Karnataka High Court
Gangadhar @ Suryaprasad vs A R Villiyappan on 25 September, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
REGULAR FIRST APPEAL No. 660/2009
C/W
REGULAR FIRST APPEAL Nos.722/2009,
723/2009, 724/2009 and 725/2009
IN RFA No.660/2009
BETWEEN:
GANGADHAR @ SURYAPRASAD
S/O NANJAIAH
AGED ABOUT 46 YEARS
R/AT No.1228, 1ST MAIN, 3RD CROSS
K.N. EXTENTION, YESHWANTHAPURA
BANGALORE-560022.
...APPELLANT
(BY SRI. GANGADHAR, PARTY-IN-PERSON)
AND:
1. A. R. VILLIYAPPAN
S/O LATE ARUNACHALAM
AGED 57 YEARS, "VALATHI"
No.239, 14TH CROSS
YELAHANKA NEW TOWN
BANGALORE - 560 064.
2. P. MEENAKSHI SUNDARAM
S/O TIRANAN
AGED ABOUT 52 YEARS
R/AT No.556, 1ST 'D' CROSS
MATTIKERE, GOKULA POST
BANGALORE -54.
2
3. A. AFRAZ
S/O SYED IBRAHIM
AGED ABOUT 56 YEARS
No.17, 3RD CROSS
BYRASANDRA, JAYANAGAR EAST
BANGALORE - 560 011.
4. J.V. KRISHNAMURTHY
S/O VENKATAIAH
AGED ABOUT 45 YEARS
R/AT No.196, 6TH MAIN
NEI LAYOUT, BAGALAGUNTE
NAGASANDRA POST
BANGALORE - 560 073.
... RESPONDENTS
(BY SRI. S.K. VENKATA REDDY, ADV., FOR R1 TO R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.04.2009, PASSED IN O.S.
No.2495/2006 ON THE FILE OF THE XXIV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
IN RFA No.722/2009
BETWEEN:
GANGADHAR @ SURYAPRASAD
S/O NANJAIAH
AGED ABOUT 46 YEARS
R/AT No.1228, 1ST MAIN, 3RD CROSS
K.N. EXTENTION, YESHWANTHAPURA
BANGALORE-560022.
...APPELLANT
(BY SRI. GANGADHAR, PARTY-IN-PERSON)
3
AND:
1. A. R. VILLIYAPPAN
S/O LATE ARUNACHALAM
AGED 57 YEARS, "VALATHI"
No.239, 14TH CROSS
YELAHANKA NEW TOWN
BANGALORE - 560 064.
2. YESHODAMMA
W/O LATE MUNIKRISHNAPPA
AGED 60 YEARS.
3. SRI. SHANTHAKUMAR
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 42 YEARS.
4. SRI. GANGADHAR
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 40 YEARS.
RESPONDENT No. 2, 3 & 4 ARE
RESIDING AT KAMMAGONDANAHALLI
VILLAGE, JALAHALLI WEST POST
BANGALORE - 560 015.
... RESPONDENTS
(BY SRI. S.K. VENKATA REDDY, ADV, FOR R1)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.04.2009, PASSED IN O.S.
No.5323/2004 ON THE FILE OF THE XXIV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, DECREEING THE
SUIT FOR PERMANENT INJUNCTION.
IN RFA No.723/2009
BETWEEN:
GANGADHAR @ SURYAPRASAD
S/O NANJAIAH
AGED ABOUT 46 YEARS
4
R/AT No.1228, 1ST MAIN, 3RD CROSS
K.N. EXTENTION, YESHWANTHAPURA
BANGALORE-560022.
...APPELLANT
(BY SRI. GANGADHAR, PARTY-IN-PERSON)
AND:
1. P. MEENAKSHI SUNDARAM
S/O PIRAMAN
AGED 50 YEARS
R/AT No.556, I 'D' CROSS
MATHIKERE, GOKUL POST
BANGALORE - 560 054.
