Karnataka High Court
Sri.M.B.Chidananda vs Late Venkategowda on 26 April, 2025
Author: K.Somashekar
Bench: K.Somashekar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 1528 OF 2020(DEC/POS)
CONNECTED WITH
REGULAR FIRST APPEAL CROB NO. 23 OF 2021(DEC/POS)
IN RFA NO.1528/2020
BETWEEN:
1. LATE VENKATEGOWDA
DEAD BY HIS LRs'
SMT. MARIYAMMA
W/O LATE VENKATEGOWDA
AGED ABOUT 71 YEARS
2. SMT. SHANTHAMMA
D/O LATE VENKATEGOWDA
W/O SHIVEGOWDA
AGED ABOUT 54 YEARS
BOTH ARE RESIDING AT
CHIKKANAHALLI
YELWALA HOBLI
MYSORE TALUK-571130.
3. SHRI MAHADEVA
S/O LATE VENKATEGOWDA
AGED ABOUT 52 YEARS
4. SMT. JAYALAKSHMI
W/O NAGARAJEGOWDA
D/O LATE VENKATEGOWDA
2
AGED ABOUT 49 YEARS
R/AT CHIKKANAHALLI, YELWALA HOBLI
MYSORE TALUK - 571130.
5. SHRI. MAHESH
S/O LATE VENKATEGOWDA
AGED ABOUT 45 YEARS
6. SHRI BASAVARAJU
S/O LATE VENKATEGOWDA
AGED ABOUT 40 YEARS
7. SHRI SURESH
S/O LATE VENKATEGOWDA
AGED ABOUT 38 YEARS
8. SHRI VENKATARAMU
S/O LATE CENKATEGOWDA
AGED ABOUT 36 YEARS
THE APPELLANTS NO.3 AND 5 TO 8 ARE
R/AT NO.550, HOOTAGALLI VILLAGE
KASABA HOBLI, MYSURU TALUK-570018.
9. SMT. HONAMMA
W/O JAVAREGOWDA
AGED ABOUT 80 YEARS
R/AT HOOTAGALLI VILLAGE
KASABA HOBLI
MYSURU TALUK-570018.
...APPELLANTS
(BY SRI. G A SRIKANTE GOWDA - ADVOCATE)
AND:
1. SHRI. SHIVANNA
S/O LATE NEELEGOWDA @ MADEGOWDA
AGED ABOUT 65 YEARS
R/AT DASANAKOPPALU VILLAGE
JAYAPURA HOBLI
MYSURU TALUK - 570008.
2. SHRI M B NAGENDRA SIMHA
SINCE DEAD BY LRs'
3
2(a) SMT. TEJAVATHI
W/O LATE M B NAGENDRA SIMHA
AGE-MAJOR
2(b) SHRI. BHARATH SIMHA M N
S/O LATE M B NAGENDRA SIMHA
AGED ABOUT 31 YEARS
2(c) SHRI AMRUTH SIMHA M N
S/O LATE M B NAGENDRA SIMHA
AGED ABOUT 27 YEARS
THE RESPONDENTS 2(a) TO 2(c) ARE
R/AT BOJAIAH SILKS
K R CIRCLE, MYSURU-570001.
3. SHRI. M B NETHRA SIMHA
S/O M V BOJAIAH
AGED ABOUT 52 YEARS
R/AT BOJAIAH SILKS
K R CIRLCE
MYSURU - 570001.
4. SHRI. G JANARDHAN
S/O G GOVINDARAJU
AGED ABOUT 51 YEARS
R/AT NO.1554, C & D BLOCK
KUVEMPUNAGARA
MYSURU-570023.
5. SHRI M B CHIDANANDA
S/O M V BASAVARAJU
AGED ABOUT 51 YEARS
R/AT NO.820, 13TH MAIN
DR. CHADURANGA ROAD
T K LAYOUT, MYSURU-570022.
6. SHRI. HONNEGOWDA @ ANNAIAH
SINCE DEAD BY LRs
SHRI SHIVANNA
S/O LATE HONNEGOWDA @ ANNAIAH
AGED ABOUT 65 YEARS
4
7. SHRI CHIKKANNA
S/O LATE HONNEGOWDA @ ANNAIAH
AGED ABOUT 63 YEARS
8. SHRI SHIVALINGA
S/O LATE SHAMBUGOWDA
AGED ABOUT 65 YEARS
9. SHRI KARIYAPPA
S/O LATE SHAMBUGOWDA
AGED ABOUT 67 YEARS
10. SHRI SHAMBU
S/O LATE SHAMBUGOWDA
AGED ABOUT 65 YEARS
11. SHRI PUTTANNA
S/O LATE SHAMBUGOWDA
AGED ABOUT 65 YEARS
RESPONDENTS 6 TO 11 ARE R/AT
DASANAKOPPALU VILLAGE
MARATIKYATHANAHALLI POST
JAYAPURA HOBLI
MYSURU TALUK - 570008.
12. SHRI MANIKYA
S/O RAMASWAMY GOUNDER
AGED ABOUT 72 YEARS
R/AT HAPPY POULTRY
BOGADI ROAD AND POST
MYSURU - 570023\6.
13. SHRI M B SRINATH
S/O M V BASAVARAJ
AGED ABOUT 43 YEARS
14. SHRI M B HARISH
S/O M V BASAVARAJ
AGED ABOUT 47 YEARS
15. SHRI M B GIRISH
S/O M V BASAVARAJU
5
AGED ABOUT 49 YEARS
RESPONDENTS 13 TO 15 ARE R/AT
883, SUBASHNAGAR
K R PETE TALUK
MANDYA DISTRICT - 577133.
16. SRI. S A IMTIAHZ
S/O AHMED IBRAHIM
AGE: MAJOR
R/AT DOOR NO.106,14TH CROSS
VANI VILASA MOHALLA
JAYALAKSHMIPURAM
MYSURU - 570012.
...RESPONDENTS
(BY SRI. RAJESHWARA P N - ADVOCATE FOR RESPONDENT
NO.5; VIDE COURT ORDEER DATED 01.06.2023 SERVICE OF
NOTICE TO RESPONDENTS NO.1, 3, 4 AND 6 TO 16 ARE
DISENSED WITH; RESPONDENTS R2(a) TO R2(c) - LRs' OF
DECEASED R2 ARE SERVED AND UNREPRESENTED)
THIS RFA FILED UNDER ORDER 41 RULE 1 R/W SECTION
96 OF CPC., PRAYING TO SET ASIDE THE JUDGEMENT AND
DECREE DATED 20.12.2019 PASSED BY THE LEARNED I-ADDL.
SR. CIVIL JUDGE AND C.J.M., AT MYSURU, IN SUIT
O.S.NO.501/2008.
IN RFA CROB NO.23/2021
BETWEEN:
SRI M B CHIDANANDA
AGED ABOUT 39 YEARS
S/O SRI M V BASAVARAJU
R/AT NO.820, 13TH MAIN
D CHADURANGA ROAD
T K LAYOUT, MYSURU-570 022.
