Karnataka High Court
Vishvanath S/O Sakharam Borale vs Waman S/O Hanmanth Biradar on 15 February, 2018
Author: L Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
KALABUAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR SECOND APPEAL NO.7151 OF 2009
C/w
REGULAR SECOND APPEAL NO.7135 OF 2009
RSA NO.7151 OF 2009
Between:
Vishvanath
S/o Sakharam Borale
Aged about 62 years
Occ: Agriculture
R/o vilage Bhosaga
Taluk: Basavakalyan 585 301
...Appellant
(by Shri Ameet Kumar Deshpande, Advoate)
And:
1. Waman
S/o Hanmanth Biradar
Age about 49 years
Occ: Agriculture
R/o Village Bhosaga
Taluk: Basavakalyan 585 301
2. Digambar
Since deceased by LRs
3. Gajabai
2
W/o Digambar Rao
Aged about 64 years
Occ: Agriculture
4. Narayan
S/o Digambar Rao
Aged about 33 years
Occ: Agriculture
2 and 3 are residents of
R/o Village Bhosaga
Taluk: Basavakalyan
5. Indirabai
W/o Suryabhan
D/o Digambar Rao
Aged about 44 years
6. Sukumarbai
W/o Bali Suryavanshi
D/o Digambar
Aged about 39 years
Occ: Agriculture
4 and 5 are residents of
Village Nirgudi
Taluk: Basavakalyan
7. Dhondubai
W/o Keshavrao
Aged about 37 years
Occ: Agriculture
R/o Ramtirth-D
Taluk: Basavakalyan
8. Fulabai
W/o Dattu Biradar
Aged about 35 years
Occ: Agriculture
3
R/o Village Hipparga Devi
Taluk: Omerga - M.S.
9. Nabisab
S/o Akbarsab Badure
Aged about 44 years
Occ: Agriculture
R/o Village Bhosaga
Taluk: Basavakalyan
...Respondents
(by Shri Mir Jahangir Ali, Advocate for R8
Notice to R1 held sufficient vide order
dated 08.04.2015;
R2 to R6 served;
Notice to R7 held sufficient vide order dated 04.06.2015)
This Regular Second Appeal is filed under Section 100 of
CPC against the judgement and decree dated 11.03.2009 passed
in RA No.29 of 2007 on the file of the Civil Judge (Sr. Dn.) at
Basavakalyan, dismissing the appeal and confirming the
judgement and decree dated 25.01.2007 passed in OS No.36 of
1999 on the file of the Civil Judge (Jr.Dn.) and JMFC at
Basavakalyan.
RSA NO.7135 OF 2009
Between:
Nabisab
S/o Akbarsab Badure
Aged about 45 years
Occ: Agriculture
R/o Village Bhosga
Taluk: Basavakalyan
District: Bidar
...Appellant
(by Shri Mir Jahangir Ali, Advocate)
4
And
1. Vishwanath
S/o Sakaram
Aged about 62 years
Occ: Nil
R/o Village Bhosga
Taluk: Basavakalyan
District: Bidar
2. Waman
S/o Hanmanth Biradar
Age about 49 years
Occ: Agriculture
R/o Village Bhosaga
Taluk: Basavakalyan 585 301
3. Digambar S/o Yesba
Since deceased by LRs
(a) Gajabai
W/o Digambar Rao
Aged about 69 years
Occ: Agriculture
R/o Village Bhosga
Taluk: Basavakalyan
District: Bidar
(b) Narayan
S/o Digambar Rao
Aged about 32 years
Occ: Agriculture
R/o Village Bhosga
Taluk: Basavakalyan
District: Bidar
(c) Indirabai
W/o Suryabhan
D/o Digambar Rao
5
Aged about 40 years
R/o Village Bhosga
Taluk: Basavakalyan
Now at Nirgudi
Taluk: Basavakalyan
District: Bidar
(d) Sukumarbai
W/o Bali Suryavanshi
D/o Digambar
Aged about 37 years
Occ: Agriculture
R/o Village Bhosga
Taluk: Basavakalyan
Now at Nirgudi
Taluk: Basavakalyan
District: Bidar
(e) Dondubai
W/o Keshavrao
D/o Digambar
Aged about 33 years
Occ: Agriculture
R/o Village Bhosga
R/o Ramtirth-D
Taluk: Basavakalyan
District: Bidar
(f) Fulabai
W/o Dattu
D/o Digambar
Aged about 31 years
Occ: Agriculture
R/o Village Bhosga
Taluk: Basavakalyan
District: Bidar
Now at Hipparga Devi
Taluk: Omerga - M.S.
