Karnataka High Court
Fakkirappa H Shelennavar vs Shaila W/O Vittappagouda Sardesai on 27 September, 2023
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NC: 2023:KHC-D:11455-DB
RFA No. 100043 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100043 OF 2015 (DEC/INJ-)
BETWEEN:
FAKKIRAPPA, S/O. HANUMANTAPPA SHELENNAVAR,
AGE: 45 YEARS, OCC: AGRICULTURIST,
R/O: NAVALGUND, DIST: DHARWAD.
R/BY HIS BROTHER AND GPA HOLDER,
SRI. MANJUNATH H SHELENNAVAR.
APPELLANT
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. SMT. SHAILA W/O. VITHAPPAGOUDA SARDESAI,
AGE: 49 YEARS, OCC: HOUSEHOLD,
2. SMT. SHAKUNTALA W/O. NAGARAJ SARDESAI,
AGE: 52 YEARS, OCC: HOUSEHOLD,
3. SMT. RATNA W/O. DEVARAJ SARDESAI,
AGE: 44 YEARS, OCC: HOUSEHOLD,
VINAYAKA
(ALL ARE R/O: NAVALGUND,
BV DIST: DHARWAD).
Digitally signed RAJASHEKAR S/O. SIDDAPPA HEBBALLI,
by VINAYAKA B V
(SINCE DECEASED BY HIS LRS)
Date: 2023.10.06
17:03:03 +0530
4.(A) SMT. BANNAVVA W/O. RAJSHEKAR HEBBALLI,
AGE: 61 YEARS, OCC: HOUSEHOLD,
4.(B) SRI. PRAKASH S/O. RAJSHEKAR HEBBALLI,
AGE: 43 YEARS, OCC: PVT. JOB,
4.(C) AJIT S/O. RAJSHEKAR HEBBALLI,
AGE: 41 YEARS, OCC: PVT. JOB.,
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NC: 2023:KHC-D:11455-DB
RFA No. 100043 of 2015
4.(D) ASHA D/O. RAJSHEKAR HEBBALLI,
AGE: 38 YEARS, OCC: HOUSEHOLD,
(ALL ARE RESIDENT OF GHANTIKERIONI
HUBBALLI, DIST: DHARWAD)
5. SRI. VASANT S/O. SIDDAPPA HEBBALLI,
(SINCE DECEASED BY HIS LRS)
5.(A) RAMU S/O. VASANT HEBBALLI,
AGE: 41 YEARS, OCC: PVT. JOB.,
R/O: RAGHAVENDRA CIRCLE, 2ND CROSS,
NEKAR NAGAR, OLD HUBBALLI,
DT: DHARWAD.
5.(B) GEETA W/O. ASHOK NELAGUDDA,
AGE: 42 YEARS, OCC: PVT. JOB.,
R/O: RAGHAVENDRA CIRCLE, 2ND CROSS,
NEKAR NAGAR, OLD HUBBALLI,
DT: DHARWAD.
6. M.K. KULKARNI,
AGE: 49 YEARS, OCC: SERVICE,
PRESENTLY RESIDNG AT
SUB-REGISTRAR OFFICE, NAVALGUND.
...RESPONDENTS
(BY SRI. RAVI S. BALIKAI, ADVOCATE FOR R1 TO R3,
NOTICE TO R4(A) AND R5(B) SERVED,
NOTICE TO R4(B) TO (D) AND R5(A) HELD SUFFICIENT,
APPEAL AGAINST R6 DISMISSED)
THIS RFA IS FILED UNDER SEC. 96 R/W ORDER 41 RULE 1
AND 2 OF CPC. 1908, AGAINST THE JUDGMENT AND DECREE DAT:
09.12.2014 PASSED IN O.S.NO. 177/2011 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND CJM., DHARWAD, SITTING
AT NAVALGUND, DECREEING THE SUIT FILED FOR DECLARATION
AND INJUNCTION & ETC.
THIS RFA HAVING BEEN HEARD RESERVED ON 30.08.2023,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:11455-DB
RFA No. 100043 of 2015
JUDGMENT
The first defendant in O.S. No. 177/2011 on the file of First Addl. Sr. Civil Judge, Dharwad, sitting at Navalagund, is the appellant. Respondents 1 to 3 were the plaintiffs in the suit and the fourth and the fifth respondents (since deceased) were defendant nos.2 and 3 respectively. The sixth respondent is the Sub Registrar of Navalagund, he was made fourth defendant in the suit.
