Karnataka High Court
Sri K Nagabhushan vs Sri K Rama Murthy on 8 April, 2024
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RFA No. 1199 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1199 OF 2008 (INJ)
BETWEEN:
SRI K NAGABUSHAN,
S/O B.D KRISHNAPPA,
AGED ABOUT 43 YEARS,
ABBIGERE LAYOUT,
CHIKKABANAVARA POST,
BANGALORE-560 090.
...APPELLANT
(BY SRI SAINATH & SRI S SUDHINDRANATH, ADVOCATES)
AND:
1. SRI K RAMA MURTHY,
S/O LATE K C KEMPAIAH,
AGED ABOUT 51 YEARS.
SINCE DECEASED BY HIS LR'S
Digitally signed 1(a) SMT. SUNANDAMMA,
by NANDINI R W/O LATE K RAMAMURTHY,
Location: High AGED ABOUT 50 YEARS.
Court of
Karnataka 1(b) SRI NAGARAJA,
S/O LATE K RAMAMURTHY,
AGED ABOUT 25 YEARS.
1(c) SRI RAKESH,
S/O LATE K RAMAMURTHY,
AGED ABOUT 21 YEARS.
ALL ARE R/AT NO. 398,
KEMPEGOWDA ROAD, KODIGEHALLI,
SAHAKARANAGAR POST,
BANGALORE-560 092.
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RFA No. 1199 of 2008
2. SRI VENKATA SANJEEVAIAH,
S/O LATE RAMAIAH,
AGED ABOUT 73 YEARS,
KODIGEHALLI, NEAR WATER TANK,
SAHAKARANAGAR POST,
BANGALORE-560 092.
...RESPONDENTS
(BY SRI P.M NARAYANASWAMY, ADVOCATE FOR R1(a TO c);
APPEAL AGAINST R2 IS ABATED V/O DATED 15.06.2023)
THIS RFA IS FILED U/S 96 R/W ORDER XLI OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.10.2008
PASSED IN OS.NO.15131/2005 ON THE FILE OF THE XIII
ADDL.CITY CIVIL JUDGE, MAYOHALL UNIT, BANGALORE, (CCH-
22), DECREEING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
11.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree dated
20.10.2008 passed in O.S.No.15131/2005 by the learned
XIII Additional City Civil Judge, Mayohall Unit, Bangalore,
CCH-22, decreeing the suit for permanent injunction, the
defendant No.2 has approached this Court in appeal.
2. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
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3. Brief facts of the case of the plaintiff are as
below:
(a) The plaintiff describes the suit schedule
property to be the site bearing No.1, old katha
NO.587/218/1 of Byatarayanapura CMC
No.261/218/1 situated at Kodigehalli village,
measuring East-West 30 feet, North-South 40 feet,
bounded on East-By road, West by Muni Huchappa's
property, North by: remaining portion of same
property and ACC Sheet House and South by: RCC
roof house, vacant land and Kodigehalli road.
(b) The plaintiff is the absolute owner of the above
property and in possession of the same through a
registered sale deed executed by
Ananthapadmanabhachar in favour of father of the
plaintiff Kempaiah dated 20-10-1992. After death of
his father Kempaiah, the plaintiff is in possession and
enjoyment of the suit schedule property, paying the
municipal taxes, cesses etc. The said
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Ananthapadmanabhachar, the vendor of the plaintiff
had purchased 20 guntas of land in Survey No.218 of
Kodigehalli village from defendant No.1 under the
registered sale deed dated 09-08-1979. Later, he
has sold the suit schedule property to Kempaiah
under the sale deed and therefore, the plaintiff is in
lawful possession and enjoyment of the suit schedule
property.
(c) The defendants having no right, title or interest
over the suit schedule property are trying to
encroach by putting up a shed on the basis of certain
forged and created documents, claiming the
plaintiff's property as their property. The resistance
by the plaintiff by approaching the jurisdictional
police did not yield any result and therefore, the
plaintiff was constrained to file the suit. Hence, the
plaintiff prayed for a decree of perpetual injunction
against the defendants restraining them from
interfering with the peaceful possession an
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enjoyment of the suit schedule property by the
plaintiff and other appropriate reliefs.
