Karnataka High Court
Smt Sumitra Bai vs P Siddesh on 20 December, 2013
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
R
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF DECEMBER, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
REGULAR SECOND APPEAL NO.2681/2006
BETWEEN:
SMT SUMITRA BAI
W/O SRI. P. L. PANDURANGA RAO,
MAJOR,
R/O AGRAHARA EXTENSION
BANAVARA, ARSIKERE TALUK
HASSAN DISTRICT - 583 125. ... APPELLANT
(BY SRI. R. SHIVACHANDRA NAIK, ADV.)
AND:
1. P SIDDESH
AGED ABOUT 33 YEARS
S/O SRI SOMASHEKARA GOWDA
WORKING AS TAILOR
HULIYAR ROAD, BANAVARA
HASSAN DISTRICT - 583 125.
2. NAGARAJU
MAJOR S/O SHARADAMMA
GARDEN HOUSE, BANAVARA,
ARSIKERE TALUK,
HASSAN DISTRICT - 583 125 ... RESPONDENTS
(BY SRI. BASAVARAJ KAREDDY, ADV. FOR R-1)
****
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THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGEMENT AND DECREE DATED 1.7.2006
PASSED IN R.A.NO.58/2002 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) & ADDL.CJM, ARSIKERE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 6.4.2002 PASSED IN OS.NO.116/1996 ON
THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.), ARSIKERE.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 6.12.2013, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The rank of the parties as per their ranks before the Trial Court are retained for the purpose of easy understanding and for avoiding confusion.
2. BRIEF FACTUAL MATRIX AS PER PLEADINGS:
The plaintiff has filed a Suit for declaration of his title and for permanent injunction against the defendants 1 & 2 pertaining to the site bearing No.56/1-B, Janjar No.173 and property No.22 of Agrahara Village, Banawara Hobli, Arsikere Taluk, Hassan District, measuring East to West 40' and North to South 30' having specific boundaries towards East - Sharadamma's site No.56/1-A, West - Sharadamma's site 3 No.56/2, North - Galli and South - road. The plaintiff has claimed the said property on the basis of a grant by Manakaturu Mandal Panchayath vide Hakkupatra dated 18.2.1991. Since the date of the said grant, the plaintiff has been paying kandayam and is in possession and enjoyment of the same alleging that the defendants interfered with the possession of the plaintiff, suit came to be filed in the year 1996.
3. The defendants 1 & 2 having appeared before the Trial Court, contested the suit by filing their written statement denying the title and possession of the plaintiff over the suit schedule property and it is contended that the said property does not belong to the plaintiff and the boundaries mentioned by the plaintiff to the suit schedule property is false. Plaintiff is neither the owner nor is in possession and enjoyment of the suit property. It is specifically stated that the said property which the plaintiff claims, belongs to one Smt. Jayamma.
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4. On the basis of the above said rival contentions of the parties, the Trial Court framed the following issues:
1) Whether the plaintiff proves that the suit schedule property has been granted to him by Manakaturu Mandal Panchayath on 8.2.1991?
2) Whether the plaintiff further proves that he is in possession of the suit schedule property as on the date of suit?
3) Whether the defendant proves that the
boundaries shown in the schedule are not
correct?
4) Whether the plaintiff proves interference by the defendant?
5) What decree or order?
The plaintiff examined himself as PW-1 and also examined two witnesses as PWs.2 & 3 and got marked Exs.P-1 to P-6. On the other hand, the power of attorney holder of the first defendant was examined as DW-1 and three witnesses were also examined as DWs.2 to 4. On overall analysis of the entire oral and documentary evidence on record, the Trial 5 Court came to the conclusion that the plaintiff has not proved his case and therefore, dismissed the suit of the plaintiff.
5. Being aggrieved by the judgment of the Trial Court, the plaintiff preferred an appeal before the Civil Judge (Sr. Divn.), & Addl. CJM, Arsikere in RA No.58/2002. The First Appellate Court after going through the judgment of the Trial Court and on the basis the grounds urged by the appellant, formulated three points for its consideration, which are enumerated below:
1. Whether the judgment and decree of the Trial court is illegal and not based upon the evidence on record?
2. Whether the plaintiff / Appellant established that he has title and possession over suit property?
3. Whether the judgment and decree of the above need to be set aside and suit be decreed?
4. What order?
Ultimately answering all the three points in the 'Affirmative', the first Appellate Court reversed the findings of the Trial 6 Court by allowing the appeal and granted decree as prayed for by the plaintiff in the suit.