2. The plaintiffs' sought a declaration that the sale deeds dated 01.02.2011 and 04.02.2011 executed by defendant nos.2 and 3 in favour of the first defendant do not bind their interest as they are null and void. They also claimed incidental relief of permanent injunction to restrain the defendants from interfering with their possession. The subject matter of the suit consists of two properties, 7 acres 14 guntas situate on the western side of 11 acres of land on the western side of total extent of 22 acres 32 guntas in Re. Sy. No. 65 of Belavataki village, Navalagund taluk and 22 acres 31 guntas in Sy. No. 66 of the same village. These lands, i.e., suit property, earlier belonged to one Devakka wife of Siddappa Hebballi and she -4- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 sold the same to the plaintiffs by executing a registered sale deed on 15.02.2006. The first defendant instituted a suit O.S. No. 68/2006 in the court of Sr. Civil Judge, Dharwad in respect of the suit property and obtained an order of statusquo. When the plaintiffs made an application to the Tahasildar, Navalagund seeking mutation of the revenue records of the suit property to their names, the first defendant objected to it, but the Tahasildar rejected his objection and passed an order on 14.08.2006 to enter the names of the plaintiffs. The first defendant appealed to the Assistant Commissioner challenging the Tahasildar's order. The Assistant Commissioner disposed of the appeal with a direction that the parties would be bound by the judgment in O.S. No. 68/2006. The plaintiffs went in revision before the Deputy Commissioner, Dharwad, which was still pending at the time of suit.
3. In O.S. No. 68/2006, Devakka wife of Siddappa Hebballi was one of the defendants and after she filed the written statement in that suit, the first defendant being the plaintiff there filed seven interlocutory applications one of which was under Order VI Rule 17 CPC for amending the plaint in order to convert the suit for specific performance. But on 26.07.2011 -5- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 the first defendant filed a memo in his suit, O.S. No. 68/2006 and sought permission to withdraw it. The court passed an order on 01.08.2011 dismissing the suit as withdrawn. Later on the plaintiffs came to know that the name of the first plaintiff had been entered in the revenue records in respect of the suit property and further enquiry revealed that the first defendant had obtained two sale deeds from defendant nos.2 and 3 on 01.02.2011 and 04.02.2011. Hence they brought the suit.
4. The first defendant specifically contended in his written statement that Smt.Devakka being the original owner agreed to sell the suit property to him for a sale consideration of Rs.10 lakhs and to that effect executed an agreement of sale on 01.02.2006 receiving advance sale consideration of Rs.9,60,000/- and put him in possession of the suit property. When the agreement was in force, Devakka sold the suit property to the plaintiffs. He stated that those sale deeds did not bind his interest as they were bogus and void. Hence he had to file O.S. No 68/2006 seeking a declaration that the sale deeds did not bind his interest. During pendency of the suit Devakka died and defendant nos.2 and 3 who were her sons -6- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 were brought on record as legal representatives. They executed the sale deeds in favour of the first defendant in terms of the agreement dated 01.02.2006. Therefore the first defendant contended that the plaintiffs had no right to claim declaration in regard to the sale deeds executed in his favour. He also denied the plaintiffs' possession over the suit property.
5. The second and third defendants filed separate written statements contending commonly that they executed the sale deeds in favour of the first defendant in terms of the agreement dated 01.02.2006 executed by their mother- Devakka. They sought dismissal of the suit.
6. The trial court framed nine issues which are as follows:
1. Whether the plaintiffs prove that the sale deeds executed by defendants No.2 and 3 in favour of defendant No.1 on 01.02.2011 and 04.02.2011 in respect of suit properties are null and void, without any title and they are not binding on the plaintiffs?
2. Whether the plaintiffs prove their possession over the suit properties?
3. Whether the plaintiffs prove the alleged interference by the defendants?
4. Whether the defendant No.1 proves that the mother of the defendants No.2 and 3 has executed agreement of sale -7- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 dated 01.02.2006 in respect of land bearing Sy. No. 65 measuring 11 acres 32 guntas, Sy. No. 66 measuring 24 acres and Sy. No. 62 measuring 14 acres of Belavatagi village including the suit properties and handed over the vacant possession of the suit properties by receiving earnest money?
5. Whether the defendant No.1 proves that deceased Devakka i.e., mother of defendants No.2 and 3 has executed false sale deed in respect of land bearing Sy. No. 65 measuring 11 acres 32 guntas out of it 7 acres 14 guntas of Western side and land bearing Sy. No. 66 measuring 24 acres of Belavatagi in favour of plaintiffs nad the said sale deeds are not binding on him?
