Karnataka High Court
Sri R.Srinivasaiah vs Sri Byre Gowda on 12 November, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1754/2005 (DEC)
BETWEEN:
SRI R.SRINIVASAIAH
SINCE DEAD BY HIS LRS
1(a) SMT. S.RADHA
W/O N.KARIYAPPA GOWDA
SINCE DEAD BY HER LRs.,
1(a-1) SRI N.KARIYAPPA GOWDA
S/O LATE NARAYANAPPA
HUSBAND OF LATE SMT.RADHA S
AGED ABOUT 62 YEARS
1(a-2) KUMARI K.SAHANA
D/O N.KARIYAPPA GOWDA
AGED ABOUT 26 YEARS
1(a-3) K.M.SAGAR S/O N.KARIYAPPA GOWDA
AGED ABOUT 23 YEARS
ALL ARE R/AT NO.1431
RADHA NILAYA, 12TH MAIN
24TH CROSS ROAD, 'B' BLOCK
SAHAKARANAGARA
BENGALURU-560 092.
(AMENDED VIDE COUR ORDER DATED 11.09.2014)
... APPELLANTS
[BY SRI K.G.SADASHIVAIAH, ADVOCATE]
2
AND:
SRI BYRE GOWDA
SINCE DEAD BY HIS LRS.
(AMENDED VIDE COURT ORDER DATED 14.02.2011)
1. SRI B.RAMAKRISHNA
S/O LATE BYRE GOWDA
AGED ABOUT 61 YEARS
R/O NO.410, 4TH 'B' CORSS
O.M.B.R. LAYOUT, BANASAWADI
BENGALURU-560 043.
2. SRI B.RAMACHANDRA
S/O LATE BYRE GOWDA
AGED ABOUT 58 YEARS
R/O BYRE GOWDA FARM
2ND CROSS, THINDLU MAIN ROAD
VIRUPAKSHAPURA
BENGALURU-560 097.
3. SMT.B.SOWBHAGYA
D/O LATE BYRE GOWDA
W/O SRI H.JAYARAMAIAH
AGED ABOUT 56 YEARS
R/O NO.1-C, MATHRUSHREE NILAYA
CHIKKABOMMASANDRA
BENGALURU-560 065.
4. SMT. B.SHANTHA
D/O LATE BYRE GOWDA
W/O SRI GOPAL RAJU
AGED ABOUT 54 YEARS
R/O NO.133, BASAVESHWARA LAYOUT
4TH CROSS, RAJAMAHAL VILAS
BENGALURU-560 094
5. SMT. B.SUJATHA
D/O LATE BYRE GOWDA
W/O SRI SHANTHA RAM
AGED ABOUT 51 YEARS
R/O NO.11, SITE NO.4/1
3
11TH MAIN, MALLESHWARAM
BENGALURU-560 003.
6. SRI B.RANGE GOWDA
S/O LATE BYRE GOWDA
AGED ABOUT 49 YEARS
R/O NO.1810, 23RD CROSS
5TH MAIN ROAD, 'C' BLOCK
SAHAKARA NAGAR
BENGALURU-560 092.
7. MR.B.SRINIVASA GOWDA
SINCE DEAD BY HIS LRs.,
7(a) SMT. VARALAKSHMI
W/O LATE B. SRINIVASA GOWDA
AGED ABOUT 44 YEARS
7(b) KUMARI BRUNDA
D/O LATE B.SRINIVASA GOWDA
AGED ABOUT 24 YEARS
7(c) PRAJWAL
S/O LATE B.SRINIVASA GOWDA
AGED ABOUT 21 YEARS
RESPONDENTS 7(a) TO 7(c)
ALL ARE R/AT NO.5, THIPPURU
RAMAIAH LAYOUT, KODIGEHALLI
OPPOSITE TO TATA NAGAR,
BENGALURU-560 092. ... RESPONDENTS
[BY SRI MANJUNATH, ADVOCATE FOR R1(a, c, d & e);
SRI G.B.SHASTRY, ADVOCATE FOR R1(b, f & g);
SMT.SHOBHA PATIL, ADVOCATE FOR R7(a - c)]
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 17.10.2005 PASSED IN
O.S.NO.2678/1996 ON THE FILE OF THE V ADDITIONAL CITY CIVIL
JUDGE, BENGALURU AND ETC.
4
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.09.2021, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree passed in O.S.No.2678/1996 dated 17.10.2005 decreeing the suit for the relief of declaration and injunction on the file of the V Additional City Civil Judge, Bangalore.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that one Byregowda had three sons namely, Venkategowda, Ramegowda and Rangegowda. The plaintiff is the son of the second son of Byregowda that is Ramegowda and the defendant is the son of the third son of Byregowda that is Rangegowda. The joint family owned 2 acres 3 guntas of land in Sy.No.164/5 in Kodigehalli village, Yelahanka Hobli, Bangalore North Taluk. The total extend of land in Sy.No.164 was 11 acres 4 guntas including karab land of 11 guntas. In all, six persons owned the entire extent in Sy.No.164 and in the revenue records, extent of the 5 land owned by each owner was being identified with respect to their physical possession.
4. The propositus Byregowda's property was identified at Sl.No.5 in the revenue record and therefore, an extent of 2 acres 3 guntas of land was identified as land in Sy.No.165/5 although Sy.No.164 was not sub-divided in such a manner. This land was also being called as Thundu Hunasemarada Saarige Jameenu. In the year 1919, the three brothers divided an extent of 2 acres 3 guntas of land amongst themselves. In the partition, northern portion of the land was allotted to the share of the first son of Venkategowda, middle portion was allotted to the share of the plaintiff's father Ramegowda and the southern portion was allotted to the defendant's father Rangegowda.
5. It is the case of the plaintiff that in the year 1922, the father of the plaintiff was passed away and at that time, he was a minor and other two brothers of his father continued to enjoy the share allotted to the plaintiff's father. After the plaintiff attained majority, he requested his uncles to deliver him 1/3rd portion of his land in Sy.No.164/5 and at that time, his uncles instead of delivering the middle portion of the land to 6 him, he was put in possession of 15 guntas of land towards southern side that is a portion of the property allotted to the plaintiff's father Ramegowda in Sy.No.164/5. Thus, from that day onwards, the plaintiff was in possession of 15 guntas of land in Sy.No.164 to the exclusion of others.
6. It is also the case of the plaintiff that after the partition, Venkategowda purchased 2 acres 19 guntas of land in Sy.No.164 in his name and as well as in the name of his wife Akkayyamma and in that land, he sold an extent of 7 guntas in favour of one Chikka Huchappa in the year 1934. Thereafter, the Ventakegowda died in the year 1950. After the death of Venkategowda, his wife Akkayyamma continued in possession of the remaining lands purchased by her husband and in the year 1950, the plaintiff had purchased the remaining lands measuring about 2 acres 12 guntas and he was put in possession of the same by his vendor. In the year 1953, the plaintiff had purchased an extent of about 26 guntas in Sy.No.164/6 from one Laxminarayanappa, Seenappa and Ramaiah and he was put in possession of the same by his vendors. Thus, the plaintiff is in possession of 15 guntas of ancestral property, 2 acres 12 7 guntas purchased from Akkayyamma, 26 guntas purchased from Laxminarayanappa, Seenappa and Ramaiah. Accordingly, the plaintiff was paying the land revenue and enjoying of the said lands.
