Karnataka High Court
D. Jagadeesh vs A.C. Shankar on 23 January, 2024
1
RFA NO. 185/2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
REGULAR FIRST APPEAL NO. 185 OF 2013(DEC)
BETWEEN:
D. JAGADEESH,
S/O SRI. DODDAMALLAIAH,
C/O SRI M.V. DEVARAJ,
AGED ABOUT 35 YEARS,
D.NO.17/1, VEENE SHESHANNA ROAD,
1ST CROSS, BEHIND AMBA NILAYA,
K.R. MOHALLA, MYSORE-570 001.
REP. BY HIS G.P.A. HOLDER,
M.G. HEMANTH KUMAR,
AGED ABOUT 42 YEARS,
S/O M.V. GANESHWAR,
AT NO.1036/18B, S.J.H. ROAD,
2ND CROSS, 4TH MAIN,
VIDYARANYAPURAM,
MYSORE-570 008.
...APPELLANT
(BY SRI KRISHNAMURTHY G HASYAGAR, ADVOCATE [V/C])
AND:
1. A.C SHANKAR,
S/O A.S CHAYAKANTA SETTY,
AGED MAJOR,
NO.43, MIG, 2ND STAGE, KHB COLONY,
VIJAYANAGAR NORTH,
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RFA NO. 185/2013
BANGALORE-560 040.
2. A.S MADHUKUMAR, MAJOR,
S/O A.C. SHANKAR
NO.43, MIG, 2ND STAGE, KHB COLONY,
VIJAYANAGAR NORTH,
BANGALORE-560 040.
3. A.V. SURYAPRAKASH, MAJOR,
S/O A.S. VENKATACHALA SETTY.
4. A.S. CHETHAN, MAJOR,
S/O A.V. SURYAPRAKASH.
5. A.V. RAMDAS, MAJOR,
S/O LATE A.S. VENKATACHALA SETTY.
6. A.R. SRINIVASA @ VENKATESH, MAJOR,
S/O A.V. RAMADAS.
RESPONDENTS NO. 3 TO 6 ARE
R/O NO.1066, SHIVARAMPET,
MYSORE-570 001.
7. SMT A.V. KANAKARATHNAMMA, MAJOR,
W/O LATE A.S. VENKATACHALA SETTY.
8. A.V. SATHYANARAYANA, MAJOR,
S/O A.S.VENKATACHALA SETTY.
9. A.S. DINESH, MAJOR,
S/O A.V. SATHYANARAYANA,
RESPONDENTS 7 TO 9 ARE
R/O DOOR NO.100, R.V. ROAD
BANGALORE-560 004.
10 . A.R. GOVINDA SETTY, MAJOR,
S/O A. RAJAGOPAL SETTY.
11 . A.G. RAMPRAKASH, MAJOR,
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RFA NO. 185/2013
S/O A.R. GOVINDA SETTY.
12 . A.G. RAGHURAM, MAJOR,
S/O A.R. GOVINDA SETTY.
13 . A.G. DASHARATHA, MAJOR,
S/O A.R. GOVINDA SETTY.
14 . A.G. ASHOKA, MAJOR,
S/O A.R. GOVINDA SETTY.
15 . A.G. RAMASETTY, MAJOR,
S/O A. RAJAGOPAL SETTY.
16 . A.R. GANESHWAR, MAJOR,
S/O A.R. RAMASETTY.
17 . A.R. JAYARAMA, MAJOR,
S/O LATE A. RAJAGOPAL.
18 . A.J. VENKATESH, MAJOR,
S/O A.R. JAYARAM.
19 . A.R. JANAKIRAM, MAJOR,
S/O A. RAJAGOPAL SETTY.
20 . A.J. PRASHANTH, MAJOR,
S/O A.R. JANAKIRAM.
21 . A.P. SEETHARAM, MAJOR,
S/O A. RAJAGOPALA SETTY.
22 . A.S. ARAVINDRAN, MAJOR,
S/O A.R. SEETHARAM.
23 . SMT. P. PREMALEELA, MAJOR,
W/O A.R. VASUDEVA SETTY.
24 . A.V. ANANDA RAM, MAJOR,
S/O A.R. VASUDEVA SETTY.
25 . A.V. BADARI RAM, MAJOR,
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RFA NO. 185/2013
S/O A.R. VASUDEVA SETTY.
RESPONDENTS 10 TO 25 ARE
R/O DOOR NO.1596, KABIR ROAD
MYSORE-570 001.
26 . M/S. BHAVANI ENTERPRISES,
PROP: GOVINDARAJULU &
M.V. CHANDRASHEKAR, NO.206,
II FLOOR, BRIGADE MM ANNEXE,
INDUSTRIAL ESTATE, YEDIYUR,
K.R. ROAD, BANGALORE-560 070.
27 . THE COMMISSIONER,
MYSORE CITY CORPORATION,
NEW SAYYAJI RAO ROAD,
MYSORE-570 001.
28 . M.A. SHARIFF, MAJOR,
PROPRIETOR OF
SHARIFF SALES AND GENERAL AGENCIES,
OLD NO.215 AND 215/1, NEW NO.65/1,
SAYYAJI RAO ROAD, MANDI MOHALLA,
MYSORE-570 001.
29 . SRI G. BALAKRISHNA, MAJOR,
PROPRIETOR, RAJ & BROTHERS,
OLD NO.210, SAYYAJI RAO ROAD,
MANDI MOHALLA, MYSORE-570 001.
30 . B.M. SIDDEHWAR, MAJOR,
M/S. PANCHACHANYA ELECTRIC PRESS,
OLD NO.216/2, NEW NO.65/2,
SAYYAJI RAO ROAD, MYSORE-570 001.
31 . M.P. NAGARAJ, MAJOR,
NO.211, SAYYAJI RAO RAOD,
MANDI MOHALLA, MYSORE-570 001.
32 . R. SUBRAMANYAM, MAJOR,
G.P.A. HOLDER TO R. KRISHNASWAMY & CO.,
5
RFA NO. 185/2013
D.N.213, SAYYAJI RAO RAOD,
MANDI MOHALLA, MYSORE.
...RESPONDENTS
(BY SRI S RAMESH, ADVOCATE FOR R12 TO R17, R19, R20, R22
TO R25;
SRI D.R SUNDARESHA, ADVOCATE FOR R26 [V/C];
SRI MOHAN BHAT, ADVOCATE FOR R27;
VIDE ORDER DATED 03.01.2018 NOTICE TO R1, R2 AND
R21 ARE DISPENSED WITH;
R3, R4, R5, R6 ARE SERVED;
V/O DATED 29.05.2015 NOTICE TO R7 TO R11 AND R18
ARE DISPENSED WITH;
R28, R30, R31 AND R32 ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 20.10.2012 PASSED IN
O.S.204/2008 ON THE FILE OF THE III-ADDL. SENIOR CIVIL
JUDGE, MYSORE, DISMISSING THE SUIT FOR DECLARATION,
MANDATORY INJUNCTION AND PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 09.01.2024, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by the judgment of dismissal of O.S.No.204/2008 on 20-10-2012 passed by the III Additional Senior Civil Judge and CJM, Mysore, the plaintiff is before this Court in appeal.
