Karnataka High Court
Sri Lingayya vs Kishangopal on 22 July, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
RSA No.2348/2007
BETWEEN:
SRI. LINGAYYA S/O DODDA BASSYYA
(ADOPTIVE FATHER SIDDAYYA)
AGED ABOUT 46 YEARS,
OCC: BUSINESS,
R/O KEMBHAVI VILLAGE,
TQ. SHORAPUR-585224.
SINCE DEAD BY L'Rs.
SHANTAWWA W/O LINGAYYA,
AGED ABOUT 40 YEARS,
OCC: HOUSE WIFE
SINCE DECEASED
1. MAHESH S/O LINGAYYA,
AGED ABOUT 36 YEARS,
OCC: BUSINESS AND AGRICULTURE,
2. MAHANTESH S/O LINGAYYA,
AGED ABOUT 30 YEARS,
OCC: BUSINESS & AGRICULTURE,
BOTH ARE RESIDENTS OF KEMBHAVI VILLAGE,
TQ: SHORAPUR-585224, DIST: GULBARGA.
... APPELLANTS
(BY SRI. V.K.NAIK, ADVOCATE)
2
AND:
KISHANGOPAL S/O BADRINARAYAN,
AGE: MAJOR, OCC: BUSINESS,
R/O KEMBHAVI VILLAGE,
TQ: SHORAPUR-585224.
DIST: GULBARGA.
... RESPONDENT
(BY SRI. CHAITANYA KUMAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 25.01.2007 PASSED IN
O.S.NO.174/1988 ON FILE OF THE CIVIL JUDGE (JR.DN.)
SHORAPUR, AT SHORAPUR, GULBARGA DISTRICT AND SET
ASIDE THE JUDGMENT AND DECREE DATED 04.07.2007
PASSED IN R.A.NO.13/2007 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) AT SHORAPUR, GULBARGA DISTRICT AND
ALLOW THIS REGULAR SECOND APPEAL WITH COSTS
THROUGHOUT; AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 12.07.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 100 of Civil Procedure Code, 1908 ('CPC' for short) challenging the judgment and decree dated 25.01.2007 passed by the Civil Judge (Jr.Dn.), Shorapur ('trial Court' for short) in OS. No.174/1988, decreeing the suit of the plaintiff for 3 possession, which was confirmed by the Civil Judge (Sr.Dn.), Shorapur ('First Appellate Court' for short) in RA No.13/2007 vide judgment and decree dated 04.07.2007.
2. For the sake of conveyance, the parties herein are referred with the ranks occupied by them before the trial Court.
3. The brief facts leading to the case are as under:
The plaintiff has filed a suit seeking possession of the suit schedule properties by demolishing temporary shed erected by the defendant on the suit schedule property and also sought for mesne profits. It is the case of the plaintiff that, he is the absolute owner of the Plot No.2-62 (Old No.2-11) measuring 30ft.x16ft. situated at Kembhavi, Shorapur Taluk with the boundaries as referred in the schedule. He asserts that he has purchased the suit schedule property from one Gurayya for a consideration of Rs.1,000/- under registered sale deed dated 10.10.1973. 4 It is further asserted that, after purchase, his name was mutated in the record of rights and he was in possession and enjoyment of the suit schedule property till December 1984. He further asserted that, in last week of December 1984, when he was out of station, the defendant illegally occupied the suit plot and put-up a temporary shed thereon, without obtaining permission from the Panchayat. He further asserted that, defendant is running hotel in the suit shed and he requested the defendant to vacate and hand-over the possession of the suit schedule property. The defendant did not do so. He further asserts that the defendant has no right, title or interest in the suit schedule property and hence, he filed the suit for possession and mesne profits.
