

therefore, he made arrangements to fence the suit schedule

property by a barbed wire. At this juncture, the defendant

obstructed and therefore, the plaintiff was compelled to file a

bare suit for injunction. Later it appears the plaintiff sought

amendment of the plaint after remand by this Court by

seeking the relief of declaration.

(d) The defendant has stoutly denied the acquisition of

title in favour of plaintiff's father. The defendant has

specifically contended that the sale deed does not confer any

right and title or interest in favour of plaintiff's father. The

defendant has also contended that it is the defendant who is in

exclusive possession of the site bearing No.127 and the entire

vacant land measures East-West 115 ft. and North-South 65

ft. and the property owned by the defendant was assigned

Katha No.181 with corresponding House List No.270 and after

inclusion of the property owned by the defendant in the ITI

Notified Area Committee, the property owned by the

defendant is assigned assessment No.127. The defendant also

contended that to the east of defendant's property, the

property bearing Site No.126 is situated which is owned by

K.T. Venkatappa and to east of this property, the property

owned by one Chikkaramaiah is situated which bears site

No.125. It is in this background, the defendant contended

that plaintiff by creating fictitious site No. 127/1 which is not

at all in existence is illegally laying a claim over defendant's

property and with the aid of rowdy and anti social elements

has threatened to dispossess the defendant from the suit site

No.127. At para 9 of the written statement the defendant has

specifically contended that there is no site bearing No.127/1

and even if it exists, it is not in existence in the boundaries as

shown in the schedule.

(e)Based on pleadings, the Trial Court has framed the

following issues:

"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

2. Whether the plaintiff proves interference by the defendant in regard to enjoyment of the property?

3. Whether the defendant proves that the plaintiffs claim over Gramathana is not a lawful possession?

4. What order or decree ?

Addl.Issues:

1. Whether the plaintiff proves his title to the suit schedule property?

2. Whether the plaintiff is entitled to the relief of declaration ?

3. Whether in the alternative, the plaintiff is entitled for possession of the suit schedule property from the defendant?"

(f)The plaintiff to substantiate his claim has examined

himself as PW1 and one independent witness as PW.2 and has

adduced documentary evidence vide Exs.P1 to 37. The

defendants in support of her contention examined three

witnesses as D.Ws.1 to 3 and relied on documentary evidence

vide Exs.D1 to 44.

(g)The Trial Court having assessed the oral and

documentary evidence has answered additional issue No.1 in

the negative by holding that the plaintiff has failed to prove

his title over the suit schedule property and consequently, held

that the additional issues 2 and 3 does not survive for

consideration. While answering Issue No.1 in the negative,

the Trial Court has also recorded a finding that the plaintiff has

failed to prove his lawful possession and enjoyment over the

suit schedule property.

(h)The Trial Court having examined the rebuttal evidence

led by the defendant has also taken note of the

Commissioner's sketch and report marked as Exs.C1 to C3.

Referring to the Commissioner's sketch and report marked as

documentary evidence, the Trial Court has come to the

conclusion that the boundary and measurement of the suit

property bearing No.127/1 do not tally with the boundaries as

mentioned in Ex.P1 which is the sale deed executed by one

Baji Sab in favour of plaintiff's father. The Trial Court has

also taken note of the fact that the Commissioner's report

does not speak about the existence of plaintiff's property. On

these set of reasoning, the Trial Court has come to the

conclusion that the plaintiff has failed to prove the existence of

the suit schedule property as claimed and therefore, has

proceeded to dismiss the suit.

(i)Feeling aggrieved by the said judgment and decree of

the trial Court, the plaintiff has preferred the present appeal.

4. Learned counsel appearing for the plaintiff would

vehemently argue and contend before this Court that plaintiff

by producing the title documents as per Exs.P1 to P2 coupled

with Ex.P20 which is the registered sale deed obtained by

Chikkaramaiah on 9.11.1956 has established his title. He

would contend that the property purchased by the plaintiff's

father way back in 1958 was bearing House list No.138 and

subsequently, on an application submitted by the plaintiff's

father, the Panchayath has assigned new katha number with

corresponding new house list No.127/1. Placing reliance on

Ex.P21, learned counsel appearing for the plaintiff would

contend that suit schedule property which was earlier bearing

House List No.138 was assigned a new Katha No.181/1 with

corresponding new House list No.127/1. To corroborate new

property number, learned counsel has placed reliance on

Ex.P21 coupled with Ex.P5, P8. Thereafter placing reliance on

Ex.P16, the learned counsel would contend that after inclusion

of the suit site under the notified ITI Notified Area Committee,

Krishnarajapuram, a new assessment Number 127/1 was

assigned and therefore, he would contend that this clinching

evidence adduced by plaintiff would clearly establish his title

and therefore, would request this Court to reverse the findings

of the Trial Court. He would seriously object to the

Commissioner's report and contend that the Commissioner's

report is contrary to the memo of instructions submitted by

the respective parties. He would further submit that the

Commissioner's report is not the conclusive evidence and

therefore, he would contend that learned Judge erred in

placing reliance on Commissioner's report which does not

reflect the factual matrix. On these set of grounds, he would

submit to this Court that the judgment of the Trial Court is not

sustainable.

