Karnataka High Court
R N Nagaraju S/O R Nagappa vs T. Kencharayappa S/O O. Thirumalaiah on 2 August, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2nd DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
R.S.A. NO.423 OF 2006
BETWEEN:
R.N. NAGARAJU
S/O R NAGAPPA
AGED ABOUT 59 YEARS,
RESIDING AT NO. 885,
KAMATAGERI,
OPP: CHAMUNDESHWARI TEMPLE,
MANDI MOHALLA,
MYSORE-570012.
...APPELLANT
(BY SRI. ASWATHANARAYANA, ADVOCATE)
AND:
T. KENCHARAYAPPA,
S/O O. THIRUMALAIAH,
AGED ABOUT 72 YEARS,
RESIDING AT NO. 893,
K.T STREET,
KAMATAGERI, MANDI MOHALLA,
MYSORE-570012
SINCE DEAD AFTER THE
PRONOUNCEMENT OF THE JUDGMENT
IN R.A. NO.76/2001,
REPRESENTED BY HIS LRS,
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1. SMT. RANGAMMA,
W/O LATE KENCHARAYAPPA,
AGED ABOUT 70 YEARS,
2. SRI. K. SHIVAKUMAR,
S/O LATE KENCHARAYAPPA,
AGED ABOUT 40 YEARS,
3. SMT. SUSHEELA,
W/O RAJANNA,
D/O LATE KENCHARAYAPPA,
AGED ABOUT 38 YEARS,
LRs NO. 1 TO 3 ARE RESIDING AT NO. 893,
K.T STREET, KAMATGERI,
MANDI MOHALLA, MYSORE-570012
4. SRI. K. SRINIVASA,
S/O LATE KENCHARAYAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT NO. 1920,
20TH CROSS, SANKRANTHI CIRCLE,
HEBBAL, MYSORE-570012.
...RESPONDENTS
(BY SRI.T.N. RAGHUPATHY, ADVOCATE
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 27.10.2005, PASSED IN RA NO. 76/2001
ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN) AND
CJM, MYSORE, DISMISSED THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 25.01.2001
PASSED IN O.S.NO.761/1996 ON THE FILE OF THE II ADDL.
I CIVIL JUDGE (JR. DN) MYSORE.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular Second Appeal is filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 27.01.2005, passed in R.A. No. 76/2001 on the file of the II Addl. Civil Judge (Sr.Dn) and CJM, Mysore, dismissing the appeal and confirming the judgment and decree dated 25.01.2001 passed in O.S. No. 761/1996 on the file of the II Addl. First Civil Judge (Jr. Dn) Mysore.
2. The case of the plaintiff in the trial court is as under:
Originally the suit schedule - A and B properties and the adjoining property were the ancestral properties of late Thirumalaiah, the father of the plaintiff. All the properties of Thirumalaiah were partitioned amongst his sons. Accordingly, on 16.6.1972 a partition took place. In that connection they have executed a deed of partition before the Sub Registrar, K R Nagar. According to the deed of partition the joint family properties were divided into five parts in 4 which the plaintiff has allotted A schedule properties to his share. The B schedule properties were allotted in favour of late Rangaiah and R Narayana, the brothers of the plaintiff. Smt. Janakamma w/o late Rangaiah and Padmavathamma w/o R Narayana sold the B schedule property in favour of the defendant. As per the registered partition deed, there is a bathroom and latrine situated at the south-east corner which is common to all the five sons of late Thirumalaiah and also the passage measuring North to South 6 feet and East-West 28 feet. After the purchase of the B schedule property by the defendant from Smt. Janakamma and Smt. Padmavathamma, the defendant demolished the two portions in his occupation.
The northern end portion was allotted in favour of Smt. Lakkamma wife of Narasimhaiah, the brother of the plaintiff. The said Lakkamma sold her share in favour of the plaintiff to the western portion of the property of Puttaiah. The two shares of the entire property is in possession and enjoyment of the plaintiff.