4. In pursuance of the suit summons, the defendants appeared before the trial Court and filed written statement denying the claim of the plaintiff over the suit property. According to the defendant, the suit plot No.2-62 measuring 30 feet x 16 feet does not exist in the 5 village and more particularly on the spot. He further asserts that the vendor of the plaintiff Gurayya was not the owner in possession of the suit property and there are no documents to show the title of Gurayya and as such, he cannot pass any better title in favour of the plaintiff. It is contended that the sale deed in respect of the suit property is sham, bogus and it is a nominal and formal sale deed and as such, it does not create any right, title or interest in favour of the plaintiff. It is also asserted that, in respect of the suit plot, mutation was got entered in plaintiff's name, in collusion with the panchayat authority. He asserted that, he is in actual possession of the plot and he is running a hotel on it and as such, he disputed the title of the plaintiff and has sought for dismissal of the suit.
5. Initially the suit was dismissed and regular appeal was also dismissed. However, in RSA No.324/2003, both the judgments and decree were set aside and the matter was remanded back to the trial Court for fresh disposal.
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6. After remand, the learned Civil Judge vide judgment dated 25.01.2007 has decreed the suit of the plaintiff with costs. Being aggrieved by this judgment and decree, the defendant has filed RA No.13/2007 on the file of the Senior Civil Judge, Shorapur and the learned Senior Civil Judge, by judgment dated 04.07.2007 dismissed the appeal by confirming the judgment and decree passed by the trial Court.
7. Being aggrieved by the concurrent findings of the both the Courts below, the appellant/defendant has filed this appeal under Section 100 of CPC.
8. Heard the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff. Perused the records.
9. Learned counsel for the appellants/defendants would contend that the plaintiff has filed the suit for possession based on title and however both the Courts 7 below have casted burden on the defendants against the settled principles of law. It is also contended that, according to the plaintiff, Gurayya sold the property in his favour in 1973 and the defendant occupied it in 1984. However, the defendant has disputed the title of the plaintiff as well as the owner Gurayya and claimed title over the suit schedule property. It is contended that, according to the plaintiff, the panchayat has allotted the suit schedule property to Gurayya. But, no documents are forthcoming to substantiate the said aspect that the suit property was allotted to Gurayya and also what was the source of title of Gurayya is not at all forthcoming. But, in the evidence, a different story was put-forward that one Gundamma was the owner. It is contended that, when the plaintiff is seeking possession based on title, he is required to seek declaration of his title on the suit property and without seeking declaration, the suit is not maintainable. He would also contend that, as to what is the base for the trial Court to come to the conclusion that Gurayya is the 8 owner, is not at all forthcoming and on the contrary, both the Courts below have casted burden on the defendant to prove his title forgetting that the plaintiff has approached the Court and he is required to prove his case. He would also contend that the approach of both the Courts below is erroneous and it has led to miscarriage of justice. Hence, he would seek for allowing the appeal by setting aside the impugned judgments passed by both the Courts below.
10. Per contra, the learned counsel for the respondent/plaintiff would support the judgment and decree passed by the Courts below. He would contend that the defendant has no title over the suit schedule property and there is no cloud on the title of the plaintiff so as to claim declaration. It is contended that on the basis of the sale deed the plaintiff has acquired his title and when there is no cloud over the title of the plaintiff, then there is no question of he seeking declaration. Hence, he would seek for dismissal of the appeal. 9
11. Having heard the arguments and perusing the records, this Court on 04.10.2007, while admitting the appeal, has framed the following substantial questions of law:
i) Whether the Courts below were justified in law in decreeing the suit of the plaintiff for possession in the absence of prayer for declaration?
ii) Whether the Courts below are justified in law in holding that the plaintiff is the owner of the suit schedule property?
12. The plaintiff is claiming possession of the suit schedule property bearing No.2-62 (Old No.2-11) situated in Kembhavi Village, Shorapur Taluk and for mesne profits. According to the plaintiff, the suit property is measuring 13ft.x 16 ft., with following boundaries:
East : Open space and Samadi of Malleshayya West : Govt. Hudi.
