Karnataka High Court
Munimallaiah vs Madappa on 25 July, 2024
Author: V Srishananda
Bench: V Srishananda
R.S.A.No.1857/2008
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.S.A.NO.1857/2008(INJ)
BETWEEN:
1. MUNIMALLAIAH
S/O CHIKKANNA
AGED 69 YEARS
R/O DODDABETTAHALLI
BANGALORE NORTH TALUK
BANGALORE DISTRICT.
1(a) SMT.LAKSHMAMMA
W/O LATE MUNIMALLAPPA
AGED ABOUT 80 YEARS
1(b) SRI B.M.CHIKKEGOWDA
S/O LATE MUNIMALLAPPA
AGED ABOUT 56 YEARS
1(c) SMT.KAMALA
D/O LATE MUNIMALLAPPA
AGED ABOUT 54 YEARS
1(d) SMT.MUNIRATHNAMMA
D/O LATE MUNIMALLAPPA
R.S.A.No.1857/2008
2
AGED ABOUT 50 YEARS
1(e) SRI B.M.MANJUNATHA
S/O LATE MUNIMALLAPPA
AGED ABOUT 48 YEARS
1(f) SRI D.M.SRINIVAS
S/O LATE MUNIMALLAPPA
AGED ABOUT 46 YEARS
ALL ARE RESIDENT OF
DODDABETTAHALLI
VIDYARANYAPURA POST
BANGALORE NORTH TALUK
BANGALORE RURAL DISTRICT.
...APPELLANTS
(BY SRI M.R.RAJAGOPAL, SR. COUNSEL FOR SRI
H.N.BASAVARAJU, ADVOCATE)
AND
1. SRI MADAPPA
DEAD BY HIS LEGAL REPRESENTATIVES
1(a) SMT.CHANNAVEERAMMA
W/O MADAPPA
AGED ABOUT 73 YEARS
1(b) SMT.SHIVARUDRAMMA
W/O REVANNA
AGED ABOUT YEARS
R.S.A.No.1857/2008
3
1(c) SMT.SHANTHAMMA
CLAIMS TO BE THE
WIFE OF MADAPPA
AGED ABOUT 80 YEARS
1(d) RUDRAIAH
S/O MADAPPA
AGED ABOUT 41 YEARS
1(e) SRI MANJUNATH
S/O MADESH
AGED ABOUT 41 YEARS
1(f) SRI GIRISH
S/O MADAIAH
AGED ABOUT 35 YEARS
1(g) RUDRANI
W/O NATARAJA SHASTRY
AGED ABOUT 31 YEARS
2. SRI BASAPPA
S/O RUDRAMUNIYAPPA
AGE : MAJOR
3. SRI PUTTA RUDRAPPA
S/O RUDRAMUNIYAPPA
AGE : MAJOR
ALL ARE RESIDENT OF
DODDABETTAHALLI
VIDYARANYAPURA POST
BANGALORE NORTH TALUK
R.S.A.No.1857/2008
4
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI GOPAL SINGH, ADVOCATE FOR R2 AND R3;
SRI P.BASAVARAJU, ADVOCATE FOR R4;
R1(a), R1(b), R1(c), R1(d),R1(e), R1(g) ARE SERVED;
VIDE ORDER DATED 07.11.2012, SERVICE HELD
SUFFICIENT IN RESPECT OF R1(f);
SRI M.S.VARADARAJAN, ADVOCATE FOR R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DTD 17.6.08
PASSED IN R.A.NO.83/04 ON THE FILE OF THE PRL.
DISTRICT JUDGE, I/C P.O- FTC-III, BANGALORE RURAL
DISTRICT, BANGALORE, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DTD 30.1.04
PASSED IN OS 70/01 ON THE FILE OF THE ADDL. II CIVIL
JUDGE, (JR.DN), BANGALORE (R) DISTRICT, BANGALORE.
THIS APPEAL HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
R.S.A.No.1857/2008
5
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE V SRISHANANDA) The present second appeal is preferred by the unsuccessful plaintiff challenging the validity of the judgment passed in O.S.No.70/2001, dated 30.01.2004, on the file of Additional II Civil Judge (Jr.Dn), Bengaluru Rural District, Bengaluru, which was confirmed in R.A.No.83/2004, dated 17.06.2008, on the file of Fast Track Court III, Bengaluru Rural District, Bengaluru.
