Karnataka High Court
Smt Manikyamma vs Sri Somanna on 24 March, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2353 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 2353 OF 2008 (INJ)
BETWEEN:
SMT MANIKYAMMA
DEAD BY HER LRs
1(a) SRI DORAISWAMY B.,
AGED ABOUT 82 YEARS,
H/O LATE MANIKYAMMA,
1(b) SMT. SOWBHAGYA,
AGED ABOUT 51 YEARS,
D/O LATE MANIKYAMMA,
W/O SURESH BABU,
1(c) SRI B. SOMASHEKHAR,
AGED ABOUT 47 YEARS,
S/O DORASWAMY,
1(d) SMT. GAYATHRI,
AGED ABOUT 45 YEARS,
W/O SOMUSUNDAR,
1(e) SRI. SHASHIKUMAR,
AGED ABOUT 43 YEARS,
S/O DORASWAMY B.,
APPELLANTS 1(a) TO 1(e) ARE
R/A NO.2569, NEAR OM SHAKTI TEMPLE,
SANTHEMAIDANA, MULBAGAL TOWN,
KOLAR DISTRCIT - 563 131.
SMT. PRABHAVATHI,
D/O DORAISWAMY
DEAD BY LRs
1(f) SRI AMARNARAYANA SWAMY,
AGED ABOUT 62 YEARS,
H/O D. PRABHAVATHI,
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RSA No. 2353 of 2008
1(g) SMT. ASHWINI,
AGED ABOUT 36 YEARS,
D/O D. PRABHAVATHI,
SRI RAKESH KUMAR,
AGED ABOUT 32 YEARS,
S/O D. PRAHAVATHI,
APPELLANTS 1(f) TO 1(h) ARE
ALL R/A NO.118, 10TH 'F' CROSS,
SANJEEVAPPA LAYOUT,
NAGAWARPALYA, C.V.RAMAN NAGAR POST,
BENGALURU - 560 094.
...APPELLANTS
[BY SRI G. PAPI REDDY, SR. COUNSEL FOR
SRI VARUN PAPI REDDY, ADVOCATE (PH)]
AND:
1. SRI SOMANNA
DEAD BY LRs
1(a) SMT. JAYAMMA,
W/O LATE SOMANNA,
AGED ABOUT 69 YEARS,
R/O SOMARASANAHALLI (BASAVANAMITTA),
MOTHAKAPALLI POST, THAYALUR HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT - 563 131.
1(b) MUNEENDRA BABU @ CHINNA BABU,
S/O LATE SOMANNA,
AGED ABOUT 48 YEARS,
R/O SOMARASANAHALLI (BASAVANAMITTA),
MOTHAKAPALLI POST, THAYALUR HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT - 563 131.
1(c) RAMESHA,
S/O LATE SOMANNA,
AGED ABOUT 43 YEARS,
R/O SOMESHWARPALYA,
NEAR SOMESHWARA TEMPLE,
MULBAGAL TOWN, KOLAR DISTRICT - 563 131.
1(d) SHANTAMMA,
D/O LATE SOMANNA,
W/O VENU, AGED ABOUT 38 YEARS,
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RSA No. 2353 of 2008
R/O BANGLAVURU VILLAGE, BYRAPALLI POST,
V. KOTA MANDALAM, PALAMANER TALUK,
CHITTOR DISTRICT, ANDHRA PRADESH.
2. SRI BHASKAR
AGED ABOUT 49 YEARS,
S/O NARAYANAPPA,
R/O LORRY CHANGAPPA HOUSE,
HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
3. SRI SHANKAR,
AGED ABOUT 68 YEARS,
PROP. LALITHA RADIO ELECTRICITY,
HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
4. SRI SUBBAIAH,
AGED ABOUT 73 YEARS,
S/O UGRARAM KRISHNAPPA,
R/O MALINA AGRAHARA, MULBAGAL TOWN,
KOLAR 563 131.
5. SRI SEENAPPA,
AGED ABOUT 55 YEARS,
S/O POORINTI RAMAIAH
R/O SOMESHWARA PALYA,
MULBAGAL TOWN, KOLAR 563 131.
