Karnataka High Court
Moulappa S/O Dodda Buggappa vs Dodda Tayappa on 12 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200223 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200223 OF 2022
(DEC/INJ)
BETWEEN:
MOULAPPA S/O DODDA BUGGAPPA,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. VILLAGE ARIKERA (K),
TQ. AND DIST. YADGIRI-585202.
...APPELLANT
(BY SRI B. C. JAKA, ADVOCATE)
AND:
Digitally signed by DODDA TAYAPPA S/O NAGAPPA HADPAD,
SHIVALEELA AGED ABOUT 65 YEARS, OCC: AGRICULTURE,
DATTATRAYA
UDAGI R/O. VILLAGE ARIKERA (K),
Location: HIGH TQ. AND DIST. YADGIRI-585202.
COURT OF
KARNATAKA
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
27.09.2021 IN RA.NO.20/2019 PASSED BY THE SENIOR CIVIL
JUDGE AND CJM AT YADGIRI AND THE JUDGMENT AND
DECREE DATED 28.01.2019, IN OS.NO.135/2017 PASSED BY
THE CIVIL JUDGE AND JMFC AT YADGIRI, ALLOW THIS APPEAL
AND DECREE THE SUIT OF THE PLAINTIFF AS PRAYED FOR.
AND GRANT SUCH OTHER RELIEF/S AS THIS HON'BLE COURT
DEEMS FIT TO GRANT TO THE APPELLANT IN THE
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RSA No. 200223 of 2022
CIRCUMSTANCES OF THE CASE INCLUDING THE COSTS OF
THIS APPEAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
This appeal is filed by the plaintiff aggrieved by the
judgment and decree dated 28.01.2019 passed in
O.S.No.135/2017, on the file of Civil Judge and JMFC,
Yadagiri (hereinafter referred to 'the Trial Court') by which
the Trial Court dismissed the suit of the plaintiff for
declaration and injunction, which is confirmed in the
judgment and order dated 27.09.2021 passed in
R.A.No.20/2019 on the file of Senior Civil Judge and CJM,
Yadagiri (hereinafter referred to 'the First Appellate Court')
which while dismissing the appeal confirmed the judgment
and decree passed by the Trial Court.
2. The case of the plaintiff is that, he is the absolute
owner in possession of house property bearing Grama
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Panchayat No.3-60 of Arikera (K), measuring 40ftX60ft
bounded:
East by: House of Malappa Boin.
West by: Land of Shivanna.
North by: House of Sharanappa.
South by: Common wall of the plaintiff
and the defendant.
It is contended that the schedule property is his ancestoral
property, which fell to the share of his father Dodda
Buggappa, in a family partition between him and his
brothers. After demise of his father, plaintiff became the
owner in possession of the schedule property. That the
defendant, who was a stranger had encroached upon 1ft of
suit schedule property on the southern side and had built
up a wall of his house and when plaintiff requested the
defendant to remove the same, same met with the refusal.
As such, suit for declaration and possession was filed.
3. Though, defendant appeared through counsel, did
not file written statement, plaintiff examined himself as
PW.1 and marked three documents namely demand
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register extract- Ex.P.1, objections given to Grama
Panchayat-Ex.P.2 and tax paid receipt-Ex.P3.
4. Upon consideration of pleading and evidence the
Trial Court framed the following point for its consideration:
1. Whether the plaintiff proves that he is the absolute
owner and possessor of the suit schedule property?
2. Whether the plaintiff proves that the alleged
encroachment by the defendant?
3. Whether the plaintiffs are entitled to the reliefs as
sought for?
4. What order or decree?
5. On appreciation of the evidence, the Trial Court
answered point Nos.1 to 3 in the negative and
consequently dismissed the suit of the plaintiff.
Aggrieved by the same, plaintiff preferred the regular
appeal before the First Appellate Court.
6. On consideration of the grounds urged therein, the
First Appellate Court framed the following point for its
consideration:
1. Whether the appellant proves that the negative
findings recorded by the Trial Court on points Nos.1 to 3
is erroneous?
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2. Whether interference of this Court is required?
3. Whether the appellant has made out sufficient
grounds to lead additional evidence?
4. What order?
7. Upon re-appreciation of the evidence, the First
Appellate Court dismissed the appeal by confirming the
judgment and decree passed by the Trial Court.
8. An application was filed under Order 41 Rule 27 of
the CPC before the First Appellate Court by the plaintiff
seeking to lead additional evidence, which application was
also rejected by the First Appellate Court. Aggrieved by
the same, appellant is before this Court.