2. Parties are referred to as plaintiff and defendants for the sake of convenience as per their original ranking before the Trial Court.
3. Appeal came to be admitted on the following substantial questions of law:
"a) Are the judgments of the trial court and the appellate court sustainable as it appears, the defendants have been granted a decree of declaration and injunction merely on the ground that the plaintiff has failed to disprove the document Ex.D.1 when the R.S.A.No.1857/2008 6 initial burden was on the defendants who had relied on such document to prove their title.
b) Whether the Trial court is justified in granting the decree of declaration in favour of the respondent-
defendants based on the counter claim made under order 8 Rule 6A despite the fact that absolutely there are no evidence to grant such decree.
c) Whether the Trial court is justified in shifting the burden of proof on the part of the plaintiff though the defendants have made a counter claim there in seeking the decree of declaration and injunction which vitiates the impugned judgment and decree of the court below?"
4. Facts in brief which are utmost necessary for disposal of the second appeal are as under:
Plaintiff filed the suit for permanent injunction initially against the defendant Nos.1 to 3. The plaint averments reveal that original plaintiff is the absolute owner in possession and enjoyment of the land bearing Sy.No.39/2C, measuring 11 guntas, situated at Doddabettahalli, Bengaluru North Taluk (hereinafter referred to as 'suit property').R.S.A.No.1857/2008 7
5. Plaintiff claimed the title over the suit property by contending that he has purchased the suit property under the registered sale deed dated 24.01.1950 from Shivaramaiah. After purchase, he made an application to the Assistant Director of Land Records to demarcate the suit property.
6. Based on his application, a survey was conducted and boundaries were fixed in respect of the suit property along with sketch. Thereafter plaintiff claimed that he is in peaceful possession and enjoyment of the suit property by paying taxes to the revenue authorities.
7. It was the complaint of the plaintiff that defendants had no manner of right, title and interest nor possession over the suit property, tried to interfere with the plaintiffs possession over the suit property.
8. It was his specific case that on 21.01.2001, defendants tried to remove the fruits which were grown in R.S.A.No.1857/2008 8 the trees of the suit property and therefore, cause of action arose to file the suit for permanent injunction.
9. In response to the suit summons, defendants appeared before the Trial Court and filed written statement resisting the suit claim.
10. In the written statement, a counter claim was also laid in respect of the suit property by contending that the plaintiff is neither the owner nor in possession of the suit property. He also contended that suit property was purchased by father of the defendants by name Rudramuniyappa, under a registered sale deed during the year 1946 from the father of the plaintiff's by name Chikkanna. Thereafter, father of the defendants was shown in the khathedar column in the revenue records by mutating the name of the father of the defendants in pursuance of the registered sale deed executed in the year 1946. Thus defendants contended that they are in possession and enjoyment of the suit property. R.S.A.No.1857/2008 9
11. He also contended that plaintiff being son of Chikkanna, who retained the remaining land in the old Sy.No.39/2, without the knowledge of the defendants, had included his name clandestinely in respect of Sy.No.39/2C and boundaries mentioned in the original sale deed of the year 1946 executed in favour of the defendants are being existence even on the date of written statement.
12. It is also contended by the defendants that on the Eastern side of the suit property, the property was sold in favour of Shivamma and subsequently, it was sold in favour of Nanjundaiah, under the registered sale deed, wherein the boundaries of said sale deed tallies with the boundaries mentioned in the sale deed of the defendants. Therefore, defendants claim relief of declaration and permanent injunction in respect of the suit properties by paying necessary Court fee.
13. Learned Trial Judge on the basis of the rival pleadings, framed following issues:
R.S.A.No.1857/200810
"1) Whether plaintiff proves that, he is in lawful possession and enjoyment of the suit schedule property as on the date of suit ?
2) Whether plaintiff further proves the alleged interference by defendants?
3) Whether plaintiff is entitled for the relief of Permanent Injunction as sought for?
4) Whether defendants prove that they are the absolute owners of 11 guntas are east to west 40 yards and north to south 30 yards in Sy.No.39/2c at Doddabettahalli village, Yelahanka Hobli, Bangalore North Taluk?
5) Whether defendants further prove that they are in lawful possession of Sy.No.39/2c?