7. It is also contended that in the receipt book (patta) the land measuring 15 guntas allotted to the share of the plaintiff in the partition is shown as Sy.No.164/3. In fact, it comes in Sy.No.164/8. But the plaintiff was not aware of the said mistake committed by the revenue authorities while sub- dividing the land in Sy.No.164. When the land bearing Sy.No.164/3 was again sub-divided as Sy.No.164/3A and 164/3B, the plaintiff got confused and he made enquiries in the office of the Tahsildar and obtained a copy of the statement given by the Venkategowda. As per the statement of Venkategowda, he sold a portion of the land in Sy.No.164/2 and 164/3 and not in Sy.No.164/8. That means to say that the land bearing Sy.No.164/8 was not sold in favour of Chikka Huchappa and by mistake it is mentioned as Sy.No.164/8 in the sale deed. Moreover, it is clear that Venkategowda had sold a portion of the land in Sy.No.164/2 and 164/3 which was purchased by him 8 subsequent to 1919, further it is clear that the land purchased by the plaintiff from his donee Akkayyamma and got released from Akkayyamma is the remaining portion of Sy.No.164/2, 164/3, 164/4 and 164/5. Accordingly, in the record of rights, the name of the plaintiff is entered as owner for the lands in Sy.Nos.164/2 - 1 acre 12 guntas, 164/3 - 15 guntas, 164/4 - 14 guntas and 164/5 - 33 guntas.
8. In the year 1993, the plaintiff made an application to the surveyor and requested for measurement of his own lands comprising of the said survey numbers and to fix the boundary. Accordingly, when the Surveyor measured the lands, after due notice to the adjoining owners including the defendant herein, the plaintiff learnt that 15 guntas allotted to him in the family partition comes in Sy.No.164/8 and not in Sy.No.164/3. Immediately, thereafter, the plaintiff made an application to the Tahsildar and requested him to rectify the revenue records and to furnish the record of rights as per the actual possession of the respective parties. Pursuant to the said application, the Tahsildar directed the Taluk Surveyor to measure the lands and prepare a sketch. Accordingly, the Taluk Surveyor had measured the land and prepared a sketch. As per the said sketch, the plaintiff is in 9 actual possession of 13 guntas of land in Sy.No.164/8 ancestral property and the defendant is in possession of 25 guntas (including karab) in the said survey number. But the Tahsildar instead of rectifying the mistake in entering the Sy.No.164/8, dismissed his application on the basis of the conversion order passed by the Deputy Commissioner. Hence, the plaintiff has sought for the relief of declaration of title in respect of 15 guntas of land in Sy.No.164/8. The plaintiff also by amending the plaint has given some details about the sale of 2 acres 3 guntas of land by his uncles in favour of Ramanuja Iyengar, from him to one Venkataswamy and in turn, to the defendants' father. It is contended that all the sale transactions were only nominal and inspite of those sale transactions, the plaintiff held the possession of 15 guntas of land. It is further contended that the defendant has no manner of right and interest in the suit schedule property and the conversion order is obtained behind his back and taking advantage of the said order, the defendant started disputing his possession.
9. On 06.04.1996, the defendant started interfering with his peaceful possession and enjoyment of the suit schedule property and that he lodged the complaint and prevented the 10 defendant from encroaching upon his portion of the land. It is also alleged that on 08.04.1996, the defendant once again came and started removing the stone pillars and fencing. Thus, the defendant intervened in his possession continuously and therefore, he also sought for the relief of permanent injunction.
10. In pursuant to the suit summons, the defendant got filed his written statement. The sum and substance of the written statement is that the plaintiff had filed the suit with a malafide intention of knocking off his property in Sy.No.164/8. That the plaintiff slept over the matter over 30 years since 1957 and thus the suit is barred by time and revenue records were mutated in his name. After the death of his father in the year 1961, he has been in continuous possession of the suit schedule property without any hindrance from anybody. It is also contended that the suit is hit by the principles of adverse possession. The partition deed dated 28.07.1919 doesn't speak about the property being comprised in Sy.No.164/8 and that the survey sketch prepared by the Surveyor is not proper. He has also challenged the sketch prepared by the Taluk Surveyor and hence, the question of interference would not arise. The plaintiff is not at all in possession of the suit schedule property and that 11 the present suit is filed by the counter blast to O.S.No.1105/1996 filed by him for partition in respect of the lands in Sy.Nos.6/3 and 44/1. It is also contended that the suit is undervalued and not paid the proper Court fee.
11. After the amendment of the plaint, the defendant also filed the additional written statement wherein it is contended that after the death of the plaintiff's father, his mother took over the management of the lands allotted to the plaintiff's father and after the plaintiff attained majority, he took over the family affairs including the properties allotted to his father's share. Reference is also made to some loans raised by Venkategowda, his inability to discharge all those loans and about the insolvency petition was filed by Venkategowda. It is contended that the sale transactions made in favour of Ramanuja Iyengar and Venkataswamy were lawful and the property allotted to the plaintiff's father had never been included in those transactions. The plaintiff has not produced any evidence as to the point of time when the land in Sy.No.164/5 had been changed to Sy.No.164/8. Thus, the defendant's claim 12 that the suit schedule property actually belongs to him and sought for dismissal of the suit.
12. Based on the pleadings of the parties, the Trial Court framed the following issues:
1. Does the plaintiff prove that he is the owner of plaint schedule property?
2. Does he further prove that he was in actual possession of suit schedule property as on the date of suit and defendant interfered with as alleged?
3. Does defendant prove that suit is under valued and court fee paid is insufficient?
4. Is plaintiff entitled to the relief of declaration and injunction as prayed for?
5. What order or decree?
13. The plaintiff in order to substantiate his case, examined his son being the Power of Attorney holder as PW1 and got marked 22 documents as Exs.P1 to P22. The defendant also examined his son-in-law as DW1 and got marked 43 documents at Exs.D1 to D43. The Trial Court after considering both the oral and documentary evidence, answered Issues No.1, 2 and 4 as affirmative and Issue No.3 as negative in coming to the conclusion that the plaintiff has made out the case that he is 13 the owner of the suit schedule property and he is in actual possession of the suit schedule property as on the date of the suit and the defendant interfered with his possession. The contention of the defendant that the suit is undervalued and the Court fee paid is insufficient has answered as negative and consequently passed the judgment and decree in favour of the plaintiff declaring that the plaintiff is the owner of the suit schedule property and he is entitled for an order of injunction.