6. Against the First Appellate Courts' order, the first defendant preferred this Regular Second Appeal. My Predecessor, on 7.1.2011 after hearing the parties, has raised the following substantial question of law for consideration:
"Whether the Lower Appellate Court was justified in allowing the appeal and decreeing the suit for declaration and injunction, by reversing the judgment and decree of the Trial Court which had dismissed the suit on the basis of the evidence inclusive of the Commissioner's report and whether the appreciation of the evidence by the Lower Appellate Court is capricious"?
7. After hearing the learned counsel for the parties in detail at length, the judgment was reserved.
8. The learned counsel for the appellant/defendant has strenuously contended that the Trial Court has in fact considered all the oral and documentary evidence on record 7 and came to the conclusion that the plaintiff has not established the existence of the said site No.56/1-C by the side of the property of the defendant and particularly as per the boundaries shown in the plaint schedule. The first Appellate Court also came to the conclusion on the basis of the Commissioner's report and the oral evidence of the parties that the property alleged to have been granted by the Manakaturu Mandal Panchayath is no where in existence in survey No.75/1, in which the defendants' property is situated. It is also contended by the learned counsel for the Appellant that the first Appellate Court has committed a serious error in holding that the Mandal Panchayath had granted the site in favour of the plaintiff which is a Government authority and such grant cannot be disbelieved. The Trial Court in fact has in detail discussed about this particular aspect and came to the conclusion that the plaintiff has not shown to the Court satisfactorily that the said site No.56/1-B belong to the Mandal Panchayath and the Mandal Panchayath in turn has got a right to grant the said suit property in favour of the plaintiff. On the other hand, the 8 first Appellate Court without any basis reversed its finding only on the ground that once the grant is made, it cannot be disbelieved. The first Appellate Court has not considered into and appreciated the Commissioner's report and admissions of the plaintiff in this regard. The first Appellate Court has in fact relied upon the case of the defendant and ultimately on the basis of the defendants' case, plaintiff's case appears to have been decreed on the ground that the defendants will not suffer any in-convenience or injustice in the event of granting decree in favour of the plaintiff.
9. Per contra, Sri Basavaraj Kareddy, learned counsel for respondent No.1 submitted that in the written statement and also in the evidence of the defendants, they have admitted the existence of the suit schedule property to the east of the first defendant's site. The defendant/appellant herein has no claim over the suit schedule property but the defendant made unsuccessful attempt to prove that the said property belongs to one Smt. Smt. Jayamma. Therefore, the first Appellate Court was right in holding that the plaintiff has 9 proved the title and possession over the property. Therefore, the suit has been decreed. He further contended the principle that, the possession follows title and should be drawn in favour of the person who establishes the title. He further contends that, even if the decree is passed; it will no way cause any damage, injury, in-convenience or injustice to the defendants. The boundaries stated by the plaintiff is exactly similar with the Hakkupatra granted to the plaintiff. Therefore, the Trial Court committed an error in appreciating the evidence which has been rightly corrected by the first Appellate Court. Hence, no interference is called for by this Court.
10. On the basis of the above said rival contentions of the parties, the question that arise for consideration before this court is :
"Whether the first Appellate Court or the Trial Court have committed any substantial error in law in appreciating the oral and documentary evidence placed on record?"10
11. Before adverting to the pleadings and the evidence adduced by the parties in this regard, the court has to remind itself that, when the plaintiff has claimed the declaration of his title and for permanent injunction against the defendants, in view of the issues framed by the Trial Court, the burden lies on the plaintiff to prove his case. The plaintiff has to prove his case to the satisfaction of the court by means of convincing and cogent evidence not necessarily beyond reasonable doubt. If this burden is discharged, then only onus shifts on to the defendant to establish the plaintiff's case as false and on the other hand, the defendants' case is probabalized on the basis of the materials on record. The Courts cannot on the basis of distorted admission or on the basis of the disputed/not proved documents draw an inference in order to grant any remedy to any of the parties to the suit.