... CROSS OBJECTOR
(BY SRI. RAJESHWARA P N - CROSS OBJECTOR)
AND:
1. LATE VENKATEGOWDA
6
DEAD BY HIS LR:
SMT. MARIYAMMA
W/O LATE VENKATEGOWDA
AGED ABOUT 75 YEARS
2. SMT. SHANTHAMMA
D/O LATE VENKATEGOWDA
W/O SRI SHIVEGOWDA
AGED ABOUT 58 YEARS
BOTH ARE RESIDING AT
CHIKKANAHALLI
YELWALA HOBLI
MYSORE TALUK-571130.
3. SHRI MAHADEVA
S/O LATE VENKATEGOWDA
AGED ABOUT 56 YEARS
4. SMT. JAYALAKSHMI
W/O SRI. NAGARAJEGOWDA
D/O LATE VENKATEGOWDA
AGED ABOUT 58 YEARS
R/AT CHIKKANAHALLI, YELAVALA HOBLI
MYSORE TALUK - 571130.
5. SHRI. MAHESH
S/O LATE VENKATEGOWDA
AGED ABOUT 50 YEARS
6. SHRI BASAVARAJU
S/O LATE VENKATEGOWDA
AGED ABOUT 44 YEARS
7. SHRI SURESH
S/O LATE VENKATEGOWDA
AGED ABOUT 42 YEARS
8. SHRI VENKATARAMU
S/O LATE CENKATEGOWDA
AGED ABOUT 44 YEARS
THE APPELLANTS NO.3 AND 5 TO 8 ARE
R/AT NO.550, HOOTAGALLI VILLAGE
KASABA HOBLI, MYSURU TALUK-570018.
7
9. SMT. HONAMMA
W/O JAVAREGOWDA
AGED ABOUT 82 YEARS
R/AT HOOTAGALLI VILLAGE
KASABA HOBLI
MYSURU TALUK-570018.
10. SHRI. SHIVANNA
S/O LATE NEELEGOWDA @ MADEGOWDA
AGED ABOUT 75 YEARS
R/AT DASANAKOPPALU VILLAGE
JAYAPURA HOBLI
MYSURU TALUK - 570008.
11. SHRI M B NAGENDRA SIMHA
AGED ABOUT 59 YEARS
S/O SRI. M V BOJAIAH
R/AT BOJAIAH SILKS
K R CIRCLE, MYSURU-570001.
12. SHRI. M B NETHRA SIMHA
S/O M V BOJAIAH
AGED ABOUT 54 YEARS
R/AT BOJAIAH SILKS
K R CIRLCE
MYSURU - 570001.
13. SHRI. G JANARDHAN
S/O G GOVINDARAJU
AGED ABOUT 50 YEARS
R/AT NO.1554, C & D BLOCK
KUVEMPUNAGARA
MYSURU-570023.
14. SHRI. HONNEGOWDA @ ANNAIAH
SINCE DEAD BY LRs
SHRI SHIVANNA
S/O LATE HONNEGOWDA @ ANNAIAH
AGED ABOUT 70 YEARS
15. SHRI CHIKKANNA
S/O LATE HONNEGOWDA @ ANNAIAH
AGED ABOUT 68 YEARS
8
16. SHAMBUGOWDA
SINCE DEAD BY LR:
SHRI SHIVALINGA
S/O LATE SHAMBUGOWDA
AGED ABOUT 70 YEARS
17. SHRI KARIYAPPA
S/O LATE SHAMBUGOWDA
AGED ABOUT 72 YEARS
18. SHRI SHAMBU
S/O LATE SHAMBUGOWDA
AGED ABOUT 65 YEARS
19. SHRI PUTTANNA
S/O LATE SHAMBUGOWDA
AGED ABOUT 60 YEARS
RESPONDENTS 14 TO 19 ARE R/AT
DASANAKOPPALU VILLAGE
MARATIKYATHANAHALLI POST
JAYAPURA HOBLI
MYSURU TALUK - 570008.
20. SHRI MANIKYA
S/O RAMASWAMY GOUNDER
AGED ABOUT 54 YEARS
R/AT HAPPY POULTRY
BOGADI ROAD AND POST
MYSURU - 5700236.
21. SHRI M B SRINATH
S/O M V BASAVARAJ
AGED ABOUT 52 YEARS
22. SHRI M B HARISH
S/O M V BASAVARAJ
AGED ABOUT 46 YEARS
23. SHRI M B GIRISH
S/O M V BASAVARAJU
AGED ABOUT 49 YEARS
9
RESPONDENTS 21 TO 23 ARE R/AT
No. 883, SUBASHNAGAR
MANDYA DISTRICT - 577133.
25. SRI. S A IMTIAHZ
S/O AHMED IBRAHIM
AGED ABOUT 48 YEARS
R/AT DOOR NO.106, 14TH CROSS
VANI VILAS MOHALLA
JAYALAKSHMIPURAM
MYSURU - 570012.
...RESPONDENTS
(BY SRI. G A SRIKANTE GOWDA - ADVOCATE FOR
RESPONDENTS NO.1 TO 9; VIDE COURT ORDER DATED
30.07.2024, SERVICE OF NOTICE TO RESPONDENTS NO.10, 12
TO 15 AND 17 TO 24 ARE DISPENSED WITH AND RESPONDENT
NO.11 STANDS ABATED; RESPONDENT NO.16 IS SERVED AND
UNREPRESENTED)
THIS RFA.CROB FILED UNDER ORDER XLI RULE 22 R/W
ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE
FINDINGS ON ISSUE NO.4 IN JUDGMENT AND DECREE DATED
20.12.2019 PASSED IN O.S.NO.501/2008 PASSED BY THE
COURT OF I-ADDL. SR. CIVIL JUDGE AND C.J.M., AT MYSURU
AND ALLOW THIS CROSS APPEAL WITH COSTS.
THESE RFA AND RFA.CROB, HAVING BEEN HEARD AND
RESERVED ON 07.04.2025 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, K. SOMASHEKAR J., PRONOUNCED
THE FOLLOWING:
CORAM: HO'BLE MR JUSTICE K.SOMASHEKAR
AND
HON'BLE MR JUSTICE VENKATESH NAIK T
10
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR) The appeal in RFA No.1528/2020 is filed by the appellants under Order 41 rule 1 r/w Section 96 of the CPC, praying to set aside the judgment and decree dated 20.12.2019 passed by the learned I-Addl. Sr. Civil Judge and C.J.M., at Mysuru, in the suit in O.S.No.501/2008.
2. The RFA Crob.No.23/2021 is filed under Order 41 Rule 22 read with Order 41 Rule 1 CPC by the Cross- Objector praying to set aside the findings on Issue no.4 in the Judgment and Decree dated 20.12.2019 passed by the I Addl. Sr. Civil judge and C.J.M., Mysuru in O.S.No.501/2008 and to allow this cross appeal with costs.
