Karnataka High Court
H .M. Venkataramanappa vs Sri Y.S. Shama Rao on 5 April, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1841/2006 (INJ)
BETWEEN:
1. H.M.VENKATARAMANAPPA
S/O MUDLAPPA
SINCE DEAD BY LRS.
1(a) SMT. NAGARATHNAMMA
W/O LATE H.M.VENKATARAMANAPPA
AGED ABOUT 55 YEARS,
SINCE DEAD, REPRESENTED BY HER LRS
APPELLANTS NO.1(b) TO 1(i)
1(b) DR. H.V.RAMAPRAKASH
AGED ABOUT 50 YEARS
1(c) DR. H.V.VENKATESH
AGED ABOUT 52 YEARS
1(d) SRI H.V.GOPINATH
AGED ABOUT 50 YEARS
1(e) SRI H.V.MOODALAPPA
AGED ABOUT 49 YEARS
ALL ARE SONS OF LATE H.M.VENKATARAMANAPPA
AND ALL ARE R/AT NO.1, SUNKALPET
BANGALORE - 560 002.
2
1(f) SMT. GIRIJA
W/O KESHAVA MURTHY
AGED ABOUT 51 YEARS
NO.28, SUNKALPET MAIN ROAD
BANGALORE-560 002.
1(g) SMT. NAGALAKSHMI
W/O MADHAVA MURTHY
AGED ABOUT 47 YEARS
NO.28, SUNKALPET MAIN ROAD
BANGALORE-560 002.
1(h) SMT. MEENAKUMARI
W/O RAMACHANDRA
AGED ABOUT 46 YEARS
NO.3, THYAGARAJANAGAR
DODDABALLAPUR
BANGALORE DISTRICT.
1(i) SMT.KRISHNAKUMARI
W/O VIJAYAKUMAR
AGED ABOUT 44 YEARS
NO.18, NEW HIGH SCHOOL ROAD
V.V.PURAM, BANGALORE-560004
ALL ARE DAUGHTER OF
LATE H.M.VENKATARAMANAPPA.
(AMENDED VIDE COURT ORDER DATED 20.04.2023)
... APPELLANTS
(BY SMT. REVATHI ADINATH NARDE, ADVOCATE)
AND:
SRI Y.S. SHAMA RAO
S/O SUBBA RAO
SINCE DEAD BY LRS.
3
1. SMT. RAJAMMA
W/O Y.S. SHAMA RAO
SINCE DEAD AND HER LRS.
ARE ALREADY ON RECORD,
2. SRI Y.S. LAKSHMANA RAO
S/O LATE Y.S. SHAMA RAO
AGED ABOUT 72 YEARS,
SINCE DEAD BY HIS LR
2(a) RAJAGOPAL
S/O LATE Y.S.LAKSHMANA RAO
MAJOR, BYRASANDRA GRAMA
KASABA HOBLI
DODDABALLAPUR
(AMENDED VIDE COURT ORDER DATED 06.03.2017)
3. SRI Y.S. SUBBANNA
S/O LATE Y.S. SHAMA RAO
AGED ABOUT 66 YEARS,
4. SRI Y.S. KRISHNAIAH
S/O LATE Y.S. SHAMA RAO
AGED ABOUT 56 YEARS,
SINCE DEAD BY HIS LRS
4(a) Y.K.VENKATESH BABU
AGED ABOUT 50 YEARS
RESIDING AT YEKADASIPURA
ARALUMALLIGE POST,
KASABA HOBLI
DODDABALLAPUR TALUK-561203
BANGALORE DISTRICT.
(AMENDED VIDE COURT ORDER DATED 02.03.2023)
4
5. SRI Y.S. RAMA RAO
S/O LATE Y.S. SHAMA RAO
DEAD BY LRS
5(a) SMT. ANUSYAMMA
AGED ABOUT 70 YEARS
5(b) SMT. NAGAMMA
SINCE DEAD
MANJUNATH PUROHITH
AGED ABOUT 35 YEARS
BOTH RESIDING AT KUNDALAGURKI VILLAGE
SIDLAGATTA TALUK, KOLARA DISTRICT
5(c) PRABHAVATHI
D/O LATE RAMA RAO
AGED ABOUT 50 YEARS
5(d) SMT. SUBHANDRA
D/O LATE RAMA RAO
AGED ABOUT 47 YEARS
BOTH ARE RESIDING AT YEKADASIPURA
HARALUMALLIGE POST, KASABA HOBLI
DODDABALLAPURA TALUK
BANGALORE DISTRICT.
6. SMT. SAROJAMMA
D/O LATE Y.S. SHAMA RAO
MAJOR, R/AT TIPTUR,
TUMUR DISTRICT. ... RESPONDENTS
[R1 SERVED BUT UNREPRESENT;
SRI SUNDARASWAMY RAMDAS, SENIOR COUNSEL FOR
SRI KAVEESH SHARMA M., ADVOCATE FOR R4(a),
R2(a), R5(a to d) AND R6;
VIDE ORDER DATED 01.06.2017,
APPEAL AGAINST R3 STANDS ABATED]
5
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DTD: 29.03.2006
PASSED IN R.A.NO.112/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) DODDABALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD:20.12.2001
PASSED IN O.S.NO.258/64 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN.) AND JMFC, DODBALLAPUR AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 19.03.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed challenging the
judgment and decree dated 29.03.2006 passed in
R.A.No.112/2002 on the file of the Civil Judge (Senior Division),
Doddaballapur.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that he is seeking the relief of declaration,
permanent injunction and for mandatory injunction directing the
defendants to close down the door put up by them towards
southern side and for possession in the event of this Court holds
that plaintiff is not in possession and for a direction for an
enquiry into rents or means profits from the date of suit till
delivery of the possession.
4. The plaintiff while seeking the above relief's has
contended in the plaint that he has become the owner of the suit
schedule property by virtue of a registered sale deed dated
22.02.1937 executed in his favour by Smt.Achamma widow of
Rama Jois. Ever since the date of sale, the plaintiff has been in
actual possession and enjoyment of the suit schedule property of
his own by paying the municipal taxes. The katha of the suit
schedule property has also been transferred in the name of the
plaintiff. The plaintiff has been exercising acts of ownership and
in possession from the last 22 years without let or hindrances.
The plaintiff also contend that even though the defendants have
no manner of right, title or interest over the suit schedule
property have been trying to encroach upon the same or thus,
trying to interfere with the plaintiff's possession and enjoyment
of the suit schedule property taking advantage of the absence of
the plaintiff near the spot. They are further trying to take
possession of the suit schedule property by using the force
thereto. It is further contended that the defendants constructed
a shed towards southern side of the property just abutting the
suit schedule property and have opened a door in the said shed
in such a way as to make use of the suit land for their ingress
and egress to the said shed and the same is liable to be closed
and cause of action arose when the defendants tried to take
possession of the suit schedule property forcibly.