2. The brief facts as contended by the appellant- plaintiff are as below:
6RFA NO. 185/2013
(a) The plaintiff filed the suit against the defendants seeking relief of declaration that he is the absolute owner of the suit schedule property; defendants No.1 to 26 have no right, title or interest over it and therefore, the sale deed dated 16.03.1984 executed by the defendants No.1 to 25 in favour of defendant No.26 is not binding on the plaintiff; also for mandatory injunction directing the defendant No.27 i.e., the Mysore City Corporation, to change the khata of the suit schedule property into the name of the plaintiff and for permanent injunction to restrain the defendant No.26 from interfering with the peaceful possession and enjoyment of the suit schedule property.
(b) The building bearing door Nos.209 to 216, 379 and 590 is the suit schedule property and it is the ancestral property of the plaintiff and he is in possession and enjoyment of the same as absolute owner by intestate succession. He contended that originally it 7 RFA NO. 185/2013 belonged to one Contractor Chikkayellappa and he had purchased it under a sale deed dated 11.07.1907 from CITB Mysore. The said Chikkayellappa died in the year 1915 and on his death, the property devolved upon his successors and there was a partition in the family. In the said partition, the suit schedule property was allotted to the share of plaintiff's great grandfather Doddayellappa.
(c) The said Doddayellappa died somewhere in the year 1940 leaving behind his son Mallaiah as the only legal heir. Mallaiah died in the year 1956 leaving behind him the father of the plaintiff i.e., Doddamallaiah as the only legal heir. The father of the plaintiff Doddamallaiah was mentally retarded and he was not worldly wise. The plaintiff was born in 1978 and he is the only son of Doddamallaiah. After the birth of the plaintiff, the said Doddamallaiah left the house and his whereabouts are not known and therefore, he is presumed to be dead. When the plaintiff was aged about 8 years, his mother 8 RFA NO. 185/2013 expired. During the life time of Doddayellappa, he had inducted tenants into the suit schedule property who are still occupying the same.
(d) Defendants No.1 to 25 are the legal heirs of one Sri Attiguppe Suryanarayana Setty. It is stated that under the simple mortgage deeds dated 29.05.1916, 19.11.1916, 08.09.1917, 18.06.1917, 20.08.1917, 09.10.1917, 28.11.1917 and 10.02.1918 late Doddayellappa had mortgaged the property to Attiguppe Suryanarayana Setty.
(e) Upon attaining majority, the plaintiff approached defendant No.27-Mysore City Corporation, Mysore, to enquire about the arrears of the tax and then he came to know that the suit schedule property is standing in the name of defendant No.26. The portion of the suit schedule property is standing in the name of defendant No.26 and the remaining portion is in the name of the said Attiguppe Suryanaryana Setty. On 11.02.1998, he 9 RFA NO. 185/2013 applied to the Mysore City Corporation to rectify the said error and enter his name as Khatedar. The Mysore City Corporation gave an endorsement on 19.02.1998 and asked the plaintiff to approach the Civil Court for necessary relief.
(f) Upon enquiry, the plaintiff came to know that Attiguppe Suryanarayana Setty had surreptitiously and without knowledge of either the plaintiff or his predecessor in title, got the khata of the said property transferred into his name, even though it was mortgaged to him. The said Attiguppe Suryanarayana Setty had no right, title or interest over the said property as it was mortgaged to him. It was alleged that no right was conferred in favour of the said Attiguppe Suryanarayana Setty and the defendants No.1 to 25 by misrepresentation purported to have sold the portion of the property to defendant No.26 under three different sale deeds dated 16.03.1984.
10RFA NO. 185/2013
(g) The plaintiff learnt that the defendant No.26, claming to be the purchaser of the property, is making frantic efforts with the help of defendant No.27 to get the building demolished with a view to take its possession by falsely alleging that the said building is in dilapidated condition. Such a move by defendant No.26 was with an ulterior motive of depriving the plaintiff of the suit schedule property. It was alleged that the defendant No.26 is threatening the tenants of the building and coercing them to pay the rents of the building to him. Such act of the defendants No.1 to 26 was illegal, improper and they had no right title or interest over the suit property. Defendants No.1 to 25 illegally, without any rights have executed the sale deeds in favour of defendant No.26 on 16.03.1984 and the said sale deeds are null and void not binding on the plaintiff as he was not a party to the same.
11RFA NO. 185/2013
(h) Immediately after learning about the illegal act of the defendants, the plaintiff issued notice dated 09.04.1998 to the defendants calling upon defendants No.1 to 26 to desist from their illegal acts, for which defendant No.26 alone gave a reply claiming that by virtue of sale deeds dated 16.03.1984, he has become the absolute owner of the property. Therefore, the plaintiff was constrained to file the suit and accordingly the plaintiff filed the suit in O.S.No.772/1998 before II Addl. Civil Judge (Jr.Dn) Mysore, for declaration.
(i) In the said suit, an issue was framed regarding the pecuniary jurisdiction and it was tried as a Preliminary Issue and the learned Judge came to the conclusion that he had no pecuniary jurisdiction and by order dated 02.11.2006, the plaint was returned for presentation before the Court having jurisdiction. Accordingly, the plaint was presented before the Senior 12 RFA NO. 185/2013 Civil Judge and CJM, Mysore, which came to be registered as O.S.No.204/2008.
3. On being issued with the summons, defendants No.1 to 11, 16, 18, 29 and 31 remained absent, therefore, they were placed ex-parte. But defendants No.12 to 15, 19 to 25 appeared and filed their written statement. The defendant No.26 has also filed his written statement.
4. The defence of defendants No.12 to 15, 19 to 25 is as below;
(a) Though they admitted that plaintiff had filed O.S.No.772/1998, claiming certain relief of declaration and the plaint was returned by order dated 02.11.2006 and the present suit came to be filed, they contended that the valuation made by the plaintiff is not correct and the order passed by the previous Court is not complied and he has not made a fresh valuation while re-filing the suit. The plaintiff has not furnished the fresh 13 RFA NO. 185/2013 valuation and therefore the valuation of the plaint is not proper and correct.
(b) They denied that suit schedule property originally belonged to the joint family of Chikkayellappa and pleaded ignorance of devolution of property upon Doddayellappa by way of partition in the year 1940 and also that Mallaiah was the son of Doddayellappa and Mallaiah died in the year 1956 leaving Doddamallaiah as his legal heir.
(c) The plaintiff is not the son of Doddamallaiah and it is the concocted story with an intention to grab the suit schedule property.
(d) After verification of the records pertaining to the suit schedule property, Doddayellappa son of Yellappa had only one son by name Mallaiah and both of them for their legal and family necessity had borrowed money from Attiguppe Suryanarayana Setty and others and mortgaged the suit schedule property to them. They 14 RFA NO. 185/2013 could not redeem the mortgage and therefore, Attiguppe Suryanarayana Setty had filed a suit before the Sub Judge's Court Mysore in O.S.No.19/1922-23 against Doddayellappa and his son Mallaiah which ended in a compromise on 12.10.1922. The decree being a Preliminary Decree, it was confirmed in Final Decree Proceedings and the said Doddayellapa and his son Mallaiah did not take steps to redeem the mortgage and therefore, Attiguppe Suryanarayana Setty filed an execution proceedings in Execution No.1521/1922-23. When the suit schedule property was put in auction, Attiguppe Suryanarayana Setty after taking permission from the Court, purchased the same and taken possession from the hands of the Doddayellappa and his son in the year 1927-28.
(e) Attiguppe Suryanarayana Setty pursuant to taking possession of the suit schedule property from the 15 RFA NO. 185/2013 Court, was in continuous, undisturbed and peaceful possession of the Suit schedule property.
