Karnataka High Court
Erappa vs Nagappa on 23 August, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
R.S.A. No.155 OF 2005 [DEC & INJ]
BET WEEN:
1. ERAPPA S/O.HANMAPPA TUMMALGADDI,
AGE : 47 YEARS, SETHSANDI,
OCC. AGRICULTURE, R/O AMARAPUR
TQ. KUSTAGI, DIST. KOPPAL-584101.
2. BASAPPA @ BASAVANTHAPPA
S/O HANMAPPA TUMMALGADDI @ SETHSANDI,
AGE : 50 YEARS, OCC. AGRICULTURE,
R/O.AMRAPUR, TQ. KUSTAGI,
DIST. KOPPAL-584101. ...APPELLANTS
(BY SRI.SACHIN S. MAGADUM, ADVOCATE)
AND :
1. NAGAPPA S/O. HANAMAPPA KAMBLIYAVAR,
AGE. MAJOR, R/O AMARAPUR,
TQ. KUSTAGI, DIST. KOPPAL-584101.
2. MARISOMANNA S/O NARSAPPA BINGI,
AGE : MAJOR, OCC. AGRICULTURE,
R/O.AMARAPUR, TQ. KUSTAGI,
DIST. KOPPAL-584101. ... RESPONDENTS
(BY SRI.M.G.NAGANURI, ADVOCATE FOR R1;
R2 - SERVED)
THIS REGULAR SECOND APPEAL FILED U/S. 100 OF CPC
AGAINST THE JUDGMENT & DECREE DTD 25.10.2004 PASSED IN
R.A.NO.54 OF 2004 ON THE FILE OF THE DISTRICT AND SESSIONS
JUDGE, FTC-II, KOPPAL, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DTD.15.01.2001 PASSED IN
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OS.NO.116 OF 1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN),
KUSHTAGI.
THIS A PP EAL COM ING ON FOR FINA L HEAR ING T HIS
DAY, THE COURT DELIVERED T HE FOLL OWING:
JUDGMENT
This second appeal of the plaintiffs arises out of the judgment and decree dated 25.10.2004 passed by the Fast Track Court - II, Koppal in R.A. No.54/2004.
2. By the impugned judgment and decree the First Appellate Court allowed the appeal, dismissed the suit reversing the judgment and decree dated 15.01.2001 passed by the Civil Judge (Jr.Dn.) Kushtagi in O.S. No.116/1992 whereunder the trial Court had decreed the suit of the plaintiffs for declaration of their title to the suit property and for permanent injunction.
3. The appellants were plaintiffs No.1 and 2 and respondents were defendant Nos.1 and 2 before the trial Court. For the purpose of convenience they will be referred to hereafter with their ranks before the trial Court.
4. The subject matter of the suit is the land bearing Sy. No.65/2 measuring 20 acres 14 guntas situated within the :3: R. S . A . N o . 1 5 5 / 0 5 limits of Garjanal village of Kushtagi taluk. The plaintiffs filed the suit initially for bare injunction contending that the suit property was their ancestral joint family property and in the family partition between their father Hanamappa and their senior uncle Balappa the suit property had fallen to the share of their father Hanamappa. They further contended that on the death of their father they were in possession and enjoyment of the said property as his heirs and the defendants are illegally obstructing their peaceful possession and enjoyment and thus sought perpetual injunction.
5. First defendant appeared and filed his written statement on 04.08.1993 contending that plaintiffs father Hanamappa for his family necessities has sold the suit property to him under the registered sale deed dated 02.06.1969 for a consideration of Rs.2,000/- and put him in possession of the property. He further contended that since the date of sale he is in actual physical possession of the property as absolute owner thereof. He denied the possession of the plaintiffs or obstruction by him. He contended that the suit as framed is not maintainable and they ought to have :4: R. S . A . N o . 1 5 5 / 0 5 sought the relief of declaration of the title. Second defendant did not contest the suit.