6. Whether the defendant No.1 proves that after the death of Devakka, her legal heirs i.e., defendants No.2 and 3 have executed the sale deed dated 01.02.2011 and 04.02.2011 in his favour as per the agreement of sale dated 01.02.2006 executed by Devakka?
7. Whether the defendant no.1 proves his possession over the suit properties?
8. Whether the plaintiffs prove that they are entitled for the reliefs sought for?
9. What order or decree?
7. The first plaintiff adduced evidence as PW1 and on behalf of the defendants, five witnesses DW1 to 5 adduced evidence. Exs.P.1 to P.24 are the documents marked on behalf of the plaintiffs and Exs.D.1 to 41 are the documents marked from the -8- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 defendants' side. The trial court decreed the suit of the plaintiffs recording the following findings. 7.1. Devakka was defendant no.1 in O.S. No. 68/2006. Therein she filed written statement stating that she had executed sale deeds in favour of Smt. Shaila, Smt. Shakuntala and Smt. Ratna who are the plaintiffs herein. Exs.P.1 to P.3 are the sale deeds produced by PW1. Exs.P.1 to P.3 bear the date 15.02.2006 whereas the sale deeds under which the first defendant claims right over the suit property were executed on 01.02.2011 and 04.02.2011. Ex.D.23 is the agreement of sale dated 01.02.2006 said to have been executed by Devakka in favour of the first defendant. Ex.P.10 is the certified copy of the vakalath executed by Devakka in relation to O.S. No. 68/2006 and Ex.P.11 is the summons served on Devakka in the said suit. The signatures found on Ex.P.10 and P.11 are not disputed and if those signatures are compared with the signature found on Ex.D.23, i.e., the agreement of sale, it can be very well said that the signature on the agreement does not tally with the admitted signatures on Ex.P.10 and P.11, there are a lot of differences between the admitted signatures and the disputed signature. In this view, a doubt would arise -9- NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 whether Devakka had really executed agreement of sale in favour of first defendant on 01.02.2006. Moreover, in the written statement filed by Devakka in O.S. No. 68/2006 she denied to have executed agreement of sale in favour of first defendant.
7.2. Execution of agreement of sale by Devakka in favour of the first defendant can be doubted for another reason. The stamp paper required for preparing the agreement was purchased in Dharwad on 31.01.2006, but she was a resident of Hubli and had her landed properties at Navalagund. A doubt would arise as to why she had to come to Dharwad for purchasing the stamp paper. More than that, the agreement does not contain the signature of the scribe. DW2 who is examined to prove that he was a witness to Ex.D.23 deposed very clearly that he did not know Devakka earlier and that he was introduced to her on the day when the agreement was executed. For this reason the evidence given by DW2 becomes doubtful.
7.3. Ex.D.23 shows that more than 50 acres of land comprised under three survey numbers was agreed to be sold by Devakka
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 to the first defendant for a consideration of Rs.10 lakhs. Three months time was fixed for completion of the sale transaction. Another recital in the agreement shows that Devakka handed over possession of the land agreed to be sold by her to the first defendant. But in Exs.D.24 and D.25, the sale deeds executed by the second and the third defendants in favour of the first defendant, it is stated that the possession of the lands sold were handed over to first defendant on the day when the sale deeds were executed. If really possession of the land which was the subject matter of the agreement was handed over to first defendant pursuant to the agreement, there was no need to state in the sale deeds that possession was handed over pursuant to the sale, and such a situation would not have arisen. Added to this, Ex.D.24 shows that 11 acres of land in sy. No. 65/1 was sold for a consideration of Rs.7,70,000/- and as per Ex.D.25, 22 acres 31 guntas in sy. No. 66 was sold for a consideration of Rs.15,95,000/-. The considerations thus shown in the sale deeds are not same as the consideration shown in the agreement Ex.D.23. Therefore the transactions of sale under Ex.D.24 and D.25 were independent of the agreement. But by the time Ex.D.24 and D.25 were executed,
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 Devakka was not alive. Defendants 2 and 3 do not dispute that the suit property belonged to their mother Devakka. When she had already sold the suit property to the plaintiffs by executing the sale deeds as per Exs.P.1 to P.3, the sale deeds executed by defendants 2 and 3 are invalid and do not confer any title on first defendant. Thus seen the agreement appears to have not been executed by Devakka and possession of the suit property could not have been handed over to the first defendant. 7.4. The second defendant who is none other than the son of Devakka was an attesting witness to Exs.P.1 to P.3. It appears that for this reason he himself did not execute the sale deeds Exs.D.24 and D.25 in favour of the first defendant, rather he appointed a power of attorney to execute the sale deeds on his behalf. He even chose not to appear before the court personally and DW1 was his power of attorney holder. Defendant no.3, another son of Devakka also did not appear before the court to adduce evidence and his evidence was recorded through court commissioner. All these circumstances clearly indicate that they were hesitant to appear before the court being aware of the truth. Thus seen, the sale deeds in favour of defendant no.1 do not stand in the eye of law.
