Karnataka High Court
Sri M Thippeswamy vs Si G N Vasudeva on 28 October, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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RSA No. 2580 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
REGULAR SECOND APPEAL NO. 2580 OF 2011 (DEC/INJ-)
BETWEEN:
1. SRI. M. THIPPESWAMY,
S/O. LATE M. MALLANAYAKA,
1(A). SMT. MALLAMMA,
W/O. LATE M. TIPPESWAMY,
AGED ABOUT 54 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
1(B). SMT. LAXMIDEVI W/O. SHIVANNA,
MANJANNA AGED ABOUT 36 YEARS,
E
R/O. LAKKAJARAVANAHALLI,
Location: HIGH
COURT OF
KARNATAKA
CHALLAKERE TALUK,
DHARWAD
BENCH CHITRADURGA DIST.
1(C). SMT. RATHNAMMA W/O. BORANNA,
AGED ABOUT 31 YEARS,
GUNTHAKOLAMMANAHALLI,
CHALLAKERE TALUK,
CHITRADURGA DIST.
1(D). SRI. SHANKARAMURTHY
S/O. LATE M. THIPPESWAMY,
AGED ABOUT 34 YEARS,
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RSA No. 2580 of 2011
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
1(E). SRI. BHGYAMMA W/O. SHIVANNA,
AGED ABOUT 28 YEARS,
R/O. UDEGOLAM,
RAYADURGA TALUK, ANDRAPRADESH.
1(F). SRI. MALLAIAH
S/O. LATE M. THIPPESWAMY,
AGED ABOUT 24 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
1(G). SRI. ANJANEYA,
S/O. LATE M. THIPPESWAMY,
AGED ABOUT 22 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
2. SRI. M. MALLIKARJUNAIAH,
S/O. LATE M. MALLANAYAKA,
AGED ABOUT 48 YEARS,
3. SRI. L.M. KATEMALLAIAH,
S/O. LATE M. MALLANAYAKA,
AGED ABOUT 46 YEARS,
4. SRI. M. SHIVAKUMAR,
S/O. LATE M. MALLANAYAKA,
AGED ABOUT 44 YEARS,
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RSA No. 2580 of 2011
5. SRI. MALLAJAIAH,
S/O. LATE M. MALLANAYAKA,
AGED ABOUT 42 YEARS,
6. SMT. PALAMMA,
W/O. LATE M. MALLANAYAKA,
AGED ABOUT 63 YEARS,
7. SMT. PENNAMMA,
D/O. LATE M. MALLANAYAKA,
W/O. JAKANNAIAH,
AGED ABOUT 57 YEARS,
APPELLANTS 2 TO 7 ARE
R/O. TALAVARAHALLI,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
8. SMT. KAMAKKA,
S/O. LATE M. MALLANAYAKA,
AGED ABOUT 49 YEARS,
9. SMT. BORAKKA,
D/O. LATE M. MALLANAYAKA,
W/O. LATE SIDDAIAH,
AGED ABOUT 49 YEARS,
APPELANTS 8 & 9 ARE
R/O. HUCHCHANGIDURGA,
NAGASAMUDRA POST,
MOLAKALMURU TALUK,
CHIRTRADURGA DISTRICT.
10. SMT. SHANTHAMMA,
DEAD BY LRS.
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RSA No. 2580 of 2011
10(A) SRI. BORANA S/O. BORAIAH,
AGED ABOUT 54 YEARS,
R/O. HULIYALU, KUDLIGI TALUK,
BELLARI DIST.
10(B) SMT. NAGAVENI W/O. MALLAJJAIAH,
AGED ABOUT 26 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHIRTRADURGA DISTRICT.
10(C) SMT. MAHALAXMI D/O. BORANNA,
AGED ABOUT 18 YEARS,
R/O. HULIYALU, KUDLIGI TALUK,
BELLARI DIST.
10(D) SMT. ANJANAMMA D/O. BORANNA,
AGED ABOUT 18 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHIRTRADURGA DISTRICT.
11. SMT. PAPPAJJI D/O. M. MALLANAYAKA,
W/O. LATE OBANNA,
AGED ABOUT 37 YEARS,
R/O. TALAVARAHALLI VILLAGE,
HIREKEREHALLI POST,
MOLAKALMURU TALUK,
CHIRTRADURGA DISTRICT.
...APPELLANTS
(BY SRI. B.M. SIDDAPPA, ADVOCATE)
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NC: 2024:KHC:43504
RSA No. 2580 of 2011
AND:
1. SRI. G.N. VASUDEVA,
DEAD BY HIS LRS
1(A) G.V. SARASWATHI
AGED ABOUT 63 YEARS,
"TEJASWMI NILAYA" 15TH CROSS,
KALIDAS NAGAR, COLLEGE ROAD,
KARENAHALLI, DODDABALLAPUR,
BENGALURU RURAL DIST: 561 203.
1(B) G.V. PRASANNA,
AGED ABOUT 37 YEARS,
"TEJASWMI NILAYA" 15TH CROSS,
KALIDAS NAGAR, COLLEGE ROAD,
KARENAHALLI, DODDABALLAPUR,
BENGALURU RURAL DIST: 561 203.
