Karnataka High Court

Munimallaiah vs Madappa on 25 July, 2024

Author: V Srishananda

Bench: V Srishananda

                             R.S.A.No.1857/2008

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF JULY, 2024

                     BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

           R.S.A.NO.1857/2008(INJ)

BETWEEN:

1.   MUNIMALLAIAH
     S/O CHIKKANNA
     AGED 69 YEARS
     R/O DODDABETTAHALLI
     BANGALORE NORTH TALUK
     BANGALORE DISTRICT.


1(a) SMT.LAKSHMAMMA
     W/O LATE MUNIMALLAPPA
     AGED ABOUT 80 YEARS


1(b) SRI B.M.CHIKKEGOWDA
     S/O LATE MUNIMALLAPPA
     AGED ABOUT 56 YEARS


1(c) SMT.KAMALA
     D/O LATE MUNIMALLAPPA
     AGED ABOUT 54 YEARS


1(d) SMT.MUNIRATHNAMMA
     D/O LATE MUNIMALLAPPA
                                R.S.A.No.1857/2008

                          2



       AGED ABOUT 50 YEARS


1(e) SRI B.M.MANJUNATHA
     S/O LATE MUNIMALLAPPA
     AGED ABOUT 48 YEARS


1(f)   SRI D.M.SRINIVAS
       S/O LATE MUNIMALLAPPA
       AGED ABOUT 46 YEARS

       ALL ARE RESIDENT OF
       DODDABETTAHALLI
       VIDYARANYAPURA POST
       BANGALORE NORTH TALUK
       BANGALORE RURAL DISTRICT.
                                      ...APPELLANTS
(BY SRI M.R.RAJAGOPAL, SR. COUNSEL FOR SRI
H.N.BASAVARAJU, ADVOCATE)

AND

1.     SRI MADAPPA
       DEAD BY HIS LEGAL REPRESENTATIVES


1(a) SMT.CHANNAVEERAMMA
     W/O MADAPPA
     AGED ABOUT 73 YEARS


1(b) SMT.SHIVARUDRAMMA
     W/O REVANNA
     AGED ABOUT YEARS
                              R.S.A.No.1857/2008

                         3



1(c) SMT.SHANTHAMMA
     CLAIMS TO BE THE
     WIFE OF MADAPPA
     AGED ABOUT 80 YEARS


1(d) RUDRAIAH
     S/O MADAPPA
     AGED ABOUT 41 YEARS


1(e) SRI MANJUNATH
     S/O MADESH
     AGED ABOUT 41 YEARS


1(f)   SRI GIRISH
       S/O MADAIAH
       AGED ABOUT 35 YEARS


1(g) RUDRANI
     W/O NATARAJA SHASTRY
     AGED ABOUT 31 YEARS


2.     SRI BASAPPA
       S/O RUDRAMUNIYAPPA
       AGE : MAJOR


3.     SRI PUTTA RUDRAPPA
       S/O RUDRAMUNIYAPPA
       AGE : MAJOR

       ALL ARE RESIDENT OF
       DODDABETTAHALLI
       VIDYARANYAPURA POST
       BANGALORE NORTH TALUK
                                R.S.A.No.1857/2008

                           4



     BANGALORE RURAL DISTRICT.
                                       ...RESPONDENTS


(BY SRI GOPAL SINGH, ADVOCATE FOR R2 AND R3;
SRI P.BASAVARAJU, ADVOCATE FOR R4;
R1(a), R1(b), R1(c), R1(d),R1(e), R1(g) ARE SERVED;
VIDE ORDER DATED 07.11.2012, SERVICE HELD
SUFFICIENT IN RESPECT OF R1(f);
SRI M.S.VARADARAJAN, ADVOCATE FOR R5)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC

AGAINST THE JUDGMENT AND DECREE DTD 17.6.08

PASSED IN R.A.NO.83/04 ON THE FILE OF THE PRL.

DISTRICT JUDGE, I/C P.O- FTC-III, BANGALORE RURAL

DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED

AGAINST THE JUDGMENT AND DECREE DTD 30.1.04

PASSED IN OS 70/01 ON THE FILE OF THE ADDL. II CIVIL

JUDGE, (JR.DN), BANGALORE (R) DISTRICT, BANGALORE.