6. On the first defendant filing his written statement the plaintiffs by filing an amendment application got amended the plaint. By way of amendment they contended that plaintiffs' father Hanamappa and his brothers Balappa and Chatrappa were the members of joint hindu family and Balappa was kartha of the family during 1969 and till his death. They further contended that Balappa died about 12 years back and within a year thereafter plaintiffs' father Hanamappa died and Chatrappa pre-deceased both of them. They further contended that in the oral family partition the suit property fell to the share of the father of the plaintiffs and sons of Balappa and Chatrappa and even after partition the property Balappa's name continued to appear in record of rights and later with his consent the names of the plaintiffs were mutated in the land records. By way of the amendment they sought declaration of their title to the suit property and that they are in possession of the same.
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7. The first defendant filed additional written statement to the amended plaint denying that Balappa and his sons had any interest in the suit property as alleged by the plaintiffs. He further contended that plaintiffs' father was the absolute owner and he has sold the property for legal necessity and sale binds them. He also contended that the suit is barred by time and under valued and court fee paid is insufficient.
8. The plaintiffs filed rejoinder to the additional written statement of the first defendant contending that their father was not the absolute owner of the suit property as on 02.06.1969 and the signature on the sale deed set up by the first defendant is not their father's signature. They also contended that such sale deed does not bind them as it was not for legal necessity and their father was addicted to ill- vices like alcohol and gambling.
9. On the basis of the pleadings, the trial Court framed the following issues and additional issues :
1. Whether the plaintiffs prove that they are in lawful possession over the suit properties on the date of the suit?:6:
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2. Whether the plaintiffs prove interference of defendants?
3. Whether the suit is not maintainable?
4. What order or decree?
ADDITIONAL ISSUES :
1. Whether plaintiffs prove that they are the owners and possessors of suit land?
2. Whether defendants prove that the father of plaintiffs has sold the suit land due to his legal and family necessity and further proves that the same is binding on plaintiffs?
3. Whether the defendants prove that this court has no pecuniary jurisdiction to try the suit and the court fee paid is not proper?
4. Whether the plaintiffs are entitled for the relief claimed?
10. The parties adduced evidence. On behalf of plaintiffs, P.Ws.1 to 3 were examined and Exs.P-1 to 5 the record of rights and Ex.P-6 the land revenue receipt were marked. On behalf of defendants D.Ws.1 to 3 were examined and the original sale deed was marked at Ex.D-1.
11. The trial Court after hearing the parties decreed the suit as aforesaid on the following grounds : :7:
R. S . A . N o . 1 5 5 / 0 5 i. As on the date of the sale deed Ex.D-1 the suit land stood in the name of Balappa. D.W.1 himself says that he purchased the property without enquiry. The RTCs were standing in the name of Balappa and thereby he was in possession. Defendants failed to prove partition between Balappa and plaintiffs' father and allotment of suit property to plaintiffs' father. Thus Hanamappa could not have conveyed the title or possession.
ii. The defendants failed to prove that the sale was for legal necessity.
iii. Balappa was the Manager of the joint family of himself, his brothers and their children. But sale is purportedly by Hanamappa. Therefore the sale is not by the Manager of the family. iv. The first defendant though cited the attestor to the sale deed as witness, did not examine to prove the legal necessity and the thumb mark of Hanamappa despite plaintiffs denying the execution of the sale deed by Hanamappa. :8:
R. S . A . N o . 1 5 5 / 0 5 v. The record of rights of the lands stood in the name of plaintiffs all along leading to the presumption of their possession.
12. The first defendant challenged the said judgment and decree before the First Appellate Court in R.A. No.54/2004. The First Appellate Court on hearing the parties by the impugned judgment and decree reversed the judgment and decree of the trial Court and dismissed the suit on the following grounds :
i. The plaintiffs in their own pleadings contended that the suit property was the ancestral property and in the partition between their father and his brother it had fallen to the share of their father.
ii. Despite the amendment the said earlier averments continued in the plaint. Therefore their contention that there was no partition between Balappa and his brothers and property continued to be joint amongst the branches of Balappa and his brothers is unacceptable. :9:
R. S . A . N o . 1 5 5 / 0 5 iii. The pleadings and the evidence of the plaintiffs counter each other in material particulars. iv. The plaintiffs though by amendment set up the oral partition between themselves and sons of Balappa did not prove the same.