(f) They also pleaded that Attiguppe Suryanarayana Setty being the absolute owner of the suit schedule property since 1928, there was a partition under the registered Partition Deed dated 27.06.1945 and it was divided into three portions. Attiguppe Chayakantha Setty had inherited 1/4th share; Attiguppe Venkatachala Setty had inherited 1/4th share and Attiguppe Rajgopala Setty inherited ½ share in the suit schedule property and also other properties owned by the family. Since then the respective sharers have enjoyed the suit schedule property as absolute owners thereof. Defendants No.1 and 2 are from the branch of Attiguppe Chayakanth Setty; defendants No.3 to 9 are from the branch of Attiguppe Venkatachala Setty and defendants No.10 to 25 are from representing the branch of Attiguppe Rajgopala Setty.
16RFA NO. 185/2013
(g) The aforesaid three branches for their legal and family necessity sold their respective shares of the suit schedule properties to defendant No.26 for valuable consideration under the registered sale deeds dated 16.03.1984.
(h) As on the date of execution of the sale deeds, defendants No.1 to 25 did not deliver the physical possession of the schedule property to defendant No.26 but they attorned the right of tenancy of different tenants who were in occupation of the portions of the schedule properties in favour of defendant No.26. Defendant No.26 being the absolute owner in title, he is in legal possession and enjoyment of the same along with the tenants and there was passing of valid and marketable title in favour of defendant No.26.
(i) The plaintiff is not in possession of the suit schedule property and therefore, the prayer sought by him for grant of permanent injunction does not arise and 17 RFA NO. 185/2013 the suit is liable to be dismissed. The plaintiff is debarred from instituting the suit, from questioning the valid legal proceedings which are of the year 1928 and therefore, the suit is hit by principles of res-judicata.
(j) Defendant No.26 having purchased the property, the Mysore City Corporation has changed the khata to his name and defendant No.26 is paying the tax regularly to the Corporation.
(k) They denied that taking undue advantage of the illiteracy and ignorance of Doddayellappa and his son, Attiguppe Suryanarayana Setty had got several documents in his favour.
(l) Further, they contended that suit schedule property is not in habitable condition and it was purchased by defendant No. 26 to make a new construction after demolition of the schedule property for its bonafide use and occupation.
18RFA NO. 185/2013
(m) The Mysore City Corporation had issued notice to the tenants who are in occupation of the portions of the property stating that the property is in dilapidated condition and it was inspected by the authorities of the Corporation, who gave a report to that effect. The said report was challenged by the tenants before the High Court of Karnataka, Bengaluru and ultimately the Hon'ble High Court has opined that major portion of the schedule property is in dilapidated condition.
(n) The plaintiff has been set up by the tenants, who are in occupation of major portion of the suit schedule property with the frivolous motive and somehow to continue in possession of the schedule property with an intention of making an illegal bargain with defendant No.26.
(o) There was no cause of action for the plaintiff to file the suit since the sale deed is of the year 1984 and he could not have claimed the declaration that the sale 19 RFA NO. 185/2013 deeds are null and void. They also disputed the Court fee paid and the valuation made by the plaintiff in respect of the suit schedule property.
(p) The suit filed by the plaintiff is hopelessly barred by limitation and therefore, the suit is not maintainable. Defendants No.28 to 32 had recognized the ownership of defendant No.26 and they had paid rent for particular period and defendants No.28 to 32 had also filed many suits, appeals, rent control proceedings against defendant No.26, wherein they had admitted the relationship of landlord and tenant. They alleged that intentionally plaintiff has impleaded defendants No.28 to 32.
5. The defendant Nos.10, 24 and 26 have also filed similar written statement and denied the plaint averments and they contended that;
(a) The plaintiff is completely stranger to the suit schedule property and concurred with the contentions 20 RFA NO. 185/2013 taken up by the other defendants regarding the mortgage to Attiguppe Suryanarayana Shetty and also the proceedings thereof, whereby, Attiguppe Suryanarayana Shetty had taken the possession of the suit schedule property in Execution No.1521/1922-23. They reiterated the contentions of the other defendants. The plaintiff even though admitted the mortgage, purposefully has not stated whether the debt under the mortgage were discharged and with a malafide intention, he has suppressed the legal action initiated by the mortgagee to recover the mortgage debt. Therefore, the plaintiff is debarred in law from questioning the valid legal proceedings held long back, much earlier in the year 1928. The defendants reiterated the other contentions taken up by the remaining defendants.
6. On the basis of the above pleadings, the following issues and additional issue were framed by the trial Court:
1. Whether the plaintiff proves that he is the absolute owner in possession of the schedule property? 21 RFA NO. 185/2013
2. Whether the Plaintiff further proves that Defendants No.1 to 25 by mis-representation sold a portion of schedule property to Defendant No.26?
3. Whether the plaintiff proves alleged interference by 26th Defendant?
4. Whether Defendants No. 10 to 24, 26 prove that Sri. Attiguppe Suryanarayana Setty effected partition under registered partition Deed dated 6.10.1945?
5. Whether Defendants prove that the present suit is not maintainable in the absence claiming the relief of possession?
6. Whether the suit is time barred?
7. Whether the Defendants prove that suit is property valued and sufficient Court fee paid?
8. Whether the Plaintiff is entitled to plaint relief's?
9. What Order or Decree?
ADDL. ISSUE 1. Whether Defendants No. 12 to 15 and 19 to 25 prove that late Sri. Attiguppe Suryanarayana Setty has purchased suit schedule property in a Court auction and taken delivery of its possession from the hands of Sri. Doddayellappa and his son in the year 1927-28 as contended in written statement?
7. The plaintiff in support of his case, got examined his General Power of Attorney holder-M.V.Shankar, as PW.1 22 RFA NO. 185/2013 and Exhibits P1 to P25 were marked. The defendants examined the defendant No.16 as DW.1 and Exhibits D1 to D6 came to be marked.
8. After hearing the arguments, the trial Court held issue Nos.1, 2, 3 and 8 in the negative and issue Nos.5, 6 and 7 and additional issue No. 1 in the affirmative and deleted issue No.4 and by the impugned judgment, the suit of the plaintiff came to be dismissed with compensatory costs of Rs.3,000/- each to the contesting defendants.
9. Being aggrieved by the said judgment and decree, the plaintiff has approached this Court in appeal.
10. In this appeal, the plaintiff contended that the trial Court failed to note that even according to DW.1, what was alleged to have been mortgaged to Doddayellappa was only a portion measuring 69 feet X 83 feet i.e., 5,727 sq.ft., whereas, what has been sold by defendants No.1 to 25 to defendant No.26 under the three sale deeds covers an area 23 RFA NO. 185/2013 measuring 9,135 sq.ft.. Therefore, the claim made by the defendant No.26 and the other defendants is totally false and baseless.
