M K Krishna Murthy Rao vs K S Sahul Hammed
2023 Latest Caselaw 4296 Kant

                                                    -1-
                                                                RSA No. 150 of 2008



                                    IN THE HIGH COURT OF KARNATAKA,

                                            DHARWAD BENCH

                                 DATED THIS THE 12TH DAY OF JULY, 2023

                                                 BEFORE
                              THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                                REGULAR SECOND APPEAL NO. 150 OF 2008

                        BETWEEN


                        1.     M.K.KRISHNA MURTHY RAO
                               S/O LATE.VENKOBA RAO,
                               AGED ABOUT 60 YEARS,

                        2.     HANUMANTHA RAO
                               S/O LATE VENKOBA RAO,
                               AGED ABOUT 54 YEARS,

                               BOTH ARE R/AT. HINDU,
                               MELVI VILLAGE,
                               H.B.HALLI TALUK,
                               BELLARY DISTRICT-583104.
           Digitally


YASHAVANT
           signed by
           YASHAVANT
           NARAYANKAR
                                                                      ...APPELLANTS
NARAYANKAR Date:
           2023.07.13
           11:42:00 -
           0700
                        (BY SRI. SMT. V.VIDYA IYER, ADVOCATE)

                        AND

                        1.
                               K.S.SAHUL HAMMED
                               S/O K.M.SYED MOHAMMED,
                               AGED ABOUT 50 YEARS,
                               R/AT. BHOVI COLONY,
                               NEAR KSRTC BUS STAND,
                               H.B.HALLI TALUK,
                               BELLARY DISTRICT-583104.
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                                         RSA No. 150 of 2008




2.    H.M.PANCHAKSHARAMMA
      W/O H.M.SOMAIAH,
      AGED ABOUT 70 YEARS,
      R/AT.KUDUDARA HAL VILLAGE,
      SIRUGUPPA TALUK,
      BELLARY DISTRICT-583104.

3.    BASHA SAB
      S/O BABU SAB,
      PROP: CYCLE SHOP,
      BASAVESHWARA BAZAR,
      H.B.HALLI TALUK,
      BELLARY DISTRICT-583104.

4.    PINJAR MOHAMMED
      S/O YAMUNA SAB,
      AGED ABOUT 40 YEARS,
      R/AT.BHOVI COLONY,
      NEAR KSRTC BUS STAND,
      H.B.HALLI,
      BELLARY DISTRICT-583104.

                                                 ...RESPONDENTS

(BY SRI. RAVI HEGDE ADVOCATE FOR R1 AND R4;
SMT. H.M. PANCHAKSHARAMMA- R2 SERVICE HELD SUFFICIENT;
R3-NOTICE SERVED)


     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT    AND     DECREE     DTD:    5.11.07     PASSED    IN
R.A.NO.30/2006 ON    THE   FILE OF THE    ADDL DISTRICT &
SESSIONS   JUDGE,   FAST     TRACK    COURT   NO.III,   HOSPET,
DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND
DECREE DTD: 4.4.06 PASSED IN O.S.NO.10/1998 ON THE FILE
OF THE PRL.CIVIL JUDGE, (SR.DN), & JMFC., HOSPET.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.07.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
                                   -3-
                                               RSA No. 150 of 2008



                           JUDGMENT

This is a plaintiff's appeal challenging the judgment and

decree passed by the Principal Senior Civil Judge and JMFC,

Hospet in O.S.No.10/1998 and confirmed by the District

Judge, Fast Track Court-III, Hospet in R.A.No.30/2006.

2. For the sake of convenience, parties herein are

referred with the ranks occupied by them before the Trial

Court.

3. The brief factual matrix leading to the case are as

under:

That the plaintiffs have filed a suit for declaration that

they are the owners of the suit schedule-A property and to

mandatory injunction against defendant No.1 to remove the

construction put up over Schedule-B property and handing

over the possession of the same to the plaintiffs and also for

permanent injunction against defendants 3 and 4 from

interfering with plaintiffs peaceful possession and enjoyment

over schedule-C property.

4. That the suit properties are described as

schedule- A, B and C. Schedule-B and schedule-C properties

RSA No. 150 of 2008

are part of schedule-A property. The suit schedule properties

are part of Survey No.12/C of Chintrapalli village of H.B. Halli

Taluk. That the plaintiffs are the owners of the schedule

properties inherited the same from their father-Venkobarao.

Totally the property was measuring 2 acres 12 guntas and

the father of the plaintiffs has converted major portion of the

land for formation of house sites and sold sites to the extent

of 1.56 acres. It is asserted that after the death of plaintiffs'

father-Venkobarao in 1979, plaintiffs inherited the suit

properties and enjoying them. It is alleged that an area to

the extent of 46 cents was sold by the father of the plaintiffs

to one Peeran Sab from land bearing Survey No.11/B to the

extent of 9 cents and 37 cents in Survey No.12/C and

remaining 19 cents is in possession of the plaintiffs' father

and after his death, it is in possession of the plaintiffs. It is

asserted that the defendants are interfering and constructing

a structure over the suit schedule property and hence, the

plaintiffs are constrained to file this suit.

