Karnataka High Court
Smt. Kamalamma vs Smt. S. T. Pushpa on 24 February, 2023
Bench: H.P.Sandeshpresided Byhpsj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.622/2017 (DEC/INJ)
BETWEEN:
SMT. KAMALAMMA,
W/O. KURUGODAPPA,
AGED ABOUT 51 YEARS,
HOUSE HOLD,
R/O. RAMALAYA ROAD,
JAGALURU TOWN-577 528.
... APPELLANT
(BY SRI GOPALAKRISHNAMURTHY C., ADVOCATE)
AND:
1. SMT. S.T.PUSHPA,
W/O B. VIDYANATH,
AGED ABOUT 54 YEARS,
HOUSEHOLD,
NEHARU ROAD, JAGALURU TOWN,
DAVANAGERE DISTRICT-577 528.
2. PATTANA PANCHAYATH,
JAGALURU TOWN,
REPRESENTED BY ITS CHIEF OFFICER,
JAGALURU TOWN,
DAVANAGERE DISTRICT-577 528.
2
3. THE DEPUTY COMMISSIONER,
DAVANAGERE DISTRICT,
DAVANAGERE-577 502.
... RESPONDENTS
(BY SRI RAVISHANKAR SHASTRY G., ADVOCATE FOR
SRI K.A.CHANDRASHEKARA, ADVOCATE FOR R1;
SMT. H.R.ANITHA, HCGP FOR R3;
R2-SERVED & UNREPRESENTED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2016
PASSED IN R.A.NO.54/2014 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
06.06.2014 PASSED IN O.S.NO.33/2009 ON THE FILE OF THE
CIVIL JUDGE AND JUDICIAL FIRST CLASS MAGISTRATE,
JAGALULRU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.02.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree
dated 18.10.2016, passed in R.A.No.54/2014, on the file of the
Principal Senior Civil Judge, Davanagere and to confirm the
judgment and decree dated 06.06.2014, passed in
O.S.No.33/2009, on the file of the Civil Judge and Judicial First
Class Magistrate, Jagalur.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that the suit schedule property originally
belonged to Krishna Reddy and she had purchased the same
under registered sale deed dated 14.02.1994 for Rs.12,000/-.
The suit schedule property mentioned in the sale deed is
measuring east-west 40 feet instead of 30 feet. The defendant
No.3 has no semblance of right, title and interest over the suit
property and in collusion with defendant No.1, she got the
khatha of the suit property changed to her name based on the
dismissal of the suit filed by the plaintiff in O.S.No.53/2007
against the respondent for permanent injunction. After disposal
of the said suit, on the basis of the created documents and
without the knowledge of the plaintiff, defendant No.1 has
changed the khatha of the suit property to the name of
defendant No.3. It is contended by defendant No.3 that by
virtue of the inspection made by the Assistant Commissioner,
Harapanahalli on 23.08.2003, the property comes within the
premises of Jagalur Government Hospital. The property
purchased in the auction in 1958 and the suit property are
different. The plaintiff got issued notice to the defendants
under Section 284 of the Municipality Act and called upon them
to change the khatha of the suit property in favour of the
plaintiff and no action was taken by defendant Nos.1 and 2.
Hence, the plaintiff was constrained to file the suit.
3. In pursuance of the suit summons, defendant No.1
appeared and filed the written statement. The defendant No.1
denied the allegations made by the plaintiff that the property is
purchased under registered sale deed dated 14.02.1994. The
dismissal of suit in O.S.No.53/2007 is admitted, but the
allegations made in the plaint that the khatha of the suit
property changed to the name of defendant No.3 on the basis of
created document is specifically denied. It is contended that
site No.2 measuring 48 x 50 feet situated behind government
Hospital bounded on the east - site No.3, west - site No.1, north
- conservancy and south - conservancy was sold by the
municipality on 23.04.1958 in public auction to Mallikarjunappa.
It is contended that in this behalf resolution is passed on
20.06.1958 by Pattana Panchayath. The defendant No.1 has not
issued grant certificate to Krishna Reddy. Krishna Reddy had no
semblance of right, title and interest in the suit property. On the
basis of the false document, the plaintiff has filed the suit. The
plaintiff has no right over the suit property on the basis of the
sale deed. Hence, prayed to dismiss the suit.
4. The defendant No.3 filed the written statement
contending that on 20.06.1958, defendant No.1 sold as many as
60 sites and at that time, site No.2 was sold to the father of
defendant No.3 Mallikarjunappa for a price of Rs.440/- under
auction. On the basis of the said fact, defendant No.1 gave a
sale certificate to the father of defendant No.3 on 18.07.1958 in
respect of site No.2 measuring east-west 40 feet, north-south 50
feet and boundaries mentioned as stated by defendant No.1 in
the written statement. The father of defendant No.3 passed
away about seven years ago and after his death, his legal heirs
succeeded to the said property. Late Mallikarjunappa was an
illiterate and he had no knowledge to change the khatha of the
property to his name. The father of the plaintiff was the
President of Pattana Panchayath, at that time, the khatha was
got changed in the name of Krishna Reddy and thereafter the
plaintiff took the sale deed from Krishna Reddy. The said
Krishna Reddy was not having any right, title and interest to sell
the same including the suit property. The father of defendant
No.3 purchased this property and he was the owner and in
possession of the same. After the death of Mallikarjunappa, the
present defendant No.3 is in possession and enjoyment of the
suit property. Hence, prayed the Court to dismiss the suit.