5. In pursuance of the suit summons, the defendant
appeared and filed the written statement denying the averments
made in the plaint contending that the suit schedule property is
the Thulasi Thota of Sri Venugopala Swamy Temple and the suit
schedule property is in the compound of Sri Krishna Swamy
Temple itself and as such the allegation of the plaintiff is
absolutely false. The suit schedule property is meant only for
the benefit and use of the temple and no one has any personal
right or interest in the said temple and except the temple
authorities, the plaintiff is not having any right or interest in the
said property. It is contended that defendant No.1 who is a
devotee of the said Sri Venugopal Swamy temple had taken
much initiative in continuing the worship of Lord Krishna with the
aid of the suit schedule property and in fact with the support of
the other defendants, defendant No.1 has taken many schemes
to improve the temple and further a scheme has been made by
the defendants to have daily worship of the temple of which
defendant No.1 is the chief architect and as such, the contention
of the plaintiff is absolutely false. It is contended that Charity
Garage of the temple is housed in the suit schedule property
namely Tholasi Thota which is being used for the purpose of
temple without which the daily worship of the deity cannot take
place. The suit schedule property is meant only for the benefit
and use of the temple and no one has any personal interest in it
except the interest of the temple. The plaintiff colluded with
some of the defendants with a view to make personal gains even
though no one has any personal interest in the suit schedule
property which is the property of the temple.
6. Defendant No.5(b) to (h) have contended in the
written statement that the plaintiff has to prove his ownership
over the suit schedule property and also has to prove that the
vendor Smt. Achamma was the previous owner of the said
property and the plaintiff and Achamma have been in possession
of the suit schedule property. The defendant also denied with
regard to the katha and payment of tax by the plaintiff. It is
contended that they do not admit that the defendants
constructed a shed towards southern side of just abutting the
suit schedule property and opened the door in the shed in order
to ingress and egress to the said shed through the suit schedule
property. It is contended that father of these defendants and
other defendants were growing flowers and vegetables in the
suit land with the help of two wells dug in it since many years.
It is contended that the suit property was in possession of the
father of these defendants and after the death of the father, the
mother was in possession of the suit schedule property, thus,
the plaintiff is not at all the owner of the suit land.
7. The legal representatives of defendant Nos.6 to 9
have filed their additional written statement contending that the
suit schedule property is the ancestral property of defendants'
legal representatives father deceased Venkataramanappa. It is
contended that their father was doing the social work and
celebrating utsav and performing pooja to Lord Gopalaswamy.
The father of the defendants' legal representatives is teaching
the love and upliftment of mankind to the youngsters of the
society. It is contended that his father had constructed a small
shed for keeping cart in the suit schedule property which is still
exists. It is contended that their family members perform many
spiritual thoughts and devotional functions in the suit schedule
property. It is contended that katha of the suit schedule
property was in the name of Thimmaiah S/o Govindappa till
1956 and the plaintiff with the collusion of municipal authorities
got changed the katha in his favour and again, the katha was
changed in the year 1990 subsequent to the dismissal of the
above suit in favour of defendant and during that period, the
defendant has paid tax to the municipality. Again in the year
1996 by making false submission, the katha was changed into
the name of the legal heirs of the plaintiff. But the possession
was with the defendant without any interruption and even today
the defendants are in possession of the suit schedule property.
Hence, the plaintiff has not entitled for any relief as claimed in
the suit.
8. The legal representatives of defendant No.1 has also
filed the additional written statement on behalf of other legal
representatives contending that the suit schedule property being
used as Garden for worshiping Lord Gopalswamy by the deity
which is adjacent to the suit land called as Tulasi Thota. The
defendants' father used to look after the flower plants and
subsequent to his death, these legal representatives are used to
look after these plants. Defendant No.1 has constructed a small
shed for keeping cart in the suit schedule property which is still
in existence. This additional written statement also in
corroborate to the written statement filed by defendant No.1.
9. The Trial Court having considered the pleadings of
the parties framed the Issues and Additional Issues and allowed
the parties to lead their evidence. In order to prove the case of
the plaintiff, plaintiff examined six witnesses as PW1 to PW6 and
got marked the documents at Ex.P1 to P27. The defendant H V
Venkatesh examined as DW1 and other two more witnesses as
DW2 and DW3 and marked the documents at Ex.D1 to D8. The
Trial Court having considered both oral and documentary
evidence placed on record comes to the conclusion that the
plaintiff is the owner in possession of the suit schedule property
by answering Issue No.1 and answered Issue No.2 as negative in
coming to the conclusion that the defendants have not proved
that they are the owner in possession of the suit schedule
property and also answered Issue No.3 as negative in coming to
the conclusion that the suit is not barred by limitation and also
answered Issue No.5 in the affirmative in coming to the
conclusion that door is newly opened in the shed as alleged by
the plaintiff and contention of the defendants that the same was
erected about 25 years back and also comes to the conclusion
that the plaintiff is not entitled for mandatory injunction in
respect of the door is concerned.
10. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was filed in R.A.No.112/2002. The First
Appellate Court having considered the grounds urged in the
appeal memo, formulated the point that whether the impugned
judgment and decree of the Trial Court is illegal, arbitrary and
capricious and contrary to the facts and circumstances of the
case calling for interference. The First Appellate Court also on
re-appreciation of both oral and documentary evidence placed on
record answered the said point as negative and confirmed the
judgment and decree of the Trial Court accepting the case of the
plaintiff. Hence, this second appeal is filed before this Court.
11. The main contention of the counsel for the appellants
as against the concurrent finding in the second appeal is that
some of the legal representatives of the plaintiff died during the
pendency of the suit itself and their legal representatives were
not brought on record. Therefore, the suit itself was abated.
This matter has been ignored by both the Courts below even
though there was an admission to the effect that they died
during the pendency of the suit. The Courts below have ignored
the document at Ex.P22 and the boundaries mentioned therein
which are admitted to be correct as submitted above. The Courts
below have ignored the boundaries mentioned in Ex.P22 and
other important documents. It is contended that in 1879, nobody
thought of this litigation and as per the boundaries mentioned in
the Deed of the year 1879 - Ex.P22, the vendor of the plaintiff
had no title to the suit schedule property and on the other hand,
Thimmaiah had all the title to the suit schedule property.