North : Public way South: Shanargouda's Doddi (now purchased by plaintiff) 10
13. According to the plaintiff, he has purchased the suit property from one Gurayya under the registered sale deed dated 10.10.1973 for a consideration of Rs.1,000/- and the sale deed is marked at Ex.P3. However, the defendant has denied the very existence of the suit property with specific boundaries, as alleged by the plaintiff at the spot. There is no dispute of the fact that the defendant is running a hotel in the suit schedule property.
14. At the out-set, it is important to note here that the plaintiff is claiming possession over the suit schedule property based on title. Hence, it is evident that, he is not claiming possession on the basis of earlier possession and his suit does not fall under Section-6 of the Specific Relief Act. When the plaintiff is claiming possession based on title, it is his initial duty to prove his title over the suit schedule property. Interestingly, the plaintiff has not sought any declaratory relief pertaining to his title over the suit schedule property. But, the trial Court and the First 11 Appellate Court have observed that the defendant has failed to prove his title and on the basis of preponderance of probabilities the case of plaintiff is betterly situated. This observation is completely erroneous. It is to be noted here that it is the plaintiff, who has approached the Court seeking specific relief of possession based on title. Therefore, he is required to prove his title over the suit schedule property and earlier possession and as well as dispossession. He cannot take any advantage of the weakness of the defendant in proving his title. The defendant is at liberty to take inconsistent stands and merely because the defendant has failed to substantiate his defence, the presumption cannot be drawn that the plaintiff has established his case by proving his title.
15. Ex.P3 is the sale deed. But, on perusal of Ex.P3, it is evident that, it does not bear any specific property number. Though DW.3 in his cross-examination admits the plaintiff's ownership and possession over the property, his admission does not prove plaintiff's title, as it 12 is for the plaintiff to substantiate his contention. Admittedly, in the sale deed there is no reference of property number. No doubt, the boundaries referred in the sale deed as well as in the schedule of the suit does tally. But, the burden is on the plaintiff to establish that the sale deed was pertaining to suit property and that his vendor Gurayya had a salable title so as to convey the same in favour of the plaintiff. It is also important to note here that the sale deed was executed in the year 1973. The name of the plaintiff was not mutated for nearly 10 years in respect of the suit schedule property and no explanation is offered in this regard.
16. Under Ex.P3, the said Gurayya has executed two sale deeds. One with reference to Plot No.1 measuring 30'x18' and another in respect of the Plot No.2 measuring 30'x16'. Now, it is asserted that Plot No.2 is the suit schedule property. However, the defendant has disputed the very existence of the suit schedule property with specific measurement as alleged by the plaintiff. 13 Admittedly, there is no property number mentioned in the sale deed. It is contended that, during said period, the property numbers were not given by the panchayat, but, to substantiate his contention, the plaintiff has not produced any document issued by the panchayat. Apart from that, except Ex.P3 no other document is produced to show that the vendor of the plaintiff Gurayya was the owner in possession of the suit schedule property. Hence, the burden is on the plaintiff to establish that his vendor had salable title. But, that itself is missing in the instant case.
17. Further, it is also relevant to consider Ex.D3 and Ex.D4. Ex.D4 is the certificate issued by the panchayat at the request of the defendant, wherein it is stated that Gurayya i.e., the vendor of the plaintiff was not having any property in his name between 1970-71 to 1980-81 as per the records available in the panchayat office. Ex.P6 is relied to show that, as on the date of purchase of the property by the plaintiff, no number is given to the suit 14 property in respect of the plaintiff and subsequently, panchayat number was given. But, it is the resolution and as such, there should be some order of the panchayat or Government in this regard. But, that was not produced.