1(C) G.V. PRASHANTH,
AGED ABOUT 36 YEARS,
"TEJASWMI NILAYA" 15TH CROSS,
KALIDAS NAGAR, COLLEGE ROAD,
KARENAHALLI, DODDABALLAPUR,
BENGALURU RURAL DIST: 561 203.
1(D) TEJASVINI MURALI MOHAN,
AGED ABOUT 33 YEARS,
NO.42, 15TH MAIN,
MUNESHWARA BLOCK,
BENGALURU-560026.
...RESPONDENTS
(BY SRI. RAMAKRISHNAPPA T.A., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED
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RSA No. 2580 of 2011
BY THE LEARNED ADDL. DISTRICT AND MACT, (FAST TRACK
COURT) AT CHITRADURGA IN R.A.No.56/2010 DATED
29/08/2011 AND THE JUDGMENT AND DECREE PASSED IN
O.S.NO.105/2007 BY THE LEARNED CIVIL JUDGE (SR. DN) AT
CHALLAKERE DATED 20/04/2010 AND FURTHER BE PLEASED
TO DECREE THE SUIT OF THE PLAINTIFFS BY ALLOWING THIS
APPEAL WITH COSTS IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
1. This appeal is preferred by the plaintiffs questioning the Judgment and Decree dated 29.08.2011 passed in Regular Appeal No.56/2010 by the Additional District and M.A.C.T., (Fast Track Judge), Chitradurga (for short, 'the first appellate Court') confirming the Judgment and Decree dated 20.04.2010 passed in Original Suit No.105/2007 by the Civil Judge (Senior Division), Challakere (for short, 'the trial Court')
2. Appellants herein are the plaintiffs and respondents are the legal heirs of original defendant before the trial -7- NC: 2024:KHC:43504 RSA No. 2580 of 2011 Court. For the sake of brevity parties shall be referred to as per their status before the trial Court in the suit proceedings.
3. It is the case of plaintiffs that the suit schedule property was purchased by the father of plaintiffs No.1 to 5, 7 to 11 and husband of plaintiff No.6 namely Sri M. Mallanayaka S/o. Kate Mallanayaka on 12.09.1967 from one Sri Thippaiah S/o. Torakapile Siddaiah and Siddaiah @ Bajjadalone S/o. Thorakapile Jogaiah. It is the contention of plaintiffs that late Sri M.Mallanayaka along with his brother and wife are in possession and enjoyment of the suit schedule property and after the death of Sri M.Mallanayaka, the plaintiffs are in peaceful possession and enjoyment of the suit schedule property.
4. This being the state of affairs, the Tahashildar of Molakalmuru taluka on an application made by original defendant-Sri G.N.Vasudeva in the 2nd week of February, 2007, issued notice to the 1st plaintiff, who appeared before the Tahashildar and gave his statement. On the basis of said statement, the Tahashildar passed an order directing plaintiffs to deliver 02 acres of land in the suit schedule -8- NC: 2024:KHC:43504 RSA No. 2580 of 2011 property to the defendant. Being aggrieved, plaintiffs preferred an appeal before the Assistant Commissioner, Chitradurga and also filed Miscellaneous Petition before the Deputy Commissioner, Chitradurga as well as the Deputy Director of Land Records, Chitradurga, which are pending adjudication. It is further case of plaintiffs that they have grown 3500 eucalyptus trees in the suit schedule property and which are ready for harvesting. It is also stated that the said eucalyptus trees are situated in the land bearing Sy.No.2/6, which is a part of the suit schedule property i.e., Sy.No.2/5.
5. It is the case of plaintiffs that defendant is trying to remove the said trees, for which the defendant has no manner of right, title or interest whatsoever. The plaintiffs are absolute owners of the said suit schedule property and that land bearing Sy.No.2/6 is the part and parcel of land bearing Sy.No.2/5. Plaintiffs further stated that defendant has concocted the Partition Deed dated 17.07.1993 and has shown Sy.No.2/5 in the said Partition Deed. Plaintiffs are not parties to the said Partition Deed and they have never -9- NC: 2024:KHC:43504 RSA No. 2580 of 2011 executed any deed in favour of the defendant or his father. Therefore, due to illegal activities of the defendant, plaintiffs have filed the present suit seeking for relief of declaration to declare that plaintiffs to be the lawful owners and in peaceful possession and enjoyment of the suit schedule property. Having succeeded to the estate of deceased Sri M.Mallanayak and consequently to grant permanent injunction restraining the defendant, his agents, henchmen, whomsoever acting under him from interfering with plaintiffs peaceful possession and enjoyment of the suit schedule property. Secondly, to declare that the alleged Partition Deed to be null and void and not binding on the plaintiffs in respect of the property Item No.4 bearing Sy.No.2/5 measuring 05 acre, 35 gunta and consequently to cancel the said Partition Deed and issue a direction to the Sub-Registrar to make an entry of cancellation of the said Partition Deed in the relevant records.