6) Whether defendants further prove the alleged interference by plaintiff?
7) Whether defendants are entitled for the relief of declaration as prayed for?
8) Whether defendants are entitled for the relief of Permanent Injunction as prayed for ?
9) What order or decree ?"
14. In order to establish the case of the parties, plaintiff got examined himself as P.W.1 and placed on record six documents which were exhibited and marked as R.S.A.No.1857/2008 11 Exs.P.1 to P6, comprising of sale deed dated 24.01.1950, pahani in respect of the suit property vide Exs.P.2 and P.3, tax paid receipts vide Exs.P.4 and P.6 and tippani copy vide Ex.P.5.
15. As against the evidence placed on record by the plaintiff, Madappa who was the first defendant got examined himself as D.W.1 and a witness by name Narayana Gowda as D.W.2. On behalf of the defendants, fifteen documentary evidence were placed on record, which were exhibited and marked as Exs.D.1 to D.15. Among them, Ex.D.1 is the sale deed of the year 1946, Ex.D.2 is the certified copy of the khatha extract, Ex.D.3 and D.4 being the index of lands and record of rights in respect of the suit property, Ex.D.5 and D.6 are the pahani copies, Ex.D.7 is the mutation register extract, Ex.D.8 is the endorsement issued by the revenue authorities, Ex.D.9 is yet another pahani in respect of the suit property, Ex.D.10 is the patta book extract, Ex.D.11 is the tippani copy, Ex.D.12 is the Atlas copy, Ex.D.13 is the settlement R.S.A.No.1857/2008 12 of Akarbandh, Ex.D.14 is another tippani copy and Ex.D.15 is the certified copy of record of rights.
16. Based on the oral and documentary evidence placed on record, the learned Trial Judge heard the parties in detail and has recorded a categorical finding that as per Ex.D.1 father of the plaintiff by name Chikkanna having sold the property in the year 1946 in favour of the father of the defendants by name Rudramuniyappa. Subsequent sale deed of the plaintiff in the year 1950 from Shivaramaiah did not convey any right, title or interest in respect of the suit property. Trial Court also noted that recitals of Ex.P.1 shows that 30 yards X 40 yards in Sy.No.39/1 and Sy.No.39/2 has been excluded, i.e., suit property.
17. Therefore, the learned Trial Judge held that defendants have been successful in establishing that they are the owners of the suit property vide Ex.D.1 and plaintiff is unable to show that the property purchased by him from Shivaramaiah is the suit property by placing R.S.A.No.1857/2008 13 cogent and convincing evidence on record and therefore, prays to dismiss the suit of the plaintiff.
18. While so dismissing the suit of the plaintiff, the learned Trial Judge also held that the counter claim of declaration and injunction of the defendants needs to be decreed and accordingly, decreed the suit by answering issue Nos.4 to 8 in the affirmative and issue Nos.1 to 3 in the negative.
19. Being unsuccessful in the suit, the plaintiff filed an appeal in R.A.No.83/2004 before the District Court.
20. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and raised a sole point for consideration as under:
"Who is the owner of the property measuring 11 guntas in the facts of this case?"
21. On re-appreciation of the material evidence on record, learned Judge in the First Appellate Court dismissed the appeal.
R.S.A.No.1857/200814
22. Therefore, the unsuccessful plaintiff has preferred the present second appeal.
23. Appeal came to be admitted on substantial questions of law as referred to supra.
24. Sri M.R. Rajagopal, learned Senior Counsel representing the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have failed to appreciate that the plaintiff laid his claim with regard to the title and possession in respect of the suit property based on the registered sale deed and therefore, the impugned judgments are to be set aside and appeal is to be allowed.
25. He also pointed out that both the Courts did not properly appreciate the evidentiary value of the registered sale deed dated 24.01.1950, where under Shivaramaiah has sold the suit property in favour of plaintiff and after purchase, survey was conducted and boundaries were fixed as per the recitals of the sale deed. R.S.A.No.1857/2008 15 Thus plaintiff was put in possession of the property and he was in enjoyment of the same by paying the taxes and thus the appeal needs to be allowed.
26. He also pointed out that in a suit for bare injunction, counter claim for declaration and injunction should not have entertained by the Trial Judge and therefore, the impugned judgments and decree are suffering from legal infirmity and sought for allowing the appeal.
