Karnataka High Court
K S Javarappa S/O Singari Gowda vs B Ramaiah on 4 April, 2017
Author: L.Narayana Swamy
Bench: L Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE L NARAYANA SWAMY
R.F.A.NO.1325/2005 (DEC & INJ)
BETWEEN
SRI K.S. JAVARAPPA
S/O SINGARI GOWDA
AGED ABOUT 70 YEARS
I MAIN ROAD,
SHARADAMMA NAGARA
JALAHALLI VILLAGE
BANGALORE-3. ... APPELLANT
(BY SRI T.SESHAGIRI RAO, ADVOCATE)
AND
SRI B RAMAIAH
SINCE DECEASED BY LRs.,
a. SMT. NANJAMMA
D/O LATE B.RAMAIAH
AGED 44 YEARS
b. SMT. R SARASWATHAMMA
D/O LATE B RAMAIAH
AGED 49 YEARS
(a) AND (b) ARE
RESIDING AT No.200,
MARUTHI NILAYA
5TH CROSS,
BAHUBALINAGAR,
PATEL LAYOUT
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JALAHALLI VILLAGE,
BANGALORE-13
c. SMT. R. SUJATHA
D/O LATE B.RAMAIAH
AGED 34 YEARS
NO.111, BATGALOOR,
JALAHALLI
BANGALORE-562 149. ...RESPONDENTS
(BY SRI PRADEEP NAIK.K, ADVOCATE FOR C/R1(B)
NOTICE TO R1 (A AND C) IS HELD SUFFICIENT VIDE
ORDER DATED 30.03.2011)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF
THE CODE OF CIVIL PROCEDURE READ WITH SECTION 96
OF CPC AGAINST THE JUDGMENT AND DECREE DATED
28.07.2005 PASSED IN O.S.No.5747/1997 ON THE FILE
OF THE XXIV ADDITIONAL CITY CIVIL JUDGE, BANGALORE
(CCH-6), DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The defendant is in appeal assailing the judgment dated 28.07.2005 passed in O.S. No.5747/1997 on the file of XXIV Additional City Civil Judge, Bengaluru city (CCH No.6).
2. The respondents herein are the plaintiffs. Initially, the original plaintiff, B. Ramaiah, filed the suit for 3 the relief of permanent injunction restraining the defendant - appellant herein and his agents from interfering with his peaceful possession and enjoyment of site No.3 measuring 54 feet East to West and 30 feet North to South formed in Sy. No.69/6 of Jalahalli village, Yeshwanthapura hobli, Bengaluru North Taluk. Subsequently, the plaintiff filed an application for amendment of plaint to include the relief of declaration, which was allowed on 21.08.2000. The original plaintiff pleaded that the land in Sy.No.69/6 measuring 25 guntas was his ancestral property and it was allotted to the share of his father, Sri Byanna, under the registered partition deed dated 20.04.1927 and the same had fallen to his share under the registered partition deed dated 06.02.1952. He formed sites in the said land and sold some of the sites to third parties while retaining site Nos.2, 3 and 6. He was the owner in possession of site No.3, which is the subject matter of the suit. According to the plaintiff, the defendant - appellant, without any manner of right, title or interest over site No.3, has been making regular efforts to interfere with the peaceful possession 4 and enjoyment of the plaintiff and accordingly, he filed the suit for permanent injunction and declaration. During the pendency of the suit, the original plaintiff died and his legal representatives, who are the respondents herein, were brought on record.
3. The defendant - appellant filed the written statement admitting the fact that the original plaintiff's father, Byanna, had got the property in Sy. No.69/6 measuring 25 guntas under the registered partition deed dated 20.04.1927 and the same had fallen to the share of the original plaintiff in a family partition. However, it is contended that the original plaintiff sold the said property in favour of Byrappa under registered sale deed dated 01.10.1958, who in turn has sold the same to Smt. Munithayamma, the mother of the original plaintiff. According to the defendant, Smt. Munithayamma has formed sites in the said land sold and she has sold site No.3, which is the suit schedule site, in favour of Gopinath Pai under registered sale deed dated 24.06.1964 (wrongly mentioned as 26.06.1964 in the written statement) to 5 which the original plaintiff has also affixed his signature as a consenting witness. The defendant has purchased the site from Gopinath Pai and in that regard, he has executed an agreement of sale, general power of attorney and has sworn to an affidavit for having received the consideration amount on 03.02.1986. Since the defendant is the absolute owner in possession of the suit schedule site, plaintiffs are not entitled to any relief and accordingly, sought for dismissal of the suit.
