Karnataka High Court
M K Krishna Murthy Rao vs K S Sahul Hammed on 12 July, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No. 150 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 150 OF 2008
BETWEEN
1. M.K.KRISHNA MURTHY RAO
S/O LATE.VENKOBA RAO,
AGED ABOUT 60 YEARS,
2. HANUMANTHA RAO
S/O LATE VENKOBA RAO,
AGED ABOUT 54 YEARS,
BOTH ARE R/AT. HINDU,
MELVI VILLAGE,
H.B.HALLI TALUK,
BELLARY DISTRICT-583104.
Digitally
YASHAVANT
signed by
YASHAVANT
NARAYANKAR
...APPELLANTS
NARAYANKAR Date:
2023.07.13
11:42:00 -
0700
(BY SRI. SMT. V.VIDYA IYER, ADVOCATE)
AND
1.
K.S.SAHUL HAMMED
S/O K.M.SYED MOHAMMED,
AGED ABOUT 50 YEARS,
R/AT. BHOVI COLONY,
NEAR KSRTC BUS STAND,
H.B.HALLI TALUK,
BELLARY DISTRICT-583104.
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RSA No. 150 of 2008
2. H.M.PANCHAKSHARAMMA
W/O H.M.SOMAIAH,
AGED ABOUT 70 YEARS,
R/AT.KUDUDARA HAL VILLAGE,
SIRUGUPPA TALUK,
BELLARY DISTRICT-583104.
3. BASHA SAB
S/O BABU SAB,
PROP: CYCLE SHOP,
BASAVESHWARA BAZAR,
H.B.HALLI TALUK,
BELLARY DISTRICT-583104.
4. PINJAR MOHAMMED
S/O YAMUNA SAB,
AGED ABOUT 40 YEARS,
R/AT.BHOVI COLONY,
NEAR KSRTC BUS STAND,
H.B.HALLI,
BELLARY DISTRICT-583104.
...RESPONDENTS
(BY SRI. RAVI HEGDE ADVOCATE FOR R1 AND R4;
SMT. H.M. PANCHAKSHARAMMA- R2 SERVICE HELD SUFFICIENT;
R3-NOTICE SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DTD: 5.11.07 PASSED IN
R.A.NO.30/2006 ON THE FILE OF THE ADDL DISTRICT &
SESSIONS JUDGE, FAST TRACK COURT NO.III, HOSPET,
DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND
DECREE DTD: 4.4.06 PASSED IN O.S.NO.10/1998 ON THE FILE
OF THE PRL.CIVIL JUDGE, (SR.DN), & JMFC., HOSPET.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.07.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
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RSA No. 150 of 2008
JUDGMENT
This is a plaintiff's appeal challenging the judgment and decree passed by the Principal Senior Civil Judge and JMFC, Hospet in O.S.No.10/1998 and confirmed by the District Judge, Fast Track Court-III, Hospet in R.A.No.30/2006.
2. For the sake of convenience, parties herein are referred with the ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
That the plaintiffs have filed a suit for declaration that they are the owners of the suit schedule-A property and to mandatory injunction against defendant No.1 to remove the construction put up over Schedule-B property and handing over the possession of the same to the plaintiffs and also for permanent injunction against defendants 3 and 4 from interfering with plaintiffs peaceful possession and enjoyment over schedule-C property.
4. That the suit properties are described as schedule- A, B and C. Schedule-B and schedule-C properties -4- RSA No. 150 of 2008 are part of schedule-A property. The suit schedule properties are part of Survey No.12/C of Chintrapalli village of H.B. Halli Taluk. That the plaintiffs are the owners of the schedule properties inherited the same from their father-Venkobarao. Totally the property was measuring 2 acres 12 guntas and the father of the plaintiffs has converted major portion of the land for formation of house sites and sold sites to the extent of 1.56 acres. It is asserted that after the death of plaintiffs' father-Venkobarao in 1979, plaintiffs inherited the suit properties and enjoying them. It is alleged that an area to the extent of 46 cents was sold by the father of the plaintiffs to one Peeran Sab from land bearing Survey No.11/B to the extent of 9 cents and 37 cents in Survey No.12/C and remaining 19 cents is in possession of the plaintiffs' father and after his death, it is in possession of the plaintiffs. It is asserted that the defendants are interfering and constructing a structure over the suit schedule property and hence, the plaintiffs are constrained to file this suit.