To buttress his arguments, he has placed reliance on

following judgments:

(i)Nagubai Ammal and others .vs. B. Shama Rao and others [AIR 1956 SC 593]

(ii)Ambika Prasad Thakur and others etc. .vs. Ram Ekbal Rai(dead) by his legal representatives and others.

5. Per contra, the learned counsel for the defendant

would however contend that the clinching rebuttal evidence on

record would dislodge the entire case of the plaintiff. He would

contend that the clinching rebuttal evidence on record vide

Ex.D5, D10, D3, D16, D42 and D43 would clearly establish

that plaintiff by giving fictitious boundaries is virtually claiming

defendant's property bearing site No.127. Taking this Court to

para 3 of the plaint he would contend that the plaintiff has

admitted the ownership of the defendant over the site bearing

No.127. He would then place reliance on Ex.D5 and would

contend that way back in 1958-59, property stood in the name

of the first husband of the defendant and the property was

assigned Katha No.181 with corresponding House List No.270.

He would also contend that Ex.D10 which is the registered sale

deed executed in favour of N. Gurumurthy also clearly

indicates that in site No.127 there was already existing

residential house. Placing reliance on Ex.D16 he would

contend that site No.127 was acquired and compensation was

paid to defendant.

He would place heavy reliance on Exs.D42 and 43 and

specifically contend that the Chikkaramaiah's property is

assigned Site No.125. The counsel further contended that

plaintiff has admitted in cross-examination that the plaintiff

has purchased the property from Chikkaramaiah and

therefore, he would contend that if plaintiff's property is

situated towards eastern site of K.T. Venkatappa's property,

the plaintiff cannot assert and claim defendant's property

which is situated towards the western side of K.T.

Venkatappa's property. On these set of grounds, he would

request this Court to dismiss the appeal as the same is devoid

of merits.

6. Heard the learned counsel for plaintiff and

defendant. I have given my anxious consideration to the Trial

Court records.

7. The following points would arise for consideration:

(1)Whether the Trial Court erred in holding that the plaintiff has failed to prove his title over the suit schedule property?

(2)Whether the Trial Court erred in holding that plaintiff by asserting that he is the owner

of property bearing No.127/1 is virtually claiming the property of the defendant bearing site No.127?"

8. Before I advert to the facts of the case, it would be

useful to cull out the sketch to understand the actual lis

between the parties.

9. Regarding Points 1 and 2 :

9(a)Plaintiff is claiming ownership over the property

bearing Site No.127/1(old No.270/1). It is the specific case of

the plaintiff that his father purchased vacant site bearing

House List No.138 measuring 40x48 ft. under registered sale

deed dated 22.5.1958 as per Ex.P2. It is the specific case of

the plaintiff that his father has purchased a portion of the

property from Chikkaramaiah. The schedule annexed to the

registered sale deed dated 22.5.1958 would be relevant to

decide the controversy between the parties. The same is

extracted as under:

"¨ÉAUÀ¼ÀÆgÀÄ ¸Ëvï vÁ®ÆèPÀÄ, PÀȵÀÚgÁd¥ÀÄgÀzÀ PÀ¸À¨ÁzÀ UÁæªÀÄzÀ°ègÄÀ ªÀ ºË¸ÀİøÀÄÖ £ÀA§gÀÄ MAzÀÄ £ÀÆgÀÄ ªÀÄƪÀvÉÛAl£Éà £ÀA§gÀÄ ¥ÀÆgÁ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢:

¥ÀƪÀðPÉÌ : ¤AUÀ£À SÁ° eÁUÀ ¥À²ÑªÀÄPÉÌ : PÁ®ÄªÉ ªÀÄvÀÄÛ ªÀÄÄzÀÝ §¸À¥Àà£À ºÉÆ® ªÀÅvÀÛgÀPÉÌ : ªÀÄÄzÀÝ §¸À¥Àà£À SÁ° eÁUÀ ªÀivÀÄÛ ±ÀA§ÄUÀ£À ªÀoÁgÀ ªÀÄvÀÄÛ ¸ÀgÁÌj zÁj.

