Karnataka High Court
A Devoji Rao vs Mallappa on 16 July, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1
RSA 2572/05
C/W RSA 2573/05
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 16TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
REGULAR SECOND APPEAL NO. 2572 OF 2005
C/W
REGULAR SECOND APPEAL NO. 2573 OF 2005
BETWEEN:
1 A DEVOJI RAO
AGE 75 YEARS
2 A KRISHNOJI RAO
AGE 72 YEARS
3 A ESHWARA RAO
AGE 69 YEARS
ALL ARE SONS OF
LATE RAMACHANDRA RAO
AGRICULTURIST
R/O. AREBILACHI VILLAGE
BHADRAVATHI TQ.
SHIMOGA DISTRICT - 577 301.
... APPELLANTS
(COMMON)
(BY SRI. S V PRAKASH, ADVOCATE)
AND :
MALLAPPA
AGE 80 YEARS
S/O. DHUMMI NANJAPPA
R/O. KODIHALLI VILLAGE
2
RSA 2572/05
C/W RSA 2573/05
BHADRAVATHI TALUK
SHIMOGA DISTRICT - 577 301.
... RESPONDENT
IN RSA 2572/05
(BY SRI. P H VIRUPAKSHAIAH, ADVOCATE FOR C/R)
RUDRAPPA
AGE 78 YEARS
S/O. DHUMMI NANJAPPA
R/O. KODIHALLI VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT - 577 301.
... RESPONDENT
IN RSA 2573/05
(BY SRI. MALLIKARJUN C BASAREDDY, ADVOCATE)
RSA 2572/05 IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
09.09.2005 PASSED IN R.A.NO. 10/2004 ON THE FILE OF THE
CIVIL JUDGE (SR.DN) & JMFC, BHADRAVATHI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 20.07.2004 PASSED IN O.S.NO. 313/96 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) & JMFC, BHADRAVATHI; AND ETC.
RSA 2573/05 IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
09.09.2005 PASSED IN R.A.NO. 11/2004 ON THE FILE OF THE
CIVIL JUDGE (SR.DN) & JMFC, BHADRAVATHI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 20.07.2004 PASSED IN O.S.NO. 313/96 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) & JMFC, BHADRAVATHI; AND ETC.
3
RSA 2572/05
C/W RSA 2573/05
THESE APPEALS ARE COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
These second appeals are preferred by the plaintiffs calling in question the legality and validity of the common Judgment and decree dated 9.9.2005 of the Civil Judge (Sr.Dn), Bhadravati in R.A. 10/04 and 11/2004 allowing the appeals by reversing the findings recorded by the Civil Judge (Jr.Dn), Bhadravati in the Judgment and decree dated 20.7.2004 in O.S.313/1996 and dismissing the suit.
2. Facts briefly stated are; one Mallappa and another Rudrappa, respondents in RSA 2572 and 2573 of 2005, jointly, instituted O.S. 51/1983 before the Munsiff at Bhadravati arraigning the appellants as defendants 1 to 3 for a decree of specific performance of agreements of sale of the immovable property bearing re-survey number 1 measuring 2 acres 30 guntas of 4 RSA 2572/05 C/W RSA 2573/05 Kodihalli, Bhadravati taluk and for a permanent injunction restraining the defendants from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property which was opposed by filing written statement, whence issues were framed, the first of which related to proof over the agreements of sale and the second over delivery of physical possession of the suit schedule property under the agreements of sale and thirdly whether there was obstruction by the defendants over the plaintiffs' peaceful possession and enjoyment of the suit schedule property. Defendants having filed an application for a counter temporary injunction restraining the plaintiffs from interfering with their peaceful possession and enjoyment of the suit schedule property, the trial Court directed the plaintiffs not to disturb defendants possession of the said property during the pendency of the suit. After a full-fledged trial, the court, having regard to the pleadings of parties, the 5 RSA 2572/05 C/W RSA 2573/05 material on record and appreciating the evidence both oral and documentary, returned findings in the negative over the aforesaid three issues, amongst other issues, by observing that the execution of agreements of sale were not proved and that since the plaintiffs were not put in physical possession of the suit schedule property under the Agreements of sale, there was no question of defendants having interfered with the plaintiffs possession of the said property and accordingly dismissed the suit by Judgment and decree dated 19.2.1992. Aggrieved by the said Judgment and decree the plaintiffs therein instituted RA 7/92 on the file of the Civil Judge, Bhadravati, which too when dismissed by Judgment and decree dated 9.11.1994 confirming the findings of the trial court led to the filing of RSA 109/95. This court by order dated 6.2.1995 dismissed the second appeal and confirmed the findings of the courts below. C.P.161/96 for review of the 6 RSA 2572/05 C/W RSA 2573/05 Judgment dismissing RSA 109/95 was rejected by order dated 17.4.1997.