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3. There is a passage on the western side of A and B schedule property which is situated at the 2nd Cross Kamatageri i.e., Gante Hutchaiah Galli, which belongs to the plaintiff. A rough sketch is produced alongwith the plaint. The passage and the western side of A and B schedule properties belongs to the plaintiff. It measures 4 feet East to West and North to South 37 feet. There is one door facing south which enters to the plaintiff's A schedule property, on the western side of B schedule property, there is a latrine and bath room, which is situated in the passage which belongs to the plaintiff. In the entrance of passage a tap is fixed to the pipe by this plaintiff. The passage leads to the plaintiff's property and also it belongs to the plaintiff. The defendants and other sharers have no right, title or interest over the western side passage of 'B' schedule property. There is a door exists on the western side of the galli facing south and from the date of partition, the plaintiff is enjoying the door passage and latrine and bathroom on the western side of the B schedule property. The defendant has no manner of right, 6 title or interest over the western side of B schedule property. The defendant's property is facing eastern side. Lakkamma and the defendant and T Venkataramanaiah were using the eastern side of the common passage of B schedule property. The defendant has no right since the western wall of the B schedule property facing bathroom by latrine of the plaintiff situated in the passage. Now the defendant is trying to put up windows and ventilators and grills and balcony on the western side of B schedule property. The plaintiff is enjoying the passage, latrine and bathroom and water tap in the passage from the past 40 years and the plaintiff had protested the high handed and illegal construction of the defendant and filed complaint before the Mysore City Corporation. The defendant has not left any place on the western side of B schedule property and the defendant has no right to obtain air and light from the property of the plaintiff without leaving the set back area on the eastern side of the property. The defendant has constructed the wall in the set back area. Therefore the plaintiff sought for declaration that the plaintiff 7 is the absolute owner in enjoyment of the passage i.e., on the western side of 'B' schedule property and also for grant of permanent injunction, restraining the defendant, his agents servants or anybody acting on behalf of him by putting windows, balcony, ventilators or grill on the western wall or the B schedule property and also for grant of mandatory injunction to remove the western wall of the B schedule property.
4. The defendant in the court below has filed a written statement as under:
The defendant herein admits the existence of passage on the western side of the schedule property; but denied all other averments made in para 3 of the plaint. The defendant denies the claim of absolute ownership by the plaintiff in and over the western side passage. The defendant admits that he is taking up lawful construction work by taking valid license and sanctioned plan. There is no cause of action and therefore the defendant prays to dismiss the suit. 8
5. The trial court has framed the following issues:
1. Whether the plaintiff proves that he is the absolute owner in possession of disputed passage?
2. Whether the plaintiff proves the alleged interference?
3. Whether the plaintiff is entitled for mandatory injunction?
4. Whether the suit is not maintainable?
5. Whether the suit is not properly valued?
6. Whether the plaintiff is entitled for suit claim?
7. What decree or order?
6. The trial court has answered the above issues as under:
Issue Nos.1 and 2 - In the affirmative;
Issue Nos.3 and 4 - In the negative;
Issue No.5 - In the negative;
Issue No.6 - Plaintiff is entitle for declaration, but not entitle for mandatory injunction;
Issue No.7 - As per the final order.9
7. The trial Court at Para-13 of the judgment has mentioned that the admission of the defendant in the evidence that toilet and bathroom situated behind his house and he has no right over the bathroom and toilet clearly goes to show that the defendant is not at all using that passage. However, it is the case of the plaintiff that whenever they go out of the house, they used to put lock to that door, visible in Ex.P8. However, this contention is denied by defendant. Further, this DW1 admits that the said door was put up at the time of partition itself and further he admits that he cannot enter his house through that door. Hence, in his opinion, plaintiff has clearly proves that he and his family members are using that passage exclusively. However, this is not a suit claiming easementary right over that passage but it is the suit for declaration to declare that the plaintiff is the absolute owner of that passage.
