Karnataka High Court
Channabasappa S/O Shivalingappa ... vs Mahadevappa S/O Shivalingappa Police ... on 1 September, 2023
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NC: 2023:KHC-K:6953
RSA No. 7342 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 7342 OF 2011 (DEC)
BETWEEN:
1. CHANNABASAPPA,
S/O. SHIVALINGAPPA BIRADAR,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE,
R/O: H.NO.1-7, JAFFARABAD,
GULBARGA TALUKA & DISTRICT- 585 101.
2. HANMANTHAPPA,
S/O. SHIVALINGAPPA BIRADAR,
AGED ABOUT 46 YEARS,
OCC: AGRICULTURE,
Digitally signed R/O: H.NO.1-7, JAFFARABAD,
by SOMANATH
PENTAPPA GULBARGA TALUKA & DISTRICT- 585 101.
MITTE
Location: HIGH 3. SHIVASHANKAR,
COURT OF S/O. SHIVALINGAPPA BIRADAR,
KARNATAKA AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O: H.NO.1-7, JAFFARABAD,
GULBARGA TALUKA & DISTRICT- 585 101.
4. IRAMMA,
W/O. SHIVANNA,
AGED ABOUT 40 YEARS,
OCC: HOUSEHOLD,
R/O: CHOWDESHWARI COLONY,
GULBARGA- 585 102.
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RSA No. 7342 of 2011
5. BAYAWWA,
W/O. NAGANNA,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD,
R/O: SAVALAGI (B)
GULBARGA TALUK & DISTRICT- 585 101.
6. SHARANAMMA,
W/O. BASAWARAJ,
AGED ABOUT 44 YEARS,
OCC: HOUSEHOLD,
R/O: SINDAGI (B),
GULBARGA TALUK & DISTRICT- 585 101.
7. UMADEVI,
W/O. SHIVANAND NANDOOR,
AGED ABOUT 39 YEARS,
OCC: HOUSEHOLD,
R/O: NANDOOR (K),
GULBARGA TALUK & DISTRICT- 585 101.
...APPELLANTS
(BY SRI AMEET KUMAR DESHPANDE, SENIOR ADVOCATE FOR
SRI GANESH S KALABURGI ADVOCATE FOR APPELLANTS
NO. 1, 3, 5, 6 & 7)
AND:
1. MAHADEVAPPA,
S/O. SHIVALINGAPPA POLICE PATIL,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O: H.NO. 1-6,
JAFFARABAD,
GULBARGA TALUKA & DISTRICT- 585 101.
2. BABURAO,
S/O: SHIVALINGAPPA POLICE PATIL,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURE,
R/O: H.NO. 1-6,
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NC: 2023:KHC-K:6953
RSA No. 7342 of 2011
JAFFARABAD,
GULBARGA TALUKA & DISTRICT - 585 101.
3. GANGADHAR,
S/O. MAHARUDRAPPA POLICE PATIL,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
R/O: H.NO. 1-6,
JAFFARABAD,
GULBARGA TALUKA & DISTRICT- 585 101.
...RESPONDENTS
(BY SMT. MAYA T.R, ADVOCATE FOR R1 TO R3)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 29.06.2011 PASSED IN RA NO.23/2010 ON THE FILE OF
THE II ADDL. SENIOR CIVIL JUDGE AT GULBARGA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 11.2.2010 IN O.S.NO.355/2004 ON THE
FILE OF THE III ADDL. CIVIL JUDGE (JR.DN) GULBARGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THROUGH VIDEO CONFERENCING AT BENGALURU THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and decree dated 29-6-2011 in RA No.23/2010 passed by the learned II Additional Senior Civil Judge, Gulbarga, confirming the judgment and decree dated 11-2-2010 in OS No.355/2004 passed by learned III Additional Civil Judge (Jr.Dn), -4- NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 Gulbarga, dismissing the suit, the plaintiffs are in second appeal before this Court.