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 Defendant no.1 is also not in possession of the suit property and hence the plaintiffs were entitled to the reliefs claimed by them.
8. We heard the arguments of Sri Dinesh M. Kulkarni, for the appellant and Sri Ravi S. Balikai, for the respondents 1 to
3. They filed synopsis of their arguments.
9. Sri Dinesh Kulkarni raised two points, firstly that the plaintiffs sought negative declaration, which cannot be granted and secondly that their suit for declaration without seeking the relief of possession was not maintainable. Elaborating on these two points, he argued that the plaintiffs should have sought declaration of title instead of seeking a declaration that the sale deeds dated 01.02.2011 and 04.02.2011 would not affect their interest. This kind of a relief was nothing but a negative declaration and hence the trial court should not have granted a decree to that effect. Then on the second point, he argued that Devakka delivered possession of the suit property when she executed an agreement in favour of the first defendant. On the day when the suit was filed the plaintiffs were not in
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 possession of the suit property and in this view a mere suit for declaration and permanent injunction was not maintainable.
10. In support of his argument he placed reliance on three rulings, namely, Kolte Patil Developers Limited, Navipeth District, Jalagaon, Maharastra Vs. NTI Housing Co- operative Society, Bangalore and another (2015 (2) Kar. L.J. 373); Ram Saran and another v. Smt. Ganga Devi (AIR 1972 SC 2685); and Poojari Puttaiah (by LRs) and others v. Kempaiah (ILR 1980 KAR 103).
11. Sri Ravi Balikai argued that the plaintiffs did not claim negative declaration, given a plain reading to the reliefs claimed by the plaintiffs would indicate that they just want a declaration that the sale deeds dated 01.02.2011 and 04.02.2011 did not bind their interest. Merely for the reason that it was a negative sentence, it cannot be understood that the plaintiffs claimed negative declaration. He further argued that the findings of the trial court with regard to validity of the agreement are so clear that it was the outcome of forgery and thereby the delivery of possession under the agreement to the first defendant would loose its significance. The plaintiffs were
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 in possession of the suit property on the day when the suit was filed. The trial court has also clearly held that there was no delivery of possession to the first defendant and it has found that the evidence given by the first defendant would clearly contradict the recitals in the two sale deeds in his favour. The proved facts clearly indicate that Devakka executed sale deeds in favour of the plaintiffs as per Exs.P.1 to P.3. In the written statement filed by her in connection with O.S. No. 68/2006, she denied to have executed an agreement in favour of the first defendant. Ex.P.7 is the certified copy of the written statement. If really defendant no.1 had obtained an agreement from Devakka, instead of filing a suit for declaration, he should have filed a suit for specific performance. O.S. No. 68/2006 was not a suit for specific performance and at a later stage defendant no.1 thought of converting that suit for specific performance. When the application filed under Order VI Rule 17 CPC by him for amending the plaint was still pending, himself withdrew the suit. All these circumstances clearly indicate that the first defendant cannot claim to be in possession of the suit property. The agreement that he relies upon was a forged one and the sale deeds could not have been
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 executed by defendants no.2 and 3 in favour of defendant no.1 as they were not the absolute owners. By the time the disputed sale deeds came into existence, suit property had already been sold in favour of the plaintiffs. The trial court has discussed the evidence in detail and rendered a reasoned judgment, which therefore cannot be set aside.
12. From the arguments advanced before us, the points that arise for discussion are:
I) Have the plaintiffs claimed negative declaration?
II) Was the possession of the suit property with the first defendant on the date of suit?
13. Point No.1: More than the oral evidence, the documentary evidence assumes significance in the given set of facts and circumstances. However we have perused the oral evidence and we are in full agreement with findings of the trial court. Though there is no need to discuss the evidence once again, we would like to emphasize one factor which negatives the execution of the agreement of sale marked Ex.D.23. The trial court compared the admitted signatures of Devakka found on
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 Exs.P.1 to P.3, P.7, P.10 and P.11 with the signatures found on Ex.D.23. We must also subscribe with the view of the trial court, for we find a lot of differences between the admitted and the disputed signatures. The differences are very much palpable and glaring to the naked eye. This factor alone is sufficient to hold that Devakka did not execute agreement in favour of the first defendant.