zÀQëtPÉÌ : PÁ®ÄªÉ ªÀÄvÀÄÛ ªÀÄÄzÀÝ §¸À¥Àà£À ºÉÆ®

F ªÀÄzsÉå EgÀĪÀ ¥ÀÆgÁ ¸ÀéwÛ£À°è ¤ªÀÄUÉ PÀæAiÀĪÀiÁr

¥À²ÑªÀÄzÀ PÀqÉUÉ EgÀĪÀ ¸ÀéwÛUÉ ZÀPÀÄ̧A¢:-

¥ÀƪÀðPÉÌ : £Á£ÀÄ G½¹ PÉÆArgÀĪÀ d«ÄãÀÄ ¥À²ÑªÀÄPÉÌ : ªÀÄÄzÀݧ¸À¥Àà£ÀªÀgÀ d«ÄãÀÄ GvÀÛgÀPÉÌ : ªÀÄÄzÀݧ¸À¥Àà£À d«ÄãÀÄ zÀQëtPÉÌ : ªÀÄÄzÀÝ §¸À¥Àà£À d«ÄãÀÄ

F ªÀÄzsÉå EgÀĪÀ ¥ÀƪÀð ¥À²ÑªÀÄ £À®ªÀvÉÛAlÄ CrUÀ¼ÀÄ GvÀÛgÀ zÀQët £À®ªÀvÀÄÛ CrUÀ¼ÀÄ C®vɪÀżÀî ¸ÀévÀÄÛ¬ÄgÀ PÀæAiÀÄPÉÌ ¸ÉÃjgÀÄvÉÛ. (48 * 40)"

In the said schedule, the eastern boundary would be relevant.

The erstwhile owner Chikkaramaiah retaining the eastern

portion has sold the western portion in favour of the plaintiff's

father. Now, if the sketch produced by the Commissioner as

per Ex.C-2 is examined, this Court would find that the

property owned by Chikkaramaiah is bearing House List

No.125 and to the west of the Chikkaramaiah's property,

property owned by one K.T. Venkatappa's property bearing

No. 126 is situated and to the west of property bearing No.126

the present suit property bearing No.127 is situated.

9(b)Now let me examine the ocular evidence of plaintiff

who is cross-examined on 4.9.1996. The relevant portion of

the cross-examination is culled out as under:

"I know Gurumurthappa. I do not know Gurumurthappa is not the husband of the defendant. It is true to suggest that there is no government land on the eastern side of the land of Gurumurthappa. On the eastern side of the land of Gurumurthappa, there is the property of K.T.Venkatappa. Beyond the property of K.T.Venkatappa, there is the property of Chikkaramaiah. We have purchased the property from Chikkaramaiah but, not the property which is situated beyond the property of K.T.Venkatappa. It is not correct to suggest that I was not aware of the property belonging to us during the life time of my father. I do not know if the defendant Sadamma is the wife of Gurumurthappa. It is true the defendant Sadamma is residing in the house situated on the west of K.T.Venkatappa's property."

9(c)The above culled out portion of cross-examination of

plaintiff contradicts the claim of the plaintiff and in fact,

supports the defence set up by the defendant. If this cross-

examination coupled with the Commissioner's report is taken

into consideration, then the portion which was purchased by

the plaintiff's father is clearly situated on the extreme eastern

side. In between the property purchased by the plaintiff and

the defendant's property, property owned by one K.T.