v. Even after death of Balappa his name had continued in the record of rights as per the documents produced by the plaintiffs themselves. If the property belonged to Balappa, his brothers and their father jointly on death of Balappa the names of all those persons or their children should have been entered in the record of rights.
vi. If the children of Balappa and Chitrappa had any interest in the property they too should have been joined in the suit as parties. Non- joining of them as parties shows that they had no interest in the property.
vii. At the first instance no ill-vices were imputed by the plaintiffs to their father and only by way : 10 : R. S . A . N o . 1 5 5 / 0 5 of amendment they introduced the said theory. No evidence was adduced to prove such ill- vices of their father. Only after defendant No.1 bringing on record the fact of sale in their favour they have come up with such theory. viii. Ex.D-1 sale deed is a registered document which is more than 30 years old. Therefore it has a presumptive value.
ix. Ex.D-1 is not compulsorily attestable. Having regard to the presumption available and document being not a compulsorily attestable one the trial Court committed error in finding fault in not examining the attesting witness.
x. The defendants have proved the execution of
Ex.D-1 by examining the scribe of the
document. P.W.1 in his cross-examination
admitted the identity of his father as
Hanamappa S/o. Hanamappa.
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xi. The document Ex.D-1 shows that defendant
No.1 was put in possession of the property in 1969 itself.
xii. The trial Court did not evaluate the evidence properly and committed error in decreeing the suit.
13. This Court admitted this appeal to consider the following substantial question of law :
"Whether the finding of the First Appellate Court reversing the judgment and decree passed by the trial Court is perverse and arbitrary being contrary to law and the material on record and for non- consideration of the reasons assigned by the trial Court for decreeing the suit of the plaintiffs?"
14. Having regard to the aforesaid substantial question of law, this Court has to examine whether the order of the 1st appellate Court in reversing the Judgment and Decree of the trial Court is perverse, arbitrary and contrary to law and the material on record and for non-consideration of reasons assigned by the trial Court.
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15. As already pointed out, the trial Court decreed the suit basically holding that :
(i) As on the date of the purchase under Ex.P-1 on 02.06.1996 the properties stood in the name of Balappa, thus Hanamappa could not have executed the Sale Deed and such purchase is without due enquiry.
(ii) The 1st defendant did not examine the attesting witness to prove the execution of the Sale Deed Ex.D-1.
(iii) The 1st defendant failed to prove that the sale was for legal necessity.
(iv) The record of rights of the suit property stood in the name of Balappa alone and thereafter in the name of Plaintiffs. Therefore, the statement in Ex.D-1 that defendant No.1 was put in the possession of the property cannot be accepted.
16. The plaintiffs themselves at the first instance admitted that their father was the owner of the property. By way of amendment of the plaint, they denied the execution of : 13 : R. S . A . N o . 1 5 5 / 0 5 the document Ex.D-1. Before such amendment they had adduced the evidence of PW-1 and 2 who on oath deposed that Hanamappa the father of the plaintiffs was the owner of the property. Later they took 'U' turn to state that Balappa was the owner and in partition the property had fallen to the share of plaintiffs and Balappa's sons.
17. Even assuming so, Hanamappa, Balappa or his sons did not question the Sale Deed. From 1983-84 to 1987- 1988, name of the 1st defendant was appearing in the record of rights. Soon before the filing of the suit, plaintiffs got their names entered to the property in the revenue records. They did not produce the mutation register extract to show how their names were entered in the record of rights. If the plaintiffs and sons of Balappa were owners then they should have also been impleaded in the case. Plaintiffs should not have sought declaration of title only for themselves.
18. Ex.D-1 being 30 years old document presumption arises about the execution and signatures thereon. Ex.D-1 being not compulsorily attestable document non-examination of attesting witness does not disprove the said document. As : 14 : R. S . A . N o . 1 5 5 / 0 5 rightly pointed out by the trial Court, initially the suit was for bare injunction contending that the plaintiffs father Hanamappa acquired the said property in the family partition and on his death plaintiffs have inherited and become absolute owners of the said property.
