Karnataka High Court
B.V. Kyarakatti vs Sattappa Shambappa Gomadi And Ors. on 6 June, 2003
Equivalent citations: ILR2003KAR4064
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
JUDGMENT A.V. Srinivasa Reddy, J.
1. These two appeals arise from the judgment and decree dated 28th November, 2000 passed by the Principal Civil Judge (Sr. Dn.), Hubli in R.A.No. 69/2000 setting aside the judgment and decree passed in O.S.No. 378/1992 dated 24.3.2000 on the file of the III Addl. Civil Judge (Jr. Dvn.) Hubli.
2. The appellant and respondent herein filed suits against eachother for the relief of permanent injunction. The suit schedule property in both the suits is a site forming part of R.S.No. 53 measuring 3 acres and 29 guntas of Mariyan Timmasagar. The schedule given in the suit filed by the appellant-Kyarakatti in O.S. 449/92 is CTS No. 8A1A2 +8A1B/2 in CST Ward No. III, Hubli City bounded on the west by road, east by R.S.No. 52, north by CTS No. 8A1A2 +8E+8A1B/1 and to the south by CTS.No. 8A1A1A/2. The suit schedule property as mentioned in O.S. 378/92 filed by the respondent Gomadi is the site measuring East-West 72 feet 6 inches and North-South 57 feet 6 inches bounded on the east by R.S.No. 52, on the west by 20 feet road, on the north by open site belonging to Jafarsab Sethsanadi and on the south by open site belonging to late Keshava Gidada Hubballi. The exact measurement of the suit schedule site with reference to the boundaries has not been given by the appellant who merely stated in his plaint that it measured 333 sq. yards. In both the suits it was claimed by the respective plaintiff that he had purchased the site from the previous owner and has been in possession and that the possession is being Gurdial Singh Mann (Not Foll) 14 interfered with by the other side.
3. At the trial both the suits were clubbed together and common evidence was recorded. The Trial Court formulated the following issues for its consideration:
Issues in O.S.No. 378/92:
1. Whether the plaintiff proves that he has been in lawful vs KMFC Ltd. (Not Foll) 14 possession of suit property?
2. Whether the plaintiff proves that there has been an illegal interference by the defendant with peaceful possession and enjoyment of the suit property?
3. Whether the defendants proves that suit property is not in existence?
4. Whether the plaintiff is entitled for permanent injunction as sought for?
5. What order or decree?
Issues in O.S.No. 449/92:
1. Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of filing of the suit?
2. Whether the further proves that the defendants made interference in the same?
3. Whether the plaintiff is entitled to the relief sought for?
4. What decree or order?
4. The trial Court on the findings recorded by it on the above issues, decreed O.S.No. 449/92 and dismissed O.S.No. 378/92. Aggrieved by the said judgment and decree the respondent herein went in appeal to the Court-below by filing two appeals one against the dismissal of his suit and another against the decreeing of the suit of the respondent.
5. The Court below formulated the following issues as arisingfor its consideration:
1. Whether the properties involved in both the suits are one and the same?
2. If so, who among Gomadi and Kyarakatti is in lawful possession of the said property?
3. Who has caused obstruction to whom?
4. What order?
6. The Court-below found that the suit schedule property involvedin both the suits is one and the same and that Gomadi is in lawful possession of the suit property. On these findings the Court-below set aside the judgment and decree of the Trial Court and allowed the appeals. Hence the present appeals by the aggrieved appellant.
7. I have heard the learned Counsel for both sides. On theissue of identity of the suit properties, both the learned Counsel submitted that two properties are involved and not one property as has been held by the Court-below.
8. For the sake of convenience in the course of this judgment Iwould be referring to the parties by their name.
9. The substantial question of law that arise for considerationin these appeals are:
1) Whether the finding of the Court-below are vitiated on account of application of wrong tests while determining the question of fact of ownership arising for its consideration?
2) Whether the sale in favour of Gomadi is hit by Section 52 of the Transfer of Property Act?
10. Both suits were filed for decree of permanent injunction.The relief in both suits was sought on the ground that the plaintiffs are the owners of their respective sites. In order to be entitled to the relief of perpetual injunction on the ground of ownership of the site, it was for the plaintiff to establish his right of ownership and the fact of its violation by the other party.