2. SMT. YESHODAMMA
W/O LATE MUNIKRISHNAPPA
AGED 60 YEARS.
3. SRI. SHANTHAKUMAR
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 42 YEARS.
4. SRI. GANGADHAR
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 40 YEARS.
RESPONDENT No.2, 3 & 4 ARE
RESIDING AT KAMMAGONDANAHALLI
VILLAGE, JALAHALLI WEST POST
BANGALORE - 560 015.
... RESPONDENTS
(BY SRI. S.K. VENKATA REDDY, ADV, FOR R1
NOTICE TO R2 TO R4 DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.04.2009, PASSED IN O.S.
No.5324/2004 ON THE FILE OF THE XXIV ADDL. CITY
5
CIVIL & SESSIONS JUDGE, BANGALORE, DECREEING THE
SUIT FOR PERMANENT INJUCTION.
IN RFA No.724/2009
BETWEEN:
GANGADHAR @ SURYAPRASAD
S/O NANJAIAH
AGED ABOUT 46 YEARS
R/AT No.1228, 1ST MAIN, 3RD CROSS
K.N. EXTENTION, YESHWANTHAPURA
BANGALORE-560022.
...APPELLANT
(BY SRI. GANGADHAR, PARTY-IN-PERSON)
AND:
1. E. AFROZ
S/O SYED SYED EBRAHIM
AGED 54 YEARS
R/AT No.17, III CROSS
BYRASANDRA, JAYANAGAR EAST
BANGALORE - 560 011.
2. SMT. YESHODAMMA
W/O LATE MUNIKRISHNAPPA
AGED 60 YEARS.
3. SRI. SHANTHAKUMAR
S/O LATE MUNIKRISHNAPPA
AGED 42 YEARS.
4. SRI. GANGADHAR
S/O LATE MUNIKRISHNAPPA
AGED 40 YEARS.
RESPONDENT No. 2, 3 & 4 ARE
RESIDING AT KAMMAGONDANAHALLI
VILLAGE, JALAHALLI WEST POST
6
BANGALORE - 560 015.
... RESPONDENTS
(BY SRI. S.K. VENKATA REDDY, ADV, FOR R1
NOTICE TO R2 TO R4 DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.04.2009, PASSED IN O.S.
No.5325/2004 ON THE FILE OF THE XXIV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, DISMISSING THE
SUIT FOR PERMANENT INJUNCTION.
IN RFA No.725/2009
BETWEEN:
GANGADHAR @ SURYAPRASAD
S/O NANJAIAH
AGED ABOUT 46 YEARS
R/AT No.1228, 1ST MAIN, 3RD CROSS
K.N. EXTENTION, YESHWANTHAPURA
BANGALORE-560022.
...APPELLANT
(BY SRI. GANGADHAR, PARTY-IN-PERSON)
AND:
1. J.V. KRISHNA MURTHY
S/O VENKATAIAH
AGED 43 YEARS
R/AT No.196, 60 FEET MAIN ROAD
MEI LAYOUT, BAGALAGUNTE
NAGAANDRA POST
BANGALORE - 560 073.
2. SMT. YESHODAMMA
W/O LATE MUNIKRISHNAPPA
AGED 60 YEARS.
7
3. SRI. SHANTHAKUMAR
S/O LATE MUNIKRISHNAPPA
AGED ABOUT 42 YEARS.
4. SRI. GANGADHAR
S/O LATE MUNIKRISHANPPA
AGED ABOUT 40 YEARS.
RESPONDENT No.2, 3 & 4 ARE
RESIDING AT KAMMAGONDANAHALLI
VILLAGE, JALAHALLI WEST POST
BANGALORE - 560 015.
... RESPONDENTS
(BY SRI. S.K. VENKATA REDDY, ADV, FOR R1
R2 TO R4 NOTICE DISPENSED WITH)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 25.04.2009, PASSED IN O.S.