Thimmaiah's father was Govindaiah and his grandfather was
Sharaff Krishnaiah. Sharaff Krishnaiah's name appears in 1879
Deed. The Courts below have ignored the Deed of the year 1879
and have not appreciated the recitals found therein. The Courts
below have erred in not considering the oral and documentary
evidence adduced in the case. If mandatory injunction could not
be granted, there was no question of granting either declaration
or permanent injunction and therefore, the decrees of the Courts
below are illegal. The specific case of the defendants that the
suit is barred by limitation and this issue has been answered
against the defendants and the same is erroneous when the
plaintiff not being in possession of the suit schedule property,
hence, the suit is hopelessly barred by time. The First Appellate
Court felt that Ex.P22 is the Deed of the year 1879 conferring
title in favour of the plaintiff. This is wholly illegal and
erroneous. The Deed of the year 1879 namely Ex.P22 had been
produced to show that the vendor of 1879 Deed - Lakshmana
Bhatta had sold the suit schedule property to the father of
Thimmaiah by name Govindaiah and the defendants claimed title
to the property from Thimmaiah but the First Appellate Court
has misread Ex.P22 of the year 1879 and because of misreading
of Ex.P22, it has reached to a wrong conclusion. It is contended
that right from 1879, up to the date of the suit, the records
stood in the name of the defendants and they are in the name of
defendant No.1 to defendant No.3 and these documents have
not been considered by the Courts below. Ex.D2 stands in the
name of Thimmaiah S/o Govindaiah in the year 1939-40 and this
has continued till the date of filing of the suit, then, how the
name of Shama Rao comes into existence. Ex.P1 is dated
22.02.1937 which according to the plaintiff, is the title deed in
favour of the plaintiff - Shama Rao showing the eastern
boundary as the property belonging to Maragondahalli
Balacharya. Therefore, it is clear that the property covered
under Ex.P1 is not the suit schedule property. The boundaries
mentioned in Ex.P2 and P3 of 1901 Deed did not tally with the
boundaries mentioned in Ex.P1 and therefore, the claim of the
plaintiff itself is doubtful hence, the suit for declaration ought to
have been dismissed.
12. This Court having considered the grounds urged in
the second appeal, framed the following substantial questions of
law:
(i) Whether civil suit can be disposed of on the basis of
the evidence which includes deleting of the chief
examination of PWs 2, 3 and 4?
(ii) Whether evidence before the Court in support of the
case means individually a particular form of evidence
such as documentary, oral testimony, circumstantial
and the related?
(iii) When the plaintiff and defendant are claiming the
title over the property from two separate quarters,
does it has implication of the deficiency of
corroboration through cross examination of the
witnesses?
(iv) Whether the defendants prove that the main source
of land was in Ex.D5?
(v) Whether the Trial Court erred in relaying upon the
available evidence to come to the finding of
decreeing the suit by the Trial Court which is
confirmed by the appellate Court?
13. The counsel for the appellant in her arguments would
vehemently contend that when the suit is filed for the relief of
declaration and permanent injunction and also for mandatory
injunction, the Trial Court committed an error in decreeing the
suit only relying upon the plaintiff's documents and so also the
First Appellate Court committed an error in confirming the
judgment of the Trial Court. The counsel would vehemently
contend that Ex.P22 is the title document of the year 1879 and
the document of the year 1947 is the mother deed of vendors of
the defendants. The counsel would vehemently contend that the
plaintiff claims the title based on Ex.P1 and P2 and Ex.P1 is the
sale deed dated 21.08.1901 and Ex.P2 is the sale deed dated
22.02.1937 and original of Ex.P2 is not marked and a Xerox copy
of the said document is marked subject to objection and the
same is not proved. PW1 is an attesting witness and plaintiff has
not been examined before the Trial Court and there was no
power of attorney on behalf of the plaintiff. The plaintiff has
examined PW5 who is the son of the plaintiff and the plaintiff
ought to have been examined himself before the Trial Court
when the plaint was amended in the year 1977 when he was
alive but he has not been examined. The counsel would
vehemently contend that there is a change in the boundary. The
Trust is run by the defendants. The reasons assigned by the
Trial Court are nothing but an imaginary one. The Trial Court
has committed an error in answering the question of limitation
and same is over looked and consideration of documents by the
Trial Court is erroneous. The First Appellate Court also
committed an error in appreciating both oral and documentary
evidence placed on record and erroneously confirmed the
judgment of the Trial Court.
14. The counsel for the appellant in support of her
arguments relied upon the judgment of the Apex Court reported
in (2014) 2 SCC 269 in the case of UNION OF INDIA vs
VASAVI COOP. HOUSING SOCIETY LTD. The counsel
referring this judgment brought to notice of this Court Sections
34 and 5 of the Specific Relief Act, 1963 wherein the Apex Court
held that when the suit is filed for declaration of title and
possession, the burden is on the plaintiff to establish its case,
irrespective of whether defendants prove their case or not. In
the absence of establishment of its own title, the plaintiff must
be non-suited even if title set up by defendants is found against
them, weakness of case set up by the defendants cannot be a
ground to grant relief to plaintiff. Further held that ownership
and title, entries in revenue records did not conferred any title
referring Section 35 of the Evidence Act, 1872.
15. The counsel also relied upon the judgment of the
Apex Court reported in (2019) 6 SCC 82 in the case of
JAGDISH PRASAD PATEL (DEAD) THROUGH LEGAL
REPRESENTATIVES AND ANOTHER vs SHIVNATH AND
OTHERS wherein also the Apex Court held that the plaintiff
required to discharge his burden independent of case of
defendant. Passing of declaratory decree where plaintiff did not
lead evidence to establish his title, reiterated, impermissible,
khata entries are not proof of title but for revenue purpose.
16. The counsel also relied upon the judgment reported
in 2000 (2) MH. L. J. 386 in the case of SANJAY vs VIMAL
wherein discussed Order 18 Rule 3-A of CPC as directory in
nature. The only mandatory provision it incorporates is to the
extent of obtaining permission of the Court. The normal rule laid
down is that the party wanting to examine, himself should
examine first before any witness is examined. This rule can be
deviated only with the permission of the Court. Such permission
of the Court, it is desirable, should be obtained before any
witness is examined, but such is not the mandate. The
permission can be obtained even at a later stage. The counsel
referring this judgment would vehemently contend that the
plaintiff has not been examined before the Trial Court.