3. During the pendency of O.S.51/1993, the plaintiffs armed with the agreements of sale, without notice to the defendants, had their names entered in the revenue records in respect of the suit schedule property, which when brought to the notice of the Tahsildar, was rectified by restoring the names of the defendants. That order when called in question, by the plaintiffs', in an appeal under Section 136(2) of the Karnataka Land Revenue Act, 1964 was confirmed by order dated 14.6.1988, whereafter plaintiffs filed W.P.21159/1989, which though rejected by order dated 6.4.1995, nevertheless, directed the revenue authorities to make entries in the revenue records in terms of the decree to be passed in O.S.51/1983.
7RSA 2572/05 C/W RSA 2573/05
4. The appellants herein instituted O.S.313/1996 before the Civil Judge (Jr.Dn), Bhadravati for permanent injunction in respect of the very same immovable property, arraigning the respondents as defendants 1 and 2 alleging obstruction to their peaceful enjoyment of the property by the defendants the cause of action for the suit, describing the suit schedule property as agricultural lands bearing Sy.No.1 measuring 2 acres 33 guntas and 3 guntas of karab, totaling to 2 acres 36 guntas of Kodihalli village, Bhadravati.
5. During the pendency of O.S.313/96, the Asst. Commissioner passed an order dated 16.8.1997 restoring the names of the plaintiffs in O.S.51/1983 in the revenue records leading to the defendants therein (appellants) filing W.P.29150/97 whence a learned Single Judge by order dated 23.6.1998 allowed the petition, quashed the said order, restored the 8 RSA 2572/05 C/W RSA 2573/05 defendants' names in the revenue records observing that the Civil Court in O.S.313/1996 is required to consider the respective claims of the parties with regard to possession or other claims, on the basis of the evidence that may be placed before it without being influenced by the entries made in the revenue records or the observations made in the course of the order impugned.
6. O.S.313/96 was opposed by filing written statement of the defendants inter alia admitting the fact of institution of O.S.51/1983 for specific performance of the agreements of sale, and permanent injunction, its dismissal as well as the dismissal of RA 7/1992 and RSA 109/95. In addition the pleadings in O.S. 51/83 were reiterated, stating that the defendants were put in possession of the suit lands under one of the agreements of sale and continue to be in possession, while denying the claim of the plaintiffs that they are in 9 RSA 2572/05 C/W RSA 2573/05 possession of the suit lands. In the premise of pleadings of parties, the trial court framed three issues, the first of which related to proof of plaintiffs possession of the suit schedule property and the second over alleged interference. The 1st plaintiff was examined as PW-1 and 13 documents marked as Exs.P1 to P13, while for the defendants, the 1st defendant by name Mallappa was examined as DW-1 and another witness also by name Mallappa as DW-2 and marked 44 documents as Exs.D1 to D44. The trial court having regard to the material on record and appreciating the evidence both oral and documentary observed that the defendants having suffered a Judgment and decree in O.S.51/1983 declining specific performance of agreements of sale and permanent injunction having failed to prove due execution of the agreement of sale and delivery of possession of the property thereunder, coupled with the fact that the plaintiffs when arraigned 10 RSA 2572/05 C/W RSA 2573/05 as defendants in O.S.51/83 secured an interim order Ex.P12 directing the plaintiffs therein, not to disturb their possession, declined to accept as credible evidence the oral testimony of DW-1, and in the light of the order Ex.D44 in W.P.29150/1997 eschewed from consideration the revenue records, and returned findings in the affirmative over the issues, to allow the suit by Judgment and decree dated 20.7.2004.