2. The brief facts that are relevant for the purpose of this appeal are that:
The plaintiffs- appellants filed a suit for declaration of ownership and perpetual injunction in respect of an open space adjunct to house No.1-7, measuring 91 feet East-
West and 34 feet North-South situated at Jaffarabad village, Taluk Gulbarga, with boundaries as below:
East : Residential house of the plaintiff; West : Main road;
North : 3 ft. common lane and then house of the defendant South: Temple and way to Temple The plaintiffs contended that the house No.1-7 with open space is the ancestral property of the plaintiffs and is recorded in the Panchayat records in the name of their father. After the death of their father and mother, they have succeeded to the property and the Panchayat records show their name. They also contended that plaintiff Nos. 4 to 7 are married and they are living in their respective matrimonial homes. They also contended that there was -5- NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 no partition among the plaintiffs and the suit open space is a part and parcel of the house of the plaintiffs bearing Panchayat No.1-7 and is kept open for further construction of the house. They contended that house of the defendants is situated towards north of the house of the plaintiffs as well as the suit open space and there is a
3 feet lane between the house of the plaintiffs and the defendants which separates the house of the plaintiffs and the defendants, running East-West. It is contended that defendant Nos. 1 and 2 are brothers and defendant No.3 is their cousin.
3. Plaintiffs contended that the defendants tried to claim the suit property against which the plaintiffs gave a complaint to the Panchayat and again they came to the suit property on 7-11-2004 and claimed that the suit property belongs to them and laid a claim of ownership. Therefore, the plaintiffs apprehended that the defendants would try to dispossess the plaintiffs and as such, they filed the suit seeking declaration of their title to the suit -6- NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 open space and consequential relief of perpetual injunction.
4. On being summoned by the trial Court, the defendants appeared and filed their written statements denying the claim made by the plaintiffs. They contended that they are the owners of the house bearing No.1-6 and the suit open space which is situated on the southern side of their house and is a part and parcel of the Panchayat No.1-6. Inter alia, they also contended that the suit open space is separated by a 3 feet lane on the western side of the house of the plaintiffs bearing Panchayat No.1-7, but it is not divided by a common lane of 3 feet width on the southern side of the house of the defendants. They also denied that the suit open space is part and parcel of House No.1-7 of plaintiffs; however it is part and parcel of the house bearing No.1-6 belonging to them. It was further contended that the house bearing Panchayat No.1-6 along with the suit open space is belonging to them and earlier it was in the name of one Anna Rao Police Patil and after his death, the defendants along with their cousin have filed an -7- NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 application covering the suit property along with the house totally measuring 15370 Sq.Ft. for effecting the mutation in the village Panchayat on 3-3-2001, which is prior to the filing of the suit. They also contended that there is a door in the house bearing No.1-6 towards southern side for having access to the suit open space and therefore, the plaintiffs do not have any right, title or interest in the suit property.
5. On the basis of the above pleadings, the trial Court had framed the following issues and on the basis of the ocular evidence of the PWs. 1 to 6; and documents at Exs.P1 to P8 on behalf of the plaintiffs; and DWs 1 to 4 and Exs.D1 to D14 on behalf of the defendants; and after hearing the arguments by both sides, answered the issues as below:
Issues Answer
1. Whether the plaintiff proves that the plaintiffs In the negative co-owners of the suit schedule property as pleaded in the plaint?
2. Whether the plaintiff proves their possession In the negative over the suit schedule property as on the date of the suit?
3. Whether the plaintiff proves the alleged In the negative interference with the suit schedule property by the defendants?
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4. Whether the defendants proves that the suit Does not survive schedule property belong to them as pleaded for consideration in Written Statement?
5. Whether the plaintiff are entitled to the relief In the negative sought for?
6. What order or decree? As per final order, for the following
6. In view of the above findings, the trial Court dismissed the suit of the plaintiffs. Being aggrieved by the dismissal of the suit, the plaintiffs approached the First Appellate Court in RA No.23/2010. The First Appellate Court, after hearing both the sides, framed the points for consideration and answered the same as below:
Points Answer 1. Whether the plaintiffs have proved before the In the negative
trial Court that they are the owners of and in possession of the Suit open space?
2. Whether the Judgment and Decree of the Trial In the negative Court require interference by this Court in Appeal?
3. What Decree or Order? As per the Final Order for the following
7. In view of the above findings, the First Appellate Court also dismissed the suit of the plaintiffs by impugned judgment dated 29-06-2011.
