Karnataka High Court
Pennaiah And Ors. vs Thippamma on 8 December, 2003
Equivalent citations: AIR2004KANT444, AIR 2004 KARNATAKA 444, 2004 AIR - KANT. H. C. R. 2598 (2004) 3 KCCR 1927, (2004) 3 KCCR 1927
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedharrao, J.
1. This appeal is filed against the Judgment and decree in R. A. No. 10/1995 on the file of the Civil Judge. Senior Division. Bellary arising out of the Judgment and decree in 0. S. No. 595/1979 on the file of the Prl. Munsiff, Bellary.
2. The appellants are the legal representatives: of the deceased defendant. The respondent-plaintiff filed suit for declaration of title in respect of suit schedule property and for recovery of possession from the defendant.
3. According to the plaintiff, the suit property originally belonged to Ramaiah. One Thimmakka the vendor of the plaintiff purchased the property from Ramaiah under Ex. P. 2, later on sold the same in favour of plaintiff under Ex. P. 1 dated 28-5-1969. The plaintiff submits that after the purchase, she migrated to T. B. Dam. After some time when she came back, she found that substantial portion of suit schedule property was demolished and the defendant was in possession of the suit property. Hence, filed the suit.
4. The defendant per contra claim title to the disputed property on the basis of sale deed executed by Honnuramma under Ex. D. 1 dated 30-12-1971 and claims to be in lawful possession and enjoyment.
5. H is pertinent to note that in Exs. P 1 and P 2. the property sold is described as bearing Municipal Old Door No. 55 and latest Door No. 162 with the specific boundaries. The plaintiff in the suit schedule described the suit property in the manner stated in Exs. P 1 and P 2. The plaintiff during the pendency of suit by the order of the Court on 1. A. IV amended the plaint, describing suit schedule property as Door No. 96. This Court in C. R. P. No. 4998/1987 confirmed the orders on I. A. IV.
6. The trial Court finds that the boundaries in Exs. P 1 and P 2 and the boundaries of the suit property are similar, thus comes to the conclusion thai the plaintiff has proved title to the suit property, decreed the suit against the defendant. The first appellate Court dismissed the appeal of the defendant confirming the findings in the judgment and decree of the trial Court. Hence, the second appeal.
7. The case is at the stage of admission. LCRs are secured. On the request of the learned counsel for the appellants and the respondent, the matter is heard on merits for final disposal.
8. The following substantial question of law is framed :
"Whether the first appellate Court fell in legal error in upholding the title of the plaintiff, when there is no nexus between suit property and the property shown in Ex. P. 1 and Ex. P. 2. The findings and the decree of the appellate Court in that behalf is perversely contrary to law and evidence?
9. The title deeds of the plaintiff at Exs. P. 1 and P. 2 describe the property sold as Old Door No. 55 and New Door No. 162. The plaintiff by amendment described the suit property in the schedule as Door No. 96. There is no corresponding narrative pleading in the plaint explaining how the property bearing Door No. 162 has come to be described as Door No. 96 in the suit.
10. There are two possible ways for the plaintiff to explain, 11 could be that the property may be reaasigned with Door No. 96 by the Municipality. Otherwise, it could be that the description of the property sold in Exs. P. 1 and Ex. P. 2 may be a bona fide mistake of fact. In the instant case, the plaintiff does not make out any reasons to explain how the Door No. 162 could become Door No. 96 and which is totally inconsistent, with the recitals in Exs. P. 1 and Ex. P. 2. The assumption on the part of the appellate Court that Exs. P. 1 pertains to suit property because of the similarities of boundaries and that the plaintiff has derived, title to the suit property on the basis of Ex. P. 1 is an untenable view. Merely because, the boundaries are identical. It is impermissible to surmise that the properly in question is related to Exs. P, 1 and P. 2 more so when there is no pleading and evidence to that effect. The plaintiff has failed to establish the fact that Door No. 162 is later on reassigned as 96, no documents are produced in that behalf, so also the plaintiff has not pleaded and proved that Door No. 162 mentioned in Ex. P. 1 and P. 2 was by way of mistake of fact. When the documents of title relied on by the plaintiff does not correspond with the suit schedule property and in the absence of necessary pleading and proof, the appellate Court was wrong in declaring the title of the plaintiff. May be that the defendant has not proved title of his vendor, but, nonetheless the defendant is held to be in possession of the suit property, when the plaintiff has failed to prove title, he would not be entitled to relief of possession irrespective of the valid title of the defendant. In that view of the matter; the appreciation of facts and evidence and the inference drawn is perverse and contrary to law and evidence on record. The question of law is answered in affirmative.
11. The appeal is allowed, the judgment and decree of the appellate Court is set aside and the suit of the plaintiff is dismissed.