7. Defendants aggrieved by the said Judgment and decree preferred two separate appeals in RA 10/2004 and 11/2004 before the Civil Judge (Sr.Dn) & JMFC, Bhadravati. The Lower Appellate Court having clubbed the appeals framed points for consideration, answered the same in the negative, reversed the findings recorded by the trial court, to set-aside its Judgment and decree and allowed the appeals by common Judgment and decree dt. 9.9.2005. 11 RSA 2572/05 C/W RSA 2573/05
8. The appeals when admitted on 13.11.2009, the following substantial questions of law were framed :
"1. Whether the lower Appellate Court was justified in reversing the judgments of the trial Court by holding that the judgment and decree in O.S. No.51/1983 (Ex.P10) does not act as res judicata for the decision in the present suit relating to possession of the property ?
2. Whether in that light the lower Appellate Court was justified in the manner of appreciation of the evidence relating to possession independent of the same and whether such appreciation indicates perversity and being contrary to the facts on record ?"
9. Having heard the learned Counsel for the parties, perused the pleadings, the evidence, both oral and documentary and examined the judgment and decree of the Courts below, with the consent of the learned Counsel for the parties, the following additional substantial question of law is framed:
"In the light of the undisputed facts that respondents - defendants instituted O.S. 12 RSA 2572/05 C/W RSA 2573/05 No.51/1983 for specific performance of agreements of sale allegedly executed by appellants arraigned as defendants therein for the sale of suit schedule property and for permanent injunction restraining the defendants therein from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property, whence, on a trial, having suffered a judgment and decree declining specific performance on a finding of fact that there was no proof of execution of the agreement of sale and delivery of possession of the suit schedule property, while by an interim order Ex.D12 plaintiffs therein were restrained from interfering with the defendants' peaceful possession and enjoyment of the suit schedule property, coupled with the observation in W.P. No.29150/1997, Ex.D44 not to consider the revenue records to record findings on the issue relating to plaintiffs' possession of the suit schedule property in O.S. No.313/1996, whether the rule of estoppel by Judgment applies, vitiating the Judgment and decree of the lower appellate Court ?"
10. In order to better appreciate the submissions of the learned Counsel for the parties, it is useful to 13 RSA 2572/05 C/W RSA 2573/05 extract the issues framed in O.S. No.51/1983 as recorded in the judgment and decree dated 19.02.1992, Ex.P10, which read thus:
"1. Whether the plaintiffs prove that there exists a subsisting contract of sale entered into by the defendants on the date of suit respect to schedule property?
2. Whether the plaintiffs prove that they were put in actual possession of the suit schedule property in pursuance of the agreement dated 04.10.1976 ?
3. If so, plaintiffs prove that alleged obstruction in their peaceful possession and enjoyment, by the defendants ?
4. Whether the suit is bad for non-joinder of necessary parties as contended at para-1 of the written statement ?
5. Whether the suit is barred by time ?
6. Whether the plaintiffs are entitled for specific performance of the contract and also for the relief of permanent injunction ?14 RSA 2572/05 C/W RSA 2573/05
7. What decree or order ?"
11. Plaintiffs though examined two witnesses to prove the execution of the second agreement of sale dated 10.2.1977 Ex.P1 whereunder plaintiff is said to have been put in possession of the agreement schedule property, on receipt of Rs.5,000/- the balance sale consideration, nevertheless the trial Court declined to accept the testimony of the witness as credible evidence and recorded a finding that Ex.P1 was not proved in evidence. In addition declined to accept as credible evidence the testimony of the witnesses for the plaintiffs in proof of plaintiffs being put in possession of the suit schedule property under the agreement of sale. The trial Court observed that though the plaintiffs' names were entered in the revenue records, their presumption as to validity was rebutted by the defendants placing on record Ex.D1 the order of the Tahsildar, restoring the names of the defendants in the said records, which 15 RSA 2572/05 C/W RSA 2573/05 order when challenged by the plaintiffs in an appeal before the Assistant Commissioner, was confirmed by dismissal of the Appeal. The plea of part performance of the agreement of sale Ex.P2 dated 4.10.1976 the first agreement, under Section 53A of the Transfer of Property Act, 1882 was negatived on the premise of lack of evidence and there being no covenant in Ex.P2 over delivery of possession of the said property. The aforesaid findings stood confirmed by the dismissal of RA 7/1992 on 9.11.1994 Ex.P4 and RSA 109/95 on 6.2.1995 Ex.P3 as well as the Review Petition in C.P. 161/96 on 17.4.1997 Ex.P13.
