Karnataka High Court
Parayya S/O Ishwarayya Bhanvi vs Basaparayya S/O Ningayya Bhanvi on 26 July, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
RSA NO. 2348 OF 2005
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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE, 26TH DAY OF JULY, 2024
BEFORE
HON'BLE JUSTICE MR HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.2348 OF 2005
C/W
REGULAR SECOND APPEAL NO.2367 OF 2005
IN RSA NO. 2348 OF 2005
BETWEEN
PARAYYA,
S/O ISHWARAYYA BHANVI,
AGE: 56 YEARS,
OCC: PUJARAKI,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADVOCATE)
AND
1. BASAPARAYYA,
S/O NINGAYYA BHANVI
AGE: 52 YEARS,
OCC: PUJARIKI
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
2. MAGAYYA
S/O NINGAYYA BHANVI,
AGE: 49 YEARS,
OCC: PUJARAKI,
2
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R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
MAGAYYA
S/O PARAYYA BHANVI,
SINCE DECEASED BY HER LRS
SMT. KALLAWWA
3. W/O MAGAYYABHANVI,
AGE: 59 YEARS,
OCC: HOUSEHOLD
4. SHANKARAYYA
S/O MAGAYYA BHANVI
AGE: 44 YEARS,
OCC: AGRICULTURE
5. RACHAYYA
S/O MAGAYYA BHANVI,
AGE: 41 YEARS,
OCC: AGRICULTURE
6. MALAYYA
S/O MAGAYYA BHANVI,
AGE: 38 YEARS,
OCC: AGRICULTURER
7. SMT MALLAWWA
W/O RACHAYYA MATHAPATHI,
AGE: 36 YEARS,
OCC: HOUSEHOLD
8. SMT. PARAWWA,
W/O IRAYYA PUJARI,
AGE 39 YEARS,
ALL ARE R/O
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
3
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9 (a) GADIGAYYA
S/O PARAYYA BHANVI,
AGE: 57 YEARS,
SINCE DECEASED BY HIS LRS,
9 (b) SHRISHAILA,
S/O LATE. SADIGAYYA ,
AGE ABOUT 69 YEARS,
9 (c) BASAYYA
S/O LATE. SADIGAYYA ,
AGE ABOUT 66 YEARS,
ALL ARE R/O NEAR PRABHUDEVASWAMY MATH,
TERDAL, JAMAKANDI TALUK,
BAGALKOT DISTRICT.
9 (d) SMT. NEELAWWA
W/O GIRIMALLAYA MATHAPATHI,
AGE ABOUT 53 YEARS,
OCC; HOUSEHOLD
R/O NEAR PRABHUDEVASWAMY MATH,
TERDAL, JAMAKANDI TALUK,
BAGALKOT DISTRICT.
9 (e) SMT. MAHADEVI,
W/O SHANKARAYYA,
AGED ABOUT 49 YEARS,
OCC: HOUSELHOLD WORK,
R/O KALUTI NAGAR, TERDAL,
JAMAKHANDI TALUK,
BANGALORE DISTRICT.
CAUSE TITLE AMENDED AS PER ORDER DATED
28.07.2021 PASSED ON IA NO.1 /20 TO 3/20
10. DUNDAYYA
S/O ALLAYYA BHANVI,
4
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AGE: 53 YEARS,
SINCED DECEASE BY HIS LRS
10(A) SMT. SIDDALINGAWWA,
W/O LATE DUNDAYYA BHAVI,
AGED ABOUT 55 YEARS,
10(B) GUBESHWAR
S/O LATE DUNDAYYA BHAVI,
AGED ABOUT 32 YEARS,
10(C) MAHESH
S/O LATE DUNDAYYA BHAVI,
AGED ABOUT 29 YEARS,
ALL ARE R/O NEAR
PRABHUDEVASWAMY MATH,
TERDAL,
JAMAKANDI TALUK,
BAGALKOT DISTRICT.
10(D) SMT. GOWURAWWA
W/O PANCHAYYA MATHAPAATHI,
AGED ABOUT 35 YEARS
OCC: HOUSEHOLD WORK,
R/O SHURPALI,
JAMAKANDI TALUK,
BAGALKOT DISTRICT
CAUSE TITLE AMENDED AS PER ORDER DATED
06.01.2014 PASSED ON IA NOS 1/13 TO 3/13
11 . MAGAYYA
S/O ALLAYYA BHANVI,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
....RESPONDENTS
5
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(BY SRI. MRUTHYUNJAYA TATA BANGI , ADVOCATE FOR R1 AND
R2;
SRI. ANIL KALE, ADVOCATE FOR R3 TO R8
SRI. SRINIVASA A PACHHEPURE ADVOCATE R11;
R9(B TO E) ARE LRS OF DECEASED R9(A)
R9 (B), R9 (C) , R9 (D), R9 (E) NOTICE HEARD SUFFICIENT;
R 10 (A-D) ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DT. 23.8.2005, PASSED IN R.A.
NO.23/2000 ON THE FILE OF THE DIST. AND SESSIONS JUDGE
NAD PRESIDING OFFICER, FAST TRACK COURT, JAMAKHANDI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT
AND DECREE DT. 15.3.2000 PASSED IN O. S. NO. 80/1990 ON
THE FILE OF THE CIVIL JUDGE (JR. DN.), BANHATTI. TRIAL
COURT DECREED THE SUIT. APPELLATE COURT DISMISSED THE
APPEAL SUIT FOR DECLARATION AND INJUNCTION.