8. The trial Court at para-14 of the Judgment has mentioned that though in the partition deed it is mentioned 10 that to the west of the property of other sharers, there is a galli. Further, it is not mentioned that the said galli is exclusively meant for the use of all the sharers. If at all there is any condition, definitely it ought to have been mentioned in the document, because it is clearly mentioned in this document that to the East of Venkataramaiah's property, there is galli left for the A, B, C, D and E sharers. However, there is such recital in the document about the disputed galli. Hence, the trial court was of the opinion that if at all the said galii meant for the use of all the sharers, definitely, there would have been a recital to that effect. Further, it is very clear on the recitals of the plaintiff's property that to the East:
the properties allotted to the share of Lakkaiah and Puttaiah, but it is not mentioned that there is galli and then properties of Lakkaiah and Puttaiah. The documentary evidence produced by the parties before him clearly goes to show that it is the plaintiff who is having right over the suit property and Ex.P.3 clearly proves that the plaintiff is the absolute owner of the disputed galli.11
9. The contention of the defendant is that he is also having right over the said disputed passage clearly goes to show the interference of the defendant. The trial court therefore decreed the suit in part i.e., plaintiff is declared as absolute owner and enjoyment of the passage on the western side of B schedule property. The relief of permanent injunction and mandatory injunction was dismissed. Feeling aggrieved by the same the defendant has preferred a regular appeal No.76/01.
10. The finding of the first appellate court is as under:
The point that was framed by the lower appellate court is as under:
1. Whether the judgment and decree passed by the trial Judge is frivolous, vexatious and requires any interference by appellate court?
2. What Order?
At para 25 of the lower appellate court judgment it is mentioned that nowhere the defendant is claiming that he is 12 using this door for any purpose. On the other hand, the plaintiff has deposed that whenever he wants to go out from his house, he used to put the lock to the door affixed to the passage. On perusal of the evidence of D.W.1, he has clearly admitted that he has no entry through the western side passage to his house. He further admits that the latrine and bathroom situated in the said passage are exclusively belonging to the plaintiff, whereas he admits the latrine and bathroom situated in the eastern side passage his property are common to all the sharers in the said property. It shows that the defendant has not at all using the suit passage at any time for any purpose.
11. The appellate court has further observed that it is fact that in the partition deed of 1972, the share of Venkataramanaiah is mentioned in which it is stated that on the eastern side of share of Venkataramanaiah, there is galli, bathroom, and latrine for use of all the sharers of 'ABCDE' as explained in the partition deed. But, this deed is silent about 13 the right of sharers on the passage situated on the western side of their shares. The description mentioned in the B schedule property is silent about the northern boundary of the plaintiff's share.
12. The lower appellate court has observed at para 26 that if really the intention of the parties at the time of execution of the partition deed, was to give common right to all the sharers over western passage i.e., suit passage, then they would have mentioned that on the eastern side of plaintiff's property, there is a passage common to all the sharers. But, it is mentioned that towards eastern side of plaintiff's property, there are sharers of Lakkamma and Puttaiah. It shows that this passage was also included in the share allotted to the plaintiff. It is a fact that the parties to the partition deed have clearly mentioned that the passage situated on the eastern side of defendant's property and the bathroom and latrine therein, are common for the use of all sharers whereas this document has not expressly mentioned 14 the right of all the sharers over suit passage, but mentioned that on the eastern side of plaintiff's property, there are sharers mentioned in A and E schedule.
13. The lower appellate court has also observed that it is clear by the oral and documentary evidence available on record that the plaintiff alone has got right to use the said passage by using the latrine and bathroom situated in the said passage. It is admitted by the parties that since the days of execution of partition deed in the year 1972, the plaintiff is residing in B schedule property and he has made construction of bathroom and latrine after execution of the partition deed. This right of plaintiff also discloses that he used the said passage as an absolute owner, by putting the lock to the door affixed to the passage.
14. The lower appellate court has observed at para 27 that in the present suit, the plaintiff is claiming his title over suit passage relying on the partition deed of 1972, which is produced at EX.P3. It is further necessary to observe that 15 though EX.P3 is not expressed anything about the right of plaintiff over suit passage, by over all reading of the document, it can be construed that the common right is given to all the sharers in respect of bathroom and toilet and also passage situated on the eastern side of defendant's property, whereas the plaintiff has made construction of bathroom and latrine in suit passage and fixed the door to the end of the suit passage showing his title over the said passage. Further as observed above on the eastern side of the plaintiff's property, when the existence of shares of Lakkamma and Puttaiah are mentioned, it shows the intention of the parties that, the suit passage including the B schedule property is given to the share of plaintiff under EX.P3. Under these circumstances, the lower appellate was of the opinion that the plaintiff has proved his title over the suit schedule passage excluding the rights of other sharers. There is nothing on record that the judgment and decree passed by the trial judge is frivolous or capricious. It is also necessary to observe that the plaintiff has filed this suit for declaration of his title and 16 also for permanent injunction and mandatory injunction against defendant. The trial court has rejected the claim of the plaintiff in respect of permanent injunction and mandatory injunction for the reasons given in the said judgment. But, the plaintiff has not filed any cross objection or cross appeal in respect of the said judgment and decree. Therefore, it is not necessary for this court to discuss the right of plaintiff to get permanent injunction or mandatory injunction as sought for. The lower appellate court dismissed the appeal confirming the judgment of the trial court. Feeling aggrieved by the same the defendant/appellant has preferred this regular second appeal.
