Karnataka High Court
Gm Nagesha Gowda vs Smt Annapoornamma on 26 September, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
REGULAR SECOND APPEAL No.2274/2007 (INJ)
BETWEEN:®®
1. G.M. Nagesha Gowda
S/o. Majappa Gowda
Aged about 43 years
2. G.M. Chandrashekara
S/o. Manjappa Gowda
Aged about 40 years
3. G.M. Laxmisha
S/o. Manjappa Gowda
Aged about 35 years
4. G.M. Ramesha
S/o. Manjappa Gowda
Aged about 35 years
All are r/a. Addagadde Village & post
Sringeri Taluk
Chikmagalur Dist: 577 139 .. APPELLANTS
(By Sri. Girish Kodgi, Adv.)
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AND:
1. Smt. Annapoornamma
W/o. late G.S. Rama Bhatta
Aged about 73 years
2. R. Krishnamurthy
S/o. late G.S. Rama Bhatta
Aged about 43 years
3. G. R. Kalaseshwara
S/o. late G.S. Rama Bhatta
Aged about 42 years
4. G. R. Ganesha
S/o. late G.S. Rama Bhatta
Aged about 40 years
5. G. R. Suresha
S/o. late G.S. Rama Bhatta
Aged about 38 years
All are r/a. Addagadde
Sringeri Taluk
Chikmagalur Dist: 577 139 .. RESPONDENTS
(By Sri. B.S. Prasad , Adv. for C/R-1
Notice to R-2 to R-5 served & unrepresented)
This appeal is filed under Section 100 of CPC praying
to set aside the judgment and decree dated 16.6.2007
passed in R.A. No.90/2004 on the file of the Civil Judge
(Sr. Dn.), Chikmagalur and etc.
This appeal coming on for Orders this day, the Court
delivered the following :
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JUDGMENT
Defendants in O.S. No.257/1992, re-numbered as O.S. No.81/1995 and yet again, as O.S. No.26/2000 before the Civil Judge (Jr. Dn.,), N.R. Pura, aggrieved by the judgment and decree dated 16.6.2007 in R.A. No.90/2004 by the Civil Judge (Sr. Dn.), Chikmagalur allowing the appeal to set aside the judgment and decree of the Trial Court, have presented this second appeal.
2. Respondent, since deceased, represented by legal heirs, instituted O.S. No.257/1992 on 21.11.1992 before the Munsiff at Koppa for the reliefs of (i) vacant possession and (ii) a decree of permanent injunction restraining the defendants from encroaching upon the immovable property being a building site measuring 20 guntas comprised in Sy. No.119 of Addagadde Village of Sringeri Taluk, together with a thatched hut measuring 10 x 8 feet, bounded on the East by Sy. No.290 building site and Sy. No.119 part of Government land, West by Sy. No.289 building site 4 belonging to the plaintiff wherein he has constructed a building and a thrashing yard and Sy. No.119 of Government land, South by Sy. No.119 part of Government land, and North by Koppa-Sringeri Road. That suit when transferred was numbered as O.S. No.81/1995 and thereafter, when transferred to N.R. Pura Court, was numbered as O.S. No.26/2000. The 1st appellant arraigned as the 1st defendant filed written statement dated 10.6.1993, while defendant Nos.2 to 4 filed a memo adopting the said written statement. According to the 1st defendant, the grant certificate asserted by the plaintiff was a forged document since the description of the boundaries of the land granted have been written in a different ink. In other words, interpolated before filing the suit. According to the 1st defendant, when similar such grant certificates were issued, the Revenue Department, against the column showing the boundaries of the land granted, mentioned "as per the sketch". Therefore, it was contended that the grant certificate mentioning the boundaries of the property was fabricated. In addition, it 5 was contended that before issuing a grant certificate, the surveyor of the Revenue Department has to conduct a survey to identify the extent of land in possession of the grantee, fix the boundaries, draw a survey sketch to be notified by the ADLR, which, together, would form a basis for the Tahsildar to grant land under the Land Grant Rules. The 1st defendant asserted that in the absence of the aforesaid records, the plaintiff, having fabricated the grant certificate, was not entitled to the relief of possession. Lastly, it was contended that the defendants are in possession of the hut constructed 10 years ago and in respect of which taxes are paid to Mandal Panchayath, while the licence to put up construction issued by the Mandal Panchayat in favour of the plaintiff was stayed by an order of Mandal Pachayat on the premise that there was no material to establish the exact location of the said site. The 1st defendant asserted that the plaintiff was not in possession of the schedule hut, while it was the defendant, who has been in possession of the said hut and therefore, the question of encroachment did not arise. 6
3. In the terms of pleadings of the parties, the Trial Court framed three issues which were re-casted, whence, six issues were framed. Parties entered trial, when one R. Krishna Murthy - the 2nd plaintiff was examined as P.W.l and documents Exs.P.1 to P.29 marked, while for the defendants, the 1st defendant was examined as D.W.1 and documents Exs.D.1 to 4 marked.