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
8. Now the plaintiffs are before this Court in the second appeal contending that, the judgment and decree of the Courts below are totally against the law and evidence of the case. It is contended that the admissions given by DW.2 was not at all appreciated by both the Courts and the sketch produced by the plaintiffs as per Ex.P8 was not properly understood by the Courts below. It is contended that the open space measuring 91 feet East-West and 34 feet North-South was part and parcel of house No.1-7 which is adjunct to the said house and it is not at all connected to the property bearing No.1-6 of the defendants. It is contended that the appreciation of the entire records by the Courts below is totally perverse and therefore, they are liable to be set aside. It is contended that an application was filed before the Court below to summon the Secretary of the Gram Panchayat to produce the original map and to give evidence, but the trial Court had rejected the applications on the ground that the suit property is part of house No.1-7 and the plaintiffs have to secure the alleged map. It is contended that the map
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 produced by the defendants in respect of house No.1-6 was not a document which was legally admissible in evidence. Therefore, the production of the original document will prove that the Gram Panchayat cannot approve any maps for construction of any property and the rejection of the Interim Application filed by the appellants/plaintiff has caused substantial injustice to the plaintiff.
9. At the time of the admission, the following substantial question of law was framed by this Court.
"Whether the assessment of evidence, particularly with reference to Ex.P8 is perverse?"
10. The trial Court records have been secured and on being issued with the notice, the defendants/respondents have appeared before this Court through their counsel.
11. The arguments by Sri Ameet Kumar Deshpande, learned Senior Counsel for Sri Ganesh Kalaburagi, for
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 appellants No.1,3,5,6 and 7 and learned counsel Smt. Maya T.R. for respondents were heard.
12. During the pendency of this appeal, the appellants have filed an application under order 41 rule 27 CPC seeking production of the additional evidence.
13. The affidavit filed in support of the application states that the father of the plaintiffs had given an application on 9-8-1994 to Grampanchayat Bhimalli to mutate the name of his wife to House No.1-7 by showing the measurement of the said house. The application was filed at an undisputed point of time and an application filed before the trial Court to summon the documents of the Panchayat was rejected by the trial Court. When the son of the appellant No.1 was cleaning the house on 9-4-2023, he found an old trunk of his grandfather which contain the application with an acknowledgment of the Panchayat and such document needs to be produced before the Court. It was contended that the appellants did not possess the knowledge of such application
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 retained by their father and the said document would have a bearing on the out come of the suit and therefore, the application be allowed.
14. The said application is opposed by the defendants/respondents contending that the applicants have not approached the Court with clean hands and the document sought to be produced is a concocted and fabricated document and the grounds that are permissible under order 41 Rule 27 of CPC are not made out. It is contended that the document sought to be produced by the plaintiffs/appellants is not at all relevant for the just adjudication of the suit. Hence, they have sought for dismissal of the same.
15. The application under order 41 Rule 27 of CPC entails production of the additional evidence at the appellate stage only if the conditions laid down in Rule 27 are met with. The appellants herein are seeking indulgence of this Court in permitting them to produce an application filed by their grandfather to the Panchayat
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 seeking to enter the name of his wife by mentioning the measurement of the suit property. They contend that the said document was submitted to the Panchayat in the year 1994 and it was found by them recently while searching the trunk of the grandfather. The second ground contended is that, they had filed an application before the trial Court seeking to summon the said document from the Panchayat, which was rejected by the trial Court. Obviously, the said document is in respect of the property bearing Panchayat No.1-7 belonging to them. A perusal of the trial Court records show that the said IA No.VIII was rejected by the trial Court 22-2-2007. Against the said order, the appellants/plaintiffs had filed W.P.No.5374/2007 before this Court and ultimately, the said writ petition also came to be dismissed by this Court by order dated 10-7-2008. A perusal of the order passed by this Court shows that the appellants had sought for the records pertaining to the property belonging to the defendants, i.e., 'panchayat No.1-6', but not 'property No.1-7'. Therefore, this second contention is not
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 permissible as it was not an application to summon the documents of Panchayat No.1-7.
16. It is pertinent to note that the Panchayat records perse do not contain the sketch of the property. The Panchayat maintains certain records in order to facilitate the recovery of the taxes and since such records are kept in due course of business, they attain the character of an acceptable public document. In the case on hand, the plaintiffs contend that their grandfather had mentioned the measurement of the property in the application filed before the Panchayat seeking transfer of the said property to his wife by way of mutation entry. It is obvious that, the said document could have been produced by them at the time of the trial. The affidavit filed in support of the IA contends that they have made efforts to secure the said document, but they were unable to lay their hands on the same. Therefore, it is evident that they had not exercised diligence at the time of the trial.
17. Rule 27(1) of Order 41 of CPC reads as below:
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 "27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.