5. The defendants appeared before the Trial Court

and filed their written statement disputing the claim of the

plaintiffs. The defendants 1 and 4 have filed their written

RSA No. 150 of 2008

statement admitting certain transaction but denied that 19

cents was in possession of plaintiffs' father. Defendants

further claimed that they are the bonafide purchasers as

they have purchased the suit property from the vendees of

Peeran Sab and hence, they have sought for dismissal of the

suit.

6. On the basis of the pleadings, the trail Court

framed following eight issues:

1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule A properties?

2. Whether the plaintiffs prove that 1st defendant has put up a construction in a portion of B schedule property on the basis of the alleged sale deed as alleged in the plaint?

3. Whether the 1st defendant proves that he is the absolute owner of the suit schedule property and he is in lawful possession as alleged in para 9(a) of the written statement?

4. Whether the defendant No.4 proves he is a bonafide purchaser and he is in the peaceful possession and enjoyment of the said property as alleged in para 9(a) of the written statement?

RSA No. 150 of 2008

5. Whether the defendants No.1 and 4 prove that suit of the plaintiff is barred by limitation as alleged in para 13 of the written statement?

6. Whether the defendant No.1 and 4 are entitled to the exemplary costs?

7. Whether the plaintiffs are entitled to the reliefs sought for?

8. What order or decree?

7. Plaintiff No.1 was examined as PW1 and four

witnesses were examined as PW2 to PW5 and relied on 50

documents marked at Ex.P1 to Ex.P50. On the other side,

defendant No.1 was examined as DW1 and defendant No.4

was examined as DW2. Four witnesses were also examined

on their behalf as DW3 to DW6 and relied on 55 documents

marked at Ex.D1 to Ex.D55.

8. After hearing the arguments and after perusing

the oral as well as documentary evidence, the learned Civil

Judge has answered Issue No.1 and 5 to 8 in the negative

while issue No.2 to 4 were answered in the affirmative and

ultimately dismissed the suit.

RSA No. 150 of 2008

9. Being aggrieved by this judgment and decree, the

plaintiffs approached the District Judge, Ballari and matter

came to be transferred to the Fast Track Court-III, Hospet.

After re-appreciating the oral and documentary evidence, the

learned District Judge, dismissed R.A.No.30/2006 filed by the

plaintiffs by confirming the judgment and decree passed by

the Trial Court. Being aggrieved by these concurrent

findings, the appellants are before this Court.

10. The learned counsel for the appellants would

contend that the judgments and decrees are illegal and

erroneous and admittedly the respondents admit the

ownership of the plaintiffs over Survey Nos.12/B, 12/C and

11/B, which are adjoining to each other. It is also asserted

that the sale deed executed by the father of the appellants in

favour of Peeran Sab would reflect the extent of land and

material evidence led by the plaintiffs was ignored and the

admissions given by the witnesses of defendants were also

not considered. It is asserted that Peeran Sab had no

interest over the portion of Schedule-A property and 19

cents is retained by the plaintiffs' father and now the

defendants are putting up structure and interfering with the

RSA No. 150 of 2008

same, which compelled them to file a suit. It is further

asserted that the Courts below have failed to appreciate the

oral as well as documentary evidence in proper perspective,

which has resulted in miscarriage of justice. Hence, they

would seek for allowing the appeal.

11. Per contra, learned counsel for the respondents

would support the judgments and decrees of the Courts

below and it is asserted that the father of the appellants i.e.

Venkobarao has sold 37 cents and 9 cents to Peeran Sab and

the defendants have purchased those properties from Peeran

Sab. It is asserted that the father of the plaintiffs was owner

to the extent of 2 acre 12 guntas and though there is

assertion that the father of the plaintiffs got converted 1 acre

56 cents into non-agricultural and sold it by making plots, no

piece of evidence is placed to substantiate this contention. It

is also asserted that 19 cents which is now claimed by the

plaintiffs is not identifiable and no sketch or survey report is

placed to specify 19 cents and hence, he would contend that

when the location of 19 cents itself is under dispute, the

question of plaintiffs succeeding in the suit does not arise at

RSA No. 150 of 2008

all as they are supposed to prove their own case and they

cannot take advantage of weakness of the defendants.

12. This Court by order dated 08.04.2015 framed the

following substantial questions of law:

(i) Whether both the Courts below have rightly appreciated the pleadings with reference to plaintiffs title to suit A schedule property?

(ii) Whether both the Courts below were justified in giving a finding that the 1st defendant is owner of suit B schedule property as against admission of Panchaksharamma that the plaintiffs have retained 19 cents of land in R.S.No.12C of Chintrapalli village?

(iii) Whether both courts below have rightly appreciated the documents under which the suit A schedule land is restored to the plaintiffs father?

