[Cites 13, Cited by 0]
Karnataka High Court
Kempaiah (Dead) By Legal Heirs ... vs Dasappa Dead By His Lrs Hattinarasamma on 10 April, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 1703 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1703 OF 2023 (DEC/INJ)
BETWEEN:
KEMPAIAH (DEAD)
BY LEGAL HEIRS
1. CHIKKADRAIAH
S/O LATE KEMPAIAH,
AGED ABOUT 68 YEARS,
2. MUNIYAPPA
S/O LATE KEMPAIAH,
DEAD BY HIS LRS
2(a) MAHALAKSHMAMMA @ MALLAMMA
W/O LATE MUNIYAPPA,
AGED ABOUT 50 YEARS,
(NEAR NATIONAL SCHOOL)
KASABA HOBLI,
Digitally signed ANATHARASANAHALLI,
by ANUSHA V ARAKERE POST,
Location: High TUMAKURU TALUK AND
Court of DISTRICT - 572 101.
Karnataka
2(b) SUMITRA @ SHOBHA
W/O LATE SANJEEVA RAJ,
D/O LATE MUNIYAPPA,
AGED ABOUT 30 YEARS,
R/A YELLAPURA,
(NEAR NATIONAL SCHOOL)
KASABA HOBLI,
ANATHARASANAHALLI,
ARAKERE POST, TUMAKURU TALUK
TUMAKURU DISTRICT - 572 101.
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2(c) KAVITHA
W/O SHIVARAJ,
D/O LATE MUNIYAPPA,
AGED ABOUT 27 YEARS,
R/AT GONDHIHALLI
AT POST : PURAVARA HALLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT - 572 101.
3. HANUMANTHARAJU B K.,
S/O LATE KEMPAIAH,
AGED ABOUT 42 YEARS,
ALL ARE R/O BRAHMASANDRA,
BRAHMASANDRA POST,
KORA HOBLI,
TUMAKURU TALUK - 572 101.
...APPELLANTS
[BY SRI RAGHAVENDRA DESAI RAMRAO, ADVOCATE (PH)]
AND:
1. DASAPPA
DEAD BY HIS LRS
1(a) HATTINARASAMMA
W/O LATE DASAPPA,
DEAD BY LRs VOD 18.12.2025
1(b) DEVARAJU
S/O LATE NARASHIYAPPA,
AGED ABOUT 34 YEARS,
1(c) HANUMANTHA
S/O LATE NARASEEYAPPA,
AGED ABOUT 31YEARS,
ALL ARE R/AT BRAHMASANDRA,
KORA HOBLI, TUMAKURU TALUK - 572 101.
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2. NANJAIAH,
S/O DASAPPA,
AGED ABOUT 60 YEARS,
3. RANGAMMA
W/O LATE HANUMANARASAIAH,
SINCE DEAD BY HER LRS.,
3(a) PUTTANANJAMMA
D/O LATE HANUMANARASAIAH,
AGED ABOUT 45 YEARS,
R/O BELADHARA VILLAGE,
KORA HOBLI,
TUMAKURU TALUK,
SINCE DEAD BY LRS.,
3(a)1 HANUMANTHARAYAPPA,
S/O LATE BATTCHIKKANNA,
AGED ABOUT 60 YEARS,
3(a)2 MANJAMMA
D/O HANUMANTHARAYAPPA AND
LATE PUTTANANJAMMA,
AGED ABOUT 28 YEARS,
3(a)3 ANNAPOORNAMMA
D/O HANUMANTHARAYAPPA AND
LATE PUTTANANJAMMA,
W/O NARASIMHAMURTHY,
AGED ABOUT 26 YEARS,
3(a)4 SHIVANNA
S/O HANUMANTHARAYAPPA AND
LATE PUTTANANJAMMA,
AGED ABOUT 24 YEARS,
R3(a-1) TO R3 (a-4) ARE ALL
R/AT A K COLONY,BELADHARA,
KORA HOBLI,
TUMAKURU TALUK - 572 101.