IN RSA NO.2637 OF 2005
BETWEEN
PARAYYA,
S/O ISHWARAYYA BHANVI,
AGE: 56 YEARS,
OCC: PUJARAKI,
R/O TERDAL, JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315
...APPELLANT
(BY SRI. RAVI S BALIKAI, ADVOCATE)
AND
1 . MAGAYYA
S/O PARAYYA BHANVI,
SINCE DECEASED BY HER LRS
1(a) SMT. KALLAWWA
W/O MAGAYYABHANVI,
AGE: 59 YEARS,
OCC: HOUSEHOLD
SINCE DECAEASED BY HER LRS,
6
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1(b) SMT MALLAWWA
W/O RACHAYYA MATHAPATHI,
AGE: 62 YEARS,
OCC: HOUSEHOLD
R/O NEAR LAXMI TEMPLE, RABAKAVI,
BANHATTI TALUK,
BAGALKOT DISTRICT.
1(c) SMT. PARAWWA,
W/O IRAYYA PUJARI,
AGE 39 YEARS,
OCC; HOUSEHOLD WORK.
R/O NEAR LAXMI TEMPLE, RABAKAVI,
BANHATTI TALUK,
BAGALKOT DISTRICT.
CAUSE TITLE AMENDED AS PER
ORDER DATED 28.07.2021 PASSED ON
I.A.NO. 1/20 TO 3/20.
2. RACHAYYA
S/O MAGAYYA BHANVI,
AGE: 41 YEARS,
OCC: AGRICULTURE
3. MALAYYA
S/O MAGAYYA BHANVI,
AGE: 38 YEARS,
OCC: AGRICULTURE
4. SHANKARAYYA
S/O MAGAYYA BHANVIAGE: 44 YEARS,
OCC: AGRICULTURE
RESPONDENT NOS. 2 TO 4 ARE
R/O TERDAL,
JAMKHANDI TALUK,
BAGALKOT DISTRICT - 587 315.
7
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....RESPONDENTS
(BY SRI. ANIL KALE, ADVOCATE FOR R2 TO R4;
R1 (A) AND R1(B) ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DT. 23.8.2005, PASSED IN R.A. NO.
24/2000 ON THE FILE OF THE DIST. AND SESSIONS JUDGE AND
PRESIDING OFFICER, FAST TRACK COURT, JAMAKHANDI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DT. 15.3.2000 PASSED IN O.S.NO. 71/1994 ON THE FILE
OF THE CIVIL JUDGE (JR.DN.), BANHATTI. TRIAL COURT
DECREED THE SUIT. APPELLATE COURT DISMISSED THE APPEAL
SUIT FOR DECLARATION AND INJUNCTION.
THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.07.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)
RSA.No.2348/2005 and RSA.No.2367/2005 are filed by
defendant No.1 against the judgment and decree passed in
RA.No.23/2000 and RA.No.24/2000 respectively dated
23.08.2005 passed by the District and Sessions Judge &
Presiding Officer, Fast Track Court at Jamakhandi and the
judgment and decree passed in OS.No.80/1990 and
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O.S.No.71/1994 respectively dated 14.03.2000 (common
judgment) passed by the Court of Civil Judge (Jr.Dn.,)
Banhatti.
2. Both the suits are filed for declaration and
injunction and the trial Court has decreed both the suits and
the regular appeals filed by defendant No.1 were dismissed.
Therefore, against the concurrent findings of fact by both the
courts below, defendant No.1 has preferred the present
regular second appeals.
3. The ranks of the parties, is as stated before the
trial Court for easy reference and convenience.
FACTS:
4. The brief facts as set out by the plaintiff in
O.S.No.80/1990 are as follows:
The plaintiff's father one Ningayya S/o Basaparayya
Bhanvi was the owner of the suit property have succeeded to
the suit property by way of succession and till today, the
plaintiff's father name is continued in the revenue records
property extract. The plaintiffs are in lawful possession and
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enjoyment of the suit property. The suit property bearing
TMC.No.1119, Division No.2 of Terdal Town is originally
measuring East to West 100 feet and North to South 112 feet
as more fully described in the schedule of suit property and
out of which, the plaintiff was claiming that he was making
wahiwat (enjoyment) to the extent of East to West 50 feet
and North to South 112 feet for more than 50 years. The
remaining half portion is owned and possessed by one
Channayya Parayya Bhanvi and defendant Nos.2 to 5. The
said Channayya Parayya Bhanvi and defendant are claiming
ownership in the remaining half portion of Eastern side of the
said property. The deceased father of plaintiff had sold the
land to the extent of East to West 5 feet and South to North
112 feet for Rs.500/- on 19.07.1984 under a registered sale
deed to Chennayya Parayya Bhanvi out of his property then
measuring 50 feet by 112 feet. Therefore, the plaintiffs
became the owners of East to West 45 feet and South to
North 112 feet as more fully described in the suit schedule
property.
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5. It is contended that the plaintiffs are in possession
of the suit schedule property for 50 years. Therefore, the
plaintiffs are claiming property as marked as "ABCD" in the
hand sketch annexed to the plaint. Defendant Nos.2 to 5 and
one Channayya Parayya Bhanvi are claiming ownership of
remaining half portion shown as "MNOP" in the hand sketch
map.
6. But the defendant No.1 without having right, title
and interest over the suit schedule property is attempting to
obstruct the plaintiffs' peaceful possession and disputed the
title of the plaintiffs' over the suit property. Therefore, the
plaintiffs have filed the suit for declaration and permanent
injunction.