18. Interestingly, in the cross-examination, DW.1 has admitted that the suit property was standing in the name of one Gundamma. But, even if it is admitted that the suit property was owned by Gundamma, as to how said Gurayya is concerned with Gundamma, is not forthcoming. There is no evidence to prove that Gundamma transferred the property in favour of Gurayya. But, a new defence is put-forwarded that the Panchayat has granted property to Gurayya. But, no such evidence is forthcoming. On the contrary, Ex.D3 and Ex.D4 disclose that Gurauyya was not possessing any property of panchayat and as such question of granting property in favour of Gurayya by the panchayat during the period between 1970 and 1980 is ruled-out. The claim of the plaintiff is that, he purchased the suit property in the year 15 1973. But, Ex.D3 and Ex.D4 disclose that Gurayya was not owning any property during this period. Under such circumstances, the claim of the plaintiff that, he is the owner of the suit property, holds no water at all.
19. Both the Courts below have casted the burden on the defendant to prove his title, rather than casting the burden on the plaintiff and this approach is erroneous, as it is to be noted here that the plaintiff has approached the Court and as such, he is required to prove his case and he should stand or fall on his own feet.
20. The learned counsel for the respondent/plaintiff has relied on a decision of the Hon'ble Apex Court reported in Civil Appeal No.4788/2008 (arising out of SLP (C) No.23232/2007[Kurella Naga Druva Vudaya Bhaskara Rao Vs. GallaJani Kamma Alias Nacharamma] decided on 04.08.2008. But, the facts and circumstances of the said case are entirely different. In the said case, the title of the plaintiff was undisputed 16 and defence was put-forward regarding adverse possession. The acquisition of title in the said case was admitted and hence, the principles enunciated in the above cited decision will not come to the aid of the respondent/plaintiff in any way.
21. Learned counsel for the appellant in this context, has placed reliance on a decision reported in 1989 Supp (2) SCC 758 [Bhavanagar Municipality Vs. Union of India and Another]. But, the facts and circumstances of the said case are entirely different, as in the said case, Article 65 of the Limitation Act, 1963 is a relevant issue and this issue is not raised in the instant case. Hence, the said principles will not come to the aid of the appellant/defendant in any way. He further placed on reliance on a decision reported in (2009) 14 SCC 224 [ T.K. Mohammed Abubucker (DEAD) Through LRs and Others Vs. P.S.M. Ahmed Abdul Khader and others]. In the said decision, the Hon'ble Apex Court has held that, when neither vendor nor his ancestors acquired 17 suit property under any deed of conveyance, then it is necessary for the plaintiff to establish vendor's title to the suit property for continuous period of 12 years for at least to prove the acquisition of title by adverse possession. Admittedly, in the instant case, the title of the vendor is not at all established and no document has been produced to substantiate the said claim. Hence, the said principles are directly applicable to case in hand and in the absence of proving title of the vendor of the plaintiff, the plaintiff must fail.
22. Learned counsel has further placed reliance on a decision of Hon'ble Apex Court reported in (2019)7 SCC 76 [Sopanrao and Another Vs. Syed Mehmood and Others], wherein in Para-9, it is clearly held that, in the suit filed for possession based on title, the plaintiff is bound to prove his title and pray for declaration that he is the owner of the suit land because, his suit is based on title and he cannot succeed unless he is held to have some title over the land. But admittedly, in the instant 18 case, no relief of declaration of title is sought and as such, the suit itself is misconceived and not at all maintainable.
23. Learned counsel appellant has further placed reliance on a decisions reported in 1982 SCC Online Pat.14 [Ram Swaroop Singh and others Vs. Badri Narain Singh and others]. He has also relied on a decision reported in (2014) 2 SCC 269 [Union of India and others Vs. Vasavi Co-operative Housing Society Limited and others], wherein it is observed reiterating that, the burden is on the plaintiff to establish his case irrespective of whether defendants prove their case or not and in the absence of establishment of his own title, the plaintiff must be non-suited even if title set-up by defendants is found against them. Further, it is specifically observed that, the weakness of case set-up by defendants cannot be a ground to grant relief to plaintiff. The said principles directly applicable to the case in hand, as in the instant case, the plaintiff has failed to establish either his title or the title of his vendor. Further the 19 source of title of vendor itself is not secured and mere entry in revenue records subsequent to the sale deed, does not confer any title in favour of the plaintiff.