17. The counsel also relied upon the judgment reported
in (2002) 6 SCC 404 in the case of YADARAO DAJIBA
SHRAWANE (DEAD) BY LRS vs NANILAL HARAKCHAND
SHAH (DEAD) AND OTHERS wherein the Apex Court discussed
with regard to the scope of Section 100 of CPC. In the second
appeal, interference with judgment of final Court of fact, when
justified, reiterated that if such judgment is based on
misinterpretation of documentary evidence or consideration of
inadmissible evidence or ignoring material evidence, or on a
finding of fact has ignored admissions or concessions made by
witnesses or parties, held High Court can interfere in second
appeal.
18. Per contra, the learned counsel appearing for the
respondents in his arguments would vehemently contend that
the arguments canvassed by the appellant's counsel is not
sustainable. The counsel would vehemently contend that the
plaintiff, based on the sale deed dated 22.02.1937, claimed the
title in respect of the suit schedule property and the same was
purchased from Smt. Achamma and both the Courts held in
favour of the plaintiff. The counsel would vehemently contend
that Ex.P1, P2 and P4 boundaries are same and Ex.D5 boundary
not tallies with the suit schedule property. The counsel also
would vehemently contend that tax paid receipts are also
produced which are evident from the records and the boundaries
at Ex.P22 which mainly relied upon by the appellant would not
tallies. Ex.P25 is the order passed by the Divisional
Commissioner. The plaintiff died in the year 1977 and he was
not examined and his son is examined as PW5. The Trial Court
as well as the First Appellate Court appreciated both oral and
documentary evidence placed on record in a proper perspective
and not committed any error in considering the same hence, it
does not requires any interference.
19. The counsel in support of his arguments filed the
written arguments contending that the appeal is misconceived
and devoid of merits and the same is liable to be dismissed. The
substantial questions of law are also formulated by the Court
based on the submissions of the counsel for the respective
parties i.e., whether the civil suit can be disposed off on the
basis of the evidence which includes deleting of the chief
examination of PW2 to PW4. The second substantial question of
law is that whether evidence before the Court in support of the
case means individually a particular form of evidence such as
documentary, oral testimony, circumstantial and the related.
With regard to the substantial questions of law (i) and (ii) are
concerned, the counsel would vehemently contend that in
support of the case of the plaintiff, PW1 has been examined and
he has been cross-examined and particularly, PW5 who is the
son of the plaintiff has been examined and PW6 one Ameerjan
has also been examined and he has been cross-examined and
several documents have been marked in support of the case of
the plaintiff. On the other hand, PW2 and PW3 though they
were examined in part in support of the case of the plaintiff, they
could not turn up for cross-examination. Subsequently, they
passed away and hence, their evidence was not considered.
PW4 also examined in part and subsequently, he was convicted
in a criminal case, due to which, he could not turn up for cross-
examined and even his evidence was also not considered.
Therefore, the evidences of PW2 to PW4 have not been
considered by the Trial Court while decreeing the suit. It is well
settle principle of law that witness if not produced for cross-
examination, evidence of such witness cannot be considered.
The Trial Court was decreed the suit in favour of the plaintiff only
in keeping the evidence of PW1, 5 and 6 which was sufficient to
prove the plaintiff's title.
20. Insofar as the question of the form of evidence is
concerned, it is submitted that in a suit for declaration and
permanent injunction which is civil in nature, the possession and
title to the suit schedule property needs to be proved by both
oral and documentary evidence and the same is considered by
the Trial Court as well as the First Appellate Court and
possession and the title to the property was established through
Ex.P1 to P27. The defendants miserably failed to prove their
ownership over the suit schedule property through adverse
possession.
21. The counsel in respect of substantial questions of law
(iii) and (iv) are concerned, it is contended that the plaintiff in
O.S.No.258/1964 has sought for declaration and permanent
injunction under sale deed dated 22.02.1937 - Ex.P1 and the
same was executed in favour of the plaintiff by one Smt.
Achamma who acquired the same from her predecessors. As per
the judgment dated 20.12.2001 passed in O.S.No.258/1964, the
Trial Court held that the evidence of PW1, PW5 and PW6 and
Ex.P1 to P27 clearly show that the plaintiff is in possession of the
suit schedule property and the sale deed dated 22.02.1937
clearly depict the boundaries of the suit schedule property and
the same was not challenged by the defendants during the
course of the trial. The First Appellate Court also while
considering the appeal held that the suit schedule property
bearing khata No.831 as stated by PW5 finds support from the
tax paid receipts marked at Ex.P12 to P20 and particularly,
Ex.P16 to P20 filed by the plaintiff showing his name exclusively.
The Court also taken note of TMC endorsement at Ex.P21 which
also shows the very same khata No.831/767 with measurement
as 125 x 42 feet as stated by PW5. Moreover, as per the sale
deed dated 22.08.1901 - Ex.P3, one Sri Rama Jois who is the
husband of Achamma from whom the plaintiff derives his title,
purchased the suit schedule property from one Ramaswamachar
and the boundaries are identical and the same was never
disputed by the defendants. The First Appellate Court observed
that if plaintiff's property was different, it could not have found
support from such old document.
22. The counsel for the respondents also would
vehemently contend that the defendant who was once claiming
that the suit schedule property belongs to Venugopalaswamy
temple, there is no point for consideration at all. These aspects
are considered by the First Appellate Court in paragraph 22 of its
judgment. The First Appellate Court further considered that as
to how the defendant claimed to have purchased the suit
schedule property from Thimmaiah under Ex.D5 when Rama Jois
purchased the suit schedule property under Ex.P3 i.e., the sale
deed of the year 1901. As regards substantial question of law
that the plaintiff lay emphasis one the fact that scope of
interference with the finding of fact arrived at by the Trial Court
and affirmed by the First Appellate Court is very limited. Merely
because another view is possible is not a ground to dislodge the
finding of fact arrived at by the Courts below.
23. The counsel in support of his arguments relied upon
the judgment reported in (2001) 3 SCC 179 in the case of
SANTHOSH HAZARI VS PURUSHOTTAM TIWARI
(DECEASED) REP. BY LRS and also the judgment reported in
(2006) 5 SCC 545 in the case of HERO VINOTH (MINOR) vs
SHESHAMMAL.
24. It is contended that original suit had been pending
from 1959 and during this long period, the parties could not
survive, due to which, their legal representatives were brought
on record and the original documents were lost hence, the
plaintiff was permitted to lead secondary evidence and thus
produced certified copies of the documents which are marked
from Ex.P1 to P26. Ex.P27 is the copy of list of documents filed
in Court at Bengaluru. The counsel also would vehemently
contend that the Trial Court as well as the First Appellate Court
observed that the boundaries as well as the dimensions of the
property mentioned in Ex.D5 do not tally with the vendor's
document i.e., the sale deed of the year 1879 at Ex.P22.