Venkatappa is located. Therefore, what can be gathered from

this clinching evidence is that plaintiff cannot lay a claim over

suit site No.127 which is in fact situated on the extreme

western side. The property purchased by the plaintiff's father

bearing House list No.138 has to be part and parcel of suit site

No.125. Therefore, though plaintiff has placed evidence

indicating that House list No.138 was issued with Katha

No.181/1 and house list No.270/1 and to substantiate his case

has placed reliance on Ex.P21 which is an endorsement issued

by the Krishnarajapura Grama Panchayath intimating the

plaintiff that his property is assigned new Katha No.181/1 with

corresponding House list No.270/1, the said document coupled

with title document placed by plaintiff as per Ex.P2 does not

establish plaintiff's title over the suit schedule property. The

western boundary mentioned in the scheduled annexed to the

plaint is factually incorrect. The clinching rebuttal evidence

clearly indicates that on the western side, the property bearing

No.126 owned by one K.T. Venkatappa is situated. Therefore,

though plaintiff asserts and claim title over property bearing

No.127/1, but under the garb of asserting title over suit

schedule property, plaintiff has virtually made an attempt of

making a false claim in respect of property bearing No.127,

which is owned by defendant and this fact is admitted by

plaintiff in cross-examination which is culled out in the

preceding paragraph. At Para 3 of the plaint, the plaintiff

claims that site No.127 is situated on the eastern side of the

suit schedule property. This contention is also contrary to the

boundaries mentioned in Ex.P2 wherein the erstwhile owner

has said that he has retained eastern portion. Therefore, the

plaintiff's contention that property owned by defendant

bearing Site No.127 is situated towards eastern side of the

plaintiff's property is actually incorrect and contrary to his own

title documents.

9(d)The plaintiff at Para 3 has also admitted in

unequivocal terms that site No.127 is standing in the name of

One Gurumurthappa and that defendant-Mrs. Saddamma is

residing in the adjacent Site No.127 in a small Mangalore Tiled

roof shed. At para 3 of the plaint, plaintiff has admitted the

title and possession of defendant over site No.127 in

unequivocal terms. Same is culled out as under:

"3. It is submitted that suit site measuring north to south 40ft. and east to west 40 ft. To the east of the suit site No.127 is there. This site No.127 is in the name of one Gurumurthappa. The defendant Mrs. Sadamma has been residing in the adjacent site No.127 in a small Mangalore tiled roof shed. It is not known how the said Gurumurthappa's name came to be entered in the municipal assessment register. To the knowledge of the plaintiff site No.127 is belonging to Thoti Chikkaramaiah."

The pleadings at Para 3 of the plaint would clearly clinch the

issue and would establish that it is the defendant who is in

exclusive possession of site No.127.

9(e) The defendant No.1 has succeeded in eliciting the

topography of the properties owned by defendant No.1 as well

as the property owned by K.T. Venkatappa and the property

owned by Chikkaramaiah. The Commissioner's report at

Ex.C3 would further strengthen the claim of defendant No.1

and would falsify the claim of plaintiff. Paragraph 3 of the

Commissioner's report would be relevant and the same reads

as follows:

"3. ¥À²ÑªÀÄ ¨sÁUÀzÀ PWD PÁA¥ÁAqï¤AzÀ «ªÁ¢vÀ ¸ÀévÀÛ£ÀÄß C¼ÀvÉ ªÀiÁqÀ¯ÁV ¸ÀéwÛ£À £ÀA§gï 127/1 ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼ÀÄ MAzÉà ¸ÀܼÀªÀ£ÀÄß d«Ää£À°è vÉÆÃj¸ÀÄwÛzÀÄÝ 127/1gÀ µÉqÀÆå¯ï ¸ÀévÀÛ£É ZÉPïÌ §A¢AiÀÄAvÉ vÁ¼Éà EgÀĪÀÅ¢®è. 127gÀ ¸ÀévÀÛ£À ZÉPï̧A¢AiÀÄAvÉ d«Ää£À ¹ÜwAiÀÄAvÉ vÁ¼Éà EgÀĪÀÅzÀ£ÀÄß C¼ÀvÉ ªÀiÁr ¸ÉÌZÀ£À°è «ªÀgÀUÀ¼À£ÀÄß UÀÄwð¹gÀÄvÉÛÃ. ¥ÀƪÀð ¨sÁUÀzÀ°è ¥Àæw ªÁ¢AiÀÄÄ ºÉAa£ÀªÀÄ£É EgÀĪÀÅzÀ£ÀÄß vÉUÉzÀÄ FUÀ ±ÉÃqïªÀÄ£É ªÀiÁrgÀĪÀÅzÀÄ ¸ÀܼÀzÀ ªÀiÁ»wAiÀÄAvÉ w½zÀÄ §gÀÄvÀÛzÉ. ¸ÀzÀj ¥ÀæzÉñÀªÀÅ ¸ÀévÀÛ £ÀA.127 gÀ°è §gÀÄvÀÛzÉ."

The counsel appearing for the plaintiff would vehemently

argue and contend that the plaintiff has seriously disputed the

Commissioner's report by filing objections. But, if the

categorical admissions in regard to existence of defendant's

property in Site No.127 in para 3 of the plaint coupled with the

admissions given in cross-examination by plaintiff in regard to

location of the properties is taken into consideration along with

the Commissioner's sketch and report, this Court is of the view

that the Commissioner's report would also indicate that

plaintiff has failed to prove his title and possession over the

suit schedule property. Though the counsel appearing for the

plaintiff has seriously contended that the Commissioner has

executed the commission work contrary to the memo of

instructions and as such the Commissioner was not justified in

mentioning the details of the property in the Commissioner's

sketch, the said contention cannot be acceded to. Infact this

Court would find that the Commission work is executed in

terms of the memo of instructions submitted by the plaintiff.