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LRs OF R3(a) PUTTANANJAMMA,
3(b) CHIKKANARASAMMA
D/O LATE HANUMANARASAIAH,
AGED ABOUT 43 YEARS,
R/O SWANDENAHALLI,
KASABA HOBLI,
TUMAKURU TALUK - 572 101.
3(c) JAYAMMA
DEAD BY HER LRS
3(c)1 NETHRAVATHI @ NETHRAMMA
D/O LATE JAYAMMA,
W/O GANGADHARA,
AGED ABOUT 26 YEARS,
R/AT SOREKUNTE VILLAGE,
BELLAVI HOBLI,
TUMAKURU TALUK - 572 101.
PROPOSED LR OF 3(a) JAYAMMA
3(d) NARASIMHAIAH
S/O LATE HANUMANARASAIAH,
AGED ABOUT 39 YEARS,
R/O BRAHMASANDRA VILLAGE,
KORA HOBLI,
TUMAKURU TALUK - 572 101.
3(e) GANGARAJU
S/O LATE HANUMANARASAIAH,
AGED ABOUT 37 YEARS,
R/O BRAHMASANDRA VILLAGE,
KORA HOBLI,
TUMAKURU TALUK - 572 101.
4. CHIKKADODDAIAH
S/O LATE NARASIMHAIAH
DEAD ON 23.06.2023,
DELETED VOD 18.12.2025,
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R4's SEVEN LRs BROUGHT ON RECORD
V/O DATED 18.12.2025, AS UNDER:
i. SMT.KADURAMMA - WIFE,
ii. NARASIMHAMURTHY - SON,
iii. LAKSHMIPATHI - SON,
iv. MALLESHA - SON,
v. SMT.SHIVANANJAMMA - DAUGHTER,
vi. VEERESH - SON,
vii. MANJUNATH - SON.
ALL THE ABOVE REFERRED SEVEN PERSONS ARE
MAJOR BY AGE AND THEY ARE THE LRS OF THE
SAID RESPONDENT NO.4, STAYING AT THE
ADDRESS: BRAHMASANDRA VILLAGE, KORA
HOBLI, TUMAKURU TALUK - 572 101.
5. KEMPAIAH
DEAD BY LRs
5(a) KEMPAMMA,
W/O LATE KEMPAIAH,
AGED ABOUT 68 YEARS,
5(b) RAJU,
S/O LATE KEMPAIAH,
AGED ABOUT 35 YEARS,
5(a) AND 5(b) ARE R/A
BRAHMASANDRA VILLAGE,
KORA HOBLI,
TUMAKURU TALUK - 572 101.
...RESPONDENTS
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(BY SRI ANKIT S. REDDY, ADVOCATE FOR R2, R3 (b, d & e)
R5 (a & b), R4 (1 TO 7) (PH);
NOTICE TO R3(a-1)-R3(a-4) & R3(c)(1) - SERVED &
UNREPRESENTED;
V/O/D 07.02.2025 NOTICE TO R1 (b & c) IS HELD
SUFFICIENT;
V/O/D 18.12.2025 R1(b & c) & R2 ARE TREATED AS LRs
OF R1(a)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 27.06.2023 PASSED IN
RA NO.141/2020 ON THE FILE OF II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
10.01.2018 PASSED IN OS NO.14/2003 ON THE FILE OF I
ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.02.2026, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
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RSA No. 1703 of 2023
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CAV JUDGMENT
Challenging judgment and decree dated 27.06.2023
passed by II Additional District and Sessions Judge, Tumakuru,
in RA no.141/2020 confirming judgment and decree dated
10.01.2018 passed by I Additional Civil Judge and JMFC.,
Tumakuru, in OS no.14/2023, this appeal is filed.