6. SRI RADHAKRISHNA,
AGED ABOUT 53 YEARS,
S/O VENKATAPPA,
R/O KURABARAPALYA,
MULBAGAL TOWN, KOLAR 563 131.
7. SRI MUNIYAPPA,
AGED ABOUT 63 YEARS,
S/O HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
...RESPONDENTS
[BY SRI C.M. GOVINDA REDDY, ADV., FOR R1 (a-d) (AB);
R3 & R5 - SERVED & UNREPRESENTED;
V/O DATED 07.09.2021 R2, R4, R6 & R7 ARE H/S]
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RSA No. 2353 of 2008
THIS RSA FILED U/S. 100 AGAINST THE JUDGMENT AND
DECREE DATED 9.7.2008 PASSED IN R.A.NO.147/2005 ON THE
FILE OF THE II ADDL. CIVIL JUDGE (SR. DN.), C/O III ADDL.
CIVIL JUDGE (SR. DN.), KOLAR, ITINERATING AT MULBAGAL,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 10.03.2005 PASSED IN OS NO.97/1992
ON THE FILE OF THE ADDL. CIVIL JUDGE (JR. DN.),
MULBAGAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.12.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 09.07.2008 passed by III Addl. Civil judge (Sr. Dn.), Kolar, itinerating at Mulbagal, in RA.no.147/2005, this appeal is filed.
2. Brief facts of case are that, appellant was plaintiff in O.S.no.97/1992 filed for permanent injunction restraining defendants, their agents etc., from interfering with peaceful possession and enjoyment of property measuring 1 Acres 20 guntas of dry land in Sy.no.478/5 totally measuring 3 Acres situated at Someshwara Palya, Mulbagal Town ('suit property' for short).
3. In plaint, it was stated plaintiff had acquired suit property under registered sale deed dated 15.09.1976 from Somanna son of Appaiah and got her name entered in revenue records. Since then she was in possession and -5- RSA No. 2353 of 2008 cultivating it by growing ragi etc. It was stated, defendants being total strangers, without any right, title or interest tried to interfere with plaintiff's possession of suit property and attempted to form house sites and construct buildings. It was alleged, defendants were powerful persons backed by political leaders and attempted to trespass into suit property on 13.03.1992. As there was likelihood of dispossession of plaintiff, suit was filed. But, as some persons had put up temporary constructions after filing of suit, plaint was got amended and assertion that defendants had put up temporary construction during pendency of suit and prayer for mandatory injunction, directing defendants to remove unauthorized construction etc., were added.
4. After service of suit summons, defendants no.2, 4, 6 and 7 failed to enter appearance. Therefore, they were placed ex parte. Defendant no.3 filed written statement denying plaintiff's claim to have purchased suit property, being in possession as well as allegation about defendants attempting to interfere with her possession. It was contended defendant had perfected title over suit property by way of adverse possession. It was also stated -6- RSA No. 2353 of 2008 one Digavinti Appaiah died leaving behind his two sons viz., Hanumanthappa and Somanna and that Hanumanthappa had died leaving behind his son Narayanappa. As such, they were in possession and enjoyment of suit property. Likewise, defendants no.2 to 5 viz., Krishnappa, Nagaraja, Venkateshappa and 25 others were in possession and enjoyment of suit property since 18 years by constructing houses. They claimed to have grown coconut, tamarind and other trees, which were also aged more than 17 to 18 years. It was stated some defendants were using land for haystacks and tethering cattle. They had put up fence and had also constructed Yellamma Temple, 17 years ago. It was alleged, suppressing said facts, suit was filed. It was contended plaintiff was not an agriculturist. Therefore, purchase of agricultural land was in violation of Section 80 of Karnataka Land Reforms Act ('KLR' for short). Even valuation of suit property was disputed. It was contended suit was not maintainable without prayer for declaration and mandatory injunction.
5. Based on pleadings, trial Court framed following:
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Issues on 1.6.1994.