12. As noticed supra, Appellants instituted O.S. 313/1996, for permanent injunction restraining the respondents arraigned as defendants 1 and 2, from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property. The contentions advanced in the written statement are but 16 RSA 2572/05 C/W RSA 2573/05 reiteration of the plaint averments in O.S.51/83 as regards execution of the two agreements of sale dated 4.10.1976 and 10.2.1977, by the plaintiffs' agreeing to convey the suit schedule property and that defendants were put in possession of the said property in terms recorded in the agreement of sale dated 10.2.1977, as and by way of part performance under Section 53A of the Transfer of Property Act 1882, and the names of the defendants were recorded in the revenue records and further that Land Revenue was also paid. In the premise of pleadings of the parties the trial Court framed the following issues:
"1. Whether the plaintiffs prove their lawful possession over the suit property as on the date of the suit ?
2. Whether the alleged interference is true?
3. Whether the plaintiffs are entitled to the relief of permanent injunction as sought?"17 RSA 2572/05 C/W RSA 2573/05
13. The trial Court, returned findings in the affirmative, observing that the parties in O.S.51/83 and in O.S.313/96 and the suit schedule property were the same, while the documents relied upon by the parties were the same as that in O.S.51/83, and in particular the agreements of sale under which the defendants claimed to be put in possession of the suit schedule property, in addition to revenue records, a mahazar drawn by the Tahsildar and records issued by M/s Mysore Paper Mills Ltd, Sugar factory, Bhadravati. The trial Court observed that Ex. P12 the order in O.S.51/83 directing the plaintiffs therein (the respondents/ defendants in O.S.313/96) not to disturb the possession of defendants therein over the suit schedule property, coupled with the findings in O.S.51/83 that plaintiff therein did not establish delivery of possession or having been in possession of the suit schedule property, muchless the execution of 18 RSA 2572/05 C/W RSA 2573/05 the Agreement of sale dated 10.2.1977 Ex.D2 (Ex.P1 in O.S.51/83). The trial Court rejected the oral testimony of DW1, Mallappa as unacceptable evidence since in cross examination admitted the fact that he was not aware at what time and for what purpose the Revenue Inspector had drawn the Mahazar Ex-D 10, recording that the defendants were in possession of the suit schedule property, during the pendency of O.S.313/96. DW-2 another Mallappa, the trial court observed, admitted in cross-examination that he did not know for what purpose the Tahsildar had come to the spot and accordingly held that the mahazar Ex.D10 and the statement Ex.D11 were not proof of defendants' possession of the suit schedule property. In the light of the direction of this Court in the order dated 23.6.1998 in W.P.29150/97 Ex.D44, to consider the claims of the parties as to possession on the basis of evidence placed, without being influenced by the entries in the revenue 19 RSA 2572/05 C/W RSA 2573/05 records, or observations in the said order, the trial court recorded a finding in favour of the plaintiffs and against the defendants.
14. In the appeals preferred by the defendants the lower Appellate Court framed the following points for consideration:
"9. In view of the Appeal Memos in both Appeals and arguments, the points that arise for my consideration are :
1. Whether the judgment of O.S.51/83 operates as res judicata in the present proceedings?
2. Whether the plaintiffs have been able to prove that they are in actual possession of the suit property on the date of the suit?