5. The defendants appeared before the Trial Court and filed their written statement disputing the claim of the plaintiffs. The defendants 1 and 4 have filed their written -5- RSA No. 150 of 2008 statement admitting certain transaction but denied that 19 cents was in possession of plaintiffs' father. Defendants further claimed that they are the bonafide purchasers as they have purchased the suit property from the vendees of Peeran Sab and hence, they have sought for dismissal of the suit.
6. On the basis of the pleadings, the trail Court framed following eight issues:
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule A properties?
2. Whether the plaintiffs prove that 1st defendant has put up a construction in a portion of B schedule property on the basis of the alleged sale deed as alleged in the plaint?
3. Whether the 1st defendant proves that he is the absolute owner of the suit schedule property and he is in lawful possession as alleged in para 9(a) of the written statement?
4. Whether the defendant No.4 proves he is a bonafide purchaser and he is in the peaceful possession and enjoyment of the said property as alleged in para 9(a) of the written statement? -6- RSA No. 150 of 2008
5. Whether the defendants No.1 and 4 prove that suit of the plaintiff is barred by limitation as alleged in para 13 of the written statement?
6. Whether the defendant No.1 and 4 are entitled to the exemplary costs?
7. Whether the plaintiffs are entitled to the reliefs sought for?
8. What order or decree?
7. Plaintiff No.1 was examined as PW1 and four witnesses were examined as PW2 to PW5 and relied on 50 documents marked at Ex.P1 to Ex.P50. On the other side, defendant No.1 was examined as DW1 and defendant No.4 was examined as DW2. Four witnesses were also examined on their behalf as DW3 to DW6 and relied on 55 documents marked at Ex.D1 to Ex.D55.
8. After hearing the arguments and after perusing the oral as well as documentary evidence, the learned Civil Judge has answered Issue No.1 and 5 to 8 in the negative while issue No.2 to 4 were answered in the affirmative and ultimately dismissed the suit.
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9. Being aggrieved by this judgment and decree, the plaintiffs approached the District Judge, Ballari and matter came to be transferred to the Fast Track Court-III, Hospet. After re-appreciating the oral and documentary evidence, the learned District Judge, dismissed R.A.No.30/2006 filed by the plaintiffs by confirming the judgment and decree passed by the Trial Court. Being aggrieved by these concurrent findings, the appellants are before this Court.
10. The learned counsel for the appellants would contend that the judgments and decrees are illegal and erroneous and admittedly the respondents admit the ownership of the plaintiffs over Survey Nos.12/B, 12/C and 11/B, which are adjoining to each other. It is also asserted that the sale deed executed by the father of the appellants in favour of Peeran Sab would reflect the extent of land and material evidence led by the plaintiffs was ignored and the admissions given by the witnesses of defendants were also not considered. It is asserted that Peeran Sab had no interest over the portion of Schedule-A property and 19 cents is retained by the plaintiffs' father and now the defendants are putting up structure and interfering with the -8- RSA No. 150 of 2008 same, which compelled them to file a suit. It is further asserted that the Courts below have failed to appreciate the oral as well as documentary evidence in proper perspective, which has resulted in miscarriage of justice. Hence, they would seek for allowing the appeal.
11. Per contra, learned counsel for the respondents would support the judgments and decrees of the Courts below and it is asserted that the father of the appellants i.e. Venkobarao has sold 37 cents and 9 cents to Peeran Sab and the defendants have purchased those properties from Peeran Sab. It is asserted that the father of the plaintiffs was owner to the extent of 2 acre 12 guntas and though there is assertion that the father of the plaintiffs got converted 1 acre 56 cents into non-agricultural and sold it by making plots, no piece of evidence is placed to substantiate this contention. It is also asserted that 19 cents which is now claimed by the plaintiffs is not identifiable and no sketch or survey report is placed to specify 19 cents and hence, he would contend that when the location of 19 cents itself is under dispute, the question of plaintiffs succeeding in the suit does not arise at -9- RSA No. 150 of 2008 all as they are supposed to prove their own case and they cannot take advantage of weakness of the defendants.
12. This Court by order dated 08.04.2015 framed the following substantial questions of law:
(i) Whether both the Courts below have rightly appreciated the pleadings with reference to plaintiffs title to suit A schedule property?
(ii) Whether both the Courts below were justified in giving a finding that the 1st defendant is owner of suit B schedule property as against admission of Panchaksharamma that the plaintiffs have retained 19 cents of land in R.S.No.12C of Chintrapalli village?
(iii) Whether both courts below have rightly appreciated the documents under which the suit A schedule land is restored to the plaintiffs father?