12. In the above backdrop, now let me see what the Trial Court has done, on what grounds the Trial Court has 11 dismissed the suit of the plaintiff, and how the first appellate Court has taken different view to decree the suit.
13. The Trial Court in so far as the ownership of the property is concerned, discussed the materials on record and gave finding at paragraph 14 of its judgment. The Trial Court has said that the plaintiff having claimed the ownership over the property on the basis of Ex.P-1 Hakkupatra issued by the Manakaturu Mandal Panchayath has to prove that the said property originally belonged to the Manakaturu Mandal Panchayath and it was the owner in possession of the suit schedule site. The Trial Court held that except producing Ex.P-1, no other documents have been placed before the Court. It also discussed that according to the plaintiff, site No.56/1 is divided into 56/1A to C and also formed site Nos.56/1 to 56/7. But no materials have been placed to show that the said property originally belonged to Manakaturu Mandal Panchayath and actually where the property is situated and how the Mandal Panchayath got the ownership of the property. Further, Trial Court observed that, 12 no materials are placed to show that the said site No.56/1 is divided into 56/1A to 1C. The Trial Court also discussed the evidence of the defendants, which revealed that one Smt. Sharadamma is the owner of land bearing survey No.75/1 measuring 4 acres 13 guntas succeeded by her after the death of her mother Smt.Lakshmamma which is situated at Bagilugatta grama. The said Smt.Sharadamma converted the said land into sites and sold one site measuring 30x40 feet as per Ex.D-4, in favour of the first defendant by virtue of a registered sale deed. Ex.D-5 and D-6 are the record of rights produced by the defendant, shows that the said land bearing survey No.75/1 originally belonged to Smt.Lakshmamma and later succeeded by Smt.Sharadamma. Subsequently, Katha was also transferred in the name of Smt.Sharadamma. Ex.D- 14 relied upon by the Trial Court also discloses that totally 64 sites have been formed in survey No.75/1 including site No.56 in the said land. The first defendant has purchased a site in No.56/1C vide registered sale deed which is marked at Ex.D-4. The Trial Court has concluded that the evidence of the plaintiff does not establish where actually the said site is 13 situated and whether it belongs to Mandal Panchayath earlier. The plaintiff has not summoned any person or any document by way of evidence, from the Mandal Panchayath to establish this particular aspect. On the other hand, the Trial Court believed the documents i.e. record of rights and index of land, sale deed of the defendant and also the Layout plan marked at Ex.D-14 coupled with the Commissioner's report concluded that the plaintiff has not proved the existence of this site in the boundaries mentioned in the plaint. Therefore, it dismissed the suit of the plaintiff. The Trial Court in fact also gave its opinion with regard to the possession of the land. The Commissioner's report relied upon by the Trial Court reveals that there is no site as such is situated as explained by the plaintiff. Therefore, on these grounds, the Trial Court had dismissed the suit of the plaintiff.
14. The first appellate Court in fact, at paragraphs 12 to 15 has discussed the case of the defendant and the documents produced by the defendant and came to the 14 conclusion that the Trial Court has ignored the evidence of the defendants and by solely relying upon the Commissioner's report and the evidence of the plaintiff, dismissed the suit. The first Appellate Court has observed at paragraph 15 that, the evidence of PWs.1 to 4 are reliable and believed the same. The first Appellate Court also relied upon Exs.P-1 to P-5 and held that the suit property belonged to the Manakaturu Mandal Panchayath and the same has been granted to the plaintiff. The first appellate court also held that the defendant No.1 has admitted the existence of the disputed property and claims that the said property is carved out of Survey No 75/1 and belongs to one Smt.Jayamma, but the said Smt.Jayamma has not examined to support the theory of defendant No.1. Relying upon above materials and also two decisions reported in:
"ILR 1990 KAR 727 in the case of Onkarappa Vs. Sanna Neelappa and 1983(1) KLJ 69 in the case of Banashankari Temple Vs. Vishwanath & Another holding that in a suit for Declaration and injunction when the court finds that the plaintiff's name is shown as kathedar in 15 the Village Panchayath records, that becomes prima facie evidence of title."