3. Both this appeal and cross objection being inter- connected, are taken up for hearing together and are disposed of by this common order. The parties shall hereinafter be referred to as per their ranks before the Trial Court, for the sake of convenience.
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4. We have heard the learned counsel Shri G.A Srikante Gowda for appellant in RFA No.1528/2020 who is also representing Respondent Nos.1 to 9 in RFA.Crob.23/2021. Further, we have heard the learned counsel Shri Rajeshwara P.N. for Respondent No.5 in RFA No.1528/2020 and who is representing the Cross Objector in RFA Crob No. 23/2021.
5. The factual matrix of the cases is as under:
The plaintiffs in the suit, who are the appellants herein, claim to be the legal heirs of Late Venkategowda and Smt. Honamma. Both of them are children of Late Dasanakoppalu Bundaiah, the only son of Late Smt. Narasamma @ Bundathayi Narasamma and Late Bettadasegowda. The subject matter of the suit in O.S.No.501/2008 concerned land bearing Survey No. 53/3 (subsequently renumbered as 53/3A and 53/3B), situated at Madagalli Village, Yelwala Hobli, Mysuru Taluk, measuring approximately 4 acres and 4 guntas.12
6. According to the plaintiffs, the suit property originally belonged to one Kala @ Siddegowda, the father of Narasamma. The revenue records from 1935 to 1945 recorded the land in his name. Due to his failure to pay land revenue, the Government of Karnataka classified the land as 'beelu' (waste land). In 1945-46, the Government restored the property in Narasamma's name under MR No. 4/1945-46 and effected the katha (mutation entry) in her favour.
7. The plaintiffs state that Narasamma died in he year 1952 without alienating the suit schedule property. Her son Bundaiah inherited the property. After Bundaiah's demise in 1980, the plaintiffs, as his legal heirs, claim to have succeeded to the land and continued in peaceful possession until May 2008. They allege that Defendant No. 5 / M.B. Chidananda, unlawfully dispossessed them at that point.
8. The plaintiffs further assert that Honnegowda @ Annaiah / Defendant No.6, fraudulently initiated an unauthorised chain of alienations by selling a portion of 13 the suit land to Shambugowda / Defendant No.7. The property thereafter changed hands through a series of transfers, ultimately culminating in the sale deed dated 24.05.2006 executed in favour of Defendant No. 5 / M.B. Chidananda. The plaintiffs claim that none of the transactions trace back to any lawful conveyance from Narasamma or Bundaiah, and are therefore illegal and not binding on them.
9. Defendant No. 5 / M.B. Chidananda, who is the principal contesting defendant, asserts that his predecessor-in-title, Shambugowda S/o Karigowda, had lawfully purchased the suit schedule property through a registered sale deed dated 25.06.1969. Defendant No.5 states that he purchased the land in 2006 from Prasanna Kumar and Dr. G. Janardhan after verifying the title, obtaining conversion approvals, and investing substantial sums in developing a residential layout. Defendant No. 5 claims to be the bona fide purchaser for value without notice of any adverse claim. He also contends that the plaintiffs failed to challenge the mutation entries or 14 registered sale deeds for over three decades and hence, the suit filed by the plaintiffs is barred by limitation.
10. Defendant No. 2 / M.B. Nagendra Simha separately asserts that he purchased the suit schedule property in the year 1975 from Defendant No. 1 (Shivanna) and sold it to one Manickyam in 1980. He asserts that he verified the title and found the vendor in lawful possession, at the time of purchase.
11. In order to establish their title, the plaintiffs filed O.S. No. 501/2008 on 16.07.2008 before the Court of the I Additional Senior Civil Judge & CJM, Mysuru, seeking a declaration of title and recovery of possession. They relied on mutation entries, revenue records, and a genealogical chart to support their claim. The defendants countered the claim of the plaintiffs by producing registered sale deeds, encumbrance certificates, and conversion documents.
12. Based on the pleadings of the parties, the trial court framed the following six issues which includes the question of ownership, the validity and binding nature of 15 the sale deeds, and whether the plaintiffs were entitled to possession:
"1. Whether plaintiffs prove that, they are the owners of suit schedule property?
2. Whether plaintiffs prove that Sale deed executed by Honnegowda @ Thimaiah in favour of Shambugowda S/o. Karigowda and Sale Deed st executed by the 1 defendant in favour of 2nd defendant and sale deed executed by Shambugowda S/o. late Karigowda in favour of 3rd defendant and sale deed executed by defendant No.3 in favour of defendant No.4 and in turn sale deed executed by defendant No.4 in favour of defendant No.5 are not binding on them as contended?
3. Whether defendant No.2 proves that, he is the bona fide purchaser of portion of the suit schedule property for valuable consideration and thereafter, in the year 1980 has sold the same to one M.R. Manikyam through registered Sale Deed dated 10.03.1980 as contended?
4. Whether defendant No.5 proves that, he is the bonafide purchaser of the suit schedule property having purchased the same from Prasanna Kumar and Dr. Janardhan through Registered Sale Deed dated 24.05.2006 and plaintiffs have no locus-standi to question the sale deed executed by Prasanna Kumar and Janardhan in his favour in respect of the 16 suit schedule property as contended in the written statement?
5. Whether plaintiff is entitled for the relief of declaration and possession as sought for?
6. What order or decree?"
The Trial Court answered Issue Nos.1 to 5 in the negative and Issue No.6 as per the final order and upon evaluating the evidence, the trial court dismissed the suit. The Trial Court held that the plaintiffs failed to prove their genealogical link to Narasamma through cogent and admissible evidence and concluded that revenue entries alone did not establish ownership or title. It is the said judgment of the Trial Court which is under challenge in RFA No.1528/2020 by the plaintiffs seeking to set aside the said judgment. The Cross Objector / Defendant No.5 has filed RFA.Crob.No.23/2021 seeking to set aside the Trial Court's findings as regards Issue No.4 of its judgment in O.S.No.501/2008.
13. The learned counsel Shri G.A. Srikante Gowda for the plaintiffs who are the appellants in RFA No.1528/2020, submit that they are the legal heirs of Late Dasanakoppalu 17 Bundaiah, the sole son of Smt. Narasamma, in whose favour the Government of Karnataka restored the suit property under MR No. 4/1945-46. The restoration followed the classification of the land as 'beelu', owing to the failure of Kala @ Siddegowda, Narasamma's father, to remit land revenue. Upon Narasamma's death in 1952, her son Bundaiah inherited the property. The revenue authorities, in recognition of this succession, effected mutation of the property in favour of Bundaiah under IHR No. 2/79-80. The appellants remained in uninterrupted possession until their alleged dispossession by the fifth respondent / fifth defendant in May 2008.