2. Though matter was listed for admission, since records
were received and both learned counsel consented for final
disposal of appeal on proposed substantial question of law,
matter was heard affording opportunity to both counsel.
3. Sri Raghavendra Desai Ramrao, learned Counsel for
appellants submitted, appeal was by plaintiff in OS no.14/2003
filed seeking for declaration of plaintiff as absolute owner and
for permanent injunction restraining defendants from
interfering with his possession and enjoyment of dry land
bearing Sy.no.21/1B measuring 01 Acre 27 guntas of
Brahmasandra, Kora Hobli, Tumkur Taluk ('Suit Property', for
short).
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4. In plaint, it was stated, plaintiff was absolute owner in
lawful possession of suit property having purchased it under
registered Sale Deed dated 09.11.1960 from one
Nanjundaradhya son of Channaveeradevaru of Brahmasandra
village. And since then he was in continuous peaceful
possession and enjoyment of suit property, his name was
entered in revenue records and he was paying land revenue
regularly. Even, mortgage of property to local Co-operative
Society by him evidenced his possession.
5. That, suit property originally belonged to his mother,
Chikkadaramma, who got it in family partition and thereafter
initially on 24.09.1932 mortgaged it in favour of
Nanjundaradhya and thereafter sold it to him under registered
Sale Deed dated 19.05.1948. But, due to bonafide clerical
mistake in sale deeds of 1948 and 1960, there was error in
mentioning survey number and extent, Sy.no.40/1 was
mentioned instead of Sy.no.21/1B, but, boundaries of property
were correctly described. RTC extracts correctly reflected
Sy.no.21/1B, as measuring 1 acre 27 guntas and identity of
property sold was never in doubt despite above errors.
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6. It was further stated, plaintiff had raised hurali crop in
suit property and was in settled possession. But, about one
month prior to filing of suit, defendants taking advantage of
above errors and old age of plaintiff attempted to interfere with
his peaceful possession and harvest hurali crop without any
right, title or interest over suit property, giving rise to cause of
action for suit.
7. On entering appearance, defendants no.3 and 4 filed
written statement denying plaint averments in toto. They
denied plaintiff's claim about suit property belonging to
Chikkadaramma, who mortgaged and later sold it to
Nanjundaradhya and his claim of purchasing it from
Nanjundaradhya under registered Sale Deed on 09.11.1960.
Contention about sale deeds suffering from clerical mistakes
was specifically denied as false. Even plaintiff's claim of being in
continuous possession, entry of name in revenue records,
payment of land revenue, cultivating hurali crop and mortgage
of suit property to Co-operative Society were also denied.
8. They asserted that suit property was ancestral joint
family property of defendants no.3 and 4. That it belonged to
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their ancestor - Chikkanarasimhaiah (also called
Narasimhaiah), who was in physical possession and enjoyment
of same. That revenue records stood in his name and therefore
it was Undivided Hindu Joint Family property of defendants.
They denied plaintiff having any right, title or interest over suit
property. They also contended suit was not maintainable and
Court fee paid was insufficient and prayed for its dismissal.
9. Based on pleadings, trial Court framed following:
ISSUES
1. Whether the plaintiff proves his title over the suit
schedule property?
2. Whether the plaintiff proves that he is in
possession over the suit schedule property as on
the date of suit?
3. Whether the plaintiff proves the interference by
the defendant over the peaceful possession and
enjoyment of the suit schedule property by the
plaintiff?
4. Whether the plaintiff is entitled for the reliefs as
sought for?
5. What Order or Decree?
10. In trial, plaintiff examined himself and two others as
PWs.1 to 3 and got marked Exhibits-P1 to P35. On other hand,
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defendants examined five witness as DWs.1 to 5 and got
marked Exhibits-D1 to D14.