15. I have heard the learned counsel for the appellant and also the learned counsel for the respondent. I have perused the trial court records as well as the lower appellate court records.
16. The learned counsel for the appellant submits as under:
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Both the parties have claimed that the rights under single source of title i.e., deed of partition i.e., EX.P3 in which property belongs to father of the plaintiff has been divided into five parts as schedule A to E properties allotted to five children of the said Thirumalaiah. The learned counsel for the appellant further submitted that the trial Judge while appreciating this piece of evidence has grossly misread this document by taking into consideration only that portion of the content of the document which is beneficial to the plaintiff and ignored the contents of the document which is beneficial to the defendant and thereby the finding of the courts below on Issue No. 1 is totally perverse.
He further submits that though it is specifically contended by the defendant that Exhibit - P2 rough sketch establishes that on the south eastern side there is a lavatory and bathroom, blocking the entrance from the passage to the Southern Galli, the said fact and contention has not been dealt with either by the Trial Judge or by the learned First 18 Appellate Judge which has led to perverse findings. The learned counsel for the appellant further submits that though it is specifically contended by the defendant that even in EX.P.4 sale deed executed by Smt. Lakkamma, it is clearly mentioned that to the west there is a disputed passage which does not belong to the plaintiff, but it is remained and retained as common passage for the use of all the five co- sharers. The learned trial Judge has given a go by to the admissions of P. W. - 1, though P. W - 1 has clearly admitted that 'at the time of partition the passage towards Eastern and Western side have been left without division and it is true to say that excluding the western passage, the "B" schedule property was allotted to the share of my father in partition. The learned counsel for the appellant has also submits that both the courts below have not applied the general principles of law that the person claiming the declaration of ownership in and over the properties, has to establish the domain over the said property by placing or producing documentary evidence of title and also documents to show that the said 19 person is in absolute, exclusive possession of the said property. In the present case no such documentary evidence has been placed by the plaintiff to show that he has got clear title over the disputed passages and also to show that this passage exclusively belonging to him.
17. Both the Courts below have grossly erred in applying different yardsticks to different portions of the same document (Ex. P-3), by ignoring all norms and principles of law relating to appreciation of contents of documents and thereby reached a perverse finding.
18. Both the Courts below have further grossly erred in not applying the principles and provisions of Easements Act, 1982 to the facts and circumstances of the present case.
19. The present finding on Issue No. 1 is reached by misreading the documents, without reading the contents of the entire document as a whole and by taking into 20 consideration only that portion which is beneficial to one party, by ignoring the contents beneficial to other party.
20. The lower appellate court failed to appreciate the fact that common passage has borne out by the evidence and material on record and also erred in declaring the plaintiff as absolute owner though there is no material or evidence adduced by the plaintiff. The courts below failed to appreciate the admission with regard to the usage of the passage by both the parties.
21. The learned counsel for the appellant has invited the attention of this Court to the cross-examination of PW.1 at paragraph 5 which mentions as under:
It is true to say that excluding the western passage the B schedule property was allotted to the share of my father in partition. It is true to say that there is no passage to the other sharers towards western side except the galli as an approach. Attention of PW.1 was also invited that it is true to 21 say that there is no recital in the partition deed that the western side galli of the Lakkamma's property belongs to her. Witness volunteers that since that galli was in their possession, there is no recital.
22. Attention of this court was also invited to the cross examination of PW.1. It is stated that the boundaries shown in EX.P4 towards eastern side Angala and Chikkanna's house and towards western side Galli is correct. It is true to say that the A to E portion properties, towards western side galli is shown and PW.1 has not produced any other documents except partition deed to show that western side galli is in our possession even prior to partition. He has not produced any other documents to show that western side galli is in exclusive possession of his father subsequent to partition.