5. The Trial Court based on the pleadings of the parties,
framed the following issues:
1. Whether the plaintiff proves that she is the
owner in possession of the suit property?
2. Whether the plaintiff proves the alleged cause
of action for filing the suit?
3. Whether defendant No.3 proves that she has
become owner to the suit property by
succession, as her father had purchased the
same?
4. Whether the plaintiff is entitled for the relief
sought for?
5. What order or decree?
6. The plaintiff in order to substantiate her case,
examined herself as P.W.1 and got examined three witnesses as
P.W.2 to P.W.4 and got marked the documents at Exs.P.1 to 14.
To resist the claim of the plaintiff, defendant No.3 examined
herself as D.W.1 and one witness is examined as D.W.2 and got
marked the documents at Exs.D.1 to 24. The Trial Court after
hearing both the sides answered issue Nos.1, 2 and 4 in the
negative and issue No.3 in the affirmative and dismissed the suit
of the plaintiff and comes to the conclusion that defendant No.3
has proved that she has become the owner of the suit schedule
property by succession as her father had purchased the same.
7. Being aggrieved by the judgment and decree of the
Trial Court, the plaintiff filed R.A.No.54/2014. The First
Appellate Court on re-appreciation of the grounds urged in the
appeal, formulated the points whether the appellant has made
out sufficient ground that the Trial Court has not properly
appreciated the facts and evidence of the parties. Whether the
appellant has made out sufficient grounds that the judgment and
decree of the Trial Court is perverse, capricious and arbitrary
and whether it requires interference of the Court. The First
Appellate Court on re-appreciation of both oral and documentary
evidence placed on record, allowed the appeal and set aside the
judgment and decree of the Trial Court.
8. Being aggrieved by the divergent finding, the
present appeal is filed. The learned counsel for the appellant
would contend that the First Appellate Court has not considered
that even though respondent No.1 filed the suit in
O.S.No.53/2007 for bare injunction against the appellant and
other respondents and issue was framed whether the plaintiff
proved that she is the owner in possession and enjoyment of the
suit schedule property as on the date of the suit and the Court
held negative in respect of the said issue and the plaintiff had
not challenged the judgment and decree by filing any appeal and
the same is binding without challenging the same she filed
declaration suit in respect of the same property. When the
question was involved with regard to whether the plaintiff proves
that she is the owner in possession of the suit property and the
same is answered as negative. The First Appellate Court ought
not to have allowed the appeal putting the burden on defendant
No.3/appellant herein, which is not sustainable in the eye of law.
The First Appellate Court without discussing the evidence of the
plaintiff and the admission given by the plaintiff, ought not to
have reversed the finding of the Trial Court. It is contended
that the claim of the plaintiff is that she had purchased the
property in terms of Ex.P.11 from Krishna Reddy, who is the
father-in-law of the plaintiff and the said Krishna Reddy had not
purchased the property from the Town Municipality, Jagalur and
not obtained any title from Town Municipality, Jagalur. It is
contended that the father of the plaintiff was the President of the
Town Municipality and simply changed the khatha of the suit
schedule property in the name of Krishna Reddy, who is his
relative and colluding with each other created the alleged sale
deed Ex.P.11. The First Appellate Court failed to take note of
the title of the vendor of the plaintiff. Inspite of it, reversed the
judgment of the Trial Court. This Court while admitting the
second appeal has framed the following substantial questions of
law:
i) Whether the First Appellate Court was right in
law in holding that site No.2 claimed by the
appellant (respondent No.3) is not in existence
as an open site in the light of the admission
made by PW2 and PW4?
ii) Whether the First Appellate Court was right in
law in holding that the plaint schedule property
and the property claimed by the appellant
(respondent No.3) are not one and the same?
iii) Whether the First Appellate Court was right in
law in not taking into consideration that the
earlier suit filed by the plaintiff in
O.S.No.53/2007 for the relief of injunction has
been dismissed for want of identity of the
property?
iv) Whether the First Appellate Court was justified
in holding that the plaintiff has proved that he
is the owner in possession and enjoyment of
the suit property?
v) Whether the First Appellate Court was right in
law in casting burden of proving title of the suit
property on the appellant (respondent No.3)?
vi) And to consider any other question of law,
which may arise for consideration while
hearing the appeal.
9. The learned counsel for the appellant in his
argument would vehemently contend that the First Appellate
Court committed an error in reversing the finding of the Trial
Court and the Trial Court rightly comes to the conclusion that the
plaintiff has not made out a case. The learned counsel would
contend that when the plaintiff has sought the relief of
declaration and injunction, she has to make out the case of title
in respect of the suit schedule property. It is the contention of
the plaintiff before the Trial Court that she had purchased the
property from P.W.2 vide sale deed dated 14.02.1994 and the
same is measuring 30 x 40 feet and the same is a vacant site.