27. He further argued that the learned Trial Judge while decreeing the suit of the defendants for the counter claim, wrongly placed the burden on the plaintiff to establish that Ex.D.1 did not convey right, title and interest to the suit property.
28. He also pointed out that in a suit for permanent injunction filed by the plaintiff, the defendants ought not to have sought for declaration and an R.S.A.No.1857/2008 16 independent suit should have been filed by the defendants and thus, sought for allowing the appeal.
29. He further argued that the contents of Ex.P.1 and Ex.D.1 would go to show that suit property was the subject matter of Ex.P.1 and property in Ex.D.1 is not the suit property and therefore, dismissing the claim of the plaintiff by Trial Court and upheld by the First Appellate Court, is suffering from legal infirmity and thus, sought for allowing the appeal.
30. Per contra, counsel for respondents supported the impugned judgments.
31. It is also argued on behalf of the respondents that the substantial questions of law for which the appeal came to be admitted are to be held against the appellant, in view of the fact that there is a mention in Ex.P.1 itself that the sale of the land in Ex.P.1 by Shivaramaiah in favour of the plaintiff is in exclusion of 40 yards East to West and 30 yards North to South land in Sy.No.39/1 and R.S.A.No.1857/2008 17 39/2 and therefore, suit property was not the subject matter of the sale deed executed by Shivaramaiah in favour of the plaintiff and sought for dismissal of the appeal.
32. They further pointed out that the material evidence on record would be sufficient enough to hold that the property claimed by the plaintiff is not the part of the suit land which was conveyed under Ex.P.1 and thus sought for dismissal of the appeal.
33. In the light of above rival contentions, this Court perused the records keeping in view of the substantial questions of law referred to supra which were raised at the time of admitting the appeal.
34. On perusal of the material on record, it is crystal clear that as per Ex.D.1, father of the plaintiff by name Chikkanna has sold the property in the year 1946. R.S.A.No.1857/2008 18
Schedule in Ex.D.1 reads as under:
"SCHEDULE The land bearing SY.No.39/2C measuring 11 Guntas situated at Doddabettahalli Village, Yelahanka hobali, Bangalore North Taluk bounded by East : Land West : Land belongs to Manchaiah North : Land South : Land belongs to Veerabhadraiah S/o Nanjundaiah
35. Thereafter, revenue entries have been mutated and Record of Rights and Index of Lands marked at Ex.D.4 and D.3 respectively and mutation entries vide Ex.D.7 would go to show that the property purchased by the defendants from Chikkanna is being enjoyed by the defendants by paying necessary taxes to the Revenue Authorities.
36. Ex.D.11 being the tippani copy, Ex.D.12 being the Atlas copy, Ex.D.13 being the settlement Akarband, Ex.D.14 being another tippany copy, Ex.D.15 being the certified copy of Record of Rights, produced and relied on R.S.A.No.1857/2008 19 by the defendants have all come into being much earlier to the suit dispute.
37. Cause of action to file the suit according to the plaint averments is on 21.01.2001, the mutation register extract marked at Ex.D.7, clearly shows that after father of the defendants namely; Rudramuniyappa, wife of Rudramuniyappa namely Nanjamma, first defendant Madappa, second defendant Basappa, third defendant Putta Rudrappa have together made an application in respect of the land in Sy.No.39/1A for effecting the mutation entry.
38. The Revenue Officer has visited the village and drew a mahazar before the land was mutated in the names of wife and children of Rudramuniyappa.
39. Admittedly, the plaintiff did not object at that point of time with regard to the measurement of the land or possession thereof.
R.S.A.No.1857/200820
40. Pursuant to thereof, an endorsement also came to be issued by the office of the Assistant Director of Land Records.
41. The Record of Rights marked at Ex.D.9 for the year 1999-2000 shows that the land in question was in the name of Madappa, Putta Rudrappa and Munimallaiah. Munimallaiah who is the plaintiff has been shown as the person in possession vide M.R.No.14/1987-88 to the extent of 0.29 guntas of the land.
42. It is pertinent to note that Atlas copy Ex.D.12 and Akarbandh marked at Ex.D.13 also reflect the similar position.
43. Ex.D.14 is the tippany copy, where re-survey has taken place in respect of Sy.No.39 and it has been marked as Sy.No.39/2 (A), 2(B) and 2(C).