7. The written statement of defendant Nos.4
and 5 in OS.No.80/1990:
7.1 It is submitted by defendant Nos.4 and 5 that
defendant No.1 is claiming ownership and right in the
property belonging to defendant Nos.4 and 5. Defendant
Nos.4 and 5 together owned a space to the extent of East to
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West 50 feet and North to South 36 feet, which is lying to
the East to the property of the plaintiff. Defendant Nos.4 and
5 have produced the hand sketch map with written
statement and by showing their property by letters "BLMN",
the deceased father of defendant Nos.4 and 5 namely Allayya
Magayya Bhanvi has purchased the said portion under two
registered sale deeds dated 21.09.1984 and 14.02.1986
from Channayya Parayya Bhanvi and his brothers. Thus,
defendant Nos.4 and 5 have got their title and their names
have been mutated in the municipal records. Defendant
Nos.4 and 5 are residing in the said property and
accordingly, they are in possession of the property. It is
stated that the plaintiffs are the owners of the suit schedule
property shown by letters "ABCD" and they are in lawful
possession of the said property. Further stated that some
portion of the property was sold by Ningayya Bhanvi (father
of plaintiffs) to Channayya Parayya Bhanvi who is the vendor
of defendant Nos.4 and 5. Therefore, they have filed the
written statement.
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The written statement of defendant no.2 in
8. Defendant No.2 has filed the written
statement and admitted the hand sketch map produced by
the plaintiffs annexed to the plaint. Defendant No.1 has no
right, title or interest over the suit schedule property bearing
TMC.No.1119, Division No.2 of Terdal and originally the
entire suit property is measuring East to West 100 feet and
North to South 112 feet. The plaintiffs and defendant Nos.3,
4 and 5 are the owners of the suit properties in their
respective portions as shown in the hand sketch map of the
defendants. Hence, neither defendant No.1 nor his forefather
have no right, title and interest in respect of the entire suit
property. It is the case of defendant No.2 that this defendant
No.1 has no right, title and interest over the suit schedule
property and wahiwhat of property "DEFG" a portion as
shown in the hand sketch map to the written statement.
Defendant No.2 admitted that the plaintiffs are the owners
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and in actual possession of the property shown by the letters
"ABCD" in the hand sketch map.
9. The written statement of defendant No.1
(contesting defendant) in O.S.No.80/1990 and
O.S.No.71/1994:-
9.1 The contesting defendant is defendant No.1. This
defendant No.1 denied all the pleadings made by the plaintiff
and other defendants. This defendant has denied that the
father of the plaintiff namely Ningayya Bhanvi was the owner
of the suit schedule property. Further pleaded that the
plaintiffs are not in possession over "ABCD" property as
shown in the hand sketch map. Further defendant No.1
pleaded that the extent of property originally was East to
West 100 feet and North to South 112 feet. Further denied
the fact that the plaintiffs' father was enjoying and making
wahiwat of property measuring East to West 50 feet and
North to South 112 feet for more than 50 years. Further
denied that the remaining half portion as alleged by the
plaintiffs is claimed by Channayya Parayya Bhanvi. The said
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Channayya Parayya Bhanvi absolutely is not concerned over
the suit property or any other portion of it.
9.2 It is further pleaded that the alleged sale deed
dated 19.07.1984 alleged to have been executed by
deceased Ningayya Bhanvi in favour of Channayya Parayya
Bhanvi is sham, bogus and concocted document. There is no
division of property on the strength of this alleged sale deed.
Defendant No.1 is not a party to the said document. The said
document/sale deed is collusive one. Through the sale deed
dated 19.07.1984, the plaintiffs have never asserted their
right. Defendant No.1 denied that the plaintiffs are enjoying
and making wahiwat of portion of "ABCD" property.
9.3 It is the specific case of defendant No.1 as
pleaded in the written statement that the property bearing
TMC.No.1119 is measuring East to West 98 feet and North to
South 114 feet, but not 100 feet x 112 feet. The property is
divided into two portions only as shown by defendant No.1 in
his hand sketch map. The defendant No.1 is in possession of
Western half portion of property measuring East to West 49
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feet and North to South 114 feet as shown in the hand
sketch map. Defendant No.1 is in actual possession and
wahiwat of Western half portion of property for the last 30 to
40 years from his forefather's time.
9.4 Defendant No.1 further pleaded that during the
year 1987, some changes were made behind the back of
defendant No.1 and his father, in collusion with the plaintiff
and Channayya Parayya Bhanvi. Immediately, he approached
the Town Municipal Council, Terdal and the Town Municipal
Council has rectified revenue entries by virtue of General
Body Resolution dated 31.01.1987 after enquiry as per the
provisions of Karnataka Municipalities Act. After death of
father of defendant No.1, the name of defendant No.1 is
entered to the property No.1119 under resolution No.103
dated 18.03.1987.
9.5 Further defendant No.1 pleaded that the family of
the plaintiffs is in possession of Eastern portion, but now the
plaintiffs are asserting to claim over the Western portion, but
the said Western portion belongs to the defendant No.1.
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9.6. It is further submitted by defendant No.1 that the
suit filed by plaintiff is barred by res judicata. One
Channayya Parayya Bhanvi has filed a suit in
O.S.No.12/1987 against of defendant no.1 and father of
plaintiff. In the said suit, defendant No.1 filed his written
statement and specifically contended that he is in possession
of Western half portion. This fact was never denied by father
of plaintiff at any time. Hence, the principle of res judicata is
applicable. Further pleaded that suit filed by plaintiff is a
clear bar of estoppel to the suit filed by plaintiff. Plaintiffs
are estopped to contend otherwise than the one stated in
O.S.No.12/1987.