No.5335/2004 ON THE FILE OF THE XXIV ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE, DECREEING THE
SUIT FOR PERMANENT INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN
HEARD AND RESERVED FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, PRADEEP D. WAINGANKAR J.,
PRONOUNCED THE FOLLOWING:-
JUDGMENT
All these appeals are arising out of the common judgment and decree dated 25.04.2009 passed in O.S.Nos.2495/2006, 5323/2004, 5324/2004, 5325/2004 and 5335/2004 on the file of the XXIV 8 Additional City Civil Judge, Bangalore. As such, they are disposed of by this common judgment.
2. Brief facts which gave rise to these appeals are as under:
Plaintiff in O.S.No.2495/2006 Gangadhar @ Suryaprasad filed a suit against the defendants who are plaintiffs in other four suits to declare that he is the absolute owner of the suit schedule property measuring 11.5 guntas in Sy.No.53 of Kammagondanahalli village in Yeshwanthpura Hobli, Bangalore North Taluk and to restrain the defendants by a decree of permanent injunction from interfering with his peaceful possession and enjoyment of the schedule property. The case of the plaintiff is that one Munikrishnappa was the owner of 17.5 guntas of land in Sy.No.53 of Kammagondanahalli village, which he acquired under a family oral partition. He sold the said property to one T.V. Bhaskar Rao by sale deed dated 19.11.1966. T.V.
Bhaskar Rao re-conveyed the property to 9 Munikrishnappa by a registered sale deed dated 16.01.1971. Munikrishnappa died on 19.09.1975 leaving behind his wife Smt.Yashodamma and three sons by name M. Venkatesh, M. Shanthakumar and M. Gangadhar. The plaintiff purchased 11.5 guntas of land out of 17.5 guntas by a registered sale deed dated 30.09.2000 from Yashodamma, wife of Munikrishnappa and her three sons and thereby the plaintiff became the owner in actual possession and enjoyment of 11.5 guntas of land which is shown as suit schedule property. The defendants without therebeing any right, title or interest over the schedule property belonging to the plaintiff made an attempt to trespass and to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff which made the plaintiff to file a suit for a decree of declaration and injunction against the defendants. By the time, the plaintiff filed O.S.No.2495/2006, each of the defendant Nos. 1 to 4 had already filed O.S.No.5323/2004, 5324/2004, 5325/2004 and 5335/2004 for a decree of 10 permanent injunction against the plaintiff and the vendor of the plaintiff-Smt.Yashodamma and her three sons.
Defendant Nos.1 to 4 who had already filed aforesaid four suits appeared in the suit filed by the plaintiff for declaration and injunction. However, defendant No.3-A. Afroz filed written statement which has been adopted by defendant Nos.1, 2 and 4. The sum and substance of the written statement filed by the defendants is that they have denied that the plaintiff is the owner or in possession of 11.5 guntas of land in Sy.No.53 of Kammagondanahalli village which he said to have purchased from the wife and children of Munikrishnappa. In fact, the defendants have denied that the vendor of the plaintiff had any right, title or interest in Sy.No.53. It is the case of the defendants that one Mestri Muniswamappa was the original owner of Sy.No.53 measuring 1 acre and 30 guntas of land. He had two wives by name Nanjamma, first wife and Puttamma, second wife. Mestri Muniswamappa had a 11 son by name K.M. Muniyappa from his first wife Nanjamma and three sons namely Shamanna, Aswathappa and Munikrishnappa from second wife Puttamma. Munikrishnappa died on 19.09.1975 leaving behind his wife Yeshodamma and three sons namely M. Venkatesh, M. Gangadhar and M. Shantha Kumar. The Sy.No.53 was orally partitioned between the first wife Nanjamma and second wife Puttamma and both of them acquired 34 guntas each out of the said survey number. Puttamma sold entire 34 guntas of her share to one Thulasamma, D/o Tayappa Reddy by sale deed dated 04.11.1971 and thereby no land was left behind to the share of any of her sons including Munikrishnappa the husband of Yeshodamma. In other words, the case of the defendants is that the sale deed executed by Yeshodamma and her three sons in favour of plaintiff dated 30.09.2000 is a concocted and fabricated document under which the plaintiff cannot derive any right, title or interest over the schedule property shown in the sale deed executed by the legal heirs of the 12 Munikrishnappa. Thus, the plaintiff is neither the owner of the schedule property nor in possession of the schedule property at any point of time. Further, it is contended by the defendants that after the death of Nanjamma, first wife of Mestri Muniswamappa, her son K.M. Muniyappa succeeded to 34 guntas of land in Sy.No.53 wherein he formed a layout consisting of number of sites and sold the sites to defendant Nos.1 to 4 by registered sale deeds through his power of attorney holder G. Sahadevan. On the strength of the sale deed executed by power of attorney holder of K.M. Muniyappa, the defendants have become the owner in actual possession of the schedule property shown in their respective sale deeds. When the plaintiff tried to interfere with the peaceful possession and enjoyment of the defendants, the defendants individually filed suit for a decree of injunction against plaintiff. As a counter blast, the plaintiff filed O.S.No.2495/2006, a suit for declaration and permanent injunction against the 13 defendants. For all these reasons the defendants have sought for dismissal of the suit filed by the plaintiff.