23. Learned counsel for the appellant has relied on the following rulings:
1. Marian Hussain Vs Syedani & others reported in ILR 2007 Kar. 2715 22 " Code of Civil Procedure, 1908 - Section 100 -
Regular Second Appeal - Concurrent findings - Findings based on misreading of evidence on record and appreciation of question of law - Jurisdiction of the High Court to interfere - HELD, When the Courts below ignore the weight of preponderating circumstances, allow the judgments to be influenced by inconsequential matters, when their judgment is based on mis- interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring the material evidence or misdirected themselves in appreciating the question of law and place the onus on the wrong party, or when their finding has no legal basis in any legal evidence on record or the finding suffers from any legal infirmity, the High Court would be justified in re-appreciating the evidence and coming to its own and independent conclusion - ON FACTS, HELD, Both the Courts below have not only misread the evidence on record, but ignored the material evidence on record. Hence, there is a concurrent error committed by both the Courts below - The judgment and decree passed by both the Courts below are set aside".
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2. Sangappa Veerappa Katariki Vs Bhimappa Yamanappa Chabbi reported in ILR 2003 Kar. 3259 " Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) - Section 100 - The scope of powers of the High Court under Section 100 Code of Civil Procedure - is a matter of settled law - While exercising the power under Section 100 CPC the High Court has no jurisdiction to upset the finding of fact - On facts, Held - Plaintiff's regular second appeal allowed, on sub-substantial question of law, on the ground that - The findings of the lower Appellate Court are contrary to the evidence on record".
3. Anjanappa & others Vs Byrappa (since deceased by L. Rs) reported in 1995 (5) KLJ 459 " Code of Civil Procedure, 1908, Section 100 - Second Appeal on substantial question of law - Finding of fact recorded by Trial Court and confirmed by First Appellate Court - Reopening of such finding in second appeal - Not barred if finding is vitiated by error of law due to misreading of evidence ".
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4. Vokkaligara Sannappa Vs Vokkaligara Annaiah and another reported in 1996 (1) KLR 25.
" Code of Civil Procedure, 1908, Section 100 - Second Appeal - Interference - Finding of fact recorded by First Appellate Court - Finding based on inadmissible Court's power to disturb such findings".
5. Basappa Vs Gangadhar Ganapathy Shetty reported in 1997 (7) KLJ 385 " Code of Civil Procedure, 1908, Section 100 - Second Appeal - Construction of document - If and when involves issue of law - Construction of document of title, or document forming basis of claim in suit or basis of defence in suit may give rise to substantial question of law justifying second appeal - Where basis of claim as well as basis of defence in suit is document, construction of that document as to whether it creates lease or licence, involves a question of law".
6. Neelammanavar Nagamma Vs Neelagallu Veeranna (dead) by L. Rs & others reported in 1996 (2) KLJ 654 25 " Code of Civil Procedure, 1908, Order 41, Rules 23 and 24 - Remand of case - Finding by Court of facts vitiated by non-consideration of relevant evidence and by erroneous approach - Material evidences sufficient to pronounce judgment are already on record - Remand of case not proper - Appellate Court has jurisdiction to record proper finding and decide finally".
" Code of Civil Procedure, 1908, Sections 100 and 101 - Deeds - Of title forming basis of suit -
Misconstruction of such deed gives rise to question of law - Finding by Court of fact based on such misconstruction is vitiated by error of law - High Court in second appeal entitled to correct it".
" Rules of interpretation - Intention of parties to be ascertained from words used - Effect to be given to all parts of deed".
" Code of Civil Procedure, 1908, Sections 100 and 101 - Second Appeal - Jurisdiction of High Court to reappreciate evidence - Where finding by Court of facts is vitiated by non-consideration of relevant evidence and by erroneous approach to matter - High Court not precluded from recording proper findings".26
7. B. Iddinaba Abbu & another Vs Abdul Kadri Cheir Bava reported in Mysore Law Journal 1961 page 54 " Code of Civil Procedure (5 of 1908), Section 100 - Non-consideration of material evidence - Finding of fact - Interference.