While selling the property, the property number is mentioned as
555, old No.768 of Jagalur Town. The learned counsel would
contend that the Trial Court comes to the conclusion that the
plaintiff has not made out any ground to grant the relief of
declaration and injunction and dismissed the same. The
Appellate Court committed an error in reversing the finding of
the Trial Court ignoring the admission elicited from the mouth of
P.W.1. The learned counsel submits that the very plaintiff had
earlier filed the suit in O.S.No.53/2007 for the relief of
permanent injunction in respect of the very same property and
the same was dismissed and the said judgment was also
challenged and appeal was also dismissed. The present suit is
filed for the relief of declaration in 2009 and the substantial
question of law which arises for the consideration of this Court is
whether the First Appellate Court was right in law in holding that
site No.2 claimed by the appellant/defendant No.3 is not in
existence as an open site in the light of the admission made by
P.W.2 and P.W.4. The First Appellate Court committed an error
in coming to the conclusion that the suit schedule property and
the claim made by the defendant/appellant are not one and the
same and fails to make note of the earlier suit in
O.S.No.53/2007, which was filed for the relief of injunction has
been dismissed for want of identity of the property.
10. The First Appellate Court committed an error in
coming to the conclusion that the plaintiff has proved that she is
the owner in possession and enjoyment of the suit property.
The learned counsel contend that the First Appellate Court
shifted the burden on the defendants instead of the plaintiff.
The learned counsel contend that the measurement is different
from the sale deed and also the schedule mentioned in the suit.
The learned counsel contend that Section 11 attracts and
subsequent suit suffers from res judicata. The learned counsel
contend that the very title of the plaintiff was denied in the
written statement filed by D.W.1 as well as defendant No.3 and
there was no any title to said Krishna Reddy and hence he
cannot convey any better title to the plaintiff and no documents
to show that Krishna Reddy was having any documents to show
that he had title to sell the property and the finding of the First
Appellate Court is erroneous. The Trial Court in detail discussed
in paragraph No.20 and assigned the reasons and in Ex.P.11,
which was relied upon by the plaintiff, nothing is stated with
regard to source of title. The very approach of the First
Appellate Court that site No.2 which is claimed by the appellant
is not in existence is erroneous and the documents are produced
in respect of the suit schedule property by the defendant and in
the sale deed Ex.P.11, it is mentioned as east to west 40 feet,
north to south 30 feet. In the plaint in O.S.No.33/2009, it is
mentioned as 30 x 40 feet. The First Appellate Court fails to
take note of the admission of P.W.1 to P.W.4 and the ownership
in both the suits considered the same and earlier also title was
disputed and earlier suit was also dismissed. Inspite of dismissal
of earlier suit, the First Appellate Court reversed the finding of
the Trial Court.
11. The learned counsel in support of his arguments
relied upon the judgment of this Court in the case of K. GOPALA
REDDY v. SURYANARAYANA AND OTHERS reported in 2004
(1) KCCR 662, wherein this Court held that whenever a party
approaches the Court for a relief, based on the pleadings and
issues, he has to prove his case. A suit has to be decided based
on merits and demerits of the party, who approaches the Court.
Weakness of the defendant cannot be considered as a trump
card for the plaintiff.
12. The learned counsel also relied upon the judgment of
the Apex Court in the case of SULOCHANA AMMA v.
NARAYANAN NAIR reported in (1994) 2 SCC 14 and contend
that injunction suit, title in issue, decree of Court based on
equitable relief of injunction operates as res judicata in later suit
based on title between the same parties. The Apex Court held
that Section 11 is to be read in combination and harmony with
Explanation VIII. The result that would flow is that an order or
an issue which had arisen directly and substantially between the
parties or their privies and decided finally by a competent Court
or Tribunal, though of limited or special jurisdiction, which
includes pecuniary jurisdiction, will operate as res judicata in a
subsequent suit or proceeding, notwithstanding the fact that
such Court of limited or special jurisdiction was not a competent
Court to try the subsequent suit. The issue must directly and
substantially arise in a later suit between the same parties or
their privies. The technical aspect, for instance, pecuniary or
subject-wise competent of the earlier forum to adjudicate the
subject-matter or to grant reliefs sought in the subsequent
litigation, should be immaterial when the general doctrine of res
judicata is to be invoked.
13. The learned counsel referring this judgment would
contend that when the matter has already been decided in a suit
for permanent injunction and merely because the relief is sought
for declaration and injunction, the principle of res judicata is
aptly applicable to the case on hand and hence the judgment
and decree of the First Appellate Court is liable to the reversed.
14. Per contra, the learned counsel for respondent
No.1/plaintiff would vehemently contend that the property was
purchased under the sale deed Ex.P.11 dated 14.02.1994 and
the measurement of site is 30 x 40 feet. The defendant No.3
claims that her father had purchased the property in terms of
Ex.D.1 dated 18.07.1958. The learned counsel would contend
that the boundary is different of plaint property. The learned
counsel would contend that in the sale deed of defendant No.3,
measurement is mentioned as 40 x 50 feet and east - site No.3,
west - site No.1, north - conservancy and south - municipality.
In respect of suit schedule property east is site of Karibasappa
and West - conservancy, north - road and south - municipal
conservancy. The Appellate Court on re-appreciation of both
oral and documentary evidence placed on record rightly comes
to the conclusion that the properties are different. The First
Appellate Court also taken note of the report Ex.P.1 and having
taken note of the said report, it is clearly mentioned that in
defendant No.3's property already hospital was constructed and
both are different properties. The First Appellate Court also
taken note of evidence of P.W.2, who is the vendor of the
plaintiff. The defendants not sought any relief before the Court.
The First Appellate Court also taken note of evidence of P.W.4,
who is the Chief Officer of Municipality. He categorically contend
that both the properties are different and the counsel contend
that Ex.D.1 is a manipulated document. The First Appellate
Court on re-appreciation of both oral and documentary evidence
placed on record, in paragraph No.22 rightly comes to the
conclusion that the plaintiff has made out a case to grant the
relief and the reasons are given while reversing the finding of
the Trial Court. The sale deed Ex.P.1 of the plaintiff has not
been challenged and hence it does not require any interference.