...Respondents
6
(by Shri Ameet Kumar Deshpande, Advocate for R1;
R2, R3(a) to (e) served;
Notice to R3(f) held sufficient vide order dated 16.10.2015)
This Regular Second Appeal is filed under Section 100 of
the CPC against the judgement and decree dated 11.3.2009
passed in RA No.24 of 2007 on the file of the Civil Judge (Sr.
Dn.) at Basavakalyan dismissing the appeal and confirming the
judgement and decree dated 25.01.2007 passed in OS No.36 of
1999 on the file of the Civil Judge (Jr.Dn.) and JMFC and
Basavakalyan.
In these appeals, arguments being heard, judgment
reserved, coming on for pronouncement this day, NARAYANA
SWAMY J., delivered the following:
JUDGMENT
These two Regular Second Appeals are filed against the judgement and decree dated 11th March 2009 passed in Regular Appeal No.29/2007 and Regular Appeal No.24 of 2007 by the Court of Civil Judge (Sr.Dn.) at Basavakalyan confirming the judgment and decree dated 25th January 2007 passed in OS No.36 of 1999 by the Civil Judge (Jr. Dn.), Basavakalyan.
2. The parties in these appeals are referred to with their rank in the Original Suit.
3. Facts in brief are that the plaintiff filed suit for declaration and permanent injunction of his ownership against 7 the defendants restraining them from obstructing the peaceful enjoyment and possession over the suit property and for declaration that the judgement and decree passed in Original Suit No.48 of 1998 on the file of Civil Judge (Jr. Dn.), Basavakalyan is null and void and not binding upon him.
4. It is the case of the plaintiff that the suit property is the house and open space measuring East-West 60 feet and North-South 40 feet situate at Bhosga Village in Basavakalyan Taluk of Bidar District bearing Grama Panchayat No.3-91 bounded on East by Basavakalyan-Gulbarga Road; West by Public way; North by lane and thereafter house of Chanbasappa; and South by plot No.3-89 of Pandurang and Digamber measuring 20 x 60 feet. The plaintiff along with his daughter, her husband and children are residing in the suit property wherein three sheds are constructed, among which in one shed the plaintiff is living; in one shed his daughter's family is living; and the third shed is being used as cattle-shed. The said suit property was inherited by the plaintiff from his father. It is the further case of the plaintiff that taking advantage of the fact that 8 the plaintiff is suffering from leprosy, the first defendant, without the knowledge of the plaintiff has created a forged unregistered sale deed dated 12th August 1984 in his name in respect of portion of the suit property measuring East-West 60 feet and North-South 20 feet in collusion with the Village Panchayat and got mutated his name in the panchayat records, and Bhosga Panchayat wrongly deleted the name of the plaintiff. Similarly, the second defendant, colluding with the first defendant, got entered portion of the suit property by giving separate number 3-90. The second defendant has no concern with suit site No.3- 91, but only with No.3-89 measuring 60 x 20 feet along with his brother Panduranga. Subsequently, the second defendant created number 3-90 in his name separately. It is the further case of the plaintiff that the first defendant colluding with the second defendant had filed Suit in OS No.48 of 1998 before the Civil Judge (Jr. Dn.), Basavakalyan making the plaintiff as defendant No.1. It is also stated that the defendant No.1 (plaintiff therein) and the defendant No.2 in OS No.48 of 1998 managed a bogus service of summons on the defendant No.1 therein i.e. the plaintiff herein, by taking bogus thumb 9 impression. The first and the second defendants have created a forged un-registered sale deed in the name of the plaintiff. The defendants 1 and 2 further colluding, without the knowledge of the plaintiff, got dismissed the suit as against the defendant No.1 therein and got amended measurement of the suit site i.e. 60 x 20 feet as 60 x 15 feet and got bogus decree without the knowledge of the plaintiff and without disclosing the real facts before the Court. Further, on the basis of the bogus decree, the second defendant sold the alleged suit site in favour of the third defendant on 15th October 1998 and the name of the third defendant was entered in the panchayat records deleting the name of the second defendant. Though the plaintiff is the exclusive owner and possessor of the suit property, on the basis of the entries in the panchayat records allegedly standing in the names of defendants No.1 to 3, they were trying to dispossess the plaintiff from suit house site. Hence, the plaintiff requested the defendants 1 to 3 to admit the ownership of the plaintiff over the present suit property and requested to get cancel the decree in Original Suit No.48 of 1998. When the defendants refused to do so, the plaintiff filed this Suit.