24. The learned counsel has also placed reliance on an unreported decision of the Hon'ble Apex Court in Civil Appeal No. 4816/2016 [arising out of SLP (Civil) No.13076/2007] decided 05.05.2016 in the case of Muddasani Venkata Narsaiah (D) Th. Lrs. Vs. Muddasani Sarojana and relying on Para No.11 has argued that, when there is no serious cloud-over the title of the plaintiff, so as to force him to seek the relief for declaration of title, the suit for possession is maintainable. But, it is to be noted here that the said principles are applicable only when there is no serious cloud over the title of the plaintiff. But, in the instant case, serious cloud is raised on the title of the plaintiff and as well as of his vendor itself. When the vendor has no title over the suit property, he cannot convey any better title in favour of the plaintiff in any way.
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25. Further, the learned counsel for the appellant has relied on a decision Madras High Court reported in 2014 SCC Online Mad 8973[Kuppusamy Udayar (Died) by LRs. Etc. Vs. E.Ayyasamy Udayar], wherein it is held that, in a suit for possession based on title, when the defendant disputes the title of the plaintiff, unless the plaintiff establishes his title over the suit schedule property, he cannot get recovery decree for recovery of possession or mandatory injunction and suit for recovery of possession without seeking declaratory title, is not at all maintainable. The decision of the Hon'ble Apex Court is reiterated in the said decision and hence, when there is serious cloud is shrouded over the title of the plaintiff as well as his vendor, it was incumbent on the part of the plaintiff to seek declaratory relief and at least, he could have made some efforts to prove his title. But, merely on the ground that there are certain admissions on the part of DW.3, the title of the plaintiff cannot be presumed to be proved.
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26. Admittedly, the revenue entries are not the documents of title and there is no material evidence to prove that the suit property was earlier mutated in the name of the vendor of the plaintiff at any point of time. The First Appellate Court has considered that, the case of the plaintiff is more probable than that of defendant, which is an erroneous observation, as the plaintiff has approached the Court and as such, he must succeed or fail on his own pleading. Hence, he cannot take advantage of the weakness of the defendant and there is no material evidence to show that Gurayya was the owner of the suit schedule property and Ex.D3 and Ex.D4 completely demolish the story of the plaintiff. Under these circumstances, when the plaintiff has failed to establish his title over the suit schedule property, question of he seeking the relief of possession does not arise at all. Further, in view of the decisions cited supra, when there is serious challenge over the title of the plaintiff as well as his vendor, the plaintiff is required to seek for relief of 22 declaration of his title. But, he did not venture to do so and his evidence discloses that, inconsistent stands were taken. Under these circumstances, both the Courts below are not justified in decreeing the suit of the plaintiff for possession in the absence of prayer of declaration and also erred in holding that the plaintiff is the owner of the suit property without there being any relief of declaration and in the absence of any material evidence to prove title of the plaintiff.
27. Under these circumstances, both substantial questions of law are answered in the negative and as such, both the courts below have committed serious error and hence, the judgment and decree passed by both the courts below suffer from illegality and infirmity and it has caused prejudice to the right of the defendant and hence, it calls for interference by this Court. Therefore, the appeal needs to be allowed. Accordingly, I proceed to pass the following:
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ORDER
i) The appeal is allowed.
ii) the judgment and decree dated 04.07.2007 passed by the Civil Judge (Sr.Dn.) at Shorapur in RA No.13/2007, confirming the judgment and decree dated 25.01.2007 passed by Civil Judge (Jr.Dn.) at Shorapur in OS No.174/1988, are set aside.
iii) The suit filed by the plaintiff in OS No.174/1988 before the Civil Judge (Jr.Dn.), Shorapur, stands dismissed.
No order as to costs.
Sd/-
JUDGE KGR*