13. Having heard the arguments and perusing the records, there is no serious dispute of the fact that the plaintiffs' father was owner of Survey No.12/C, which was totally measuring 2 acres 12 guntas. Further under Ex.D9, the father of the plaintiffs has sold 37 cents out of Survey No.12/C and 9 cents out of Survey No.11 in favour of Peeran
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RSA No. 150 of 2008Sab, which is not under dispute. It is the contention of the plaintiffs that 1.56 acres of land was got converted by the father of the plaintiffs and sites were formed and were sold. But to substantiate this contention, no piece of evidence is placed before Court. There is no dispute of the fact that the plaintiffs' father was owner to the extent of 2 acres 12 guntas in Survey No.12/C. When 1.56 acres of land was converted into sites, that is required to be proved by the plaintiffs, but the plaintiffs have not produced any piece of document to substantiate this contention. Unless, the plaintiffs establish the conversion and sale of 1.56 acres of lands, the question of they retaining other portion does not arise at all.
14. There is also no serious dispute of the fact that 37 cents was sold to Peeran Sab and this is evident from Ex.P10-sale deed. Interestingly, the boundaries of the properties sold by the father of the plaintiffs is mentioned in the sale deed and though 37 cents and 9 cents were sold from different survey numbers, the boundaries were shown to be as under:
Towards east: Railway property,
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Towards west: the property already sold by him, Towards north: Government land and Towards south: the property of Dr.Ajjayya bearing Survey No.5.
15. If this recital is taken into consideration, then these recitals clearly disclose that the western property is also sold by him and he did not retain any northern portion of the property as the boundary was shown to be the Government land. Hence, it is evident that no property was retained by the father of the plaintiffs as claimed by them.
16. All along it is asserted that 19 cents of the property is retained, but where exactly this 19 cents of property is situated is not at all forthcoming. On the contrary, the sale deed executed by the father of the plaintiffs disclose that he did not retain any property.
17. Much arguments have been advanced by the learned counsel for the appellants-plaintiffs that the northern boundary of the property is sold by Peeran Sab in favour of defendants 1 and 2 is not disclosed, but the basic document which confer title to Peeran Sab is the sale deed executed by the father of the plaintiffs wherein the northern boundary of
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the property sold in favour of Peeran Sab is shown to be the Government Land. Hence, admittedly, no property was retained by the father of the plaintiffs towards northern side. Much arguments have been advanced regarding admission given by DW4 that under compromise, plaintiff owns 19 cents of the property in survey No.12/C. It is settled principles of law that the documentary evidence will prevail over the oral evidence. Men may lie but not the documents, which is basic principles of law. When the documents relied by the plaintiffs themselves does not establish what is the extent of land retained by their father, now they cannot rely on stray admissions on the part of DW4. Since, the plaintiffs have approached the Court, they are required to prove that 19 cents of land, in a particular area with specific boundaries, is retained by their father. But that itself is missing. Coupled with this, the plaintiffs alleged that their father has converted 1.56 acres of land into plots and sold it. But no lay-out plan or documents are forthcoming in this regard. No survey was taken and though initially for appointment of commissioners application was filed in I.A.No.8, but the same was dismissed by the Trial Court
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RSA No. 150 of 2008since it was filed before commencement of trial, with a liberty to file such an application after trial. Subsequently, the plaintiff did not avail opportunity to move similar application to get survey the land to locate the properties. The plaintiffs tried to rely on Ex.P16, which cannot be looked into as the trial Court with proper reasons has rejected this document, as it is not a public document and the author was also not examined. On appreciation of the oral and documentary evidence, absolutely no piece of documents are forthcoming to show that the plaintiffs' father has retained 19 cents of land.
18. Though the plaintiffs have relied on voluminous documents, the initial burden is on them to substantiate their contention regarding retention of portion of 19 cents with specific boundaries. But considering the sale deed executed by their father, which is undisputed, the northern boundary is shown to be the government land itself. Hence, both the courts are justified in dismissing the suit filed by the plaintiff and the appeal. Both the Courts below have rightly appreciated the pleadings with reference to the title of the plaintiffs to schedule-A property and have rightly given
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RSA No. 150 of 2008finding regarding the title of defendant No.1 over schedule-B property. Both the Courts below have properly appreciated the oral as well as documentary evidence and the judgment and decree passed by the Trial Court, which is confirmed by the First Appellate Court does not suffer from any infirmity or illegality so as to call for interference. Under these circumstances, the substantial questions of law are answered in the affirmative in favour of the defendants. As such, the appeal being devoid of merits does not survive for consideration and accordingly, I pass the following:
ORDER The appeal stands dismissed.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE YAN