15. In reply to the arguments of the learned counsel for
respondent No.1, the learned counsel for the appellant would
contend that in the sale deed no averments are made with
regard to the acquisition of the property. The learned counsel
submits that P.W.3 categorically says that they have not issued
any documents of ownership in favour of Krishna Reddy. The
learned counsel submits that the property was purchased by the
father of the appellant in the year 1958 itself. The material does
not disclose the vendor of the plaintiff has got right to convey
better title in favour of the plaintiff and hence this Court has to
consider the material on record. The finding of the First
Appellate Court is perverse and as against the admission, the
said finding is given and when perversity is found, this Court can
exercise the powers and set aside the judgment and decree of
the First Appellate Court.
16. The learned High Court Government Pleader
appearing for respondent No.3 would contend that in the written
statement specific defence was taken that the said Krishna
Reddy was not having any right to dispose the suit schedule
property in favour of the plaintiff. When Krishna Reddy was not
having any title, he cannot convey any title in favour of the
plaintiff.
17. Having considered the substantial questions of law
framed by this Court and also the contentions urged before this
Court by the learned counsel for the appellant and the learned
counsel for the respondents, this Court has to consider the
material on record. With regard to first substantial question of
law whether the First Appellate Court was right in law in holding
that site No.2 claimed by the appellant is not in existence as an
open site in the light of admission made by P.W.2 and P.W.4,
this Court has to consider the evidence of P.W.2 and P.W.4 in
order to answer substantial question of law framed by this Court.
18. P.W.2 in his evidence deposes that he had conveyed
the property in favour of the plaintiff by executing the sale deed
and he claims that he has got the khatha in respect of the suit
schedule property in the office of defendant No.1 and he had
paid the tax and he claims that he had purchased the same from
defendant No.1. The plaintiff has been in possession of the suit
schedule property and defendant No.3 is not having any claim in
respect of the suit schedule property and he identified his
signature in Ex.P.11, which is marked as Ex.P.11(a).
19. In the cross-examination he admits that he got the
property from Jagalur Municipality and he had purchased the
same for an amount of Rs.270/-. He claims that the property
number is 2. He admits that municipality has given the receipt
and also they have given the hakku patra and he cannot tell
other than him to whom they have given the hakku patra. It is
his claim that on the east there is a vacant property, on the west
there is hospital compound on the north - road and on the south
- conservancy. He also mentioned the same boundary in the
sale deed. He admits that in Ex.P.11 on the east he has
mentioned that property of Secretary Sanaulla and also he
admits that on the west he has mentioned the property of M.R.
Tippeswamy's vacant land. When a suggestion was made that
the same does not tally with the suit boundary, he denies the
same. He claims that he had purchased the property measuring
30 x 40 feet from the municipality. He admits that in the sale
deed it is mentioned as 40 x 30 feet, but he claims that it was
wrongly mentioned. He admits that in Ex.P.11, site No.2 is not
mentioned and he has got the documents for having sold the
property by the municipality and he is not having any difficulty
to produce the same. He admits that he has not given the
hakku patra to the plaintiff. He claims that a resolution was
passed and the said resolution will be available in the
municipality. He admits that he is not having any difficulty to
produce that resolution. He admits that Jagalur Hospital is 8
year old. He admits that the plaintiff is his daughter-in-law and
admits that the plaintiff's father was the President of Jagalur
Pattana Panchayat. It is suggested that at the instance of the
father of the plaintiff, khatha was transferred in his name and
thereafter property was sold in favour of the plaintiff and the
same was denied. It is suggested that the suit schedule
property was purchased by the father of defendant No.3 in the
year 1958 and he says he might have purchased. He also
admits that in O.S.No.53/2007 also he has given the evidence.
It is suggested that the plaintiff is his daughter-in-law and hence
he is giving false evidence and the same is denied. It is
suggested that defendant No.3 is in possession of the property
and the same is denied.
20. In the further cross-examination, PW2 says that this
property came to him before 30 years ago but he cannot tell in
which year, it came to him but he admits that the said property
was purchased from the municipality for Rs.260/- and not in
public auction. But he claims that panchayat has given hakku
patra but he cannot tell on what date the said hakku patra was
issued. He also admits the measurement of the property as
north to south 40 feet and east to west 30 feet and also claims
that panchayat has issued receipt and hakku patra but the said
documents are not in his possession as he has lost the same
before the selling of this property to the plaintiff and the same
was not mentioned in the sale deed and there was no difficulty
to mention the same in the sale deed and also admits that the
plaintiff is his relative and her father is his uncle.
21. This Court has to consider the evidence PW4 who is
the Chief Officer. PW4, in his evidence says that as per the
application of defendant No.3, Pattana Panchayat has conducted
the spot inspection and report was submitted in terms of Ex.P1.
He also submits that the earlier suit filed by the plaintiff in
O.S.No.53/2007 was dismissed and thereafter they changed the
katha in favour of defendant No.3 based on the said judgment.