Based on the pleadings of the parties and upon going through the documents placed on record, the Court below framed the following issues.
"O.S. No.2495/2006:
1. Did Munikrishnappa S/o Mestri Muniyappa execute sale deed dated 19-
11-1966 in favour of T.V. Bhaskar Rao, conveying title and possession over 17 ½ guntas in Sy.No.53 of Kammagoundanahalli ?
2. Did Munikrishnappa repurchased the above property from T.V. Bhaskar Rao under registered sale deed dated 16-1- 1971?
3. Did wife and children of Munikrishnappa execute sale deed dated 3-9-2000 in favour of plaintiff and convey title and possession in respect of suit property i.e., 11 ½ gunta in Sy. No.53 of K.G. Halli ?
4. Was plaintiff in lawful and defacto possession of schedule property on the date of suit ?
5. Is plaintiff entitled for declaration of title?
6. Is he entitled for injunction ?
14
7. What decree or orders ?
8. Was Puttamma's portion measuring 34 guntas in Sy.No.3 of K.G. Halli sold in favour of Thulasamma by Munikrishnappa and others on 4-11-71 as alleged in para 8 of written statement of 3rd defendant ?
9. Was Nanjamma's 34 guntas portion in Sy. No.53 of K.G. Halli conveyed in favour of G. Sahadevan by means of GPA dated 12-4-02 executed by late K. Muniyappa and his sons ?
10. Did said Sahadevan form sites in that land and sold sites 2, 3, 4 in favour of Valliyapan (D. No.1)?
11. Did 2nd defendant acquire site 5, 6, 7 formed in S. No.53 of K.G. Halli by from K.M. Muniyappa and his sons on 10-3- 2004 ?
12. Did 4th defendant purchase site Nos 8, 9, 10 in S. No.53 from said K.M. Muniyappa and his sons on 11-3-2004.
Above Issues framed on 16/8/2006 by my Predecessor are deleted and new Issues are framed in this case with the consent of the parties, on 4/4/2009, which are as under:
1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?15
2. Whether the plaintiff proves the interference of the defendant?
3. Whether the suit is properly valued and court fee paid is sufficient?
4. What order or decree?
O.S. No.5323/2004:.
