Karnataka High Court
Sri Balakrishna Since Dead By His Lrs vs Sri G N Kannaiah Naidu on 17 August, 2011
Author: Huluvadi G.Ramesh
Bench: Huluvade G Ramesh
INTHE HIGH COURT OF KARNATAKA AT B ANGALORE, . Dated this the 17'" day of August, 201] Before THE HON'BLE MR JUSTICE HULUVADE G RAMESH Regular First Appeal' 1139 / 2008 Between: OO . ori Balakrishna ~ since dead by his LRs " i Smt Devamma, 66 yrs 2 Krishnamma, 46 yes 3 Melamma, 44 vis 4 Govindamma 42 'yes | 5 Savithri, 40 yes 4 | 6 M Anand. 38 yrs 7 Shivananda, 36 vrs ~ 8 Jayvamma, 34 yrs. 9° >. Rukutnini, 22. yrs 10 are. wife and children of Balakrishna'a nd-all are r/o Mu nekol la New Extension Varthur Hobh. B'lore East Tg Appellants mi By Sri ® Venkatashiva Reddy, Adv. oo Fo SriG N Kannaiah Naidu, 81 vrs S/o late GN Nallappa Naidu ed we "ad Se eee Swe R/a # 1014/A, 17" © Cross Indiranagar | h Stage, Bangalore 38 Braet Stikanta Rao S/o Ramalinga Rao 70 yrs, Ra Site # 261 Munekolla New Extension ae Varthur Hobli ; re Bangalore East Taluk, Bangalore ~ Respondenes (By Sn A G Shivanna & Assts.. Adv. for Ri) Appeal is fled under S.96-0f' the ode of Civi i Procedure praying io set aside the judgement and decree e dated 27,9.2008 in L "Pin. 1100/2000 before the XIV Addl. C ity Civil Judge. Bangi alore | cn L ACA, The Appeal corning: on. for 'He: ring | this day, 'Court delivered the following: oy : . "JUDGMENT Appeal is egainst the order passed on TA in Exceution Petigon 1008/2000 betore the XIV Addl. City Civil Judge, Bangalore on 27, Pu 2008. The &" re spordent thad filed suit in OS 2198/1987 before the City vith Court, Bartvalore to declare that he is the absolute owner of the suit p roperty and to deliver possession of the same and for the relief of Me, pes Manent wyunction restraining the defendant from imferfering with the \ aaa fat plamuffs peaceful possession of the suit property, The matter, was contested. The defendant denied the ultle of the plainnff and: "POSSESSION, MN of the suit schedule property and contended that the ploinult is notin ~ possession and enjoyment of the property as conteride:| by him. since 1972. On the other hand, it is stated, defendant has put wp construction on the schedule site and his possession is.Jegal. He did not.commit 12 trespass on i during January os? and he was never. approached by the plaintiff seeking vacating the sched ule pro perty. Wis.also contended, he has perfected his aiile by way of adverse poscessions" Based on the same, as many as six issues. were 'iramed by the wrial court regarding title, trespass, maiitainabiliey and-as tovihe redel of declaration, possession ang permanent ajunction ; After inquiry. on 810.1999, the trial court while decreeig the sui in part ordered, the plaintiff is the owner of the ot ae z 3 schedule property arid directed the defendant to hand over possession of the preniises in dy also i having found that plaintiff is not in possession as on the date ef the' suit, rejected the prayer for injunction. In the "executi we, procecc dings fled by the decree holder in No.100/2000, an IA came "40 -be fled under O 21 Ro 27 rAw S.1G1, CPC by the to the sult proceedings. appelanvobje ctor. This objector was not a party p ee EROS so 4 According to the appellant/objector, he is in possession since 1972, The suit schedule property bearing No.261 is said to have been. granted mo favour of the appellant by the Tahsildar, South Taluk. Bangel ore and neo. auotment he along with his son, put up temporary shops of about 5 squares and he has leased out the shops oni monthiy rental, a is also contended, the judgment debtor-was "not in possession 'of the. suil schedule property and that he is paying t the "taxes regularly. Further, according to this appelly a ihe decree hie sider rad come fo the suit schedule property along with some. ie' pasion | te dispossess him and tricd to evict the appellant in cls ith the sudement debtor who had obtained an une xecistab fe decree. 'Rather, the appellant is the true owner and he has nol beert made. a marty fo the sun. Even the decree is not executable: sae the defendants and it is necessary to decide the right of the.< app 5 licantfoby rjec for. ~ During pendency of the matter, the original applicant died and "thereafier, his legal representatives have come on record. The Executing Court, after hearing, having raised a point whether the objector proves --...... Bs a Sad his right and possession over the sult property. after inquiry, hele that the objection/applicant failed to establish his possession a and title over, the suit schedule property and that he has no legal right-to obstr uc ct the execution of the decree obtained by the decree holder. -As abaiist the. said order, the present appeal. Heard the counsel representing the parties." Appellant's counsel fel) rely ing ay upon 1 the ; judgment of the Apex Court in the case of Homan Catholic Mission & Ors Vs State of Madras & Anr. ~ AIR 1966 SE 1487, contents leu. as per S.65 of the Evidence