He also says that Ex.D1 sale certificate was issued in favour of
defendant No.3 and the same was marked as Ex.P13. He also
admits that the measurement mentioned in Ex.D1 was as east to
west 40 feet and south and north 50 feet and also admits that
the same was rectified as east to west 50 feet and north to south
40 feet. He also admits that the sale certificate was issued in
favour of Mallikarjunappa and the name of S Kallavva was strike
out and the same was purchased in the public auction. He also
says that in Ex.D1, katha number was mentioned as 941 and the
plaintiff katha as 828:828:555 and there are separate kathas in
respect of both the properties. It is suggested that in collusion,
the name of defendant No.3 was entered and the said
suggestion was denied. It is admitted that the suit schedule
property and defendant No.3's property are differentand it is also
admits that in 50 x 40 feet of land which was claimed by
defendant No.3, already hospital building was in existence and
same was constructed 50 years ago and it is surrounded by
compound.
22. This witness was subjected to cross-examination by
defendant No.3. Defendant No.3, in cross-examination elicited
the answer that Ex.D19 was issued by Pattana Panchayat and
Ex.P1 also issued by the said Panchayath and both Ex.P1 and
Ex.D19 are the copies of same document. He also admits that in
Ex.D19, measurement of the land is 30 x 30 feet and in Ex.P1,
measurement is mentioned as 30 x 40 and also admits that
entries are differ in Ex.P1 and Ex.D19.Some of the entries which
were not found in Ex.D19 were also mentioned in Ex.P1. He
admits that to whom the sale certificate was given from Pattana
Panchayat are the owners and he also categorically admits that
either to the plaintiff or to the original owner of the suit schedule
property i.e., Krishna Reddy, no sale certificate was issued in
their favour and also admits that as per Ex.D1, they have issued
Ex.D2 and D3 and site number 2 in Ex.D1 and site No.2 found in
Ex.D3 are one and the same. He admits that in Ex.P14 and P15,
site number was not mentioned and also admits that in terms of
Ex.P14 and P15, property was not converted. He also admits
that in Ex.P1, site number and boundaries are also not
mentioned and also admits that in Ex.P1, it is mentioned that in
katha No.944, government doctors quarters are found to the
extent of 40 x 50 feet but sketch is not prepared by the engineer
conducting the survey. He admits that in Ex.D1, katha number
was mentioned as 941 but in Ex.P1, katha number was
mentioned as 944 and both are different properties and it is
suggested that in katha No.944, government doctors quarters
are found for that he replies that he cannot tell the same without
looking to the documents. He also admits that in Ex.P1, it is not
mentioned that government quarters are constructed in katha
No.941 and he also admits that the father of defendant No.3 had
purchased the property in auction in respect of katha No.941
and also admits that katha No.941 was in existence and based
on that katha, Ex.D2 and D3 were issued and also admits that
he cannot tell how the Krishna Reddy got the suit schedule
property and in the office of Pattana Panchayat, no such
documents were found and also admits that while getting
transfer the katha, the applicant has to furnish the documents
on what basis he has obtained the said property and also admits
that in Ex.P14 no information was furnished. And also admits
that Ex.D4 was given from their office after getting the records
from the plaintiff and defendant No.3 and after verifying the
original documents, they have issued Ex.D4 and before issuing
Ex.D4, the plaintiff has not furnished any documents and
contents of document at Ex.D4 are correct. It is also admitted
that after the death of father of defendant No.3, she has given
an application to transfer the katha in her name and the katha
was transferred in her name in terms of the judgment and
decree passed in O.S.No.53/2007. It is also admitted that in
whose name the katha was existed they will be in possession
and in terms of the documents, site No.2, katha No.828,
assessment No.555 was in possession of defendant No.3.
23. Apart from the evidence of PW2 and PW4, this Court
has to consider the evidence of PW1 who claims the relief of
declaration and injunction. The plaintiff that is PW1 claims that
she had purchased the property from Krishna Reddy for a sale
consideration of Rs.12,000/- thereafter, she has been in
possession of the suit schedule property and defendant No.3
with the help of defendant No.1 troubling the plaintiff.Defendant
No.3 is a powerful person hence, got the property transferred in
his name and in terms of Ex.P1 report, site Nos.1 and 2 were
used for construction of quarters for government doctors. The
plaintiff got marked the documents at Ex.P1 to P14.
24. PW1 was also subjected to cross-examination
wherein she admitted that the suit filed by her earlier in
O.S.No.53/2007 was dismissed and there was no difficulty to file
an appeal against the said order. It is also admitted that Ex.P11
was also produced in O.S.No.53/2007 and though she denied
that the said Krishna Reddy is her relative but in the cross-
examination she admitted that in the earlier case, she has
admitted that he was her uncle. It is also elicited that in Ex.P11,
boundaries are mentioned as on the east - Sannaulla's house
but in O.S.No.53/2007, it was mentioned as on the east P B
Karibasava Swamy and in the present suit, on the east, it is
mentioned as house of Sannaulla and in the earlier suit it was
not mentioned. It is also elicited that in the suit in
O.S.No.53/2007, total area of the property was mentioned as 30
x 40 feet and in the present suit, dimension is not mentioned.