9.7. Further pleaded that Channayya Parayya Bhanvi
has absolutely no concern whatsoever over the suit schedule
property. The present suit is collusive in nature between
plaintiffs, Channayya Parayya Bhanvi and defendant Nos.2 to
5. The said Channayya Parayya Bhanvi has withdrawn the
suit in O.S.No.12/1987 after having convinced that he will
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not succeed in the suit. Therefore, defendant No.1 has
prayed to dismiss the suit.
10. The Trial Court after framing issues and
appreciating the evidence on record has answered issues that
the plaintiff proved that they are owners and of the suit
property to the Western portion of Tardal TMC No.1119/2
described as 'ABCD' in the plaint hand sketch map and are in
lawful possession over the property. The Trial Court has
disbelieved the case of defendant No.1 that defendant No.1
in both the suits is owner and in possession of Western
'ABCD' property. The Trial Court has decreed both the suits
O.S.No.80/1990 and O.S.No.71/1994 and declared that
plaintiffs in O.S.No.80/1990 are owners of the suit schedule
property and granted permanent injunction.
11. Being aggrieved, defendant No.1 in both the suits
has preferred Regular Appeals before the First Appellate
Court. The First Appellate Court has dismissed the appeal on
the reason that defendant nos.4 and 5 in O.S.No.80/1990
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have admitted the case of plaintiffs by stating that the
plaintiff has proved that he is the owner of the suit schedule
property as they have purchased the suit property by way of
a sale deed in the year 1984 and accordingly, paid property
tax and therefore, proved that after purchase they have put
up construction on the said land. Therefore, confirmed the
judgment and decree passed by the Trial Court. Further
accepting the case of defendants no.4 and 5 held that they
purchased portion of the property on the eastern side from
their vendor Channayya Parayya Bhanvi under two different
sale deeds and they have constructed residential house and
shop in the purchased property and they are in possession.
Also defendant No.2 Magayya and defendant no.3 Gadagayya
Parayya Bhanvi are claiming to be purchasers of portion of
the property of the Eastern side of Channayya Parayya
Bhanvi under registered sale deed and constructed the house
for residential purpose and they are paying property tax as
per document produced by them. Therefore, by relying upon
Ex.P.18 sale deed and considering the boundary mentioned
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therein has dismissed the appeal filed by defendant no.1.
Further, the Trial Court has assigned reason that Channayya
Parayya Bhanvi in O.S.No.12/1987, who is plaintiff in said
suit, and in the said suit O.S.No.12/1987 the defendant no.1
herein, who was also defendant no.1 in O.S.No.12/1987, has
contended that he is the owner of Western half portion of
TMC No.1119 and remaining Eastern half portion is owned by
plaintiff's father Ningaiah Bhanvi. But contrary to the suit in
O.S.No.80/1990, defendant no.1 has contended that Eastern
half portion of the property is owned by Magayya, Gadigeyya
and Dundayya and not the aforesaid Channayya Parayya
Bhanvi. But in this regard, there are documents of title
produced before the Trial Court to have purchased the
property from their vendor Channayya Parayya Bhanvi and
as such declined the case of defendant no.1 and hence
dismissed the appeals.
12. Being aggrieved by the dismissal of Regular
Appeals, defendant No.1 in both the suits has preferred the
present Regular Second Appeals. This Court while admitting
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the appeals has framed the following substantial question of
law : -
"Whether the courts below were justified in
granting a decree for declaration in the absence of
any material produced to show how the title to the
property was traced to the plaintiffs ?"
Submissions of counsel for the appellants:
13. Learned counsel for the appellant, Sri Ravi S
Balikai, vehemently argued that both the courts below have
committed serious error in not considering the aspect
whether the vendors have title so as to sell the land.
Therefore, Ex.P.18 sale deed cannot be relied upon. Ex.P.18
is the registered sale deed dated 14.5.1984 in which the
vendor is Allappa Payappa Desai and the buyer is Channayya
Parayya Bhanvi and the extent of the property is 50 ft. East-
West and 119 ft. South-North bounded by, towards East-
Prabhudevara godown, West-open space belonging to
Ningayya Basaparayya Bhanvi. But the vendor has no title.
Therefore, the plaintiff could not rely upon the sale deed
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Ex.P.18 in the absence of title of the vendor. Therefore, the
recitals in the sale deed Ex.P.18 showing towards western
side there is open space belonging Ningayya Basaparayya
Bhanvi (plaintiff's father) is not correct and cannot be relied
upon. Further submitted that in sale deed Ex.P.19 dated
19.7.1984, the vendor is Ningayya Basaparayya Bhanvi and
purchaser is Channayya Parayya Bhanvi and the property
sold is out of the western portion measuring east-west 5 ft
and south-north 118 ft. but the vendor Ningayya
Basaparayya Bhanvi did not have title. Therefore, reliance
placed by both the courts below on Exs.P.18 and P.19
holding that the plaintiff is owner of the property is not
correct. Therefore, in the absence of title to the vendors,
both in respect of the sale deeds 14.5.1994 and 19.7.1984, it
cannot be proved that the plaintiff is in western portion of
the property. It is argued that the plaintiff's suit being one
for declaration and title of ownership unless the plaintiffs
produced valid title deeds, they are not entitled to
declaratory relief of title over the suit property. But,
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admittedly the plaintiff has not produced any title deed in
support of their claim for title.
13.1. Further submitted that the entries in revenue
records do not create or extinguish the title. In the present
case, plaintiffs have not produced any evidence in proof of
their title. Further submitted that the burden of proof to
prove that the plaintiffs are the owners of the property is
upon the plaintiffs but the plaintiffs except producing
property extracts, have not produced any material to prove
their title over the suit property. Therefore, the plaintiffs
have not proved their title over the suit property and
produced relevant title deeds. Hence, in the absence of this,
the plaintiff's suit is liable to be dismissed.