19. Defendants initially did not file the written statement and on Court forfeiting the right of the defendants to file the written statement the 1st plaintiff got himself examined as PW-1 and one Satyappa as PW-2 on 19.07.1993. In his deposition, PW-1 stated that the property had fallen to the share of his father during the family partition and he was the owner in possession during his lifetime and after his death himself and plaintiff No.1 have inherited the same property.
20. Having said so after defendants tendering the written statement with leave of the Court, plaintiffs gave a total twist to their case amending their plaint as follows :
"5A. That, the plaintiffs' father and his brothers namely Balappa and Chatrappa constituted Hindu Joint-family owning and possessing suit land and other non-suit lands. Said Balappa was the eldest and was the manager of the said family, : 15 : R. S . A . N o . 1 5 5 / 0 5 during the year 1969 till his death and said Balappa managed the family affairs. About 12 years back said Balappa died and father of the plaintiffs also died within a year or also Chatrappa who has pre- deceased. There was family partition orally in which the suit land fell to the share of the father of the plaintiffs and son of Balappa and Chatrappa. Even after partition, the land stood in the name of the said Balappa, and recently with his consent the land was got mutated in the names of the plaintiffs. Thus the plaintiffs are the owners and possessors of the suit land. In view of this alleged sale is illegal and was not by competent person. Consequently the defendant No.1 has not got any right, title or interest in such bogus sale, apart being that it was not infact executed by the late father of the plaintiffs."
21. Thus the plaintiffs took a totally inconsistent stand, which goes counter to their earlier case. The basic principle of the Evidence Act is that the burden of proof lies upon the person who seeks the Court to believe the existence of certain fact. If he fails to prove such case, the defendant cannot be expected to disprove his case. When initially plaintiffs case itself was that their father was the owner, the mere entry of name of Balappa in record of rights does not confer title on him. Defendants were not required to prove : 16 : R. S . A . N o . 1 5 5 / 0 5 that Hanamappa was the owner of the property and he could sell that.
22. It is also material to note that, upto 1983-1984 the name of Balappa continued in the record of rights. Plaintiffs own documents Ex.P-1 to Ex.P-5, the record of rights from the year 1968-69 to 1990-1991 show that from 1968- 1969 to 1983-1984 the name of the Balappa was shown as the cultivator of the land. The entry of the year 1983-1984 shows that the Balappa died and on his death the name of Nagappa, son of Hanamappa i.e., defendant No.1 came to be entered and that entry continued up to 1987-1988.
23. The names of the plaintiffs as per their own documents came to be entered in the record in the 1990- 1991. As rightly observed by the 1st appellate Court the plaintiffs did not produce the mutation register extract to show on what basis the name of Nagappa the 1st defendant entered and later in 1990-1991 on what basis their names came to be entered. Soon after such entry of their names in the record of rights, plaintiffs came up with this suit. Therefore, the 1st appellate Court was wholly justified in saying that after getting the revenue entry the suit is filed : 17 : R. S . A . N o . 1 5 5 / 0 5 after 23 years of the sale of the property and this is all the hand work of the plaintiffs.
24. The other aspect to be noticed is though the plaintiffs claim that Balappa was the owner from 1968-1969 till his death, neither Balappa nor Hanamappa, the executant of Ex.D-1, nor the children of Balappa questioned the sale deed. Plaintiffs did not question the mutation entries standing in the name of the 1st defendant from 1983 till filing of the suit in 1992.
25. Ex.D-1 the registered sale deed was marked in evidence on 23.02.2000, by that time, it is more than 30 years old document. Section 90 of the Indian Evidence Act which is relied by the 1st appellate Court raises a presumption that the said document purported to be in the hand writing of the particular person and duly executed and attested by the persons, by whom it purports to be executed and attested. As rightly pointed out by the 1st appellate Court, Ex.D-1 the sale deed proceeded from the proper custody i.e., custody of defendant No.1 the purchaser.
