Karnataka High Court
Subhaschandra Bose vs Bobbavali Kumari on 5 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:12839
RSA No. 5008 of 2009
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 5008 OF 2009 (DEC/INJ)
BETWEEN:
D. SUBHASCHANDRA BOSE
S/O. NAGABHUSHNAM,
AGE: 60 YEARS, OCC: AGRICULTURIST,
R/O. SRIRAMNAGAR, TQ: GANGAVATI.
...APPELLANT
(BY SRI RAVI S. BALIKAI, ADVOCATE.)
AND:
BOBBAVALLI KUMARI
W/O. SATYANARAYANA,
AGE: 45 YEARS, OCC: AGRICULTURIST,
R/O. MARALI BASAVANNA CAMP,
Digitally signed TQ: GANGAVATI.
by YASHAVANT
NARAYANKAR
Location: HIGH ...RESPONDENT
COURT OF (BY SRI GANAPATI M. BHAT, ADVOCATE.)
KARNATAKA
DHARWAD
BENCH
DHARWAD THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 03.10.2008, PASSED BY THE
CIVIL JUDGE (SR.DN.) AND JMFC, GANGAVATHI, IN R.A.NO.8/2008,
AND TO CONFIRM THE JUDGMENT AND DECREE DATED 23.02.2008,
PASSED BY THE CIVIL JUDGE (JR.DN.), GANGAVATHI, IN
O.S.NO.19/2006 BY ALLOWING THIS RSA AND ETC.,.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:12839
RSA No. 5008 of 2009
ORAL JUDGMENT
Heard the arguments addressed by the learned counsels appearing for the respective parties and perused the material placed on record.
2. This regular second appeal is filed by the plaintiff challenging the judgment and decree dated 03.10.2008, passed in R.A.No.8/2008, by the Civil Judge (Sr.Dn.) and JMFC, Gangavathi, which reversed the judgment and decree dated 23.02.2008, passed in O.S.No.19/2006, by the Civil Judge (Jr.Dn.), Gangavathi.
3. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.
4. It is the case of the plaintiff that the plaintiff has purchased the suit schedule property under the sale deed on 11.12.2003 and the plaintiff's name was entered in the revenue records. The revenue authorities have prepared sketch, phodi map and issued Form No.10 in the name of the plaintiff. Originally the land bearing Sy.No.41 was measuring -3- NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 14 acres 18 guntas and it was divided into two portions in the year 1969-70. It is the case of the plaintiff that the land Sy.No.41/3 measuring 06 acres 16 guntas is adjacent to the Marali-Gundur Road to the west of the land of defendants. The lands bearing Sy.Nos.41/A1, 41/A2, 41/A3 and 41/B of the defendant are towards west. It is further case of the plaintiff that the plaintiff's vendor namely P.V.Rao has purchased the suit schedule property in the year 1970 and in the said sale deed due to inadvertence and oversight the boundaries are wrongly mentioned as by mentioning towards east Ayyappa's land. It is the case of the plaintiff that the plaintiff's vendor was in possession and in enjoyment of the land being owner having purchased from Basappa towards eastern side abutting to the Marali-Gundur Road. But the defendant is claiming that their lands situated towards eastern side abutting to the Marali-Gundur Road and they have started to interfere with the possession of the plaintiff. Therefore, the plaintiff has filed suit for declaration and permanent injunction.
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009
5. The defendant has appeared and filed the written statement by denying all the plaint averments. It is the contention of the defendant that his land is situated abutting to Marali-Gundur Road towards eastern side. Therefore, prays to dismiss the suit.
6. Based on the pleadings, the trial Court has framed the following issues.
i) Whether the plaintiff proves that, he is an absolute owner and possessor of land bearing Sy.No.41/3 measuring 6 acres 16 guntas situated at Marali village since the date of purchase on 11.12.2003 under registered sale deed from one P.Venkateshwar of Sriramanagar?
ii) Whether the plaintiff proves that, the defendant and her husband and their henchmen have interfered into the suit schedule property illegally?
iii) Whether the defendant proves that, the suit is not properly valued for the purpose of jurisdiction and for the purpose of Court fees?
iv) Is the plaintiff entitled to the relief of
declaration of title and permanent
injunction as prayed for in the plaint?
v) What order or decree?