If an important piece of evidence has not been considered by the lower Appellate Court, then its finding on a question of fact is liable to be reversed by the High Court in second appeal.
Non-consideration of a material evidence would amount to an error of procedure within Section 100 of Code of Civil Procedure."
24. Learned counsel for the respondent submits as under:
The relief relating to injunction was refused since it was an ancillary relief. He further submits that the plaintiff is satisfied with that relief. The defendant filed an appeal against the finding that was negatived. There is a concurrent finding of fact. EX.P3 is the partition deed. It is contended 27 by the learned counsel for the respondent that in the partition deed it is not mentioned about all of them will use the western galli. The learned counsel for the respondent submits that the partition has been conclusively decided. Now reagitating or reopening the partition deed may not arise. The learned counsel for the respondent also submitted with regard to the admission of PW.1 no substantial question of law has been framed in the memorandum of second appeal. If there is an admission by the parties the documentary evidence should prevail. The defendants are subsequent purchasers. Two different interpretation can be made relying on the document. The deed writer has written that eastern side passage is common to all the sharers and the western side passage is kept to the plaintiff. EX.P3 - the partition deed is admitted by all the parties.
25. The points and substantial questions of law that arises for my consideration in this second appeal are as under:
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1. Whether the application filed under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure deserves to be allowed?
2. Whether in the facts and circumstances of the case the courts below were justified in declaring the plaintiff as absolute owner of the passage on the western side of the B schedule property without properly considering EX.P3 and EX.P4 and admissions in oral evidence?
26. It is the contention of the learned counsel for the appellant that EX.P3 partition deed has been misread by the trial court. It is also the contention of the learned counsel for the appellant that the contents of the document which is beneficial to the plaintiff has been considered and the contents of the document which is beneficial to the defendants are ignored. Learned counsel for the appellant also contended that the lower court has not considered EX.P2 rough sketch in respect of blocking of the entrance from the 29 passage to the southern galli. The lower court and the appellate court have failed to consider the admission of PW.1 though he has clearly admitted that at the time of partition the passage towards eastern and western side have been left without division. EX.P3 is the partition deed and EX.P2 is the rough sketch of the immovable property that has been divided as per EX.P3 partition deed. I have carefully examined EX.P2. There are two passages. One on the western side and it measures about 37 feet in length and 4 feet in width and this is the disputed passage in which the plaintiff has sought for declaration. The principal submission of the learned counsel for the appellant is that the contents of the partition deed has not been properly appreciated by the trial court as well as the lower appellate court. It is an undisputed fact that this document has been written by a deed writer. In a deed recitals are of two counts. (1) narrative recital which relates to the past history of the property transferred and set out facts and instrument necessary to show the title and the relation of the parties to the subject 30 matter of the deed. (2) Introductory recitals which explain the motive for the preparation and execution of the deed. There is no fixed rule. But as to how a particular kind of property should be described in the parcel, but care should be taken that the description used is full, sufficient, definite and unambiguous. An exception is something in existence at the time of executing the deed which if not expressly excepted could pass with the property as described in the parcels. A reservation is something not in existence on the date of deed but is newly created by the grant.
27. The next aspect which I have to consider is the rules of construction of the deed. Interpretation of statutes equally applies to the construction of documents. A cardinal rule of construction of documents is that the intention of the contracting parties to the deed should be determined from the document as a whole and not from any particular part or clause or clauses read out of context or from the description of the document or the form in which it is dressed. It is true 31 that one party cannot build up his case by making an interpretation in his own favour but the concurrence therein by the other party can be used by the farmer against the latter. Later in case the terms are not unambiguous it is legitimate to take into account the surrounding circumstance for ascertaining the intention of the parties. The social environment, the actual life situation and the prevailing conditions of the country are all relevant circumstances. How the parties or their representatives-in-interest treated the transaction may be relevant. In the case of ambiguity or doubt the heading or sub-heading may be referred to as an aid to construe the provision "but even in such a case it could not be used for cutting down the wide application of the clear words used in the provision". They cannot be referred to for the purpose of considering the provision when the words used in the provision are clear and unambiguous. In this background I intend to examine EX.P3 partition deed. The appellant has filed a true copy of the typed partition deed. It is mentioned in the partition deed, the passage which is left 32 on the eastern side of the partition deed can be utilised by all the sharers. In so far as the western side of the property is concerned, the contents of the document is not positively mentioned that it can be used by all the parties of the partition deed. As stated earlier, the disputed passage is the passage which is lying on the western side.