14. Being aggrieved by the judgment and decree, the defendant has filed the present appeal. The main contention of the defendant in this appeal is that, the Trial Judge has committed an error in failing to see that one propositus Byregowda having three sons and the property was partitioned by propositus to the extent of 2 acres 3 guntas. But committed an error that there was a partition dated 28.07.2019 and contended that property in Sy.No.164/5 was allotted to the share of the plaintiff's father Ramegowda. But southern portion of the land was not allotted to the share of the plaintiff's father and the said property is not the subject matter of the suit. The suit schedule property is no way connected to the same. It is 14 the specific case of the plaintiff that in subsequent development out of the southern portion of the property allotted to the share of the defendant's father, Rangegowda, the portion of the same measuring 15 guntas in Sy.No.164/5 was given to the plaintiff orally by the defendant's father and Venkategowda which is claim by the plaintiff as if the suit schedule property which is portion of the Sy.No.164/5 and according to the plaintiff, the said Sy.No.164/5 is no way connected to the suit schedule property bearing Sy.No.164/8 and both the Sy.No.164/5 and 164/8, which are existing as on today and the same are completely different properties from one another and situated in different places and the plaintiff has not produced any documents to show that the suit schedule property itself was part of the land bearing Sy.No.164/5, in respect of which the learned Trial Judge has granted the decree on the basis of oral evidence of the plaintiff. The Trial Judge has completely erred in failing to see that Sy.No.164/5 admittedly it was belonging to Byregowda, the propositus of the appellant and the respondent's family is existing as on today and admittedly the said land in Sy.No.164/5 is in possession of the plaintiff and he is enjoying the same separately, which is far away from the land in 15 Sy.No.164/8. The Trial Court has committed an error in coming to the conclusion that the Sy.No.164/5 itself is Sy.No.164/8. The counsel also vehemently contend that the Trial Court mainly relying upon the documents at Ex.P15 and the said document is prepared by the Surveyor without notice to the defendant and asserted that the plaintiff is in possession to the extent of 13 guntas in Sy.No.164/8 and the very approach of the Trial Court is erroneous. The Tahsildar rejected the claim made by the plaintiff and directed him to seek for phodi and re-survey of the land and in respect of that, he had prayed before the civil Court. No revenue records or tax paid receipts are produced by the plaintiff to show the possession of the land and even though he was not in possession of the property, the Trial Court has committed an error in decreeing the suit for the relief by granting permanent injunction. All the revenue records as per Exs.D3 to D14 standing in the name of the Rangegowda and after the death of Rangegowda in the year 1961-62, the defendant's name was continued and hence, the same are having presumptive value under Section 133 of the Karnataka Land Revenue Act.
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15. The Trial Court also failed to consider the conversion order passed by the Deputy Commissioner on 05.10.1987 in terms of Ex.D28 which is not in question even to this date. Exs.D29 and 30 dated 20.01.1987 are survey sketch prepared by the survey department and the plaintiff has not placed any material before the Court that existing Sy.No.164/5 is Sy.No.164/8. The plaintiff's claim is only on the basis of the sketch prepared in the absence of the defendant as per Ex.P15 and the Trial Court failed to consider the fact that one K.A.Suresh who is not a family member is in illegal occupation to the extent of 7 guntas in Sy.No.164/2B and 7 guntas in Sy.No.164/3B. The Trial Court fails to consider the fact that the sketch produced by the plaintiff was prepared at the instance of the plaintiff and the Trial Court failed to consider the fact that the very report of the Surveyor clearly states that an extent of 13 guntas is known to be the possession of the plaintiff and in this regard, no records are placed by the plaintiff except the survey sketch. The Trial Court has not appreciated the evidence of PW1 particularly, the cross-examination and in the cross- examination, the plaintiff himself is not certain as to where exactly the suit schedule property is situated in an extent of 17 11.03 acres. Unless the proper identification of the property, the plaintiff cannot claim any relief against the defendant. The Trial Court failed to consider the presumptive value of the revenue records in conformity with the sale deed dated 13.08.1951 from Exs.D3 to D26. The plaintiff also even after attaining majority, not questioned the validity of the sale deed dated 18.09.1935 which is marked as Ex.P36. When such being the case, when the defendant derives the title having purchased the property to the extent of 38 guntas from Venkataswamy, the plaintiff cannot claim any right in respect of the property of the defendant and hence, it requires interference of this Court to set aside the judgment and decree of the Trial Court.
16. Learned counsel for the appellant in his argument also categorically contends that the plaintiff is claiming the decree in respect of Sy.No.164/8 and he has not placed any document with regard to renumbering the said property and Sy.Nos.164/5 and 164/8 are distinct properties. The plaintiff had approached the Tahsildar, wherein the request of the plaintiff was rejected by the Tahsildar. The defendant also denied in the written statement that the plaintiff is not having 18 any right in respect of Sy.No.164/8 but, the Trial Court has erroneously decreed the suit and failed to take note of the fact that no documents are produced with regard to Sy.No.164/8 which he has acquired in the family partition. The counsel also would vehemently contend that, in para-7 of the plaint, the plaintiff has contended that he has purchased 33 guntas in Sy.No.164/5. But, the defendant in the written statement categorically contended that he had purchased 38 guntas and all the documents are in his possession. The defendant also contend that the said land was converted and the said order has not been challenged and Exs.D28 and D29 are also not challenged.
17. The counsel also produced additional documents by filing an application in I.A.No.1/2013 enclosing the document of plaint, written statement and the judgment in O.S.No.2400/1997. P.W.1 is the only witness examined and the Trial Court mainly relied upon the admissions of D.W.1. The learned counsel for the appellant-defendant further contend that the Trial Court failed to take note of the fact that the property in Sy.No.164/8 was converted in the year 1987 and the same is 19 not in dispute. The property was also assessed to tax and no documents stands in the name of the plaintiff as on the date of the suit. In order to prove the possession, no document is produced and the Trial Court mainly relied upon Ex.P15. The Trial Court also committed an error in answering issue No.3 as negative inspite of the fact that land was converted and no proper Court fee is paid. The plaintiff has to prove right, title and possession and the findings of the Trial Court is contrary to the material on record and erroneously answered issue Nos.1 and 2 in favour of the plaintiff.
18. The counsel also vehemently contend that the Trial Court decreed the suit only on the basis of the partition decree, though the possession was not proved. Article 58 of Limitation Act provides that initial burden is on the plaintiff to prove his ownership, if the pleading is inconsistent and the same is in conformity with Order 7, Rule 4 of C.P.C. P.W.1 in the cross- examination admitted that he is claiming right in respect of the defendant's property and the said admission under Section 58 of the Indian Evidence Act takes away the case of the plaintiff and inspite of this admission, the Trial Court has committed an error 20 in decreeing the suit. The Trial Court ought to have invoked presumption under Section 133 of Land Revenue Act and failed to take note of the fact that the plaintiff not stepped into the witness box, though he examined the Power of Attorney holder.
19. Learned counsel for the appellant-defendant in support of his argument relied upon the judgment in K.GOPALA REDDY (DECEASED) BY LRS VS. SURYANARAYANA AND OTHERS reported in 2004 (1) KCCR 662 and brought to the notice of this Court para-13 and 14, wherein this Court has observed that the Trial Court without considering the pleadings of the parties and evidence let in by them, only considering the evidence of the defendant has decreed the suit in favour of the plaintiffs. The general principle of law is that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. The Court has to consider whether the plaintiffs were in lawful possession of the property on the date of the suit to restrain the defendant from interfering with the peaceful possession and enjoyment of the property and failed to consider this principle and erroneously decreed the suit. 21
20. The counsel also relied upon the judgment in T.K. MOHAMMED ABUBUCKER (DEAD) THROUGH LRS. AND OTHERS VS. P.S.M. AHAMED ABDUL KHADER AND OTHERS reported in (2009) 14 SCC 224 and brought to the notice of this Court para-29 and 31, wherein the Apex Court has observed that, in a case for suit for declaration of title and possession, burden lies on the plaintiff to plead particulars and pleadings are necessary to establish and the plaintiff has to make out his own case for declaration of title and possession and not on weakness in the title or possession of the defendant.
21. The counsel also relied upon the judgment in T.L. NAGENDRA BABU VS. MANOHAR RAO PAWAR reported in ILR 2005 KAR 884, wherein this Court held that under Section 85 of the Evident Act, presumption as to power of attorney holder is concerned, held that presumption operates in favour of the party relying on a document, provided he must prove that the document is duly executed and authenticated.