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5. Before the Court below the defendants 1 to 3 appeared and filed written statements denying the averments made in the plaint. The defendant No.1 has stated that the boundaries given by the plaintiff are wrong and contended that on the Southern side of the suit house No.3-91 there is a house No.3-90 which is owned and possessed by the second defendant which he has sold in favour of the third defendant under the registered sale deed. It is further stated that plaintiff being the absolute owner and possessor of house No.3-91, has sold the house for a valid consideration of Rs.9,510/- in favour of the defendant No.1 by a registered sale deed by showing its measurement, as per panchayat records, as East-West 60 feet and North-South 20 feet. It is also stated that the plaintiff, being an illiterate, affixed his thumb impression on the sale deed and the defendant No.1 is in actual and physical possession of the house No.3-91 claiming ownership of the said house. Since he is in possession of the said portion of the suit property under the sale deed for a period of more than twelve years, he has acquired title over the property by adverse possession. It is further stated that the father of the plaintiff during his lifetime, 11 out of the suit property, sold a portion of it measuring 20 x 60 feet in favour of one Gurupadayya vide registered sale deed. After the establishment of Panchayat, the name of the son of Gurupadayya was entered in the records by numbering it as 3-
90. The said Gurupadayya, vide registered sale deed dated 3rd January 1975 sold the said property to the defendant No.2 and the defendant No.2 became the owner of the said house. It is further stated that since the measurement was wrongly mentioned in the sale deed showing as 10 yards instead of 20 feet, the defendant No.2, taking undue advantage of the wrong description, started illegal interference in the possession of defendant No.1 and as such the defendant No.1 filed a suit in OS No.48 of 1998 in which summons was issued on the plaintiff and the plaintiff has accepted the summons by affixing his thumb impression. In the meanwhile the matter was got settled between the defendants No.1 and 2 by way of compromise; and accordingly, the defendant No.2 is the owner and possessor of house No.3-90 on the basis of the sale deed referred above. Hence, it is submitted that the plaintiff has filed wrong and vexatious suit. The defendants No.2 and 3 have also denied the 12 plaint averments. It is stated that by virtue of the sale deed executed by the plaintiff in favour of the defendant No.2, he became the owner of the said portion of the suit property and got entered his name in the panchayat records. When he is the owner of the said portion of the suit property, the question of dispossession of the plaintiff does not arise at all. The defendant being the owner and possessor of the said portion of the suit property, has sold the same to the defendant No.3 for consideration of Rs.5,000/-. Though the defendant No.2 received the sale consideration, but did not execute the sale deed in view of the pending suit in OS No.48 of 1998. After the compromise in the said suit, the defendant No.2 has executed the registered sale deed dated 15th October 1998 in document No.3224/98-99 in favour of the defendant No.3 and the defendant No.3 is in possession and enjoyment of the said portion of the suit property. After the same, the defendant No.3 applied for permission to construct house and the Gram Panchayat, Bhosaga accorded permission to the defendant No.3 to construct house and accordingly the defendant No.3 constructed house and is living there, and hence, there is no 13 question of dispossession of the plaintiff. Hence, he sought to dismiss the suit.
6. On the basis of the pleadings of the parties, the Court below framed the following issues:
(1) Whether the plaintiff proves, that he is the exclusive owner and possessor of suit house site surrounding by loose stone wall, bearing Gram Panchayat No.3-91 measuring East-West 60 feet and North-Sourth 40 feet situated at village Bhosga, Taluka Basavakalyan bounded as shown in the plaint?
(2) Whether plaintiff further proves that the decree in OS No.48 of 1998 passed by this Court dated 17.10.1998 is null, void and not binding upon him?