Act, if the original doc tren is io prod al any Ome, foundation cannot be laid down, for vestablis Imien ul of right to give secondary evidence. Counsel-has also relied upon the judgment of this Court in the case of Annaich™ Us: Subbaran naiah & Ors --- ILK 1998 1039 to contend, as per 2 . S133 of the Land Revenue Act, non-production of the pahani entries "no! "necessary if if is shown that petitioner was culavating lands as on LA O74 and for the period earlier to that. Counsel has also relied upon another judgement of this Court in the case of Devish Vs MK Subbiah & fy Ors ~ AIK 1970 Mysore 249 regarding presumption and limitation. [tis also contended mere marking of document is not proof of title-as. per the opinion of the Apex Court in the case of Sait Trarajee Khimchand & ~ Ors Vs Yelamarti Satyain & Ors ~ AIR 197] sc I 865. It is the contention of the appellane's counsel. the plaintiff had only produced xerox copy of the-hakéu paita, which was taken into consideration by the trial court, which is bad in Taw and'it does not lay the foundation to considet the same iti the absence: sf production of the original and, mere production 'of the xerox copy also does not amount to proof of document much less.sccondary evidence. {fis also contended. ihe appellant is in settled possession since 1972 and also put up a construction. "Without-making him a party, a collusive suit was filed by the plaintiff and decree has been obtained. The trial court jumped to a conclusion that-tie eviderice of the plaintiff is gospel truth and dismissed the applicdlion filed by the applicant which is erroneous. 'Per-contra, counse! for the respondent/plaintift
sebmiffed. in respector the suit property there was a hakku patra issued to the plaintiff : gee ee ee Coe oe ond based on which all the records, including the encumbrance certificate, and fax paid receipts since 1972, have been produced and even, the. ~. xerox copy of the hakku patra had been produced as the. original was -- taken back by the Tahsildar of the concerned ae and since i wi not returned, application was also filed sec! king for pe odiction of te original which was taken back and summons was 'also taken through the court. As the Tahsildar did not appear. ar produced: any "document, the tral court taking into consideration the other supporting documents apart from the hakku patra and alse based on. the copy' of the hakku patra, passed an order which eaiinot be intertered with, leis also contended, on the other hand, the ap pbicant t/objector has not produced any iota of evidence since 1972 except ine bak patra. in the circumstances, having drawn an adveis e Jnfere ice against the objector, his application came to be disinissed: The trial court has founded its reasoning not only 1 the xerox coy copy oft | the hakku patra in favour of the plainuff bur apart . fram that, encumbi ance certificate, tax paid receipts since 1972 produced nm _in support of the plaintiff's case have been rightly believed by the trial .. Court In entertaining the suit of the plaintiff. He has also relied upon the oe judy ment of this Court in the case of K P Krishnakwmar Vs Smt :
oe ee eae Radhalakshmi Amma ~ ILR 2004 KAR 4838 to contend that sufficient proof has been rendered so that secondary evidence is admissible and qa, those circumstances, rightly the executing court has drawn the inference ~ based on other supporting documents in favour of, the decree holder and accordingly, contended that the other supporting documents which were avatlable formed the basis for the plaintiff seekin 2 for a decla ration and for possession which has been righily considered by 'the trial court while rejecting the application which does not call 'or interference. In the tight oF, ihe argu ments a vanced. the points that would arise for considerat ion are - whether tine executing court committed an error in rejecting the appication Gled-by the objector and, what order. ~The appellant;.admittedly, is not a party to the proceedings in the suit. "He claims title based on the hakku patra issued in his favour in respect of the property. The executing court has noted, Px.P? said to have been issued on 13.5.1972 has not been acted upon and that the _ game of the applicant has not been entered in the Ramagondanahalli Panchayat as the property lies within the jurisdiction of the said SASS Se Ses oo Register, copy of which is issued by the Chief Administrative Officer o 9 vanchayat. The applicant has produced only the tax paid receipts issued by the Mahadevapura City Municipal Council on 29.10.2000 and. that,» from 1972 to 2000 this applicant has not acted upon tne hake. patra - alleged to have been issued in his favour. Referr Tg, 0" Ex, Pe Assessment Register for the year jooa-e 7S, it has observed, there isn no explanation offered by the applicant as to wry Ris name-did noticame to be entered in the City Municipal € ne UTI! iL recards, of Mahadevapura or of iL hs Ramagondananalli Panchayat.