13. Having heard the arguments and perusing the

records, there is no serious dispute of the fact that the

plaintiffs' father was owner of Survey No.12/C, which was

totally measuring 2 acres 12 guntas. Further under Ex.D9,

the father of the plaintiffs has sold 37 cents out of Survey

No.12/C and 9 cents out of Survey No.11 in favour of Peeran

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RSA No. 150 of 2008

Sab, which is not under dispute. It is the contention of the

plaintiffs that 1.56 acres of land was got converted by the

father of the plaintiffs and sites were formed and were sold.

But to substantiate this contention, no piece of evidence is

placed before Court. There is no dispute of the fact that the

plaintiffs' father was owner to the extent of 2 acres 12

guntas in Survey No.12/C. When 1.56 acres of land was

converted into sites, that is required to be proved by the

plaintiffs, but the plaintiffs have not produced any piece of

document to substantiate this contention. Unless, the

plaintiffs establish the conversion and sale of 1.56 acres of

lands, the question of they retaining other portion does not

arise at all.

14. There is also no serious dispute of the fact that

37 cents was sold to Peeran Sab and this is evident from

Ex.P10-sale deed. Interestingly, the boundaries of the

properties sold by the father of the plaintiffs is mentioned in

the sale deed and though 37 cents and 9 cents were sold

from different survey numbers, the boundaries were shown

to be as under:

Towards east: Railway property,

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RSA No. 150 of 2008

Towards west: the property already sold by him, Towards north: Government land and Towards south: the property of Dr.Ajjayya bearing Survey No.5.

15. If this recital is taken into consideration, then

these recitals clearly disclose that the western property is

also sold by him and he did not retain any northern portion

of the property as the boundary was shown to be the

Government land. Hence, it is evident that no property was

retained by the father of the plaintiffs as claimed by them.

16. All along it is asserted that 19 cents of the

property is retained, but where exactly this 19 cents of

property is situated is not at all forthcoming. On the

contrary, the sale deed executed by the father of the

plaintiffs disclose that he did not retain any property.

17. Much arguments have been advanced by the

learned counsel for the appellants-plaintiffs that the northern

boundary of the property is sold by Peeran Sab in favour of

defendants 1 and 2 is not disclosed, but the basic document

which confer title to Peeran Sab is the sale deed executed by

the father of the plaintiffs wherein the northern boundary of

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RSA No. 150 of 2008

the property sold in favour of Peeran Sab is shown to be the

Government Land. Hence, admittedly, no property was

retained by the father of the plaintiffs towards northern side.

Much arguments have been advanced regarding admission

given by DW4 that under compromise, plaintiff owns 19

cents of the property in survey No.12/C. It is settled

principles of law that the documentary evidence will prevail

over the oral evidence. Men may lie but not the documents,

which is basic principles of law. When the documents relied

by the plaintiffs themselves does not establish what is the

extent of land retained by their father, now they cannot rely

on stray admissions on the part of DW4. Since, the plaintiffs

have approached the Court, they are required to prove that

19 cents of land, in a particular area with specific

boundaries, is retained by their father. But that itself is

missing. Coupled with this, the plaintiffs alleged that their

father has converted 1.56 acres of land into plots and sold it.

But no lay-out plan or documents are forthcoming in this

regard. No survey was taken and though initially for

appointment of commissioners application was filed in

I.A.No.8, but the same was dismissed by the Trial Court

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RSA No. 150 of 2008

since it was filed before commencement of trial, with a

liberty to file such an application after trial. Subsequently,

the plaintiff did not avail opportunity to move similar

application to get survey the land to locate the properties.

The plaintiffs tried to rely on Ex.P16, which cannot be looked

into as the trial Court with proper reasons has rejected this

document, as it is not a public document and the author was

also not examined. On appreciation of the oral and

documentary evidence, absolutely no piece of documents are

forthcoming to show that the plaintiffs' father has retained

19 cents of land.

18. Though the plaintiffs have relied on voluminous

documents, the initial burden is on them to substantiate their

contention regarding retention of portion of 19 cents with

specific boundaries. But considering the sale deed executed

by their father, which is undisputed, the northern boundary

is shown to be the government land itself. Hence, both the

courts are justified in dismissing the suit filed by the plaintiff

and the appeal. Both the Courts below have rightly

appreciated the pleadings with reference to the title of the

plaintiffs to schedule-A property and have rightly given

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RSA No. 150 of 2008

finding regarding the title of defendant No.1 over schedule-B

property. Both the Courts below have properly appreciated

the oral as well as documentary evidence and the judgment

and decree passed by the Trial Court, which is confirmed by

the First Appellate Court does not suffer from any infirmity or

illegality so as to call for interference. Under these

circumstances, the substantial questions of law are answered

in the affirmative in favour of the defendants. As such, the

appeal being devoid of merits does not survive for

consideration and accordingly, I pass the following:

ORDER

The appeal stands dismissed.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/-

JUDGE YAN