11. It was contended that Ex.D6-Sale Certificate was marked with objections and the original of Ex.D6 has not been produced by the defendants and therefore, the title of defendants No.1 to 25 was not established. The trial Court failed to note that the total area under the mortgage was only to the extent of 5,727 sq.ft. and therefore, defendant No.26 could not have become the owner to the extent of 9,135 sq.ft. The trial Court gravely erred in relying on the copy of the judgment in MLJ 1933 Page 381 without there being anything to show that it was relating to the suit schedule properties. Though the Court Fee of Rs.3,50,300/- was paid on 01.03.2008, taking into consideration the present value, issue No.7 was wrongly decided holding that the suit is not properly valued. DW.1 does not know anything about the facts of the case and therefore, the trial 24 RFA NO. 185/2013 Court erred in relying on his evidence. In O.S.No.6/1929-30 late Attiguppe Suryanarayana Shetty who was defendant No.10 in the said suit had filed a written statement (Ex.P19), wherein, he had admitted that Doddayellappa was in possession of the properties and therefore, the trial Court failed to note that the same falsifies the case of the defendants. The trial Court also failed to appreciate the evidence in a proper perspective; and especially regarding possession of the property and therefore, the impugned judgment passed by the trial Court is not sustainable under law.
12. On being issued with the notice, respondents No.3, 4, 5 and 6, 28, 30, 31 and 32 did not appear despite service of notice. Notice to respondents No.1, 2, 21, 7 to 11, 18 was dispensed with. The other respondents have appeared through their counsel. The appeal was admitted and the trial Court records have been secured. 25 RFA NO. 185/2013
13. Plaintiff/appellant has filed IA No. 1/2018 under Order XLI Rule 27 of CPC seeking to produce sketches got prepared by a Private Engineer to demonstrate the measurement of the property. The affidavit accompanying the application filed by the appellant states that defendants No.1 to 25 have sold an extent of 3,600 sq.ft. in excess of the property purchased by Attiguppe Suryanarayana Setty and to show what exactly is the area sold by defendants No.1 to 25 in favour of defendant No.26 under 3 sale deeds, the appellant got prepared plans through an Engineer which he wants to produce before the Court. Therefore, the said sketches are essential for just decision in the matter and the application may be allowed.
14. Plaintiff/appellant also filed an application under Order XLI Rule 27 of CPC dated 23.01.2023 (I.A.No,1/2023) seeking to produce his birth certificate. In the affidavit filed in support of the application he contends that the trial Court held that the suit is barred by time and 26 RFA NO. 185/2013 by considering the date of birth of the plaintiff, such a conclusion was not permissible. Therefore, in order to prove his date of birth, the document is essential and the delay in producing it is not intentional. It is submitted in the affidavits filed in support of the applications that the plaintiff could not produce them during trial, but looking to the contentions raised in this appeal and the synopsis filed by the respondents, those documents are necessary.
15. Plaintiff/appellant has also filed I.A. No.2/2023 under Order VI Rule 17 of CPC seeking to amend the plaint to add few more door numbers as schedule-B. The affidavit in support of the IA states that the said amendment to the plaint is necessary in the interest of justice for the purpose of determining the real questions in controversy between the parties to the suit. It is submitted that he now has learnt after the death of his Power of Attorney holder that the measurement of the suit schedule property is more than 83 ft. X 69 ft. and the new property numbers are 27 RFA NO. 185/2013 given. Therefore, it is submitted that the amendment is essential for just adjudication of the lis.
16. These applications are opposed by defendant No.26/respondent No.26 contending that they are belated and the requirements of law under Order XLI Rule 27 of CPC as well as Order VI Rule 17 of CPC are not met with. There are no cogent reasons assigned by the plaintiff which are permissible in law. Therefore, it is contended that the applications are devoid of merits.
17. We have heard the arguments of learned counsel for the appellant and the learned counsels appearing for the respondents.
Arguments by Appellant/plaintiff:
18. The learned counsel appearing for appellant submitted that the ownership of plaintiff over the suit schedule property flows from the title of Doddayellappa and his son-Mallaiah. It is an admitted fact by plaintiff that the 28 RFA NO. 185/2013 suit schedule property consisting of several shops was mortgaged to Attiguppe Suryanarayana Setty under different mortgage deeds. But there is no acceptable material to show that the mortgaged property was the subject matter of a suit and later, an Execution Petition came to be filed under which, Attiguppe Suryanarayana Setty had purchased the property by taking permission of the Court in auction. Therefore, he contends that the plaintiff continued to be the owner of suit schedule property. It is submitted that it was a simple mortgage and therefore, possession remained with the plaintiff. He contends that Ex.D3 to D5-sale deeds are the only documents relied by the defendants and no other document is produced by them. The testimony of DW.1 is that of showing his ignorance about various aspects and none of the descendants of Attiguppe Suryanarayana Setty were examined. It is submitted that defendant No.26 who claims to be the purchaser has not entered into the witness box to 29 RFA NO. 185/2013 lead evidence and therefore, the trial Court ought to have drawn adverse inference.
19. He further submitted that the trial Court mainly relied on the copy of the judgment in the case of Suryanarayana Setty, reported in MLJ 1933 Page 381, to reject all the contentions urged by the plaintiff. He submits that the trial Court failed to note that the parties in the said case were different i.e., Shivaramu and Suryanarayana Setty and that the pleadings in the said case were not produced by the defendants. There was nothing on record to show that the said judgment relate to the suit property.
20. He further submitted that the property mortgaged by Doddayellappa and purchased by Attiguppe Suryanarayana Setty in the Court auction as per Ex.D6 is to the extent of 69 ft X 83 ft = 5,727 Sq.ft., whereas, defendants No.1 to 25 sold an area measuring 9327 sq.ft. under Exs.D3 to D5. Therefore, the property sold by defendants No.1 to 25 is in excess of the property which 30 RFA NO. 185/2013 was held by them. He submits that DW.1 has admitted this aspect specifically in his evidence. He submits that the additional document produced by the appellant in application filed under Order XLI Rule 27 of CPC (IA.No.1/2018) shows that the claim of defendant No.26 is wrong. It is also submitted that an application seeking to amend the plaint has also been filed by the plaintiff to incorporate the new property numbers and correct measurement.
21. It is submitted that the trial Court failed to consider that Ex.D6 cannot be relied unless the original document is produced and the citations relied by the plaintiff in this regard concerning Section 65 of the Evidence Act (secondary evidence) have been ignored by the trial Court on the sole ground that plaintiff has failed to prove his possession on the date of the suit. It is submitted that without calling upon the plaintiff to produce the typed copies of Exs.P2 to 13, the trial Judge has erred in not 31 RFA NO. 185/2013 considering those documents. He further submitted that the trial Court dismissed the suit mainly on the ground that the plaintiff has failed to prove that he was in possession of the suit schedule property as on date of the suit and particularly, there being no prayer for possession. Admittedly, the tenants were in occupation of the suit property and therefore, the trial Court erred in dismissing the suit on this ground.
22. He further submitted that the trial Court also held that the suit by the plaintiff is time barred, which is prima-facie improper. It is submitted that the plaintiff was born in the year 1978 and he attained majority in 1996 and immediately thereafter, he approached Mysore City Corporation and an endorsement was issued on 19.02.1998 which itself is the commencement of the period of limitation. The birth certificate of the plaintiff is produced along with an IA under Order XLI Rule 27 of CPC and the same deserves to be considered.