4. The trial Court after considering the pleadings of the parties, framed four issues and an additional issue. In support of his case, the original plaintiff got examined himself as PW.1 and relied upon the documents, namely, certified copy of the partition deed dated 20.04.1927, certified copy of partition dated 06.02.1952, rough sketch of layout plan and photocopy of police complaint as per Exs.P1, P2, P3 and P4 respectively. Plaintiff No.2 got examined herself as PW.2 and got marked RTC extract for the year 2004 and Encumbrance certificate for the period 6 from 01.04.1989 to 20.01.2004 as per Exs.P5 and P6 respectively.
5. The defendant - appellant herein examined himself as DW.1 and relied upon the documents viz., photocopy of general power of attorney executed by Gopinath Pai in favour of the defendant dated 03.02.1986, photocopy of the affidavit of Sri Gopinath Pai dated 12.02.1986, photocopy of sale deed dated 24.06.1964 executed by Smt.Munithayamma in favour of Gopinath Pai, photocopy of encumbrance certificate for the period from 24.04.1964 to 24.04.1997 in respect of the suit schedule site, photocopy of the sale deed dated 08.01.1965 executed by Smt.Munithayamma in favour of the original plaintiff, photocopy of the layout plan of the suit schedule property and photographs, which were got marked as per Exs.D1 to D7 respectively.
6. The trial Court considering the respective case of the respective parties, by judgment dated 28.07.2005, 7 decreed the suit of the plaintiffs. Being aggrieved by the same, the defendant has preferred this first appeal.
7. The learned counsel for the appellant herein, defendant in the Court below, submitted that the original plaintiff - Sri B. Ramaiah had sold 25 guntas of land in Sy. No.69/6, which had fallen to his share by virtue of registered partition deed dated 06.02.1952, in favour of his father, Byanna, under the registered sale deed dated 10.10.1953. Thereafter, late Byanna had sold the said land in favour of one Byrappa under the registered sale deed dated 12.11.1953. Subsequently, Byrappa has sold the said land in favour of Smt.Munithayamma, wife of Byanna, under the registered sale deed dated 01.10.1958. Smt. Munithayamma after purchasing the said land, formed sixteen sites and has sold site Nos.1, 3, 4, 5, 7, 8, 10, 12 and 15 in favour of third parties while retaining site Nos.2, 6, 9, 11, 13, 14 and 16. So far as site No.3, which is the suit schedule property is concerned, Smt. Munithayamma has sold the same to Gopinath Pai under the registered sale deed dated 24.06.1964. Smt. 8 Munithayamma has sold site Nos.2, 6, 9, 11, 13, 14 and 16 in favour of the original plaintiff, B. Ramaiah under the registered sale deed dated 08.01.1965. Gopinath Pai, in turn, has executed an agreement of sale on 30.08.1985 in favour of the appellant - defendant agreeing to sell site No.3, which is the suit schedule site, for consideration of Rs.2,000/-, out of which Rs.1,500/- was paid on the said day and the remaining amount of Rs.500/- was agreed to be paid within six months from the date of the agreement. Subsequently, Gopinath Pai has executed a general power of attorney in favour of the defendant - appellant on 03.02.1986 and has also sworn to an affidavit for having received sale consideration on 03.02.1986 and on the said day, defendant - appellant was put in possession of the suit schedule site. The learned counsel for the appellant submitted that the appellant could not produce the original documents before the Court below and only photocopy of general power of attorney dated 03.02.1986 and sale deed dated 24.06.1964 were produced before the Court below. Therefore, he has filed I.A. No.1/2005 seeking permission to produce certified copy of sale deeds dated 10.10.1953, 9 12.11.1953, 01.10.1958 and 08.01.1965 and originals of sale deed dated 24.06.1964 (wrongly mentioned as 26.06.1964 in I.A. No.1/2005), agreement dated 30.08.1985, general power of attorney dated 03.02.1986 and affidavit dated 03.02.1986.