22. The counsel also relied upon the judgment in RAMCHANDRA SAKHARAM MAHAJAN VS. DAMODAR TRIMBAK TANKSALE (DEAD) AND OTHERS reported in 22 (2007) 6 SCC 737, wherein the Apex Court held that the plaintiff has to prove title to suit and establish the same and the documents that are relevant. It is also held that the City Survey records alone cannot be a basis to prove the title and ownership of the plaintiff.
23. The counsel also relied upon the judgment in SUBHODKUMAR AND OTHERS VS. BHAGWANT NAMDEORAO MEHETRE AND OTHERS reported in (2007) 10 SCC 571 and brought to the notice of this Court, acquisition of right to possession of portion of property and necessity of obtaining conveyance of specific demarcated share of the property is necessary. Insufficiency of declaration as to illegality of conflicting sale of the property cannot be considered.
24. The counsel also relied upon the judgment in KHATRI HOTELS PRIVATE LIMITED AND ANOTHER VS.
UNION OF INDIA AND ANOTHER reported in (2011) 9 SCC 126, wherein it is held that where the suit is filed for relief of declaration and permanent injunction for restraining interference with possession of immovable property, Article 58 of 1963 Act vis-à-vis Article 120 of 1908 Act applies.
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25. The counsel also relied upon the judgment in RANGANATH RAMCHANDRA SURYAVANSHI VS. MOHAN AND OTHERS reported in ILR 2008 KAR 4774, wherein it is observed that, non-consideration of the provisions of Section 83 of the Evidence Act held that, if any map or plan is made for the purpose of any case, the map or plan will have to be proved to be accurate. The onus of proving such map as accurate lies on the party, who wants to rely on the said map or plan.
26. The counsel also relied upon the judgment in N. SIDDA REDDY VS. T.V. RAMAKRISHNA REDDY reported in LAWS (KAR) 2013 2 214 and brought to the notice of this Court para-15, wherein this Court has observed that revenue record cannot form basis for the title to the property.
27. The counsel also relied upon the judgment in BALKRISHNA DATTATRAYA GALANDE VS. BALKRISHNA RAMBHAROSE GUPTA AND ANR. reported in AIR 2019 SC 933 and brought to the notice of this Court para-9, wherein discussed with regard to Section 38 of the Specific Relief Act, permanent injunction can be granted only to a person who is in actual possession of the property. The burden of proof lies on 24 the plaintiff to prove that he was in actual and physical possession of the property on the date of suit and presumption cannot be drawn merely relying upon prior suit for possession filed by the landlord is withdrawn.
28. The counsel also relied upon the judgment in ANATHULA SUDHAKAR VS. P. BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in (2008) 4 SCC 594, where the plaintiff's title is under a cloud and he does not have possession, the remedy is suit for declaration and possession with or without consequential injunction.
29. Per contra, learned counsel appearing for the respondent-plaintiff in her argument vehemently contend that it is not in dispute that the property bearing Survey No.164 belongs to the propositus of the family and the property is owned by the joint family. The counsel also would contend that there was a partition among the brothers in the year 1919 in terms of the partition deed which is marked as Ex.P2, wherein Survey No.164/5 is particularly mentioned as "Thundu Hunase Marada Jameenu". The counsel also would contend that earlier suit was filed for the relief of partition, based on the partition of 25 the year 1919 and once the document of partition is referred, the defendant cannot approbate and reprobate and the parties have acted upon in terms of the partition.
30. In the additional written statement, the defendant has admitted the fact that partition deed was acted upon and possession was given. Ex.P8 disclose that Survey No.164/3 is 15 guntas, but by mistake, the same is mentioned in Exs.P19 to P21 and there is no material on record to evidence the fact that the property in Survey No.164/3 belongs to the plaintiff. The document at Ex.P15 is prepared at the instance of the plaintiff when he gave the representation noticing mentioning of the property as Survey No.164/3. But, the document was prepared at the instance of the Tahsildar, who gave the direction to the Surveyor and not at the instance of the plaintiff as contended by the learned counsel for the defendant.
31. Learned counsel for the respondent would further contend that Ex.P2 is the document of partition deed which is the source of title in favour of the plaintiff. The plaintiff's father died in the year 1922 and at that time, the plaintiff was minor and other two brothers and plaintiff's father have created 26 nominal sale deed in terms of Ex.P4 in favour of Ramanuja Iyengar in the year 1927. In turn, the said Ramanuja Iyengar sold the entire extent of 2 acres, 3 guntas in terms of Ex.P6 in the year 1935 in favour of Venkataswamappa. The defendant's father had purchased the very same property in the year 1951 from Venkataswamappa to the extent of 38 guntas and the recitals of the sale deed is clear that, family property which was sold earlier by the brothers of plaintiff's father was sold in favour of Venkataswamappa and in turn, from Venkataswamappa, the said property was purchased.
32. The counsel brought to the notice of this Court that while selling the property in favour of defendant's father, survey number is mentioned as 164/8 and not 164/5. Hence, the defendant cannot contend that both the properties are distinct properties i.e., Survey Nos.164/5 and 164/8. The document at Ex.P7-re-conveyance deed is very clear that possession has not been delivered and possession was with the plaintiff and the documents at Ex.P4 and P6 are only the nominal documents. The counsel would submit that the defendant has filed the suit claiming share in respect of Survey No.164/3 stating that the 27 said property is also the family property and the said suit was dismissed, which is also produced before the Court as additional document by the appellant-defendant himself.
33. The counsel also would submit that in the written statement, in para-3, the defendant has pleaded adverse possession but, in the cross-examination, he categorically admits that he cannot claim adverse possession. Apart from the same, in the cross-examination, he categorically admits that the plaintiff is in possession of the property to the extent of 15 guntas. He also categorically admitted that he has not perfected the title by adverse possession. Hence, the very claim of adverse possession also cannot be considered. The counsel mainly relied upon the document, Ex.P3-Survey Sketch which is in respect of Survey No.164/5 and the family does not own any property other than Survey No.164/5 and there was no any phodi work but, it is only identified as Sl.No.5 in respect of total extent of the entire Survey No.164 and Sl.No.5 belongs to the original propositus. The counsel also would submit that the family was not having any property in Survey No.164/3 and the defendant also not disputed that southern portion of the 28 property was given to the share of the plaintiff, though earlier it was agreed to give middle portion of the property. Ex.P7 clearly shows the boundary that plaintiff's property is in existence.
34. Regarding the other contention of the learned counsel for the appellant-defendant as to Court fee is concerned, it is seen that the document at Ex.D28 is in respect of conversion and the property of the plaintiff is not converted and the conversion is also not at the instance of the plaintiff and the same is an agricultural property. When such being the case, the Trial Court has rightly come to the conclusion that the suit is properly valued. The learned counsel would contend that there are no grounds to reverse the findings of the Trial Court.
35. The learned counsel for the respondent in support of her argument relied upon the judgment in NAGINDAS RAMDAS VS. DALPATRAM ICHHARAM ALIAS BRIJRAM AND OTHERS reported in (1974) 1 SCC 242 and brought to the notice of this Court Section 58 of the Evidence Act, wherein the Apex Court observed, admissions in pleadings or judicial admissions in comparison with evidentiary admissions.
29
36. The counsel also relied upon the judgment in AVTAR SINGH AND OTHERS VS. GURDIAL SINGH AND OTHERS reported in (2006) 12 SCC 552 and brought to the notice of this Court para-8 and 9, wherein the Apex Court discussed with regard to admission, it is well known, forms the best evidence. It may be that admission does not create any title, but the nature of the land can form subject-matter of admission. Section 58 of the Evidence Act postulates that things admitted need not be proved.