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NC: 2024:KHC-D:12839
RSA No. 5008 of 2009
7. The trial Court after receiving evidence, has decreed the suit declaring that the plaintiff is owner and in possession of the suit schedule property by forming opinion that the suit schedule land is situated towards eastern side abutting to the Marali-Gundur Road and consequently an order of permanent injunction is granted against the defendant.
8. The trial Court assigned reason that prior to purchase of land by the plaintiff and the defendant, the land was surveyed and survey sketch map was prepared for first time in the year 1969-70 showing the land of plaintiff's vendor namely Basappa was situated in the eastern side abutting to the Marali-Gundur Road and the land of defendant's vendor Ayyappa was situated towards western side. Further observed that for the second time survey was conducted in the year 2002-03 and third time survey was made in the year 2005-06. The survey sketch and map and hissa form, Form No.10 show that the plaintiff's land is situated towards eastern side abutting to Marali-Gundur Road and defendant is in possession of the land towards -6- NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 western side. On the basis of these survey sketch and map and the documents prepared by the revenue authorities, the trial Court held that the plaintiff has purchased the land towards eastern side abutting to Marali-Gundur Road and decreed the suit.
9. The trial Court after appreciating the evidence on record, both oral and documentary and on the admissions made by the defendant and the witnesses, came to the conclusion that the plaintiff's land is situated towards eastern side abutting to Marali-Gundur Road. Accordingly decreed the suit by granting relief of declaration and permanent injunction as prayed for.
10. Being aggrieved by it, the defendant has preferred appeal before the First Appellate Court and the First Appellate Court has reversed the judgment and decree passed by the trial Court and consequently dismissed the suit. The First Appellate Court has assigned reason that presumption cannot be raised in regard to survey sketch and map prepared and the First Appellate Court by referring various judgments of Court of Burma, Privy Council, has held -7- NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 that the plaintiff has failed to prove that he has purchased property towards western side and defendant's property comes abutting to Marali-Gundur Road. Further assigned reason that Ex.D.2 sale deed shows, towards eastern side Ayyappa's land is mentioned. It proves the fact that the defendant's vendor was owner and was in possession of the land towards eastern side and therefore Ex.D.2 registered sale deed being the registered document, prevails over the survey sketch and map prepared by the revenue authorities.
On these reasons the First Appellate Court has reversed the judgment and decree passed by the trial Court and accordingly dismissed the suit.
11. Being aggrieved by dismissing of the suit by reversing the judgment and decree of the trial Court, the plaintiff has preferred the regular second appeal.
12. This Court, on 06.11.2012 while admitting the appeal has framed the following substantial questions of law.
i) Whether the Lower Appellate Court was justified in discarding the presumption available in respect of the documents at -8- NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 Ex.P.28 based on which the trial Court had decreed the suit?
ii) Whether in the facts and circumstances of the case, the error in description in Ex.P.1 could be held against the appellant in the background of the other materials and evidence which are available on record and in that regard, whether the Lower Appellate Court has committed perversity in the manner of appreciation of the evidence?
13. The learned counsel for the appellant/plaintiff submitted that Ex.P.28 is the survey sketch and map and hissa was made by dividing the land bearing Sy.No.41 as Sy.Nos.41/1 and 41/2 and the vendor of defendant was in possession of Sy.No.41/1 which is towards western side and the land fallen to the plaintiff's vendor was Sy.No.41/2 which is towards eastern side. Further, three consecutive survey sketch map and phodi hissas have consistently held that the land bearing Sy.No.41/2 is towards eastern side abutting to Marali-Gundur Road and the land of defendant's vendor bearing Sy.No.41/1 is towards western side. In spite of it, just by taking advantage of the fact of showing boundaries wrongly in Ex.D.2 sale deed that towards eastern side Ayyappa's land is mentioned, the defendant is claiming -9- NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 wrongly and this dispute is rightly adjudicated by the trial Court, but the First Appellate Court without proper and cogent reasons has reversed the judgment and decree of the trial Court which is contrary to law. Further submitted that DW.3 is son of Ayyappa and admit defendant's evidence that phodi/hissas were made from western to eastern side by mentioning Sy.Nos.41/1, 41/2 and 41/3 and therefore the land purchased by plaintiff is towards eastern side abutting to Marali-Gundur Road and the First Appellate Court has not at all considered any evidence on record and by just assigning some of the rulings though which are not from the Courts of India, has wrongly reversed the judgment and decree of the trial Court. Therefore, prays to set aside the judgment and decree passed by the First Appellate Court and confirm the judgment and decree passed by the trial Court.
14. Further submitted that though DW.3 in the course of cross-examination admitted that his father Ayyappa was allotted the land bearing Sy.No.41/1 and Basappa was allotted Sy.No.41/2, but these evidence were not at all considered by the First Appellate Court and further the
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 observation of the First Appellate Court is contrary to section 36 and 83 of the Indian Evidence Act. Further submitted that though the witnesses of the defendant themselves and documentary evidence of three consistent survey sketch and maps have proved the fact that the land of the plaintiff is situated towards eastern side abutting to Marali-Gundur Road, but the First Appellate Court just by taking mistake crept in Ex.D.2 sale deed while mentioning the boundary towards eastern side, has wrongly set aside the judgment and decree passed by the trial Court. Therefore, prays to set aside the judgment and decree passed by the First Appellate Court and confirm the judgment and decree passed by the trial Court.
15. On the other hand, learned counsel for respondent/defendant submitted that the First Appellate Court has rightly held that the defendant's vendor's land is towards eastern side abutting to Marali-Gundur Road and the plaintiff's vendor's land was situated towards western side, on the basis of the boundary shown in Ex.D.2 sale deed. Further submitted, Ex.D.2 is the registered sale deed and
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 registration has its own significance and the plaintiff's vendor if at all was of opinion that boundaries were shown wrongly, but he has not made any effort for rectification of the sale deed, which proves that the plaintiff's vendor P.V.Rao was in possession of the land situated towards western side. Therefore, in this regard the First Appellate Court is correct in reversing the judgment and decree passed by the trial Court.
16. Further submitted that the survey sketch and map produced by the plaintiff do not have any relevancy. Accordingly the same were rightly discarded by the First Appellate Court, but Ex.D.2 is the registered sale deed and it has presumptive value regarding registration and in the absence of any corrective steps taken either by the plaintiff or his vendor, therefore, as per boundaries shown in Ex.D.2 sale deed, towards eastern side Ayyappa's land is mentioned, which proves that the defendant's vendor was in possession over the property towards eastern side. Therefore, justified the judgment and decree passed by the First Appellate Court and thus prays to dismiss the appeal.
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009
17. The crux of the point involved in this appeal is to adjudicate in which portion of the land the plaintiff and defendant are in possession and owners of their respective land in possession as per sale effected. The plaintiff is contending that he is in possession of the land bearing Sy.No.41/2 and 41/3, which is situated towards eastern side abutting to Marali-Gundur Road. On the contrary, it is the case of the defendant that he is in possession towards eastern side abutting to the Marali-Gundur Road. Therefore in these rival claims made by both the parties, whether appreciation of evidence made by both the trial Court and the First Appellate Court whichever is correct is to be find out in the background of legal position of section 36 and 83 of the Indian Evidence Act relating to presumption of survey sketch and map which are occurred during the regular official course of transaction.
18. It is pertinent to mention admitted facts that originally the land bearing Sy.No.41 was measuring 14 acres 18 guntas. Subsequently this land Sy.No.41 was divided into Sy.No.41/1 measuring 07 acres 06 guntas given to
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 Ayyappa's share. The another bit of land bearing Sy.No.41/2 measuring to an extent of 07 acres 12 guntas was given to Basappa. These facts are not disputed by either side. The defendant has purchased the land bearing Sy.No.41/1 measuring 07 acres 06 guntas from Ayyappa. The plantiff's vendor namely P.V.Rao has purchased the land to the extent of 06 acres 16 guntas from Basappa through registered sale deed dated 02.02.1968. The remaining 33 guntas was retained by Basappa himself. After purchasing the land by the plaintiff's vendor of 06 acres 16 guntas was numbered as Sy.No.41/3 to the extent of 06 acres 16 guntas. Therefore there are survey numbers assigned as 41/1, 41/2 and 41/3.
19. Ex.P.28 is the resurvey and hissa tippani of dividing the land Sy.No.41 as Sy.Nos.41/1 and 41/2. This is the first resurvey and hissa tippani made dividing the land bearing Sy.No.41 into Sy.Nos.41/1 and 41/2. As per this Ex.P.28, resurvey and hissa tippani map, the land bearing Sy.No.41/1 was assigned to Ayyappa S/o.Channappa towards western side and the land bearing Sy.No.41/2 was assigned to Basappa S/o.Irappa towards eastern side.
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 Accordingly the same is entered in Form No.10 as per Ex.P.29 showing Ayyappa was given land Sy.No.41/1 and Basappa was given land Sy.No.41/2. It is undisputed that the defendant has purchased the property from Ayyappa S/o.Channappa to the extent of 07 acres 06 guntas which is the land bearing Sy.No.41/1. The plaintiff's vendor namely P.V.Rao has purchased the land Sy.No.41/2 to the extent of 06 acres 16 guntas from Basappa through registered sale deed dated 02.02.1968 and Basappa retained 33 guntas of land in Sy.No.41/2. The said extent of 06 acres 16 guntas is assigned number as Sy.No.41/3 and 33 guntas land is assigned survey number as 41/2. This is reflected in the hissa map and Form No.10.
20. Thereafterwards the survey authorities have conducted survey in the year 2002-03 and 2005-06 showing the land Sy.No.41/1 towards western side and land Sy.Nos.41/2 and 41/3 towards eastern side. The land of Sy.No.41/3 to the extent of 06 acres 16 guntas is shown which is purchased by plaintiff's vendor towards eastern side abutting to Marali-Gundur Road. The plaintiff has purchased
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 the property from P.V.Rao in the year 2003 through registered sale deed dated 11.12.2003 as per Ex.P.1. In Ex.P.1 sale deed, towards westerns side the land of defendant is mentioned. But the dispute arose because of Ex.D.2 sale deed which is sale deed of P.V.Rao purchased by Basappa. In this Ex.D.2 sale deed the boundary shown is towards eastern side Ayyappa's land.
21. Admittedly neither P.V.Rao nor plaintiff have taken recourse for rectification of boundaries the sale deed. Therefore the defendant is contending on the basis of Ex.D.2 that since towards eastern side Ayyappa's land is mentioned, therefore, Ayyappa's land is situated in the eastern side abutting to Marali-Gundur Road. So in this controversy both the oral and documentary evidence ought to have been appreciated.
22. From the documentary evidence discussed above, undisputedly Ayyappa's land was given number as Sy.No.41/1 and Basappa's land was given Sy.No.41/2 as per Ex.P.29. Ayyappa's land bearing Sy.No.41/1 is situated towards western side and Basappa's land bearing Sy.No.41/2
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 is situated towards eastern side. Ex.D.2 is the sale deed, the boundary mentioned therein and in every sale deed the boundaries are mentioned by the parties to the sale deed. But whenever survey is conducted, survey sketch map and hissa tippani, Form No.10 are prepared according to the topographical survey on the spot. As per section 36 of the Indian Evidence Act, survey sketch map, hissa tippani and Form No.10 are relevant documents.
23. The First Appellate Court has not discussed anything regarding relevancy of the documents as per section 36 of the Indian Evidence Act. Once these documents are found to be relevant, which are certified copies characterized as secondary evidence, and there is no objection by defendant regarding these documents, therefore, these Exs.P.26, 27, 28, 31, 32, 33 and 34 are found to be relevant and admissible, more particularly the survey conducted and map prepared in the year 1969-70, 2002-03 and 2005-06 consecutively and consistently gives true picture upon the survey of the land and these survey sketch and maps are having presumptive value as per
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 section 83 of the Indian Evidence Act. But the defendant has not placed any rebuttal evidence rebutting the presumption accrued in favour of the plaintiff. Therefore upon considering these documents, especially the three surveys conducted as discussed above, and the map prepared therein are relevant as per section 36 of the Indian Evidence Act and presumption can be raised as per section 83 of the Indian Evidence Act.
24. Section 36 of the Indian Evidence Act stipulates as follows:
36. Relevancy of statements in maps, charts and plans.--Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.
25. The maps or charts and plans made in the authority of the Central Government or State Government and when the facts in issue are relevant facts, made them as published or offered for public sale are the relevant facts. In
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 the present case the maps and sketches as discussed above are found to be relevant facts in proving the case of the plaintiff. What is 'relevant' is defined in section 3 of the Indian Evidence Act, which reads as follows:
"Relevant".--One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
The 'facts in issue' is defined in section 3 of the Indian Evidence Act as follows:
"Facts in issue".--The expression "facts in issue" means and includes--
any fact from which, either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.--Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.
26. The facts in issue involved in this case is that in which side the lands of Ayyappa and Basappa are situated.
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 In general and in particular on which side plaintiff's land is situated, is the question to be decided as per the facts produced by both the plaintiff and defendant. Therefore, while deciding the issue involved in the facts as discussed above, the survey sketches and maps produced by the plaintiff above discussed are proved to be relevant documents. Therefore, when its relevancy is proved, these maps and survey sketches have become admissible in evidence with the aid of section 83 of the Indian Evidence Act.
27. Section 83 of the Indian Evidence Act stipulates as follows:
83. Presumption as to maps or plans made by authority of Government.--The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.
28. Section 83 of the Indian Evidence Act enables presumption as to maps or plans made by the authority of Government. The Court shall presume that maps or plans
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 purportedly to have been done by the authority of the Central Government or the State Government were so made are accurate. Here the case of the plaintiff and defendant falls within the first limb of section 83 of the Indian Evidence Act. Here the authority is the State Government who prepared the sketch and map in their official transactions and not for any purpose or any cause. Therefore, it is presumed that the maps and plans are accurate. Not only by these survey sketches and maps but also by oral evidence of DW.4 the fact is proved that Ayyappa's land is situated towards western side and Basappa's land is situated towards eastern side abutting to the Marali-Gundur Road.
29. DW.3 Bhimappa who is vendor of the defendant being son of Basappa has deposed that the land Sy.No.41 was divided into two hissas and admitted that Sy.Nos.41/A/1, 41/A/2 and 41/A/3 consecutively were given numbers from west to east. Further DW.3 admitted that, according to this hissa, the land Sy.No.41/2 is towards eastern side. Therefore, from the evidence of DW.3, the survey sketch and map as above discussed corroborates that
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 the land given to the share of Basappa bearing Sy.No.41/2 is towards eastern side and the land bearing Sy.No.41/1 is towards western side. Further in reiteration DW.3 has admitted in the cross-examination that the first hissa Sy.No.41/1 was given to his father Ayyappa and the second hissa 41/2 was given to Basappa.
30. Therefore, from all these evidence on record discussed above and the legal position stated supra, the survey sketch and map are found to be relevant as per section 36 of the Indian Evidence Act and the presumption is accrued in favour of the plaintiff as per section 83 of the Indian Evidence Act and this presumption is not rebutted regarding maps and survey sketches are found admissible. Further, it is corroborated by the oral evidence of DW.3. It is pertinent to mention here that DW.3 is none other than the son of vendor of defendant. Therefore from the very evidence of DW.3 it is proved that the defendant has purchased the land bearing Sy.No.41/1 towards western side and the plaintiff's vendor P.V.Rao has purchased the land bearing Sy.No.41/2 towards eastern side to the extent of 06
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 acres 16 guntas and after purchasing it, it was reassigned number as Sy.No.41/3.
31. Therefore, in this regard when the survey sketch map and the evidence of DW.3 are considered, it is proved that in Ex.D.2 sale deed the boundary towards eastern side is wrongly mentioned as Ayyappa's land. It is proved that the defendant is trying to take advantage of the wrong mentioning of boundary in Ex.D.2 sale deed. Therefore, upon analyzing the evidence as already discussed above, it proves that the plaintiff's land is situated towards eastern side abutting to the Marali-Gundur Road.
32. DW.3 has admitted that since the lands are exchanged, due to inadvertence, in this regard DW.3 has not made any petition for rectification or complaint. Therefore, DW.3 knew the fact that his father's land is situated towards western side and the plaintiff's vendor's land is situated towards eastern side.
33. Further, upon considering the evidence of DW.2 who is defendant, who has admitted that her husband has
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 purchased the property in her name and before purchasing the land he has verified on which side the land is coming and accordingly survey was conducted, maps were prepared and thereafter purchased the land from children of Ayyappa. Therefore, the defendant knew very well on which side she has purchased the land. Therefore it is proved that the defendant is trying to take advantage of error committed in mentioning the boundary in Ex.D.2 sale deed. Further, DW.2 has admitted in the cross-examination that in the year 2002 when the officials of survey department have come to survey the land, they have issued notice and the defendant was issued notice and she has not objected for survey. When the plaintiff has purchased the land, he had applied for survey of the land and accordingly survey officials came to the spot and surveyed the land, the defendant has not objected for the survey and had not questioned the survey conducted and the map prepared. Therefore this goes to prove that the survey sketch and map are proved to be relevant and admissible as the survey conducted is admitted by the
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 husband of defendant DW.2. DW.1 is the wife of DW.2. Therefore, the plaintiff has proved the case.
34. The trial Court has assigned correct reasons while appreciating the evidence on record as discussed above. As per section 36 of the India Evidence Act, map and sketches are found to be relevant coupled with presumption can be raised as per section 83 of the Act, which are corroborated by the evidence of DW.2 and DW.3 as discussed above. But the First Appellate Court has not discussed anything on this aspect. The First Appellate Court has simply swayed away by the entries made in Ex.D.2 regarding showing boundaries. Just because either the plaintiff or his vendor have not taken recourse for rectification of the sale deed, that does not mean that the entries in the sale deeds are gospel truth.
35. When the plaintiff has proved wrong committed in mentioning the boundary in Ex.D.2 on the basis of the above discussed evidence, the record prepared in usual official recourse are found to be relevant and admissible as presumption is raised regarding survey sketch and maps as discussed above as per section 36 and 83 of Indian Evidence
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 Act. Further, the above said evidence are corroborated by evidence of DW.2 and DW.3 themselves. Therefore the trial Court is correct in appreciating the evidence on record, but the First Appellate Court has not discussed anything on this aspect except swaying away itself by entries made in Ex.D.2 sale deed. Further, the First Appellate Court has merely cited some judgments but none of them are from the Courts of India; they are the judgments referred by the First Appellate Court though none of the parties have placed reliance on it. But the First Appellate Court on its own has placed reliance on the judgment of Myanmar, etc., which are not at all found to be having connection with the case and the principle of law involved in the case.
36. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside. Accordingly the judgment and decree passed by the trial Court is liable to be confirmed. Hence I answer the substantial questions of law No.1 in the negative and substantial question of law No.2 to the effect that the defendant cannot take advantage of Ex.D.2 sale deed in the background of the other materials
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NC: 2024:KHC-D:12839 RSA No. 5008 of 2009 available on record as discussed above. Therefore the First Appellate Court is found to be having perverse approach in appreciating the evidence on record. Therefore having answered the substantial questions of law as above discussed supra, the appeal is liable to be allowed. Hence, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 03.10.2008, passed in R.A.No.8/2008, by the Civil Judge (Sr.Dn.) and JMFC, Gangavathi, is hereby set aside.
iii) The judgment and decree dated 23.02.2008, passed in O.S.No.19/2006, by the Civil Judge (Jr.Dn.), Gangavathi, is hereby confirmed.
iv) No order as to costs.
v) Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
MRK
CT:GSM
List No.: 2 Sl No.: 17