6. On notice being served to the defendant, who appeared and filed the written statement contending that the suit filed by the plaintiffs is not maintainable and the
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 allegations so made therein are frivolous, concocted and fabricated. The defendant further stated in his pleadings that the land in question bearing Sy.No.2/5 measuring 11 acre, 32 gunta excluding Kharab land belongs to one Sri Thippaiah, who was minor and represented by his guardian uncle Sri Torekapile Siddaiah and the said guardian sold the suit schedule property in favour of defendant's father namely Sri Narasimhaiah and his grandfather Sri Venkataramanappa measuring 5 acre, 35 gunta out of 11 acre 32 guntas in the said survey number towards eastern side for a valuable sale consideration of Rs.20/- in the year 1936 to be precise on 01.06.1936.
7. Defendant also pleaded that a pursuant to the purchase, the vendor of father and grandfather of the defendant delivered the possession of the land in favour of defendant's father and his grandfather on the very same day. Pursuant to the registered Sale Deed, the mutation came to be changed in favour of defendant's father and grandfather. This being the state of affairs, defendant and his father and brothers, partitioned the property amongst
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 themselves as it was a joint family property under the registered Partition Deed dated 17.07.1993. The defendant pleaded that the land bearing Sy.No.2/5 measuring 5 acre 35 gunta fell to the share of defendant in pursuance to the above mentioned Partition Deed dated 17.07.1993. Thereafter, the defendant got khata changed to his name and he is in peaceful possession and enjoyment of half of the suit schedule property till date according to the defendant.
8. This being the state of affairs, plaintiffs started to interfere with the suit schedule property belonging to the defendant and tried to encroach the land bearing Sy.No.2/6 measuring 5 acre 35 gunta belonging to the defendant on the strength of concocted and illegal Sale Deed. It is further pleaded that the said Sale Deed fabricated by the plaintiffs is not binding on the defendant and the same is null and void as per law as the defendant is absolute owner of the land bearing Sy.No.2/6 measuring 5 acre, 35 gunta and he is in possession and enjoyment of half portion of the suit schedule property situated in Talavarahalli of Molakalmuru Taluka. The defendant filed an application to the Revenue Authorities
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 complaining of illegal interference and encroachment by the plaintiffs in Sy.No.2/6 measuring to an extent of 5 acre, 35 gunta. Based on which, the Tahashildar passed an order to measure the land through Taluka Surveyor. On the basis of both Sale Deeds and report, the Tahashildar phoded Sy.No.2/5 and Sy.No.2/6 measuring 5 acre, 35 gunta each to the plaintiffs and defendant. It is further stated that on an enquiry conducted by the Tahashildar, it was unearthed that there was illegal and wrong committed in the Sale Deed by the plaintiffs' ancestors and therefore the Tahashildar, Molakalmuru ordered the plaintiffs to deliver the possession of the land bearing Sy.No.2/6 measuring 5 acre 35 gunta in favour of the defendant. Hence, according to defendant, he is the absolute owner and in peaceful possession and enjoyment of half portion of suit schedule property towards eastern side of the land. The mutation entry and R.T.C. also stand in the name of defendant. It is also stated by the defendant that plaintiffs had earlier filed suit in O.S.No.75/2007 against the defendant pertaining to the suit property and the said suit came to be dismissed. Therefore,
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 the plaintiffs would not get any right or cause of action to file another suit for the similar relief. Hence, the defendant sought to dismiss the suit.
9. On the basis of pleadings, the trial Court framed the following issues:
1. Whether the plaintiffs prove that they are the lawful owners of the suit schedule property by succession to the estate of the deceased M. Mallanayaka?
2. Whether the plaintiffs prove that the partition deed dated 17.07.1993 is null and void and not binding on the plaintiffs in respect of Item No.4?
3. Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property?
4. Whether plaintiffs prove the alleged interference by the defendant?
5. Whether the plaintiffs are entitled for the relief of directing the Sub-Registrar, Molakalmuru to make the entry of cancellation of the part of the partition deed dated 17.07.1993?
6. Whether the plaintiffs are entitled for the relief of direct the Tahasildar and ADLR to make
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 appropriate orders for change of khaths and phode in the name of plaintiffs in respect of land bearing Re.Sy.No.2/6?
7. Whether the defendants prove that their father Narasimhaiah and his grandfather Venkataramanappa have purchased half portion in the suit schedule property towards eastern side measuring 5 acres 35 guntas in the year 1936 for a consideration of Rs.20/- from Thippaga, Siddaiah and Jogaiah of Talavarhally village?
8. Whether the plaintiffs are entitled for the relief claimed in the suit?
9. What order or decree?"
10. In order to substantiate the issues and prove the case, plaintiffs got examined 3 witnesses. P.W.1 was the 1st plaintiff and two other witnesses as P.Ws.2 and 3 and got marked Ex.P.1 to 13, whereas the defendant examined himself as D.W.1 and another witness as D.W.2 and got marked Ex.D.1 to Ex.D.11.
11. Upon consideration of material evidence placed on record both oral and documentary and on hearing the arguments of plaintiffs and defendant, the trial Court answered each of issues and not being satisfied with the
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 contentions put forth by the plaintiffs, dismissed the suit of plaintiffs.