     THIS   APPEAL   HAVING    BEEN    RESERVED       FOR

JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS

DAY, THE COURT PRONOUNCED THE FOLLOWING:-


CORAM:   HON'BLE MR JUSTICE V SRISHANANDA
                                             R.S.A.No.1857/2008

                                      5




                                CAV JUDGMENT

(PER: HON'BLE MR JUSTICE V SRISHANANDA)

The present second appeal is preferred by the

unsuccessful plaintiff challenging the validity of the

judgment passed in O.S.No.70/2001, dated 30.01.2004,

on the file of Additional II Civil Judge (Jr.Dn), Bengaluru

Rural District, Bengaluru, which was confirmed in

R.A.No.83/2004, dated 17.06.2008, on the file of Fast

Track Court III, Bengaluru Rural District, Bengaluru.

2. Parties are referred to as plaintiff and

defendants for the sake of convenience as per their

original ranking before the Trial Court.

3. Appeal came to be admitted on the following

substantial questions of law:

"a) Are the judgments of the trial court and the appellate court sustainable as it appears, the defendants have been granted a decree of declaration and injunction merely on the ground that the plaintiff has failed to disprove the document Ex.D.1 when the

initial burden was on the defendants who had relied on such document to prove their title.

b) Whether the Trial court is justified in granting the decree of declaration in favour of the respondent-

defendants based on the counter claim made under order 8 Rule 6A despite the fact that absolutely there are no evidence to grant such decree.

c) Whether the Trial court is justified in shifting the burden of proof on the part of the plaintiff though the defendants have made a counter claim there in seeking the decree of declaration and injunction which vitiates the impugned judgment and decree of the court below?"

4. Facts in brief which are utmost necessary for

disposal of the second appeal are as under:

Plaintiff filed the suit for permanent injunction

initially against the defendant Nos.1 to 3. The plaint

averments reveal that original plaintiff is the absolute

owner in possession and enjoyment of the land bearing

Sy.No.39/2C, measuring 11 guntas, situated at

Doddabettahalli, Bengaluru North Taluk (hereinafter

referred to as 'suit property').

5. Plaintiff claimed the title over the suit property

by contending that he has purchased the suit property

under the registered sale deed dated 24.01.1950 from

Shivaramaiah. After purchase, he made an application to

the Assistant Director of Land Records to demarcate the

suit property.

6. Based on his application, a survey was

conducted and boundaries were fixed in respect of the suit

property along with sketch. Thereafter plaintiff claimed

that he is in peaceful possession and enjoyment of the suit

property by paying taxes to the revenue authorities.

7. It was the complaint of the plaintiff that

defendants had no manner of right, title and interest nor

possession over the suit property, tried to interfere with

the plaintiffs possession over the suit property.

8. It was his specific case that on 21.01.2001,

defendants tried to remove the fruits which were grown in

the trees of the suit property and therefore, cause of

action arose to file the suit for permanent injunction.

9. In response to the suit summons, defendants

appeared before the Trial Court and filed written statement

resisting the suit claim.

10. In the written statement, a counter claim was

also laid in respect of the suit property by contending that

the plaintiff is neither the owner nor in possession of the

suit property. He also contended that suit property was

purchased by father of the defendants by name

Rudramuniyappa, under a registered sale deed during the

year 1946 from the father of the plaintiff's by name

Chikkanna. Thereafter, father of the defendants was

shown in the khathedar column in the revenue records by

mutating the name of the father of the defendants in

pursuance of the registered sale deed executed in the year

1946. Thus defendants contended that they are in

possession and enjoyment of the suit property.

11. He also contended that plaintiff being son of

Chikkanna, who retained the remaining land in the old

Sy.No.39/2, without the knowledge of the defendants, had

included his name clandestinely in respect of Sy.No.39/2C

and boundaries mentioned in the original sale deed of the

year 1946 executed in favour of the defendants are being

existence even on the date of written statement.

12. It is also contended by the defendants that on

the Eastern side of the suit property, the property was sold

in favour of Shivamma and subsequently, it was sold in

favour of Nanjundaiah, under the registered sale deed,

wherein the boundaries of said sale deed tallies with the

boundaries mentioned in the sale deed of the defendants.

Therefore, defendants claim relief of declaration and

permanent injunction in respect of the suit properties by

paying necessary Court fee.

13. Learned Trial Judge on the basis of the rival

pleadings, framed following issues:

"1) Whether plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property as on the date of suit ?

2) Whether plaintiff further proves the alleged interference by defendants?

3) Whether plaintiff is entitled for the relief of Permanent Injunction as sought for?

4) Whether defendants prove that they are the absolute owners of 11 guntas are east to west 40 yards and north to south 30 yards in Sy.No.39/2c at Doddabettahalli village, Yelahanka Hobli, Bangalore North Taluk?

5) Whether defendants further prove that they are in lawful possession of Sy.No.39/2c?

6) Whether defendants further prove the alleged interference by plaintiff?