37. The counsel also relied upon the judgment in TAMIL NADU ELECTRICITY BOARD AND ANOTHER VS. N. RAJU REDDIAR AND ANOTHER reported in (1996) 4 SCC 551. Referring this judgment, the counsel would contend that the Court has to take note of oral and documentary evidence and documentary evidence prevails over the oral evidence and made emphasis with regard to Section 91 of Evidence Act.
38. The counsel also relied upon the judgment in SHYAM NARAYAN PRASAD VS. KRISHNA PRASAD AND OTHERS reported in (2018) 7 SCC 646, wherein the Apex Court discussed with regard to admissibility in evidence, having 30 the effect of creating and taking away rights in respect of such property, registration is necessary and exchange can be made only by a registered instrument. The counsel also brought to the notice of this Court the principles laid down in the judgment with regard to pleadings, purpose of and grant of relief in absence of pleadings, relating to it, held that it is not permissible.
39. The counsel also relied upon the judgment in M. VENKATARAMANA HEBBAR (DEAD) BY LRS. VS. M. RAJAGOPAL HEBBAR AND OTHERS reported in (2007) 6 SCC 401 and brought to the notice of this Court para-12 and 13, wherein the Apex Court has observed that even there had been no denial of the assertions made by the appellant in their written statement in that behalf, the said averments would, therefore, be deemed to be admitted and the Court was entitled to draw an inference that same had been admitted. The fact admitted in terms of Section 58 of Evidence Act need not be proved.
40. The counsel also relied upon the unreported judgment of this Court passed in Regular First Appeal No.117 of 2001 dated 17.11.2008 filed by the defendant challenging the judgment and decree passed in O.S.No.6359/1990 for the 31 relief of partition and separate possession of the joint family properties, wherein it is observed that, in the partition deed Ex.P2, the suit schedule land in Sy.No.No.3/1 was not partitioned amongst the parties but, retained in their joint possession and enjoyment in the light of the purpose for which it was put to use and held that, it is trite that a party cannot acquire right, title or interest in an immovable property by mere change of khatha in the form of mutation entry under the Karnataka Land Revenue Act, 1964.
41. In reply to the argument of learned counsel for the respondent-plaintiff, the learned counsel appearing for the appellant-defendant would vehemently contend that the Trial Court has committed an error in not noticing para-7 of the plaint where the plaintiff himself has pleaded that he acquired the property to the extent of 35 guntas in Survey No.164/5 and not produced the sale deed and failed to take note of the admission given by P.W.1 and Exs.P9 to 12 came into existence at the request of the plaintiff. In respect of 7 guntas of land sold, no documents are placed before the Trial Court.
32
42. The learned counsel appearing for the appellant- defendant brought to the notice of this Court that an application in I.A.No.1/2013 is filed under Order 41, Rule 27 of C.P.C. seeking permission to produce additional documents i.e., copy of the plaint in O.S.No.2400/1997, written statement, issues and copy of the judgment and decree. In support of the application, an affidavit is sworn to that the respondents have claimed an extent of 15 guntas of land on the ground that his uncles have given southern side of 15 guntas in Survey No.164 and the same are re-numbered as Survey No.164/8. On the other hand, the respondent in the previous suit for partition in O.S.No.2400/1997 filed by his father against the respondent clearly stated that the southern survey number allotted by his uncles in Survey No.163/3 and re-numbered as Survey No.164/3A and 164/3B measuring 15 guntas. It is further submitted that his father is claiming half share in Survey No.164/3 measuring 15 guntas was dismissed on the ground that his father failed to produce any document to show that the suit property is a joint family property. The said facts were not within his knowledge as his father was looking after all the cases. It is his contention that suit schedule property is 33 purchased by his father independently in the year 1951 and pleadings made in the said suit are necessary for deciding the issue involved between the parties and hence, he may be permitted to produce those documents.
43. The said application is also opposed orally by the respondent-plaintiff contending that the very documents produced by the appellant-defendant is in respect of Survey No.164/3 which was dismissed and the defendant himself has admitted that the Court has already given a finding that the Survey No.164/3 does not belong to the joint family. When such being the case, he cannot contend that the said property is a distinct property.
44. Having heard the learned counsel for the appellant- defendant and learned counsel appearing for the respondent- plaintiff and also considering the grounds urged in the appeal and oral submissions of the respective counsel, the points that would arise for consideration of this Court are:
(i) Whether the appellant-defendant has made out a ground to allow the application filed under Order 41, Rule 27 of C.P.C.?34
(ii) Whether the Trial Court has committed an error in decreeing the suit in answering issue Nos.1, 2 and 4 as affirmative in coming to the conclusion that the plaintiff is the owner of the suit schedule property to the extent of 15 guntas?
(iii) Whether the Trial Court has committed an error in answering issue No.3 in coming to the conclusion that the suit is properly valued?
(iv) What order?
Point No.(i):
45. The learned counsel for the appellant has filed an application under Order 41 Rule 27 read with Section 151 of CPC. Along with the application, the certified copy of the plaint, written statement, issues and judgments are produced and in support of the application, an affidavit is sworn to contending that the plaintiff has sought the relief of declaration in respect of 15 guntas in Sy.No.164 and that the same is re-numbered as Sy.No.164/8. It is further sworn to that the plaintiff in the suit filed by the father of the appellant herein in O.S.No.2400/1997 stated that several survey numbers allotted by his uncles is 35 Sy.No.164/3 and re-numbered as Sy.Nos.164/3A and 164/3B measuring 15 guntas and his father had no knowledge about whether Sy.No.164/3A is the joint family property or not and when such pleading is made, these documents are necessary to decide the issue involved between the parties.
46. The learned counsel also brought to the notice of this Court paragraph Nos.4 and 5 in the plaint what his father pleaded and also brought to the notice of this Court the contents of the written statement made by the plaintiff in the suit, particularly in paragraph No.11 wherein he has stated that middle portion of Sy.No.164 was allotted to the share of the defendant's father in the family partition and the defendant was put in possession of southern portion of the land and since from that date, he has been in actual possession of the land in question. Hence, these documents are necessary in order to decide the issues involved between the parties.
47. The learned counsel for the respondent brought to the notice of this Court that from the very same document, it is clear that the appellant herein made an attempt to claim share in respect of Sy.No.164/3 to the extent of 15 guntas. It is the 36 specific case of the respondent that the revenue officials have committed a mistake in mentioning the number as Sy.No.164/3 and family was not having any property in Sy.No.164/3 and these documents will not help the Court in deciding the issues involved between the parties and those documents are not necessary.
48. Having heard the learned counsel for the appellant and the learned counsel for the respondent and considering the contentions of the plaintiff in the suit, his claim is that the propositus of the family was having 2 acres 3 guntas of land. Out of that, partition was taken place in the year 1919 and in the said partition, his father got 15 guntas of land and he is claiming title based on the partition deed of the year 1919. Though the defendant contended that the said partition deed was not acted upon, it is clear in the pleadings that there was a partition and seriously not disputed in this appeal also. Admittedly, the said document is also a registered document and no doubt in the said partition deed, the description of the property is not mentioned, but it is mentioned as "Thundu Hunasemarada Saarige Jameenu".