44. In all these proceedings, the plaintiff being the neighbor, has been notified by the authorities. Had there been any interference or encroachment as is alleged by the R.S.A.No.1857/2008 21 plaintiff in the plaint, nothing prevented the plaintiff to approach the Court immediately.
45. Exs.D.5 and D.6 being the Record of Rights in respect of the land in Sy.No.39/2 for the year 1971 to 1976 show that father of the plaintiff - Chikkanna and father of the defendants - Rudramuniyappa as Kabjedars, person in possession. Thus, continuously, the name of father of the defendants and later on, name of Rudramuniyappa's legal representatives have appeared in the revenue records.
46. When there is a specific recital in the sale deed where under the plaintiff has laid the claim in respect of the suit property that the sale made by Shivaramaiah in favour of the plaintiff, property to the extent of 40 yards East to West and 30 yards North to South is excluded, claim of the plaintiff that he is the owner of the suit property was rightly refused by the learned Trial Judge and confirmed by the First Appellate Court. R.S.A.No.1857/2008 22
47. If at all the plaintiff is claiming that the suit property is different from the subject matter of the property covered under Ex.D.1, it was incumbent on the plaintiff to establish that the property sold by his father in favour of the father of defendants is altogether different property and not the suit property. The burden was on him to establish and therefore, the contentions urged on behalf of the appellant that there was a wrong placing of burden by both the Courts vitiating the impugned judgments cannot be countenanced in law.
48. Having said thus, the only question that would now remain is, whether the defendants could have made a counter claim in the suit filed by the plaintiff.
49. Whether in a suit for bare injunction filed by the plaintiff counter claim of declaration and injunction can be entertained by a Court is no longer res integra in the light of the judgment of the Jag Mohan Chawla and another vs. Dera Radha Swami Satsang and others R.S.A.No.1857/2008 23 reported in (1996) 4 Supreme Court Cases, wherein their lordships have held as under:
5. The question, therefore is: whether in a suit for injunction, counter-claim for injunction in respect of the same or a different property is maintainable?
Whether counter-claim can be made on different cause of action? It is true that preceding CPC Amendment Act, 1976, Rule 6 of Order 8 limited the remedy to set-off or counter-claim laid in a written statement only in a money suit. By CPC Amendment Act, 1976, Rules 6-A to 6-G were brought on statute. Rule 6-A(1) provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damage or not. A limitation put in entertaining the counter-claim is as provided in the proviso to sub-rule (1), namely, the counter- claim shall not exceed the pecuniary limits of the jurisdiction of the court. Sub-rule (2) amplifies that such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original R.S.A.No.1857/2008 24 claim and on the counter-claim. The plaintiff shall be given liberty to file a written statement to answer the counter-claim of the defendant within such period as may be fixed by the court. The counter- claim is directed to be treated, by operation of sub- rule (4) thereof, as a plaint governed by the rules of the pleadings of the plaint. Even before 1976 Act was brought on statute, this Court in Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala [(1964) 2 SCR 567 : AIR 1964 SC 11] , had come to consider the case of suit and cross-suit by way of counter-claim. Therein, suit was filed for enforcement of an agreement to the effect that partnership between the parties had been dissolved and the partners had arrived at a specific amount to be paid to the appellant in full satisfaction of the share of one of the partners in the partnership and thereby decree for settlement of accounts was sought. Therein the legal representatives of the deceased partner contended in the written statement, not only denying the settlement of accounts but also made a counter-claim in the written statement for the rendition of accounts against the appellant and paid the court fee as plaint. They also sought a prayer to treat the counter-claim as a cross-suit. The trial court dismissed the suit and the counter-claim. On appeal, the learned Single Judge accepted the counter-claim on a plaint in a cross-suit and remitted the suit for R.S.A.No.1857/2008 25 trial in accordance with law. On appeal, per majority, this Court had accepted the respondents' plea in the written statement to be a counter-claim for settlement of their claim and defence in written statement as a cross-suit. The counter-claim could be treated as a cross-suit and it could be decided in the same suit without relegating the parties to a fresh suit. It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the plaintiff laid the suit, on his own cause of action. In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter-claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of R.S.A.No.1857/2008 26 action should arise before the time fixed