11. On consideration, trial Court answered issues no.1 to
4 in negative and answering issue no.5 dismissed suit with
costs. Aggrieved, plaintiffs filed RA no.141/2020 on various
grounds, based on which, first appellate Court framed
following:
POINTS:
1) Whether judgment and decree passed in OS
no.14/2003 dated 10.01.2018 on the file of 1st
Additional Civil Judge and JMFC, Tumakuru calls
for interference by this Court?
2) What order?
12. On consideration, point no.1 was answered in
negative and point no.2 by dismissing appeal. Aggrieved by
concurrent findings, plaintiff was in appeal.
13. It was submitted, both Courts concurrently erred in
ignoring mandate of Section 90 of Indian Evidence Act, 1872
('Evidence Act', for short) insofar as Ex.P2 - Registered
Mortgage Deed dated 24.09.1932 and Ex.P3 - Registered Sale
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Deed dated 19.05.1948, which were more than thirty years old
and produced from proper custody. They ought to have drawn
presumption about due execution and genuineness of Exs.P2 &
P3. Failure had resulted in miscarriage of justice. Especially
when said contention was specifically urged before first
appellate Court supported by binding precedents. Despite
same, same was not adjudicated.
14. Further, reliance on incorrect Survey number was
wholly misplaced as boundary description of suit property
remained consistent in Exs.P2, P3 and P4. It was submitted, in
case of conflict between extent and boundaries, boundaries
would prevail, relying upon decisions in Sheodhyan Singh
and Ors. v. Sanichara Kuer and Ors., reported in AIR 1963
SC 1879 and in Narasimha Shastry v. Mangesha Devaru,
reported in ILR 1988 KAR 554. And that both Courts failed to
apply said ratio.
15. Apart from above, Sy.no.40/1 was geographically
distinct and situated away from Sy.no.21/1B and that their
description, extent and boundaries were entirely different.
Thus, oral evidence of PW-2 consistent with documentary
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evidence established mis-description was clerical error and
identity of property stood proved by referring to boundaries.
16. It was further contended first appellate Court being
final Court on facts was duty bound to re-appreciate evidence
independently. It had instead mechanically affirmed findings of
trial Court. Therefore, impugned judgments suffered from
perversity giving rise to substantial question of law. On said
ground, sought for answering appeal on proposed substantial
question of law and allow same by decreeing suit. Further fact
that even defendant failed to prove his possession, would
establish that first appellate Court failed to re-appreciate oral
and documentary evidence in proper perspective. On said
ground, prayed for allowing appeal.
17. Substantial questions of law proposed in
memorandum of appeal herein are:
"1. Whether first appellate Court erred in not re-
appreciating evidence on record?
2. Whether both Courts erred in ignoring Exs.P2, P3
and P4 - title deeds attracted presumption under
Section 90 of Evidence Act?
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3. Whether both Courts erred in not applying law
declared in AIR 1963 SC 1879 and in ILR 1988
KAR 554?"
18. On other hand, Sri Ankit S. Reddy, learned counsel for
respondents no.2, 3 (B, D and E), 5 (A and B) and 4 (1 to
7) - defendants opposed appeal. It was submitted, in a suit for
declaration of title based on title deeds, vendor would be
necessary party, but omitted herein which was fatal. Further,
there was categorical admission about mistake in title deed
about mis-description of demised property i.e. Sy.no.40/1
instead of 21/1B and instead of 1 Acres 27 guntas mentioning
00-02 Acres. It was submitted, subsequent revenue entries
cannot be relied upon as documents of title/ownership. Moreso,
when as per plaintiff in 1932 total extent of Sy.no.21 was 1
Acres 97 guntas and if so, it would be highly unlikely that
plaintiff's mother would be granted share of 1 Acres 20 guntas
in partition. Moreover, when mistake was in deed of year 1960,
suit filed in year 2003 would be highly belated and untenable
without rectification deed, that too without examining Deed
writer. Both Courts had examined same and arrived at
concurrent conclusion. Further, in para-13 of its judgment, trial
Court noted admission about mistakes in Sale Deed, without
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prayer for rectification. Learned counsel relied on decision of
this Court in Arjun Togu Lamani and Ors. v. Nagappa
(Dead) by LRs and Ors. [2024:KHC-K:4308], in support of
his submission and submitted no substantial question of law
arose for consideration and prayed for dismissal of appeal.