3. Whether judgment and decree of the trial Court is sustainable?
4. What order?"20 RSA 2572/05 C/W RSA 2573/05
and returned findings in the affirmative over point No.1 and in the negative on point No.2
15. The lower Appellate Court observed that the main issue in the Judgment and decree in O.S.51/83 Ex.P12 is as regards specific performance of an agreement of sale, and the suit was dismissed as the first agreement is barred by limitation and on a technical ground, while the second agreement was not proved in evidence. The finding on issue No.2, in O.S.51/83, over possession of the suit schedule property, it held, does not operate as rejudicata, on the premise that the said issue, is ancillary and that the cause of action for both the suits are different.
16. The lower Appellate Court though observed two relevant facts namely the observation of this Court in the order dated 23.6.1998 in W.P.29150/1997 Ex.P44 not to consider the revenue records and the 21 RSA 2572/05 C/W RSA 2573/05 order Ex.P12 passed in O.S.51/83, directing the respondents herein not to interfere with the appellants peaceful possession of the suit schedule property during the pendency of the suit, nevertheless considered Ex.P1-RTC pahani (record of rights) and Ex.D43 as also RTC Phani recording the crop grown as sugarcane, while PW-1-1st plaintiff had deposed that the crop grown was paddy; the Mahazar Ex.D10, drawn by the Revenue Inspector, during the pendency of the suit recording that the respondents are in possession of the suit schedule property as on that date; the passbook Ex.D29 issued by M/s Mysore Paper Mills Limited, recording the survey number of the land and the supply of sugarcane by the respondents, being a public institution manned by Government servants, hence not a false statement, held that the documents were acceptable evidence. As regards the testimony of DW2, the lower Appellate Court, observed that being the owner of the land to the 22 RSA 2572/05 C/W RSA 2573/05 west of the suit schedule property and aged 70, a rustic villager, has no knowledge as to why the Revenue Inspector recorded a Mahazar Ex.D10, nevertheless, observed thus: 'no chance of telling lies', and accordingly concluded that the plaintiffs are not in possession of the suit schedule property while defendants are in possession for the last 27 years, growing sugarcane crop. The plaintiffs having not examined the neighbouring land owners or Rangappa with whom a contract was entered into for supply of sugarcane, the lower Appellate Court held that the trial Court had committed an error in recording a finding against the respondents-defendants.
17. The lower Appellate Court further observed that in the absence of proof of refund of Rs.3,000/- received by the plaintiffs under the first agreement of sale dated 4.10.1976 Ex.D1, to hold thus: "it is presumed from the evidence of PW1 that in the year 23 RSA 2572/05 C/W RSA 2573/05 1976, agreements of sale executed by plaintiffs, which is marked as Ex.D1 was not barred by law of limitation and it was in existence."
18. As regards the first point for consideration framed by the lower appellate court it is no doubt true and it cannot be disputed that the plaintiffs did not in substance plead the applicability of principles of res judicata in the plaint and therefore, no issue was framed in that regard and as a result, such a plea for the first time in the appeals could not be advanced. Sri Mallikarjun C. Basareddy, learned Counsel for the respondent in RSA No.2573/2005 is correct in his submission that such a point for consideration could not have arisen for the first time before the lower appellate Court as held by the Apex Court in V. Rajeshwari Vs. T.C. Saravanabava1. In the facts obtaining therein, the Apex Court observed that the 1 2004(1) SCC 551.
24RSA 2572/05 C/W RSA 2573/05 plea of res judicata should be founded on proof of certain facts and then by applying the law to the facts so found and therefore, there was a necessity that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. Hence, a plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of an appeal.
19. Thus viewed, there can be no doubt that the Judgment and decree in O.S.51/83 Exs.P10 and P11 ipso facto, can not operate as rejudicata in the later O.S.313/96 between the same parties. Hence to that extent the lower Appellate Court was justified in recording its finding.