12. Being aggrieved by the said order of dismissal, the plaintiffs preferred an appeal before the first appellate Court in R.A.No.56/2010. Upon re-consideration and re-analysation of entire material once again and on re-hearing the plaintiffs and defendant, the first appellate Court formulated the following points for consideration.
"1. Whether the plaintiffs prove that they are the owners in possession of suit schedule property as per the Sale Deed dated 12.09.1967?
2. Do the defendant proves that his father and grandfather had purchased 5-35 guntas out of land bearing Sy.No.2/5 measuring 12-05 guntas out of 0-13 guntas of phot kharab i.e., 11-32 guntas of Talavarahalli village, Kasaba hobli, Molakalmuru taluk?
3. Whether the plaintiffs further prove that the defendant without having any right, title, or interest caused interference over the peaceful possession and enjoyment of suit schedule property?
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4. Whether the plaintiffs further prove that the partition deed dated 17.07.1993 is null and void and not binding upon them?
5. Whether the impugned Judgment and Decree passed by the learned trial Court is arbitrary, perverse, capricious and opposed to law?
6. Is there a sufficient reason to interfere in the order of learned trial Court?
7. What decree or order?"
13. The first appellate Court on careful re-consideration or analization of the entire material once again and upon hearing the learned counsel for both parties, did not find any cogent reason to reverse the finding rendered by the trial Court and accordingly dismissed the appeal and confirmed the Judgment and Decree passed by the trial Court.
14. These two Judgments and Decree passed by the trial Court and the first appellate Court are questioned by the plaintiffs in this second appeal on the ground that the same is illegal, perverse or arbitrary and emanates from the patent error committed by both Courts.
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15. It is vehement contention of learned counsel Sri B.M.Siddappa appearing for the plaintiffs that the Judgments rendered by both Courts are illegal, perverse, arbitrary and erroneous. He further contends that both Courts have committed a gross error in holding that the plaintiffs are not entitled to ownership of the suit schedule property on the premise defendant purchased the property earlier to plaintiffs' father i.e., Sri M.Mallanayak, though there is no records to show with regard to purchase of said property. Both Courts below according to the learned counsel have given much importance to the revenue entries and the Partition Deed entered into between the defendant, his brother and father to render the finding in favour of defendant rather than the plaintiffs.
16. Learned counsel further contends that both Courts have committed an error in holding that the plaintiffs' father Sri M.Mallanayak is subsequent purchaser, he did not have right over the suit property so also it is contended by him that both Courts have committed an error in holding that the Partition Deed dated 17.07.1993 is binding on the plaintiffs,
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 whereas plaintiffs are not parties to the Partition Deed. He contends that the trial Court and the appellate Court have failed to take into consideration of the admission of defendant witnesses in the cross-examination, thereby giving a go by importance and relevant admissions which would go in favour of the plaintiffs.
17. It is further contended by learned counsel that the appellate Court has committed a gross error in disbelieving Ex.P.1, though the same was marked without any objection including typed copy and he further contends that the first appellate Court has committed gross error in holding Ex.D.1 to be a public document and to be an admissible in evidence. Therefore, it is his vehement contention that viewed from any angle, considering the material available on record both oral and documentary, the Judgments rendered by both Courts are bad in law and the same requires to be reversed by allowing the appeal preferred by the plaintiffs.
18. Learned counsel for the appellant/plaintiffs has relied on the following Judgments in support of his case.
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(i) The Roman Catholic Mission vs. The State of Madras and Another, AIR 1966 SC 1457.
(ii) Nani Bai vs. Gita Bai Kom Rama Gunge, AIR 1958 SC 706.
(iii) Yogedra Bhagata and others vs. Pritlal Yadava and Others, 2010(1) AIR Kar R 515.
(iv) Prabhoor Singh Hayer and Others vs. Baba Farid University of Health Sciences, Faridkot and others, 2010(1) AIR Kar R 522.
(v) S. Amarjit Singh Kalra (dead) by L.Rs. And Others vs. Smt. Pramod Gupta (dead) by L.Rs. and Others, 2003 AIR SCW 2799.
(vi) Union of India and Another vs. International Trading Co. And Another, 2003 AIR SCW 2828.
(vii) H.Siddiqui (dead) by LRs. Vs. A. Ramalingam, (2011) 4 SCC 240.
(viii)Sri Prakash vs. Smt. Doddathayamma and Others, 2014(4) KCCR 2967.
(ix) K.N.Nagarajappa and Others vs. H.Narasimha Reddy, AIR 2021 SC 4259.
(x) Decision in the case of Alavappa vs. Krishnappa ILR 1988 KAR 3347.
19. Per Contra, the learned counsel Sri T.A.Ramakrishnappa appearing for the defendant, presently in this appeal respondents No.1(a) to 1(d) vehemently contends that the Judgments rendered by the trial Court as well as the first appellate Court are not illegal, perverse or arbitrary as alleged. The contentions put forth by the counsel
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 for plaintiffs are farfetched, imaginary and not borne from the records. The trial Court and the first appellate Court have passed well considered Judgments by looking into the evidence both documentary and oral and not being satisfied with the materials relied on by the plaintiffs, trial Court rightly dismissed the suit and the first appellate Court upon re-consideration of the material available on record has came to a correct conclusion by dismissing the appeal and confirming the Judgment and Decree of the dismissal of the suit by the trial Court, which does not call for interference.