But if--
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
18. Thus, it is evident that the ground under Rule 27(1)(a) is not available for the appellants herein. Secondly, the due diligence in securing the document and producing the same at the time of the trial is not established and as such, the ground under Clause- (aa) is not available to the appellants. Thirdly, such application may be allowed only if the appellate court requires such document to be produced to enable it to pronounce the
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 judgment or for any other substantial cause. This being the second appeal, the scope of the appeal is only within the parameters of Section 100 of CPC. In the following paragraphs, this Court comes to the conclusion that no such additional evidence is required for a just decision in the matter. Hence, the application is devoid of any merits and as such, liable to be dismissed and accordingly, it is dismissed.
19. The learned Senior Counsel appearing for the appellants contends that the suit schedule property was the ancestral property of the plaintiffs and they had inherited the same along with the house No.1-7. He submits that the suit open space is adjacent to their house and therefore, the said property belongs to them. In furtherance of his contentions, he submits that the cross- examination of DWs. 2 and 3 show categorical admissions that the suit open space is used by the plaintiffs and no discernible admissions are elicited in the cross- examinations of PWs 1,2,3 5 and 6 and therefore, the
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 plaintiffs have proved their case. He submits that the defendants have not produced any acceptable document of title in respect of their claim over the suit open space and they also claim on the ground that the suit open space is adjoining their house. He submits that the two views are not equally poised. But the weight of the evidence leans in favour of the appellants. He points out that the topography, situation, payment of the taxes, contiguousness of the property to that of the house of the plaintiffs, existence of a lane of 3 feet width between the suit open space and the house of the defendants are in favour of appellants. Whereas, the defendants are only relying upon certain stray admissions of the plaintiffs' witnesses and the alleged Panchayat records. He points out that the Panchayat records are nothing but an outcome of an application filed by the defendants and therefore, the preponderance of probability lies in favour of the plaintiffs, which was not properly assessed by the trial Court and the First Appellate Court. He submits that if a document is there and is not produced, then one can
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 say that non production of the title deeds of such document is detrimental to such party but when no document is available or shown to be available, it is only the preponderance of probability which needs to be considered. In this regard, he relies on the decision in the case of Makamedsaheb Ibrahimsaheb Vs. Tilokchand Abherchand Marwadi1 wherein, it was held as below:
"In appeal the learned judge was of opinion that the evidence of the witnesses on both sides was unworthy of credit. But the plaintiff having established his title over the plaint property he could rely upon the presumption that possession goes with the title. There being no satisfactory evidence in rebuttal the presumption must be given effect to"
Xxx xxx xxx "Now a reference to the Map in this case would show that the plaint sites lie adjacent to and appurtenant to the shop which was purchased by the plaintiff together with the sites and it certainly would not be necessary for him to preserve evidence that ever since the date of his purchase he was in active possession of those open sites. Possession of those sites would naturally go with 1 AIR 1922 BOMBAY 243
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 the possession of the shop, and when the defendant asserted his right over the open sites he would have to show in the absence of any evidence that these sites ceased to be appurtenant to the shop, and that he had been in possession adversely against the owner of the shop. Therefore this is one of those cases in which the fact of the plaintiff's title comes of his aid with greater force as far as the evidence goes with regard to the possession of the open sites; and eliminating all the oral evidence on both sides as being unsatisfactory, and naturally, considering the position of these open sites, and the difficulty of proving active user, it would be unsatisfactory, we think the learned Assistant Judge was perfectly right in holding that possession went with the title. Therefore, unless the defendant could show that he had been in possession adversely to the plaintiff for more than twelve years, the plaintiff would be entitled to a decree xxx xxx xxx".
20. He further relied on the decision in the case of T.S.Murugesam Pillai Vs. M.D. Gnana Sambandha Pandara Sannadhi2 to contend that, in the absence of best available evidence, the principles of preponderance of probability needs to be considered. In the said decision, it was held as below:
2
AIR 1917 Privy Council 6
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 "A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough: they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordship's opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in this case by the first witness that 'the mutt has regular fair day books; they are not now before the Court; ledgers are also maintained in the mutt." These ledgers and day-books were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The proposition that these defendants challenged was that the expenses incurred had been incurred for the mutt and were necessary for its purposes. The best assistance to a Court of Justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view the defendants would have brought them into Court. This part of the case, which in their Lordships'
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 view is of considerable importance, is not referred to in the High Court. Their Lordships will humbly advise His Majesty that this appeal should be allowed, the decree of the High Court set aside, the decree of the Court of the Subordinate Judge restored. The respondents will pay the costs of the cause since the date of the Subordinate Judge's decree and also the costs of this appeal."