20. Regard being had to the pleadings and the admitted facts noticed supra, undoubtedly, the rule of estoppel by judgment applies. The trial court though 25 RSA 2572/05 C/W RSA 2573/05 did not deploy the said words as regards the rule but the manner of consideration of the material on record and the appreciation of the evidence, both oral and documentary are in the direction of applying the rule of estoppel by judgment, to record a finding that plaintiffs- appellants were in possession of the suit schedule property right from the institution of O.S.51/83 and that defendants-respondents, did not plead that they were put in possession of the suit schedule property after the dismissal of O.S.51/83. The rule of estoppel by judgment based on public policy is to ensure a finality to the litigation and no one should be vexed twice for the same cause. The respondents having suffered the interim order Ex.P12 in O.S.51/83 not to disturb the appellants peaceful possession of the suit schedule property and the Judgment and decree dismissing O.S.51/83 recording a finding that neither the suit agreement of sale was proved nor possession of 26 RSA 2572/05 C/W RSA 2573/05 the suit schedule property delivered thereunder, cannot be permitted to contend that appellants are not in possession of the suit schedule lands contrary to something which belonged to the very foundation of their case. This is not merely a rule of precedence but of substantive nature.
21. Dr.Bigelow says:
" If parties in a court were permitted to assume inconsistent positions in the trial of their causes, the usefulness of courts of justice would in most cases be paralysed; the coercive process of the law available only between those who consented for its exercise, could be set at naught by all. But the right of all men, honest and dishonest, are in the keeping of the courts and consistency of proceedings is therefore required of all those who come or brought before them." (See Dr.Bigelow on Estoppel (VI Edition) Page 783.
Lord Shaw in MOYSTAD and others -v- Commissioner of Taxation (1926 AC 155 at 165) observed:27 RSA 2572/05 C/W RSA 2573/05
" In the opinion of their lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another Judgment upon a different assumption of fact; secondly the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle .... Namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant bound by the Judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties rights to rest applies and estoppel occurs."28 RSA 2572/05 C/W RSA 2573/05
22. In the circumstances, no exception can be taken to the reasons, findings and conclusions arrived at by the trial Court. The lower appellate Court fell in error in framing the points for consideration and thereafter reversing the findings of the trial Court on the issue relating to plaintiffs' possession of the suit schedule properties.
23. It is an admitted fact that in O.S.51/83, the respondents herein, who were the plaintiffs asserted to have been put in possession of the suit schedule property under the agreements of sale dated 4.10.1976 and 10.2.1977 Exs.D1 and D2 respectively, executed by the appellants arraigned as defendants and claimed both specific performance of the said agreements and permanent injunction, also advanced identical plea in the written statement in O.S.313/96, when arraigned as defendants. It cannot be disputed that in O.S.51/83 the trial Court framed several issues including that over 29 RSA 2572/05 C/W RSA 2573/05 proof of possession. The trial in that suit, led to recording the testimony of witnesses in support of execution of the agreements of sale marked as Ex.D1 and D2 therein, while DW2 in O.S.313/96 was not examined over proof of possession. Therefore the issue framed in O.S.51/83 over proof of possession, on the basis of covenant of delivery of possession under the agreement of sale, subject matter of claim for specific performance, it cannot be said was incidental or collateral. The finding of the lower Appellate Court that issue No.2 in O.S.51/83 is incidental or collateral is perverse.
24. So also the finding of the lower Appellate Court that O.S.51/83 was dismissed as the first agreement of sale dated 4.10.1976 was barred by limitation and on technical ground, is contrary to the reasons, findings and conclusions, dismissing the suit as not only being barred by limitation but as the 30 RSA 2572/05 C/W RSA 2573/05 plaintiffs did not prove the execution of the second agreement of sale Ex.D2 dated 10.2.1977, muchless the covenant of delivery of possession therein. The conclusion of the lower Appellate Court, over dismissal of the suit on technical grounds is without application of mind and perverse.
25. Reliance placed upon Ex.D10 Mahazar drawn by the Revenue Inspector, that the respondent- defendants are in possession of the suit schedule property, is an error apparent from the face of the record. Ex.D10 is admitted by DW1 and DW2 as a document of which they have no knowledge why and when it was prepared. The author of Ex.D10 is not examined. The contents of the said Mahazar are not proved in evidence, since mere marking the documents does not inher proof of contents therein. Moreover Ex.D10 is admittedly drawn up by the revenue inspector 31 RSA 2572/05 C/W RSA 2573/05 during the pendency of O.S.313/96 i.e. after the institution of the suit.