4. The Trial Court, having regard to the materials on record, observed thus: (i) that the boundaries as recorded in Ex.P.1 grant certificate were not in the very same ink as other entries in the said certificate; (ii) that the boundaries mentioned in the grant certificate are the very same boundaries mentioned in the plaint schedule though the grant certificate discloses grant of 3 acres and 15 guntas. While the plaint schedule refers to 20 guntas of land;
iii) in other words, the plaintiff did not specify the boundaries of 20 guntas of land from out of 3 acres and 15 guntas; (iv) the Court Commissioner held a spot 7 inspection, and submitted a report recording that the boundaries of the property did not tally with the boundaries stated in the plaint schedule; (v) since the Court Commissioner noted the existence of a cart road on the western side of the plot, was unable to identify the entire three acres and 15 guntas, but could do so only in respect of 3 acres and 3 guntas; (vi) that the Commissioner reported that Sy. No.119 measures 239 acres and 27 guntas from out of which, plaintiff claimed ownership and possession of 3 acres and 15 guntas, which could not be located: (vii) that the Mahazar-Ex.P.9 drawn by the Revenue Officer on 19.6.1980, did not refer to any boundaries, while Exs.P.10 to P.12 being statements of plaintiff, notice dated 10.6.1983 and notice of Tahsildar respectively, did not establish boundaries of 3 acres and 15 guntas of land granted to the plaintiff; (viii) the Commissioner, reported that the entire property claimed by the plaintiff was not fenced; Though the Trial Court held that the dispute was over the actual location of 20 guntas of land in question and that the defendants did not 8 dispute its identity, nevertheless observed that plaintiff failed to place on record the sketch demarketing 3 acres and 15 guntas of land after fixing boundary stones, and the Commissioner's report, disclosed that the boundaries mentioned in the report did not tally with that of the suit schedule property, and regard being had to the fact that xerox copies of two grant certificates, not marked in evidence produced by the defendants, did not contain boundaries over the land granted, but stated "as per the sketch", the Trial Court concluded that Ex.P.1 was a concocted document insofar as it relates to the boundaries mentioned therein and accordingly, by the judgment and decree dated 16.8.2004 dismissed the suit.