19. Heard learned counsel, perused impugned judgment
and decree and records.
20. This second appeal filed under Section 100 of CPC by
unsuccessful plaintiff in suit for declaration of title and
permanent injunction. As noted above, suit claim is based on
assertions that suit property earlier belonged to plaintiff's
mother, which she got in a family partition and thereafter, it
was mortgaged in favour of Nanjundaradhya as per Ex.P2. It is
stated description of property in mortgage deed was correct. It
is further stated, plaintiff's mother later sold mortgaged
property to Nanjundaradhya - mortgagee under Ex.P3 -
registered sale deed, but though due to inadvertence survey
number and extent were erroneous, boundary description was
correct and referred to suit property. It is further claimed that
even in Ex.P4 - sale deed whereunder it was purchased by
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plaintiff, mistake in description as in Ex.P3 - sale deed
continued, but boundary description correctly referred to land
bearing Sy.no.21/1B i.e. suit property. Since defendant
attempted to interfere with plaintiff's peaceful possession, suit
was filed.
21. In trial, plaintiff's son deposed as attorney of plaintiff
as PW.1 and stated boundary description in Ex.P2 - Mortgage
deed dated 24.09.1932 was as follows:
East: 1/4th share of elder brother - Narasimha in same
survey number;
West: Half share of Sibaiah in same survey number.
North: By Kariyappa's land and
South: By Karikere road.
Likewise, boundary description of land sold in Ex.P3 -
sale deed dated 19.05.1948 was:
East: By land of Narasimha (defendant),
West: By land of Chikkamariyappa (purchased from Sibaiah)
North: By Land of Gangaiah (Son of Kariyappa) and
South: By Karikere road.
And boundaries mentioned in Ex.P4 - sale deed dated
01.11.1960 was:
East: By land of Narasimha (Defendant),
West: By land of Chikkamariyappa (purchased from Sibaiah)
North: By land of Gangaiah (Son of Kariyappa) and
South: By Karikere road.
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Further, as property was mortgaged immediately after
partition even Narasimha also signed Ex.P2 - Mortgage deed.
22. In cross-examination, partition between
Nanjundaradhya and Chikkadaramma is denied. However, an
admission that prior to suit, plaintiff did not make any efforts
for having mortgage deed/sale deed rectified is elicited, with
explanation that it was due to illiteracy of plaintiff. Suggestion
that in mortgage deed and both sale deeds, survey number of
property is mentioned as Sy.no.40/1, measuring 2 Acres 2
guntas is denied stating that Sy.no.21/1B was correctly
mentioned in mortgage deed, but there was error in extent.
23. While passing impugned judgment, trial Court referred
to rival contentions and observed documentary evidence of
plaintiff i.e. revenue records would not be of assistance on
question of title. It noted though suit was filed for declaration
on ground that there was mistake in survey number and extent
of land in title deeds, there was no prayer for rectification of
sale deeds. While referring to evidence of defendants, it noted
in Ex.D2 - RoR of Sy.no.21/1B name of Chikkanarasimhaiah
was mentioned in Column no.9 and extent mentioned was 1
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Acre and 27 guntas. And in Exs.D6 to D8 - RoRs, name of
Chikkanarasimhaiah was mentioned in Column no.9, while
name of Kempaiah was mentioned in Column no.12 of RoRs. It
noted nothing worthwhile was elicited in cross-examination of
DWs.1 to 5, whereas in cross-examination of PW-1, an
admission was elicited that no efforts were made for
rectification of mistakes in sale deeds, which would run counter
to case of plaintiff. It noted though plaintiff pleaded that suit
property was given to Chikkadaramma in family partition, there
was no material to establish same and drew adverse inference
for non-examination of witnesses or deed writer about mistake
in survey number and extent stated in sale deeds. On said
observations, it answered issues no.1 to 3 in negative against
plaintiff and dismissed suit.