14. The learned counsel for appellants categorically assert that neither Narasamma nor Bundaiah executed any conveyance with respect to the suit land. They submit that the origin of the respondents' title stems from an unauthorized and fraudulent sale initiated by one Honnegowda @ Annaiah, culminating in the execution of a sale deed in favour of the fifth respondent in 2006. They maintain that the entire chain of transactions lacks a 18 lawful foundation, as none of the purported transfers trace their origin to any conveyance from Narasamma or her heir.
15. The learned counsel for appellants / plaintiffs further contend that the fifth and second respondents did not deny the genealogy set forth in Ex. P1, either in their pleadings or during cross-examination. The testimony of PW-1 (Plaintiff No. 6), who affirmed the genealogical lineage from Narasamma to Bundaiah and then to the plaintiffs, remained consistent and unshaken throughout the trial. The learned counsel for appellants submit that this failure to specifically deny a material fact must be treated as an admission, relying on the dictum of the Hon'ble Supreme Court in the case of Vidhyadhar v. Manikrao [(1999) 3 SCC 573], wherein the Court held that a party who fails to step into the witness box or refute key averments in pleadings, risks a finding of deemed admission. The relevant extract from the judgment is given below:
19
"17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh [AIR 1930 Lah 1 : ILR 11 Lah 142] and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh [AIR 1931 Bom 97 :
32 Bom LR 924] . The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] also followed the Privy Council decision in Sardar Gurbakhsh Singh case [AIR 1927 PC 230 : 32 CWN 119] . The Allahabad High Court in Arjun Singh v.
Virendra Nath [AIR 1971 All 29] held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box."
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16. The learned counsel for appellants / plaintiffs places emphasis on the fact that the fifth respondent did not choose to depose before the Trial court. Instead, he examined his power of attorney holder (DW-1), who lacked personal knowledge regarding the origin of title. DW-1, in fact, admitted in cross-examination that the names of Narasamma and Bundaiah continued to appear in revenue records and that the original title deed was never produced by his vendors, allegedly due to damage. The appellants urge this Hon'ble Court to draw an adverse inference against the fifth respondent under Section 114(g) of the Indian Evidence Act, 1872, particularly in light of the ruling in the case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [(2005) 2 SCC 217], where the Apex Court held that a Power of Attorney holder cannot depose with respect to facts within the personal knowledge of the principal. The relevant extract from the judgement is given below:
"13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order 3 Rules 1 and 2 CPC confines only to in respect 21 of "acts" done by the power-of-attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power- of-attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
17. A similar adverse inference was drawn in the case of Iswar Bhai C. Patel v. Harihar Behera [(1999) 3 SCC 457] when a litigant failed to testify, despite serious factual disputes. The relevant extract from the said judgment reads thus:
"25. A Division Bench of the Patna High Court in Devji Shivji v. Karsandas Ramji [AIR 1954 Pat 280] relying upon the decision of the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh [AIR 1927 PC 230 : 32 CWN 119] and the Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat [AIR 1970 MP 225 : 1970 MPLJ 586] have also taken the same view. The Madhya 22 Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha v. Tulsibala Dassi [AIR 1958 Cal 713 : 63 CWN 258] :
"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny."
26. The Allahabad High Court in Arjun Singh v. Virendra Nath [AIR 1971 All 29] held:
"The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give."
27. It was further observed:
"If such a party abstains from entering the witness-box it must give rise to an inference adverse against him."
28. A Division Bench of the Punjab and Haryana High Court also in Bhagwan Dass v. Bhishan 23 Chand [AIR 1974 P&H 7] drew a presumption under Section 114 of the Evidence Act that if a party does not enter the witness-box, an adverse presumption has to be drawn against that party.
29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness-box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by Respondent 2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of Respondent 1 in Central Bank of India Ltd., Sambalpur Branch and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of Respondent 1 in its entirety and passing a decree against the appellant also."
18. The learned counsel appellants also contend that the Trial court committed a manifest error in rejecting the evidentiary value of the revenue records (Exs. P2, P3, P8, P9, and P46-P49), which consistently recorded the names 24 of Narasamma and Bundaiah. These entries stood unchallenged for several decades and supported the plaintiffs' plea of lawful possession. The appellants rely on the judgment in the case of State of Bihar v. Radha Krishna Singh [(1983) 3 SCC 118], wherein the Supreme Court clarified that longstanding revenue records, when coupled with settled possession, can form the basis of a legal presumption of ownership, especially when the contesting party fails to produce a superior title. The relevant extract from the judgment is given below:
"18. After a brief narration of the facts, mentioned above, before going to the oral, documentary and circumstantial evidence, it may be necessary to state the well-established principles in the light of which we have to decide the conflicting claims of the parties. It appears that the plaint genealogy is the very fabric and foundation of the edifice on which is built the plaintiff's case. This is the starting point of the case of the plaintiff which has been hotly contested by the appellant. In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts in relying on the genealogy put 25 forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.
19. The principles governing such cases may be summarised thus:
"(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies:
a. Source of the genealogy and its dependability.
b. Admissibility of the genealogy under the Evidence Act.
c. A proper use of the said genealogies in decisions or judgments on which reliance is placed.
d. Age of genealogies.
e. Litigations where such genealogies have been accepted or rejected.
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(2) On the question of admissibility the following tests must be adopted:
a. The genealogies of the families concerned must fall within the four-corners of Section 32(5) or Section 13 of the Evidence Act.
b. They must not be hit by the doctrine of post litem motam.
c. The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.
d. Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved."
194. Before, however, opening this chapter it may be necessary to restate the norms and the principles governing the proof of a pedigree by oral evidence in the light of which the said evidence would have to be examined by us. It is true that in considering the oral evidence regarding a pedigree a purely mathematical approach cannot be made 27 because where a long line of descent has to be proved spreading over a century, it is obvious that the witnesses who are examined to depose to the genealogy would have to depend on their special means of knowledge which may have come to them through their ancestors but, at the same time, there is a great risk and a serious danger involved in relying solely on the evidence of witnesses given from pure memory because the witnesses who are interested normally have a tendency to draw more from their imagination or turn and twist the facts which they may have heard from their ancestors in order to help the parties for whom they are deposing. The court must, therefore safeguard that the evidence of such witnesses may not be accepted as is based purely on imagination or an imaginary or illusory source of information rather than special means of knowledge as required by law. The oral testimony of the witnesses on this matter is bound to be hearsay and their evidence is admissible as an exception to the general rule where hearsay evidence is not admissible. This is culled out from the law contained in clause (5) of Section 32 of the Evidence Act which must be construed to the letter and to the spirit in which it was passed.
195. In order to appreciate the evidence of such witnesses, the following principles should be kept in mind:28
"(1) The relationship or the connection however close it may be, which the witness bears to the persons whose pedigree is sought to be deposed by him.
(2) The nature and character of the special means of knowledge through which the witness has come to know about the pedigree.
(3) The interested nature of the witness concerned.
(4) The precaution which must be taken to rule out any false statement made by the witness post litem motam or one which is derived not by means of special knowledge but purely from his imagination, and (5) The evidence of the witness must be substantially corroborated as far as time and memory admit."