1. Whether the plaintiff proves the existence of the sites as described in the plaint schedule?
2. Whether the plaintiff proves that he is the absolute owner in possession of the suit property as pleaded?
3. Whether the 4th defendant proves that he is the absolute owner in possession of the disputed area as contended?
4. Whether the plaintiff is entitled for the relief of perpetual injunction prayed? O.S. No.5324/2004:
1. Whether the plaintiff proves the existence of the sites as described in the plaint schedule?
2. Whether the plaintiff proves that he is the absolute owner in possession of the suit property as pleaded?
3. Whether the 4th defendant proves that he is the absolute owner in possession of the disputed area as contended?16
4. Whether the plaintiff is entitled for the relief of perpetual injunction prayed?
O.S. No.5325/2004:
1. Whether the plaintiff proves the existence of the sites as described in the plaint schedule?
2. Whether the plaintiff proves that he is the absolute owner in possession of the suit property as pleaded?
3. Whether the 4th defendant proves that he is the absolute owner in possession of the disputed area as contended?
4. Whether the plaintiff is entitled for the relief of perpetual injunction prayed?
O.S. No.5335/2004:
1. Does plaintiff prove that he is owner of suit property? Was plaintiff in lawful possession of suit property on the date of suit?
2. Is the suit property valued and court fee paid is sufficient?
3. Is the suit property valued and court fee paid is sufficient?
4. What decree or order?17
Issue Nos 1, 2 and 3 in O.S. Nos 5323/04, 5324/04, 5325/04 and 5335/04, are in respect of ownership. But, the plaintiffs in all these suits have not sought for declaration of ownership. Hence, they are strike out under the powers conferred under 14 Rule 5 of CPC and following Additional Issue are framed:
Additional Issues in O.S. Nos 5323/04, 5324/04, 5325/04 and 5335/04:
1. Whether plaintiff proves that he is in Possession of the suit schedule property?
2. Whether the plaintiff proves the interference of the defendants?"
After framing of the issues, the plaintiff in order to prove his case got examined himself as PW-1 and marked Exs.P1 to P14. On behalf of the defendants, defendant No.3-A. Afroz is examined as DW-1 and Exs.D-1 to D-57 came to be marked. Upon hearing the arguments and upon consideration of the entire evidence placed on record, both oral and documentary, the trial Court recorded a finding that the plaintiff- Gangadhar failed to prove his ownership over the schedule property and also interference by the 18 defendants, which resulted in dismissal of the suit. At the same time, the trial Court held that defendant Nos.1 to 4 who filed separate suits for injunction have been able to establish that they are in possession and enjoyment of the schedule properties shown in the respective plaints which resulted in a decree of permanent injunction in their favour and as against the plaintiff.
3. Aggrieved by the dismissal of O.S.No.2495/2006 the plaintiff-Gangadhar has preferred R.F.A.No.660/2009. Aggrieved by the decree passed in favour of plaintiffs in O.S.Nos.5323/2004, 5324/2004, 5325/2004 and 5335/2004, the plaintiff- Gangadhar preferred R.F.A.Nos. 722/2009, 723/2009, 724/2009 and 725/2009 respectively on the ground that the common judgment and decree passed by the Court below is contrary to the law and to the facts of the case, the Court below has not appreciated the evidence placed on record by the plaintiff in its proper 19 perspective and thereby the judgment and decree of the Court below have led to miscarriage of justice.
4. I have heard the arguments addressed by the plaintiff-party-in-person and learned counsel for the defendants. Perused the records secured from the Court below.
5. The plaintiff-appellant party-in-person would submit that the trial Court has not appreciated the evidence placed on record by him in its proper perspective, the trial Court has wrongly recorded a finding that the plaintiff failed to prove that he is the owner in actual possession and enjoyment of schedule property measuring 11.5 guntas of land out of Sy.No.53 despite the production of the sale deed, the trial Court has also committed an error in coming to the conclusion that the defendants have been able to establish their possession and enjoyment over the schedule properties as on the date of filing of the suit without therebeing any sufficient and acceptable evidence and thereby the 20 judgment and decree passed by the Court below have led to miscarriage of justice and hence, the plaintiff- appellant has sought to set aside the judgment and decree whereby suit filed by him came to be dismissed and the suits filed by the defendants came to be decreed.