8. The learned counsel for the appellant further submitted that the plaintiffs have failed to prove that they are in possession of the suit schedule site and as per the pleadings at para Nos.3, 4 and 5 of the plaint, the original plaintiff himself had stated that he continued to be in possession of the suit property since 1952 and by virtue of the same, he has acquired title to the same. Though the original plaintiff - B. Ramaiah had knowledge of execution of the sale deed dated 24.06.1964 by Smt. Munithayamma in favour of Gopinath Pai conveying the suit schedule site and had affixed his signature to the said deed as a witness, he had suppressed the said material fact in the plaint. In view of the same, the question of plaintiffs claiming injunction against the defendant does not arise and plaintiffs' plea for the relief of declaration is not based 10 on any material fact. Though the plaintiffs have not proved their case for relief of possession and declaration, the Court below has committed an error in decreeing the suit. Hence, the learned counsel sought for setting aside of the impugned judgment of the Court below.
9. Learned counsel for the respondent No.1(b) - plaintiff No.1(b) submitted that the defendant - appellant has not produced the original sale deed dated 24.06.1964 executed by Smt.Munithayamma in favour of Gopinath Pai and has only produced photocopy of the same before the Court below. Furthermore, he did not produce the original sale deed dated 10.10.1953 executed by the original plaintiff - Sri B. Ramaiah in favour of late Byanna and the sale deed dated 12.11.1953 executed by Byanna in favour of Byrappa as also the sale deed dated 01.10.1958 executed by Byrappa in favour of Smt.Munithayamma before the Court below. It is not the case of the defendant
- appellant that the said documents were not in his possession. The learned counsel has disputed the general power of attorney executed by Gopinath Pai in favour of 11 the appellant. Therefore, learned counsel submitted that if I.A.No.1/2005 for production of additional documents is allowed, the matter is to be remanded for fresh consideration by the Court below.
10. The learned counsel further pointed out that there is inconsistency in the evidence of defendant - DW.1 as in his cross-examination, he has admitted the fact that he has not encroached on site No.3 and that Gopinath Pai has not given him the original sale deed. Even though DW.1 has deposed in his cross-examination that he would summon Gopinath Pai and examine him, no steps have been taken to examine him before the Court below. Under the circumstances, learned counsel for the respondent No.1(b) sought for dismissal of this appeal.
11. Heard both the learned counsels and perused the material on record. The points that arise for consideration in this appeal are as under:
1. Whether the Court below has committed an error in decreeing the suit ?12
2. Whether the appellant - defendant has proved factum of his possession in respect of the suit schedule property since 1986 till today?
I answer the above points in the negative against the appellant for the following:
REASONS
12. The appellant is aggrieved by the judgment of the Court below decreeing the suit filed by the plaintiffs. The suit was filed by the original plaintiff for the relief of permanent injunction. Subsequently, he filed an application for amendment of plaint in order to include the relief of declaration and the same was allowed. During pendency of the suit, the original plaintiff died and his legal representatives were brought on record. The Court below has considered the case of the parties in respect of declaratory relief and also injunction. Though the appellant - defendant contends that he is the owner in possession of the suit property by virtue of the agreement of sale dated 30.08.1985, wherein Gopinath Pai has agreed 13 to sell the suit schedule site in his favour, general power of attorney dated 03.02.1986 executed by Gopinath Pai in his favour and affidavit sworn to by Gopinath Pai on 03.02.1986 with regard to receipt of sale consideration, he has not produced the said documents before the Court below. Under the circumstances, a legal presumption is to be drawn against the appellant - defendant that he is in no way concerned with site No.3 as he has not produced any document to prove his title. When such is the legal inference to be drawn, the question of remanding the matter does not arise. A relief-oriented approach has to be adopted and relief cannot be denied on the basis of the technicalities. If it is the case of the appellant - defendant that Gopinath Pai entered into an agreement of sale with him and has put him in possession of the suit property on 03.02.1986, nothing prevented him from summoning and examining Gopinath Pai before the Court below in support of his case. Since the defendant - appellant has not chosen to examine Gopinath Pai, who is said to have executed the agreement of sale in his favour and is said to 14 be in possession of the relevant documents, the question of remanding this matter does not arise.