26. Ex.P1 and Ex.P43 are RTC, pahani (record of rights) issued by the revenue authorities, which were directed to be eschewed from consideration in the matter of possession and other claims as observed by this Court in the order dated 23.6.1998 in W.P.29150/97 Ex.D44, which reads thus:
"7. However, it is needless to observe that in the suit O.S.No.313/96 pending before the civil court, the civil court is required to consider the respective claims of the parties with regard to the possession or other claims, on the basis of the evidence that may be placed before it and without being influenced by the entries made in the revenue records of the observations made in the course of the order impugned."
Hence the lower Appellate Court was not justified in relying on Ex.D1 and D43 to reverse the finding of the trial Court.
32RSA 2572/05 C/W RSA 2573/05
27. The finding of the lower Appellate Court that Ex.D29 passbook issued by M/s Mysore Paper Mills Ltd., manned by Government servants recording the survey number of the land and the names of the respondents-defendants as suppliers of sugarcane, and hence are true facts indicating that respondents were in possession of the suit lands is perverse. The author of Ex.D29 when not examined, the said passbook too could not have been relied upon by the lower appellate court as credible evidence in proof of possession, muchless of corroborative value.
28. DW-2 Mallappa admittedly was not examined as a witness in O.S.51/83 in support of proof of delivery of possession of the suit schedule property to the plaintiffs therein (respondents), in terms of the alleged agreement of sale. The oral testimony of DW.2 does not support his identity as the owner of the land adjacent to 33 RSA 2572/05 C/W RSA 2573/05 the suit schedule property since there was no material whatsoever to establish the fact that he was a grantee of land in Sy. No.89, though in cross-examination, admits to have records in his possession and would produce the same. He further states that he has not seen the appellants in possession of the suit lands at any point of time but in cross-examination testifies that the appellants put the respondents in possession of the suit schedule properties under the agreement of sale. The further statement in cross-examination that he was aware of the agreements of sale, on information by some persons in the locality and has no personal knowledge, go to discredit his statement in examination-in-chief. Therefore, the testimony of DW.1 over alleged delivery of possession of the suit schedule property to the defendants being unreliable was justifiably rejected as not credible evidence by the trial Court. 34 RSA 2572/05 C/W RSA 2573/05
29. The lower appellate Court, having failed to appreciate the testimony of DW.2 as had been done by the trial Court, jumped to the conclusion that the said testimony was truthful and that the suit schedule property was in possession of the defendants for more than 27 years, is perverse.
30. The lower appellate Court's assumption that receiving Rs.3,000/- as earnest money by the plaintiffs from the defendants and execution of the agreement of sale dated 4.10.1976 Ex.D1, which when not cancelled or proof of return of money, there was no bar of limitation for seeking specific performance of the said agreement being contrary to the finding in the Judgment and decree in O.S.51/1983, is perverse. The fact that defendants advanced the plea of delivery of possession of the suit schedule property in terms of Ex.D1 - agreement of sale dated 04.10.1976 though did not bear a covenant in relation to delivery of possession 35 RSA 2572/05 C/W RSA 2573/05 of the suit schedule property, the finding of the lower Appellate Court that the defendants are in possession of the said property and that the plaintiffs are not in possession suffers from perverse appreciation of the material evidence, a traversity of justice. Parties were bound by the Judgment and decree in O.S.51/83 Ex.P10 and P11 respectively, hence a finding to the contrary on the agreement of sale was not justified.
31. The answer to the first substantial question of law is partly in the negative holding that the lower appellate Court was not justified in reversing the judgment of the trial Court.
32. The substantial questions of law Nos.2 and 3 supra are answered accordingly in favour of the plaintiffs (appellants herein). The reasons, findings and conclusions arrived at by the trial Court in decreeing the suit, are confirmed.
36RSA 2572/05 C/W RSA 2573/05
In the result, these appeals are allowed. The common judgment and decree dated 09.09.2005 in R.A. Nos.10 and 11 of 2004 of the Civil Judge (Sr. Dn.) and JMFC., Bhadravati, is set aside and the Appeals dismissed. The Judgment and decree in O.S.313/96 is confirmed.
Sd/-
JUDGE Ln/sma