Applying the presumption that "the possession goes with the title", the first Appellate Court has drawn an inference that the plaintiff has proved her case and decreed her suit.
15. Now, this court is having responsibility to see whether the observations made by the first Appellate Court is proper and based on materials on record, whether the admissions if any on the part of the defendants are un- equivocal and free, admitting the title and possession of the plaintiff in order to rely upon such admission of the defendant and thereby, the first Appellate Court has right in coming to such conclusion.
16. In order to thrash out this particular aspect, it is just and necessary to relook into the evidence of the plaintiff and defendants both oral and documentary. The document Ex.P-1 produced by plaintiff is the Hakkupatra, granted by the Pradhan of Mandal Panchayath of Manakaturu. On 16 meticulous reading of this document, it shows that a site bearing No.56/1-B in Agrahara village, Arsikere Taluk, Hassan District was granted in favour of the plaintiff Siddesh son of Sri Somashekara Gowda in the year 1991 precisely on 8.2.1991 (suit Schedule property). But very peculiarly enough, the survey number in which the said site has been carved out left blank in this particular document. Further there is no information available from this document as to how the Panchayath has acquired the ownership of the said schedule site. The documents which are marked at Exhibits P-2 and P-3 are the kandayam paid receipts in so far as this site is concerned. Ex.P-4 is the Assessment Register Extract pertaining to this site. Ex.P-5 is also Assessment Register Extract which came into existence subsequent to the alleged grant in favour of the plaintiff. Ex.P-6 is said to be a plan which bears the seal and signature of Mandal Panchayath and Pradhan of Manakaturu Mandal Panchayath and this document does not show any site number, but it only shows that there are sites in Agrahara extension. Site Nos.56/1-A and 56/1-B are mentioned as sites belonged to Manakaturu 17 Mandal Panchayath and other sites are shown simply as sites without their measurement. There is no measurement mentioned in so far as site Nos.56/1-A and 56/1-B. This document also does not show as to how the Mandal Panchayath acquired this property, where actually this property is situated, whether it is carved out in any survey number or whether it is a gramtana site belonged to Mandal Panchayath etc., There is no explanation in oral or documentary as to who, how and when this document is prepared. Looking to the above said documentary evidence produced by the plaintiff, it reveals that there is no source of title to show that Mandal Panchayath was the owner for the purpose of granting this site in favour of the plaintiff. Merely because Manakaturu Mandal Panchayath has granted this site in favour of the plaintiff, when the defendant has denied the title of the plaintiff over the property, it becomes incumbent upon the plaintiff to show where exactly the site is situated particularly showing that the said property belonged to Mandal Panchayath and the Mandal Panchayath 18 had right to grant or allot the said site in favour of the plaintiff.
It is worth to rely upon a ruling of the Apex Court to substantiate the above view reported in 1993 Supp(2) SCC 560 between Sri Chand and Inder and others that:
"Plaintiff has to establish his case on cogent Evidence. Declaration of occupancy right under Punjab occupancy Tenants( Vesting of Proprietary Rights) Act 1952 not shown to have been obtained by predecessor-in-interest of plaintiff, nor the period of actual occupancy and cultivation of the land by the predecessor, nor the time when conditions for getting the status of occupancy tenant fulfilled shown by the plaintiff. On the other hand declaration as occupancy tenant under the Occupancy Tenant Act obtained by defendants and Girdwari records showing possession and cultivation of the land by defendant even during lifetime of the common predecessor-in-interest. Plaintiff failed to establish his case, question whether defendants had lawfully acquired any sub tenancy right under the predecessor in interest need not be gone into as even in the absence 19 thereof, and weakness of defendant's case would not strengthen plaintiff's case (Emphasis supplied) Further, it is clear and settled statutory principle of law that under Section 101 of the Evidence Act, the burden lies on the plaintiff to prove his case on the basis of materials available. The plaintiff cannot rely upon the weakness or absence of any defence evidence of the defendant to discharge the onus. If plaintiff claims title to any property he must prove his title by establishing that his predecessor in title has got a marketable or salable interest over the property otherwise the plaintiff has to fail. It should also be borne in mind that misplacing the burden of proof on a particular party and recording findings on that basis by courts vitiates its judgment.