37
49. The main contention of the appellant herein is that Sy.No.164/5 and Sy.No.164/8 are distinct properties and the plaintiff cannot claim right in respect of the property in Sy.No.164/8 and his father had purchased in the year 1951. When such a plea is taken by the defendant and also taking note of the claim of the plaintiff, the Court has to decide whether the plaintiff has made out a case that he has been allotted 15 guntas of land out of the joint family properties. Hence, the suit filed for the relief of partition in respect of Sy.No.164/3 and written statement issues involved in the said case and judgment are not necessary to decide the case. The question is with regard to whether the plaintiff's father is allotted share out of the joint family property and not in respect of Sy.No.164/3. When such being the case, in order to decide the germane issue involved between the parties, these documents will not help in the case and also not necessary. The appellant has also not made out any ground to produce the additional documents in this proceedings and he has not pleaded that he has made all his efforts to place the same before the Trial Court, but he could not and in order to invoke Order 41 Rule 27 of CPC, the appellant has to make out a case that with his due diligence he made all 38 his efforts to place those documents before the Trial Court. But such averments are not found in the affidavit and also not stated why these documents are necessary to decide the issues involved between the parties. Hence, I do not find any merit in the application to invoke Order 41 Rule 27 of CPC. Hence, I answer point No.(i) as negative.
Point No.(ii):
50. Having considered the submissions of the respective learned counsel and also both oral and documentary evidence placed on record, it is the clear case of the plaintiff that the suit schedule property was originally Sy.No.164 and no phodi work was done and hence it is identified as serial No.5 in Sy.No.164. It is also the case of the plaintiff that total extent of Sy.No.164 is 11 acres 4 guntas. The defendant also does not dispute the said fact. But his only contention is that when the property is not identifiable, the Trial Court ought not to have granted the relief of declaration and possession.
51. Having considered the pleadings available on record, there is no dispute with regard to the relationship between the parties and also no dispute that 2 acres 3 guntas of land in 39 Sy.No.164 of Kodigehalli village, Yelahanka Hobli, Bengaluru North Taluk earlier belonged to the propositus Byregowda. There is no dispute with regard to the partition that took place between the sons of the propositus Byregowda in the year 1919. Having considered Ex.P.2 partition deed, the documentary evidence speaks better than the oral evidence given by P.W.1 and D.W.1. Though an attempt was made by the learned counsel for the appellant before this Court that no such partition was taken place, but material discloses that the parties have acted upon in terms of the partition deed of the year 1919 and by that time, P.W.1 and D.W.1 were not having any knowledge.
52. Having considered the contentions of the respective parties, the crux of the matter is that whether the land in Sy.No.164 was sub-divided as Sy.No.164/8. I have already pointed out that there was no any phodi work and for the sake of convenience there was a sub-division and land of the propositus was being identified as Sy.No.164/5. Having considered the material, there was no actual sub-division, but the plaintiff mainly relies upon the document Ex.P.3 i.e., the certified copy of the tipani in relation to Sy.No.164/3 of Kodigehalli Village. The 40 total extent is shown as 11 acres 4 guntas including kharab of 11 guntas. The name of the propositus Byregowda is at serial No.5, but in the tipani, there is no mention about survey number been sub-divided.
53. Having perused Ex.P.2, sons of the propositus Byregowda divided all the properties. I have already pointed out that there is no dispute that Byregowda was having 2 acres 3 guntas of land in Sy.No.164 and brothers have divided Sy.No.164, but in the document Ex.P.2, it is mentioned as Sy.No.164/5, wherein it is mentioned as "Thundu Hunasemarada Saarige Jameenu." Hence, it is clear that the property is identified as "Thundu Hunasemarada Saarige Jameenu." In terms of the document Ex.P.2, middle portion of the land was allotted to the father of the plaintiff. It is the specific case of the plaintiff that when his father died in the year 1962, he was a minor and his uncles i.e., father of the defendant and one Venkategowda were cultivating and his mother took him to her parental house and after he came back, instead of middle portion, southern portion was given to him. But the defendant is also not disputing the fact that the plaintiff is in possession of 15 41 guntas of land, which was allotted to his father in terms of Ex.P.2. It is also admitted by the defendant that the total extent of 2 acres 3 guntas was sold by his father and senior uncle Venkategowda in favour of Ramanujachar in the year 1927 in terms of Ex.P.4, wherein it is also mentioned as Sy.No.164/5. In turn Ramanujachar sold the property in favour of Venkataswamappa to the entire extent in terms of Ex.P.6 wherein also it is mentioned as Sy.No.164/5. The sale deed was executed by Venkataswamappa in favour of the defendant's father in terms of Ex.P.7, wherein earlier sale transaction made in favour of Ramanujachar and Venkataswamappa is also referred in the said document and while selling the property to the extent of 38 guntas in favour of the defendant's father in the document, the number is mentioned as Sy.No.164/8. But the fact is that earlier sale deed numbers are mentioned as Sy.No.164/5, but subsequently it is mentioned as Sy.No.164/8 and the defendant has also not placed any documents for having renumbered the property Sy.No.164/5 as Sy.No.164/8.
54. No doubt, it is emerged in the evidence that the plaintiff's name is shown in respect of Sy.No.164/3, but his contention is that the revenue officials did the mistake in 42 mentioning Sy.No.164/3 and in order to substantiate Sy.No.164/3, the defendant has also not placed any material. The claim of the defendant is that both the properties are distinct properties, but the very document, which the defendant relies upon is Ex.P.7, wherein survey number is mentioned as Sy.No.164/8 but his vendor got the sale deed in his favour referring Sy.No.164/5 and earlier vendors of his father also survey number is 164/5. When such being the case, the very contention of the defendant that the plaintiff is not having any right in respect of Sy.No.164/8 cannot be accepted. Having traced the title is concerned, it is clear that propositus was having 2 acres 3 guntas in Sy.No.164 and based on this serial No.5, it is mentioned as Sy.No.164/5 and in earlier document it is mentioned as Sy.No.164/5 only and subsequently it is numbered as Sy.No.164/8 and the very contention of the defendant that the plaintiff cannot claim the title in respect of Sy.No.164/8 cannot be accepted.
55. The fact that the family was having 2 acres 3 guntas and out of that 15 guntas was given to the father of the plaintiff is not in dispute in terms of Ex.P.2. Hence, there is forcein the contention of the plaintiff that title is traced through the partition 43 deed of the year 1919 in terms of Ex.P.2. When the defendant himself relies upon Exs.P.4, 6 and 7 in respect of his title is concerned and admittedly on recital of those documents, it is clear that it was only a nominal transaction and an agreement was placed before the Court in terms of Ex.P.5 for reconveying the property on payment of Rs.6,000/- in favour of the vendors. The Trial Court also having considered these documents, particularly Exs.P.2, 4, 6 and 7 categorically held that there is no impediment for drawing an inference that for all practical purposes and convenience, the land held by the propositus Byregowda was being identified as Sy.No.164/5 only. If that is not so, there was no need for mentioning Sy.No.164/5 in the sale deeds executed by Venkategowda and Rangegowda in favour of Ramanuja Iyengar and from Ramanuja Iyengar in favour of Venkataswamy. By looking at Ex.P.7 also, an inference can be drawn that actual lands sold by Venkataswamy in favour of the defendant's father to an extent of 38 guntas is the very same land in Sy.No.164/5. Though in that sale deed, survey number shown is 164/8, the defendant in the written statement has not contended that Sy.No.164/5 is not the same land as 44 Sy.No.164/8. Hence, the first contention of the defendant that Sy.No.164/8 is not the family property cannot be accepted.