13. The defendant - appellant in support of his case has filed I.A. No.1/2005 seeking permission for production of additional documents by way of evidence before this Court. He has produced certified copy of the sale deed dated 10.10.1953 executed by the original plaintiff - B. Ramaiah in favour of his father, Byanna, in respect of Sy. No.69/6 measuring 25 guntas and certified copy of the sale deed dated 12.11.1953 executed by Byanna in favour of Byrappa. It is his further case that Byrappa, who purchased the property on 12.11.1953, in turn, sold the same to Smt. Munithayamma on 01.10.1958. The certified copy of the said sale deed has been produced before this Court. It is stated that she has formed sites in Sy. No.69/6 and sold some of the sites including site No.3, which is the suit schedule property, to third parties and retained certain sites. This fact has been highlighted by the learned counsel for the appellant and he submitted that since site No.3 carved out of Sy. No.69/6 15 has been sold by Smt. Munithayamma in favour of Gopinath Pai under the registered sale deed dated 24.06.1964, the question of plaintiffs seeking injunction and declaratory relief against the appellant - defendant does not arise. This point has been lost sight of by the Court below. In order to appreciate the said submission, the basic requirement to be met by the appellant - defendant is that he has to prove the agreement of sale and general power of attorney executed by Gopinath Pai. Though he has deposed in his cross-examination that Gopinath Pai would be summoned and he would be examined, no steps have been taken in that regard. Except producing photographs as per Ex.D7 to prove his possession since 30.08.1985, the appellant - defendant had not relied upon on any original and relevant documents. This goes to show that the defendant - appellant has no case on merit.
14. The learned counsel for the appellant has relied upon the judgment of the Hon`ble Supreme Court in the matter of NORTH EASTERN RAILWAY 16 ADMINISTRATION, GORAKHPUR vs. BHAGWAN DAS (DEAD) BY LRS., reported in (2008) 8 SCC 511, more particularly the observations made in para Nos.13, 15 and 20 of the said judgment, which read as under:
"13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 C.P.C. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are :
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub rule (1)], or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time 17 when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or
(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. [clause (b) of sub-rule (1)].
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15. Again in K. Venkataramiah v. A. Seetharama Reddy (AIR 1963 SC 1526:
(1964) 2 SCR 35) a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case (AIR 1931 SC
143) pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.18
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20. In any event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in the light of the legal position, briefly set out hereinabove. In view of the aforenoted factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained."
The Apex Court has held that additional evidence can be admitted by the Appellate Court only when the conditions prescribed under Order 41 Rule 27 of the Code of Civil Procedure, 1908, are satisfied. In order to permit the appellant to produce the documents stated in I.A. No.1/2005, the appellant has to satisfy the ingredients of sub clauses (i) and (ii) of Order 41 Rule 27 of the CPC. He has to satisfy clause (i), namely, that he should establish that the Court below whose decree is the subject matter in 19 the appeal had refused to admit evidence, which ought to have been admitted and secondly, he should establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or that inspite of exercise of due diligence, the said documents could not be produced by him at the time when the decree appealed against was passed. Though in the affidavit, the appellant has stated the reasons for non-production of the documents before the Court below, the same does not constitute satisfactory explanation for allowing of the application. It is clear from the proceedings before the Court below that though abundant opportunity was afforded to the appellant to produce the documents now sought to be produced, he has not produced the same before the Court below. Even assuming that the said documents are beneficial to the appellant to prove his case, the matter does not warrant remand to the Court below as the appellant has slept over the matter and had not produced the said documents for more than two decades.
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15. Hence, I.A. No.1/2005 for production of additional documents filed by the appellant is rejected. Consequently, while answering the points against the appellant, the Appeal is dismissed.
In view of disposal of this appeal, I.A. No.2/2005 for stay does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE Sma