4. After service of summons, the defendants
appeared before the trial Court through their counsel and
filed their separate written statements.
5. Defendant No.1 contended as below:
(a) The suit schedule property is not part and
parcel of survey No.218 of Kodigehalli village. But
however, it is the part of the property which
belonged to Ananthapadmanabhachar, who claimed
to be the vendor of the plaintiff. The said
Ananthapadmanabhachar had filed OS No.4465/1987
against defendant No.1 and one Anjanappa in
respect of property measuring 30 ft x 40 ft. with four
stone pillars on the southern side of survey No.218
of Kodigehalli. On 20-6-1998, the said suit came to
be dismissed for non prosecution. In the said suit,
defendant No.1 had contended in his written
statement that the land belongs to Muthurayaswamy
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Temple, coming under Mujarayi Department and
defendant No.1 was cultivating the land as Archak.
The entire survey No.218 was comprising of 01 acre
16 guntas, out of which, 16 guntas was Kharab land.
Defendant No.1 filed declaration before the Special
Deputy Commissioner, claiming occupancy rights
under Inam Abolition Act. Accordingly, the land was
granted on 28-12-1978. There was a restriction for
alienation for a period of 15 years. Though issues
were framed in OS No.4465/1997, the suit came to
be dismissed for non prosecution.
(b) It is further contended that father of the
plaintiff Kempaiah, filed a suit through his son
Manjunath in OS No.8666/1997 in respect of the
schedule property and it was dismissed on 02-09-
1998. In the said suit also, defendant No.1 had filed
written statement denying the possession of the
property by Kempaiah or his son Manjunath. In the
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said suit also, defendant No.1 had taken up similar
contentions in his written statement.
(c) Earlier to it, the father of the plaintiff had also
filed OS No.689/1990 and it was dismissed as
withdrawn when it was at the stage of evidence.
Therefore, it is contended that the plaintiff has
suppressed the real facts and filing of the suit after
suit, though the plaintiff knew about the same. It
was further contended that the plaintiff is not in
possession of the suit schedule property since no site
is formed till today and it remained to be an
agricultural land and defendant No.1 was paying
taxes to the Government and he has constructed a
building as farm house and living there by
performing Pooja of the temple. The other
contentions of the plaintiff regarding interference by
the defendants etc., are specifically denied by
defendant No.1 and he sought for dismissal of the
suit.
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6. Defendant No.2 in his written statement has
contended as below:
(a) The defendant No.2 is the absolute owner in
possession of 1.39 guntas out of 01 acre in
Sy.No.218 of Kodegehalli village through a sale deed
dated 17.01.2002 from defendant No.1 for valuable
consideration. It is alleged that plaintiff has
suppressed the real facts. He contends that the land
was neither converted to non-agricultural nor
permission was granted to form a layout. Therefore,
possession was never obtained by the plaintiff from
his vendor.
(b) The documents produced by the plaintiff in
respect of the suit schedule property is concocted
and fabricated and that the plaintiff has not
approached to the court with clean hands. He has
reiterated the contentions taken up by the defendant
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No.1 regarding the previous suits filed by the father
and brother of the plaintiff.
7. On the basis of the above pleadings, the trial
Court framed the following issues:
1. Whether the plaintiff proves his lawful possession
and enjoyment over the suit schedule property as on
the date of the suit?
2. Whether the plaintiff proves the alleged
obstructions by the defendants?
3. Whether the plaintiff is entitled to the relief
claimed?
4. What decree or order?
8. In order to prove his case, plaintiff examined
himself as PW1 and examined one witness as PW2 and
Exhibits P1 to P28 were marked in evidence. Defendants
No.1 and 2 were examined as DWs.1 and 2 and Exhibits
D1 to D20 were marked in evidence.
9. After hearing both the sides, the trial Court
answered issue Nos.1 and 3 in the affirmative and
proceeded to decree the suit of the plaintiff.
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10. The said judgment and decree is challenged by
defendant No.2 in this appeal.
11. On issuance of notice, respondent No.1/plaintiff
appeared before this Court through his counsel and appeal
against respondent No.2 is dismissed as abated.
12. On admitting the appeal, the trial Court records
have been secured and heard the arguments by both the
sides. During the pendency of the appeal, respondent
No.1/plaintiff died and his LRs were brought on
record.