25. The Trial Court in paragraph 30 and the First
Appellate Court in paragraphs 22 and 23 categorically held that
the defendants' claim is as per Ex.D5 and the same does not
tally with the source from which they are claiming the property
and the First Appellate Court affirmed that the sale deed of the
year 1937 has more evidentiary value compared to the sale deed
of the year 1947. Both the Courts have also taken note of the
documents produced by the plaintiff before it and also
considered the evidence of PW1, 5 and 6.
26. The counsel also relied upon the judgment reported
in (1996) 3 SCC 392 in the case of RAMANUJA NAIDU vs V
KANNAIAH NAIDU AND ANOTHER as regards the scope of
interference by this Court. The concurrent findings of fact arrived
at by the Courts below cannot be interfered under a second
appeal. The counsel in support of his contention also relied upon
the following judgments reported in:
(1999) 6 SCC 343 in the case of Karnataka Board of
Wakfs vs Anjuman-E-Ismail Madris-Un-Niswan;
(2005) 12 SCC 270 in the case of Harjith Singh and
another vs Amrik Singh and another;
C.A.NO.2165/2009 DATED 14.02.2020 in the case
of C Doddarayanna Reddy (dead) by Lrs and
others vs C Jayarama Reddy (dead) by Lrs and
others.
27. The counsel also relied upon the substantial question
of law No.5 framed by this Court with regard to proving of
possession is concerned i.e., Ex.P1 to P27 and the said fact has
been considered by both the Courts and relying upon those
documents, both the Courts have not committed any error with
regard to the possession is concerned. Hence, the present
appeal is devoid of merits. The appellants also made an attempt
to produce some of the documents along with synopsis, but not
filed any application under Order 41 Rule 27 of CPC before this
Court without having produced the same before the Trial Court
or the First Appellate Court. There are certain rules which have
to be followed in regular second appeal and the question of
permitting the appellants to produce the same does not arise
and the Court also taken note of the fact that suit is of the year
1959 and almost more than half century has been elapsed and
the question of considering the additional documents does not
arise and prayed this Court to dismiss the second appeal.
28. In reply to the arguments of the counsel for the
respondents, the counsel for the appellants has filed written
submission in respect of the substantial question of law framed
by this Court and contend that the Trial Court has discarded the
evidence of PW2 to PW4 while passing the judgment. PW4
through whom the prime document on which the plaintiff relied
that is Ex.P2 and P3 whose evidence itself has been discarded,
the question of relying upon those documents does not arise. As
per Section 68 of the Evidence Act, if the document requires
statutory attestation, the attesting witness has to be examined.
In the present suit, the evidence of the plaintiff cannot be
substituted by PW1 who claims to be the attester of Ex.P1 and
he is not aware of the contents of the document to which he
attested his signature as a witness. When the plaintiff and the
defendants are claiming the title over the suit schedule property
from two separate quarters, does it has implication of the
deficiency of corroboration through cross-examination of the
witnesses, there is totally deficiency of corroboration of oral
evidence on the part of the plaintiff and the plaintiff has never
stepped into the witness box and the defendants relied upon
their source of land as per Ex.P22 itself of the year 1879. Ex.D5,
D7 clearly establishes the fact of the eastern boundary. The
documents which have been relied upon by the plaintiff that is
Ex.P1, P3 and the document at Ex.D5, eastern side boundary is
100 years old government road which was only main road
connecting to Doddaballapura to Bengaluru. At Ex.P1, northern
side boundary shown as road and hence, discrepancy found in
the documents which have been produced has not been taken
note of by both the Courts.
29. In reply to the arguments of the counsel for the
respondents, the counsel for the appellants would vehemently
contend that Ex.P1 is marked through the original plaintiff and
he was not subjected for cross-examination and in Ex.P22 at
middle portion, description is stated. The counsel further
contends that PW1 evidence cannot be considered and the
plaintiff also not proved the burden of him since burden is on the
plaintiff not on the defendants. Objections raised before the
Trial Court regarding production of documents also not
considered by both the Courts and the reasons given by the Trial
Court is erroneous since 1901 documents and 1937 documents,
do not tally with each other and the plaintiff has not proved his
title as well as possession and the very document of the year
1879 which relied upon by the defendants is in favour of the
defendants but both the Courts have not been considered the
said fact.
30. Having considered the grounds urged in the appeal
memo and also both oral and documentary evidence placed on
record and keeping in view the contentions of the learned
counsel for the appellants and the learned counsel for the
respondents, this Court has to consider the material on record
taking note of substantial question of law framed by this Court
while admitting the second appeal. No doubt, the learned
counsel for the appellants has filed the synopsis along with some
of the documents and not filed any application under Order 41
Rule 27 of CPC to consider those documents and in the absence
of seeking permission of this Court to rely upon those
documents, the question of considering those documents does
not arise. The learned counsel for the respondents also contend
that those documents are not necessary for adjudication of the
matter.
31. The first substantial question of law framed by this
Court is whether civil suit can be disposed of on the basis of the
evidence which includes deleting of the chief examination of
P.Ws.2, 3 and 4? Having perused the records, it discloses that
the plaintiff has examined several witnesses and P.Ws.2, 3 and 4
were examined on behalf of the plaintiff. P.W.2 who was
examined in chief speaks with regard to he has seen the
plaintiff's site and the plaintiff purchased it from Achamma and
he is an attesting witness to the document and his signature is
marked as Ex.P.1(b). But his evidence has not been completed
and his evidence was deferred at the request of learned counsel
for the plaintiff and later not further examined. Hence, the
evidence of P.W.2 is discarded.
32. The other witness is P.W.3. The records discloses
that his evidence is not completed and examination was stopped
as the document was not received by the Court and his evidence
also not considered since his evidence is not complete evidence.
33. P.W.4 is one of the son of the plaintiff and he speaks
with regard to his father had purchased the property from
Achamma on 22.02.1937. His evidence was also not completed
when the other side objected for marking of the documents and
the learned counsel took time to produce the case law and
deferred and ultimately his evidence is also not completed.
When the evidence of P.Ws.2, 3 and 4 are deferred and
incomplete, the question of considering those evidence does not
arise and deleting of chief examination of P.Ws.2, 3 and 4 will
not enure the benefit of those witnesses evidence for
consideration of the case. The Courts also not considered the
evidence of these witnesses since their evidence is incomplete.
The Trial Court considered only the evidence of P.Ws.1, 5 and 6
and the question of disposing of the case on the basis of the
evidence which includes deleting of the chief examination of
P.Ws.2, 3 and 4 does not arise. Hence, I answer the first
substantial question of law accordingly.