19. It is the further contention of the learned counsel for appellants / plaintiffs that the respondents / defendants did not prove any lawful devolution of title from Narasamma or Bundaiah. The trial court itself found 29 a clear break in the chain of title and noted that the respondents failed to establish the root of their title. Yet, the Trial Court failed to draw the appropriate legal inference from this deficiency. The learned counsel for appellants rely on a judgment of the Hon'ble Supreme Court in the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal [(2003) 8 SCC 745] to assert that the production and marking of a document as an exhibit is not proof of its execution; the party relying on it must prove its due execution through admissible evidence, which the respondents conspicuously failed to do. The relevant extract of the judgment is given below:
"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd. [(1981) 1 SCC 80] The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". The situation is, however, different where the documents are produced, they are admitted by the opposite party, 30 signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents.
17. We have already reproduced above the contents of Order No. 53 dated 3-9-1982 of the trial court. The appellant cannot be allowed to question the correctness of the said order. The documents were admitted and then exhibited. The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady."
20. The learned counsel for appellants finally contends that their undisputed possession of the suit property from the date of restoration in 1945 until their dispossession in 2008 entitles them to relief. They rely on a judgment in the case of Muddasani Venkata Narsaiah v. Muddasani Sarojana [(2016) 12 SCC 288], wherein 31 the Supreme Court held that a suit for possession based on title is maintainable even in the absence of declaratory relief, provided that there is no serious cloud on the plaintiff's title. In the present case, the respondents failed to raise any legitimate or proven claim to the property. Their vague denials and lack of affirmative evidence cannot displace the appellants' longstanding possession and recorded title. The relevant extract from the judgment reads thus:
"13. Coming to the question whether execution of sale deed in favour of plaintiff has been proved, the High Court has held that the sale deed has not been proved for want of examination of Buchamma. The High Court has ignored the pleadings of the parties and the evidence on the question of execution of sale deed which establishes that sale deed had been executed by Buchamma in favour of the plaintiff. In the written statement filed on behalf of the defendants, the sale deed was denied for want of knowledge. A perusal of same indicates that the authority of Buchamma to execute the sale deed in favour of the plaintiff was put into question. Defendant 3 Sarojana in her deposition in court did not deny the fact that sale deed was executed by Buchamma in favour of the plaintiff. She has stated 32 that she was not aware whether Buchamma has executed any sale deed in favour of the plaintiff. She only asserted that she was the adopted daughter of Yashoda.
14. It is settled law that denial for want of knowledge is no denial at all. The execution of the sale deed was not specifically denied in the written statement. Once the execution of the sale deed was not disputed it was not necessary to examine Buchamma to prove it. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. This Court in Jahuri Sah v. Dwarika Prasad Jhunjhunwala [Jahuri Sah v. Dwarika Prasad Jhunjhunwala, AIR 1967 SC 109] has laid down that if a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even an implied denial. Same decision has been followed by the Madhya Pradesh High Court in Dhanbai v. State of M.P. [Dhanbai v. State of M.P., 1978 SCC OnLine MP 145 : AIR 1979 MP 17 : 1978 MPLJ 717] The High Court of Madhya Pradesh in Samrathmal v. Union of India [Samrathmal v. Union of India, 1959 SCC OnLine MP 153 : AIR 1959 MP 305] , relying on P.L.N.K.L. Chettyar Firm v. Ko Lu Doke [P.L.N.K.L. Chettyar Firm v. Ko Lu Doke, 1934 SCC OnLine Rang 154 : AIR 1934 Rang 278] and Lakhmi Chand v. B. Ram Lal Kapoor Vakil [Lakhmi Chand v. B. Ram Lal Kapoor Vakil, 1931 SCC OnLine All 35 : AIR 33 1931 All 423] , had also opined that if the defendant did not know of a fact, denial of the knowledge of a particular fact is not a denial of the fact and has not even the effect of putting the fact in issue."
21. In the light of the foregoing submissions, the learned counsel for appellants fervently pray that this Hon'ble Court be pleased to set aside the judgment and decree dated 20.12.2019 passed by the learned I Additional Senior Civil Judge and Chief Judicial Magistrate at Mysuru in O.S. No. 501/2008, and to grant a decree for declaration of title and recovery of possession in favour of the appellants / plaintiffs, as prayed for in the suit. The appellants further seek such other and appropriate reliefs as this Hon'ble Court may deem fit in the interests of justice and equity.
22. Per contra, Sri Rajeshwara P.N, learned Counsel appearing for the Cross Objector / Defendant No. 5, submits that the trial court erred in holding Issue No. 4 against the Cross Objector despite the fact that he had established a lawful and continuous chain of title spanning more than three decades. It is his contention that the 34 Cross Objector purchased the suit schedule property through a registered sale deed dated 24.05.2006 from Dr. G. Janardhan and G. Prasanna Kumar. These vendors had themselves acquired the property through successive, valid, and registered transactions from their respective predecessors-in-title. The original purchaser, Sri Shambugowda, acquired the suit schedule property by a registered sale deed dated 25.06.1969, and the khatha was duly transferred in his name under MR No. 11/1969-
70. The subsequent title passed from Shambugowda to M.B. Nagendra Simha and M.B. Nethra Simha, who then conveyed the land to M.A. Manikyam under a registered sale deed dated 10.03.1980. Thereafter, Dr. Janardhan and others succeeded to ownership, culminating in the registered sale deed executed in favour of the Cross Objector.
23. The learned Counsel emphasizes that at the time of purchase, the Cross Objector diligently verified the title deeds, examined the encumbrance certificate, and confirmed the mutation entries reflecting the names of his 35 vendors and their predecessors. He further asserts that the names of plaintiffs and their alleged predecessors had never appeared in the revenue records, nor did they challenge any of the registered transactions over the span of more than 30 years. In such circumstances, the Cross Objector cannot be accused of having purchased the property without proper inquiry. The learned counsel maintains that his client is a bona fide purchaser for value, and he purchased the land after exercising reasonable caution and in good faith.
24. The learned Counsel also submits that the Cross Objector obtained statutory conversion of the land for residential use and has developed it into a layout with significant financial investment and approvals from the competent authorities. The plaintiffs never raised any objection to the layout development nor sought to interfere with the Cross Objector's possession or development activities until the suit was filed decades after the alleged succession from Smt. Narasamma. 36
25. The learned counsel Sri Rajeshwara P.N further submits that the genealogical claims made by the plaintiffs are vague, unsubstantiated, and unsupported by any documentary or admissible evidence. The plaintiffs failed to produce cogent proof of their relationship with Smt. Narasamma, nor did they explain the long and unexplained silence from 1952 till 2008. He argues that the suit is clearly barred by limitation and suffers from laches and suppression of material facts.