11. In deciding the fact as to who is in lawful possession of theproperty which is vital in a suit for permanent injunction, the Court-below held in favour of Gomadi relying on the description of the property given by him and the title deeds produced by him. The plaintiff Gomadi has produced the sale deed Ex.P11 executed by original owner Jafarsab Setasanadi on 1.6.1960 in favour of Ningappa Koppad and Ex. P12 the sale deed executed by Ningappa Koppad in favour of Gomadi. The sale in favour of Ningappa Koppad by Jafarasab Setasanadi being prior to the coming into force of the Karnataka Village Offices Abolition Act, 1961 it is hit by Section 5 of the Bombay Hereditary Offices Act. Under Section 5 of the Bombay Hereditrary Offices Act the watanadar could not have sold his interest in 'watan' land beyond the period of his life time and any violation of this condition would render such transfer void. The creation of permanent leasehold right in favour of Ningappa Koppad by Watanadar Jafarsab and the inturn alienation of this right by Ningappa Koppad in favour of plaintiff both being hit by Section 5 of the Bombay Hereditary Offices Act, the Court-below was not justified in coming to the conclusion on the basis of Ex.P11 and P12 that Gomadi was in lawful possession of the suit land. However, subsequent to the coming into force of the Village Officers Abolition Act, 1961 the land was regranted in favour of Jafarsab and subsequent to this regrant Jafar Sab had taken the permission from the Deputy Commissioner to alienate the land by relaxing the non-alienation condition. It is well-settled law that an alliance of a service inam land does not acquire any title to such land if the alienation had taken place prior to the coming into force of the Village Officers Abolition Act. But the case of Gomadi is on a different footing when it is based on Ex.P13 the sale deed executed by Jafarsab Setasanadi on 23.2.1970 under which Gomadi purchased the right, title and interest of Jafarsab in the suit land after its regrant. This sale has taken place after regrant in favour of Jafarsab and the transfer has been effected after obtaining permission from the Deputy Commissioner. The provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 are also not applicable to the transfer effected on 23.2.1970 as the said Act was amended by Act 1 of 1963 whereby under Section 4 of the Amended Act any transaction including transfer of land entered or effected before the commencement of the Act and in contravention of the provisions of the Principal Act shall, notwithstanding anything contained in the Principal Act, be not deemed to be void merely on the ground of such contravention. Therefore, there was absolutely no impediment for transfer of the right, title and interest in the suit property by Jafarsab after its regrant. In so far as the identity of the suit property is concerned the Court-below has relied on the boundaries given in Ex. P13. In order to ascertain the factum of possession the Court-below relying on the principle of law that in case of vacant site, possession follows title and therefore proceeded to hold that Gomadi is in lawful possession of the suit site. The finding recorded by the Court-below placing reliance on Ex.P13 that Gomadi has established his title over the suit property and further the suit property being a site possession must be deemed to be with Gomadi and not with Kyarakatti cannot be said to be vitiated by reason of application of wrong tests for determining the questions of fact that arose for its consideration. Therefore, the finding of the Court-below requires to be upheld as it is not vitiated by application of wrong tests while determining the question of fact of ownership.
12. Point No.2:- It submitted by learned Counsel Mr. S.V. Shastri that the sale in favour of Gomadi is hit by Section 52 of the Transfer of Property Act as in a suit in S.A.No. 29/63 between Jafarsab and his cousin Davalsab Sethsanadi a compromise was entered into and under the compromise Jafarsab was liable to give part of R.S.No. 53 but as he failed to surrender part of Sy. No. 53, Execution case No. 234/69 was filed and in that Execution case part of CTS NO. 8A/1A/1A 1A1A was given to Davalsab and it is this portion that was subsequently sold by Davalsab in Favour of B.V.Kyarakatti. According to learned Counsel S.V. Shastri. After subdivision of CTS No. 8A/1A/1A 1A1A the new number was given as 8A1A+8E+8a1B 2 and that property is still in possession and enjoyment of B.V. Kyarakatti. It is the contention of Mr. S.V. Shastri as the property purchased by Gomadi forms part of the share that was given to Davalsab in Ex.Case No. 234/69. Gomadi did not acquire any valid title to the said property. But, there is nothing on record to show that the property bearing No. 8/A1/A1/A/1 forms that part of CTS No.8A/1A/1A 1A1A which fell to the share of Davalsab in Ex. Case No. 234/69. It is not sufficient to merely show that a lis was pending between the parties at the time of the sale, it must be further proved that the property in question was the one involved in the said suit. R.S.No. 53 measured in all 3 acres 29 guntas. It is not shown by Kyarakatti that the land purchased by Gomadi from Jafarsab Sethsanadi was also involved in the lis between Jafarsab Sethsanadi and Davalsab and the portion sold to Gomadi formed part of the share given to Davalsab in the execution proceedings. In the absence of clear identity of the property involved in the lis it is difficult to draw a conclusion that the sale in favour of Gomadi was hit by Section 52 of the T.P.Act.