5. The Lower Appellate Court on a re-appreciation and re-evaluation of the materials on record, framed six points for consideration. The Lower Appellate Court observed that the allegation of forgery in respect of the entries in the column describing the boundaries of the land granted, in Ex.P.1, was not proved, while noticing the 9 fact that the writing relating to the schedule in Ex.P.1 recording the boundaries was "some what in different ink than the other contents of the documents". It further noticed that the two xerox copies of grant certificates not exhibited by defendants, were relied upon by the Trial Court to conclude that Ex.P.1, insofar as it relates to recording boundaries of the land granted, was forged. In addition, it observed that the 1st defendant filed an application under Order XVIII Rule 17A r/w. Section 151 of CPC numbered as I.A. No.15, which when allowed by the Trial Court, the Tahsildar, Sringeri Taluk, was issued with summons to produce and speak to the records relating to and leading to issue of Ex.P.1, which though produced, the defendants failed to examine the Tahsildar or introduce the said document in evidence and accordingly, held that the Trial Court was not justified in concluding that Ex.P.1 was a forged document. The Lower Appellate Court further observed that the boundaries in the suit schedule property were in respect of the entire extent of 3 acres and 15 guntas of land, while possession was claimed in respect of 10 20 guntas from out of 3 acres and 15 guntas, without disclosing boundaries of the said 20 guntas. Regard being had to admission of D.W.1 in cross examination, that his interest lies in 5 guntas from out of 20 guntas of the suit schedule property, the Lower Appellate Court observed that there was no dispute over the identity of 20 guntas of house site from out of 3 acres and 15 guntas. Defendants having admitted that the land measuring 3 acres and 15 guntas was granted to the plaintiff under Ex.P.1 grant certificate, in the absence of relevant materials constituting substantial legal evidence of the defendants' lawful right, title or possession over 5 guntas of land from out of 20 guntas recorded a finding that the defendants failed to establish lawful right over 5 guntas of land out of 20 guntas. The Lower Appellate Court following the principles laid down in reported opinions over burden of proof of possession of land observed that, presumption in law being possession goes with ownership and the person who otherwise asserts possession is to rebut that presumption, held that the Trial Court was not justified in answering the 11 issue against the plaintiff and dismissing the suit, and accordingly, by the judgment and decree dated 16.6.2007, the appeal, to set aside the judgment and decree of the Trial Court and decreed the suit.
6. This appeal was admitted on 18.8.2009 to consider the following substantial questions of law:
i) Whether the judgment of the Lower Appellate Court suffers from perversity on account of misreading of evidence on record ?
ii) Whether the Lower Appellate Court is justified in reversing the judgment of the Trial Court dismissing the suit without assigning any valid reasons ?
iii) Whether the finding of the Lower Appellate Court that the plaintiff is the owner of the suit schedule property is contrary to the report of the Court Commissioner, the correctness of which had not been challenged ?
7. Sri. Girish Kodgi, learned Counsel for the appellants submits that the Trial Court was fully justified 12 in dismissing the suit and that the findings recorded by the Lower Appellate Court suffers from perversity on account of misreading the evidence on record and there was no justification to reverse the findings of the Trial Court.
8. Per contra, learned Counsel for the respondents seeks to sustain the judgment and decree as well merited, fully justified and not calling for interference.
9. There can be no dispute that in the plaint, the schedule refers to 20 guntas of land in Sy. No.119, and the boundaries as that of 3 acres and 15 guntas recorded in the schedule to Ex.P.1, the grant certificate. The written statement is over denial of the claim of the plaintiff to the extent that the schedule to Ex.P.1 is fabricated and forged, while not denying the issue of Ex.P.1 and the grant of 3 acres and 15 guntas in Sy. No.119 in favour of the plaintiff. It is true that the allegation of fraud and fabrication is based upon (a) that the writing in the 13 schedule to Ex.P.1 is different and (b) that the two xerox copies of grant certificates produced by the defendants do not contain description of boundaries of the land granted but state "as per the sketch". It is also a fact that defendants though obtained an order to summon the Tahsildar to produce and speak to the records relating to the grant certificate Ex.P.1, by filing I.A. under Order XVIII Rule 17A, nevertheless did not examine the witness when he produced the documents.
10. The defendants having placed neither pleadings nor proof of fraud as required by Order VI Rule 4 CPC and failed to examine the Tahsildar who produced the records leading to issue of Ex.P.1, grant certificate, coupled with the failure to introduce in evidence the two xerox copies of the alleged grant certificates, as a matter of fact, there was no material worth the while in proof of the allegations. Under Section 114 illustration (g) and Section 103 of the Indian Evidence Act (1 of 1872), a party in possession of the best evidence which would throw light on the issue in 14 controversy, if withheld, the Court ought to draw an adverse inference against him notwithstanding that the onus of proof does not lie on him and cannot rely upon abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. This is the law laid down by the Apex Court in GOPAL KRISHNAJI KETKAR VS. MD. HAJI LATIF AND OTHERS1.