56. It is also emerged in the evidence that the father of the plaintiff died in the year 1922 and he was a minor and at that time, his uncles took over the management of the property and share allotted to his father. Only on attaining majority, his uncles put him in possession of 15 guntas of land towards southern side instead of middle portion, which was actually allotted to his father. This fact is also not disputed by the defendant. It is the specific case in the plaint that the revenue authorities have mistakenly mentioned in the revenue records as Sy.No.164/3 and immediately when he noticed the same, he gave the representation to the Tahsildar and the Tahsildar in turn directed the surveyor to survey the land. The surveyor also went to the spot and identified the land and gave the report in terms of Ex.P.15 preparing the sketch and identified the possession of the plaintiff to the extent of 15 guntas.
57. It is important to note that other senior uncle of the plaintiff and the defendant Venkategowda had purchased 2 acres 19 guntas in another piece of Sy.No.164 after the partition that 45 took place in the year 1919. Out of the said 2 aces 19 guntas, he had sold 7 guntas to one Chikkahuchhappa. It is important to note that Venkategowda gave statement in the office of the Tasildar in terms of Ex.P.14 that the land actually sold by him to Chikkahuchhappa was land in Sy.No.164/2 and some land in Sy.No.164/3 and not in Sy.No.164/8. Ex.P.13 also evidences the said fact that the plaintiff made out enquires in the office of the surveyor with regard to sub-division of Sy.No.164/3 and this document was the endorsement given to him by the Assistant Director of Land Records. It is the claim of the plaintiff that 15 guntas was actually part and parcel of Sy.No.164/8 and not Sy.No.164/3. It is unfortunate that the Tahsildar instead of rectifying the same, rejected the claim of the plaintiff even though the surveyor measured the land and prepared the sketch as per Ex.P.15 and Ex.P.15 clearly discloses that the plaintiff is in possession and cultivation to the extent of 13 guntas and 25 guntas by the defendant. The Tahsildar ought to have exercised the powers under Section 142 of the Karnataka Land Revenue Act, but instead of that he rejected the same. However, directed the plaintiff to take up the dispute in an appropriate forum. The Tahsildar could have himself decided the dispute and this fact is 46 also discussed by the Trial Court and when the Tahsildar rejected the claim, the plaintiff has approached the Civil Court. As a result, the present suit is filed before the Trial Court.
58. I have already pointed out that there is no material before the Court as to when Sy.No.164 was sub-divided. The document Exs.P.2, 8 and 20 and Ex.D.3, 4, 5, 6 to 13 also does not substantiate that there was a phodi work. But having considered these documents, the Court can only draw inference. It is also an admitted fact that the propositus of the family was having 2 acres 3 guntas in Sy.No.164. I have already pointed out looking into Exs.P.4, 6 and 7 that the said property belongs to the propositus of the family and the very same property was got by the defendant in terms of Ex.P.7, which was Sy.No.164/8 and he had not purchased any other property other than this property. Though in Ex.P.7, there is a clear reference that defendant's father purchased 38 guntas of land in Sy.No.164/8, but recital of the sale deed makes it clear that the land belongs to the original propositus and the same was sold in terms of Ex.P.4 and in turn by purchaser in terms of Ex.P.6. 47
59. D.W.1 also admits the same in the cross-
examination i.e., sale transaction of Exs.P.4, 6, but he claims that the said property is different. But in view of the recitals of Exs.P.4 and 6, the contention of the defendant cannot be accepted. The main contention of the learned counsel for the appellant is that the Trial Court relied upon Ex.P.15 and no doubt Ex.P.15 is prepared by the surveyor and the same is on the instructions of the Tahsildar when the plaintiff had approached the Tahsildar. The learned counsel would contend that Ex.P.15 came into existence at the instance of the plaintiff and the said contention also cannot be accepted. Ex.P.16 shows that the application is given to the Tahsildar and only in pursuance of the said application, the Tahsildar deputed the Taluk Surveyor, who prepared Ex.P.15. But the defendant before the Trial Court has contended that the said sketch is also challenged, but no material before the Trial Court regarding challenge and any order has been passed setting aside the sketch Ex.P.15. In the absence of any material, the Court also cannot discard the document Ex.P.15. Ex.P.15 shows that actual boundaries of the defendant is only in Sy.No.164/8. When the defendant holdings is in respect of Sy.No.164/8 and the said property belongs to the 48 propositus of the family and when the plaintiff got 15 guntas of land in the very same property through his father, the defendant cannot contend that both the properties are distinct properties. When the defendant disputes Ex.P.15, he ought to have placed the material to disbelieve the said sketch and the sketch is also prepared by the Taluka Surveyor, who is a technical person and the Tahsildar also did not pass any order rectifying the survey number of the plaintiff and no doubt there was a conversion in respect of 38 guntas of land in pursuance of the request made by the defendant.
60. The defendant also relies upon Exs.P.28 to 30. The main contention is that conversion order has not been challenged. I have already pointed out that in terms of Exs.P.4, 6 and 7 when the defendant claims right in respect of Sy.No.164/8 and when the plaintiff is also claiming his share to the extent of 15 guntas, which he has derived in terms of partition deed of the year 1919 in terms of Ex.P.2 and when the defendant has not disputed the said document seriously though contend that the same was not acted upon, but parties have acted upon. It is important to note that the defendant's father 49 also filed the suit seeking the relief of partition in respect of Sy.No.164/3 and the said suit was dismissed in coming to the conclusion that the joint family was not having any property in Sy.No.164/3. Hence, it is clear that the defendant's father made efforts to get share in respect of Sy.No.164/3 also. Once he contend that the same is the family property, now he cannot contend that the plaintiff's property is Sy.No.164/3 and not Sy.No.164/8. The Trial Court while considering the material available on record, taken note of both oral and documentary evidence placed on record and comes to the conclusion that the plaintiff has traced his title through Ex.P.2 and also no dispute that the propositus was having the property to the extent of 2 acres 13 guntas and out of that 15 guntas was allotted in favour of the plaintiff's father. When such being the case, the very contention of the defendant that both the properties are distinct cannot be accepted. His own document Ex.P.7 discloses survey number as 164/8 but earlier Exs.P.4 and 6 discloses Sy.No.164/5.
61. The other contention in the written statement is that he has perfected the title by adverse possession and hence it is clear that the defendant not only pleaded that the same is a 50 distinct property, but he has perfected the title by plea of adverse possession. But in the cross-examination, he categorically admitted that he has not perfected the title by adverse possession and the second defence of the defendant also cannot be accepted. I have already pointed out with regard to identification of the property is concerned whether it is Sy.No.164/5 or 164/8 and earlier transactions are only nominal transactions and the same is evident from the recital of the document and Exs.P.4 and 6 are clear that when they were unable to clear the loan amount, they have sold the said property in favour of Ramanujachar and Ramanujachar in turn sold in the year 1935 in favour of Venkataswamappa. The total land conveyed to the father of the defendant was only 38 guntas. The document Ex.P.7 recital is clear that sale transactions Exs.P.4 and 6 are only nominal sale transactions and not acted upon. The Trial Court taking note of the said recitals, held that the plaintiff's father was put in possession to the extent of 15 guntas and the plaintiff was continued in possession. The defendant in the written statement contended that the schedule property is in his possession and the plaintiff's mother was managing her husband's share and after the plaintiff 51 attaining the majority, he took over the same. Hence, it is clear that when the father was allotted share to the extent of 15 guntas and thereafter the mother was in possession and thereafter he attained majority, property was in his possession. The very contention that the plaintiff was not in possession cannot be accepted. The defendant also relies upon Ex.P.29 and taking note of Ex.P.15 prepared by Taluka Surveyor, no differences are found in both the sketches. These two sketches depict entire holding of land in Sy.No.164/8. I have already pointed out that instead of giving middle portion, the southern portion was given to the plaintiff and having taken note of Exs.P.22, 15 and 19, the Court can draw inference that the plaintiff is in possession of 15 guntas consequent upon the share allotted to him out of the joint family property of 2 acres 3 guntas.