(3) Whether the plaintiff further proves that,
defendants are illegally interfering and
obstructing in the peaceful possession of the plaintiff over the suit house?
(4) Whether the defendant No.1 proves that, he is in possession of the suit house No.3-91 openly without and interruption for a period of more 14 than twelve years with the knowledge of the plaintiff, thus he has completed his title over the suit house by way of adverse possession?
(5) Whether the defendants are entitled for
compensatory costs of Rs.5,00/- from the
plaintiff?
(6) Whether the plaintiff is entitled for the relief sought for?
(7) What order or decree?
7. The trial Court recorded the evidence of plaintiff as PW.1 and other witnesses as PWs.2 to 4 and marked documents at Exhibits P1 to P9 and Exhibits C1 to C3; the evidence of defendant No.1 as DW.1 and another witness as DW.2 and marked documents at Exhibits D1 to D4; and the evidence of defendant No.3 was recorded as DW.3 and another witness as DW.4 and got marked documents at Exhibit D15 to D43. After hearing the parties, the Court below answered issues No.1 to 3 in the affirmative; issues No.4 and 5 in the negative; and issue No.6 partly in the affirmative and partly in the negative and as per final order decreed the suit with costs by way of perpetual 15 injunction restraining the defendants from obstructing the possession of the plaintiff over the suit property and also declaring that the compromise decree passed in OS No.48 of 1998 is not binding upon the plaintiff and rejected the relief of declaration of ownership over the suit property.
8. The defendants challenged the said judgement and decree before the Civil Judge (Sr. Dn.), Basavakalyan in Regular Appeals No.24 of 2007, 25 of 2007 and 29 of 2007 contending that the Court below has not considered the documents and evidence produced by the defendants in the suit and wrongly came to the conclusion that the plaintiff is in possession of the property. It is also contended that the Trial Court has erred in observing that the defendants have admitted the ownership and possession of the father of the plaintiff over the suit property and that the onus shifts on the defendants to prove that they are in possession of the suit property which is an unfounded presumption. It is also stated that the Trial Court has given undue importance on the report of the Court Commissioner. There is sufficient oral and documentary evidence to 16 demonstrate the possession of defendant No.1 over the suit property, which is undisturbed over a period of twelve years. It is also the contention of the appellants that the lower Court wrongly came to conclusion that the plaintiff has not sought relief of declaration of sale deed Exhibit D15, D16 and D18 as null and void and the relief of declaring the sale deed Exhibit D15, D16 and D18 are ancillary relief and lower Court has not framed any issue in that regard but given finding that documents are null and void.
9. Upon hearing the parties, the lower appellate Court framed the following points for consideration:
(1) Whether the judgement and decree under these appeals are contrary to law and evidence on record?
(2) Whether there are any grounds for this Court to interfere in the judgment and decree under appeals?
10. The points framed were answered in the negative. The lower appellate Court in paragraph 37 of its judgment has observed that the Trial Court has appreciated the oral as well as 17 the documentary evidence of the parties. The defendants relied on the sale deeds for their source of title, but the sale deeds and its translation in English and the certified copy of the sale deed Exhibit D18 do not tally with each other with the boundaries and measurement therein and the Court below has discussed all these things at length and recorded its finding based on the oral, documentary and material evidence placed before it. Hence, the lower appellate Court concurred with the judgement of the Court below and dismissed the Regular Appeals. Hence, these appeals.
11. The learned counsel for the appellant-plaintiff in RSA No.7151 of 2009 submits that the trial Court has failed to appreciate that the plaintiff has proved all the issues in his favour and therefore the dismissal of suit on the technical ground for the relief of declaration of ownership is wholly unjustified. He further submits that the lower appellate Court has not considered that the plaintiff has sought for a decree of declaration that the decree passed in OS No.48 of 1998 is not binding on him. When the title exists in favour of the plaintiff 18 the declaration of ownership in his favour is the only remedy, which the plaintiff has to seek and therefore, the same relief ought to have been granted in favour of the plaintiff by the courts below.