32RFA NO. 185/2013
23. In this regard, he relied on the judgment in the case of Avalappa Vs. Krishnappa1 concerning the mandatory nature of Section 65 of the Evidence Act. He also relied on the judgment in the case of G.Chikkapapanna @ G.C. Papanna Vs. Kenchamma since deceased by LRs2, which also concerns to Section 65 of the Evidence Act. He also relied on the judgment in the case of Vidyadhar Vs. Manikrao and another3, wherein, it was held that "when a party do not enter the witness box, it give rise to inference adverse against him". Lastly, he relied on the judgment in the case of Sri Lakni Baruan and others Vs. Sri Padmakantha Kalita and others4, wherein, it was held that "the presumption under Section 90 of the Evidence Act, does not apply to a copy or a certified copy, even though it is 30 years old". But if a foundation is laid for admission of secondary evidence 1 ILR KARNATAKA 3347 2 ILR 1998 Kar 3450 3 AIR 1999 SC 1441 4 AIR 1996 sc 1253 33 RFA NO. 185/2013 under Section 65 of the Evidence Act, and if 30 years old copy is produced, then the presumption is available. Arguments by respondents:
24. Per contra, learned counsel for respondent No.26 Sri.D.R.Sundaresh, submitted that the plaintiff is not clear as to whether the suit property was ancestral or inherited under succession. He submits that the whereabouts of the father of the plaintiff is pleaded to be 'not known', but there is no acceptable material in that regard. Without a decree, it cannot be presumed that he is dead. Therefore, there is no proof regarding the death of Doddamallaiah.
25. He submitted that the mortgage by Doddayellappa in favour of Attiguppe Suryanarayana Setty being an admitted fact, the said mortgage continues and there is no pleading by the plaintiff as to when the mortgage was redeemed. It is submitted that in the plaint nowhere there is any reference to General Power of Attorney holder except the verification. 34 RFA NO. 185/2013
26. Regarding possession, he submits that, if a person is not in possession, the same has to be prayed in the plaint. The evidence of PW.1 show that plaintiff was not in possession of the property and it does not mention about the existence of the relationship of landlord and tenant with the alleged tenants. It is submitted that in pursuance to the mortgage deeds, the suit filed by the Attiguppe Suryanarayana Setty and the delivery of the possession in Execution Petition through Ex.D6 would show that Attiguppe Suryanarayana Setty was in possession of the property. It is submitted that Ex.D6 has been obtained from the Court and therefore, it being a document of the Court, is valid and admissible in evidence. It is submitted that the plaintiff was aware of the suit filed by Attiguppe Suryanarayana Setty, Execution Petition etc., and it was not disclosed by the plaintiff in the plaint. The plaintiff suppressed these facts and therefore, he is not entitled for the equitable relief. 35 RFA NO. 185/2013
27. Lastly, he submitted that Ex.D6 cannot be objected to since the suit, judgment and decree are not disputed. Therefore, he submits that the plaintiff has to prove his case on his own legs but not on the weakness of the defendants and hence, the appeal is devoid of merits and the same be dismissed.
28. The points that arise for our consideration in this appeal are;
i) Whether the plaintiff has proved his title and legal possession over the suit schedule property in the background of Ex.D6-Sale certificate and the order in CRP.No.49/1931-32?
ii) Whether the suit of the plaintiff is maintainable in the absence of prayer for possession?
iii) Whether the suit is time barred?
iv) Whether the interim applications filed by the appellant/plaintiff under Order XLI Rule 27 of CPC and Order VI Rule 17 of CPC are to be allowed?
v) Whether the impugned judgment of the trial Court is perverse and arbitrary?
36RFA NO. 185/2013
29. Before we proceed to consider the points raised by us, it is necessary to note that either PW.1 or DW.1 have no personal knowledge of the proceedings that took place between 1915 to 1931. They depend on the documents produced or such hearsay information they gathered. The documents relied by both the sides are certified copies. Therefore, the documents are of pivotal importance in the case. The caveat regarding the admissibility of the secondary evidence is applicable to both sides.
30. The plaintiff relied on the mortgage deeds at Exhibits P2 to P6, P8 to P10, P12 and P13 to show that the suit schedule property as well as some other properties was mortgaged by Doddayellappa and his son Mallaiah. Some of them were mortgaged in favour of Attiguppe Suryanarayan Setty. These mortgages are between 10.01.1916 to 10.08.1918. All these mortgage deeds and also the sale deeds at Exhibits P7 and P11 are the certified copies. 37 RFA NO. 185/2013 Exhibits P14 to P18 are the encumbrance certificates (though they are marked separately, they constitute single document) depicting various transactions of the suit schedule property. Ex.P19 is the written statement filed by Attiguppe Suryanarayana Setty in O.S.No.6/1929-30 as defendant No.10 in a suit filed by one Vaggappa for partition. Ex.P20 is the certified copy of the plaint in OS.No.406/1923-24 which was filed by Doddayellappa and one Gangadhar-rangaiah against hotel keeper Anantachar for recovery of the arrears of the rent and damages. Exs.P21 and P22 are the ledger extracts of site Nos.5 and 6 and Ex.P23 is the guideline value certificate issued by Sub-Registrar for the year 2006-2007. Ex.P24 is copy of the endorsement given by defendant No.27 asking the plaintiff to approach the Court for appropriate relief. Ex.P25 is the certified copy of the order of this Court in W.P Nos.12733 - 12736 of 1999 & W.P.No.31905/2000.
38RFA NO. 185/2013
31. The defendants are relying on the sale deeds executed by defendants No.1 to 25 in favour of defendant No.26 and the certified copy of the registered sale certificate of the suit scheduled property in Execution Petition No.1521/1922-23 arising out of O.S.No.19/1922-23.
32. It is trite law that the plaintiff, who is seeking declaration of title in his favour has to prove his case by adducing acceptable evidence. He cannot rely on the weakness of the defendants. In the case on hand, the plaintiff is seeking his title on the basis of the averments made in the mortgage deeds executed by Doddayellappa and Mallaiah. The relevancy of Exs.P7 and P11 which are the certified copy of the sale deeds dated 12.11.1916 and 31.08.1917 are not available. Ex.P7 was executed by Krishnappa S/o. Shanbhog Dasappa in favour of Shambha S/o. Basavsetty in respect of Sy.No.192 of Margondanahalli village. Ex.P11 is the sale deed executed by Lingayya S/o. 39 RFA NO. 185/2013 Subbegowda in favour of Chaluvasetty S/o. Venkatasetty concerning the Sy.No.4 of Basavanhalli village. We have noticed that either in the plaint or in the affidavit evidence of PW.1, the relevancy of these documents is not forthcoming. Though the plaintiff contends that suit schedule property was purchased by Chikkayellappa from CITB Mysore, and later it was partitioned, the said sale deed or partition deed is not forthcoming. However, there is reference to partition between Doddayellappa, Yellappa, Vagrappa, Channabasava, Shivaramaiah, Channa on 09.08.1915 in the encumbrance certificate produced by plaintiff at Exs.P14 to P18 at entry No.1. So also, such contention was taken by Attiguppe Suryanarayana Setty in his written statement at Ex. P19.
Re: Point No.1
33. The plaintiff admits that the suit schedule property as described in the plaint was mortgaged by Doddayellappa and his son-Mallaiah in favour of Attiguppe 40 RFA NO. 185/2013 Suryanarayana Setty under six different mortgage deeds. This aspect is an admitted fact in the plaint and therefore, it is not in controversy. The defendants also admit that the property was mortgaged in favour of Attiguppe Suryanarayana Setty and the defendant Nos.1 to 25 are the decedents in title. The controversy starts in respect of the redemption of the mortgage and the suit filed by Attiguppe Suryanarayan Setty. There is no averment in the plaint regarding the redemption of these mortgages by Doddayellappa and Mallaiah. Moreover, there are no documents produced by the plaintiff to show that the property had devolved on the son of Mallaiah, the father of the plaintiff. There is no document to show that the plaintiff is the grandson of Mallaiah. When defendants had denied the relationship of plaintiff with Doddayellappa, it was incumbent upon the plaintiff to prove the same.