13.2. Further submitted that defendant no.1 has
produced evidence of property extract right from the year of
establishment of village panchayath at Tardal to show that
name of late Eshwaraiah, father of defendant no.1, was
entered in the property extracts as possessor and owner
jointly along with the name of father of the plaintiff,
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Ningaiah. Therefore, defendant no.1 has proved they are in
possession. Thus, owner by virtue of possession and has
produced tax paid receipts. Further submitted that the sale
deed Exs.P.18 and P.19 are not documentary title for the
plaintiffs and they will not confer any title rights over the
plaintiffs and to prove their title in respect of the particular
portion of western side as claimed by the plaintiffs. Whereas
the plaintiffs are owners and in possession of the eastern
side half portion out of the suit property and presently the
same is being in occupation and enjoyment of plaintiffs and
their cousins who are defendants no.2 to 5.
13.3. Further submitted that in Exs.P.18 and P.19, sale
deeds, the description of areas sold and boundaries
mentioned in sale deed are not correct and as per the facts
defendant No.1 and his father are not parties to the said sale
deeds and thus they are not bound by recitals of the sale
deeds. Further, the vendor Allappa Payappa Desai did not
have title to the suit property. Hence, the sale deed executed
by him will not confer any title to the purchaser Channayya
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Parayya Bhanvi. Also the plaintiffs father who is the vendor
as per sale deed Ex.P.19 being owner of the half share has
sold 5 feet strips out of his property by deliberately
mentioning wrong boundaries to the suit according to his
convenience and therefore, there is collusion between the
father of the plaintiffs and Channayya Parayya Bhanvi.
Therefore, unless the vendor produces valid title deeds to
prove that he is the lawful owner and in possession of the
western half share out of TMC No.1119 of Tardal, the
purchaser Channayya Parayya Bhavi would not get any title
over the property alleged to have sold and therefore,
defendant no.1 or his late father Eswaraiah are not bound by
the self serving recitals in the sale deeds. Therefore, arguing
on the substantial question of law above framed by this
Court, it is argued that in Exs.P.18 and P.19 to the western
side, the description of the property is wrongly shown just to
knock off the property of defendant no.1. Therefore, it is
submission made by the counsel for the appellant/defendant
no.1 that if the vendor of the sale deed Ex.P.18 Allappa
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Payappa Desai did not have any title even the plaintiff in
O.S.no.71/94, who is claiming under the sale deed Ex.D.2
would not also get any better title. Therefore, reliance
placed by both the courts below on Exs.P.18 and P.19 is not
correct.
13.4. Channayya Parayya Bhanvi filed suit in
O.S.No.12/1987 and in the said suit, he has specifically
described himself to be the exclusive owner of entire area
purchased by him in Ex.P.18 and he did not disclose the sale
deed as Ex.D.2. However, argued that plaintiff has produced
secondary evidence without laying foundation by pleadings
and evidence for production of secondary evidence.
Therefore, mandatory requirements of Section 65(c) of the
Indian Evidence Act, are not complied with. Therefore, it is
submitted that the appeals be allowed by setting aside the
judgment and decree passed by the courts below.
13.5. The learned counsel for the appellant places
reliance on the following judgments of Hon'ble Supreme
Court and this Court :
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1. ILR 2004 KAR 4838
(K.P. KRISHNA KUMAR V/S SMT. RADHALAKSHMI AMMA)
2. ILR 2006 KAR 169
(GAFARSAB @ SATIGAFAR SAB V/S AMMER AHAMED)
3. (2000)9 SUPREME COURT CASES 241
STATE OF RAJASTHAN AND OTHERS V/S KHEMRAJ AND
OTHERS
4. AIR 2006 RAJ 187
SHANKAR LAL AND OTHERS V/S THE CIVIL JUDGE (JR. DIV.)
AND OTHERS
5. AIR 2004 SC 34082
DAYAVANTHI VS. K.S.SHAFI
Submissions of counsel for the respondents(plaintiffs
and defendant Nos.2 to 5)
14. On the other hand, learned counsel for the
defendants/respondents submitted that as per Section 91 of
the Indian Evidence Act, 1872 Ex.P.18 document is a
registered document of sale deed and the contents therein
are relevant and admissible unless it is challenged.
Defendant No.1 has not challenged Ex.P.18-sale deed.
Therefore, every content in the sale deed and the recitals
therein are admissible unless it is challenged and get it aside
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by the competent Civil Court. Further submitted that as per
Section 31 of the Specific Relief Act, 1963 cancellation of
registered instruments may be made by challenging the
same but that has not been done. When defendant no.1 is
much questioning Ex.P.18 registered sale deed, presumption
arises in regard to contents therein including all the recitals
and boundaries mentioned therein and unless it is cancelled,
the said registered document is presumed to be valid. But,
defendant no.1 has not challenged Ex.P.18 registered sale
deed and in the absence of it, defendant no.1 does not have
requisite locus standi to question Ex.P.18 sale deed. Further
argued with reference to Section 110 of the Evidence Act,
1872 that the burden is on defendant no.1 to prove his
ownership over possession of the suit schedule lands but that
is not discharged by defendant no.1. Therefore, both the
courts below are correct in their findings. Further submitted
that as per Ex.P.18 registered sale deed it is proved towards
the western portion of the suit schedule property, there is
open space belonging to Ningayya Basaparayya Bhanvi
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which proves that the plaintiff is in possession over the
western portion and defendants no.2 to 5 in O.S.no.80/1990
and plaintiffs in O.S.no.71/1994 are in possession of the
property. Further submitted that when defendant no.1 is
claiming that he is owner of the suit schedule property
towards the western portion of the property but there is no
title deeds produced, mere entries in the revenue records
does not prove ownership of defendant no.1 over the
property and this is rightly considered by both the courts
below. Therefore, justified the judgment and decree passed
by both the courts below. Hence, prays to dismiss the
appeal.