Paragraph 3 of the memo of instructions is contrary to what is

stated by the counsel appearing for the plaintiff before this

Court. Paragraph 3 of the memo of instructions reads as

under:

"3. The Court Commissioner is requested to measure the suit property from the Westernside, i.e. from the compound of the P.W.D. towards Eastern side and find out whether the tiled roof house is situated in sy No.127/1 or after the 127/1 and measure the easternside of the suit property and prepare a sketch of both the properties with existing boundaries."

Therefore, this Court would find that on the instructions of the

plaintiff, the properties are measured after verifying the title

documents and the Commissioner has clearly stated in his

sketch that the disputed property is in fact site No.127 and not

127/1 as claimed by the plaintiff. Therefore, the

Commissioner's report indicating the existence of site No.127

in the boundaries claimed by the plaintiff would in no way

amount to collection of evidence. The Court has rightly

secured the report and evidence having regard to the peculiar

nature which could have been secured only at the spot. The

Commissioner has looked into the limited extent of noting

physical features of the sites at the time of his visit and

inspection. Therefore, this Court is of the view that the plaintiff

has miserably failed to adduce any best possible evidence to

countermand the Commissioner's report as well as the rebuttal

evidence lead by defendant No.1. Therefore, this Court is of

the view that plaintiff under the garb of claiming title in

respect of site No.127/1 is falsely asserting right and title over

the defendant's property.

9(f)On meticulous examination of ocular and

documentary evidence this Court would find that the plaintiff

has failed to demonstrate as to how he can claim a portion of

site No.127. Though plaintiff has produced Ex.P16 which is

assessment list, but the said document would not come to the

aid of the plaintiff. This claim is rightly disproved by

defendant No.1 by producing evidence vide Exs.D42 and 43.

Ex.D42 is the assessment list in respect of the property

bearing Site No.126. This document is relevant and would

have impact on the entire claim made by the plaintiff. Plaintiff

has admitted in unequivocal terms that he has purchased a

portion of the property owned by Chikkaramaiah, which

pursuant to the ITI Notified Area is assigned Site No.126. Site

No.126 is situated on extreme eastern side. If a portion of Site

No.126 which was assigned old House No.138, then this Court

is unable to accept the claim made by plaintiff in respect of

property bearing Site No.127/1. If he has purchased a portion

of site No.126, the property No. 127/1 appears to be fictitious

property and therefore, this Court is of the view that the

plaintiff has failed to establish his title over site No.127/1 and

he has also failed to establish his possession over the site

property. In the light of the findings recorded in the preceding

paragraph this Court is also of the view that the plaintiff under

the garb of asserting title over site No.127/1 is virtually

asserting title over Site No.127 and therefore, the points

formulated are answered in Negative.

10. The judgments cited by the learned counsel for the

appellant-plaintiff are not at all applicable to the facts and

circumstances of the case.

11. The finding recorded by the Trial Court on

additional issues 1 and 2 is based on clinching rebuttal

evidence adduced by defendant No.1. The Trial Court has

rightly come to the conclusion that the plaintiff has failed to

establish title over the suit schedule property and has

accordingly answered additional issues 1 and 2 in the

negative. The Trial Court has recorded a categorical finding

that the rectification deed as per Ex.P19 would not come to

the aid of the plaintiff as the same was not given effect to in

subsequent sale deeds as per Exs.P1 and 2. The Trial Court

was justified in recording a categorical finding that in Exs.P1

and 2, the property is shown as House List No.138 and there

is no reference to new house list No.270 and Katha No.181.

12. The Trial Court has meticulously examined the flow

of title in favour of defendant No.1. The Trial Court was

justified in taking judicial note of the fact that site No.127 was

standing in the name of Thoti Chikkaramaiah, who is none

other than the second husband of defendant No.1 and having

referred to the boundaries in the context of title documents

and also having meticulously examined the cross-examination

of the plaintiff has recorded a categorical finding that the

documents produced by the plaintiff does not establish the

identity of suit site No.127/1. These findings and conclusions

arrived at by the Trial Court are based on the rebuttal

evidence led by the first defendant and therefore, would not

warrant interference at the hands of this Court.

The appeal is devoid of merits and accordingly stands

dismissed.

Sd/-

JUDGE

*alb/-