SO far as putting up: gonstrustion and leasing out the said property fo the lessees iS concerned. as per Px.PS to PT produced by the applicant, if is 'tated. they have not been proved by examining the alleged ien ants, and on the other hand, the tax paid receipts have been produced. by the. decree holder from Ramagondanahaili Panchayath for the year }O84- 8 and 1985-86 and in the owner's column in respect of the property hearing No.261 of Munekollal Village. the name of _Rannaiah Naidu is shown. However, the name of Balakrishna is writien . mprespect of the said site for the year 1994-95 in Ex.P4 ~ Assessment ae a Kee oe ee as Ee 10 the notified Arca Committee, Mahadevapura Hobli. On the other hard, Ix. P5-6 are the certified copies of the approved plan and sketch of the I E eich of the.
building license obtained in the year 1982 by the decree holder, Ex-P18 20 are the encumbrance certificates issued in favour of the plaintiff for the years 1972-1999 and 1999 to 2006. _.
in the case on hand, the entey of the name of. the plaintiff in the tax paid receipts, in the village panchayat records-and. the city municipal council records, being prior to ihe entry of the name of the applicant "£ Executing Court to term an opinion that the formed the basis for the plaintifi/decre: holder has got priority of right and consequently, to reject the case of the appellam/objéetor, apart from the hakku patra.
"The uppellant's/applicant contention that the trial court ought not to have decreed'-the suit of the plaintiff based on the xerox copy . produced, thougi cf course, is a point for consideration, but the applicant "has not made ary efforts soon after the grant was made in his favour nor appears ky be in possession since 1972 whereas, sufficient documents are produced by the plaintiff regarding his encumbrance on the property and, tbe 4 BU iacki LU aal e Secn Aen EES other supporting documents have been considered by the Executing Court viz., approved plan and tax paid receipts produced which ate even. prior to the alleged right and ttle claimed by the applicant. ~~. Iris also ~ the case of the plaintiff that the Tahsildar has taken back the document (hakku patra) and he could not produce ike original and he has produced the Xerox copy of the document.
if the plaintiff bas establishe i his tidle > beto TOF re thet fe ial court before making this applicant' as @ panty, necessarily sbost-after knowledge, the applicant could have. moved the civil courtiral court secking for setting aside the dectee which: we "--_ which property he claims to be in possession by virtue OF the | Heed grant made in the year 1972, Fan He has only appeared pefore the Executing Court fo resist the execution based On 86 nes docun ents w hich i is Of the year 1998 onwards. Having taken TMG const Serato the priority of the document and other related "documents vin. encumbrance cerilicate and (ax paid receipts which 'weie_ obtained at am undisputed point of time, the Executing Court has . right ly te ejected the case of the applicant. To raise a contention that the decree ought not to have been passed in favour of the plaintiff, the BEG aw fe Ons an ne eat eS SSE SECS an Sa "
aN RSs applicant Cannot raise such contention before the Executing Court since appheant to approach the civil court seeking for declaration. to set-aside the decree passed in favour of the plamtiff/decree holder contending that. the decree is bad in law for non-joinder. of necessary parties, The appellant/objector cannot be faulted.' Appeal is dismissed: Parties ta. bear their own costs. AQ Judge