6. On the other hand, learned counsel appearing for the defendants would contend that the trial Court upon proper appreciation of the evidence placed on record by the plaintiff and the defendants has rightly recorded a finding that the vendor of the plaintiff had no right, title or interest over any portion of the Sy.No.53 since the second wife Puttamma sold 34 guntas of land by sale deed dated 04.11.1971, much earlier to the execution of the sale deed in favour of plaintiff by the wife and children of Munikrishnappa. He also submitted that the defendants purchased schedule property shown in their respective plaints from the erstwhile owner K.M. Muniyappa who was the owner of 21 34 guntas of land wherein he formed a layout and sold the sites to the defendants by registered sale deed for valuable consideration on different dates and they were put in possession of the sites as on the date of sale deed itself and the plaintiff without therebeing any right, title or interest over the properties purchased by the defendants trying to interfere with their peaceful possession and enjoyment under the guise of concocted sale deed executed in his favour by the wife and children of Munikrishnappa, that there is no merit in the appeals filed by the plaintiff-appellant and hence, the respondents-defendants have sought for dismissal of all the appeals filed by the plaintiff-appellant.
7. Upon hearing the submission made by both the plaintiff-party-in-person and Sri. Venkat Reddy, learned Senior counsel for the respondents-defendants and upon consideration of the entire material on record, the following points would arise for my determination: 22
1) Whether the finding recorded by the Court below that the plaintiff failed to prove his title and possession over the schedule property is sustainable in law?
2) Whether the finding recorded by the trial Court that the defendants who are plaintiffs in O.S.Nos.5323/2004, 5324/2004, 5325/2004 and 5335/2004 have been able to establish their possession over the schedule properties shown in the respective suits and thereby they are entitled for a decree of injunction is proper?
3) What order? Point Nos.1 and 2.
8. Both the points for consideration are taken up together as they are interlinked to each other since the plaintiff as well as defendants are claiming right over the portion of Sy.No.53 of Kammagondanahalli village. The case of the plaintiff is that he purchased 11.5 guntas of land out of Sy.No.53 of Kammagondanahalli village from its erstwhile owner 23 Smt. Yeshodamma and her three sons namely M. Venkatesh, M. Shanthakumar and M. Gangadhar, the legal representatives of Munikrishnappa, one of the sons of Mestri Muniswamappa from his second wife-
Puttamma by a registered sale deed Ex.P-6 dated 30.09.2000 and eversince then, he is in possession and enjoyment of the schedule property shown in the plaint. Whereas, it is the case of the defendants who have also filed separate suits for a decree of permanent injunction against the plaintiff and his vendor Yeshodamma and her three sons that they purchased various sites in Sy.No.53 from one K.M. Muniyappa, the son of Mestri Muniswamappa from his first wife Nanjamma through his power of attorney holder G.Sahadevan by registered sale deeds and eversince the date of the purchase, they are in actual possession and enjoyment of the sites purchased by them and since the plaintiff made an attempt to interfere and disturb their peaceful possession and enjoyment, they filed suits for decree of injunction.
24
9. In order to establish his case, the plaintiff got examined himself as PW-1, who in turn has reiterated the case made out by him in his plaint apart from producing as many as 14 documents marked as Exs.P-1 to P-14. Similarly, defendants examined defendant No.3-A. Afroz as DW-1, defendant No.4-J.V. Krishnamurthy as DW-2 and relied upon as many as 57 documents marked as Exs.D-1 to D-57. Thus, from the pleading of the parties it seems that there is rival claim in respect of very same properties by the plaintiff on the one hand and the defendants on the other hand. Therefore, it is necessary to go into the origin of Sy.No.53 area 1 acre 34 guntas out of which both the plaintiff and defendant Nos. 1 to 4 are claiming right. It is not in dispute that one Mestri Muniswamappa was the original owner of Sy.No.53 totally measuring 1 acre 34 guntas out of which 4 guntas is Karab land. It is also not in dispute that Mestri Muniswamappa had two wives namely Nanjamma, his first wife and Puttamma, 25 his second wife. He had a son by name K.M. Muniyappa from his first wife Nanjamma and three sons namely Shamanna, Aswathappa and Munikrishnappa from his second wife-Puttamma. Munikrishnappa died on 19.09 1975 leaving behind his wife Yeshodamma and three sons namely M. Venkatesh, M.Gangadhar and M. Shantha Kumar. The learned counsel appearing for the defendants would submit that there had been partition of Sy.No.53 between 2 wives of Mestri Muniswamappa and in the partition, Nanjamma acquired 34 guntas of land and Puttamma acquired 34 guntas of land. But, there is no document to substantiate the same. Nor the plaintiff admits the same.