20. It is contended by learned counsel for the defendants that Ex.D.1 is the Sale Deed, which is prior to the transaction of the plaintiffs' and defendant is a actual possession and enjoyment of the land to the extent of 5 acre 35 gunta out of Sy.No.2/5, which is now numbered as Sy.no.2/6 after phodi. Therefore, the Sale Deed of defendant as per Ex.D.1 is much prior to the alleged Sale Deed of plaintiffs. Under the circumstances, the plaintiffs would not get any right and already the defendant has purchased to an extent of 5 acre 35 gunta. It is also contended by learned
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 counsel for the defendant that apart from this, plaintiffs tried to encroach land to an extent of 2 acre out of 5 acre 35 gunta, which on realisation the defendant filed necessary application before the Tahashildar for removal of such illegal encroachment, the same was allowed by the Tahashildar and ordered the removal of such encroachment by the plaintiffs.
21. It is further contended that the argument put forth by learned counsel for plaintiffs with regard to Ex.D.1 being a certified copy and not being admissible is farfetched and cannot be accepted for the reason that Ex.D.1 is a certified copy of original document obtained from the office of Sub- Registrar. The said document is a public document and same is admissible under the Bharatiya Sakshya Adhiniyam, 2023 so also learned counsel for the defendant contends that pursuant to the purchase of property, the mutation has been entered in the revenue records with regard to extent of 5 acre 35 gunta and thereafter a Partition Deed is executed between the defendant and his brother and father partitioning the properties amongst themselves on 17.07.1993, which is produced at Ex.D.4 and thereafter the
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 property tax has been paid by the defendant which is also depicted in Ex.D.6. Under the circumstances, he contends that there is no illegality or perversity in the Judgments rendered by both Courts and seeks to dismissal of this appeal.
22. Learned counsel for the respondent/defendants has relied on the following Judgments in support of his case.
(i) Budh Ram and Others vs. Bansi and Others, (2010) 11 SCC 476.
(ii) Papanna and Another vs. State of Karnataka and Others, (1996) 1 SCC 291.
(iii) Jagannath Chanderbhan Lute and Another vs. Special Land Acquisition officer and Others, 1995 AIR SCW 187.
(iv) Hemareddi and Another vs. Ramachandra Yallappa Hosmani and Others, ILR 2006 KAR 4466.
(v) Reportable Judgment of Hon'ble Apex Court in the case of Damodar Lal vs. Sohan Devi and Others, Civil Appeal No.231/2015, January 5th, 2016.
(vi) Reportable Judgment of Hon'ble Apex Court in the case of Laxmidevamma and Others vs. Ranganath and Others, Civil Appeal No.176/2015, January 20th, 2015.
(vii) Suganthi Suresh Kumar vs. Jagdeeshan, AIR 2002 SC 681.
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(viii) All Bengal Excise Licensees Association vs. Raghabendra Singh and Others, (2007) 11 SCC
374.
(ix) Assistant Commissioner, Income Tax, Rajkot vs. Saurashtra Kutch Stock Exchange Limited, (2008) 14 SCC 171.
(x) State of H.P. vs. Paras Ram and Others, AIR 2008 SC 930.
(xi) Balwant Singh (Dead) vs. Jagdish Singh and others, AIR 2010 SC 3043.
(xii) Harihar Prasad Singh and Another vs. Deonarain Prasad and Others, AIR 1956 SC
305.
(xiii) Judgment of this Court in the case of Sri H. Siddappa vs. Sri N.G. Nagendrappa, th RSA.No.143/2014, January 5 , 2021.
(xiv) Reportable Judgment of Hon'ble Apex Court in the case of Appaiya vs. Andimuthu @ Thangapandi and Others, Civil Appeal No.1430/2015 (@ SLP(C) No.10013/2015), September 20th, 2023.
(xv) K.M.Shaffi vs. Smt.Dayamathi Bai, ILR 1999 KAR 3668.
(xvi) Dayamathi Bai vs. K.M.Shaffi, (2004) 7 SCC
107. (xvii) Decision of this Court in the case of WP.No.26834/2017 C/s. WP.No.26835/2017, 17.07.2020.
(xviii)State of Haryana vs. Ram Singh, (2001) 6 SCC
254.
23. On the basis of arguments put forth by learned counsel for plaintiffs and defendants, this Court vide order
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 dated 25.01.2017 framed the following substantial questions of law to be considered :
(a) Whether the trial Court was right in marking the certified copy of the sale-deed issued by the Sub-Registrar as Ex.D.1 and admitting the same in evidence in the absence of foundation laid by the defendant for producing secondary evidence and whether Courts below are right in placing reliance on Ex.D.1.?
(b) Whether the Courts below are justified in not relying on Ex.P.1 on the ground that it is not at all eligible and translated copy produced cannot be relied upon?
(c) Whether in view of the death of appellant No.1-Thippeswamy, the entire appeal is abated and the appellant Nos.2 to 11 cannot maintain the appeal?