11. It is not the case of the defendants that Ex.P.1 grant certificate was called in question in an appropriate proceeding under the Karnataka Land Grant Rules, 1960. It is also not their case that they have a right over 3 acres and 15 guntas of land granted to the plaintiff under Ex.P.1. The schedule in Ex.P.1 provides for a column to describe the boundaries of the land granted, against which entries are made without an entry "as per the sketch". It is not as if there is obliterating of the words "as per the sketch" and there is interpolation of entries. It may be that the writing in the schedule to Ex.P.1 is in some what 1 AIR 1968 SC 1413 15 different ink than the other entries filling up the blanks in Ex.P.1. That by itself and nothing more it cannot be inferred that the entries are fabricated. On the other hand, having regard to the provisions of the Karnataka Land Grant Rules, 1960, under which Ex.P.1 is issued, it must be presumed that the recording made therein is in the usual course of official business of the Revenue Department of the State, also regard being had to Section 133 of the Karnataka Land Revenue Act, 1964, providing a presumption in law over revenue entries in the revenue records. In the absence of rebuttal evidence to disprove the correctness of the entries in Ex.P.1, the Lower Appellate Court was justified in reversing the finding of the Trial Court.
12. In the cross examination of D.W.1, defendants claim 5 guntas from out of 20 guntas and further admit to have no dispute over the balance extent of 3 acres and 10 guntas of land granted to the plaintiff under the grant certificate Ex.P.1, though in the written statement contend 16 that the boundaries recorded in Ex.P.1 are fraudulent and fabricated and there is no identity of 20 guntas of land. This admission of D.W.1 strikes at the root of the identity and location of the suit schedule property. It is no doubt true that the report of the Court Commissioner discloses that he is unable to locate and demark the entire extent of 3 acres and 15 guntas of land, but did so only in respect of 3 acres and 3 guntas of land, nevertheless, that does not in any way affect the case of the plaintiff in the light of the admission of D.W.1 as extracted by the Lower Appellate Court in the judgment and decree impugned. In my considered opinion, the judgment and decree of the Lower Appellate Court does neither suffer from perversity due to misreading of evidence nor reversing the judgment of the Trial Court.
13. Although Sri. Girish Kodgi, learned Counsel for the appellants, draws the attention of the Court to the report of the Court Commissioner to submit that the correctness of the said report when not questioned by the 17 plaintiff, the identity of the suit schedule property was not established, hence the finding of the Lower Appellate Court is neither just and nor proper, is unacceptable.
14. The Lower Appellate Court having considered the report of the Court Commissioner, in great elaboration, observed that despite the fact that the Court Commissioner was unable to locate the entire extent of 3 acres and 15 guntas of land hence, unable to file a report over the correct description of the said land, suffice it to state that D.W.1 in the cross examination admitted the identity of 20 guntas of land being the suit schedule property by claiming to be in possession of 5 guntas from out of 20 guntas of land. The evidence on record is sufficient to record finding of facts, hence the Commissioner's report under Order XXVI Rule 9 of CPC would not come to the aid of the defendants to have the suit dismissed, more appropriately, on the identity of the suit schedule property.
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15. Having bestowed serious concern over the material on record, the judgment and decree of the Lower Appellate Court cannot be faulted.
16. In the circumstances, the substantial questions of law are answered against the appellants-defendants, and the appeal devoid of merit is accordingly dismissed.
17. Registry is directed to draw a decree to include cost of Rs.1,000/- for having allowed I.A. No.1/2013 to set aside the default order and restore the appeal to file.
Sd/-
JUDGE Cs/-