34. The second substantial question of law framed by
this Court is whether evidence before the Court in support of the
case means individually a particular form of evidence such as
documentary, oral testimony, circumstantial and the related?
The third substantial question of law is when the plaintiff and
defendant are claiming the title over the property from two
separate quarters, does it has implication of the deficiency of
corroboration through cross examination of the witnesses? The
other substantial question of law is whether the defendants
proves that the main source of land was in Ex.D5 and whether
the Trial Court erred in relying upon the available evidence to
come to the finding of decreeing the suit by the Trial Court which
is confirmed by the Appellate Court?
35. All the substantial questions of law are
interconnected and hence the Court has to consider both oral
and documentary evidence placed on record with regard to
corroboration is concerned. The plaintiff mainly relies upon the
evidence of P.W.1 who was doing stamp vending work from
1944-45 to 1950-51. His evidence is that he has seen the suit
schedule property and the same originally belonged to Achamma
and she was in possession of it and now it is in possession of the
plaintiff. The plaintiff had purchased the property under a sale
deed Ex.P.1 and he had attested the said document as well as
identified Achamma before the Sub-Registrar when she had
executed the document and his signature is marked as
Ex.P.1(a). It is also his evidence that since two years ago, a
shed has been constructed on the southern side of the suit site
and door has been provided for it. He was subjected to cross-
examination and he is only an attesting witness and he speaks
with regard to the possession is concerned. In the cross-
examination he admits that the plaintiff told him that a shed has
been constructed and he says that he was under the impression
that the plaintiff has himself constructed the shed and he did not
inform him about that. The place adjacent to the shed is called
chatra and also he does not know if that area is purchased by
defendant No.1 and he was not present at the time of writing
Ex.P.1. He admits that he was present at the time of
registration and he cannot say whether the plaintiff gave amount
to Achamma. The said Achamma died ten years back and he
does not know who was in possession of the site before
Achamma was in possession. He also says that Achamma is his
relative. The said suit site is a vacant site and in his presence no
possession was delivered.
36. Having perused the material on record with regard to
the evidence of P.W.1, it is clear that he came to know through
Ex.P.1 that Achamma was in possession earlier and the plaintiff
was in possession based on Ex.P.1 and his evidence is clear that
he was only an attesting witness to the document and not
helpful for proving possession.
37. P.W.5 claims that the suit schedule property is a
vacant site and measuring 125 ft. x 42 ft. In terms of his
evidence, he had given the description of the property as, on the
east government road, on the west Mouiddin Sab's children
house and government road, on the north government road, on
the south Venugopalaswamy Temple. He also admits that in the
year 1901, Rama Jois purchased the property from Ramaswamy
S/o Vasudeva. In the year 1937, Shama Rao had purchased the
said property from Achamma and from the date of purchase they
are in possession. The said property was mortgaged in the year
1948 in favour of Bajaneatti Ranganna and got it released within
one year. Ex.P.1 is the sale deed under which his father had
purchased the property and Ex.P.2 is the certified copy of Ex.P.1
and the same is marked subject to objections and relies upon
other documents of demand extract, assessment extract,
encumbrance certificate, demand made by the municipality and
so also got marked the document Ex.P.22 under which the
defendants also claim the right and the same is also a certified
copy marked subject to objections. His evidence is very clear
that under which the property was purchased by Govindaiah is
on the west of the Temple and he also reiterated the boundary
description in terms of Ex.P.22 and also relies upon assessment
extract Ex.P.23 and endorsement given by the municipality in
respect of the boundaries in terms of Ex.P.24. He admits that in
the year 1956, a road was formed in their land to go to
Venkataramanaswamy Temple. This witness was subjected to
cross-examination.
38. In the cross-examination, he admits that when the
property was purchased in the year 1901, he cannot say who
was the owner of the said property and he cannot tell what are
all the documents seen at the time of purchase by his father,
since his father had purchased the property and he was a small
boy. He did not see a old house and a well in the suit schedule
property. He had seen the property in the year 1942 and he
cannot tell in which year the khatha was transferred in the name
of his father. The khatha was transferred from the name of
Achamma and he had seen the document. He cannot tell in
which year khatha was transferred in the name of Achamma. He
admits that on the south there is Venugopalaswamy Temple
wall. He admits that his father died in the year 1977 and
thereafter he has not given any application for transfer of
khatha. It is suggested that there is a shed in the suit property
and the same was denied. He admits that on the east there is a
Ashwathakatte and on the west there is Mouiddin Sab's house.
In terms of his evidence though he deposes that on the east
there is a government road, but now he admits that on the east
there is a Ashwathakatte. The suggestion of the defendant that
on the west there is house of Mouiddin Sab and the same tallies
with the recitals of the documents. He admits that he came to
know that the suit schedule property was mentioned in their sale
deed in the year 1978. He admits that in the document of the
year 1879, the property which was sold by Govindaiah, it is
mentioned that Temple is on the west and came to know about
the same when the defendants have broken the compound wall.
He claims that in the year 1947, municipality has given licence in
favour of his father. It is suggested that the property was not
standing in the name of Achamma and the same was denied. A
suggestion was made that the property tax was exempted and
they paid the tax in respect of different properties and claiming
the same and the same was denied. He admits that an appeal is
filed in Civil Judge Court and at that time, khatha was standing
in the name of his father. He admits the mortgage made in
favour of Bajaneatti Rangappa for Rs.400/-. It is suggested that
in the year 1947, defendant No.1 had purchased the suit
schedule property from G. Thimmaiah and the same was denied.
39. P.W.6 claims that the suit schedule property is a
vacant site. Now the plaintiff's children are in possession. In
the cross-examination he admits that he cannot tell how Shama
Rao got the property. It is suggested that the suit schedule
property is not vacant and the same was denied.
40. D.W.1 deposes that defendant No.1 is his father and
the plaintiffs are his uncles and the suit schedule property is
near Kerebagilu Venugoplaswamy Temple, but he claims that the
said Temple belongs to G. Thimmaiah and they have given the
property 50 years back to them. The Temple made use of the
same as Tulsi thota and Tulsi plants are used for Temple pooja.
He says that on the west of the suit schedule property, there
was property of G.Thimmaiah and the said Thimmaiah sold the
western portion of the property in favour of Mouiddin Sab. He
claims that the suit schedule property is the ancestral property
of Thimmaiah and Thimmaiah sold the suit schedule property in
the year 1947 in favour of his father and till date Thimmaiah was
in possession. He claims that in the year 1947, he had
purchased the suit schedule property from Thimmaiah and the
suit schedule property is nowhere concerned to plaintiff Nos.2 to
6 and claims title in respect of the said property since the
property belongs to Govindaiah in the year 1879 and Govindaiah
purchased the same from Lakshmana Bhat. This witness was
subjected to cross-examination.