26. The learned counsel strongly disputes the finding of the Trial court that there exists a "missing link" in the title between Smt. Narasamma and the original purchaser, Shambugowda. He submits that this observation is speculative and overlooks the fact that the property has changed hands multiple times through registered instruments, none of which were ever challenged. He relies on settled legal principles that a purchaser is not required to go beyond the title deeds of his vendor when the documents are valid, duly registered, and supported by mutation and revenue entries.
37
27. The learned Counsel for the Cross-objector further contends that the Trial Court has failed to consider the totality of evidence on record, including the continuous flow of title, the absence of objections or rival claims over three decades, and the development work undertaken by the Cross Objector post-conversion. He argues that the finding on Issue No. 4, branding the Cross Objector as not being a bona fide purchaser, is not only legally flawed but also contrary to the weight of documentary evidence.
28. In his concluding remarks, the learned counsel Sri Rajeshwara P.N. prays this Court to set aside the adverse finding recorded against the Cross Objector in respect of Issue No. 4 in the judgment and decree dated 20.12.2019 passed in O.S. No. 501/2008 by the learned I Additional Senior Civil Judge and C.J.M. at Mysuru.
29. In the context of contentions advanced by the learned counsel Shri G.A. Srikante Gowda for plaintiffs / appellants in RFA No.1528/2020 and the learned counsel Shri Rajeshwara P.N. for Defendant No.5 / Cross Objector in RFA.Crob.23/2021, it is relevant to state that the suit in 38 O.S.No.501/2008 was initiated by the plaintiff namely Venkategowda, Dead by his LRs Plaintiff Nos.1(a) to 1(h) and Plaintiff No.2 / Honnamma. The said suit was initiated against Defendant Nos.1 to 12, seeking the relief of declaration of title and for possession of the suit schedule property depicted therein, from the defendants.
30. Based upon the plaint and the written statement filed by defendants respectively and based upon their pleadings, issues were framed by the Trial Court and were answered in the negative, thus dismissing the suit of the plaintiffs by assigning reasons. The reasons were based upon the evidence of PW-1 / Mahesh and so also the documents at Exhibits P1 to P49. The documents at Exhibits P21 to P24 are the certified copies of the sale deeds and so also the documents at Exhibits P26 and 27 are also the certified copies of sale deeds; Exhibits P16 and P18 are Akarbhand and Exhibit P17 is the sketch; Exhibit P1 / Genealogy; Exhibit P38 is the certified copy of Darkast application; Exhibits P28 to P37 and P39 are the certified copies of the RTC extracts. These are the 39 documents which were got marked on the part of the plaintiffs to prove their case in respect of the suit schedule properties. On behalf of defendants, the evidence of DW-1 / S.V. Prasanna Kumar is got marked inclusive of the documents at Exhibits D1 to D56. More importantly, Exhibit D22 is the original sale deed and Exhibit D25 is another original sale deed and such other documents have been got marked on the part of the defendants. Based on the pleadings, the Trial Court framed six issues out of which Issue No.4 reads that, "Whether the Defendant No.5 proves that he is the bona fide purchaser of the suit schedule property having purchased the same from Prasanna Kumar and Dr. Janardhan through Registered Sale Deed dated 24.05.2006 and plaintiffs have no locus-standi to question the sale deed executed by Prasanna Kumar and Janardhan in his favour in respect of the suit schedule property as contended in the written statement?" The Trial Court had answered the said issue in the negative. Hence, the said finding has been challenged by Defendant No.5 by filing RFA.Crob.23/2021. The learned counsel for Defendant No.5 insofar as Issue 40 No.4 has contended that he is the bona fide purchaser of the suit schedule property, having purchased the same from Prasanna Kumar And Dr. Janardhan through registered sale deed dated 24.05.2006. However, the Trial Court has held that, as per the contention of Defendant No.5 is concerned, it is not clear as to how his predecessors-in-title, acquired the title from Bundathayi Narasamma. There is a missing link as to how the property was acquired by Shambugowda, S/o. late Karigowda from Bundathayi Narasamma. Exhibit D56 shows that 3 acres in Sy.No.53/3 was sold by Honnegowda @ Annaiah, Boramma to Shambugowda, S/o. late Karigowda. It cannot be made out as to who is Honnegowda @ Annaiah, Boramma. These entries are also found in Exhibit D7 records of rights. It is not known as to how the said Honnegowda @ Annaiah, Boramma is connected to either Bundathayi Narasamma or Neelegowda @ Doolapapegowda. Therefore, the contention of Defendant No.5 that he is the bona fide purchaser of the suit schedule property, cannot be 41 accepted and therefore, the said Issue No.4 was answered in the negative.
31. However, on an appreciation of the evidence on record, it is relevant to state that the appellants (original plaintiffs) have established a clear origin of title in their predecessor Narasamma. It is undisputed that the suit land was granted to Narasamma by the Government in 1945-46 under a restoration proceeding (MR No. 4/1945-
46). The plaintiffs produced certified revenue records evidencing this grant, which firmly vest initial title in Narasamma. The plaintiffs claim succession to Narasamma as her legal heirs. They led evidence that Narasamma was the grandmother of Plaintiff No.1 and the ancestral owner of the property. In the testimony, Plaintiff No.1(e) (PW1) / Mahesh, detailed the family genealogy: he deposed that the land passed to his branch of the family upon Narasamma's death (being inherited through Narasamma's only son, the plaintiffs' father). This testimony on genealogy was cogent and remained unshaken in cross-examination. Notably, the defendants 42 did not seriously challenge or contradict the plaintiffs' kinship with Narasamma during cross-examination. At this juncture, it is pertinent to refer to the judgment of the Hon'ble Supreme Court in the case of STATE OF BIHAR vs. RADHA KRISHNA SINGH (1983) 3 SCC 118 (supra), the relevant portion of which reads thus:
"Held:
, In cases where the plaint genealogy is the very basis of the plaintiff's case and since there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts should endeavour to do justice on the materials and records uninfluenced and undaunted by any extraneous circumstances. (Paras 18 and 268) Genealogies admitted or proved to be old and relied on in previous cases are relevant and in some cases may even be conclusive of the facts proved but the courts before accepting or relying on the genealogies must keep in mind the 43
(a) source of the genealogy and its dependability;
(b) admissibility of the genealogy under the Evidence Act;
(c) a proper use of the said genealogies in decisions or judgments on which reliance is placed;
(d) age of genealogies; and
(e) litigations where such genealogies have been accepted or rejected. (Para 19) On the question of admissibility the following are the tests to be adopted:
(a) The genealogies of the families concerned must fall within the four corners of Section 32(5) or Section 13 of the Evidence Act;
(b) they must not be hit by the doctrine of post litem motam;
(c) the genealogies or the claims cannot be proved by recitals, deposi-tions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible; and 44
(d) where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.
(Para 19)"
32. When a material assertion by a witness is left unchallenged in cross-examination, the court may presume that the opposite party has accepted that evidence as true. Applying that principle, the plaintiffs' relationship with Narasamma - and thus their succession to her title - stands proved on a balance of probabilities. No evidence was led by any other heir or claimant to Narasamma's estate. The trial court was therefore not justified in branding the genealogy as "unproved." On the contrary, the uncontroverted oral evidence of PW1 coupled with Narasamma's documented ownership, establishes that the plaintiffs are Narasamma's successors in title.