However, in the plaint, it is stated that it is wrongly mentioned
as east to west 30 feet and north to south 40 feet. It is also
admitted that towards north to south, it is mentioned as 40 feet
instead of 30 feet. It is also admitted that when the dimension
was wrongly mentioned in the sale deed, not made any efforts to
rectify the same. It is also admitted that earlier, directed to
produce the original sale certificate and the same was not
produced till date. It is also admitted that her father was the
President of Jagaluru municipality in the year 1987. It is
suggested that taking the advantage of the same, got it
transferred the katha in respect of the property belongs to
defendant No.3 and the said suggestion was denied. It is
suggested that after based on the katha, in the year 1994, false
sale deed was created and the same was denied. However
admits that plaint schedule property and neighbouring properties
are belonged to the Jagaluru municipality and also admits that if
any property is purchased from the municipality, they used to
issue sale certificate. It is also admitted at Ex.P1 also produced
in O.S.No.53/2007 and the same was marked as Ex.P2 in that
suit. It is also elicited that in O.S.No.53/2007 as per Ex.P2, the
measurement of the suit schedule was mentioned as 30 x 30
feet and in the sale deed it is mentioned as 30 x 40 feet. It is
also admitted that in Ex.P1, the signature of defendant No.3 is
not found. It is suggested that no notice was given to defendant
No.3 while conducting the spot inspection and witness says that
she was not aware of the same and also no information with
regard to the correction made by the Assistant Commissioner in
Ex.P1.
25. It is further suggested that hospital was constructed
and compound was put up before selling the property to the
father of defendant No.3 and witness says that she was not
having any information. But witness says that municipality has
shown her property but no document was produced to that
effect. It is also elicited that in Ex.P9-layout plan, her property
door number, site number and assessment number were not
mentioned. PW1 admits that in Ex.P12 and P13 found only the
signature of Secretary but seal was not found. In further cross-
examination she admits that if the municipality gives the grant
certificate, those persons will be in possession. PW1 also admits
that she knows the reason for dismissal of her earlier suit in
O.S.No.53/2007. PW1 also admits that Krishna Reddy belongs
to same community and PW1 cannot tell that before purchasing
the property what are the documents she verified and she did
not ask the said Krishna Reddy that from whom he got the
property and when the same was given to him. PW1 has given
the instructions to the advocate. PW1 also admits that the
document at Ex.P9 was not issued by the Town Planning
Authority.
26. This Court has to consider the evidence of DW1.
DW1 claims that the suit schedule property is the vacant
property and the same is behind the government hospital,
Jagaluru and the site number is 2 measuring 40 x 50 feet and
the same was purchased by her father Mallikarjunappa from
Jagaluru municipality on 23.04.1958 for a sum of Rs.440/- and
the sale certificate was issued on 18.07.1958 and thereafter her
father was in possession and after his death, she has been in
possession of the suit schedule property. It is also her evidence
that her father was an illiterate hence, not made the efforts to
transfer the katha in his name and the plaintiff got the sale deed
in 1994 creating the katha in respect of the said property and
plaintiff has no title over the suit schedule property. It is also
claimed that while auctioning the property, resolution was also
passed on 20.06.1958 and also claims that the municipality has
given the notice to the plaintiff and defendant to produce the
original documents and accordingly, the documents were
produced by the defendant but the plaintiff has not produced any
documents and thereafter filed the suit in O.S.No.53/2007 and
the same was also dismissed and no appeal was filed. The
plaintiff was never in possession of the suit schedule property.
The defendant also got marked the documents at Ex.D1 to D24.
27. The witness was subjected to the cross-examination.
In the cross-examination, witness claims that site No.2 is
measuring 50 x 40 feet and the same was purchased in the
auction by her father. It is suggested that the report was given
by the municipality wherein it is stated that suit schedule
property is nowhere concerned to the property which was
purchased by her father and the same was denied. Ex.D1 got
amended and the same was in terms of Ex.P12 and she cannot
tell what has been written in Ex.D1.
28. The other witness is DW2 who reiterates the
evidence of DW1.
29. Having considering both the oral and documentary
evidence placed on record it is clear that PW1 and PW2 claim
that property was auctioned but no document was placed before
the Court to prove the same and the plaintiff also not disputes
the fact that property was originally belonged to Jagaluru
municipality and categorically admits that even though directed
to produce the sale certificate, the same was not produced and
only relies upon the document of sale deed which was marked as
Ex.P11. The very contention of the appellant counsel that the
document at Ex.P11 is created document and having considered
the admission given by PW1, PW2 and PW4 it is clear that there
are no documents to show that the property was granted in
favour of PW2 from the Jagaluru municipality but only the katha
was changed in favour of PW2 and no document was placed
before the Authority even for change of katha and on what basis
they have claimed the katha. It is emerged in the evidence that
both PW1 and DW3 were called upon to produce the document
but PW1 failed to produce any document with regard to the title
is concerned except the document of Ex.P11. In order to prove
the title, there must be a title document and nothing is found in
Ex.P11 with regard to the title of PW2 and when the municipality
has not granted the property in favour of PW2 and not got
transferred the katha in favour of PW2, sale of property in favour
of plaintiff does not convey any title in her favour. It is also
important to note that PW4-Chief Officer of municipality
categorically admitted that the father of defendant No.3 had
purchased the site No.2 in an auction and also Ex.D2 and D3 are
consequent upon in terms of Ex.D1 and Ex.D4 endorsement was
also given after calling upon the plaintiff and defendant. It is
also important to note that earlier, the plaintiff had filed a suit in
O.S.No.53/2007 for the relief of bare injunction and the same
was dismissed. The plaintiff also not dispute the fact that the
judgment and decree has attained its finality and no appeal was
filed to challenge the same.