62. Having considered both oral and documentary evidence placed on record, no doubt in the cross-examination of D.W.1, it is elicited that he categorically admitted that the plaintiff was in possession of Sy.No.164/3 thinking that it was the land allotted to him in partition. The contention of the defendant that Sy.No.164/3 pertains to the plaintiff cannot be 52 accepted. It is elicited that he does not know that later on survey was conducted to ascertain whether the plaintiff was in possession of Sy.No.164/3 or Sy.No.164/8. But he admits the suggestion that on misconception of the plaintiff that he was in possession of Sy.No.164/3, he is asserting the right over that land. Hence, it is clear that D.W.1 categorically admitted that the intention of the defendant becomes very clear that wrong impression of the plaintiff that survey number was actually 164/3, the defendant has taken the advantage and asserting in respect of land in Sy.No.164/8. Hence, it is clear that actual holding of 15 guntas of land by the defendant is in Sy.No.164/8 and not in respect of Sy.No.164/3 and the said property is also devolved upon him through his father. Hence, the plaintiff is the absolute owner of the suit schedule property.
63. The defendant also does not dispute the possession of the plaintiff in respect of 15 guntas of land, but the learned counsel for the appellant in his argument brought to the notice of this Court paragraph No.7 of the plaint, wherein he contended that he is in possession of Sy.No.164/5 to the extent of 33 guntas and the plaintiff to substantiate the contention also placed some documents before the Court for having purchased 53 the property. It is the claim of the plaintiff in the said paragraph that he had purchased the said property contending that gift deed dated 10.05.1940 executed by Akkayyamma in favour of Venkatappa and also registered sale deed dated 18.12.1950 executed by Chikkakkamma in favour of the plaintiff. But the fact is that 15 guntas of right claimed by the plaintiff is in respect of the joint family, which was to the extent of 2 acres 3 guntas through propositus Byregowda and thereafter his children have partitioned the property. When such being the facts and circumstances of the case, I do not find any error committed by the Trial Court in granting the relief of declaration in favour of the plaintiff since he has derived the property based on the partition deed, which is marked as Ex.P.2. The very contention of the learned counsel for the respondent that revenue documents stand in the name of the defendant and presumption can be drawn under Section 133 of the Land Revenue Act cannot be accepted. When the title is traced by the plaintiff based on the partition deed and in the said partition, the defendant's father is also a party to the proceedings, the defendant cannot blow hot and cold. His contention is that suit schedule property is not Sy.No.164/8 and it is a distinct property and in detail this 54 Court has discussed how Sy.No.164/8 came into existence. Hence, I do not find any merit in the appeal to reverse the findings of the Trial Court.
64. The Trial Court in depth considered both oral and documentary evidence placed on record and rightly comes to the conclusion that the plaintiff has made out a case to grant the relief of declaration as he traced his title through Ex.P.2 partition deed and subsequent to the partition deed how the properties are sold to different persons and the said transactions are nominal transactions and the same was re-purchased by the father of the defendant. It is important to note that even though there was a partition in the year 1919 in terms of Ex.P.2, but uncles of the plaintiff have sold the property in the year 1927 to the whole extent and the same transaction is also a nominal transaction in terms of recitals of the documents and it leads to confusion among the parties and senior uncle and junior uncle of the plaintiff's father was not having any absolute right even to convey any title to any other person excluding the plaintiff's father and the plaintiff. The very identification of the property is also answered by the Trial Court taking note of, particularly the 55 sketch Ex.P.15 and Ex.P.22 plaint sketch and also taken note of Ex.P.29, which has been relied upon by the defendant. Under the circumstances, there are no grounds to interfere with the findings of the Trial Court. Hence, I do not find any merit in the appeal to set aside the judgment and to allow the appeal. Hence, I answer point No.(ii) as negative.
Point No.(iii):
65. The other contention of the learned counsel for the appellant that the suit is filed for the relief of declaration and injunction and the property was already converted and ought to have paid the Court fee since the valuation made by the plaintiff is not correct. The Trial Court while considering this issue also taken note of the fact that the suit schedule property is the agricultural property. The defendant mainly relied upon Exs.P.27 and 28 and Ex.P.27 is the order passed by the Special Deputy Commissioner. In this document, the land to the extent of 38 guntas in Sy.No.164/8 was declared by the defendant to be his property for obtaining permission. Ex.P.28 is an official memorandum sanctioning conversion of 1 acre 36 guntas of land out of Sy.No.3/1 and Sy.No.164/8. The said conversion is in 56 respect of the defendant, who is in possession and the said property is not the land belonging to the plaintiff. The defendant himself has stated in his additional written statement that the land allotted to the share of the plaintiff's father was not the subject matter of the sale when Venkategowda and Rangegowda sold the property in favour of Ramanuja Iyengar and the said plea was taken in the additional written statement.
66. D.W.1 also in the cross-examination categorically admits that Sy.No.164/8 was the agricultural land and as on the date of the suit, it was not cultivated. He had knowledge about the conversion order passed in the year 1995 and the order passed by the Special Deputy Commissioner is not cancelled. But D.W.1 has volunteered that they have valued the land as agricultural land as that land was under cultivation. When such being the admission and RTC extract produced by the defendant as per Exs.D.5 to 10 clearly indicate that 38 guntas of land in Sy.No.164/8 was held by the defendant R. Srinivasaiah. If really 15 guntas of land belonging to the plaintiff was also converted, it would have found a place in the RTC. Having considered this material, the Trial Court comes to the conclusion that the 57 defendant has failed to produce cogent evidence to show that even the suit schedule property is converted for non-agricultural purpose and hence rightly comes to the conclusion that unless the defendant places any document that the plaintiff's property was converted, the very contention of the plaintiff that the Court fee paid is not sufficient cannot be accepted. The Trial Court in detail discussed the same and taken note of particularly the documents of exhibit 'D' series i.e., RTC extract Exs.D.5 to 15 and rightly comes to the conclusion that issue No.3 is not proved by the plaintiff. The learned counsel for the appellant brought to the notice of this Court that the plaintiff categorically admitted that he is claiming right in respect of the defendant's property and inspite of the said admission, the Trial Court has not considered the same and also relied upon several judgments. The learned counsel for the defendant also relied upon the judgment in respect of Section 58 of the Evidence Act and the Court has to take note of the admission in toto and cannot act upon stray admission. The Trial Court also taken note of the same and in detail discussed the admission given by P.W.1 and D.W.1 and hence the said contention cannot be accepted. Hence, I answer point No.(iii) as negative.
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67. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is dismissed. No cost.
(ii) The application filed under Order 41 Rule 27 of CPC is also dismissed.
(iii) The Registry is directed to transmit the Trial Court records forthwith.
Sd/-
JUDGE SN/ST/MD