(d) And to consider any other substantial
questions of law which may arise for
consideration while hearing the appeal?
24. Having heard the learned counsel for the appellant and the learned counsel for the respondent, there is no dispute with regard to the registration of the sale deed in
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 favour of defendant's father and grandfather on 01.06.1936, which is produced at Annexure-D.1 sale deed. What is questioned by the plaintiffs is the certified copy of the said sale deed, which is produced and marked. Therefore, this Court will have to see whether the production of Ex.D.1, marking of the same is correct process adopted by the trial Court and whether there was any flaw as alleged by the learned counsel for the appellant.
25. It is not the case of the plaintiffs that there did not exist the sale deed of 01.06.1936 in favour of the defendant and the defendant's father and grandfather. Therefore, the execution of the sale deed at Ex.D.1 is not questioned. Secondly, the mutation register at Ex.D.2 is not disputed. It is in pursuance to the execution of the sale deed and the mutation entries were changed in favour of the father of defendant and grandfather and thereafter in the name of the defendant. So also the partition deed, which is produced at Ex.D.4 dated 17.07.1993, which is executed between the defendant, his brother and father, bifurcating the property amongst themselves by way of partition deed. Again the
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 question that is raised by the plaintiffs is that he was not made party to the said partition deed, which has been rightly negatived by the trial Court as well as the First Appellate Court.
26. The trial Court as well as the First Appellate Court have gone through the entire materials and the documents exhibited and have come to the conclusion, that the plaintiff who comes before the Court is the one who has to establish and prove his case on the basis of the strength of his own facts and the materials on record and the law, rather than relying on the weakness or drawback of the defendant. It is for the plaintiffs, who come before the Court to produce such material before the Court to prove and establish their case of ownership of the suit schedule property by producing cogent material evidence to the satisfaction of the Court and demolish any other material that is placed by the defendant to succeed in his case. In the present case, admittedly the plaintiffs are relying upon a certified copy of the sale deed of the year 1967, which is much later than the sale deed executed in favour of the defendant. This aspect of the
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 matter has been well considered by the trial Court as well as the First Appellate Court in negativing the claim of the appellants/plaintiffs.
27. It is well settled law with regard to the admissibility of documents in evidence and section 74 of the Indian Evidence Act clearly states that the sale deed kept in the office of the Sub-Registrar would become a public record and a private document and hence the contention of learned counsel for the appellants that the document so produced as Ex.D.1 cannot be taken into consideration for the reason that it is not the original document and that the defendant had not laid any foundation for production of the same in my humble opinion would not hold water. When a registered document is relied on the basis of the original document, there is always a presumption that there is due execution of the document of which certified copy is available in the public record of the Sub-Registrar from where the said Ex.D.1 is obtained and the same is produced and rightfully marked as an exhibit by the trial Court. Such document produced after
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 procuring it from the Sub-Registrar office, which is a public office will become a public record of a private document.
28. In the case of Laxmidevamma and Others vs. Ranganath and Others, reported in Civil Appeal No.176/2015 at paragraph No.15, the Hon'ble Apex Court has held as under :
"15. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re- appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
29. It is necessary to extract the provisions of Sections 62, 64, 65 and 74 of the Evidence Act, 1872 :-
"62. Primary evidence. -- Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. --Where a document is executed in several parts, each part is primary evidence of the document.
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. -- Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: --
(a) when the original is shown or appears to be in the possession or power --
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
74. Public documents.--The following documents are public documents: --
(1) Documents forming the acts, or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;
(2) Public records kept[in any State] of private documents.
79. Presumption as to genuineness of certified copies.- The Court shall presume to be genuine every document purporting to be a certificate, certified copy or other document, which is by Law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."
Section 74(2) of the Indian Evidence Act deals with public records kept in any State of private documents. Therefore, the certified copy obtained of Ex.D.1 by the defendant would
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 come within the definition of public document under section 74(2) of the Indian Evidence Act.