13. During the pendency of this appeal, the
appellant/defendant No.2 has filed an application in IA
No.1/2018 under order 41 Rule 27 of CPC to produce three
additional documents. The affidavit filed in support of the
application contends that the description of the suit
schedule property in the plaint and the documents
produced by the plaintiff and evidence adduced by the
plaintiff before the trial court are contrary to each other.
The identification of the suit schedule property is
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improbable and impossible. It is contended that the
Ananthapadmanabhachar has filed a suit against
Venkatasanjeevaiah i.e., defendant No.1 in the year 1987
which is registered as OS No. 4465/1987 and it was
dismissed for non prosecution on 26-4-1998. The plaint in
the said suit is essential for defendant No.2/appellant to
demonstrate that non existence of the suit schedule
property as alleged in the present suit. Similarly, identical
Original suit in OS No.8666/1997 was filed by Kempaiah,
the father of the plaintiff and it was closed as abated on
02-09-1998. In both the suits, the suit schedule property
vary in description and again the description of the suit
schedule property is different from the description stated
in those two suits. Therefore, those documents are
essential for the appellant/defendant No.2 and it goes to
the root of the case.
14. It is contended that if the descriptions of the
suit schedule property are perused with respect to the
description mentioned in those suits, the identification of
the property is impossible and improbable and therefore,
he contends that those documents may be permitted to be
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produced. The documents sought to be produced are, the
copy of the plaint in OS No.4465/1987, plaint in OS
No.8666/1998 and the written statement of
Venkatasanjeevaiah /defendant No.2 in
O.S.No.8666/1997.
15. The said application is opposed by the plaintiff/
respondent No.1 on the ground that those documents
could have been produced by the appellant before the trial
court and no sufficient reasons are forthcoming for
invoking the provisions of Order 41 Rule 27 of CPC. It is
contended that the additional documents which are sought
to be produced are not at all relevant for the purpose of
this suit. Therefore, it is contended that the application is
devoid of merits and as such, the same is liable to be
dismissed. Inter-alia, it is also the contention of the
plaintiff/respondent No.1 that OS No.4465/1987 was filed
by Ananthapadmanabhaachar against Venkatasanjeevaiah
and one Anjinappa and the plaintiff is not the party to the
said suit. Therefore, the description of the property
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mentioned in the said suit is not pertaining to the suit
schedule property. He contends that property described in
the said suit is not pertaining to the plaintiff and not
concerned and therefore, on this ground the application is
not sustainable in law.
The Arguments:
16. The learned counsel appearing for the
appellant/defendant No.2 in his arguments has contended
that:
a) Suit schedule property described by the plaintiff
and his father in earlier suit is different than the one
mentioned in the present suit. It is contended that the
alleged sale deed relied by the plaintiff executed by
Ananthapadmanabhachar in favour of the father of the
plaintiff Kempaiah, mention that, there is a house situated
on the property, but the photographs which were shown to
DW1 in the cross- examination show that it is completely
newly constructed shed. Therefore, there is a clear
inconsistency in the contention of the plaintiff. He further
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submitted that the boundaries mentioned in Ex.P1, plaint,
etc., show inconsistency and therefore, the contention of
the plaintiff is unbelievable.
b) He further submits that the revenue records relied
by the defendants show that the conversion of 20 guntas
of land in survey No.218 is not reflected in the records of
rights and therefore, the plaintiff's contention that there
was conversion cannot be relied upon. The conversion of
20 guntas of land for non agricultural purpose was not
pleaded in the plaint and as such, the evidence which is
not pleaded cannot be considered.
c) The third prong of the argument by the learned
counsel for the appellant is that the impugned judgment
does not appreciate the evidence on record in a proper
way. He submits that Para 10 of the judgment of the trial
Court fails to appreciate that defendant No.2 had
purchased portions of the lands measured in guntas, but
not in square feet or the sites. Therefore, when defendant
No.1 had sold portion of the land in favour of defendant
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No.2, which is reflected in records of rights, the possession
of defendant No.2 is to be presumed by the trial Court.