14. Exs.P.1 to P.3 are the documents on which the plaintiffs base their ownership over the suit property. There is no dispute that the sale deeds in their favour were executed on 15.02.2006. The sale deeds in favour of the first defendant came into existence on 01.02.2011 and 04.02.2011. Very interestingly, the first defendant did not file a suit for specific performance against Devakka. If really she had executed an agreement of sale in his favour, he should have filed a suit for specific performance, rather his suit, O.S. No. 68/2006 was for a declaration that sale deeds dated 15.02.2006 in favour of the plaintiffs herein who were arrayed as defendants 2 to
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 4 there were null and void and did not bind his interest. Later he thought of amending the plaint to claim the relief of specific performance. But before that application was decided, he withdrew the suit probably for the reason that defendants 2 and 3 executed the sale deeds in his favour. Now if the relief claimed by the first defendant in his suit O.S. No. 68/2006 is seen, he also claimed a negative declaration. No doubt a declaration in negative form cannot be granted; but it is not always a bar. Mere use of the word 'not' in a sentence does not give a negative sense to the relief claimed in the suit. It is not the language, but the relief that can be claimed in a given set of circumstances is important. For instance, if a plaintiff seeks relief in such a way as to declare that the defendant is not the owner of the property, it is a negative declaration which is not permitted. The reason is that if there is a threat to plaintiff's title over the property on account of something done by the defendant, he must assert his title and seek declaration of his title. If for any reason a decree is granted declaring that defendant is not
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 the owner of a property, it can not be said that plaintiff's title is declared. In the case of Kolte Patil Developers Limited, Navipeth District, Jalagaon, Maharastra v. NTI Housing Co-operative Society, Bangalore and Another [2015 (2) Kar. L.J. 373], the declaratory relief sought was:
"(a) For declaration that the sale deed dated 3rd September, 2004 bearing Registration No. 44576/04-05 registered in the Office of the Sub-Registrar, Bangalore North Taluk obtained by the second defendant from the first defendant is a sham, collusive and fictitious document, not intended to be acted upon and therefore the second defendant has derived no right, title, interest or possession in respect of the schedule property and the said sale deed is not binding on the plaintiff and does not affect its rights or interest in the schedule property."
The above relief consists two declarations, and the underlined portion in the second declaration is negative. Moreover the co-ordinate Division Bench of this Court held that negative declaration had been sought in the facts and circumstances of the case before it.
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15. In the present case all that can be inferred is, thinking that existence of the sale deeds in favour of the first defendant might infringe their interest, the plaintiffs might have thought of seeking a declaration that the sale deeds would not affect their interest. This kind of a relief can be claimed only in the negative form, but in reality, it is a claim for affirmative declaration. They could have claimed declaration of their title also. Merely for the reason that they did not claim declaration of their title, it cannot be said that they had no remedy under law. The courts have ample power under Order VII Rule 7 CPC to mould the relief in the facts and circumstances of the case and even the appellate court can grant relief exercising power under Order XLI Rule 33 CPC. In this view, we do not think that there is any force in the argument of Sri.Dinesh Kulkarni. Therefore we hold that the plaintiffs have not claimed negative declaration.
16. Point No. II: The first defendant has placed himself in conflicting positions. The whole argument of
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NC: 2023:KHC-D:11455-DB RFA No. 100043 of 2015 Sri Dinesh Kulkarni on the point that the possession remained with the first defendant was in the backdrop of agreement of sale the execution of which has been doubted by the trial court. The argument of Sri Dinesh Kulkarni is too far fetched in as much as delivery of possession to the first defendant under doubtful instrument cannot even be assumed or imagined. As has been rightly observed by the trial court the first defendant claims that he took over possession under the sale deeds dated 01.02.2011 and 04.02.2011. This was again an impossibility because on 15.02.2006 itself, Devakka put the plaintiffs in possession of the suit property under the two sale deeds which she executed in their favour. The settled principle of law is that a mere suit for declaration and injunction is not maintainable if the plaintiffs were not in possession of the property on the date of suit. This is the principle enunciated in the three rulings cited by Sri Dinesh Kulkarni. The evidence discloses possession of the suit property was with the plaintiffs on the date of suit.
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17. The above discussion takes us to dismiss the appeal. But as we feel that the plaintiffs are in fact entitled to declaration of title in the given set of circumstances, exercising power under 41 Rule 33 CPC, the plaintiffs are declared to be the absolute owners of the suit property.
Sd/-
JUDGE Sd/-
JUDGE BVV List No.: 1 Sl No.: 47