1. Whether the plaintiff proves that she is in lawful possession of suit schedule properties as on the date of suit?
2. Whether plaintiff further prove that the defendants interfered with her peaceful 2.
possession and enjoyment?
Additional issues framed on 16.02.2001:
1. Whether the plaintiff proves that defendants have put up some temporary constructions over suit schedule property after filing this suit?
2. Whether the plaintiff is entitled for mandatory injunction as prayed for?
3. Whether the defendants prove that they are the absolute owners of suit schedule property ?
4. Whether the defendants have perfected their title to the suit schedule property ?
Additional Issues framed on 29.5.2001:
5. Whether the plaintiff proves her title to the suit schedule property?
6. Whether the defendants prove that this Court has no Pecuniary jurisdiction to try this suit?
6. To prove her case, plaintiff examined herself and two others as PWs. 1 to 3 and got marked Exs.P1 to P4. Defendants no.3 and 5 and independent witness were examined as DWs 1 to 3. They got marked Exs.D1 to 26. -8- RSA No. 2353 of 2008 Court Commissioner was appointed and examined as CW.1, who got marked Exs.C1 to 7.
7. On consideration, trial Court answered issues no.1 and 2, addl. issues no.1, 2 and 5 in affirmative; Addl. issues no.3 and 4 in negative and addl. issue no.6 as not arising for consideration. Based on said findings, it decreed suit restraining defendants from interfering with plaintiff's peaceful possession over suit property and directing them to remove constructions over suit property.
8. Aggrieved, defendants filed R.A.no.147/2005 on various grounds, based on which following points for consideration were framed:
1. Whether the judgment and decree of the lower court is not based on pleading and evidence on record, is perverse and capricious and requires interference?
2. What order?
9. On consideration, point no.1 was answered in affirmative and point no.2 by allowing appeal, setting aside judgment and decree passed by trial Court and dismissing suit, leading to this Appeal. -9- RSA No. 2353 of 2008
10. Sri G Papi Reddy, learned Senior Counsel appearing for Sri Varun Papi Reddy, learned counsel for plaintiff submitted judgment and decree passed by first appellate Court was without proper consideration or re- appreciation passed impugned judgment. It was submitted, plaintiff had filed suit for permanent injunction against interference with her peaceful possession over suit property and mandatory injunction directing defendants to remove unauthorized construction on suit property with clear and proper description of suit property. She also stated about mode and manner of acquisition of title. She also led oral evidence and deposed as PW1 along with two others as PWs.2 and 3 and supporting same with documentary evidence viz., Sale deed dated 15.09.1976 as Ex.P.1, mutation extract as Ex.P.2, record of right as Ex.P.3 and copy of police complaint as Ex.P.4.
11. It was submitted, in written statement filed by defendant no.3 and adopted by defendants no.1 and 5, main defence set up was perfection of title by adverse possession, based on assertion about continuous, exclusive and uninterrupted possession of suit property for 18 years. As oral evidence, defendants no.3 and 5
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RSA No. 2353 of 2008 examined as DWs.1 and 2 and independent person as DW.3 along with documentary evidence consisting of RoR, Residential Certificates by Chief Officer, TMC, KEB certificates, Photographs and Agreements of sale marked as Exs.D1 to D26.
12. It was submitted, initially suit was for permanent injunction only. Four years after filing of suit i.e. on 23.08.1996, defendants trespassed into suit property and put up unauthorized construction at two places covering 30ft. X 40ft. and 40ft. X 60.ft respectively. It was submitted, same was even during operation of order of temporary injunction. Therefore, plaintiff filed application for amendment of plaint to incorporate additional facts and prayer for mandatory injunction. Application was allowed and amendments were incorporated.
13. On consideration, trial Court decreed suit. But, first appellate Court allowed appeal filed by defendants and dismissed suit, mainly on two grounds. Firstly, that plaintiff had not sought for declaration of title and
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RSA No. 2353 of 2008 secondly, failure to produce original sale deed dated 15.09.1976.