Therefore, he contends that the appreciation of the
evidence of the trial court is not proper.
d) Fourthly, he submits that the plaintiff had failed to
prove the identity of the property. He contended that
when Ananthapadmanabhachar as purchased 20 guntas of
land from defendant No.1 Venkatasanjeevaiah under the
sale deed as per Ex.P10, thereafter had allegedly
converted the land into non agriculture, there should have
been survey maps depicting the same. There is absolutely
no evidence on record by the plaintiff to show that
Ananthapadmanabhachar has formed the layout and in the
said layout the plaintiff's father Kempaiah had purchased a
site. Therefore, he contends that the identification of the
property by the plaintiff is not proper and hence, the trial
Court could not have granted an injunction.
e) In support of his contention, he has relied upon
the judgment in the case of Vinod Kumar Arora Vs.
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Smt. Surjit Kaur1 to contend that "the pleadings of the
parties form the foundation of their case and it is not
open to them to give up the case set out in the pleadings
and propound a new and different case." It was also held
that "it must be remembered that the Rule would apply
only where the findings have been rendered with reference
to the facts and not on the basis of non-existent material
and baseless assumptions".
f) He further relied on the judgment in the case of
Birad Mal Singhvi Vs. Anand Purohit2 concerning the
appreciation of evidence. It was held that "mere proof of
documents would not tantamount to proof of all the
contents or the correctness".
g) He relied on the judgment of the Apex Court in
the case of Maria Margarida Sequeria Fernandes and
others Vs. Erasmo Jack de Sequeria (Dead) through
AIR 1987 SC2179
AIR 1988 SC 1796
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LRs3 wherein, it was held that "the Court must ensure
that the pleadings of a case must contain sufficient
particulars. Insistence on details reduces the ability to put
forward a non-existence or false claim or defence. In
dealing with a civil case, pleadings, title documents and
relevant records play a vital role and that would ordinarily
decide the fate of the case". It was also held that, " ......the
endeavour of the Court that if a suit for mandatory
injunction is filed, then it is the duty of the Court to
critically examine the pleadings and documents and pass
an order of injunction".
h) He further relied on the judgment in the case of
Chikkam Koteswara Rao Vs. Chikkam Subbarao and
others 4 wherein, it was held that, "....before the right of
a party can be considered to have been defeated on the
basis of an alleged admission by him, the implication of
the statement made by him must be clear and conclusive
AIR 2012 SC 1727
AIR 1971 SC 1542 (V.58 c.317)
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and there should not be any doubt or ambiguity about the
alleged admission."
i) Lastly, he relied on the judgment in the case of
Remco Industries Workers House Building Co-
operative Society vs. Lakshmeesha M and others,
wherein it was held that "the identity of the land is vital
for the just decision in the case". It was also held that, "if
necessary, the appellate Court can frame an issue and
remit it for trial, which had been omitted to be framed and
tried by the trial court."
17. Therefore, he contends that the trial Court had
passed the orders misreading and misconstruction of
material on record and the findings were given on the
basis of non- existent misconstrued facts, resolutely
illegal, absurd and perverted order. Hence, he has prayed
to allow the appeal and dismiss the suit.
18. Per contra, the learned counsel appearing for
the plaintiff has contended that the boundaries in the
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plaint and Ex.P1 are one and the same. In Ex.P1, it was
stated that the suit schedule property bears panchayat
No.587/218/1 and later, CMC Byatarayanapura formed
and it was renumbered as 261/218/1. He contends that
the transfer certificate and receipts have been produced
wherein the old number is shown. He contends that
Ananthapadmanabhachar had purchased 20 guntas of land
from Venkatasanjeevaiah and thereafter, he sold the site
measuring 30 ft. x 40 ft. to the plaintiff in the year 1992.
By that time, Ananthapadmanabhachar had converted the
same into non agriculture. It is submitted that the
boundaries shown in Ex.D1 are different and it may be
true that defendants' land is situated somewhere else. It is
contended that when the land is assessed for the tax by
the CMC, obviously, after conversion of the land it would
not be available in the revenue records. Therefore, he
points out that the tax payment receipts produced by the
defendants do not bear the CMC Number or the Panchayat
Number. Hence, he contends that the suit schedule
property is owned and possessed by the plaintiff and
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defendants are unnecessarily or illegally obstructing his
possession and enjoyment.