34. The defendants contend that Doddayellappa and Mallaiah did not redeem the mortgage and therefore, a suit 41 RFA NO. 185/2013 was filed by Attiguppe Suryanarayana Setty in O.S.No.19/1922-23. The defendants contend that it ended in the compromise and the said Doddayellappa and Mallaiah agreed to pay the mortgage money. Since they did not pay the amount, final decree was drawn and later, an Execution Petition was also filed. In the Execution Petition, Attiguppe Suryanarayana Setty obtained permission of the Court and purchased the entire mortgaged property and a sale certificate was issued as per Ex.D6. It is their case that there appears to be some dispute regarding the possession and the matter ended before the Hon'ble Mysore High Court in CRP No.49/1931-32 against the order dated 18.08.1931 passed by Sub-ordinate Judge of Mysore in Misc.Case.No.116/1930-31. There is no dispute that the said Doddayellappa and Mallaiah were holders of the title prior to the purchase under Ex.D6 by Attiguppe Suryanarayana Setty.
42RFA NO. 185/2013
35. The plaintiff, through PW.1 categorically admitted in his cross-examination that Attiguppe Suryanarayana Setty had filed O.S.No.19/1922-23 for recovery of the mortgaged amount. This shows that the plaintiff knew about filing of the suit, but he fails to say about the outcome of the suit. PW.1 denies that the suit ended in a compromise and the Execution Petition was filed.
36. Ex.P19 produced by the plaintiff is the certified copy of written statement of Attiguppe Suryanarayana Setty in O.S.No.6/1929-30. A perusal of this document shows that Attiguppe Suryanarayana Setty had taken up the defence that there was already a partition between the other parties to the suit including Doddayellappa and Vaggappa and the said suit is frivolous suit to defeat the rights of Attiguppe Suryanarayana Setty. He had taken up the contention that there was partition on 25.07.1915 and the properties were not available for partition. In the said 43 RFA NO. 185/2013 written statement he also refers to the mortgage deeds executed by Doddayellappa in his favour for various amounts as below;
29.05.1916 Rs.2,000/-
13.11.1916 Rs. 500/-
08.03.1917 Rs. 500/-
18.06.1917 Rs.1,500/-
20.08.1917 Rs. 500/-
09.10.1917 Rs.1,000/-
23.11.1917 Rs.1,000/-
10.02.1918 Rs.1,500/-
37. It is also mentioned in the written statement that defendant No.2-Doddayellappa and his son Mallaiah did not pay the moneys involved in the above mortgages and therefore, he had filed O.S.No.19/1922-23 and the decree was passed by the Court. Later, Execution Petition No. 1521/1922-23 was filed Attiguppe Suryanarayana Setty had to purchase the property. The written statement also states that there were obstructions for taking possession of portion of the property and therefore, he had to approach the Court in Misc.No.87/1927-28 and also to file Misc.No.210/1926-27 to obtain the possession of the 44 RFA NO. 185/2013 property. This averment in the written statement of Attiguppe Suryanarayana Setty gains importance in view of the objections raised by learned counsel for appellant regarding Ex.D6- the sale certificate and the judgment reported in 1933 Mysore Law Journal 381, which emanates from Misc.Case No.116/1930-31.
38. When the plaintiff has produced Ex.P19 and it shows that Attiguppe Suryanarayana Setty had taken a contention that he had obtained the possession of the property by filing Execution Petition, it cannot be disputed that there was such Execution Petition. When the plaintiff knew and came across Ex.P19 and as a prudent person, he could have obtained the particulars of the Execution Petition.
39. Ex.D6 produced by the defendants was marked subject to objection of the plaintiff. The objection was in respect of the admissibility of Ex.D6. It is the document which mentions that in the execution of the decree in 45 RFA NO. 185/2013 O.S.No.19/1922-23 and Execution Petition No.1521/1922- 23 the plaintiff is the bidder and the same has been confirmed on 15.01.1927 and certified accordingly. The document was issued under the seal and signature of the Court of Sub-Judge, Mysore on 7-3-1927. The document is in the prescribed form and titled as Sale Certificate under Order XXI Rule 94 of CPC. A copy was marked to the Sub-Registrar and he registered the document on 11-3-1927. The document describes the schedule property which consists of two portions. The first portion was purchased for Rs.1,500/- and the second portion was purchased for Rs.2,000/-.
40. It is relevant to note that the objection regarding the admissibility regarding secondary evidence was raised, but the Court had admitted the document subject to objection. It is also to be noted that Ex.D6 is the certified copy issued by the Sub-Registrar thereby indicating that such certificate issued by the Court was registered. DW.1 at 46 RFA NO. 185/2013 the beginning of his examination- in- chief dated 09.12.2011 stated that he has produced the original documents in O.S.NO.358 to 360 of 2009. He obtained the certified copies from the said suit and has produced it.
41. The objection raised while marking the document was dealt by the trial Court. Even if we hold that Ex.D6 is not admissible for not laying the foundation for not producing the original, the contentions taken by the Attiguppe Suryanarayana Setty in his written statement at Ex.P19 would go to show that he had obtained the possession of the property. This again corroborates with Ex.D6 as well as the reported judgment in CRP No.49/1931-
32. In the said judgment, this Court had noticed as below;
"The facts of the case are as follows. The opponent as plaintiff filed a suit on foot of a registered hypothecation bond executed by one Doddayellappa, a paternal uncle of the petitioner, in Original Suit No. 19 of 1922-23, on the file of the lower Court, got a decree therein and in execution thereof purchased the hypothecated house and obtained delivery of possession of the entire house with the exception of the eastern portion of the first floor which had been locked at the time. Thereafter the opponent applied 47 RFA NO. 185/2013 again for delivery of the locked portion after breaking open the lock and when he went to take possession as per orders of the Court, he was resisted by Voggappa and Chennabasappa, who are the elder brothers of the petitioner. The opponent having applied for removal of this obstruction, in Miscellaneous Case No. 87 of 1927-28 the lower Court after a careful examination of the evidence adduced by both sides, passed an order on 16.12.1930, directing that possession should be given to the opponent, after removal of the said obstruction. In pursuance of this order the opponent went again to obtain possession on 19.1.1931, but on this occasion the petitioner obstructed, and in the proceedings that ensued, contended that he was not bound by the previous order in Miscellaneous Case No. 87 of 1927-28 on the ground that he was no party thereto. The learned Subordinate Judge disallowed this objection and directed delivery of possession. Hence this petition.
As already pointed out above, the lower Court examined in detail the contentions of the two elder brothers of the present petitioner in Miscellaneous Case No. 87 of 1927-28 and dis-allowed the same".
42. After observing as above, this Court proceeded to dismiss the CRP filed by one Sivaramu against Attiguppe Suryanarayana Setty. Therefore, when the trial Court had noticed that DW1 had stated that he had produced the document in other suit, there was foundation laid to entertain the secondary evidence, (though not in the 48 RFA NO. 185/2013 pleadings) the preliminary objection regarding Ex.D6 cannot be entertained.