ANALYSIS:
15. Upon considering the entire evidence on record,
the plaintiffs is claiming declaration that they are owners of
the suit schedule property and it is decreed by the Trial Court
on the reason that in Ex.P.18 original sale deed dated
3.12.1984, towards the western side the boundaries stated
is, open space belonging to Ningayya Basaparayya Bhanvi.
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The plaintiffs and defendant no.1 have not produced any title
deeds to prove their ownership over the suit schedule
property. Both have relied only on revenue records. The
substantial question of law is framed to the effect that the
vendor viz. Desai did not have title so as to sell the property
in favour of father of defendants no.2 to 5 viz. Channayya
Bhanvi. The counsel for defendant no.1 submitted that the
vendor of Channayya Bhanvi did not have title. Therefore,
in the absence of title then Ex.P.18, registered sale deed,
cannot be believed. It is pertinent to note here that
defendant no.1 has not challenged Exs.P.18 and 19
documents. From the evidence of Exs.P.18 and P.19, the
western portion of the land is shown as open space belonging
to Ningayya Basaparayya Bhanvi. It is pertinent to note here
that the said Channayya Bhanvi has filed suit in
O.S.no.12/1987 against defendant no.1 and the father of
plaintiffs Ningayya Bhanvi for the relief of permanent
injunction in respect of very same property bearing TMC
no.1119 of Terdal village in which the Channayya has
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specifically pleaded he is the owner of the eastern half
portion of TMC No.1119 of Terdal and the remaining half
portion of the property is owned by father of plaintiffs. In
the said suit also defendant no.2 herein has contended that
he is the owner of the western portion but failed to produce
the evidence. The entire claim of defendant no.1 is based on
the property extract only. Unless registered instrument is
cancelled by competent court of law, the said instrument
including their contents and recitals are presumed to be
valid. Defendant no.1 is contending that recital mentioned in
Ex.P.18 sale deed is not correct. If defendant no.1 is being
aggrieved of any of recitals therein or boundaries mentioned
therein are incorrect then, it is open for defendant no.1 to
challenge the same but he did not do so. If the boundaries
are mentioned wrongly in the sale deed and it affects
defendant no.1 then, he can challenge that portion of recital
or the whole instrument itself but cannot question the
competency of vendor of Channayya Bhanvi unless the said
instrument is challenged. The plaintiff is contending that
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towards the western side, there is an open space belonging
to father of plaintiff and by relying on this, the plaintiff is
contending that he is the owner of the property. Now,
defendant no.1 is trying to depict that plaintiff is in eastern
portion of the property in TMC no.1119 of Terdal village and
if plaintiff is going to declare as eastern portion then,
defendants no.2 to 5 are to be evicted. It is an attempt
made by defendant no.1 that if the plaintiff goes to the
eastern portion of the property then, defendant no.1 will get
western portion and defendants no.2 to 5 are to be ousted
from the possession. Therefore, defendant no.1 has
contended that only on the basis of boundaries mentioned in
Ex.P.18 that the western side portion of the property is
wrongly shown by questioning the vendors title. It is not
disputed that the vendor in Ex.P.18 registered sale deed is
one Desai who has sold the property to Channayya as per
Ex.P.18 registered sale deed. As per Ex.P.19 a strip of land
measuring 5 ft. x 118 ft. was sold by father of plaintiff to
Channayya Bhanvi. Defendant no.1 has not disputed that
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originally the property belongs to Desai family and the said
Desai family had given lands to the deity of Prabhuling
temple and now the plaintiff and defendants no.2 to 5 are in
possession of the property. Defendant no.1 has not
questioned the instruments Ex.P.18 and Ex.P.19. Unless it is
questioned, the recitals and boundaries mentioned therein
are not said to be incorrect. This is not the suit filed by
defendant no.1 seeking declaration but opposing the suit of
the plaintiff in O.S.no.80/90 and opposing the suit of
defendants no.2 to 5, who are the plaintiffs in O.S.no.17/94.
When upon noticing the evidence on record as discussed
above, the plaintiff proves on all probability on the western
side of property TMC no.1119 of Terdal village, the plaintiff is
in possession of the property. When both the plaintiffs and
defendant no.2 are claiming title through possession without
producing document of title, but the plaintiff proves by the
boundaries mentioned in Ex.P.18 that western side portion of
the property belongs to father of plaintiff. This probabalises
the fact that plaintiffs are owners in possession of the
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property. Towards more of this, defendant no.1 has not
produced evidence except producing property extract.
16. Admittedly, neither the plaintiffs nor defendants
have produced the title documents to prove their ownership
over the suit property; their case is mainly based on
possession, thereby claiming ownership by virtue of
possession by relying on the entries made in the
revenue/property extract records. It is well known law that
entries in the revenue records do not prove the title of the
property, but in the present case, the plaintiff is mainly
relying on Ex.P-18 and Ex.P-19-sale deeds, based on which
he is going to prove his possession, thereby claiming
ownership over the property. Defendant No.1 has not
produced any documents to prove the title except property
entries in the property extracts. Therefore, under these
circumstances, who is more probable to prove their
possession, thereby claiming their ownership is to be
assessed. First and the main contention of the plaintiff is
that he is the owner and is in possession of the Western half
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portion of the property, measuring 49 ft. East-West and 114
ft. South-North.