24. And, first appellate Court dismissed appeal on
following reasoning:
"12. Point No.1:- I have carefully gone
through the entire judgment passed by the trial
Court and the entire records. The trial Court
has properly appreciated the case and evidence
of both the parties and has come to the proper
conclusion. Based on the pleadings of the
parties, the trial Court framed proper issues
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and has also answered the said issues
correctly. The findings recorded by the trial
Court are based on the facts and the evidence
on record. By no stretch of imagination, the
findings recorded by the trial Court can be
termed as illegal or perverse or capricious. The
trial Court has reached to such conclusion only
after appreciating the entire oral and
documentary evidence on record. The reasons
assigned by the trial Court to arrive such a
finding are based on the evidence on record
and they deserve acceptance.
13. Even on re-appreciation of the entire
evidence on record, I do not find any factual or
legal error committed by the trial Court. When
the judgment of the trial Court is legal and
valid in all aspects, there is no question of this
Court interfering with the judgment passed by
the trial Court. Hence, I answer Point No.1 in
the negative."
25. Thus, first appellate Court disposed of appeal by
recording general concurrence with findings of trial Court. It is
contended that same gave rise to substantial question of law
about failure of appellate Court to exercise jurisdiction vested in
it under Section 96 read with Order XLI Rule 31 of CPC. But,
same is no more res-integra. Hon'ble Supreme Court in case of
U. Manjunath Rao v. U. Chandrasekhar, reported in (2017)
15 SCC 309, held:
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"13. On a perusal of the said Rule, it is quite clear
that the judgment of the appellate court has to
state the reasons for the decision. It is necessary
to make it clear that the approach of the first
appellate court while affirming the judgment of
the trial court and reversing the same is founded
on different parameters as per the judgments of
this Court. In Girijanandini Devi [Girijanandini
Devi v. Bijendra Narain Choudhary, AIR 1967 SC
1124], the Court ruled that while agreeing with
the view of the trial court on the evidence, it is
not necessary to restate the effect of the
evidence or reiterate the reasons given by the
trial court. Expression of general agreement with
reasons given in the trial court judgment which is
under appeal should ordinarily suffice. The same
has been accepted by another three-Judge Bench
in Santosh Hazari [Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179].
However, while stating the law, the Court
has opined that expression of general
agreement with the findings recorded in the
judgment under appeal should not be a
device or camouflage to be adopted by the
appellate court for shirking the duty cast on
it. We are disposed to think, the expression
of the said opinion has to be understood in
proper perspective. By no stretch of
imagination it can be stated that the first
appellate court can quote passages from the
trial court judgment and thereafter pen few
lines and express the view that there is no
reason to differ with the trial court
judgment. That is not the statement of law
expressed by the Court. The statement of law
made in Santosh Hazari [Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179]
has to be borne in mind.
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14. In this regard, a three-Judge Bench decision
in Asha Devi v. Dukhi Sao [Asha Devi v. Dukhi
Sao, (1974) 2 SCC 492 : AIR 1974 SC 2048] is
worthy of noticing, although the context was
different. In the said case, the question arose
with regard to power of the Division Bench
hearing a letters patent appeal from the
judgment of the Single Judge in a first appeal.
The Court held that the letters patent appeal lies
both on questions of fact and law. The purpose of
referring to the said decision is only to show that
when the letters patent appeal did lie, it was not
restricted to the questions of law. The appellant
could raise issues pertaining to facts and
appreciation of evidence. This is indicative of
the fact that the first appellate court has a
defined role and its judgment should show
application of mind and reflect the reasons
on the basis of which it agrees with the trial
court. There has to be an "expression of
opinion" in the proper sense of the said
phrase. It cannot be said that mere
concurrence meets the requirement of law.