7) Whether defendants are entitled for the relief of declaration as prayed for?

8) Whether defendants are entitled for the relief of Permanent Injunction as prayed for ?

9) What order or decree ?"

14. In order to establish the case of the parties,

plaintiff got examined himself as P.W.1 and placed on

record six documents which were exhibited and marked as

Exs.P.1 to P6, comprising of sale deed dated 24.01.1950,

pahani in respect of the suit property vide Exs.P.2 and P.3,

tax paid receipts vide Exs.P.4 and P.6 and tippani copy

vide Ex.P.5.

15. As against the evidence placed on record by

the plaintiff, Madappa who was the first defendant got

examined himself as D.W.1 and a witness by name

Narayana Gowda as D.W.2. On behalf of the defendants,

fifteen documentary evidence were placed on record,

which were exhibited and marked as Exs.D.1 to D.15.

Among them, Ex.D.1 is the sale deed of the year 1946,

Ex.D.2 is the certified copy of the khatha extract, Ex.D.3

and D.4 being the index of lands and record of rights in

respect of the suit property, Ex.D.5 and D.6 are the pahani

copies, Ex.D.7 is the mutation register extract, Ex.D.8 is

the endorsement issued by the revenue authorities, Ex.D.9

is yet another pahani in respect of the suit property,

Ex.D.10 is the patta book extract, Ex.D.11 is the tippani

copy, Ex.D.12 is the Atlas copy, Ex.D.13 is the settlement

of Akarbandh, Ex.D.14 is another tippani copy and

Ex.D.15 is the certified copy of record of rights.

16. Based on the oral and documentary evidence

placed on record, the learned Trial Judge heard the parties

in detail and has recorded a categorical finding that as per

Ex.D.1 father of the plaintiff by name Chikkanna having

sold the property in the year 1946 in favour of the father

of the defendants by name Rudramuniyappa. Subsequent

sale deed of the plaintiff in the year 1950 from

Shivaramaiah did not convey any right, title or interest in

respect of the suit property. Trial Court also noted that

recitals of Ex.P.1 shows that 30 yards X 40 yards in

Sy.No.39/1 and Sy.No.39/2 has been excluded, i.e., suit

property.

17. Therefore, the learned Trial Judge held that

defendants have been successful in establishing that they

are the owners of the suit property vide Ex.D.1 and

plaintiff is unable to show that the property purchased by

him from Shivaramaiah is the suit property by placing

cogent and convincing evidence on record and therefore,

prays to dismiss the suit of the plaintiff.

18. While so dismissing the suit of the plaintiff, the

learned Trial Judge also held that the counter claim of

declaration and injunction of the defendants needs to be

decreed and accordingly, decreed the suit by answering

issue Nos.4 to 8 in the affirmative and issue Nos.1 to 3 in

the negative.

19. Being unsuccessful in the suit, the plaintiff filed

an appeal in R.A.No.83/2004 before the District Court.

20. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and raised

a sole point for consideration as under:

"Who is the owner of the property measuring 11 guntas in the facts of this case?"

21. On re-appreciation of the material evidence on

record, learned Judge in the First Appellate Court

dismissed the appeal.

22. Therefore, the unsuccessful plaintiff has

preferred the present second appeal.

23. Appeal came to be admitted on substantial

questions of law as referred to supra.

24. Sri M.R. Rajagopal, learned Senior Counsel

representing the appellant reiterating the grounds urged in

the appeal memorandum vehemently contended that both

the Courts have failed to appreciate that the plaintiff laid

his claim with regard to the title and possession in respect

of the suit property based on the registered sale deed and

therefore, the impugned judgments are to be set aside and

appeal is to be allowed.

25. He also pointed out that both the Courts did

not properly appreciate the evidentiary value of the

registered sale deed dated 24.01.1950, where under

Shivaramaiah has sold the suit property in favour of

plaintiff and after purchase, survey was conducted and

boundaries were fixed as per the recitals of the sale deed.

Thus plaintiff was put in possession of the property and he

was in enjoyment of the same by paying the taxes and

thus the appeal needs to be allowed.

26. He also pointed out that in a suit for bare

injunction, counter claim for declaration and injunction

should not have entertained by the Trial Judge and

therefore, the impugned judgments and decree are

suffering from legal infirmity and sought for allowing the

appeal.

27. He further argued that the learned Trial Judge

while decreeing the suit of the defendants for the counter

claim, wrongly placed the burden on the plaintiff to

establish that Ex.D.1 did not convey right, title and

interest to the suit property.