19. It is submitted that DW1 in his cross-
examination has admitted that the property owned by
Ananthapadmanabhachar is to the extent of 20 guntas and
the suit schedule property falls within the property of
Ananthapadmanabhachar. It is pointed out that DW1,
strangely, contend that the sale deed in favour of
Ananthapadmanabhachar had been cancelled. Therefore,
the evidence of defendant is inconsistent. Whereas, the
documentary evidence placed on record by the plaintiff are
more reliable and rule of Preponderance of Probability
would show the plaintiff is in possession of the suit
schedule property. It is also contended that DW1 admits
that the plaintiff has constructed a shed in suit schedule
property and he is in possession of it, but he contends that
the plaintiff is in illegal possession. If the plaintiff is in
unauthorized possession, it is for the defendants to
establish his rights over the same. When the prima facie
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documents show that the plaintiff is in possession and
enjoyment of the property, the judgment of the trial Court
need not be interfered. Hence, he has sought for dismissal
of the appeal.
20. The points that arise for consideration in this
appeal are:
(i) Whether the plaintiff has proved that he is in
lawful possession and enjoyment of the suit schedule
property as on the date of the suit and that there is
interference by the defendants?
(ii) Whether the impugned judgment passed by the
trial Court calls for any interference?
Re.Point Nos. (i) and (ii)
21. This Court is aware of the principles governing
the scope of the appeal u/s 96 of CPC. The principles laid
down in the case of Santosh Hazari v. Purushottam
Tiwari5, enunciate the principles that govern a first appeal.
So also the recent judgment of the Apex court in the case
(2001) 3 SCC 179
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of V. Prabhakara v. Basavaraj K.6 are also kept in view,
while considering the points raised in this appeal.
22. The fact that the suit schedule property was
owned by defendant No.1- Venkatasanjeevaiah, by virtue
of a grant by the Government is not in dispute. Defendant
No.1/Venkatasanjeevaiah states that the land was
belonging to a Temple and he applied to the Government
under the Inams Abolition Act and survey No.218
measuring 01 acre 16 guntas was granted to him. Out of
which, 16 guntas was the Kharab land and therefore, 01
acre of land was available. It is admitted that out of the
said 01 acre, he had sold 20 guntas to
Ananthapadmanabhachar. Thus, it is an admitted fact by
the defendants that defendant No.1 had retained only 20
guntas of land.
23. The plaintiff contend that his father Kempaiah
has purchased a site in 20 guntas of land which was
(2022) 1 SCC 115
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purchased by Ananthapadmanabhachar under the sale
deed Ex.P1. He states that the said site is on the western
side of the portion of the property of
Ananthapadmanabhachar. Curiously, either the plaintiff
or the defendant do not produce any document to show
that how the sites have been formed. Defendant No.1
though contends that he did not sell any property except
the property sold to defendant No.2/appellant herein,
admits in the cross examination that he sold several pieces
of land to others and those sale deeds were confronted
him in the cross examination and he admits the same.
Therefore, as per his evidence, Sy.No.218 measuring 01
acre was divided into two portions measuring 20 guntas
each, the said Ananthapadmanabhachar and defendant
No.1 knew where their land is situated. It is relevant to
note that in Ex.P10, the land purchased by
Ananthapadmanabhachar shows the boundaries as: "East
by: Government channel; West by Munihuchappa's
property and Kannappanavara Munishamappa's land,
North by: Government land and South by : Government
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road". It is pertinent to note that this Ex.P10 appears to
describe the entire Survey No.218, for, no any remaining
land of defendant No. 1 is shown on any side.
24. Be that as it may, now the Court has to decide
whether the plaintiff has proved that he is in lawful
possession and enjoyment of the suit schedule property or
not?
25. Evidently, the plaintiff relies on the Sale Deed
executed by Ananthapadmanabhachar in favour of his
father Kempaiah. The said sale deed is at Ex.P1. It is
executed by the said Ananthapadmanabhachar. Ex.P1,
sale deed dated 20-10-1992 mention that said
Ananthapadmanabhachar has handed over the possession
of the property much earlier and there existed a shed with
sheets since 09 years. It is also relevant to note that
katha has also been transferred in favour of Kempaiah. It
is also pertinent to note that the katha number is also
shown as No.587/218/1. Thus, it is evident that in the
year 1992, the site was bearing the katha Number issued
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by the Panchayat Byatarayanapura or CMC
Byatarayanapura and it was the subject matter of the
transaction between Ananthapadmanabhachar and the
plaintiff's father Kempaiah.