10. If we go through the RTC extract of Sy.No.53 right from the year 1971 to 2006 which are produced by the defendants as per Ex.D-3 series, it is evident that one Thulasamma purchased 34 guntas of land from Shammanna and Munikrishnappa by a registered sale deed dated 04.11.1971 which has been produced as 26 additional evidence along with I.A.No.1/2014 an application under Order 41 Rule 27 of CPC. Since the said sale deed is indispensable for the just decision in this case, there is no impediment to admit the same in evidence. After all, it is a registered sale deed and therefore, a public document. The plaintiff and Smt. Yeshodamma, wife of Munikrishnappa deliberately suppressed the said document for the reason best known to them. It is suffice to say that since Thulasamma purchased 34 guntas of land by a registered sale deed dated 04.11.1971 from Shamanna and Munikrishnappa, two sons of Mestri Muniswamappa, her name came to be entered in the record of right for an area of 34 guntas of land out of Sy.No.53. If we look at the record of right extracts for the year 2005-06, the name of Thulasamma is shown for 34 guntas and the name of K.M. Muniyappa is shown for remaining 34 guntas of land. Even if it is presumed for a while that there had been no oral partition between the two wives of Mestri 27 Muniswamappa, since Mestri Muniswamappa left behind four sons from his both wives namely Shamanna, Ashwathappa, Munikrishnappa and K.M. Muniyappa, all of them are entitled for 17.5 guntas of land each in Sy.No.53. Accordingly, Munikrishnappa also got 17.5 guntas of land which he sold to T.V. Bhaskar Rao under a registered sale deed Ex.P-1 dated 19.11.1966 clearly specifying the boundaries of his 17.5 guntas of land sold to T.V. Bhaskar Rao as under:
"East - Government Forest.
West - land of Sheshappa, Muniyappa. North - land of M. Shamanna.
South - land of Shamanna."
T.V. Bhaskar Rao again sold the very same land to Munikrishnappa by a registered sale deed dated 16.01.1971 as per Ex.P-2 and by sale deed dated 04.11.1971, Shamanna and Munikrishnappa sold their share which totally comes to 35 guntas of land in Sy.No.53 to Thulasamma and thereby Thulasamma became the owner of 35 guntas of land. But, in the 28 record of right, it is shown that Thulasamma is the owner of 34 guntas of land. Thus, no land in Sy.No.53 had been left behind out of his share by Munikrishnappa to his wife Yeshodamma and three sons. When Munikrishnappa had not left behind even an inch of land of his share to his legal heirs i.e., Yeshodamma the wife and three sons namely M.Venkatesh, M. Gangadhar and M.Shanthakumar, the question of their selling any land in Sy.No.53 in favour of the plaintiff much less 11.5 guntas does not arise. Even then, they executed the registered sale deed dated 30.09.2000 as per Ex.P-6 in favour of the plaintiff. It is needless to say that the sale deed executed in favour of the plaintiff as per Ex.P6 is a concocted document under which the plaintiff cannot derive any right, title or interest over the properties shown in the schedule to the said sale deed. Even, if it is recited in Ex.P-6 that the possession has been delivered in favour of the plaintiff, the said recital has no meaning at all since there was no land available to Yeshodamma and her sons so as to 29 execute a sale deed in favour of the plaintiff. Not only that, after execution of Ex.P-6-sale deed in favour of plaintiff, the wife and sons of Munikrishnappa executed as many as five sale deeds marked as Exs.D-5 to D-9 dated 11.08.2003 in favour of D. Hebu, dated 24.01.2004 in favour of Thirupalamma, dated 15.11.2001 in favour of K.Thirupathi, dated 24.12.2003 in favour of M. Madhavan, dated 08.09.2003 in favour of Hemavathi in respect of sites said to have been formed by them in Sy.No.53. But, the plaintiff has not made all these aforesaid purchasers of sites in Sy.No.53 from Yeshodamma and her three sons as parties to the suits. Thus, any amount of evidence produced by the plaintiff will not help him to seek a declaration and permanent injunction unless he has been able to establish that his vendor Yeshodamma and her three sons had right to execute sale deed in favour of plaintiff as per Ex.P-6 which the plaintiff completely failed to prove. Unless the plaintiff establishes his right over the 30 17.5 guntas of land, he cannot restrain the defendants by a decree of injunction.