21. He also relied on the decision in the case of Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others3 there again, it was held that "even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which throw light on the facts at issues. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
22. So far as the impugned judgments are concerned, the learned Senior Counsel for the appellants contended that both the Courts have not properly 3 AIR 1988 SC 1413
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 assessed the evidence with reference to the sketch produced by the plaintiffs as per Ex.P8. He submits that the cross-examination of DW2 wherein he categorically admitted the description mentioned in Ex.P8 was never appreciated by the Courts below. Therefore, he contends that the assessment of the evidence particularly, with reference to Ex.P8 is perverse.
23. He contends that the Courts assumed that there is a document of title and say that such document is not produced by the plaintiffs. It was an ancestral property since time immemorial; therefore, obviously, there is no document of title. It was inherited by the plaintiffs and is adjoining their house and therefore, they are entitled for the declaration. In this regard, he relied on the decision in the case of Parmar Gogji Kana vs. Parmar Ganesh Moti4, wherein, it was held as below:
"Open site in front of a house in the absence of evidence to the contrary goes with the ownership of the 4 AIR 1968 GUJARAT 287 (V 55 C 49)
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 house itself. Possession thereof also goes with the possession of the house to which it appertains. AIR 1922 Bom 243. Rel on.
That however does not mean that the owner of the house can make use of that open space in any manner he likes. He has to keep it open for reasonable enjoyment of a right which the owner of the adjoining house and persons living in his house together with cattle etc. have of passing through that open space. He cannot put materials or tether cattle as to cause obstruction to this right of passage."
24. Therefore, the learned Senior Counsel for the appellants has sought to remand the matter to the First Appellate Court for reassessment of the evidence and to give a finding.
25. Per contra, the learned counsel for the respondents has contended that the plaint sketch which is marked at Ex.P8 is denied by the defendants and therefore, the burden of proving the said sketch is on the plaintiffs. She submits that the cross-examination of PW5 show that he has admitted that there is a 3 feet lane on the eastern side of the suit property which is adjoining the
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 house of the plaintiffs. This indicates that the suit open space is totally separated by the lane and therefore, it cannot be said that the suit open space is part and parcel of the house of the plaintiffs bearing No.1-7. She submits that on the southern side of the house of the defendants, there is a door which opens into the suit open space. If at all, the suit open space was the property of the plaintiffs, there could not have been a door opening towards the southern side. The fact that there is such door on the southern side of the wall of the property of the defendants is also borne out of the records at Ex.P3A. She submits that while the defendants were constructing the house under the permission of the Panchayat, they had submitted the sketch to the Panchayat as per Ex.P3A and the Panchayat had permitted the construction of the house excluding the property belonging to the Government. Therefore, she contends that the existence of the suit open space as part and parcel of the house of the defendants bearing No.1-6 has been established. She also contends that there is no material to show that the suit
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 schedule property, which is the open space was an ancestral property and it was enjoyed by the plaintiffs since the time of their forefathers.
26. So far as the contention that DW3 had admitted the existence of a 3 feet lane in between the suit open space and the house of the defendants is concerned, she submits that it is a stray sentence in the cross- examination. In this regard, she relies on the decision in the case of P. Damodara Raju Vs. Smt. R.S. Parameshwari5, wherein, it was held as below:
"B. EVIDENCE ACT, 1872- Sections 17 and 21- Admission-Statement if found to be an inadvertent error or statement made unintentionally-Would be a stray sentence and has no value-before drawing any inference, whole evidence must be scrutinized.
Held: What is of utmost importance is that a clear conclusion must be drawn whether a sentence or statement can be considered as stray. It may be possible that a witness whilst under cross-examination may alter owing to failure to grasp the question posed to him or confusion in understanding a tricky question, the answer 5 2019 (4) KCCR 3578
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 to which may possibly be construed disadvantageous to him. Therefore in a situation like this, before drawing any inference, the whole evidence must be scrutinized to examine whether it is possible to separate an answer from the other consistent answers or statements, the tenor of answers must be seen. If it is found that on a particular issue or aspect, a witness has given answers consistently and it is improbable to expect an answer inconsistent with other part of evidence, that particular statement or answer can be considered as stray sentence or statement or admission, otherwise not. It is not every answer that goes against a witness can be considered as stray admission; if this interpretation is given, the purpose of cross examination fails."