28. At para 14 of the trial court judgment the trial court has observed that, though in the partition deed it is mentioned that to the west of the property of other sharers there is a galli, further, it is not mentioned that the said galli is exclusively meant for the use of all the sharers. If at all if there is any condition, definitely it ought to have been mentioned in the document, because it is clearly mentioned in this document that to the east of Venkataramaiah's property, there is galli left for the use of A B C D E sharers. The trial court has further observed that if at all the said galli meant for the use of all the sharers, definitely, there would have been a recital to that effect in the partition deed. In the 33 partition deed there is no recital to the effect that all the parties to the partition deed shall use the passage which is lying on the western side of the suit schedule property.
29. The lower appellate court has observed at para 27 that common right is given to all the sharers in respect of bathroom and toilet and also passage situated on the eastern side of defendant's property, whereas the plaintiff has made construction of bathroom and latrine in suit passage and fixed the door to the end of the suit passage showing his title over the said passage.
30. When the partition deed clearly mentions that on the eastern side of the passage all the parties can utilize, on the western side it has not made distinctly that all the parties to the partition deed can use that passage. The intention of the parties has to be gathered as on the date of executing the partition deed i.e., on 15.6.1972, subsequently share allotted to Janakamma and the share allotted to Puttaiah are purchased by the defendant. Defendants derive the titles 34 based on the partition deed. What the parties to the partition deed have right, title or interest over the suit schedule property at the time of executing the partition deed will be transferred to the purchaser of the property. They will not get any better title of the immovable property than what they acquired by virtue of the partition deed as on the date of partition. Since the partition took place between the members of the joint Hindu family and at that time what was the intention between the parties to the partition deed has to be gathered and not on the date of purchase of the property by the defendant. It is also well settled that borrowers have no better title to the immovable property than the seller. In this case the western side of the passage was used by the plaintiff and the property pertaining Janakamma and Puttaiah and their entrance doors lies on the common passage situated on the eastern side. On the back of the Janakamma's house and Puttaiah's house there was a wall situated as on the date of partition deed. Now the defendant 35 has demolished those building and they are intended to construct a new building.
31. It is the contention of the learned counsel for the appellant that the interpretation of the contents of the partition deed is not proper by the trial court as well as the appellate court. I have carefully examined the evidence and also the contents of the partition deed and also the EX.P2 - rough sketch. In my view, the trial court as well as the appellate court has properly appreciated the contents of the document.
32. The next point which I intend to consider is, whether the trial court failed to appreciate the oral evidence in respect of admission by PW.1. Though there is an admission by PW.1, who is a power of attorney holder of the plaintiff to the effect that, at the time of partition passage towards eastern and western side left without division. It is also true to say that there is no recital in the partition deed that the western side passage of the Lakkamma's property 36 belongs to her. Witnesses have also volunteered since there is a passage was in their possession, there is no recital. It is well settled that the contents of the document which is capable of being produced must be proved by the instrument itself and not by parole evidence in otherwords any amount of oral evidence without producing the document or even if the document is produced the contents has to be looked into and it has to be interpreted on the basis of the settled principles of law. That being the legal position, it is not noteworthy to consider the admission of PW.1. This may not go to the root of the case. This case is based on EX.P3 and the contents thereof and not on the basis of the oral evidence. It is also well settled that admission cannot be recorded as a conclusive proof and it is open to the parties to show that is not true. The value of the admission depends upon the circumstance under which it was made. This circumstance has not been properly investigated. The court is not able to determine the value of the alleged admission. The admission itself is not conclusive proof of the matters admitted. Such 37 being the case the trial court as well as the appellate court has examined the partition deed and also the contents thereof and also the rough sketch and have appreciated the material placed on record and arrived to a conclusion. The appreciation of the evidence by the lower court as well as the appellate court is in the proper prospective.
33. One of the contention raised by the learned counsel for the appellant is that easementry rights of the defendant have not been properly considered by the trial court. This is a suit for declaration, permanent injunction and mandatory injunction. No counter claim has been filed by the defendant. The plaintiff respondent have accepted the finding recorded by the court below.