17. It is the case of defendant No.1 that the plaintiffs
are in possession of the Eastern portion of the property
measuring 49 ft. East-West and 114 ft. South-North out of
the suit property. Both the plaintiff and defendant No.1 are
claiming their title and possession through their ancestors
and defendant No.1 had denied defendant Nos.2 to 5 and
Channyya Parayya Bhanvi, that they have rights over the
suit property, either Eastern or Western portion. Further, it
is the case of defendant No.1, that the said Channayya
Parayya Bhanvi and defendant Nos.2 to 5 have colluded with
the plaintiffs and are making a false claim over the portion of
the property belonging to defendant No.1.
18. The plaintiffs have not produced any title
documents to prove their ownership, the plaintiffs are
claiming ownership over the property in possession, which is
from their ancestors. Likewise, defendant No.1, is also
claiming ownership by virtue of possession from their
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ancestors. Though Ex.P-18 and Ex.P-19 are not documents
of title for the plaintiffs, the recitals and boundaries shown in
the Ex.P-18-sale deed towards Western side, the property
belonging to Ningayya Basaparayya Bhanvi is shown, Ex.P-
18-sale deed dated 14.06.1984 in the year 1984, the vendor
is Allappa Payappa Desai and vendee is Channayya Parayya
Bhanvi. It is stated that the Desai family was the earlier
owner of the suit property and other surrounding lands, on
which the Prabulinga Devara Temple is situated. Though
there is no documents to show that Allappa Payappa Desai
was erstwhile owner of the suit property but this fact is not
denied by defendant No.1. Though their title documents
show that the Desai family was owner of the lands including
the suit property, the plaintiffs and defendant Nos.2 to 5
have stated that the earlier Desai family was the owner of
the lands, which is also not specifically denied by defendant
No.1, where, the properties are inherited from generations,
there may not be the production of documents of title. In
this regard, what arrangement is made over a long period of
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time can be considered. The vendor-Allappa Payappa Desai
has sold Eastern half portion of land to Channayya Parayya
Bhanvi measuring 50 ft. East-West and 119 ft. South-North
and boundary in the sale deed towards Western side is
shown as the land belonging to father of plaintiffs namely
Ningayya Basparayya Bhanvi. Defendant No.1 is claiming
that this is the wrongly shown boundary that is towards the
western side of the land that does not belong to Ningayya
Basparayya Bhanvi, but claiming that he is in possession of
Western half portion of the property. Defendant No.1 is
disputing the boundaries mentioned in Ex.P-18-sale deed by
claiming that towards the Western portion of the property,
defendant No.1 is in possession of the property. The
substantial question of law framed is to the effect that the
vendor Allappa Payappa Desai did not have title therefore,
there is no valid transfer of property by virtue of Ex.P-18-
sale deed to Chennayya Parayya Bhanvi and also, in the
absence of title of the plaintiffs, the plaintiffs are not able to
prove their title, hence, not entitled to relief of declaration.
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19. As discussed above both plaintiffs and defendant
Nos.2 to 5 have not produced any documentary of title, and
the plaintiffs are claiming their ownership by virtue of
possession by relying on the entries made in the property
extracts of Town Municipal Counsel, Terdal. Likewise,
defendant No.1 is also claiming ownership on the basis of
possession, relying on the entries in the property extracts.
Under these circumstances, who is in possession of the
property is to be considered on the basis of possession only,
and who is more probable to prove their case is to be
analyzed. In Ex.P-18-sale deed, towards Western side it is
shown that the property belongs to plaintiff's father namely
Ningayya Basparayya Bhanvi. Whereas, on the other hand,
defendant No.1 except entries in the property extracts does
not have any documents. Ex.P-28-notice issued by the Town
Municipal Counsel, Terdal, that the plaintiff's father had
applied for permission to construct a structure on the
property dated 08.12.1977, which prove the plaintiff's father
was in possession over the property. The plaintiffs are
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claiming their ownership through inheritance by their father,
Exs.P-30 & 31 are the tax paid receipts issued by the Town
Municipal Counsel, Terdal, collecting of property taxes from
the year 1990-91-92, Ex.P-32 is the tax paid receipts that
the plaintiffs father had paid property taxes and Ex.P-33 is
the assessment list of buildings and lands liable to taxation
for the years 1998-99 issued by the Town Panchayath
Counsel, Terdal, in which the name of owner is shown as
ingayya Basparayya Bhanvi. All these documents
probabilises proof of the facts in issue that the plaintiffs are
in possession over the suit property.
20. Likewise, defendant No.1 has produced the
property extracts as per Exs.D-8, 9, 10, 11 and 12, which
prove that Ningayya Basparayya Bhanvi is also joint owner
of the property of TMC No.1119, measuring 114 ft. X 98 ft.
Therefore, the plaintiff's father is also the owner of half
portion of the property along with Ishwarayya Parayya
Bhanvi and this is not disputed by defendant No.1. The only
dispute in the crux of the matter is which portion of the
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property is in possession of which party. The total extent of
property is 114 ft. X 98 ft. as per Exs.D-8 to D-12, it is
proved that the plaintiff's father was also a joint owner along
with Ishwarayya Parayya Bhanvi and whether, the plaintiff is
in Western portion or father of defendant No.1 is in
possession of the Western portion is the crux of the dispute
involved in the case. There is no dispute by defendant No.1
that the plaintiff's father is entitled to half portion of the
property. Whether, the plaintiff's father was in possession of
Western side or Eastern side is the question involved in the
case.