30. No doubt, it is elicited from the mouth of PW4 that
katha was transferred in favour of defendant No.3 after the
dismissal of the suit in O.S.No.53/2007 and the document of
judgment and decree are also marked as Ex.D13 and D14 and
plaint copy is also marked as Ex.D15. When the plaintiff was
unable to prove the document of title of PW2 who is her vendor,
the First Appellate Court fails to take note of the said fact into
consideration even though the Trial Court was given the reasons
for dismissal of the suit and erroneously proceeded to pass an
order even though point was formulated that whether the
appellant has made out sufficient grounds and the Trial Court
has not properly appreciated the material available on record,
erroneously comes to the conclusion that the judgment and
decree of the Trial Court is perverse, capricious and arbitrary
inspite of reasons assigned for dismissal of the suit that the
property was sold in favour of the father of defendant No.3 in
terms of Ex.D1 and after the death of said Mallikarjunappa who
was the original allottee, the property derived in favour of
defendant No.3 and given definite conclusion that the witnesses
have also spoken that property was allotted in favour of the
father of defendant No.3 and the sale certificate was also issued
in favour of said Mallikarjunappa. But the First Appellate Court
has committed an error in reversing the finding of the Trial Court
mainly relying upon the document at Ex.P1 wherein a report
submitted stating that both are distinct property mentioning the
different katha number only. It is emerged in the evidence that
the katha number of defendant No.3 is 941 and the said report is
also shows that the government quarters are constructed for
doctors in katha No.941 and PW4 categorically admitted that
katha of defendant No.3 is 941 and building is in existence in
katha No.944 and not in 941. PW4 also categorically admitted
that no documents of title are issued in favour of PW2 and PW1
and PW2 have categorically admit that they cannot say on what
basis they claimed the title in respect of the suit schedule
property and merely because katha was created and sale deed
was executed in favour of PW2-Krishna Reddy, the title does not
flow in favour of the plaintiff. The First Appellate Court also
committed an error in relying upon the document of Ex.P9. PW1
categorically admits that Ex.P9 is not issued by Town Planning
Authority and comes to the conclusion that the document of
Ex.P9 indicates the property of the appellant situated in sketch,
boundaries as well as measurement and the said document is
not an authenticated document.
31. The First Appellate Court relied upon the document
of Ex.P1 and comes to the conclusion that both the properties
are distinct and PW1 categorically admitted that the boundaries
are not proper and not filed any application for rectification.
Apart from that it is admitted that the boundaries as mentioned
in the earlier suit in O.S.No.53/2007 and in the present suit are
different hence, the very identification of the property is in
dispute and not only the identification, even the measurement of
the property claimed by the plaintiff is in dispute i.e., in one
breath it is claimed as 30 x 30 feet and in another breath it is
claimed as 40 x 30 feet and again it is claimed as 30 x 40 feet
and no title deeds are placed before the Court. The First
Appellate Court mainly relies upon Ex.P1 that the Chief Officer of
respondent No.1 clearly observed in the enquiry report that suit
schedule property as well as the property mentioned in the sale
certificate is not one and the same.
32. It has to be noted that while preparing the report in
terms of Ex.P1, no notice was issued to defendant No.3 and PW1
also categorically admitted that she has not aware that whether
notice was given to defendant No.3 or not. But, the First
Appellate Court comes to the conclusion that the said document
is not challenged by respondent No.3 before the competent
authority. When the plaintiff seeks the relief of declaration and
permanent injunction, the First Appellate Court ought not to
have relied upon the document at Ex.P1 and ought to have
consider the title deed of the plaintiff and the same has not been
considered but only relies upon Ex.P1and even though the
witnesses have categorically admitted that site number and
boundaries are not mentioned, the First Appellate Court comes
to the conclusion that even though there is no site number and
boundary, both are different properties and though noticed that
in terms of Ex.D1, katha number was mentioned as 941 but in
Ex.P1, the katha number was mentioned as 944 and the report
says that in katha No.944, the government doctors quarters is in
existence and hospital is in existence and instead of that when
the Trial Court had given anxious consideration to the evidence
of PW2 and PW4 particularly, comes to the conclusion that the
plaintiff has not made out the title, the First Appellate Court
erroneously comes to the conclusion that the Trial Court has
committed an error in dismissing the suit of the plaintiff on the
basis of the documents and evidence, hence, the First Appellate
Court committed an error in exercising the discretion while
granting the relief of declaration and injunction when the plaintiff
fails to prove the title of PW2 who is the vendor of the plaintiff.
33. It is also emerged in the evidence that the father of
the plaintiff was the President of Pattana Panchayath and PW2 is
the uncle of PW1 and got transferred the katha without any basis
and based on the said katha, sale deed came into existence in
favour of PW2 and father of the plaintiff, plaintiff and PW2
hatched a plan to knock off the property of the defendant No.3
but they have unsuccessful in the earlier suit in O.S.No.53/2007
and the First Appellate Court has committed an error in not
considering the evidence of PW2, PW4 and particularly the
evidence of PW1. Thus, I answer that the First Appellate Court
has committed an error in not considering the evidence of PW2,
PW4 and the claim of the plaintiff that she is having the right in
respect of suit schedule property which is not in existence. The
First Appellate Court also committed an error in coming to the
conclusion that both the properties are different. Hence, I
answer first and second substantial questions of law as negative.