26. Per contra, defendant No.2 relied on the sale
deed executed by Venkatasanjeevaiah, defendant No.1 in
his favour as per Ex.D1. Ex.D1 is dated 17-01-2002. It is
pertinent to note that, Ex.D1 is in respect of 5.37 guntas
and 1.39 guntas in Survey No.218. Obviously, this
property purchased by defendant No.2 is in 20 guntas of
land which was retained by defendant No.1-
Venkatasanjeevaiah. The boundaries mentioned in Ex.D1
in respect of two pieces of lands appear to be different.
5.37 guntas of land is described as: "land of Muniyappa on
the East; 11 ft. road and that of Venkatasanjeevaiah's land
on the West, land of Basavaraj on the North and
Kodigehalli Tindlu road on the South". The other piece of
land measuring 1.39 guntas is described with the
boundaries as: 11 feet road on the East; Land of
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Ramanjinappa on the West, land of Rathnamma on the
North and house of Venkatasanjeevaiah on the South.
What can be gathered from Ex.D1 is that it is a corner
site, but on east it was mentioned as 11 ft. road.
27. From the perusal of the above documents, it is
clear that the plaintiff is claiming his rights in the property
which was purchased by Ananthapadmanabhachar.
Whereas, the defendants are contending that their
property is the remaining portion retained by
Venkatasanjeevaiah. In the circumstances, it is incumbent
upon defendant No.1 Venkatasanjeevaiah as to where he
sold 20 guntas of land to Ananthapadmanabhachar when
defendant No.1 has admitted that he has sold 20 guntas of
land to Ananthapadmanabhachar it is evident that he
should have explained the same with reference to the
sketch. Absolutely, no such sketch is forthcoming on the
record. On the part of the plaintiff, he is relying on the
sale deed executed by Ananthapadmanabhachar in favour
of Kempaiah and admittedly, the said sale deed is of the
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year 1982 and in the sale deed, it is mentioned that there
exists the ACC sheet shed in the property and the property
was given Panchayat number by Byatarayanapura CMC. In
addition to it, the plaintiff has shown that there are
receipts for payment of the property tax. Obviously, the
receipts for payment of property tax are from the year
2002 onwards and there was no such receipts pertaining
to the year 1992 to 2002. It appears that the when
revenue records sought, it was informed through an
endorsement issued by the revenue authorities that the
documents are not available. Ex.P17 and Ex.P18 show
that Ananthapadmanabhachar had sought for certain
records, i.e., the RTC of survey No.218 from year 1966 to
1988. But he has received an endorsement stating the
records are in dilapidated condition and therefore, the
records cannot be given. This endorsement shows that the
revenue records are not clearly available.
28. The other documents which are of relevance
are, the Encumbrance certificate shows that the sale deeds
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have been recorded in the Sub Registrar's Office with
respect to the survey numbers. Ex.P22, Ex.P23 are the
Tax Payment receipts, self assessment declarations etc.,
pertaining to the suit schedule property by the plaintiff.
Evidently, these documents show the Panchayat Number
as contended by the plaintiff in the plaint. Whereas, the
defendants have produced self assessment tax payment
receipts at Ex.D18 to D20, these documents show that
there is mention about the Survey Number, but not about
the Panchayat Number. The Panchayat has received the
taxes by mentioning survey Numbers, but not the
Panchayat Number. These documents, therefore, do not
refer to Panchayat Number which the plaint is describing.