34. It is the contention of the learned counsel for the appellant that the boundaries have not been properly explained in the plaint. Paragraph 3 of the plaint reads as follows:
38
There is a passage on the western side of A and B schedule property which is situated at the 2nd Cross, Kamatageri, i.e., Gante Hutchaiah Galli, which absolutely belongs to the plaintiff. A rough sketch is produced along with this plaint. The passage and the western side of A and B schedule properties absolutely belongs to this plaintiff. It measures 4 feet East to West and North to South 37 feet. There is one door facing south which enters to the plaintiff's A schedule property, on the western side of B schedule property. There is a latrine and bathroom which is situated in the passage which belongs to the plaintiff. In the entrance of the passage a tap is fixed to the pipe by this plaintiff. The passage measuring 4½' x 37' leads to the plaintiff's property and also it belongs to the plaintiff. In the plaint it is clearly narrated about the description of the property. No doubt, in the schedule it might have not mentioned, but in the body of the plaint it is clearly mentioned. Such being the case, the contention of the learned counsel for the appellant that 39 boundaries have not properly mentioned has no force and cannot be accepted.
35. The next question that arises for my consideration is, whether the application filed under Order 41 Rule 27 read with Section 151 of Code of Civil Procedure deserves to be allowed or not. In support of this application the appellant has sworn to an affidavit stating that the documents sought to be produced as additional evidence were in the custody of the bank as he had availed loan for construction of the building at the B schedule property and this fact has been informed to his advocate who appeared for him before the trial court and first appellate court. Since those documents are in his custody he could not produce the same in O.S. No.5767/96. These documents said to be very essential for the purpose of deciding the real dispute between the parties. In case if these documents are not permitted to be produced it will cause irreparable loss and injustice. 40
36. The learned cousnel for the respondent has filed objections to this application. There is no substantial question of law involved in the above appeal. The substantial question of law raised in the appeal are not substantial question of law in the eye of law since they relate to findings of fact. The question of applicability of Easements Act did not arise at all. The suit was filed for declaration, permanent injunction and mandatory injunction. The relief for permanent and mandatory injunction are negatived. The decree of declaration has been confirmed in the appeal.
37. While considering the application filed for additional evidence at the stage of second appeal this court has to hear the arguments on merits and consider whether it is absolutely required for adjudication of the point involved in the case. The document which the defendant intend to produce is the sale deed pertaining to purchase of the immovable property and also the approved building plan. Nowhere in the affidavit it is mentioned as to why this 41 document was not produced earlier. Nothing prevented the defendant to adduce secondary evidence or summon the document from the bank which was handed over to the bank by way of a security for obtaining a loan. As stated earlier the defendant will not get any better title than the title derived from the deed of partition as per EX.P3. Such being the case if any schedule or the boundaries or if there is variation in the boundaries mentioned in the sale deed that will not come to the aid of the defendant at this stage. The sketch of the plan produced by the defendant has been prepared subsequently and the intention of the framers of the partition deed may not confirm with the plan prepared by the defendant. Such being the case these documents may not be helpful to the defendant at this belated stage. The cause of action arise on 1996. Now we are in 2012. At this belated stage the defendant wants to produce the documents. It is the submission of the learned counsel for the appellant - defendant that the boundaries mentioned in the sale deed as well as in the partition deed are one and the same. When the 42 document namely EX.P3-Partition deed has been interpreted by both the courts below as well as this court now at this stage the sale deed produced by the defendant in this appeal at this belated stage may not come to his aid. There is a concurrent finding by the courts below. It is essential to do justice at all the junctures and parties should not be dragged into an unending litigation. As stated earlier documentary evidence prevails over the oral evidence. The contents of the document must be proved by the instrument, not by the oral evidence. The trial court has properly considered EX.P3- Partition Deed and EX.P.2 - rough sketch and has properly interpreted the same. Accordingly, the substantial question of law is answered.
38. In view of the above discussion, I pass the following:
ORDER This Regular Second Appeal is dismissed. Consequently, IA 1/06 for additional documents is also dismissed. Since the main matter has been disposed of, IA 43 for stay does not survive for consideration. Accordingly, IA 1/12 is dismissed.
SD/-
JUDGE YKL