for filing the written statement expires. The defendant may set up a cause of action which has accrued to him even after the institution of the suit. The counter-claim expressly is treated as a cross-suit with all the indicia of pleadings as a plaint including the duty to aver his cause of action and also payment of the requisite court fee thereon. Instead of relegating the defendant to an independent suit, to avert multiplicity of the proceeding and needless protection (sic protraction), the legislature intended to try both the suit and the counter-claim in the same suit as suit and cross-suit and have them disposed of in the same trial. In other words, a defendant can claim any right by way of a counter- claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit. Acceptance of the contention of the appellant tends to defeat the purpose of amendment. Opportunity also has been provided under Rule 6-C to seek deletion of the counter-claim. It is seen that the trial court had not found it necessary to delete the counter-claim. The High Court directed to examine the identity of the property. Even otherwise, it being an independent cause of action, though the identity of the property may be different, there arises no illegality warranting R.S.A.No.1857/2008 27 dismissal of counter-claim. Nonetheless, in the same suit, both the claim in the suit and the counter-claim could be tried and decided and disposed of in the same suit. In Mahendra Kumar v. State of M.P. [(1987) 3 SCC 265] where a Bench of two Judges of this Court was to consider the controversy, held that since the cause of action for the counter- claim had arisen before filing of the written statement, the counter-claim was maintainable. The question therein was of limitation with which we are not concerned in this case. Thus considered we find that there is no merit in the appeal.
50. Applying the above principles to the case on hand expecting the defendants to file such a suit is only rule of prudence, especially when there is a prayer of declaration. Nevertheless, defendants raising the counter claim and the learned Trial Judge raised the necessary issues as referred to supra, and parties have joined the issues in the trial and placed the evidence on record, it is too late for the appellant to contain that such a counter claim was not maintainable before the learned Trial Judge. R.S.A.No.1857/2008 28
51. When once there is a clear finding recorded by the learned Trial Judge that the property claimed by the plaintiff has been excluded in the sale deed dated 24.01.1950 executed by Shivaramaiah and said property had already been sold by father of the plaintiff - Chikkanna in favour of the defendants, the substantial questions of law on which the appeal came to be admitted will have to be held against the appellant.
52. Consequently, the judgments of the Trial Court and First Appellate Court, whereby suit of the plaintiff being dismissed and grant of declaration and injunction in favour of the defendants needs to be confirmed. Hence, substantial questions of law (a) and (b) are answered accordingly.
53. Further, since it is the plaintiff who tried to lay a claim based on Ex.P.1 and failed to prove that he was in possession of the suit property by virtue of a documentary evidence placed on record. But, the material on record is sufficient enough to hold that it is the defendants who are R.S.A.No.1857/2008 29 in possession of the suit property, having placed their title from Ex.D.1, this Court is of the considered opinion that mere mentioning in the judgment of the Trial Court by the learned Trial Judge that burden was on the plaintiff to disprove Ex.D.1 would not affect the end result, especially when the parties have joined the issues and placed necessary evidence on record.
54. In this regard it is necessary for this Court to cull out Section 101 of the Evidence Act, which reads as under:
"101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
55. Hon'ble Apex Court in the case of Rangammal v. Kuppuswami reported in (2011) 12 Supreme Court Cases 220, in paragraph 33 has held as under: R.S.A.No.1857/2008 30
"33. Since the High Court has misplaced the burden of proof, it clearly vitiated its own judgments as also of the courts below since it is well-established dictum of the Evidence Act that misplacing burden of proof would vitiate the judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in Koppula Koteshwara Rao v. Koppula Hemantha Rao."
56. Applying the principles of law enunciated in the case of Rangammal to the case on hand, the contentions urged on behalf of the appellant that burden was on the respondent to establish the plea taken by the respondent cannot be countenanced in law as the burden of proof loses its significance after parties have joined the issues and placed their respective evidence on record. R.S.A.No.1857/2008 31
Accordingly, in view of the foregoing discussion, substantial questions of law at (c) is also answered in the Negative.
In view of the findings on substantial questions of law at (a), (b) and (c), following:
ORDER Appeal is meritless and hereby dismissed.
No order as to costs.
Sd/-
(V. SRISHANANDA) JUDGE MR