29. Let us now turn to the oral testimony of the
witnesses. PW1 has reiterated his contention as
contended in the plaint. PW1, at the time of his evidence
has let in a conversion order issued by the Deputy
Commissioner at Ex.P16. This document shows that the
20 guntas of land which was purchased by
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Ananthapadmanabhachar had been converted into non
agriculture and it was meant for Industrial Purpose i.e.,
for the manufacturing of the bricks. This conversion is
dated 06-03-1984. Obviously, after five years of the
purchase, Ananthapadmanabhachar applied for the
conversion of the land and it was granted by the Deputy
Commissioner. Evidently, this conversion is not stated by
the plaintiff in the plaint. At the most, this document can
be considered as further elucidation of the contentions of
the plaintiff. Whether it was converted or not will not have
much bearing in the matter. It can be only said that the
conversion of the land into non agriculture has led to entry
of property numbers in the Panchayat records. The land
which was converted did not reflect in the revenue records
(as revenue records of Sy No.218 are not available) and
therefore, it would be susceptible for assessment of the
tax by the Panchayat or the CMC. Except this, much
importance cannot be attached since the plaintiff has not
averred the same in the plaint.
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30. The cross-examination of PW1 shows that
Ananthapadmanabhachar has not formed layout, but has
formed road in 20 guntas of land. He has denied the
suggestion that Ananthapadmanabhachar did not had
any alienable right in 20 guntas of land as the sale deed
in his favour had been cancelled. It is pertinent to note
that, when the specific suggestion is made to PW1 that the
sale deed in favour of Ananthapadmanabhachar had been
cancelled, it was incumbent upon defendants to establish
the same. Therefore, it is evident that a suggestion has
been made saying that Ananthapadmanabhachar had no
right, or interest in 20 guntas of land which he had
purchased. This contention appears to be without any
supporting documents. Except this, there is nothing
elicited in the cross-examination of PW1.
31. PW2-Rajendra, has only stated that he has seen
that the plaintiff is in possession of the suit schedule
property. His cross examination is only of denial.
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32. DW1-Venkatasanjeevaiah has stated in his
affidavit evidence that plaintiff is not at all in possession
and enjoyment of the suit schedule property. He has
reiterated his contentions in the written statement. He has
mentioned about the various suits filed by the plaintiff's
father and also by Ananthapadmanabhachar. In para 7
of the affidavit, he states that Ananthapadmanabhachar is
not at all having any right or possession over this portion
of the property in survey No.218. This contention of DW1
goes against his own document which is produced at
Ex.P10. If the right, title and interest of
Ananthapadmanabhachar has been denied by DW1-
Venkatasanjeevaiah and he goes against his own
document executed as per Ex.D10, his testimony cannot
be accepted. It may be true that Ananthapadmanabhachar
has not formed any layout, but he had formed the road as
stated by PW1 in the cross-examination. But the evidence
of DW1 shows that he do not admit his own registered
document as per Ex.P10. It is not known on what basis
DW1 has made such a statement in his affidavit.
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33. The cross-examination of DW1 is of some
importance. He admits in the cross-examination that he
sold 20 guntas of land to Ananthapadmanabhachar and
thereafter, he has sold 06 guntas to defendant No.2. He
states that he has constructed the building in the site
measuring 70 ft. x 40 ft. He states that apart from the
said site, he has no other property left with him. He does
not disclose as to the property which he had sold from out
of 20 guntas which he has retained. A categorical
admission is made by him to the effect that the two
items of the properties sold in favour of defendant No.2
are not concerned to the suit schedule property. Therefore,
it is evident that defendant No.2, who is appellant herein
cannot contend or claim any right, title or interest over the
suit schedule property. When DW1 himself has made such
an admission in the cross-examination, it is not in the
mouth of defendant No.2 to say that he has any right, title
or interest over the suit schedule property.
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34. Further in the cross-examination, DW1 admits
that he has sold certain property to one Basavaraj and
another piece of land to Basavegowda. These sale deeds
were confronted to him and are marked as Ex.P24 and
P25. He was also confronted with the photographs at
Ex.P26. He states that the shed seen in the said
photograph is put up by plaintiff unauthorizedly. Thus, he
has submitted that the plaintiff is in possession of the suit
schedule property and it is admitted that his house is
situated on the southern side of the suit site. Further, he
admits that he has not filed any suit challenging the sale
deed executed in favour of Ananthapadmanabhachar or
the plaintiff's father. Further, he admits that the land
which has been purchased by Ananthapadmanabhachar is
not used for the agricultural purpose since last 20 years.
These admissions by DW1 go a longway in showing that
the plaintiff is in possession and enjoyment of the suit
schedule property.