43. When the plaintiff admits the mortgage, and when a certificate as per Ex D6 is produced, it necessarily gives rise to a circumstance that it ended in transfer of the title in favour of Attiguppe Suryanarayana Setty. Moreover, the plaintiff has not produced any revenue records also to show that the property continued to be in the name of the ancestors of the plaintiff, even after 1930. The contention of the plaintiff that his ancestors continued to be the title holders of the suit schedule property suffers jolt as it is not backed by any documents.
44. Though the learned counsel for the plaintiff has contended that the veracity of CRP No.49/1931-32 (MLJ 1933 Page 381) cannot be relied for want of certified copy, the argument does not need any further consideration in the light of Section 84 of the Indian Evidence Act, which attributes presumption for reported judgments. 49 RFA NO. 185/2013
45. Curiously, the encumbrance certificate does not show the name of the ancestors of the plaintiff after 1945. In the year 1945, entry No.11 shows that as per the partition award, the names of Bhasker Setty, Rajgopal Setty, Chayakanth Setty, Venkatalchala Setty, Mallikarjun Setty and Subbamma were shown to have acquired rights. There is no explanation by the plaintiff as to how the name of these persons, who were descendants of Attiguppe Suryanarayana Setty came to be entered. On the other hand, this supports the case of the defendants that Attiguppe Suryanarayana Setty had become the owner in title of the suit schedule property.
46. Coming to Ex.D6, as noted supra, it is styled as 'sale certificate'. Obviously, the sale certificate was registered before the Sub-Registrar. The learned counsel for the appellant would submit that the sale confirmation order is essential. Here, it is necessary to mention Order 21 Rules 93 and 95 CPC which read as below;
50RFA NO. 185/2013
"93. Return of purchaser-money in certain cases.--Where a sale of immovable property is set aside under Rule 92, the purchaser shall be entitled to an order for repayment of his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid.
94. xxx xxx xxx
95. Delivery of property in occupancy of judgment-debtor--Where the immovable property sold is in the occupancy of the judgment-debtor or of some person on his behalf or of some person claiming under a title created by the judgment- debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under Rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same".
47. Evidently, the sale certificate alone cannot be the document of title. It is the entire set of the proceedings before the Court which transfer the title to the purchaser. Sale Certificate is an important document which confirms that the property was purchased in auction and all formalities of sale are completed. It is also pertinent to note that such proceedings before the Court are not shown to be either set aside or recalled. On the other hand, the 51 RFA NO. 185/2013 judgment of this Court in CRP No.49/1931-32 shows that in pursuance to the sale certificate, possession was directed to be handed over by removing the obstructions. This is also reflected in the written statement of Attiguppe Suryanarayana Setty at Ex.P19. PW.1 in his cross- examination categorically admits that Attiguppe Suryanarayana Setty had filed O.S.No.19/1922-23 which is precisely mentioned in Ex.P19 as well as Ex.D6. Therefore, the document produced by the plaintiff itself goes to show that in pursuance to the decree, the possession was taken by Attiguppe Suryanarayana Setty and later it was the subject matter of partition as referred in the entry in encumbrance certificates at Ex.P14 to 18.
48. On the other hand, the plaintiff contends that he is in possession and enjoyment of the suit schedule property. He states that the tenants were inducted into the property by Doddayellappa and in support of his contention, he relies on a suit filed against hotel keeper Anantachar. 52 RFA NO. 185/2013 Except this, there is no material on record to show that Mallaiah or his son Doddamallaiah were in possession of the entire suit schedule property. So also there is no material to show that the tenants occupying the suit schedule property were paying rents to him.
49. Another important aspect is that the plaintiff's relationship with Doddamallaiah is denied by the defendants. There is absolutely no material on record to show that the plaintiff is the lineal descendant of Doddayellappa. The plaintiff did not enter the witness box, but his Power of Attorney Holder entered the witness box as PW.1. PW.1 M.V.Shankar S/o. Vaggappa was aged 65 years. It is pertinent to note that though there is no cross- examination in this regard, Vaggappa was the plaintiff in the partition suit in O.S.No.6/1929-30 in which Ex.P19 was filed as written statement. To some extent, this also lends support to the contention taken up in Ex.P19 that it was a 53 RFA NO. 185/2013 suit filed to defeat the purchase of the property by Attiguppe Suryanarayana Setty in execution proceedings.
50. Under these circumstances, we are of the view that the plaintiff has failed to establish his title to the suit schedule property. The flow of title from Doddayellappa to the plaintiff, including the lineal descendency is not satisfactorily proved by the plaintiff. It is also to be noted that the competence of PW.1 to depose about the relationship between the parties was not stated by him in his affidavit evidence. He simply states that the plaintiff is not in a position to depose before the Court due to his health. In other words, his personal knowledge about the relationship of the plaintiff with Doddayellappa is not forthcoming in his evidence. In view of the above discussions we hold that the plaintiff has failed to prove that he has title to the suit schedule property and consequently, point No.1 is answered in the negative. Re.Point No.2:
54RFA NO. 185/2013
51. The plaintiff claims that he is in possession and enjoyment of the suit schedule property. Obviously, his name does not appear in any of the revenue records. The defendants have categorically stated not only in the Written Statement, deposition of DW.1; but also in the three sale deeds dated 16.03.1984 that the property is fully occupied by the tenants. This also gets impetus from Ex.P25, the order of this Court in W.P.Nos.12733-12736/1999 & W.P.No.31905/2000. It was the tenants, who approached this Court in writ petitions that the defendant No.27- Mysore City Corporation has ordered for demolition of the building on the ground that it was dilapidated. This Court had dismissed the writ petitions with a direction that only the dilapidated portion may be demolished. The plaintiff was also one of the writ petitioners in W.P.No.31905/2000. It is relevant to note that this Court had observed that the petitioner has to prove his title before the competent Civil Court.
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52. If at all the plaintiff was in possession and enjoyment of the property, he could have definitely produced the tax paid receipts and such other material to show his possession. The plaintiff has not even examined any of the tenants who could say that he is paying rent to the plaintiff. There is absolutely no evidence on record to show that the possession of Doddayellappa, his son Mallaiah, his son Doddamallaiah was continuous and uninterrupted. The best evidence that could have been produced by the plaintiff, in the form of revenue records, are not produced. Therefore, the lawful possession of the plaintiff over the suit schedule property is also not acceptable.
Re.Point No.3:
53. The trial Court has held that the suit is barred by time. The learned counsel for appellant/plaintiff submits that the plaintiff was born on '19-4-1978' and he attained majority in the year 1996 and therefore, he enquired about 56 RFA NO. 185/2013 the names appearing in the records of the Mysore City Corporation in the year 1998 and they issued an endorsement as per Ex.P24 to prove his title in the Court. Therefore, citing Ex.P24 to be the starting point of cause of action, the plaintiff has approached the trial Court.
54. The ancestor of the plaintiff Doddayellappa and Mallaiah had lost their title in the year 1927 in pursuance to the Sale Certificate issued by the Court as per Ex.D6. The plaintiff, his father or grandfather had not questioned the Sale certificate as per Ex.D6 at any time. The plaintiff has not entered the witness box, but his power of attorney holder has entered the witness box and deposed that the father of the plaintiff has left the house when the plaintiff was aged eight years and his whereabouts were not known. There is no evidence to show that the father of the plaintiff had left the house somewhere during 1986 and no declaration is sought from any competent Court in that regard. There is also no evidence on record to show that 57 RFA NO. 185/2013 the mother of the plaintiff had died in 1986. It is not the case of the plaintiff that his ancestors had mortgaged the suit schedule property for their bad vices. The plaintiff admits that it was mortgaged for family necessity.