30. In case of Appaiya vs. Andimuthu @ Thangapandi and Others, Civil Appeal No.14630/2015 (@ SLP (C)No.10013/2015) at paragraph No.29 the Hon'ble Apex Court has held as under :
"29. Having regard to all the aforesaid circumstances and in the light of the various provisions of the Evidence Act mentioned hereinbefore we will firstly consider the question whether the appellant/plaintiff had succeeded in proving the contents of Ext.A1. Going by Section 65(e) when the original of a document is a public document within the meaning of Section 74, secondary evidence relating its original viz., as to its existence, condition or contents may be given by producing its certified copy. Ext.A1l, indisputably is the certified copy of sale deed No.1209/1928 dated 27.08.1928 of SRO Andipatti. In terms of Section 74(2) of the Evidence Act, its original falls within the definition of public document and there is no case that it is not certified in the manner provided under the Evidence Act. As noticed hereinbefore, the sole objection is that what was produced as Ext.A1 is only a certified copy of the sale deed and its original was not produced in evidence. The hollowness and unsustainability of the said objection would be revealed on application of the relevant provisions under the Evidence Act and the Registration Act, 1908. It is in this regard that Section 77 and 79 of the Evidence Act, as extracted earlier, assume relevance. Section 77 provides for the production of certified copy of a public document as secondary evidence in proof of contents of its original. Section 79 is the provision for presumption as to the genuineness of certified copies provided the existence of a law declaring certified copy of document of such nature to be admissible as evidence. When that be the position under the aforesaid provisions, taking note of the fact that the document in
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 question is a registered sale deed, falling within the definition of a public document, the question is whether there exists any law declaring such certified copy of a document as admissible in evidence for the purpose of proving the contents of its original document. Sub- section (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original. There is no case that foundation for letting in secondary evidence was not laid and as noted earlier, both the trial Court and the First Appellate Court found it admissible in evidence. Thus, the cumulative effect of the aforementioned sections of the Evidence Act and Section 57(5) of the Registration Act would make the certified copy of the sale deed No.1209/1928 dated 27.08.1928 of SRO Andipatti, produced as Ext.A1l admissible in evidence for the purpose of proving the contents of the said original document. When this be the position in the light of the specific provisions referred hereinbefore under the Evidence Act and the Registration Act, we have no hesitation to hold that the finding of the High Court that the certified copy of Ext.1l owing to the failure in production of the original and proving through an independent witness is inadmissible in evidence, is legally unsustainable. In the other words, the acceptance of the admissibility of Ext.A1 found in favour of the appellant/plaintiff by the trial Court and confirmed by the First Appellate Court was perfectly in tune with the provisions referred hereinbefore and the High Court had committed an error in reversing the finding regarding the admissibility of Ext.A1."
31. A Coordinate bench of this Court has dealt with this aspect in Writ Petition No.26834/2017 c/w. Writ Petition
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 No.26835/2017(GM-CPC) between Smt. Nagarathna Niranjan and Others vs. The Bengaluru Development Authority and Others, at paragraph Nos.28 and 29, it is held as under :
"28. Though the original transfer deed would be primary evidence in terms of Section 62 of Indian Evidence Act, 1872 ('IE Act', for short), in terms of Section 63 a certified copy of the said document could be marked as secondary evidence. In terms of Section 74(2) of IE Act all public records of private documents would amount to a public document. Thus, the transfer deed being a public record of a private document would amount to a public document under Section 74 of IE Act. In terms of Section 76 of IE Act, however a public officer having custody of the public document shall allow the said document to be inspected, as also, on demand, furnish a copy of the same on payment of legal fees thereto together with a certificate written that it is a true copy of such document. In terms of Section 77 of IE Act, certified copy of a public document may be produced in proof of the contents of the public document.
29. In terms of Section 65(e) and (f) when the original is a public document, secondary evidence can be led by way of producing the certified copy thereof. Such being the case, the document which is sought for being readily available for the petitioners to produce and mark in evidence, the filing of the Application for a direction to defendant No.7 (DW-2) to produce the said document was not permissible."
32. In the case of State of Haryana vs. Ram Singh reported in (2001)6 SCC 254, the Hon'ble Apex Court at paragraph No.5 it is held as under :
"5. Counsel for the State was right when he submitted that the High Court erred in rejecting
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 Exhibits R-2 and R-3 as inadmissible only on the ground that the parties to the documents had not been examined by the State. It is not the law that a certified copy of a registered agreement for sale is inadmissible in evidence unless the parties to the document are examined to prove it. That would be contrary to what Section 77 read with Sections 74(2) and 76 of the Evidence Act, 1872 and more specifically Section 51-A of the Act provide. As far as the provisions of the Evidence Act are concerned, a certified copy of the registered sale deed is admissible in evidence and does not need to be proved by calling a witness. See Madamanchi Ramappa v. Muthaluru Bojjappa AIR at p. 1637.)"
33. In the case of K.M.Shaffi vs. Smt. Dayamathi Bai, reported in ILR 1999 KAR 3668, the Hon'ble Apex Court in paragraph No.8 has held as under :
"8. The sale deed is a private document. But the record of the sale deed kept in the office of the Sub- Registrar is a public record of that private document and hence it falls within the category of public document. In VITHOBA SAVALARAM vs SRI HARI NARAIN Justice Chagala, has observed as follows:
"A mortgage deed is, under Section 74 Evidence Act, a public document because public records of mortgages are kept in British India; and under Section 65 secondary evidence can be given when the original is a public document; and under Section 77 certified copies may be produced in proof of the contents of public documents. Therefore, by producing a certified copy the contents of the mortgage deed can be proved.
This important ruling makes the registration copy of the document as important as the original itself."
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NC: 2024:KHC:43504 RSA No. 2580 of 2011
34. Coming to the aspect of the scope of the second appeal under section 100 of the Code of Civil Procedure, it is no more res integra, as several judgments have been rendered by the Hon'ble Apex Court and by this Court explaining the scope and limitations contained in section 100 of the Code of Civil Procedure. While deciding an appeal and the provisions of section 100 of the Code of Civil Procedure, the scope is very narrow and limited to examine only if there is any perversity, illegality or arbitrariness in the judgment rendered by both the trial Court and the First Appellate Court. It is also relevant to mention that the aspect of perversity has been the subject matter of several decisions again rendered by the Hon'ble Apex Court that unless the findings of the Courts based on evidence both oral and documentary are perverse, this Court cannot in the second appeal decide for its own opinion being different from that of the two Courts to decide the same as perverse.