41. In the cross-examination, he admits that his father
and his brothers got partitioned in the year 1934 and once again
partition was taken place in the year 1949 and he has not
produced the partition deed before the Court. He admits that
when the property was purchased, he was not born and also he
cannot tell how Thimmaiah got the said property. But he claims
that the same was ancestral property. He admits that
Satyanarayana Das has filed a case in respect of suit schedule
property against H.V. Murthy. He also admits that in that case,
they filed an application to make them as party. But he claims
that Satyanarayana Das had filed an application for Temple and
he also says that he cannot say about the selling of the property
in the year 1901-02 by Ramaswamachari in favour of Joshi and
also he does not know about the sale made on 22.02.1937 in
favour of the plaintiff Shama Rao. He admits that when the case
was filed in the year 1959, the same was standing in the name
of Shama Rao. He claims that prior to that, it was standing in
the name of Thimmaiah. He admits that he has not produced
any documents to show the same. He admits that when Shama
Rao filed a suit, the same was dismissed and thereafter got
transferred the khatha to his name. He admits that when
partition was taken place in 1949, they did not include the suit
schedule property in the said partition, but he claims that the
said property belongs to the Temple. He admits that
Satyanarayana Das had filed the case against his father in the
Divisional Commissioner Court and he also knows the decision
made in that case. It is suggested that when they purchased the
property in the year 1947, it is mentioned that the said property
was standing in the west of the Venugopalaswamy Temple and
the same was denied. He claims that for exempting the property
tax from 1947 to 1990, they have produced the documents to
that effect and the municipality has not given any notice to pay
the tax. He did not verify when the suit was filed whether
Shayam Rao had purchased the property or not.
42. The other witness is D.W.2 and he speaks about the
possession with the defendants and the site is a vacant site. The
defendant No.1 has grown the flower plants in the said property,
which is used for Temple and he gives evidence in corroboration
with the evidence of D.W.1. He admits that he cannot tell when
defendant No.1 had purchased the property, but he claims that
they are in possession from 40 years. He admits that
Satyanarayana Das had filed the case against defendant No.1.
He admits that his father was working as an Archak and
defendant No.1 used to call him for pooja and also he did not
see the municipality records of the suit schedule property.
43. D.W.3 also speaks with regard to purchasing of the
property by defendant No.1 in the year 1947 and the property
was in his possession. In the cross-examination, he admits that
the said Venkataramanappa showed the sale deed, but he had
not read the same. He cannot say the measurement and also he
admits that no documents to show that the said
Venkataramanappa is in possession, but he claims that he has
been in possession.
44. Having re-assessed both oral and documentary
evidence placed on record and keeping in view the substantial
questions of law that when the plaintiff and the defendant are
claiming the title over the property from two separate quarters,
does it has implication of the deficiency of corroboration through
cross-examination of the witnesses. Having perused these
witnesses evidence with regard to the corroboration is
concerned, particularly considering the boundaries which have
been mentioned in the document and also the title which they
have claimed, it is very clear that the plaintiff is claiming the
right through the document of 1901 sale deed and also 1937
document and the same has been relied upon by the Trial Court
and the Appellate Court. The defendants claim their title with
regard to property based on the document Ex.P.22 filed by the
plaintiff, which has been marked. The learned counsel for the
appellants also produced the chart before this Court and their
contention is that the property originally belonged to Lakshmana
Bhat and the same was sold in favour of Govindaiah who had
purchased the same in the year 1879. The appellants also
claims the same based on the sale deed of the year 1947, but
the suit schedule property is mentioned in terms of the
document of 1901 sale deed as well as 1937. Both the
descriptions mentioned in the document of the year 1901 and
1937 corroborate to the suit schedule property, which has been
mentioned in both the documents.
45. On the other hand, the defendants/appellants claims
different title of the document of the year 1879, which is
mentioned as Ex.P.22 and contend that the vendor of the
plaintiff had no title to the suit schedule property. On the other
hand, Thimmaiah had all the title to the suit schedule property.
Having considered the said document of Ex.P.22, the
defendants/appellants relies upon Ex.D.5 under which they claim
the title and the same is not in corollary to the suit schedule
property. It is the specific case of the plaintiff before the Trial
Court that the property which they are claiming and also the
property purchased by defendant No.1 is on the western side of
the suit schedule property and the same is also admitted by
D.W.1 in his cross-examination. The claim made by the
appellants/defendants not tallies with the boundaries which have
been mentioned in the suit schedule property and the same has
been taken note of by the Trial Court while answering the issues,
particularly in answering issue No.1 having taken note of the
evidence of P.W.5, who is the son of the plaintiff Shama Rao.
The Trial Court in paragraph No.17 has taken note of the plaintiff
has agitated his right since 1937-38 to the Town Municipal
Commissioner by G. Balaram and notice was also issued by the
TMC dated 23.04.1938, licence granted by the Town Municipal
on 08.02.1939, mahazar copy dated 25.09.1944 and petition
given by G. Thimmaiah to TMC, Doddaballapura by showing NOC
to change khatha, resolution copy passed by TMC dated
24.01.1939 and all these documents were taken note of and
these documents are immediately after purchasing the property
by the plaintiff and the plaintiff assessment extract for the year
1947-48 to 1956-57.
46. The Trial Court also taken note of that during the life
time of his father in the year 1901, 1935 they measured the suit
property and no doubt, the answers elicited from the mouth of
P.W.5 is that he was a young boy and he was not having
personal knowledge. But the documents are taken note of that
immediately after purchase of the property, all the documents
stands in the name of the plaintiff's vendor as well as plaintiff's
father. Though the defendants contend that there was an
exemption granted by the Revenue Department to pay the tax,
no documents are produced before the Court to that effect. But
they contend that they were in possession of the property. The
Trial Court also taken note of in paragraph No.21 with regard to
the description mentioned in the suit. The suit property is
bounded by the east Temple garden land as per the document of
the year 1879, which was purchased by Govindaiah from
Lakshman Bhat and west by Thimmaiah's property, north by
government road and south by galli. The temple is bounded by
east government road, west old house vatara, north by temple
suit property road. It is also important to note that the suit
property bearing khatha No.831 measures east to west 125 ft.
north to south 45 ft. It is important to note that the claim of the
defendants is that the temple property bears khatha No.830 and
both are clear that both are adjacent property and khatha
claimed by the plaintiff is also bearing khatha No.831. This fact
is also taken note of by the Trial Court while answering issue
No.1. The evidence of P.Ws.1, 5 and 6 and Exs.P.1 to 27 clearly
shows that the plaintiff is in possession and the sale deed Ex.P.1
shows the boundaries of the suit property and the same is not
challenged by the other side in any Court with regard to
boundary description mentioned in Ex.P.1. It is not in dispute
that Ex.P.5 is an order passed by the Divisional Commissioner
ordering to maintain status quo. When such materials are
considered by the Trial Court and also taken note of the claim
made by the defendants and the answers elicited from the
mouth of defendants with regard to his claim of title and hence I
do not find any error committed by the Trial Court in answering
the issue No.1 as affirmative considering the title and boundaries
mentioned in the document of the year 1901 and 1937 under
which he claims title in respect of the suit schedule property.