14. It was submitted, plaintiff had laid foundation in pleading (para-2 of plaint) that she had lost original sale deed. Therefore she got marked certified copy as Ex.P1 as secondary evidence. Moreover, Ex.P2 - mutation in revenue record was based of acquisition of title by her under Ex.P1. Entry of her name in Columns no.9 and 12 (2) of RoR as Ex.P3 was also consequent to Ex.P1. It was submitted, defendant no.1 - plaintiff's vendor had not questioned Ex.P1 since 1976. And revenue entries attracted statutory presumption under Section 133 of KLR Act. In any case, plea of adverse possession ipso facto meant admission of plaintiff's title over suit property.
15. It was submitted, in absence of pleading about when and how defendants came into possession or rebuttal, presumption under Section 133 of KLR Act plaintiff would be attracted and presumed to be in possession of suit property. It was submitted, documents relied on to substantiate possession were residential certificates dated 04.11.1999, few of which were issued in
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RSA No. 2353 of 2008 name of persons, who were not parties to suit. Moreover, certificates were post-lite documents. And as they were tampered, altering Sy.no.78/5 as Sy.no.478/5, they were unreliable. However, first appellate Court relied on same to reverse trial Court findings.
16. It was submitted, defendants relied on Exs.D.25 and D26 - agreements of sale dated 11.02.1987, allegedly executed by defendant no.1 in favour of Venkateshapppa and Shivamma in respect of sites measuring 30ft. X 40ft and 60ft. X 40ft. in Sy.no.478/5. But, plaintiff purchased suit property from defendant no.1 under sale deed dated 15.09.1976 prior to Exs.D25 and D26. It was contended, mere agreement for sale did not create any legal right in immovable property. It was contended, photographs produced by defendant no.3 were not relating to suit property, which was in 1 Acre 20 guntas out of total extent of 3 Acres. Suit property was northern half of Sy.no.478/5 and DW.1 admitted in cross-examination that entire land measuring 3 Acres in Sy.no.478/5 was owned by Appaiah, who had two sons namely, Somanna (defendant no.1) and Hanumathaiah. DW.1 admitted, after death of Appaiah,
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RSA No. 2353 of 2008 out of 3 Acres in Sy.no.478/5, each son got half of it measuring 1 Acre 20 guntas in oral partition.
17. It was contended, southern boundary of suit property was stated as land of Hanumanthaiah. Thus, suit property was northern half of land in Sy.no.478/5, purchased by plaintiff from defendant no.1 on 15.09.1976. Learned counsel drew attention of this Court to assertion by DW.1 that total extent of suit property was 2½ Acres. He also admitted temple was constructed in government land is contrary to his pleading. He also admitted about plaintiff having removed one Honge tree and planted new saplings etc. Even DW.2 admitted about temple constructed in government land.
18. It was submitted, independent witnesses - DW.3, however deposed that temple was constructed in suit property, contradicting evidence of DWs. 1 and 2. Despite same, first appellate Court relied on his deposition to upset well reasoned judgment and decree by trial Court, thereby committing error of relying upon unreliable evidence for arriving at conclusion.
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RSA No. 2353 of 2008
19. In support of proposition that plea of adverse possession amounts to admission of title, learned Senior counsel relied on decision of Hon'ble Supreme Court in K.M. Krishna Reddy v. Vinod Reddy & Anr. reported in (2023) 10 SCC 248, wherein it held:
"Their plea was of adverse possession against the appellant, which presupposes that the appellant was the owner. When in a suit simpliciter for a perpetual injunction based on title, the Defendant pleads perfection of his title by adverse possession against the plaintiff or his predecessor, it cannot be said that there is any dispute about the title of the plaintiff. Hence, the plaintiff need not came a declaration of title in such a case as the only issues involved in such a suit are whether the plaintiff has proved that he was in possession on the date of the institution of the suit and whether the Defendant has proved that he has perfected his title by adverse possession. Therefore, in the case at hand, it was not necessary for the appellant to claim declaration of ownership. There was no cloud on his title. Therefore, the suit, as originally filed, was maintainable".