12. The appellant in RSA 7135 of 2009 reiterated the contention taken in the written statement before the Trial Court. It is also stated that he being the owner and possessor of open space bearing panchayat No.3-90 measuring 60 x 25 feet situate at Bhosga Village, has sold the above property vide registered sale deed on 15.10.1998 and got entered his name in the panchayat records, obtained permission from the panchayat to construct the house, and residing in the said house as owner and possessor. The plaintiff, though has knowledge about execution of the registered sale deed, has not challenged the sale deed and hence the suit of the plaintiff is not maintainable. It is further stated that once the Trial Court granted temporary injunction in favour of the defendant No.3, the relief of perpetual injunction cannot be granted. Hence it is prayed to set aside the judgement and decree dated 11th March 2009 passed in Regular 19 Appeal No.24 of 2007 by the learned Civil Judge (Sr. Dn.), Basavakalyan; and to set aside the judgment and decree dated 25th January 2007 passed in OS No.36 of 1999 by the learned Civil Judge (Jr. Dn.), Basavakalyan.
13. In support of their contentions, the learned counsel for the defendants have relied upon the following judgments:
(i) NIRAKAR DAS v. GOURHARI DAS AND OTHERS
(AIR 1995 ORISSA 270);
(ii) CHIKKATAMAIAH AND OTHERS v.
CHIKKAHUTCHAIAH AND OTHERS (AIR 1977
KARNATAKA 99);
(iii) ALEX D'SOUZA v. DINOYSIUS MOHAN PINTO (ILR
1995 KAR. 1123);
(iv) K. GOPALA REDDY v. SURYANARAYANA AND
OTHERS (2004(1) KCCR 662)
14. Heard the learned counsel for the parties. This
Court, vide order dated 9th September 2016, observing that the another connected appeal RSA No.7135 of 2009 preferred by the defendant insofar as grant of injunction is concerned, the Appeal is already admitted by this Court, has admitted RSA No.7151 of 20 2009 holding that the following substantial questions of law arise for consideration in these appeals:
(1) Whether the Courts below are right in law in not granting the relief of declaration of ownership in favour of the plaintiff/appellant without looking to the provisions of order VII Rule 7 of CPC?
(2) Whether the Courts below are right in law in dismissing the suit of the plaintiff even though the Courts below have found that the title over the suit land existed in favour of the appellant?
15. The defendant No.1 in his pleadings and also in evidence has admitted that the father of the plaintiff was the absolute owner and in possession of the open space totally measuring 60 x 60 feet situate at Bhosga village, Basavakalyan Taluk, Bidar District. The defendants No.2 and 3 have produced sale deeds Exhibit D15 alleged to have been executed by the father of the plaintiff Sakharam S/o Madba in favour of one Gurupadayya; sale deed Exhibit D16 dated 04th May 1998 executed by Madivalayya s/o Gurupadayya in favour of defendant No.2; and Exhibit D18 dated 15th October 1998 21 executed by defendant No.2 in favour of defendant No.3. In the evidence of DW.3, it has also been admitted that the property shown in Exhibit D.15 to 18 was previously belonging to the father of plaintiff. The lower Court observed that Exhibit D.15 is the old sale deed relied upon by the defendants. The Sale deed is dated 25th April 1960 whereunder the father of the plaintiff sold 20 yards of the suit the property, i.e. measuring 60 x 30 feet in favour of Gurupadayya which was bounded by East, West and North - Government way and towards South remaining property of the vendor and Gurupadayya was put into possession. Hence, from the boundaries of the sale deed the property shown in sale deed Exhibit D.15 relates to the northern part of the Suit property and the remaining property of the vendor is on the southern side and hence the contention of the defendant No.1 that north-south measurement and the northern boundary shown in Exhibit D.15 is wrong cannot be accepted since the sale deed Exhibit D.15 was executed in the year 1960 when the defendant No.1 was not at all in the picture of the suit property. Neither the defendant No.1 nor other defendants have adduced evidence of scribe, attesting witness, shown at Exhibit 22 D.15. Though the defendants have admitted that son of the vendee i.e. Gurupadayya is alive, he would be the best person to say as to whether the measurement shown in Exhibit D.15 including the boundaries is correct or not, he has not been examined by any of the defendants.