9. Sri. B.C Jaka, learned counsel appearing for the
plaintiff reiterating the grounds urged in the memorandum
of the appeal submitted that both the Trial Court and the
First Appellate Court failed to appreciate the evidence
adduced by the plaintiff with regard to his ownership and
possession of the property. The Trial Court and the First
Appellate Court failed to appreciate the fact that defendant
had constructed a wall on the southern side of the
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property belonging to the plaintiff encroaching the area to
an extent of 1ft thereupon. That the Trial Court and the
First Appellate Court failed to appreciate that the
defendant had not obtained any permission from the
Grama Panchayat for the construction of the wall. As
such, had committed illegality. The evidence produced in
the nature of the Ex.P1 to Ex.P3 was in support of claim of
the plaintiff of his ownership and possession. He further
submits that the plaintiff intended to produce a Mutation
Register Extract, a Sketch and tax paid receipt by filing an
application under Order 41 Rule 27, which was dismissed
without any justification. He submitted that as such the
judgment and decree passed by the Trial Court and
confirmed by the First Appellate Court suffers from
perversity, giving rise to substantial question of law.
10. Heard and perused the records.
11. Though, the plaintiff has claimed to be the owner
in possession of the suit property, he has not produced
any document of title, except production of a demand
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register extract, objection given by him to the Grand
Panchayat and the tax paid receipt marked as Exs.P1, P2
and P3 respectively. The Trial Court and the First
Appellate Court have found that the demand register
extract or the tax paid receipt would not lend any
credence to the claim of the plaintiff to be the absolute
owner of the subject land, as no title can be conferred or
determined based on demand register extract or tax paid
receipt. Further, the Trial Court and the First Appellate
Court have taken note of the fact that the plaintiff though
claimed to be in possession of the area measuring 40ft X
60ft, no document has been produced by him to show the
actual measurement or the dimension of the said property.
Thus, in the absence of this material evidence, the Trial
Court and the First Appellate Court have arrived at the
conclusion that the plaintiff has failed to establish his title,
extent and location of the property. As such, have
declined to grant the relief sought by the plaintiff and
consequently have dismissed the suit and the appeal.
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12. In the Regular Appeal, the plaintiff has sought to
produce additional documents in the nature of mutation
and rough sketch. Perusal of the documents sought to be
produced along the application would reveal that the
plaintiff intended to produce certified copy of Mutation
Register. Even the said copy of the mutation register, do
not give any information/details as to the extent and
dimension of the property. Second document is a rough
sketch which is sought to be produced by the plaintiff to
show the measurement of the land. The said document
does not contain date or the source from which the said
measurements have been taken. Seal of one Mazhar
Ahmed is shown, whose license number is
YDG.BC/6/2019-20, as seen in the seal affixed to the said
document. The third document sought to be produce is
only a tax-paid receipt. The suit is of the year 2017, there
is no reason assigned in the affidavit accompanying the
application filed under Order 41 Rule 27 of the CPC before
the First Appellate Court, as to why the plaintiff did not
produce the said document before the Trial Court.
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13. In any event, plaintiff has already produced a
demand register extract and tax paid receipts before the
Trial Court. The document now sought to be produced,
except the map would only be extension of documents
what are already produced. The reasons for declining by
the Trial Court and the First Appellate Court to grant the
relief is lack of material evidence produced with the
plaintiff to prove his title and measurement of the land.
Documents that are to be produced could not advance any
benefit to the plaintiff. The First Appellate Court in any
event has rejected the said application. This Court do not
see any reason to interfere either with the judgment and
decree passed with the Trial Court. Inasmuch as the
plaintiff who sought for relief of declaration has not
produced any title document nor has he produced any
document to show the measurement and location of
property.
14. It is settled law that in a suit for declaration,
title and possession, the plaintiff could succeed only on the
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strength of his own title and that could be done only by
adducing sufficient evidence to discharge the onus
irrespective of the question whether the defendant proved
his case or not. Even if the title set-up by the defendant is
found against him, in the absence of establishment of
plaintiff's own title the plaintiff must be non suited Union
of India and others versus Vasavi Cooperative
Housing Society Limited and others reported in
(2014) 2 SCC 2019.
15. In that view of the matter, no substantial
question of law would arise for consideration. Accordingly,
appeal is dismissed confirming the judgment and decree
passed by the Trial Court and judgment and order passed
by the First Appellate Court.
Sd/-
(M.G.S.KAMAL)
JUDGE
RL