27. A similar view was also expressed in the case of Puttanna Shetty (deceased) by LRs and others Vs. Padma Shetty (deceased) by LRs and others6.
28. Further she contended that, it is the plaintiffs who have approached the Court and therefore, the burden of proving that the suit schedule property is of their ownership is on them. They cannot rely on the weakness 6 2007 (3) KCCR 2107
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 of the defendants. In this regard, she relies on the decision in the case of Annappa Vs. Laxmi Devi Devar Temple and Nulichandayya Devasthan Committee and others7. She also relies on the decision in the case of Union of India and others Vs. Vasavi Co-operative Housing Society Limited and others 8 , wherein, it was held as below:
"The plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."
29. She further contended that though this Court had framed a substantial question of law, in fact, there is no such substantial question which exists. She submits that the one framed by this Court is nothing but a question of 7 2016(5) KCCR 1233 8 AIR 2014 SC 937
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 fact which was finally decided by the First Appellate Court. Therefore, she contends that the appeal itself is not maintainable under Section 100 of CPC. In this regard, she relied on the decision in the case of Smt. Mohini Kharvi and others Vs. Sri Dasa @ Minna Kharvi and others9, wherein several decisions regarding scope and ambit of Section 100 of CPC were referred to.
30. In the light of the above submissions, it is necessary to look into the question whether the appeal falls within the scope of Section 100 of CPC and there exists a substantial question of law framed by this Court at the time of the admission? The question as to what constitutes a substantial question of law is no more res-integra. There are several decisions in which the Apex Court has clarified as to what constitutes a substantial question of law. It is appropriate to refer to the decision in the case of C. Doddanarayana Reddy Vs. C. Jayarama Reddy 10, 9 2023 (1) KCCR 99, 10 (2020) 4 SCC 659.
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 In para 25 to 28 of the said judgment, it was held as below:
"25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] , it was held that findings of the fact could not have been interfered within the second appeal. This Court 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] , 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 the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 appeal under Section 100 of the Code in the way he did.'
14. In Navaneethammal v. Arjuna Chetty [ (1996) 6 SCC 166] , 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 Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. [ (1997) 4 SCC 484] , this Court held :
'5. ... 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.'"
26. In a judgment in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] , this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 on the High Court. In the said case, the first appellate court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under :
"5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 by the Apex Court, or was based upon in inadmissible evidence or arrived at without evidence."
27. In another judgment in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179], this Court held as under:
"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 impelling necessity of avoiding prolongation in the life of any lis."
28. Recently in another judgment in State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637] , it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by the learned Judge Vivian Bose, J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar [1942 SCC OnLine MP 26 : AIR 1943 Nag 117]."
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
31. Further, the decision of the Apex Court in the case of Gurnam Singh Vs. Lehna Singh11 also delves into the question as to what is the scope of Section 100 of CPC. It was observed that, "in a second appeal, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower court were erroneous on account of they are contrary to the mandatory provisions of the law or contrary to the law enunciated by the Apex Court or based on inadmissible evidence or no evidence. In the words of the Apex Court, it was held as below:
"13. At the outset, it is required to be noted that the learned trial court held the will dated 17-1-1980, which was executed in favour of original Defendants 2 to 6, surrounded by suspicious circumstances and therefore did not believe the said will.
13.1. The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will 11 (2019) 7 SCC 641
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [(1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
(i) Contrary to the mandatory provisions of the applicable law; OR
(ii) Contrary to the law as pronounced by the Supreme Court; OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
14. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain [(2000) 1 SCC 434] . In the aforesaid decision, this Court has specifically observed and held:
"Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise."
32. This Court had heard the counsels and framed the substantial question of law as referred above. The question pertains to the mode and manner of the assessment of the evidence of the parties with respect to the sketch at Ex. P8. The trial Court and the First Appellate Court had come to concurrent conclusions. Therefore, this Court has to consider as to whether the Courts below have erred in appreciating the evidence on record, i.e., to say whether it was by erroneous application of law or of no evidence, with respect to Ex.P8.