28. He also pointed out that in a suit for

permanent injunction filed by the plaintiff, the defendants

ought not to have sought for declaration and an

independent suit should have been filed by the defendants

and thus, sought for allowing the appeal.

29. He further argued that the contents of Ex.P.1

and Ex.D.1 would go to show that suit property was the

subject matter of Ex.P.1 and property in Ex.D.1 is not the

suit property and therefore, dismissing the claim of the

plaintiff by Trial Court and upheld by the First Appellate

Court, is suffering from legal infirmity and thus, sought for

allowing the appeal.

30. Per contra, counsel for respondents supported

the impugned judgments.

31. It is also argued on behalf of the respondents

that the substantial questions of law for which the appeal

came to be admitted are to be held against the appellant,

in view of the fact that there is a mention in Ex.P.1 itself

that the sale of the land in Ex.P.1 by Shivaramaiah in

favour of the plaintiff is in exclusion of 40 yards East to

West and 30 yards North to South land in Sy.No.39/1 and

39/2 and therefore, suit property was not the subject

matter of the sale deed executed by Shivaramaiah in

favour of the plaintiff and sought for dismissal of the

appeal.

32. They further pointed out that the material

evidence on record would be sufficient enough to hold that

the property claimed by the plaintiff is not the part of the

suit land which was conveyed under Ex.P.1 and thus

sought for dismissal of the appeal.

33. In the light of above rival contentions, this

Court perused the records keeping in view of the

substantial questions of law referred to supra which were

raised at the time of admitting the appeal.

34. On perusal of the material on record, it is

crystal clear that as per Ex.D.1, father of the plaintiff by

name Chikkanna has sold the property in the year 1946.

Schedule in Ex.D.1 reads as under:

"SCHEDULE

The land bearing SY.No.39/2C measuring 11 Guntas situated at Doddabettahalli Village, Yelahanka hobali, Bangalore North Taluk bounded by East : Land West : Land belongs to Manchaiah North : Land South : Land belongs to Veerabhadraiah S/o Nanjundaiah

35. Thereafter, revenue entries have been mutated

and Record of Rights and Index of Lands marked at Ex.D.4

and D.3 respectively and mutation entries vide Ex.D.7

would go to show that the property purchased by the

defendants from Chikkanna is being enjoyed by the

defendants by paying necessary taxes to the Revenue

Authorities.

36. Ex.D.11 being the tippani copy, Ex.D.12 being

the Atlas copy, Ex.D.13 being the settlement Akarband,

Ex.D.14 being another tippany copy, Ex.D.15 being the

certified copy of Record of Rights, produced and relied on

by the defendants have all come into being much earlier to

the suit dispute.

37. Cause of action to file the suit according to the

plaint averments is on 21.01.2001, the mutation register

extract marked at Ex.D.7, clearly shows that after father of

the defendants namely; Rudramuniyappa, wife of

Rudramuniyappa namely Nanjamma, first defendant

Madappa, second defendant Basappa, third defendant

Putta Rudrappa have together made an application in

respect of the land in Sy.No.39/1A for effecting the

mutation entry.

38. The Revenue Officer has visited the village and

drew a mahazar before the land was mutated in the names

of wife and children of Rudramuniyappa.

39. Admittedly, the plaintiff did not object at that

point of time with regard to the measurement of the land

or possession thereof.

40. Pursuant to thereof, an endorsement also

came to be issued by the office of the Assistant Director of

Land Records.

41. The Record of Rights marked at Ex.D.9 for the

year 1999-2000 shows that the land in question was in the

name of Madappa, Putta Rudrappa and Munimallaiah.

Munimallaiah who is the plaintiff has been shown as the

person in possession vide M.R.No.14/1987-88 to the

extent of 0.29 guntas of the land.

42. It is pertinent to note that Atlas copy Ex.D.12

and Akarbandh marked at Ex.D.13 also reflect the similar

position.

43. Ex.D.14 is the tippany copy, where re-survey

has taken place in respect of Sy.No.39 and it has been

marked as Sy.No.39/2 (A), 2(B) and 2(C).

44. In all these proceedings, the plaintiff being the

neighbor, has been notified by the authorities. Had there

been any interference or encroachment as is alleged by the

plaintiff in the plaint, nothing prevented the plaintiff to

approach the Court immediately.

45. Exs.D.5 and D.6 being the Record of Rights in

respect of the land in Sy.No.39/2 for the year 1971 to

1976 show that father of the plaintiff - Chikkanna and

father of the defendants - Rudramuniyappa as Kabjedars,

person in possession. Thus, continuously, the name of

father of the defendants and later on, name of

Rudramuniyappa's legal representatives have appeared in

the revenue records.