20. In view of above, there was no need for seeking prayer for declaration of title. Alternatively, prayer for moulding relief was sought relying on decision of Hon'ble Supreme Court in Gaiv Dinshaw Irani & Ors. v. Tehmtan Irani & Ors. reported in (2014) 8 SCC 294, wherein, it was held:
"Considering the aforementioned changed circumstances the High Court taking note of subsequent events moulded the relief in the
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appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of the parties are crystalized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under section 96 of the Code of Civil Procedure is not precluded from taking note of Developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party or on the entire purpose of the suit, the courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson VS Alabama followed in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri"
21. It was lastly submitted, plaintiff was claiming right under Ex.P1, registered sale deed, as against Exs.D25 and D26 mere agreements of sale, which were subsequent to plaintiff's sale deed. It was submitted, registered sale deed attracted presumption about it being validly executed by relying on decision of Hon'ble Supreme Court in C. Jamila Begum v. Shami Mohd. reported in (2019) 2 SCC 727, held as follows:
"Sale deed dated 21/12/1970 in favour of Jamila Begum is a registered documents and the registration of the sale deed reinforces valid execution of the sale deed. A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law."
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RSA No. 2353 of 2008
22. On above grounds, learned Senior Counsel sought for answering substantial questions of law in favour of plaintiff and allow appeal.
23. Heard learned counsel for plaintiff, perused impugned judgment and decree.
24. Sri CM Govinda Reddy, learned counsel for respondents no.1(A-D) remained absent; while respondents no.3 and 5 are served, unrepresented and in respect of respondents no.2, 4, 6 and 7 notice held sufficient.
25. As stated above, appeal was by plaintiff against divergent findings in a suit for permanent injunction and mandatory injunction, wherein plaintiff claimed to have purchased suit property under Ex.P.1 - registered sale deed from defendant no.1 and claimed to be in possession and enjoyment thereof as indicated in Ex.P.2 - mutation extract and Ex.P.3 - RoR. Plaintiff alleged interference by defendants with her possession prior to suit and trespass/dispossession during pendency of suit based on Ex.P.4 - police complaint dated
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RSA No. 2353 of 2008 23.08.1996. Plaintiff sought to establish her case based on her own deposition as PW.1 and two others examined as PWs.2 and 3 and producing documents mentioned above.
26. Suit was contested by defendants no.1, 3 and 5 only, who denied plaintiff's claim of title over suit property under Ex.P1. They stated that suit property originally belonged to Appaiah, who died 20 years earlier leaving behind sons - Hanumanthappa and Somanna. And that Hanumanthappa also died leaving behind his only son - Narayanappa. Therefore, it belonged to Somanna and his family members, and since 18 years, defendants and 25 others were possession of sites in suit property, wherein they had constructed compound, building and residing therein. They also claimed to have grown trees etc., and using land for haystacks, tethering cattle etc. Thus, they claimed to have acquired title by adverse possession.
27. To substantiate their claims, defendants no.3 and 5 examined as DWs.1 and 2 and also independent witness as DW.3. To substantiate possession, they relied
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RSA No. 2353 of 2008 on residential certificates issued by Chief Officer, TMC, and electricity connection certificates from KEB and photographs - Exs.D2 to D24. They also produced Agreements of Sale stated to have been executed in favour of Venkateshappa and Shivamma on 11.02.1987 as Exs.D25 and D26.
28. While passing impugned judgment and decree, trial Court adverted to rival pleadings, depositions and documentary evidence. It observed, plaintiff and his witnesses deposed in terms of plaint. It noted, except making suggestions denying plaintiff's title under Ex.P1, about entry of her name in revenue records and plaintiff being in possession of suit property, nothing material was elicited in cross-examination.
29. Examining material on behalf of defendant, it observed, defendant's failing to lead rebuttal evidence insofar as title. It observed, plaintiff had established lawful ownership and title over suit property. It noted that Assistant Executive Engineer of PWD was appointed as Court Commissioner to measure properties of plaintiff/defendants and examined as CW.1 and got marked Exs.C1 to C7. It noted, admission by CW.1 that
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RSA No. 2353 of 2008 he had prepared report about buildings based on information collected from public and observed, Commissioner had failed to state whether constructions were made prior to or after filing of suit and was unable to identify buildings of defendants from photographs. It therefore held, said evidence to be inconclusive.