33. Now coming to the case on hand, the plaintiffs have approached this Court contending that the Courts below had not assessed the evidence in a proper way. Accordingly, a substantial question of law was framed by
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 this Court as noted supra. The grounds that are contended by the appellants seeking indulgence of this Court is based on (a) there were admissions by DWs 2 and 3 regarding the use and occupation of the suit open space by the plaintiffs; (b) the appreciation of the evidence was not proper; and (c) there is perversity in the conclusions reached by the First Appellate Court as well as the trial Court.
34. It is pertinent to note that the cross-examination of DWs. 2 and 3, was considered by the trial Court in para 23 of the judgment. After considering such evidence, the trial Court has come to the conclusion that such admission of DW2 is nothing but a stray sentence and it was not found to be satisfactory. I have gone through the cross- examination of DW2 and DW3 and I do not find any reason to differ with the conclusions reached by the trial Court. It is pertinent to note that the plaintiffs have examined four witnesses in support of their case i.e. PWs- 1,2, 5 and 6. PWs. 3 and 4 had not offered themselves for cross-examination and as such, their testimonies have
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 been discarded. The cross-examination of PW5 also has certain admissions and he admits that there is a lane on the eastern side of the suit schedule property. This indicates that there is a lane bifurcating the suit open space and the house of the plaintiffs. The cross- examination of DW.2 shows that there is a lane in between the house of the plaintiffs and the defendants. He also states that half of the open space is adjoining the rear wall of his house and the remaining half of the open space is adjoining the rear wall of the house of the defendants.
35. It is relevant to note that, it is not the quantity of the evidence which is relevant, but it is quality of the evidence which is to be considered by the Courts. It is evident that the oral testimonies of the witnesses have been considered by the trial Court in coming to the conclusion. Evidently, such evidence was only in respect of the use, occupation and the topography of the suit open space. The oral testimony cannot be sufficient and conclusive evidence regarding the ownership and title.
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
36. No other specific instance where the appreciation of the evidence was not proper was pointed out by the learned counsel for the appellants. It is pertinent to note that there is absolutely no documentary evidence which is available on record which falls within the ambit of a title deed. Indeed, it is true that there may not be title deeds in respect of the ancestral property. But the mention of the measurement of the property in any of the revenue records/Panchayat records would be a relevant fact to infer title to the property.
37. Obviously, the plaintiffs now seek to introduce evidence under order 41 Rule 27 of CPC to contend that their grandfather had filed an application to the Panchayat indicating the measurement of the property. Such application would be nothing but assertions by the parties about their property, but they cannot be the facts maintained by the panchayat or the revenue authorities. It is evident that, in the due course of the business, the Revenue department or the Panchayat would maintain
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 certain records for the purpose of assessing the land revenue or the property tax. By their long standing entries which are entered in due course of business, they attain acceptability and take the status of an evidence of the ownership. If such long standing and undisputed entries are there, they can be accepted. The Panchayat records do not show the measurement of the property was part of mandatory requirements of the records they should have kept. Simply because the plaintiffs' grandfather had given an application to the Panchayat indicating the measurement, it cannot be a document of title.
38. The situation is no different to the defendants. Ex.D3 is an application filed by them for construction of a structure which was approved by the Panchayat. Simply because the Panchayat had given permission for the construction with certain conditions, it cannot be said that the property which the defendants had asserted in their application is owned by them. In the case on hand, either the plaintiffs or the defendants have not shown that the
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 suit open space was asserted by them to be of their ownership since the time of their ancestors. Therefore, the Panchayat records or the applications cannot be the documents of title, be it is of plaintiffs or the defendants.
39. It is relevant to note that the entire case of the appellants is based on the oral testimony. It is relevant to note that para 24 of the judgment of the trial Court refers to a contention taken up by the appellants in MA No.1/2005 (arising out of the order on interlocutory order for injunction in this suit), wherein it was stated that the title deeds pertaining to the suit open space was produced before the Panchayat and therefore, they could not be filed before the Court. If at all if the plaintiffs had such title deeds, they could have produced the same before the trial Court by summoning the same. No such evidence was produced by the plaintiffs. Therefore, I do not find any reason to hold that the appreciation of the evidence by trial court was not proper.
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
40. It is also evident that there is no such perversity in the appreciation of the evidence by both the Courts below. Nothing is pointed out by the appellants wherein there is perversity in the conclusions reached by the First Appellate Court or trial Court. Both the Courts have come to the conclusions that the plaintiffs had not proved the title to the suit open space. In coming to such conclusions, they had placed reliance on the oral testimony.