33. The plaintiffs further bolstered their title by demonstrating long, continuous possession of the land after Narasamma. They assert that from the time of the 1945-46 grant, Narasamma and, after her, the plaintiffs' 45 family remained in uninterrupted possession of the property for over six decades, until they were dispossessed in the year 2008. This claim finds support in the revenue records and mutation entries, which consistently reflected Narasamma's name (and later, the plaintiffs' names) as the lawful possessors of the land. The Court finds that the revenue documents (pahani extracts, RTC and mutation registers) from the year 1940s through the year 2000s corroborate the plaintiffs' possession. These official records show that at no point of time any outsider (including the defendants or their predecessors) recorded as occupant or owner until the disputed dispossession. The long and peaceful possession enjoyed by the plaintiffs' family, as evidenced by decades of revenue entries in their favor, reinforces the credibility of their title. Possession is strong evidence of ownership in such cases, and the law presumes that possession follows title, unless proven otherwise. Here, the plaintiffs' possession is entirely consistent with their claim of title via inheritance from Narasamma.
46
34. Against the plaintiffs' well-founded title, the defendants set up a rival claim based on a chain of sale deeds. The defendants traced their claim to a purported sale of the suit land by one Honnegowda in the year 1969. According to the defendants, Honnegowda sold the land in 1969, and through subsequent conveyances the title eventually devolved upon Defendant No.5 (the contesting respondent). Crucially, however, the defendants failed to establish any link between Honnegowda and Narasamma (the original owner). There is no evidence that Honnegowda ever acquired title from Narasamma or her heirs. He is a complete stranger to Narasamma's estate. In effect, the defendants' chain of title has a missing root:
it begins with a person (Honnegowda) who had no demonstrated ownership of the land. It is a fundamental principle of property law that no one can convey a better title than he himself has (nemo dat quod non habet). If Honnegowda had no title, he could not have validly sold the land in 1969, and any subsequent transfers based on that sale deed would be void in law. The trial court itself noted a "break" in the defendants' title chain; this Court 47 concurs that the defendants have shown no valid root of title connecting back to the true owner, Narasamma.
35. Beyond the substantive gap in title, the defendants did not adequately prove the authenticity and execution of the sale deeds in their chain. They produced copies of certain sale deeds (including the 1969 deed and later conveyances), and the trial court marked these as exhibits. However, mere production and exhibition of a document in court does not prove its contents or the truth of the transaction. The Supreme Court has emphatically in the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal [(2003) 8 SCC 745] held that "mere production and marking of a document as exhibit by the Court cannot be held to be due proof of its contents. In the present case, no witness was called who had personal knowledge of the 1969 sale by Honnegowda or the subsequent sales. Honnegowda himself is not shown to be alive or to have ever asserted any rights. None of the intermediate buyers or sellers testified to confirm the transactions or to explain how title could have passed from Narasamma. The 48 defendants thus led no direct evidence to vouch for the genuineness of the alleged 1969 sale. Even the payment of consideration and the circumstances of that sale remain unproved, as the principal actors did not appear. In this scenario, the probative value of the registered sale deeds is greatly diminished. The Supreme Court in the case of State of Bihar v. Radha Krishna Singh [(1983) 3 SCC 118] has observed that "admissibility of a document is one thing and its probative value quite another... A document may be admissible and yet may not carry any conviction or weight". Here, while the sale deeds were formally admitted as exhibits, they carry no credible weight because the defendants failed to prove that those transactions were valid and that Honnegowda (or any transferor) actually had title to convey. Accordingly, the defendants have not proved any legitimate title in themselves. Their claim rests on a paper title with a fatal legal flaw - the absence of a lawful origin.
36. A significant aspect of this case is the conduct of Defendant No.5, who is the ultimate purchaser in the 49 defendants' chain and the person currently claiming rights over the property. Despite being the principal contesting defendant, Defendant No.5 did not step into the witness box to testify or face cross-examination. He chose not to give any firsthand account supporting the defendants' version of events. No explanation was offered for his absence. Instead, the defendants' side relied on the testimony of some formal witnesses and the documents on record. In civil cases, especially when crucial facts are within the personal knowledge of a party, the party is expected to testify to those facts. The deliberate abstention of Defendant No.5 from the witness stand gives rise to a strong adverse inference. The Supreme Court in the case of Vidhyadhar v. Manikrao [(1999) 3 SCC 573] has held that "where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct". By remaining silent and evading cross-examination, Defendant No.5 has deprived the Court of any opportunity to gauge the truth of the defense 50 claims (such as how he purportedly acquired the land, what due diligence he did, or how the possession changed in 2008). The only logical inference is that his testimony would not have withstood scrutiny, and hence he stayed away. This Court therefore presumes that the defendants' version is lacking in credibility.
37. It is also noteworthy that no power-of-attorney holder or agent with equivalent knowledge stepped in to fill the vaccum left by Defendant No.5. Even if an agent had attempted to testify in his place, it would be insufficient for crucial matters where the party himself must prove. The Supreme Court in the case of Janki Vashdeo Bhojwani v. Indusind Bank Ltd. [(2005) 2 SCC 217] has made it clear that a party cannot outsource the act of entering the witness box: "No one can delegate the power to appear in the witness box on behalf of himself... A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff (principal) in the capacity of that plaintiff". Although that observation was made in the context of a plaintiff, the 51 principle equally applies to a defendant who must answer allegations personal to him. Defendant No.5's personal knowledge - for instance, regarding the circumstances of his purchase and the status of possession - could not have been adequately covered by any other witness. His failure to testify thus leaves the defendants' case without the most vital oral evidence. Accordingly, this Court draws an adverse inference that Defendant No.5 had no tenable defense to offer under oath, which further undermines the respondents' claim. In light of this adverse presumption, the defendants' unproven paper title cannot prevail over the plaintiffs' proven title.
38. The plaintiffs' case is strongly supported by long- standing public records in the revenue department. The record shows that after the grant in the year 1945-46, Narasamma's name was duly entered in the revenue records (mutation register and record-of-rights) as the holder of the suit land. Those entries remained in Narasamma's name during her lifetime. After her demise, the plaintiffs (being her successors) continued to be 52 reflected in revenue documents - either by name or by its equivalent indicators of possession - up to the year 2008. These include annual pahani (cultivation) records and property tax receipts that the plaintiffs produced in evidence. Such official entries made by public officers in the course of their duties are relevant and admissible evidence under Section 35 of the Indian Evidence Act. They carry a certain presumptive weight. In fact, many of these documents are decades old (well over 30 years from their creation) and were produced from proper custody (the government archives or certified copies from official records). As a result, they attract the statutory presumption under Section 90 and Section 114(e) of the Evidence Act that the entries are genuine and that official acts have been regularly performed. The Supreme Court has recently in the case of Iqbal Basith vs N. Subbalakshmi, [2020 SCC Online SC 1020], has reiterated that when documents are more than 30 years old and from proper custody, the courts should presume their genuineness and regularity in the absence of contrary evidence. Here, no evidence was led by the 53 defendants to challenge or rebut the veracity of these revenue entries. There is no suggestion that the mutation in Narasamma's name (MR No.4/1945-46) was fraudulently procured or that subsequent revenue records were manipulated. Therefore, the continuous chain of mutation and record-of-rights entries favoring Narasamma and the plaintiffs must be given due probative value. These records corroborate that the plaintiffs and their predecessor were recognized by the State as the lawful owners in possession throughout.