30. After examining deficiencies/omissions or discrepancies in documentary evidence of defendants, especially competency of Chief Officer, TMC, to issue residential certificates, answered issue no.1 and additional issues no.1 and 5 in affirmative. In view of its finding on issue no.1 and on ground that defendants had taken inconsistent pleas which would be impermissible without admitting plaintiff's title, it answered additional issues no.3 and 4 in negative and taking note of contention about defendants claiming to have put-up construction, being in possession etc., it answered additional issue no.2 in affirmative. Consequently, it decreed plaintiff's suit.
31. In appeal, first appellate Court also took note of rival pleadings and material placed on record by parties. It firstly observed specific contention by
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RSA No. 2353 of 2008 defendants that as plaintiff was not an agriculturist, she could not purchase suit property and defendant no.1 had not executed any sale deed. It noted, since suit was not only for permanent injunction but for mandatory injunction wherein defendants had denied her title, plaintiff had omitted to seek relief of declaration. It noted that plaintiff had produced certified copy of Sale Deed as Ex.P1. For failure to produce original Sale Deed or in case of its loss, corroborative documents such as police compliant or public notice cast doubt about plaintiff's claim of loss of original Sale Deed. It drew adverse inference for failure to summon original registers from Sub-Registrar's office and lack of explanation for having filed application for mutation of her name on 10.01.1992, even when date of purchase was 15.09.1976. It further referred to admission by PW.1 in cross-examination that she was not aware of date of partition and not disputed assertion by defendants that suit property was joint family property of defendant no.1. On said reasoning, it held, defendant no.1 did not have exclusive title over suit property. It therefore held, transfer of title under Ex.P.1 would be defective. It noted, PW.2 admitted that he does
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RSA No. 2353 of 2008 not know when and how plaintiff purchased suit property. On ground that PWs.2 and 3 admitted to have worked under plaintiff, it discarded their deposition as being biased.
32. And in light of specific case of defendants about being in possession over different portions of suit property, it observed admission by PW.1 about existence of temple in suit property without explanation, whether it was prior to or after her purchase going against her. On bare examination of Exs.D11 to D24 - photographs, it found buildings shown therein to be old and prior to suit. It specifically observed that they were not recent constructions.
33. It observed, trial Court though framed issue regarding title, it had failed to scrutinize Ex.P1, which was a certified copy and even when denied by defendants, plaintiff had failed to produce original or summon register from Office of Sub-Registrar, drew adverse inference, held wrong appreciation of pleadings and evidence by trial Court, drawing of wrong presumptions, which had resulted in miscarriage of justice. On said conclusion, it
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RSA No. 2353 of 2008 upset trial Court judgment and decree. Thus, this second appeal is against divergent conclusions.
34. Since this is an appeal under Section 100 of Code of Civil Procedure, 1908, scope for interference would be only on substantial questions of law. This appeal was admitted on 29.09.2010, to consider following substantial questions of law:
1. Whether the first appellate court is justified in reversing the judgment and decree of the trial Court merely for not producing the original sale deed Ex.P.1 and not claiming the prayer for declaration of title?
2. Whether the first appellate court is justified in not considering the undisputed document and material evidence supporting the case of plaintiff while reversing the judgment and decree of trial court?
3. Whether the first appellate court is justified in not complying the statutory requirement of reassessing the entire oral and documentary evidence on record in requirement of Order XLI Rule 31 of CPC while disagreeing with the findings of the trial Court?
35. As rightly contended, one of grounds for reversal of trial Court decree by first appellate Court is failure of plaintiff to produce original sale deed and seeking to rely on certified copy of it as Ex.P1.
36. Hon'ble Supreme Court elucidated principles regarding secondary evidence in case of H.Siddiqui v.
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RSA No. 2353 of 2008 A.Ramalingam reported in (2011) 4 SCC 240, wherein it held:
"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non- production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907] .)"