13. In so far as the suit filed by Kyarakatti, the same wasdismissed by the Court-below on coming to the conclusion that Kyarakatti failed to establish his title to the suit property. The Court-below found that Kyarakatti has not proved his case that he is in lawful possession of the suit property after purchase from Davalsab. The sale deed in respect of the suit property was not produced by Kyarakatti. A Xerox copy of the sale deed was sought to be produced as evidence but was rightly discarded by the Court-below from consideration. The reason given by Kyarakatti that the sale deed was deposited with the bank for obtaining loan and therefore he could not produce it does not appear to be a valid reason. Kyarakatti could have easily obtained a certified copy of the sale deed and produced the same in Court to establish his ownership over the suit land or atleast could have summoned the same to the Court. The observation of the Court-below that the Trial Court erred in entirely depending on CTS extract, tax paid receipt, maps and license for coming to the conclusion that Kyarakatti is in possession of the suit site cannot be found fault with as it is a well-known principle of law that revenue records are not documents of title and they on their own cannot establish title to any property. The suit of Kyarakatti based as it is entirely on the ground of he being the rightfully owner of the site, in the absence of establishment of his right, title and interest over the property it must be held that even if it is shown that he is in possession of the suit property the same cannot be held to be lawful possession. It cannot be lost sight of the fact that Kyarakatti does not claim the suit property in any other capacity than that of a owner and when such claim is not established, he would not be entitled to any relief in a suit for permanent injunction. Therefore, no fault could be found with the order of the Court-below in dismissing the suit filed by Kyarakatti.
14. Learned Counsel for appellant relied on KULWANT KAUR vs GURDIAL SINGH MANN,12001 AIR SCW 1184 Therein the Apex Court held that where a finding stands vitiated on application of wrong test and the finding is a result of assumptions and conjectures and resultantly there is an element of perversity, the High Court will be within its jurisdiction to deal with the issue. The decision is of no aid to the appellant as I have found on consideration of the judgment passed by the Court-below that there is no element of perversity in it. The principle laid down in the decision in NOORULLA AMIN MUSUBA AND OTHERS vs CHANDRU SHENIYAR NAIK,2 is to the effected that ownership of the land is not irrelevant in a suit for injunction. In deciding the issue of permanent injunction this Court has also duly considered the question of ownership. The factum of ownership is indeed relevant when the parties rest their case of lawful possession on the basis of their claim to ownership of the lands. The principle laid down in RAM PRASAD vs HARI NARAIN3 to the effect that the power of attorney holder is not entitled to appear as witness for party appointing him power of attorney holder is irrelevant in the facts and circumstances of the present case as the power of attorney holder has been examined in the case not in his capacity as such but as the son of the plaintiff who had knowledge of all the relevant facts and circumstances of the case and his examination was necessitated on account of the fact that the plaintiff was indisposed and was not in a position to attend the Court and depose as a witness. There can be no dispute about the correctness of the principle in SATHYAM @ RAMAIAH vs K.M.F.C. Ltd., . ILR 1999 KAR 301 to the effect that a trespasser who is in settled possession cannot be thrown away except in due course of law because such trespasser is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him. This decision also would not go to the aid of the appellant because it has been shown by evidence both oral and documentary, that the appellant is not in possession of the suit schedule property claimed by the respondent.
14. In the result, for the reasons stated above, both the appealsfail and they are, accordingly, dismissed.