16. As regards Exhibit D16 is concerned, it is the sale deed dated 04th May 1998 executed by Madivalayya S/o Gurupadayya in favour of defendant No.2 which is the same property executed as per sale deed Exhibit D.15 in the year 1960. If at all the measurement or the boundaries were wrong, the same would have been rectified in the sale deed Exhibit D.16 which was executed much later than Exhibit D.15. Therefore, it was inferred that the boundaries and the measurement shown in Exhibit D.16 which is to be the same as to the one shown in Exhibit D.15 is correct. Therefore it is observed that the boundaries and the measurement shown as per Exhibit D.15 is correct and the one shown in Exhibit D.16 is not accepted.
17. As regards Exhibit D1, the unregistered sale deed dated 12th August 1984 alleged to have been executed by the 23 plaintiff in favour of the defendant No.1 is concerned, it is observed by the Trial Court that Exhibit D.1 is the unregistered sale deed and the consideration in the sale deed has been shown as Rs.951/-; because of its non-registration under the Indian Registration Act, through this deed the ownership rights of the plaintiff are not extinguished and thereby no ownership right created in favour of defendant No.1 in the property shown in the said sale deed.
18. As regards sale deed Exhibit D.16 dated 04th May 1998 is concerned, in the said document the northern boundary has been shown as the house of Basappa, but as per the defence of defendants there exists the property sold to defendant No.1 under Exhibit D1. If at all there was the property of defendant No.1 towards northern side of the property sold under Exhibit D.16, then the boundary at Exhibit D.16 towards north ought to be the property of defendant No.1 at exhibit D.16. In Exhibit D.18, all of a sudden, the property of defendant No.1 was shown towards northern side of the same property which was involved in Exhibit D.16. Therefore, this change in sale deed Exhibit D.18 24 falsifies the contention of defendant No.1 that he was in possession of northern portion of suit property as on the date of suit.
19. It is also observed by the Trial Court that panchayat receipts Exhibit D.19 in respect of house No.98 and 90; Exhibit D.20, in respect of property No.3-90; Exhibit D.21 in respect of property No.3-90 standing in the name of defendant No.2; Exhibit D.22 relating to house No.3-90, Exhibit D.23 concerning to house No.3-90 and other two house; Exhibit D.24 concerned to house No.3-90, Exhibit D.25 wherein no property number is shown; Exhibit D.26 the property standing in the name of defendant No.2 wherein no property number is shown, all these extracts standing in the name of defendant No.2 for the property bearing No.3-90 show that the name of the defendant No.2 in property No.3-90 was entered in the year 1979-80 and was continued till 1997-98. It is the defence of the defendants No.2 and 3 that the defendant purchased the said property bearing No.3-90 through the sale deed exhibit D.16 dated 04th May 1998 and not earlier. No explanation has been offered by the 25 defendants No.2 and 3 as to how the name of the defendant No.2 came to be entered in respect of the property bearing No.3-90 long before purchasing the property and hence, it is held that the same falsifies the contention of the defendants.
20. Exhibit D.18 is the sale deed dated 15th October 1998, based upon which the defendant No.3 obtained permission to construct house vide Exhibit D.28 dated 29th December 1998 which was renewed as per Exhibit D.29 dated 08th April 1999 and mutation was granted in the name of defendant No.3 through Exhibit D.30 was examined by the lower Court and so also the records and report of the Court Commissioner. The report states that the suit property is measuring East-West 60 feet and North-South 40 feet and whole property is surrounded by a loose stone wall and there is a gate towards eastern side in the surrounding wall. It is also stated that there exists three sheds in the suit property one is being used by the plaintiff who is a leprosy patient; one is in the occupation of the plaintiff's daughter and her family and the other shed is being used as cattle-shed. These facts disclose that the plaintiff has spoken 26 the mode in which the plaintiff is using the suit property. The defendants 1 and 2 have neither stated the mode nor about the enjoyment of the property. The defendant No.3 though in the written statement stated that he has made some construction over the property, but has not shown the mode of enjoyment of the purchased property. Further, as regards the measurement of the suit property is concerned, it is observed that the report of the Court Commissioner tallies with the case of the plaintiff as also the defendants, and therefore, the report of the Court Commissioner in respect of boundaries of the suit property also cannot be doubted.