11. Whatever land left behind in Sy.No.53 is of the ownership of either K.M. Muniyappa or another son of Mestri Muniswamappa by name Ashwathappa. It is the case of the defendants that K.M. Muniyappa formed a layout in 34 guntas of land in Sy.No.53, he formed various sites in Sy.No.53 and K.M. Muniyappa and his sons through their power of attorney holder G. Sahadevan sold the site Nos.2, 3 and 4 to defendant No.1, site Nos.5, 6 and 7 to defendant No.2, site No.1 to defendant No.3 and site Nos.8, 9 and 10 to defendant No.4 by registered sale deeds marked as Exs.D-19 and D-20. Defendant Nos.1 and 2 have produced self declaration assessment register extract for the year 2003-04, 2004-05 marked as Exs.D-51, D-52, D-53 and D-54 in respect of site Nos.2, 3 and 4. Similarly defendant No.1 produced encumbrance certificates for the period from 01.04.1999 to 12.04.2004 as per Ex.D- 31
57. Similarly defendant No.2 produced self declaration assessment register extract for the aforesaid year as per Exs.D-38 and D-39, tax paid receipts as per Exs.D-42, D-43 and encumbrance certificate as per Ex.D-44. All these documents produced by the defendants are sufficient to show their possession and enjoyment of the schedule property shown in their respective suits as on the date of filing suits. Though the plaintiff has contended that the defendants have not produced necessary evidence to show their ownership or possession over the schedule property shown in their respective suits, it is not open for the plaintiff to contend the same for the reason that the plaintiff is in noway concerned to Sy.No.53. He is neither the owner nor in possession of even an inch of land in Sy.No.53. If at all, it is for the Ashwathappa to challenge the alienation of the sites made in favour of defendant Nos.1 to 4 by K.M. Muniyappa and sons, if it exceeds more than 17.5 guntas of land. Even otherwise, from the oral evidence of the plaintiff who has been examined as PW- 32 1, it is evident that without going into the necessary documents and without making proper enquiry, the plaintiff purchased 11.5 guntas of land from legal heirs of Munikrishnappa though the vendor had no right to sell 11.5 guntas of land in favour of the plaintiff, as Munikrishnappa had long back as on 04.11.1971 sold his entire share in Sy.No.53 to Thulasamma who is owner in possession of 34 guntas of land in Sy.No.53. Thus, the trial Court on proper appreciation of evidence placed on record by the plaintiff as well as the defendants has rightly recorded a finding that the plaintiff failed to prove his ownership and possession over the schedule property which resulted in the dismissal of the suit. At the same time, the trial Court based on the evidence placed on record rightly recorded a finding that the defendants who have filed four other suits have been able to establish their possession over the schedule property shown in their respective suits which resulted in a decree in favour of plaintiff in O.S.Nos.5323/2004, 5324/2004, 5325/2004 and 33 5335/2004 who are defendant Nos.1 to 4 in O.S.No.2495/2006. On re-appreciation of the entire evidence, I am fully in agreement with the conclusion arrived at by the Court below. I do no find any merit in all the appeals filed by the appellant. Hence, I proceed to pass the following order.
R.F.A.Nos.660/2009, 722/2009, 723/2009, 724/2009 and 725/2009 are dismissed.
Sd/-
JUDGE PMR