34. The third substantial question of law that whether
the First Appellate Court was right in law in not taking into
consideration that the earlier suit filed by the plaintiff in
O.S.No.53/2007 for the relief of injunction has been dismissed
for want of identity of the property. Having taken note of the
said fact into consideration it is not in dispute that earlier, the
plaintiff has filed a suit in O.S.No.53/2007 and the same was
dismissed and also it has to be noted in the present suit that the
First Appellate Court while considering the issues involved
between the parties taken note that defendant No.3 in the
written statement specifically denied the defence that she has
become owner of the suit schedule property through succession
as her father had purchased the same and the same has been
answered by the Trial Court as affirmative even though the suit
is for the relief of declaration hence, it is clear that title has been
disputed in the present suit and also given the definite finding.
35. In the earlier suit in O.S.No.53/2007, the defendant
took the specific defence that the plaintiff has no right or title in
respect of the suit schedule property and the Trial Court also
considering the material available on record in paragraph 14
comes to the conclusion that defendant No.1 examined herself
as DW1 and her husband as DW2 and they have also produced
the document at Ex.D1-sale certificate issued by the Town
Panchayat, Jagaluru. Defendant No.2 - Town Panchayat,
Jagaluru has admitted that Ex.D1 stands in the name of the
father of defendant No.3 and also the documents produced by
the defendants not disputed by the Town Panchayat, Jagalur and
given the finding that these are the facts revealed that plaintiff
and his vendor mutated the registered sale deed without having
property granted in favour of PW2 and there is no exact
boundary of the purchased property and existence of the said
property. When such finding is given, the very approach of the
First Appellate Court that the said suit was dismissed for want of
identity of the property is erroneous and the very reasoning is
that Ex.P1 - registered sale deed was created without any
property grant in favour of PW2 who is the vendor of the plaintiff
and the exact boundary of the purchased property was not
proved.
36. The other substantial question of law is that whether
the First Appellate Court was justified in holding that the plaintiff
has proved that she is the owner in possession and enjoyment of
the property. This Court while answering substantial question of
law Nos.1 and 2 taken note that the First Appellate Court has
committed an error in re-appreciating both oral and
documentary evidence placed on record and comes to the
erroneous conclusion.
37. The counsel for the appellant relied upon GOPALA
REDDY's case (referred supra) wherein this Court held that
whenever a party approaches the Court for a relief, based on the
pleadings and issues, he has to prove his case. A suit has to be
decided based on merits and demerits of the party, who
approaches the Court. Weakness of the defendant cannot be
considered as a trump card for the plaintiff. In the case on hand
also the plaintiff seeks the relief of declaration and injunction.
She has to stand on her foot and not on the weakness of the
defendant and burden is on the plaintiff to prove the title I.e.,
not only her title and also the title of her vendor and in order to
show that her vendor was having title, no document is placed
and hence, it is clear that her vendor was not having any title in
respect of suit schedule property and except creating the katha
in favour of PW2, there are no title deed. Hence, I answer this
substantial question of law that First Appellate Court was not
justified in holding that the plaintiff has proved that she is the
owner in possession and enjoyment of the suit schedule
property.
38. The fifth substantial question of law is concerned,
whether the First Appellate Court was in right in casting burden
of proving title of the suit property on the appellant/respondent
No.3 and the same is also erroneous when the party approaches
the Court and who asserts that he has got title to the property,
he has to prove the same. The very observation made by the
First Appellate Court that burden is on the appellant is erroneous
and even though the appellant is also discharged the burden of
placing the document at Ex.D1 to D4 particularly, claiming the
right in respect of the suit schedule property. Hence, I answer
fifth substantial question of law that the First Appellate Court
was not right in law in casting the burden on the appellant.
39. It is also important to note that the judgment
referred by the appellant counsel in the case of SULOCHANA
AMMA (referred supra) wherein the Appellate Court contend
that in a injunction suit, title in issue, decree of Court based on
equitable relief of injunction operates as res judicata in later suit
based on the title between the same parties and in paragraph 9
has observed that it is settled law that in a suit for injunction,
when title is in issue for the purpose of granting injunction, the
issue directly and substantially arises in that suit between the
parties. When the same issue is put in a later suit based on title
between the same parties or their privies in a subsequent suit
the decree in the injunction suit equally operates as res judicata.
In the case on hand also as rightly contend by the appellant
counsel that res-judicata applies and in the earlier suit in
O.S.No.53/2007 as I discussed earlier, the Trial Court comes to
the conclusion that sale deed at Ex.P1 is created based on only
the katha document and there was no title to the vendor that is
PW2 and when the said finding was also given in the earlier suit,
the earlier disposal of the judgment in O.S.No.53/2007 also
attracts the res judicata and on that ground also the judgment of
the First Appellate Court is liable to be set aside and this Court
also while admitting the appeal has held that to consider any
other substantial question of law which may arise for
consideration while hearing the appeal and proviso of Section
100(5) is also very clear that the Court can consider the other
substantial question of law at the time of considering the appeal
hence, this Court also taken note of the fact that whether the
earlier judgment of dismissal of the suit filed by the very same
plaintiff attracts the principles of res judicata hence, given the
finding that the judgment and decree of the earlier suit in
O.S.No.53/2007 also attracts the res judicata and on that
ground also the judgment and decree of the First Appellate Court
is liable to be set aside.
40. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The impugned judgment and decree dated 18.10.2016
passed in R.A.No.54/2014 is set aside and consequently, the
judgment and decree of the Trial Court is upheld in dismissal of
the suit of the plaintiff for the relief of declaration and injunction.
Sd/-
JUDGE
MD/SN