21. Plaintiff who is examined as PW.1 has admitted that towards southern side of the suit property there is a property of Pandurang, bearing No.39. This fact has also been admitted by the defendants. PWs 1 to 3 in their cross-examination have categorically stated that the property is bounded on East by Basavakalyan-Gulbarga Road; West by Government way; North by lane and thereafter house of Channappa Khuba; and towards southern side, as stated above, there is property of Pandurang. 27 PWs 1 to 3 have denied possession of defendant No.1 over the northern part of suit property bearing No.3-91. They have also denied the existence of property No.3-90 in between property No.3-89 of Pandurang and 3-91 of defendant No.1. Hence, it held that there is no material as to existence of property No.3- 90 between property 3-89 and 3-91.
22. DW.1 in his cross-examination has admitted that there is a 4-5 feet height loose stone wall on the boundary of panchayat No.89 towards southern side running east-west. He has also admitted that the property of Gurupadayya is still a open space and there is no construction. On the other hand, the defendants 2 and 3 have contended that defendant No.3 has made a construction over the property purchased from the son of Gurupadayya vide Sale deed Exhibit D.18 dated 15th October 1998. Further, DW.1 in his cross examination has admitted that plaintiff along with his daughter's family is living in the said property and are having bullocks and cultivating lands. He also admits that "it is true that property measuring east-west 60 feet and south-north 40 feet is surrounded by loose stone wall having 28 gate towards eastern side". This admission clearly shows that the whole property measuring 60 x 40 feet as contended by the plaintiff as also admitted by the defendants and as per the report of Court Commissioner supports the case of the plaintiff to show that the plaintiff is in occupation and possession of the suit site property.
23. DW.2 is the witness of Defendant No.1. In the cross-examination he has admitted that the property measuring 60 x 60 feet is having a compound wall built with loose stones and towards eastern side of the property there is a road. He has also admitted that the defendant No.1 has not made any construction over the suit property. He has also admitted that the defendant No.1 is residing in the house situated on the western side of the suit property after the road.
24. Defendant No.3 who is examined as DW.3, in his chief-examination has stated that after renewing construction permission he has made some construction over the purchased property, but has not mentioned about the nature of construction. At page 9 of evidence he has stated that there is a 29 room in his property which has been constructed by loose stone with zinc sheets over the roof which is measuring south-north 15 feet and east-west 10 feet which is facing towards western side. This statement has been falsified by admissions of DWs.1 and 2 wherein DW.1 has admitted that till today the property bearing No.3-90 is open. Hence, the statement made by DW3 is again contradicting his previous statement that there is a room which has been constructed through loose stone wall with zinc sheet over the roof.
25. It is also observed by the lower Court that the oral evidence of either of the parties show the possession of the plaintiff over the suit property till the date of filing the suit. The oral evidence is having more weight for the proof and possession over the immovable property rather than the documentary evidence. Therefore, the oral evidence prevails over the documentary evidence adduced by the defendants in respect of the possession over the suit property by considering exceptional facts and circumstances of the case.
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26. As regards challenging the sale deed Exhibit D.1 is concerned, it is observed that since the said sale deed is an unregistered sale deed no ownership right has been extinguished and no right has been created in favour of defendant No.1. Therefore, challenging of an unregistered sale deed Exhibit D1 would not arise and therefore cancellation of sale deed in the present suit is not required. The plaintiff is able to prove his possession over the entire suit property as on the date of suit and therefore the plaintiff is not at all required to seek the relief of possession because he himself is in possession of suit property.
27. As regards compromise petition in OS No.48 of 1998 is concerned, it is observed by the lower Court that originally the defendant No.1 filed suit against the present plaintiff and defendant No.2. But the claim was given up against the plaintiff and thereby an agreement was entered into between defendants No.1 and 2 and the suit was got compromised in the absence of plaintiff. When the plaintiff was not a party to the compromise in suit OS No.48 of 1998 then, automatically, the decree will not 31 be a binding on the plaintiff. Under the decree it has been shown that the defendant No.1 claimed his property as East- West 60 feet and North-South 20 feet, and thereafter, through amendment he has asserted that the property in North-South is 14 feet and not 20 feet and then the defendants No.1 and 2 compromised the suit agreeing that the defendant No.1 is the owner in possession of property measuring 60 x 15 feet and the defendant No.2 is owner and in possession of property measuring 60 x 25 feet and thereafter defendant No.2 sold his property measuring 60 x 25 feet in favour of defendant No.3.