21. It is contended by defendant No.1 that he is in
possession of Western portion and not the plaintiff's father
but if Exs.D-8 to D-12-property extracts are considered with
reference to Ex.P-18-sale deed, the Western portion is
shown as the property belonging to Ningayya Basparayya
Bhanvi. These Exs.D-8 to 12 start from the year 1965-66
and onwards, much prior to the Ex.P-18-sale deed, it is
proved that the plaintiff's father Ningayya Basparayya
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Bhanvi, was in possession over the property in respect of
half portion of the property measuring 119 ft. X 98 ft. and
this is not disputed by defendant No.1. Therefore, it is
proved that the plaintiff's father was in possession of half
portion of the property measuring 119 ft. X 98 ft. To decide
which portion the father of plaintiff is in possession is the
question to be considered in this case. Defendant No.1 is
contending that, as per Exs.D-8 to D-12 are the property
extracts of Ishwarayya Parayya Bhavi, who is the father of
defendant No.1, is in possession over the property along
with Ningayya Basparayya Bhanvi to the extent of 119 ft. X
98 ft. Therefore, as per Exs.D-8 to D-12, it is shown in the
property extracts that the father of defendant No.1 and the
father of plaintiff's are joint in possession over the property
in TMC No.1119, measuring 119 ft. X 98 ft. Now, the
dispute is amongst them that who is in Western portion of
the property in question is to be considered. Considering the
property extracts as per Exs.D-8 to D-12 at an intermittent
time, the name of Ishwarayya Parayya Bhanvi, was struck
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down and the name of Chennayya Parayya Bhanvi, was
inserted in place of Ishwarayya Parayya Bhanvi, from the
year 1970-71. Subsequently, from the year 1986-87, as per
Ex.D-12, the name of Ishwarayya Parayya Bhanvi, was re-
entered in place of Chennayya Parayya Bhanvi. Though,
Ishwarayya Parayya Bhanvi, has reclaimed of making entries
in the property extracts but still the question remains as to
which portion of the property Ishwarayya Parayya Bhanvi
was in possession of the property. Defendant No.1 is silent
in proving this aspect by producing the evidence, but as
discussed above, upon considering Exs.D-8 to D-12, when it
is proved that the plaintiffs father was also joint owner to the
half extent of property and upon appreciating Ex.P-18-sale
deed document towards the Western side portion, it is shown
the boundary as the land belonging to Ningayya Basparayya
Bhanvi. Therefore, these documents along with documents
produced by the plaintiffs are discussed above the tax paid
receipts, property extracts and house construction permit
proved that the plaintiff is in possession of half portion of
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property along with considering Exs.P-18, but the father of
defendant No.1 may be in possession, but defendant No.1
has not claimed any of the Eastern side of the property but is
claiming that defendant No.1, is in possession over the
Western side of the property, but it is not proved.
Therefore, upon considering all the evidence on record, it is
proved that the plaintiffs are in Western side of the property
out of the extent of 119 ft. X 98 ft. and in this regard, both
the Trial Court and First Appellate Court are correct in
declaring that the plaintiff is the owner of the suit property,
which is in Western portion of the property out of the extent
of 119 ft. X 98 ft. Therefore, in this regard, the judgment
and decree passed by both the Trial Court and First Appellate
Court are liable to be confirmed.
22. Though the defendant No. 1 is claiming through
Exs.D-8 to D-12 that his father was in possession of half
extent of property, it may be open to defendant No.1 to
make claim as per law but there is no counter claim by
defendant No.1 in this regard. But defendant No.1 is
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claiming only on the Western side of the property, but for
the reasons above discussed the plaintiffs are proved to be in
possession over the Western side of the property, therefore,
both the Trial Court and First Appellate Court are correct in
declaring that the plaintiffs are the owners of the suit
property, which needs no interference by this Court. As
discussed above, the suit of the plaintiffs is mainly based on
the possession and seeking declaration on the basis of the
possession and in the absence of title of both the plaintiff
and defendant No.1, the substantial question of law is
answered to the effect that both Trial Court and First
Appellate Court are justified in decreeing the suit of the
plaintiffs for declaration based on the possession of the
plaintiffs over the Western side portion of the property.
Therefore, though, the plaintiffs have not produced any title,
but the plaintiffs have successfully made out the case for
grant of decree of declaration though in absence of title on
the base of possession. Accordingly, substantial question of
law is answered in the Affirmative, under the peculiar facts
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and circumstances involved in the case. Therefore, the
appeal is liable to be dismissed.
23. I have studied the decisions relied on by counsel
for the appellant-defendant No.1, but the factual matrix in
the said decisions are different from the instant case; hence,
without elaborating the facts therein and ratio laid down, it is
observed here that the said decisions are not applicable in
the present case.
24. Hence, I proceed to pass the following.
ORDER
i. The Regular Second Appeals are
dismissed.
ii. The judgment and decree dated
15.03.2000 passed in O.S.No.80/1990
and O.S.No.71/1994 by the Learned Civil
Judge, (Junior Division), Banahatti and
the judgment and decree dated
23.08.2005 passed in R.A.No.23/2000
and R.A.No.24/2000 by the District and
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Sessions Judge & presiding Officer, Fast
Track Court, Jamakhandi are hereby
confirmed.
iii. No order as to costs.
iv. Draw decree accordingly.
Sd/-
JUDGE
PB:Para Nos.1 to 9.5
SRA:Para Nos.16 to end.