Needless to say, it is one thing to state that
the appeal is without any substance and it is
another thing to elucidate, analyze and
arrive at the conclusion that the appeal is
devoid of merit.
15. In the case at hand, as we have noted
earlier, the learned Judge has really not
ascribed any reason. There has been no
analysis of facts or law. There is no
discussion with regard to the points urged.
While agreeing with the general approval of
reasons to support the conclusions of the
judgment in appeal, the High Court has to
keep in view the language employed in
Order 41 Rule 31 CPC and the view expressed
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in Santosh Hazari [Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179].
Analysis and reason are to be manifest.
When that is not done, needless to say, the
judgment of the High Court becomes
indefensible."
(emphasis supplied)
26. In view of above ratio, expression of general
concurrence with findings that reasoning of trial Court by first
appellate Court cannot be held to meet requirements of law.
Substantial question of law no.1 is answered in affirmative.
27. Insofar as contention about Exs.P2, 3 and 4 attracting
presumption under Section 90 of Evidence Act, a reference to
provision would be necessary. Section 90 reads as follows:
"90. Presumption as to documents thirty
years old. - Where any document, purporting
or proved to be thirty years old, is produced
from any custody which the Court in the
particular case considers proper, the Court may
presume that the signature and every other part
of such document, which purports to be in the
handwriting of any particular person, is in that
person's handwriting, and, in the case of a
document executed or attested, that it was duly
executed and attested by the persons by whom
it purports to be executed and attested. ..."
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28. On scope of presumption under above provision,
Hon'ble Supreme Court in case of Tehsildar, Urban
Improvement Trust and Anr. v. Ganga Bai Menariya
(Dead) Through Lrs and Ors., reported in 2024 SCC OnLine
SC 169, held:
"18. On one side, the plea sought to be taken by the
respondents is that the document being more than
30 years old, there was presumption of truth in
terms of Section 90 of the 1872 Act. This section
provides that if the document is more than 30 years
old and is being produced from proper custody, a
presumption is available to the effect that signatures
and every other part of such document, which
purports to be in the handwriting of any particular
person, is in that person's handwriting and in case a
document is executed or attested, the same was
executed and attested by the persons by whom it
purports to be executed and attested. This does not
lead to a presumption that recitals therein are
correct. (Reference can be made to the judgment of
this Court in Union of India v. Brahim Uddin)."
(emphasis supplied)
29. In instant case, defendants have not challenged
Exs.P2, P3 and P4 on ground that they were not duly executed
and attested or about handwriting. Defendants disputes that
they pertain to property bearing Sy.no.21/1B i.e. suit property.
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30. In case, said deeds suffered from any mistake or
error, two courses would be available. If, mistake or error was
material/fatal to have sought for rectification and in case
mistake was not fatal to offer explanation and seek for
declaration. From tenor of pleadings and evidence led, case of
plaintiff appears to be the latter. In this regard, presumption
available under Section 90 of Evidence Act, would be
inconsequential. Hence, substantial question of law no.2 is
answered in negative.
31. Last contention is, in case of conflict between property
number, it's extent mentioned in sale deed and its boundary
description, which would prevail, relying upon decisions in
Sheodhyan Singh and Narasimha Shastry's cases (supra).
32. In Sheodhyan Singh's case (supra), Hon'ble
Supreme Court observed when description of suit property -
plot was by Tauzi number, Khasra number, Thana number,
Survey number with area and boundaries, mentioning of plot
no.1060 as plot no.160 would be a case of mis-description and
not of disputed identity which would be non-fatal. And
Narasimha Shastry's case (supra) was about a suit for
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permanent injunction, wherein plaintiff had stated that at time
of purchase of suit property, extent of property purchased was
not known and therefore approximate extent was mentioned,
but with definite boundary description. And defendant did not
dispute purchase of property by plaintiff, accepted other three
boundaries, disputed only eastern boundary of plaintiff's land
mentioned as stretching upto rain-water channel and areca
garden of defendant. But, plaintiff's specific pleading and fact
that defendant had contended that he had not trespassed into
plaintiff's property and cut two areca trees as alleged, it was
held, boundary description of property by plaintiff prevail over
approximate area mentioned and restored judgment and
decree of trial Court decreeing plaintiff's suit. Thus, both
decisions are distinguishable on facts. Therefore, substantial
question of law no.3 has to be answered in negative.