35. It is also necessary to mention that when two Courts have recorded a concurrent finding on fact, this Court in second appeal should be circumspect in interfering with
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 such findings of fact unless it is shown that there is serious perversity having been committed by both the Courts. This Court in several decisions has held that even if the finding of fact is decided by both the Courts concurrently, the general tendency would be for this Court not to interfere with such finding of fact, even if this Court were to be on different opinion than what is rendered by both the Courts. In the case of Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un-Niswan, reported in AIR 1999 SC 3067, the Hon'ble Apex Court while observing that the finding of fact could not be interfered in the second appeal has held as under:
"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu [(1996) 3 SCC 392]: (1996 AIR SCW 1331:AIR 1996 SC 3021), this Court held: "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 the second appeal under Section 100 of the Code in the way he did."
14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166: (1996 AIR SCW 3635: AIR 1996 SC 3521), this Court held: "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."
15. And again in Secretary, Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [(1997) 4 SCC 484,] this Court held: "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100, CPC and recording reverse finding of fact which is impermissible."
16. We are not referring to these judgments because they have laid down any new legal principles, but to highlight the fact how the High Court has overlooked these dicta.
17. In the narration of facts of this case in the paragraphs hereinabove, we have referred to minimal facts of the case only to show that the question involved in the suit as well as in the appeal was a pure question of fact. The recitals in the documents produced by the plaintiff itself established on their face the facts necessary to settle the question in dispute, without even having to interpret the contents of the documents. The two courts below have correctly understood the same. In the instant case, if the learned Judge of the High Court felt that there was a need for examining the evidence to find out whether the findings of the lower courts were either perverse or not borne out of records then we would have expected him to refer to and discuss the evidence in detail, pointing out the fatal error committed by the courts below in their finding of fact. In the instant case, the High Court after quoting
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 extensively from certain judgments of this Court and without pointing out how the ratio of those judgments applied to the facts of the present case, reversed the concurrent finding which, in our opinion, was wholly unwarranted. The trial court noted the specific admissions made by PW 1 during the course of his cross-examination which clearly negatived the case of the plaintiff/appellant. It also came to the conclusion that the evidence of PW 1 with reference to lack of opportunity given to the plaintiff was "clearly false". The first appellate court during the course of its judgment held that the plaintiff at the first appellate stage had filed a fabricated affidavit in support of its application under Order 41 Rule 27 CPC for additional evidence, and directed that steps should be taken to impound the affidavit in question and to keep the affidavit in safe custody for further action in the matter against the persons concerned. If really the High Court had applied its mind to the facts of the case, as understood by the two lower courts, then certainly it should have commented upon the above circumstances relied upon by the lower courts. All these facts noted above give us an impression that the High Court has interfered with the concurrent findings of the two courts below in a routine and casual manner by substituting its subjective satisfaction in the place of the lower courts.
18. For the reasons stated above, this appeal succeeds and the judgment and decree of the High Court under appeal is set aside, and the judgment and decree of the trial court in OS No. 5 of 1975 as affirmed by the first appellate court is restored. The appeal is, accordingly, allowed with costs."
36. Under the above said circumstances, the trial Court and the First Appellate Court have elaborately dealt with the matter by taking into consideration of the materials placed by the learned counsels for both the parties and arrived at a conclusion that the plaintiffs have not been able
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 to prove their title over the property when already half of the share was sold in favour of defendant way back in the year 1936. Under the circumstances, the trial Court has rightly dismissed the suit of the appellants/plaintiffs which is rightly confirmed by the First Appellate Court, it would not be necessary for this Court to venture into further examination of the factual aspects and the evidence as this Court is not sitting in the arm chair of appellate jurisdiction. As mentioned earlier, this Court is only concerned to see whether there is any illegality, perversity or patent error committed by both the Courts to reverse the finding of fact rendered by both the Courts.
37. The facts and circumstances of the case and the substantial question of law having been argued by both the parties and the substantial question of law sought to be framed by the appellant and the substantial questions of law framed by this Court on 25.01.2017, for the reasons stated hereinabove and for the reasons and the discussions made hereinabove, I do not find the appellants have made out any good ground to take a favourable decision on the said
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NC: 2024:KHC:43504 RSA No. 2580 of 2011 substantial questions of law framed by this Court. Accordingly these substantial questions of law Nos.(a), (b) and (c) are answered in the negative and that no further substantial question of law arise for consideration in this appeal. Hence, I pass the following:
ORDER
(i) The regular second appeal is dismissed.
(ii) The Judgment and Decree dated 29.08.2011, passed by the Addl. District Judge and MACT (Fast Track Judge), Chitradurga, in R.A.No. 56/2010 confirming the Judgment and Decree dated 20.04.2010, passed by the Civil Judge (Sr.Dn.), Challakere, in O.S.No. 105/2007 are hereby upheld.
(iii) No order as to costs.
Sd/-
(PRADEEP SINGH YERUR)
JUDGE
CKK-para 1 to 25
MRK-para
CT-MCK.