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35. DW2, who is none other than the appellant
herein has reiterated the averments of the written
statement in his chief examination. In the cross-
examination, the photographs of suit schedule property at
Exs.P27 and 28 were confronted to him. He states that
the buildings in photographs at Exs.P27 and P28 are
constructed by him. Curiously, the said shed, when shown
to DW1, he says that the plaintiff has unauthorizedly
constructed the said shed. Thus, it is evident that there
are divergent contentions by DW1 and DW2. A perusal
of Exs.P26, 27, and P28 would clearly show that they are
one and the same shed. Thus, it is evident that defendant
No.2 claim that the said shed belongs to him and he
constructed it, whereas, defendant No.1 admits that the
shed was constructed by the plaintiff unauthorisedly.
36. This evidence on record would clearly show that
the claim of the plaintiff over the suit schedule property is
consistent, clear and is supported by the documents
produced by him. Whereas, defendants No.1 and 2 are
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not consistent in their claim and contentions. Defendant
No.1 Venkatasanjeevaiah says that the sale deed in favour
of Ananthapadmanabhachar has been cancelled. Such
contentions are directly against Ex.P10 and the admissions
in the cross examination shattered the contentions of the
defendants.
37. Coming to the arguments advanced by learned
counsel for the plaintiff, it is evident that the boundaries
as may be found from the various documents are not of
much relevance in the matter. It would suffice to note
that the boundaries shown by the plaintiff in the plaint is
in consonance with his sale deed of the year 1992. It is
also relevant to note that the boundaries of the property
shown in the suit filed by Ananthapadmanabhachar
against defendant No.1 and one Anjinappa in OS
No.4465/1987 was not of any relevance since the plaintiff
is not a party to the said suit. The burden of showing that
the suit schedule property was part and parcel of 20
guntas of land retained by Venkatasanjeevaiah was
squarely upon him. On the part of the plaintiff, he has
clearly stated that Ananthapadmanabhachar has sold the
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property to plaintiff's father and he claims that the suit
property falls within 20 guntas of land. Whereas,
defendants contend that the suit schedule property is the
property standing in the property retained by
Venkatasanjeevaiah. However, the claim is based on the
alleged transaction between the defendant No. 1 and
defendant No.2 in the year 2002. Evidently, defendant
no.1 had sold his piece of land to various others as per
Exs.P24 and P25. Therefore, unless it is established by
the defendants that Ananthapadmanabhacar had no
alienable right or possession over the suit schedule
property in favour of plaintiff's father-Kempaiah, it is not
the mouth of the defendants to claim that the said site
belongs to them or possessed by them.
38. From the above discussion, it is clear that the
preponderance of probability is more in favour of the
plaintiff than the defendants. The case of plaintiff is more
consistent and clear. Whereas, that of the defendants is
not consistent and as such, it is not possible to accept
their version. The possession of the plaintiff over the suit
schedule property is admitted by DW1 in the cross-
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examination. According to the defendant No.1 though the
possession is illegal, but the documents produced by the
plaintiff show that he is in lawful possession of the
property.
39. This Court does not find any reason to look into
the earlier plaints and written statements since they are of
no relevance at this juncture. Moreover, no case is made
out on any of the grounds available under rule 27. Hence,
the application filed by appellant under Order 41 Rule 27
of CPC deserves to be dismissed. The judgment of the
Apex Court in the case of Union of India v. Ibrahim
Uddin, (2012) 8 SCC 148 is worth to be relied in this
regard. Accordingly, the IA is liable to be dismissed.
40. Coming to the judgment of the trial Court, it
has considered the lawful possession of the plaintiff over
the suit schedule property and it has also considered the
admissions by the defendants. Though the grounds on
which the trial Court comes to the conclusion about the
lawful possession of the suit schedule property by the
plaintiff is different, no fault can be found with the
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conclusion reached by the trial Court. Hence the points
raised by this court are answered in the negative.
41. For aforementioned reasons the IA No.
No.1/2018 filed by the appellant u/o 41 Rule 27 of CPC as
well as the appeal are liable to be dismissed. Hence the
following
ORDER
1. The IA No. 1/2018 is dismissed.
2. The appeal is dismissed with costs.
Sd/-
JUDGE
tsn*