47. Having perused the comparative chart produced by
the learned counsel for the appellants and also the document of
Ex.P.22 relied upon by the learned counsel for the defendants of
the year 1879, it is mentioned as near Kere Bagilu, wherein on
the north, it is shown as government property and no doubt in
the title deed document of the plaintiff also it is mentioned as
government property. But on the south, it is shown as Gollara
Krishnaiah Chatra. In the document of 1879, in the south it is
shown as government road. In the document of the year 1937,
on the north, it is shown as road formed in the property and
south also same description is given and the suit also shown as
road on the north and southern side shown as Gollara Krishnaiah
Chatra in all the documents of 1909 and 1937 and the suit
schedule property tallies with each other and the same is also
observed by the First Appellate Court in the appeal while
answering the point for consideration in paragraph No.18 of the
judgment. The First Appellate Court also taken note of the
schedule property presently bearing khatha No.831 as suggested
to P.W.5 circumstantially finds support from the tax paid receipts
marked at Exs.P.12 to 20, particularly Exs.P.16 and 20 filed by
the plaintiff showing his name exclusively. The First Appellate
Court also taken note of the endorsement Ex.P.21 also shows
khatha No.831 with measurement of 125 ft x 45 ft. The
measurement and the boundary mentioned in the document also
tallies. Ex.P.3 description also taken note of in paragraph No.19
and also taken note of the latest tax assessment register extract
Ex.P.23 for the year 1994 to 1999 jointly standing in the names
of his sons Y.S.Lakshmana Rao, Subbanna and Krishnaiah.
48. In the cross-examination of P.W.5, nothing is elicited
with regard to the description of the property is concerned and
the same is also discussed in paragraph No.20. The contention
of the defendants is that the same is tulsi thota and admittedly
all the witnesses admitted that the same is a vacant site and
defendant No.1 is not justified in taking the claim in respect of
the said property. The First Appellate Court also taken note of
the specific case of the plaintiff that on the south of the suit
schedule property, Venugopalaswamy temple is in existence and
the said suggestions are made to D.W.1 and he denied Ex.D.3
assessment register extract is of a different property bearing
No.767/680 with material alterations since the defendants claim
that the suit schedule property belongs to his ownership. Both
the defendants and the plaintiff claim their title through different
parties. The Appellate Court also taken note of Exs.D.1 to 3 and
those documents not supports the municipality documents. The
Appellate Court in paragraph No.24 taken note of the answers
elicited from the mouth of D.W.1 when the document of Ex.P.3
and description tallies with his title document of 1901, still the
defendant claims that he has purchased the suit schedule
property in the year 1947 under Ex.D.5, but the plaintiff's sale
deed is of the year 1937 and the boundaries clearly reflect with
each other in respect of the claim of the plaintiff. The First
Appellate Court also taken note that D.W.1 also has expressed
ignorance about relevant suggestions made to him in the cross-
examination in respect of Ex.D.5, particularly with regard to the
boundaries is concerned as mentioned in Ex.P.22 not tallies with
Ex.D.5 and comes to the conclusion that the plaintiff has proved
his ownership with possession having re-assessed both oral and
documentary evidence placed on record. The First Appellate
Court having re-assessed both oral and documentary evidence
placed on record, not committed any error and hence the
substantial question of law framed by this Court with regard to
the evidence available on record and also the claim made by the
defendants and both oral and documentary evidence placed on
record and also claiming title over the property from two
separate quarters, no such any implication of deficiency of
corroboration through cross-examination of witness considering
the evidence of P.Ws.1, 5 and 6 and the defendants have not
proved the main source of land as claimed in Ex.D.5 in respect of
suit schedule property is concerned. Both the Courts have not
committed any error in relying upon the evidence available on
record and finding of the decreeing of the suit by the Trial Court
and the First Appellate Court is based on both oral and
documentary evidence placed on record. The case of the
appellants cannot be accepted since the appellants failed to
prove the case by relying upon Ex.P.22 and Ex.D.5 and
particularly Ex.D.5 does not disclose the property number and
boundaries also not as claimed by the plaintiff in the suit.
49. The learned counsel for the appellants relied upon
the judgment of the Apex Court in the case of Vasavi Coop.
Housing Society Ltd. (supra), wherein discussed with regard to
Sections 34 and 5 of the Specific Relief Act. No doubt, the
burden is on the plaintiff to establish his case, but the plaintiff
has relied upon the title deed of 1901 and 1937 document. The
learned counsel also relied upon the judgment of the Apex Court
in the case of Jagdish Prasad Patel (supra), wherein also the
Apex Court held that the plaintiff is required to discharge his
burden independent of case of the defendant. No doubt, the
plaintiff has to succeed on his own and not on the weakness of
the defendants. Both the judgments will not come to the aid of
the appellants considering both oral and documentary evidence
placed on record. The learned counsel also relied upon the
judgment in the case of Sanjay (supra), wherein discussion was
made with regard to Order 18 Rule 3A of CPC, but the fact is
that the plaintiff examined P.W.4, but his evidence has not been
completed. No doubt, P.W.1 has been examined earlier, but he
is only an attesting witness to the document of title deed. The
evidence of P.W.5 is very clear with regard to claiming of the
title based on the documentary evidence on record.
50. The learned counsel for the appellants also relied
upon the judgment of the Apex Court in the case of Yadarao
Dajiba Shrawane (supra), wherein the Apex Court discussed
the scope of Section 100 of CPC with regard to justifying of
interference with the judgment of final Court of fact. If
judgment is based on misinterpretation of documentary evidence
of consideration of inadmissible evidence or ignoring the material
evidence, the same is settled law that if any perversity is found
in appreciating the evidence on record, the Court can exercise
the power under Section 100 of CPC. Such circumstances is not
warranted in the case on hand. Hence, I do not find any error
committed by both the Courts in appreciating both oral and
documentary evidence placed on record and hence, I answer
substantial questions of law framed by this Court accordingly.
51. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
SN/MD