37. Admittedly, Ex.P1 is certified copy obtained from Office of Sub-Registrar. As observed in Jamila Begum's case (supra), registration offers presumptive value about due execution of deed. It is seen, Ex.P1 was marked in deposition of PW.1 without any objection. As per plaintiff, she purchased suit property from Somanna, Vendor though arrayed as defendant no.1, merely chose
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RSA No. 2353 of 2008 to adopt written statement of defendant no.3, who had denied it. While plaintiff stepped into witness box as PW.1, defendant no.1 did not. Other contesting defendants though denied valid purchase, they admitted that plaintiff's vendor was amongst owners of suit property. Only basis for title was adverse possession and Exs.D25 and D26.
38. As held in K.M.Krishna Reddy's case (supra), plea of adverse possession cannot survive without admission of title. While passing impugned judgment and decree, trial Court referred to said principle of law. But, first appellate Court does not refer to decisions and principles laid down even to record finding if they did not apply to present case. In fact, without traversing reasons assigned by trial Court, first appellate Court proceeded to reverse findings.
39. Principle of law as to duty of first appellate Court in an appeal are well established. Hon'ble Supreme Court elucidated requirements under Order XLI Rule 31 of CPC, H.Siddiqui's case (supra) as follows:
"21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in
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such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide Sukhpal Singh v. Kalyan Singh [AIR 1963 SC 146] , Girijanandini Devi v. Bijendra Narain Choudhary [AIR 1967 SC 1124] , G. Amalorpavam v. R.C. Diocese of Madurai [(2006) 3 SCC 224] , Shiv Kumar Sharma v. Santosh Kumari [(2007) 8 SCC 600] and Gannmani Anasuya v. Parvatini Amarendra Chowdhary [(2007) 10 SCC 296 : AIR 2007 SC 2380] .)
22. In B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808 : JT (2010) 10 SC 551] , while dealing with the issue, this Court held as under : (SCC p. 531, para 4) "4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate
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court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756] , SCC p. 758, para 5.)"
23. More so, none of the courts below had taken into consideration Clause 11 of the agreement dated 30-6-1979, which reads as under:
"11. In the event of any default on the part of the vendors in completing the sale the earnest money paid herewith shall be refunded to the purchasers together with a like amount of Rs. 5000 (Rupees five thousand only) as liquidated damages for breach of contract."
Thus, in case of non-execution of the sale deed, the appellant could get the earnest money with damages.
24. So far as the issues of inadequate consideration and rise in price are concerned, both the parties have argued the same at length and placed reliance on a large number of judgments of this Court, including : Chand Rani v. Kamal Rani [(1993) 1 SCC 519 : AIR 1993 SC 1742] , Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 8 SCC 146] , P. D'Souza v. Shondrilo Naidu [(2004) 6 SCC 649] , Jai Narain Parasrampuria v. Pushpa Devi Saraf [(2006) 7 SCC 756] , Pratap Lakshman Muchandi v. Shamlal Uddavadas Wadhwa [(2008) 12 SCC 67] and Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak [(2010) 7 SCC 717 : (2010) 3 SCC (Civ) 191] .
25. In view of the above, as we are of the considered opinion that the courts below have not proceeded to adjudicate upon the case strictly in accordance with law, we are not inclined to enter into the issue of inadequate consideration and rise in price. However, the judgment impugned cannot be sustained in the eye of the law."
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40. Bare perusal of judgment and decree by first appellate Court reveals, it to be wanting in reasoning. Therefore, substantial questions of law no.1 to 3 require to be answered in favour of appellant-plaintiff.
41. Consequently, following :
ORDER
(i) Appeal is allowed;
(ii) Impugned judgment and decree dated 09.07.2008 passed by first appellate Court in R.A.no.147/2005 is set-aside, restoring judgment and decree dated 10.03.2005 passed by trial Court in O.S.no.97/1992.
No order as to costs.
Sd/-
(RAVI V HOSMANI) JUDGE Psg/AV