46. When there is a specific recital in the sale deed

where under the plaintiff has laid the claim in respect of

the suit property that the sale made by Shivaramaiah in

favour of the plaintiff, property to the extent of 40 yards

East to West and 30 yards North to South is excluded,

claim of the plaintiff that he is the owner of the suit

property was rightly refused by the learned Trial Judge and

confirmed by the First Appellate Court.

47. If at all the plaintiff is claiming that the suit

property is different from the subject matter of the

property covered under Ex.D.1, it was incumbent on the

plaintiff to establish that the property sold by his father in

favour of the father of defendants is altogether different

property and not the suit property. The burden was on

him to establish and therefore, the contentions urged on

behalf of the appellant that there was a wrong placing of

burden by both the Courts vitiating the impugned

judgments cannot be countenanced in law.

48. Having said thus, the only question that would

now remain is, whether the defendants could have made a

counter claim in the suit filed by the plaintiff.

49. Whether in a suit for bare injunction filed by

the plaintiff counter claim of declaration and injunction can

be entertained by a Court is no longer res integra in the

light of the judgment of the Jag Mohan Chawla and

another vs. Dera Radha Swami Satsang and others

reported in (1996) 4 Supreme Court Cases, wherein

their lordships have held as under:

5. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable?

Whether counter-claim can be made on different cause of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set-off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6-A to 6-G were brought on statute. Rule 6-A(1) provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter- claim shall not exceed the pecuniary limits of the jurisdiction of the court. Sub-rule (2) amplifies that such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original

claim and on the counter-claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the court. The counter- claim is directed to be treated, by operation of sub- rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala [(1964) 2 SCR 567 : AIR 1964 SC 11] , had come to consider the case of suit and cross-suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter-claim as a cross-suit. The trial court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross-suit and remitted the suit for

trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter-claim for settlement of their claim and defence in written statement as a cross-suit. The counter-claim could be treated as a cross-suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of

action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter- claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting

dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of M.P. [(1987) 3 SCC 265] where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter- claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.

50. Applying the above principles to the case on

hand expecting the defendants to file such a suit is only

rule of prudence, especially when there is a prayer of

declaration. Nevertheless, defendants raising the counter

claim and the learned Trial Judge raised the necessary

issues as referred to supra, and parties have joined the

issues in the trial and placed the evidence on record, it is

too late for the appellant to contain that such a counter

claim was not maintainable before the learned Trial Judge.

51. When once there is a clear finding recorded by

the learned Trial Judge that the property claimed by the

plaintiff has been excluded in the sale deed dated

24.01.1950 executed by Shivaramaiah and said property

had already been sold by father of the plaintiff - Chikkanna

in favour of the defendants, the substantial questions of

law on which the appeal came to be admitted will have to

be held against the appellant.

52. Consequently, the judgments of the Trial Court

and First Appellate Court, whereby suit of the plaintiff

being dismissed and grant of declaration and injunction in

favour of the defendants needs to be confirmed. Hence,

substantial questions of law (a) and (b) are answered

accordingly.

53. Further, since it is the plaintiff who tried to lay

a claim based on Ex.P.1 and failed to prove that he was in

possession of the suit property by virtue of a documentary

evidence placed on record. But, the material on record is

sufficient enough to hold that it is the defendants who are

in possession of the suit property, having placed their title

from Ex.D.1, this Court is of the considered opinion that

mere mentioning in the judgment of the Trial Court by the

learned Trial Judge that burden was on the plaintiff to

disprove Ex.D.1 would not affect the end result, especially

when the parties have joined the issues and placed

necessary evidence on record.

54. In this regard it is necessary for this Court to

cull out Section 101 of the Evidence Act, which reads as

under:

"101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

55. Hon'ble Apex Court in the case of Rangammal

v. Kuppuswami reported in (2011) 12 Supreme Court

Cases 220, in paragraph 33 has held as under:

"33. Since the High Court has misplaced the burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well-established dictum of the Evidence Act that misplacing burden of proof would vitiate the judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in Koppula Koteshwara Rao v. Koppula Hemantha Rao."

56. Applying the principles of law enunciated in the

case of Rangammal to the case on hand, the contentions

urged on behalf of the appellant that burden was on the

respondent to establish the plea taken by the respondent

cannot be countenanced in law as the burden of proof

loses its significance after parties have joined the issues

and placed their respective evidence on record.

Accordingly, in view of the foregoing discussion,

substantial questions of law at (c) is also answered in the

Negative.

In view of the findings on substantial questions of

law at (a), (b) and (c), following: