Karnataka High Court
Smt. Kamalamma vs Smt. S. T. Pushpa on 24 February, 2023
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.622/2017 (DEC/INJ)
BETWEEN:
SMT. KAMALAMMA,
W/O. KURUGODAPPA,
AGED ABOUT 51 YEARS,
HOUSE HOLD,
R/O. RAMALAYA ROAD,
JAGALURU TOWN-577 528.
... APPELLANT
(BY SRI GOPALAKRISHNAMURTHY C., ADVOCATE)
AND:
1. SMT. S.T.PUSHPA,
W/O B. VIDYANATH,
AGED ABOUT 54 YEARS,
HOUSEHOLD,
NEHARU ROAD, JAGALURU TOWN,
DAVANAGERE DISTRICT-577 528.
2. PATTANA PANCHAYATH,
JAGALURU TOWN,
REPRESENTED BY ITS CHIEF OFFICER,
JAGALURU TOWN,
DAVANAGERE DISTRICT-577 528.
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3. THE DEPUTY COMMISSIONER,
DAVANAGERE DISTRICT,
DAVANAGERE-577 502.
... RESPONDENTS
(BY SRI RAVISHANKAR SHASTRY G., ADVOCATE FOR
SRI K.A.CHANDRASHEKARA, ADVOCATE FOR R1;
SMT. H.R.ANITHA, HCGP FOR R3;
R2-SERVED & UNREPRESENTED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2016
PASSED IN R.A.NO.54/2014 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
06.06.2014 PASSED IN O.S.NO.33/2009 ON THE FILE OF THE
CIVIL JUDGE AND JUDICIAL FIRST CLASS MAGISTRATE,
JAGALULRU.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.02.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree dated 18.10.2016, passed in R.A.No.54/2014, on the file of the Principal Senior Civil Judge, Davanagere and to confirm the judgment and decree dated 06.06.2014, passed in O.S.No.33/2009, on the file of the Civil Judge and Judicial First Class Magistrate, Jagalur.
2. The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule property originally 3 belonged to Krishna Reddy and she had purchased the same under registered sale deed dated 14.02.1994 for Rs.12,000/-. The suit schedule property mentioned in the sale deed is measuring east-west 40 feet instead of 30 feet. The defendant No.3 has no semblance of right, title and interest over the suit property and in collusion with defendant No.1, she got the khatha of the suit property changed to her name based on the dismissal of the suit filed by the plaintiff in O.S.No.53/2007 against the respondent for permanent injunction. After disposal of the said suit, on the basis of the created documents and without the knowledge of the plaintiff, defendant No.1 has changed the khatha of the suit property to the name of defendant No.3. It is contended by defendant No.3 that by virtue of the inspection made by the Assistant Commissioner, Harapanahalli on 23.08.2003, the property comes within the premises of Jagalur Government Hospital. The property purchased in the auction in 1958 and the suit property are different. The plaintiff got issued notice to the defendants under Section 284 of the Municipality Act and called upon them to change the khatha of the suit property in favour of the 4 plaintiff and no action was taken by defendant Nos.1 and 2. Hence, the plaintiff was constrained to file the suit.
3. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement. The defendant No.1 denied the allegations made by the plaintiff that the property is purchased under registered sale deed dated 14.02.1994. The dismissal of suit in O.S.No.53/2007 is admitted, but the allegations made in the plaint that the khatha of the suit property changed to the name of defendant No.3 on the basis of created document is specifically denied. It is contended that site No.2 measuring 48 x 50 feet situated behind government Hospital bounded on the east - site No.3, west - site No.1, north
- conservancy and south - conservancy was sold by the municipality on 23.04.1958 in public auction to Mallikarjunappa. It is contended that in this behalf resolution is passed on 20.06.1958 by Pattana Panchayath. The defendant No.1 has not issued grant certificate to Krishna Reddy. Krishna Reddy had no semblance of right, title and interest in the suit property. On the basis of the false document, the plaintiff has filed the suit. The plaintiff has no right over the suit property on the basis of the sale deed. Hence, prayed to dismiss the suit.
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4. The defendant No.3 filed the written statement contending that on 20.06.1958, defendant No.1 sold as many as 60 sites and at that time, site No.2 was sold to the father of defendant No.3 Mallikarjunappa for a price of Rs.440/- under auction. On the basis of the said fact, defendant No.1 gave a sale certificate to the father of defendant No.3 on 18.07.1958 in respect of site No.2 measuring east-west 40 feet, north-south 50 feet and boundaries mentioned as stated by defendant No.1 in the written statement. The father of defendant No.3 passed away about seven years ago and after his death, his legal heirs succeeded to the said property. Late Mallikarjunappa was an illiterate and he had no knowledge to change the khatha of the property to his name. The father of the plaintiff was the President of Pattana Panchayath, at that time, the khatha was got changed in the name of Krishna Reddy and thereafter the plaintiff took the sale deed from Krishna Reddy. The said Krishna Reddy was not having any right, title and interest to sell the same including the suit property. The father of defendant No.3 purchased this property and he was the owner and in possession of the same. After the death of Mallikarjunappa, the 6 present defendant No.3 is in possession and enjoyment of the suit property. Hence, prayed the Court to dismiss the suit.
5. The Trial Court based on the pleadings of the parties, framed the following issues:
1. Whether the plaintiff proves that she is the owner in possession of the suit property?
2. Whether the plaintiff proves the alleged cause of action for filing the suit?
3. Whether defendant No.3 proves that she has become owner to the suit property by succession, as her father had purchased the same?
4. Whether the plaintiff is entitled for the relief sought for?
5. What order or decree?
6. The plaintiff in order to substantiate her case, examined herself as P.W.1 and got examined three witnesses as P.W.2 to P.W.4 and got marked the documents at Exs.P.1 to 14.
To resist the claim of the plaintiff, defendant No.3 examined herself as D.W.1 and one witness is examined as D.W.2 and got marked the documents at Exs.D.1 to 24. The Trial Court after 7 hearing both the sides answered issue Nos.1, 2 and 4 in the negative and issue No.3 in the affirmative and dismissed the suit of the plaintiff and comes to the conclusion that defendant No.3 has proved that she has become the owner of the suit schedule property by succession as her father had purchased the same.
7. Being aggrieved by the judgment and decree of the Trial Court, the plaintiff filed R.A.No.54/2014. The First Appellate Court on re-appreciation of the grounds urged in the appeal, formulated the points whether the appellant has made out sufficient ground that the Trial Court has not properly appreciated the facts and evidence of the parties. Whether the appellant has made out sufficient grounds that the judgment and decree of the Trial Court is perverse, capricious and arbitrary and whether it requires interference of the Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, allowed the appeal and set aside the judgment and decree of the Trial Court.
8. Being aggrieved by the divergent finding, the present appeal is filed. The learned counsel for the appellant would contend that the First Appellate Court has not considered 8 that even though respondent No.1 filed the suit in O.S.No.53/2007 for bare injunction against the appellant and other respondents and issue was framed whether the plaintiff proved that she is the owner in possession and enjoyment of the suit schedule property as on the date of the suit and the Court held negative in respect of the said issue and the plaintiff had not challenged the judgment and decree by filing any appeal and the same is binding without challenging the same she filed declaration suit in respect of the same property. When the question was involved with regard to whether the plaintiff proves that she is the owner in possession of the suit property and the same is answered as negative. The First Appellate Court ought not to have allowed the appeal putting the burden on defendant No.3/appellant herein, which is not sustainable in the eye of law. The First Appellate Court without discussing the evidence of the plaintiff and the admission given by the plaintiff, ought not to have reversed the finding of the Trial Court. It is contended that the claim of the plaintiff is that she had purchased the property in terms of Ex.P.11 from Krishna Reddy, who is the father-in-law of the plaintiff and the said Krishna Reddy had not purchased the property from the Town Municipality, Jagalur and 9 not obtained any title from Town Municipality, Jagalur. It is contended that the father of the plaintiff was the President of the Town Municipality and simply changed the khatha of the suit schedule property in the name of Krishna Reddy, who is his relative and colluding with each other created the alleged sale deed Ex.P.11. The First Appellate Court failed to take note of the title of the vendor of the plaintiff. Inspite of it, reversed the judgment of the Trial Court. This Court while admitting the second appeal has framed the following substantial questions of law:
i) Whether the First Appellate Court was right in law in holding that site No.2 claimed by the appellant (respondent No.3) is not in existence as an open site in the light of the admission made by PW2 and PW4?
ii) Whether the First Appellate Court was right in law in holding that the plaint schedule property and the property claimed by the appellant (respondent No.3) are not one and the same?
iii) Whether the First Appellate Court was right in law in not taking into consideration that the earlier suit filed by the plaintiff in O.S.No.53/2007 for the relief of injunction has 10 been dismissed for want of identity of the property?
iv) Whether the First Appellate Court was justified in holding that the plaintiff has proved that he is the owner in possession and enjoyment of the suit property?
v) Whether the First Appellate Court was right in law in casting burden of proving title of the suit property on the appellant (respondent No.3)?
vi) And to consider any other question of law,
which may arise for consideration while
hearing the appeal.
9. The learned counsel for the appellant in his
argument would vehemently contend that the First Appellate Court committed an error in reversing the finding of the Trial Court and the Trial Court rightly comes to the conclusion that the plaintiff has not made out a case. The learned counsel would contend that when the plaintiff has sought the relief of declaration and injunction, she has to make out the case of title in respect of the suit schedule property. It is the contention of the plaintiff before the Trial Court that she had purchased the property from P.W.2 vide sale deed dated 14.02.1994 and the 11 same is measuring 30 x 40 feet and the same is a vacant site.
While selling the property, the property number is mentioned as 555, old No.768 of Jagalur Town. The learned counsel would contend that the Trial Court comes to the conclusion that the plaintiff has not made out any ground to grant the relief of declaration and injunction and dismissed the same. The Appellate Court committed an error in reversing the finding of the Trial Court ignoring the admission elicited from the mouth of P.W.1. The learned counsel submits that the very plaintiff had earlier filed the suit in O.S.No.53/2007 for the relief of permanent injunction in respect of the very same property and the same was dismissed and the said judgment was also challenged and appeal was also dismissed. The present suit is filed for the relief of declaration in 2009 and the substantial question of law which arises for the consideration of this Court is whether the First Appellate Court was right in law in holding that site No.2 claimed by the appellant/defendant No.3 is not in existence as an open site in the light of the admission made by P.W.2 and P.W.4. The First Appellate Court committed an error in coming to the conclusion that the suit schedule property and the claim made by the defendant/appellant are not one and the 12 same and fails to make note of the earlier suit in O.S.No.53/2007, which was filed for the relief of injunction has been dismissed for want of identity of the property.
10. The First Appellate Court committed an error in coming to the conclusion that the plaintiff has proved that she is the owner in possession and enjoyment of the suit property. The learned counsel contend that the First Appellate Court shifted the burden on the defendants instead of the plaintiff. The learned counsel contend that the measurement is different from the sale deed and also the schedule mentioned in the suit. The learned counsel contend that Section 11 attracts and subsequent suit suffers from res judicata. The learned counsel contend that the very title of the plaintiff was denied in the written statement filed by D.W.1 as well as defendant No.3 and there was no any title to said Krishna Reddy and hence he cannot convey any better title to the plaintiff and no documents to show that Krishna Reddy was having any documents to show that he had title to sell the property and the finding of the First Appellate Court is erroneous. The Trial Court in detail discussed in paragraph No.20 and assigned the reasons and in Ex.P.11, which was relied upon by the plaintiff, nothing is stated with 13 regard to source of title. The very approach of the First Appellate Court that site No.2 which is claimed by the appellant is not in existence is erroneous and the documents are produced in respect of the suit schedule property by the defendant and in the sale deed Ex.P.11, it is mentioned as east to west 40 feet, north to south 30 feet. In the plaint in O.S.No.33/2009, it is mentioned as 30 x 40 feet. The First Appellate Court fails to take note of the admission of P.W.1 to P.W.4 and the ownership in both the suits considered the same and earlier also title was disputed and earlier suit was also dismissed. Inspite of dismissal of earlier suit, the First Appellate Court reversed the finding of the Trial Court.
11. The learned counsel in support of his arguments relied upon the judgment of this Court in the case of K. GOPALA REDDY v. SURYANARAYANA AND OTHERS reported in 2004 (1) KCCR 662, wherein this Court held that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party, who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff.
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12. The learned counsel also relied upon the judgment of the Apex Court in the case of SULOCHANA AMMA v.
NARAYANAN NAIR reported in (1994) 2 SCC 14 and contend that injunction suit, title in issue, decree of Court based on equitable relief of injunction operates as res judicata in later suit based on title between the same parties. The Apex Court held that Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or an issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent Court or Tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a competent Court to try the subsequent suit. The issue must directly and substantially arise in a later suit between the same parties or their privies. The technical aspect, for instance, pecuniary or subject-wise competent of the earlier forum to adjudicate the subject-matter or to grant reliefs sought in the subsequent litigation, should be immaterial when the general doctrine of res judicata is to be invoked.
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13. The learned counsel referring this judgment would contend that when the matter has already been decided in a suit for permanent injunction and merely because the relief is sought for declaration and injunction, the principle of res judicata is aptly applicable to the case on hand and hence the judgment and decree of the First Appellate Court is liable to the reversed.
14. Per contra, the learned counsel for respondent No.1/plaintiff would vehemently contend that the property was purchased under the sale deed Ex.P.11 dated 14.02.1994 and the measurement of site is 30 x 40 feet. The defendant No.3 claims that her father had purchased the property in terms of Ex.D.1 dated 18.07.1958. The learned counsel would contend that the boundary is different of plaint property. The learned counsel would contend that in the sale deed of defendant No.3, measurement is mentioned as 40 x 50 feet and east - site No.3, west - site No.1, north - conservancy and south - municipality. In respect of suit schedule property east is site of Karibasappa and West - conservancy, north - road and south - municipal conservancy. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record rightly comes 16 to the conclusion that the properties are different. The First Appellate Court also taken note of the report Ex.P.1 and having taken note of the said report, it is clearly mentioned that in defendant No.3's property already hospital was constructed and both are different properties. The First Appellate Court also taken note of evidence of P.W.2, who is the vendor of the plaintiff. The defendants not sought any relief before the Court. The First Appellate Court also taken note of evidence of P.W.4, who is the Chief Officer of Municipality. He categorically contend that both the properties are different and the counsel contend that Ex.D.1 is a manipulated document. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, in paragraph No.22 rightly comes to the conclusion that the plaintiff has made out a case to grant the relief and the reasons are given while reversing the finding of the Trial Court. The sale deed Ex.P.1 of the plaintiff has not been challenged and hence it does not require any interference.
15. In reply to the arguments of the learned counsel for respondent No.1, the learned counsel for the appellant would contend that in the sale deed no averments are made with 17 regard to the acquisition of the property. The learned counsel submits that P.W.3 categorically says that they have not issued any documents of ownership in favour of Krishna Reddy. The learned counsel submits that the property was purchased by the father of the appellant in the year 1958 itself. The material does not disclose the vendor of the plaintiff has got right to convey better title in favour of the plaintiff and hence this Court has to consider the material on record. The finding of the First Appellate Court is perverse and as against the admission, the said finding is given and when perversity is found, this Court can exercise the powers and set aside the judgment and decree of the First Appellate Court.
16. The learned High Court Government Pleader appearing for respondent No.3 would contend that in the written statement specific defence was taken that the said Krishna Reddy was not having any right to dispose the suit schedule property in favour of the plaintiff. When Krishna Reddy was not having any title, he cannot convey any title in favour of the plaintiff.
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17. Having considered the substantial questions of law framed by this Court and also the contentions urged before this Court by the learned counsel for the appellant and the learned counsel for the respondents, this Court has to consider the material on record. With regard to first substantial question of law whether the First Appellate Court was right in law in holding that site No.2 claimed by the appellant is not in existence as an open site in the light of admission made by P.W.2 and P.W.4, this Court has to consider the evidence of P.W.2 and P.W.4 in order to answer substantial question of law framed by this Court.
18. P.W.2 in his evidence deposes that he had conveyed the property in favour of the plaintiff by executing the sale deed and he claims that he has got the khatha in respect of the suit schedule property in the office of defendant No.1 and he had paid the tax and he claims that he had purchased the same from defendant No.1. The plaintiff has been in possession of the suit schedule property and defendant No.3 is not having any claim in respect of the suit schedule property and he identified his signature in Ex.P.11, which is marked as Ex.P.11(a). 19
19. In the cross-examination he admits that he got the property from Jagalur Municipality and he had purchased the same for an amount of Rs.270/-. He claims that the property number is 2. He admits that municipality has given the receipt and also they have given the hakku patra and he cannot tell other than him to whom they have given the hakku patra. It is his claim that on the east there is a vacant property, on the west there is hospital compound on the north - road and on the south
- conservancy. He also mentioned the same boundary in the sale deed. He admits that in Ex.P.11 on the east he has mentioned that property of Secretary Sanaulla and also he admits that on the west he has mentioned the property of M.R. Tippeswamy's vacant land. When a suggestion was made that the same does not tally with the suit boundary, he denies the same. He claims that he had purchased the property measuring 30 x 40 feet from the municipality. He admits that in the sale deed it is mentioned as 40 x 30 feet, but he claims that it was wrongly mentioned. He admits that in Ex.P.11, site No.2 is not mentioned and he has got the documents for having sold the property by the municipality and he is not having any difficulty to produce the same. He admits that he has not given the 20 hakku patra to the plaintiff. He claims that a resolution was passed and the said resolution will be available in the municipality. He admits that he is not having any difficulty to produce that resolution. He admits that Jagalur Hospital is 8 year old. He admits that the plaintiff is his daughter-in-law and admits that the plaintiff's father was the President of Jagalur Pattana Panchayat. It is suggested that at the instance of the father of the plaintiff, khatha was transferred in his name and thereafter property was sold in favour of the plaintiff and the same was denied. It is suggested that the suit schedule property was purchased by the father of defendant No.3 in the year 1958 and he says he might have purchased. He also admits that in O.S.No.53/2007 also he has given the evidence. It is suggested that the plaintiff is his daughter-in-law and hence he is giving false evidence and the same is denied. It is suggested that defendant No.3 is in possession of the property and the same is denied.
20. In the further cross-examination, PW2 says that this property came to him before 30 years ago but he cannot tell in which year, it came to him but he admits that the said property was purchased from the municipality for Rs.260/- and not in 21 public auction. But he claims that panchayat has given hakku patra but he cannot tell on what date the said hakku patra was issued. He also admits the measurement of the property as north to south 40 feet and east to west 30 feet and also claims that panchayat has issued receipt and hakku patra but the said documents are not in his possession as he has lost the same before the selling of this property to the plaintiff and the same was not mentioned in the sale deed and there was no difficulty to mention the same in the sale deed and also admits that the plaintiff is his relative and her father is his uncle.
21. This Court has to consider the evidence PW4 who is the Chief Officer. PW4, in his evidence says that as per the application of defendant No.3, Pattana Panchayat has conducted the spot inspection and report was submitted in terms of Ex.P1. He also submits that the earlier suit filed by the plaintiff in O.S.No.53/2007 was dismissed and thereafter they changed the katha in favour of defendant No.3 based on the said judgment. He also says that Ex.D1 sale certificate was issued in favour of defendant No.3 and the same was marked as Ex.P13. He also admits that the measurement mentioned in Ex.D1 was as east to west 40 feet and south and north 50 feet and also admits that 22 the same was rectified as east to west 50 feet and north to south 40 feet. He also admits that the sale certificate was issued in favour of Mallikarjunappa and the name of S Kallavva was strike out and the same was purchased in the public auction. He also says that in Ex.D1, katha number was mentioned as 941 and the plaintiff katha as 828:828:555 and there are separate kathas in respect of both the properties. It is suggested that in collusion, the name of defendant No.3 was entered and the said suggestion was denied. It is admitted that the suit schedule property and defendant No.3's property are differentand it is also admits that in 50 x 40 feet of land which was claimed by defendant No.3, already hospital building was in existence and same was constructed 50 years ago and it is surrounded by compound.
22. This witness was subjected to cross-examination by defendant No.3. Defendant No.3, in cross-examination elicited the answer that Ex.D19 was issued by Pattana Panchayat and Ex.P1 also issued by the said Panchayath and both Ex.P1 and Ex.D19 are the copies of same document. He also admits that in Ex.D19, measurement of the land is 30 x 30 feet and in Ex.P1, measurement is mentioned as 30 x 40 and also admits that 23 entries are differ in Ex.P1 and Ex.D19.Some of the entries which were not found in Ex.D19 were also mentioned in Ex.P1. He admits that to whom the sale certificate was given from Pattana Panchayat are the owners and he also categorically admits that either to the plaintiff or to the original owner of the suit schedule property i.e., Krishna Reddy, no sale certificate was issued in their favour and also admits that as per Ex.D1, they have issued Ex.D2 and D3 and site number 2 in Ex.D1 and site No.2 found in Ex.D3 are one and the same. He admits that in Ex.P14 and P15, site number was not mentioned and also admits that in terms of Ex.P14 and P15, property was not converted. He also admits that in Ex.P1, site number and boundaries are also not mentioned and also admits that in Ex.P1, it is mentioned that in katha No.944, government doctors quarters are found to the extent of 40 x 50 feet but sketch is not prepared by the engineer conducting the survey. He admits that in Ex.D1, katha number was mentioned as 941 but in Ex.P1, katha number was mentioned as 944 and both are different properties and it is suggested that in katha No.944, government doctors quarters are found for that he replies that he cannot tell the same without looking to the documents. He also admits that in Ex.P1, it is not 24 mentioned that government quarters are constructed in katha No.941 and he also admits that the father of defendant No.3 had purchased the property in auction in respect of katha No.941 and also admits that katha No.941 was in existence and based on that katha, Ex.D2 and D3 were issued and also admits that he cannot tell how the Krishna Reddy got the suit schedule property and in the office of Pattana Panchayat, no such documents were found and also admits that while getting transfer the katha, the applicant has to furnish the documents on what basis he has obtained the said property and also admits that in Ex.P14 no information was furnished. And also admits that Ex.D4 was given from their office after getting the records from the plaintiff and defendant No.3 and after verifying the original documents, they have issued Ex.D4 and before issuing Ex.D4, the plaintiff has not furnished any documents and contents of document at Ex.D4 are correct. It is also admitted that after the death of father of defendant No.3, she has given an application to transfer the katha in her name and the katha was transferred in her name in terms of the judgment and decree passed in O.S.No.53/2007. It is also admitted that in whose name the katha was existed they will be in possession 25 and in terms of the documents, site No.2, katha No.828, assessment No.555 was in possession of defendant No.3.
23. Apart from the evidence of PW2 and PW4, this Court has to consider the evidence of PW1 who claims the relief of declaration and injunction. The plaintiff that is PW1 claims that she had purchased the property from Krishna Reddy for a sale consideration of Rs.12,000/- thereafter, she has been in possession of the suit schedule property and defendant No.3 with the help of defendant No.1 troubling the plaintiff.Defendant No.3 is a powerful person hence, got the property transferred in his name and in terms of Ex.P1 report, site Nos.1 and 2 were used for construction of quarters for government doctors. The plaintiff got marked the documents at Ex.P1 to P14.
24. PW1 was also subjected to cross-examination wherein she admitted that the suit filed by her earlier in O.S.No.53/2007 was dismissed and there was no difficulty to file an appeal against the said order. It is also admitted that Ex.P11 was also produced in O.S.No.53/2007 and though she denied that the said Krishna Reddy is her relative but in the cross- examination she admitted that in the earlier case, she has 26 admitted that he was her uncle. It is also elicited that in Ex.P11, boundaries are mentioned as on the east - Sannaulla's house but in O.S.No.53/2007, it was mentioned as on the east P B Karibasava Swamy and in the present suit, on the east, it is mentioned as house of Sannaulla and in the earlier suit it was not mentioned. It is also elicited that in the suit in O.S.No.53/2007, total area of the property was mentioned as 30 x 40 feet and in the present suit, dimension is not mentioned. However, in the plaint, it is stated that it is wrongly mentioned as east to west 30 feet and north to south 40 feet. It is also admitted that towards north to south, it is mentioned as 40 feet instead of 30 feet. It is also admitted that when the dimension was wrongly mentioned in the sale deed, not made any efforts to rectify the same. It is also admitted that earlier, directed to produce the original sale certificate and the same was not produced till date. It is also admitted that her father was the President of Jagaluru municipality in the year 1987. It is suggested that taking the advantage of the same, got it transferred the katha in respect of the property belongs to defendant No.3 and the said suggestion was denied. It is suggested that after based on the katha, in the year 1994, false 27 sale deed was created and the same was denied. However admits that plaint schedule property and neighbouring properties are belonged to the Jagaluru municipality and also admits that if any property is purchased from the municipality, they used to issue sale certificate. It is also admitted at Ex.P1 also produced in O.S.No.53/2007 and the same was marked as Ex.P2 in that suit. It is also elicited that in O.S.No.53/2007 as per Ex.P2, the measurement of the suit schedule was mentioned as 30 x 30 feet and in the sale deed it is mentioned as 30 x 40 feet. It is also admitted that in Ex.P1, the signature of defendant No.3 is not found. It is suggested that no notice was given to defendant No.3 while conducting the spot inspection and witness says that she was not aware of the same and also no information with regard to the correction made by the Assistant Commissioner in Ex.P1.
25. It is further suggested that hospital was constructed and compound was put up before selling the property to the father of defendant No.3 and witness says that she was not having any information. But witness says that municipality has shown her property but no document was produced to that effect. It is also elicited that in Ex.P9-layout plan, her property 28 door number, site number and assessment number were not mentioned. PW1 admits that in Ex.P12 and P13 found only the signature of Secretary but seal was not found. In further cross- examination she admits that if the municipality gives the grant certificate, those persons will be in possession. PW1 also admits that she knows the reason for dismissal of her earlier suit in O.S.No.53/2007. PW1 also admits that Krishna Reddy belongs to same community and PW1 cannot tell that before purchasing the property what are the documents she verified and she did not ask the said Krishna Reddy that from whom he got the property and when the same was given to him. PW1 has given the instructions to the advocate. PW1 also admits that the document at Ex.P9 was not issued by the Town Planning Authority.
26. This Court has to consider the evidence of DW1. DW1 claims that the suit schedule property is the vacant property and the same is behind the government hospital, Jagaluru and the site number is 2 measuring 40 x 50 feet and the same was purchased by her father Mallikarjunappa from Jagaluru municipality on 23.04.1958 for a sum of Rs.440/- and 29 the sale certificate was issued on 18.07.1958 and thereafter her father was in possession and after his death, she has been in possession of the suit schedule property. It is also her evidence that her father was an illiterate hence, not made the efforts to transfer the katha in his name and the plaintiff got the sale deed in 1994 creating the katha in respect of the said property and plaintiff has no title over the suit schedule property. It is also claimed that while auctioning the property, resolution was also passed on 20.06.1958 and also claims that the municipality has given the notice to the plaintiff and defendant to produce the original documents and accordingly, the documents were produced by the defendant but the plaintiff has not produced any documents and thereafter filed the suit in O.S.No.53/2007 and the same was also dismissed and no appeal was filed. The plaintiff was never in possession of the suit schedule property. The defendant also got marked the documents at Ex.D1 to D24.
27. The witness was subjected to the cross-examination. In the cross-examination, witness claims that site No.2 is measuring 50 x 40 feet and the same was purchased in the auction by her father. It is suggested that the report was given by the municipality wherein it is stated that suit schedule 30 property is nowhere concerned to the property which was purchased by her father and the same was denied. Ex.D1 got amended and the same was in terms of Ex.P12 and she cannot tell what has been written in Ex.D1.
28. The other witness is DW2 who reiterates the evidence of DW1.
29. Having considering both the oral and documentary evidence placed on record it is clear that PW1 and PW2 claim that property was auctioned but no document was placed before the Court to prove the same and the plaintiff also not disputes the fact that property was originally belonged to Jagaluru municipality and categorically admits that even though directed to produce the sale certificate, the same was not produced and only relies upon the document of sale deed which was marked as Ex.P11. The very contention of the appellant counsel that the document at Ex.P11 is created document and having considered the admission given by PW1, PW2 and PW4 it is clear that there are no documents to show that the property was granted in favour of PW2 from the Jagaluru municipality but only the katha was changed in favour of PW2 and no document was placed 31 before the Authority even for change of katha and on what basis they have claimed the katha. It is emerged in the evidence that both PW1 and DW3 were called upon to produce the document but PW1 failed to produce any document with regard to the title is concerned except the document of Ex.P11. In order to prove the title, there must be a title document and nothing is found in Ex.P11 with regard to the title of PW2 and when the municipality has not granted the property in favour of PW2 and not got transferred the katha in favour of PW2, sale of property in favour of plaintiff does not convey any title in her favour. It is also important to note that PW4-Chief Officer of municipality categorically admitted that the father of defendant No.3 had purchased the site No.2 in an auction and also Ex.D2 and D3 are consequent upon in terms of Ex.D1 and Ex.D4 endorsement was also given after calling upon the plaintiff and defendant. It is also important to note that earlier, the plaintiff had filed a suit in O.S.No.53/2007 for the relief of bare injunction and the same was dismissed. The plaintiff also not dispute the fact that the judgment and decree has attained its finality and no appeal was filed to challenge the same.
32
30. No doubt, it is elicited from the mouth of PW4 that katha was transferred in favour of defendant No.3 after the dismissal of the suit in O.S.No.53/2007 and the document of judgment and decree are also marked as Ex.D13 and D14 and plaint copy is also marked as Ex.D15. When the plaintiff was unable to prove the document of title of PW2 who is her vendor, the First Appellate Court fails to take note of the said fact into consideration even though the Trial Court was given the reasons for dismissal of the suit and erroneously proceeded to pass an order even though point was formulated that whether the appellant has made out sufficient grounds and the Trial Court has not properly appreciated the material available on record, erroneously comes to the conclusion that the judgment and decree of the Trial Court is perverse, capricious and arbitrary inspite of reasons assigned for dismissal of the suit that the property was sold in favour of the father of defendant No.3 in terms of Ex.D1 and after the death of said Mallikarjunappa who was the original allottee, the property derived in favour of defendant No.3 and given definite conclusion that the witnesses have also spoken that property was allotted in favour of the father of defendant No.3 and the sale certificate was also issued 33 in favour of said Mallikarjunappa. But the First Appellate Court has committed an error in reversing the finding of the Trial Court mainly relying upon the document at Ex.P1 wherein a report submitted stating that both are distinct property mentioning the different katha number only. It is emerged in the evidence that the katha number of defendant No.3 is 941 and the said report is also shows that the government quarters are constructed for doctors in katha No.941 and PW4 categorically admitted that katha of defendant No.3 is 941 and building is in existence in katha No.944 and not in 941. PW4 also categorically admitted that no documents of title are issued in favour of PW2 and PW1 and PW2 have categorically admit that they cannot say on what basis they claimed the title in respect of the suit schedule property and merely because katha was created and sale deed was executed in favour of PW2-Krishna Reddy, the title does not flow in favour of the plaintiff. The First Appellate Court also committed an error in relying upon the document of Ex.P9. PW1 categorically admits that Ex.P9 is not issued by Town Planning Authority and comes to the conclusion that the document of Ex.P9 indicates the property of the appellant situated in sketch, 34 boundaries as well as measurement and the said document is not an authenticated document.
31. The First Appellate Court relied upon the document of Ex.P1 and comes to the conclusion that both the properties are distinct and PW1 categorically admitted that the boundaries are not proper and not filed any application for rectification. Apart from that it is admitted that the boundaries as mentioned in the earlier suit in O.S.No.53/2007 and in the present suit are different hence, the very identification of the property is in dispute and not only the identification, even the measurement of the property claimed by the plaintiff is in dispute i.e., in one breath it is claimed as 30 x 30 feet and in another breath it is claimed as 40 x 30 feet and again it is claimed as 30 x 40 feet and no title deeds are placed before the Court. The First Appellate Court mainly relies upon Ex.P1 that the Chief Officer of respondent No.1 clearly observed in the enquiry report that suit schedule property as well as the property mentioned in the sale certificate is not one and the same.
32. It has to be noted that while preparing the report in terms of Ex.P1, no notice was issued to defendant No.3 and PW1 35 also categorically admitted that she has not aware that whether notice was given to defendant No.3 or not. But, the First Appellate Court comes to the conclusion that the said document is not challenged by respondent No.3 before the competent authority. When the plaintiff seeks the relief of declaration and permanent injunction, the First Appellate Court ought not to have relied upon the document at Ex.P1 and ought to have consider the title deed of the plaintiff and the same has not been considered but only relies upon Ex.P1and even though the witnesses have categorically admitted that site number and boundaries are not mentioned, the First Appellate Court comes to the conclusion that even though there is no site number and boundary, both are different properties and though noticed that in terms of Ex.D1, katha number was mentioned as 941 but in Ex.P1, the katha number was mentioned as 944 and the report says that in katha No.944, the government doctors quarters is in existence and hospital is in existence and instead of that when the Trial Court had given anxious consideration to the evidence of PW2 and PW4 particularly, comes to the conclusion that the plaintiff has not made out the title, the First Appellate Court erroneously comes to the conclusion that the Trial Court has 36 committed an error in dismissing the suit of the plaintiff on the basis of the documents and evidence, hence, the First Appellate Court committed an error in exercising the discretion while granting the relief of declaration and injunction when the plaintiff fails to prove the title of PW2 who is the vendor of the plaintiff.
33. It is also emerged in the evidence that the father of the plaintiff was the President of Pattana Panchayath and PW2 is the uncle of PW1 and got transferred the katha without any basis and based on the said katha, sale deed came into existence in favour of PW2 and father of the plaintiff, plaintiff and PW2 hatched a plan to knock off the property of the defendant No.3 but they have unsuccessful in the earlier suit in O.S.No.53/2007 and the First Appellate Court has committed an error in not considering the evidence of PW2, PW4 and particularly the evidence of PW1. Thus, I answer that the First Appellate Court has committed an error in not considering the evidence of PW2, PW4 and the claim of the plaintiff that she is having the right in respect of suit schedule property which is not in existence. The First Appellate Court also committed an error in coming to the conclusion that both the properties are different. Hence, I answer first and second substantial questions of law as negative. 37
34. The third substantial question of law that whether the First Appellate Court was right in law in not taking into consideration that the earlier suit filed by the plaintiff in O.S.No.53/2007 for the relief of injunction has been dismissed for want of identity of the property. Having taken note of the said fact into consideration it is not in dispute that earlier, the plaintiff has filed a suit in O.S.No.53/2007 and the same was dismissed and also it has to be noted in the present suit that the First Appellate Court while considering the issues involved between the parties taken note that defendant No.3 in the written statement specifically denied the defence that she has become owner of the suit schedule property through succession as her father had purchased the same and the same has been answered by the Trial Court as affirmative even though the suit is for the relief of declaration hence, it is clear that title has been disputed in the present suit and also given the definite finding.
35. In the earlier suit in O.S.No.53/2007, the defendant took the specific defence that the plaintiff has no right or title in respect of the suit schedule property and the Trial Court also considering the material available on record in paragraph 14 comes to the conclusion that defendant No.1 examined herself 38 as DW1 and her husband as DW2 and they have also produced the document at Ex.D1-sale certificate issued by the Town Panchayat, Jagaluru. Defendant No.2 - Town Panchayat, Jagaluru has admitted that Ex.D1 stands in the name of the father of defendant No.3 and also the documents produced by the defendants not disputed by the Town Panchayat, Jagalur and given the finding that these are the facts revealed that plaintiff and his vendor mutated the registered sale deed without having property granted in favour of PW2 and there is no exact boundary of the purchased property and existence of the said property. When such finding is given, the very approach of the First Appellate Court that the said suit was dismissed for want of identity of the property is erroneous and the very reasoning is that Ex.P1 - registered sale deed was created without any property grant in favour of PW2 who is the vendor of the plaintiff and the exact boundary of the purchased property was not proved.
36. The other substantial question of law is that whether the First Appellate Court was justified in holding that the plaintiff has proved that she is the owner in possession and enjoyment of the property. This Court while answering substantial question of 39 law Nos.1 and 2 taken note that the First Appellate Court has committed an error in re-appreciating both oral and documentary evidence placed on record and comes to the erroneous conclusion.
37. The counsel for the appellant relied upon GOPALA REDDY's case (referred supra) wherein this Court held that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party, who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff. In the case on hand also the plaintiff seeks the relief of declaration and injunction. She has to stand on her foot and not on the weakness of the defendant and burden is on the plaintiff to prove the title I.e., not only her title and also the title of her vendor and in order to show that her vendor was having title, no document is placed and hence, it is clear that her vendor was not having any title in respect of suit schedule property and except creating the katha in favour of PW2, there are no title deed. Hence, I answer this substantial question of law that First Appellate Court was not justified in holding that the plaintiff has proved that she is the 40 owner in possession and enjoyment of the suit schedule property.
38. The fifth substantial question of law is concerned, whether the First Appellate Court was in right in casting burden of proving title of the suit property on the appellant/respondent No.3 and the same is also erroneous when the party approaches the Court and who asserts that he has got title to the property, he has to prove the same. The very observation made by the First Appellate Court that burden is on the appellant is erroneous and even though the appellant is also discharged the burden of placing the document at Ex.D1 to D4 particularly, claiming the right in respect of the suit schedule property. Hence, I answer fifth substantial question of law that the First Appellate Court was not right in law in casting the burden on the appellant.
39. It is also important to note that the judgment referred by the appellant counsel in the case of SULOCHANA AMMA (referred supra) wherein the Appellate Court contend that in a injunction suit, title in issue, decree of Court based on equitable relief of injunction operates as res judicata in later suit based on the title between the same parties and in paragraph 9 41 has observed that it is settled law that in a suit for injunction, when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In the case on hand also as rightly contend by the appellant counsel that res-judicata applies and in the earlier suit in O.S.No.53/2007 as I discussed earlier, the Trial Court comes to the conclusion that sale deed at Ex.P1 is created based on only the katha document and there was no title to the vendor that is PW2 and when the said finding was also given in the earlier suit, the earlier disposal of the judgment in O.S.No.53/2007 also attracts the res judicata and on that ground also the judgment of the First Appellate Court is liable to be set aside and this Court also while admitting the appeal has held that to consider any other substantial question of law which may arise for consideration while hearing the appeal and proviso of Section 100(5) is also very clear that the Court can consider the other substantial question of law at the time of considering the appeal hence, this Court also taken note of the fact that whether the 42 earlier judgment of dismissal of the suit filed by the very same plaintiff attracts the principles of res judicata hence, given the finding that the judgment and decree of the earlier suit in O.S.No.53/2007 also attracts the res judicata and on that ground also the judgment and decree of the First Appellate Court is liable to be set aside.
40. In view of the discussions made above, I pass the following:
ORDER The appeal is allowed.
The impugned judgment and decree dated 18.10.2016 passed in R.A.No.54/2014 is set aside and consequently, the judgment and decree of the Trial Court is upheld in dismissal of the suit of the plaintiff for the relief of declaration and injunction.
Sd/-
JUDGE MD/SN