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26. Further the 1st defendant examined the scribe of the document. Even otherwise after such sale and on the death of Balappa the name of the 1st defendant came to be entered in the revenue records. Thereby the presumption provided under Section 90 of the Indian Evidence Act, 1872 is corroborated by the plaintiffs own document Ex.P-1 to 4. The plaintiffs failed to rebut that presumption by adducing any cogent or consistent evidence. At the cost of repetition, it is to be said that despite the name of the 1st defendant appearing in the record of rights, plaintiffs did not produce any evidence and explain why his name appeared for about 5 years. They did not even produce the mutation register extract.
27. They did not file any complaint alleging that there was impersonation of their father. In their pleading, it was not their case the document was fraudulent one. After production of the registered document, they came up with rejoinder under Order-VIII Rule-9 of the Code of Civil Procedure, 1908 contending that their father was addicted to vices and the sale was not for legal necessity as stated in Ex.D-1.
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28. As rightly pointed out by the 1st appellate Court, the trial Court had not passed any order on that rejoinder either accepting or rejecting it. As per Order VIII Rule 9 of C.P.C no subsequent pleading can be accepted without the leave of the Court. Having regard to such fact the trial Court was at error in framing additional issue No.2 placing the burden on the defendant to prove that the sale is for the legal necessity.
29. Plaintiffs' plea that the sale was not for the legal necessity presupposes the existence of the sale and plaintiffs' admission of sale. In such event, the trial Court was in error holding that the 1st defendant failed to prove the execution of the sale deed, as the attesting witness not examined. Further when the sale was admitted, there was no need to examine the attesting witness. Further as pointed out by the 1st appellate Court since document was 30 years old there was a presumption in favour of the defendant regarding the execution of the document. Since Ex.D-1, the sale deed was not compulsorily attestable, attesting witness was not required to be examined.
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30. The Hon'ble Supreme Court in the Judgment of Union of India and Others v. Vasavi Co-operative Housing Society Limited and Others (2014) 2 SCC 269 has held as follows :
"21. This Court in several judgments has held that the revenue records do not confer title. In Corpon. of the City of Bangalore v. M.Papaiah this Court held that : (SCC p. 615, para 5) "5. ... It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."
In Guru Amarjit Singh v. Rattan Chand this Court has held that : (SCC p.352, para 2) "2. ... that entries in the Jamabandi are not proof of title."
In State of H.P. v. Keshav Ram this Court held that (SCC p.259, para 5) "5. ... an entry in the revenue papers by no stretch of imagination can from the basis for declaration of title in favour of the plaintiffs.""
31. In the light of the aforesaid Judgment of the Hon'ble Supreme Court the finding of the trial Court that : 21 : R. S . A . N o . 1 5 5 / 0 5 Balappa's name was appearing in R.T.C. in 1969, therefore he was the title holder is unsustainable.
32. Apart from that, initially there was clear cut admission of the plaintiffs in their plaint as well as deposition of PW-1 regarding the ownership of their father. Therefore, the trial court's finding that Balappa was the owner and plaintiffs' father could not have sold the property and defendants have failed to prove the legal necessity or the execution of the document were totally unsustainable.
33. The trial Court mislead itself in not properly appreciating the pleadings, evidence of the parties and the legal position. Whereas the 1st appellate Court very elaborately appreciated the implications of inconsistent pleadings of the plaintiffs, their admissions on oath and the position of law regarding the burden of proof and evidentiary value of the entries in the records of rights, presumption regarding the 30 years old document.
34. This Court does not find any perversity or arbitrariness in the 1st appellate Court reversing the judgment of the trial Court. The 1st appellate Court has considered all : 22 : R. S . A . N o . 1 5 5 / 0 5 the material reasonings of the trial Court in decreeing the suit and analysed how they are unsustainable.
35. This Court is satisfied that the plaintiffs have abused the process of Court in bringing the suit and the appeal. Therefore, the appeal is dismissed with cost of Rs.25,000/-.
36. The appellant shall deposit the cost before the trial Court within four weeks from the date of receipt of copy of this order, failing which defendant No.1 is at liberty to execute the same.
SD/-
JUDGE hnm/ckk