41. The perusal of the judgment of the First Appellate Court discloses that it has considered the testimony of DW2 in para 22 of its judgment. It has considered the evidence of the witnesses of the plaintiffs in para 20, 21 and 24 of the judgment. Then it has come to the conclusion that the 3 feet lane either adjoining the house of the plaintiffs on the western side or the lane on the southern side of the house of the defendants would not determine the title to the property.
42. The perusal of the cross-examination of PW.1 discloses that on the eastern side of the suit open space,
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 there is 3 feet lane and on the western side there is a public road. Further the cross-examination of PW.2 discloses that the existence of a coarse stone compound exists East-west to the suit open space. He denies that there is a door on the southern wall of the house of the defendants. However, it was not elicited from him as to whether there is any 3 feet lane on the eastern side of the suit open space. The cross-examination of PW.5 is also on the same lines. But he admits that there is a 3 feet lane on the eastern side of the suit open space as well as there is a lane on the western side. He has volunteered that on the Northern side of the suit open space there is a lane. The evidence of PW6 shows that he do not say anything about the lanes, but he admits that the suit open space is used by Mahadevappa i.e. the defendant.
43. The above testimony of the witnesses was considered by the First Appellate Court in para 24, but however, its conclusions regarding the evidence of PWs. 2 and 6 appear to be improper as it has held that these
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 witnesses also admit about the 3 feet lane on the eastern side of the suit open space. However, it notices that these admissions would not go to show the title to the property.
44. In para 22, it has considered the testimony of DWs.2 to 4. It has noticed that DWs.3 and 4 have admitted the suggestion that Ex.P8 sketch is correct. However, DW.2-Gangadhar, states that half of the open space is adjoining the rear wall of his house and the remaining half is adjoining the rear wall of the house of the plaintiffs. There is a stray sentence in page 7 of the cross examination, where he admits that plaintiffs are the owners of the suit property. It is evident that the suit property appears to have not been understood in the proper perspective. The cross-examination of DW3- Mallinath, discloses that he admits that there is a open space on the eastern side of the suit open space. His cross- examination is not of any help to the plaintiffs. DW.4 Shankar simply says that Ex.P8 is correct.
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011
45. This ocular evidence of the witnesses was considered by the First Appellate Court and it came to the conclusion that these admissions do not throw any light in respect of title to the property. It has relied on the evidence of PWs.1 and 5 where they had admitted that there is a lane on the eastern side of the suit property which was not in consonance with Ex.P8. Therefore, it concluded that the plaintiffs had not proved their case.
46. The First Appellate Court has come to the conclusion that the existence of the lane on the eastern or northern side of the suit open space will not determine the title to the suit property. Therefore, it concluded that the plaintiffs had failed to prove the title to the suit property. I do not find any reason to differ with the conclusions of the First Appellate court in this regard. The assessment of the evidence, either documentary or ocular with reference to Ex.P8 is proper and correct.
47. The learned counsel appearing for the appellants has contended that the open space which is adjoining the
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 house owned by a person belongs to him only by relying on the decision in the case of Parmar Gogji Kana (supra). It is pertinent to note that it was a case concerning the right of easements. It was held that open site in front of the house, in the absence of evidence to the contrary goes with the ownership of the house itself and the owner has the right to use such open space which appertains to the house. It is also relevant to note that in para 6 of the judgment, as reproduced supra, the owner of the house cannot use it in any manner he likes. It was a case pertaining to the easementary rights and therefore, the principles cannot be applied to the case on hand which is for declaration of the title.
48. In view of the foregoing discussions, I do not find any perversity or the error regarding the assessment of the evidence with reference to Ex.P8. PWs.1 and 5 had admitted that the suit open space was also used by the defendants and there is a lane in between the suit open space and the house of the plaintiffs. Simply because
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NC: 2023:KHC-K:6953 RSA No. 7342 of 2011 DWs. 2 and 3 have stated about the correctness of Ex.P8, that would not make the plaintiffs entitled for the reliefs. The plaintiffs have to stand on their own legs but cannot rely on the lacunae in the evidence of the defendants. Hence, the substantial question of law raised is answered in the negative.
49. As a consequence, the appeal is bereft of any merits and as such, the same is dismissed.
Sd/-
JUDGE tsn* Sl No.: 1