33. Even on merits, when it is plaintiff's specific case that
suit property was allotted to his mother in partition, who
initially mortgaged it to third person, later sold it to him and
thereafter plaintiff purchased it from said person, plaintiff
admits that in Ex.P2 - mortgage deed, though correct survey
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number and boundary description were mentioned, there was
error in measurement. Plaintiff accepts that in subsequent sale
deeds as Exs.P3 and P4, property sold was with same boundary
description, but with incorrect survey number and extent, due
to mistake of deed writer. But, as rightly contended, there is no
effort by plaintiff to establish partition, even when party
seeking declaration of title on basis of registered sale deed,
would require to establish that his vendor conveyed valid title.
34. Moreso, said assertion is denied/disputed by
defendants. As noted, plaintiff did not lead evidence about
partition between Chikkadaramma and Narasimha nor produced
any documents to establish same. Except its reference in Ex.P2
- Mortgage deed and its certified copy marked as Ex.P28.
Narasiyappa, a 60 year old, resident of Bramahasandra,
examined as PW-2 stated Chikkadaramma was in possession of
Sy.no.21/1B after it was allotted to her in partition with her
brother Narasimha in 1932 as well as its mortgage and later
sale to Nanjundaradhya and repurchase by Kempaiah. He also
stated that Sy.no.40/1 belonged to him and situated about 700
to 750 feet away from suit property. In cross-examination, he
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denied suggestions that Chikkadaramma and Narasimha were
not related, there was no partition between them, that he did
not have personal knowledge and Chikkadaramma or her
brother were not in possession of suit property. PW.2, admits
that legal representatives of defendant no.5 were in possession
of suit property.
35. Even Gangaiah, 74 year old, resident of
Bramahasandra, examined as PW-3 merely stated suit property
was adjacent to his land bearing Sy.no.21/2 and plaintiff was in
possession and cultivating it. He also stated that Sy.no.40/1
was about 700 to 800 feet away from his land. Thus, there is
virtually no material to establish Chikkadaramma got suit
property in partition with her brother Narasimha. Neither
partition deed nor witness to partition were examined. There is
no corroboration even in revenue records. Ex.P1 is Spl. Power
of Attorney authorizing plaintiff's son to depose on his behalf;
Ex.P2 - is Mortgage Deed; Ex.P3 - Sale deed in favour of
Mortgagee; Ex.P4 - Sale deed in favour of plaintiff by
Mortgagee/purchaser; Ex.P5 to P23 are RTCs (except P9, which
is ME no.105/92-93), while Ex.P24 to P27 are certified copies of
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Tippani, Encumbrance Certificate, Aakaar Band, Ex.P28 -
certified copy of Ex.P2 Mortgage deed, Ex.P29 - Khata Extract,
Ex.P30 to 33 being Survey Sketch, Survey Report, Survey
Notice and village map, while Ex.P34-35 are RTCs of
Sy.no.40/1. Thus, there is sufficient justification for trial Court
to drawn adverse inference against plaintiff for failure to
examine any witness to establish partition.
36. In view of above, even though, substantial question of
law no.1 is answered in favour of plaintiff, in view of answers to
substantial questions of law no.2 and 3, it would be futile to
remit matter back to first appellate Court. Hence, following:
ORDER
Appeal is dismissed. No order as to costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
List No.: 1 Sl No.: 1