39. It is well settled that revenue records do not by themselves create or extinguish title; they are maintained primarily for fiscal purposes. However, long-standing entries in revenue records have evidentiary value to show possession and de facto title. In this case, the revenue entries perfectly align with the plaintiffs' asserted title by inheritance, and they stand unchallenged for over half a century. In contrast, the defendants' claim finds no reflection in any revenue record for the entire period from 1969 to 2008. If indeed Honnegowda or his successors 54 had acquired the land in 1969 and taken possession, one would expect to see some mutation entry or change in the record-of-rights in their favor during the ensuing years. The complete absence of the defendants' names in the official records is telling. It indicates that the alleged sale in 1969 was never acted upon in the eyes of the revenue authorities - likely because Narasamma's family remained in possession and no one from the Honnegowda side ever approached the authorities. The unchallenged continuity of the plaintiffs' name in the records tilts the balance of probability heavily towards the plaintiffs' title. Furthermore, the presumption of regularity under Section 114 of the Evidence Act applies: since the revenue officials continued to record the plaintiffs (or their predecessor) as owners, the presumption is that those official entries were correctly made in the regular course of duty. The defendants, having failed to rebut this presumption, and thereby cannot simply brush aside the import of these documents. In essence, the mutation and revenue entries serve as a long, paper trail of ownership that legitimizes the plaintiffs' claim and negates the defendants'. The 55 Supreme Court in the case of State of Bihar v. Radha Krishna Singh [(1983) 3 SCC 118] underscored that the probative value of documents must be assessed separately from mere admissibility. Here, the probative force of the plaintiffs' revenue documents is strong - they have been proven as genuine and stand in harmony with the oral evidence of possession. Therefore, the Court finds that the official revenue records decisively support the plaintiffs' case.
40. The respondents / defendants argued that the suit is barred by limitation because the defendants' root transaction dates back to 1969. This argument is misplaced. The plaintiffs have sued for declaration of title and recovery of possession. Under Article 65 of the Limitation Act, 1963, a suit by a person claiming title to immovable property is within time if filed within 12 years from the point when the defendant's possession becomes adverse to the plaintiff. In the present case, the plaintiffs assert that they were in continuous possession until they were unlawfully dispossessed in the year 2008. They filed 56 the suit the same year (2008). Thus, on the plaintiffs' version - which this Court has found to be truthful - the cause of action arose in 2008, and the suit was filed immediately, well within the prescribed limitation period. Even if one were to consider the defendants' contention, the limitation would begin to run only when the defendants (or their predecessors) actually took adverse possession of the land. The mere existence of a sale deed in 1969 does not amount to possession or ouster of the true owner. The defendants have not proved that they or any prior purchaser entered into open, continuous, and hostile possession of the property from 1969 onwards. In fact, all evidence indicates the opposite - that the plaintiffs remained in possession until 2008. Therefore, the clock of limitation did not start ticking in the year 1969. The limitation has stated only from the year 2008 when the plaintiffs were dispossessed, and the suit was promptly brought within that same year. The suit is accordingly not barred by limitation.
57
41. In this regard, it is relevant to refer to the principles of remanding a matter. In order to remand a matter back to the trial Court for fresh consideration, it is just and necessary to analyse Order XLI, Rule 23 of the Code of Civil Procedure, 1908 (for short, 'CPC'), which read as under:
"Rule 23. Remand of case by Appellate Court.--:
Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand."58
42. Further, as per Order XLI, Rule 23A of CPC, the Appellate Court may remand a case, where it considers necessary to do so, in the interest of justice.
43. A conjoint reading of Order XLI, Rules 23, 23A and 24 of CPC brings forth the scope as also contours of the powers of remand that, when the available evidence is sufficient to dispose of the matter, the proper course for this Court is to follow the mandate of Order XLI, Rule 24 of CPC and to determine the appeal of the appellants, whether it requires remand or not. It is only in this circumstance, where the decree in challenge is reversed in appeal and a re-trial is necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice.
44. The Trial Court, while acknowledging several material facts in favour of the plaintiffs--such as the restoration of the property to Narasamma, mutation in 59 Bundaiah's name, the unchallenged genealogy, lack of defendant's testimony in the Trial Court and lack of proper title to the fifth defendant--nonetheless erroneously dismissed the suit. Its reasoning is inconsistent with its own findings, reflecting a misapplication of legal principles and non-appreciation of the evidentiary burden.
45. In view of the foregoing discussions we deem it just and appropriate that the judgment and decree passed by the trial Court requires to be set-aside and the matter requires to be remanded to the trial Court for de novo consideration. Accordingly, we proceed to pass the following:
ORDER RFA No.1528/2020 as well as RFA.Crob.No.23/2021 are disposed of with the following directions:
i) The judgment and decree dated 20.12.2019 rendered by the Court of the I Addl. Senior Civil Judge and CJM, Mysuru in O.S.No.501/2008, is set aside.60
ii) The suit in O.S.No.501/2008 is thus remanded to the Court of the I Addl. Senior Civil Judge & CJM, Mysuru, for a de novo consideration, in accordance with law.
iii) Both the respective parties to the proceedings shall be afforded an opportunity of hearing, by permitting the parties to lead fresh evidence as well.
iv) All contentious contentions of both the parties are kept open.
v) Any observation made in this order shall not influence the mind of the Trial Court while disposing the suit initiated by the plaintiffs against the defendants.
vi) The suit having been initiated by the plaintiffs in the year 2008, it is hereby directed that the said suit in O.S.No.501/2008 shall be disposed of by the I Addl. Sr. Civil Judge, Mysuru, within a outer limit of six months from the date of receipt of a certified copy of this order.
vii) The appellants and respondents respectively in these appeals are directed to appear before the Trial Court in O.S.No.501/2008, on 05.06.2025 without waiting for notices / summons from the Trial Court and they are 61 directed to expedite the matter without seeking any adjournments.
viii) No order as to costs.
Before parting with this judgment, this Court places on record its deep appreciation for the able research and assistance rendered by its Research Assistants, namely Mr.Pranav.K.B , Ms. Sushmithaa Roshini R. SD/-
(K.SOMASHEKAR) JUDGE SD/-
(VENKATESH NAIK T) JUDGE KS