55. Now the plaintiff is seeking declaration that the sale deed executed by defendants No. 1 to 25 in favour of defendant No. 26 is null and void and not binding on him. Obviously, the sale deed is dated 16-03-1984. Therefore, unless the plaintiff proves that he was born in 1978, his father left home in 1978 and is deemed to be dead, his mother died in 1986, the right to sue regarding the nullity of the sale deeds executed by defendants No. 1 to 25 in 1984, extinguishes in 1987.
56. Therefore, it cannot be said that Ex.P24 gives rise to a cause of action to claim title over the suit schedule property since Mysore City Corporation had directed so. It is not the case of the plaintiff that defendants No. 1 to 25 or defendant No.26 had obstructed for the possession and 58 RFA NO. 185/2013 enjoyment of the suit schedule property by denying title. Therefore, an endorsement like Ex.P24 by the Corporation cannot be the starting point of limitation. It is also evident that the Encumbrance Certificates produced at Exhibits P14 to P17 show that defendants No. 1 to 25 had sold the property to defendant No.26 in 1984. Under these circumstances, the limitation to seek a declaration of title cannot be the age of plaintiff or his attainment of the majority. Had the plaintiff proved that his father had left the house more than seven years back, and there was a declaration that he is deemed to have been dead, then the contention that the limitation started from the date of attainment of age of majority of the plaintiff would have gained relevance and significance.
57. The limitation for declaration of title to immovable property is, 3 years from the date on which the right to sue first accrues. It is also important to note that the plaintiff admits that there were several mortgages 59 RFA NO. 185/2013 created in favour of Attiguppe Suryanarayana Setty. There is no averment anywhere that the mortgages were redeemed. Even the limitation for redemption of mortgage has expired long back. There is material to show that possession of the property was taken by Attiguppe Suryanarayana Setty in O.S.No.19/1922-23. Evidently the plaintiff has not sought for possession of the property. Therefore, we are unable to accept the contention that the suit is in time. The trial Court has considered the issue of limitation in right perspective. Hence point No. 3 is held in the negative.
Re.Point No.4:
58. Though the trial Court has considered issue Nos. 1 to 3, 5 and additional Issue No.1, together, it is the finding on issue No.1 and additional issue No.1 which were of pivotal importance. The trial Court holds that PW.1 was the power of attorney holder and he had admitted OS No.19/1922-23 and the judgment reported in MLJ 1933 60 RFA NO. 185/2013 Page 381 refers to OS No.19/1922-23 and therefore, the sale as per Ex.D6 is supported by the testimony of PW1 and the reported judgment. The trial Court also holds that Ex.D6 is the certified copy obtained from the Court. In fact, Ex.D6 is the certified xerox copy of the Sale Certificate issued by the Court in OS No.19/1922-23 and Execution Petition No.1521/1922-23, which was registered by the Sub-Registrar, Mysore. The contention that the original of Ex.D6 was not produced and foundation was not laid for producing the secondary evidence in the form of certified copy was considered by the trial Court, and held that the defendants had stated that the original is produced in some other suit. A perusal of the deposition of DW.1 shows that he has obtained Ex.D6 from the Sub Registrar's office and the originals of other documents were produced in OS Nos.358-360/2009. This explanation was accepted by the trial Court and the secondary evidence in the form of Ex.D6 was accepted. Therefore, it is evident that the trial Court has considered the contentions of the plaintiff and 61 RFA NO. 185/2013 has come to the right conclusion that the plaintiff failed to prove his title to the suit schedule property. On re- appreciation of the evidence and findings we do not find any reason to interfere in the conclusions reached by the trial Court.
Re: Interlocutory applications:
59. Coming to IA No.1/2018 filed by the plaintiff, whereby the plaintiff wants to produce certain sketches prepared by a Private Engineer to establish that the property purchased by Attiguppe Suryanarayana Shetty was only to the extent of 5727 sq.ft., but defendants No. 1 to 25 have sold larger extent of 9327 sq. ft. to defendant No.26. It is contended that such documents are necessary to appreciate the area claimed by the defendants.
60. It is pertinent to note that the plaintiff had described the suit schedule property as an area measuring 69 ft. x 83 ft. in the plaint. When the claim of the plaintiff is only in respect of 69 ft. x 83 ft., there is no necessity for 62 RFA NO. 185/2013 the plaintiff to point out the sale deed executed by defendant No. 1 to 25 in favour of defendant No.26 inter-se is for larger extent. Moreover, nothing prevented the plaintiff to produce such sketches before the trial Court. The essential requirements of Order XLI Rule 27 CPC are not met by the plaintiff and we do not see any reason to invoke the said provisions by this Court.
61. A similar application is also filed by the plaintiff in IA No.1/2023 seeking to produce the Birth certificate of the plaintiff. It is relevant to note that the birth certificate could have been produced by the plaintiff during trial.
Nothing prevented the plaintiff to produce the same before the trial Court as the birth was registered in the year 1999. No cogent reasons are assigned for not producing the same before the trial Court. The reason assigned is that the counsel for the defendants had raised some doubt regarding the date of birth of the appellant. A point raised in the appellate Court by the respondents cannot be a 63 RFA NO. 185/2013 ground for the plaintiff to file an application under Order XLI Rule 27 CPC. It is well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or patch up the weak points in the case. The requirement of law as stated in Rule 27 has to be satisfied by the applicant. In the absence of such sufficient reasons the interlocutory application is liable to be rejected.
62. The plaintiff has filed IA No.2/2023 under Order 6 Rule 17 of CPC seeking to amend the suit schedule property. It is pertinent to note that as per the plaint, the suit schedule property was measuring 69 ft. x 83 ft. Now the plaintiff wants to add Schedule-B describing the property sold by defendants No. 1 to 25 in favour of defendant No.26 which is measuring 9327.2 sq.ft. The affidavit filed in support of the application states that the points argued by the defendants asserts an area measuring 5727 sq.ft. and therefore, it has become necessary and inevitable for the appellant to file IA seeking amendment to 64 RFA NO. 185/2013 the plaint. The reasons for delay in filing the applications is stated to be that he had attained majority when the suit was filed and now the power of attorney holder(PW1) of the plaintiff being no more, there is a necessity for such amendment.
63. It is pertinent to note that an amendment to the plaint may be permitted if it does not change the nature of the suit, but, it elucidates the contentions already taken. By way of amendment, the plaintiff wants to add Schedule- B to the plaint. Without an amendment to the contents of the plaint, which refers to the 'suit schedule property', the proposed schedule- B which is the subject matter of the transaction between defendants No. 1 to 26 inter-se could also become the 'suit schedule property' and thereby it alters the valuation and Court fee and takes into its fold the declaration of title also. Therefore, it is evident that the said amendment is touching the nature and scope of the 65 RFA NO. 185/2013 suit also. Consequently, we do not find any merit in the said application too. Hence, it deserves to be rejected.
64. In view of the aforesaid discussions and conclusions, the appeal and the interlocutory applications are bereft of any merits. Apparently, it is an attempt to revive the litigation which is a century old and therefore, we deem it fit to impose costs. Hence, the following:
ORDER The appeal is dismissed with costs of Rs.25,000/-. The judgment of the trial Court in OS No.204/2008 dated 20-10-2012 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE tsn*