28. In the appeal, the lower appellate Court concurred with the judgement of the Trial Court holding that the materials on record show that the Court below has not committed any error while appreciating the oral as well as documentary evidence on record and the grounds made out by the appellants in the appeals are not sufficient to believe that the judgement and decree of the Court below are contrary to law and evidence on record and no interference is called for, and accordingly, dismissed the appeals.
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29. The issues formulated by the trial Court have been elaborately considered and have been accordingly answered which is concurred by the lower Appellate Court. There is no error in the conclusion arrived at by the Lower Court which is concurred with by the Lower Appellate Court and there is no ground made out to interfere in this second appeal.
30. As regards the substantial questions that arise for consideration in these appeals are concerned, it is useful to refer to Rule 7 of Order VII of the Code of Civil Procedure. The same reads thus:
"7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
31. It is to be observed here that the Trial Court in the course of its judgment at paragraph 50, 51 and 52 has 33 elaborately considered the said point and has given its finding. The Trial Court, as regards Sale deeds Exhibits D15, D16 and D18 are concerned, has observed that the sale deeds have been brought to the knowledge of the plaintiff by filing written statement by the defendants. Moreover, the plaintiff was having the knowledge of sale deed executed by defendant No.2 in favour of defendant No.3 which has been pleaded in the plaint. Then also the plaintiff has not chosen to seek relief of declaration that the sale deeds are null, void and not binding or cancellation of those sale deeds till now by way of amending the plaint. If the Court does not pass any order relating to these sale deeds, then it would be difficult to pass order declaring the plaintiff as owner of the suit property. Therefore, by referring the judgement of the Hon'ble Supreme Court in the case of VINAY KRISHNA v. KESHAV CHANDRA AND ANOTHER reported in AIR 1993 SC 957 wherein scope and ambit of proviso to Section 42 of Specific Relief Act and non seeking of ancillary relief of suits has been discussed, the lower Court has held that the plaintiff ought to have sought the relief of declaration that the sale deeds Exhibits D.15, D.16 and D.18 are null, void and not binding on 34 the plaintiff or for cancellation of those sale deeds along with the relief of declaration of ownership, and in the absence of the same, proviso to Section 34 of the Specific Relief Act is coming in the way of the Court granting relief in favour of the plaintiff about the ownership over the suit property. It is further observed that not seeking of such relief in respect of the sale deeds will not come in the way of the Court granting relief of permanent injunction since the relief of permanent injunction is based on the possession of plaintiff over the suit property. Granting of relief of declaration of ownership is not a must to grant the relief of permanent injunction. The person who is in possession of property can seek the relief of permanent injunction even against the owner irrespective of title of the disputed property. Hence, the Trial Court decreed the suit holding that the plaintiff is not entitled for the relief of declaration of his ownership sought in the suit and he is entitled for other declaration sought in respect of decree in OS No.48 of 1998 and also the relief of permanent injunction restraining the defendants from obstructing the possession of plaintiff over the suit property by way of perpetual injunction.
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32. In that view of the matter, in my opinion the Trial Court has considered all the points framed and has also considered the issue that the plaintiff has not prayed for relief of cancellation of sale deeds and has observed that the plaintiff ought to have sought the relief of declaration that the sale deeds at Exhibits D.15, D.16 and D.18 are null, void and not binding upon him or for cancellation of those sale deeds along with the relief of declaration of ownership; and further observed that non- seeking of such reliefs in respect of the sale deeds will not come in the way of the Court to grant the relief of permanent injunction sought for by the plaintiff. Therefore, the lower Court held that the person who is in settled possession of the property can seek the relief of permanent injunction even against the true owner irrespective of the title of the disputed property and hence held that the plaintiff is not entitled for relief of declaration of his ownership right in the suit but is entitled for declaration sought in respect of decree in Original Suit No.48 of 1998 and the relief of permanent injunction and ordered accordingly. In that view of the matter, the questions formulated in these appeals are accordingly answered.
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33. In the result, both the appeals are dismissed. No order as to costs.
Sd/-
JUDGE lnn