17. Now, coming to the documents produced by the defendant Ex.D-4, which is a registered sale deed executed by one Sri Nagaraj S/o. Sharadamma in favour of the first defendant on 12.7.1995 in respect of the property bearing site No.56/1-C having specific boundaries. Ex.D-5 is the Index of 20 Lands pertaining to survey No.75/1 measuring 4 acres 17 guntas standing in the name of Smt.Lakshmamma W/o. Doothaiah and later in the name of Smt.Sharadamma D/o Smt.Lakshmamma. This Smt.Sharadamma daughter of Smt. Lakshmamma is no other than the mother of the vendor of the first defendant i.e. Mr. Nagaraj (Second defendant). Ex.D- 6 is the Record of Rights in which also, the survey No.75/1 is shown to be in the ownership of Smt.Sharadamma D/o. Smt. Lakshmamma. This land is shown to be situated in Agrahara, Banawara Hobli, and Arsikere Taluk. Hassan District. Ex.D-7 is the House/Land Tax Assessment List for the year 1984-85 pertaining to site No.56/1-C in the name of Smt.Sharadamma, later sold to first defendant Smt. Sumitrabai W/o. Panduranga Rao by the son of Smt.Sharadamma by name Sri.Nagaraj. The katha had been made out in the name of the first defendant pertaining to the said site under Ex.D-8 which is the Assessment Register Extract pertaining to the year 1992-93. The other documents are kandayam paid receipts by the first defendant. Another important document relied upon by the defendant is Ex.D-14, 21 which is the lay-out plan pertaining to the sites formed in survey No.75/1, wherein site No.56 is shown to be measuring 40' x 30' in this particular document. Though this document is strongly relied upon by the defendant, this document is neither helpful to the plaintiff nor to the defendant because of the simple reason that this document does not show the site numbers 56/1-A, 56/1-B and 56/1-C, it only shows site No.56 measuring 40' x 30'. Exhibits D-15 to D-18 are the Kandayam paid receipts in the name of the first defendant issued by Kachighatta Grama Panchayath pertaining to site No 56/1-C. Exhibit P.18 is the House completion certificate issued in respect of site No 56/1-C by the Gram Panchayath Kachighatta in favour of the first defendant. The plaintiff in fact has not denied the title and possession of the first defendant over this property as the boundaries shown to the suit schedule property shows that the defendants property is situated to the west of the suit schedule property. 22
18. On perusal of the above said documents, one cannot definitely come to the conclusion where exactly this site No.56/1-B claimed by the plaintiff is situated. Whether it is situated in the sites carved out in survey No.75/1 or it is a separate site belonging to the Manakaturu Mandal Panchayath situated some where else. No document is produced before the court either by the plaintiff or by the defendants to show that site No.56 is subsequently divided into site Nos.56/1-A, 1-B and 1-C. Even Ex.P-6 - sketch produced by the plaintiff does not establish this particular fact. Even defendants document does not disclose that in what manner, under which document, site No.56 is divided into or modified as site numbers 56/1-A, 1-B and 1-C. The measurements of these sites are also very important, but that has lost sight of by both the courts below. As per the measurements in Ex.D-14 Layout plan produced by the defendant, the measurement of site No.56 is shown as 40 x 30 feet. It is seen from Ex.D-4, the sale deed executed in favour of defendant No.1 in respect of site No.56/1-C by the previous vendor also measures East to west 40' and North to 23 South 30'. The site No.56/1-B as claimed by the plaintiff granted by the Mandal Panchayath also measures East to West 40' and North to South 30'. No measurement available so far as site No.56/1-A is concerned. When site No.56 under Ex.D-14 measures only 40' x 30', how it can be divided into 3 parts measuring to the same extent of 40' x 30' and that can be sold in favour of first defendant by its vendor or site No 56/1-B could be granted by the Mandal Panchayath in favour of the plaintiff. The above said discrepancies have not been clarified either by the plaintiff or by the defendants before the courts below. The Hakkupatra Ex.P.1 does not disclose the survey number in which the site has been carved out. Though the plaintiff is not specific about his site is situated in survey No.75/1, but ambiguously claims that the said property belongs to him only on the basis of the Hakkupatra. The boundaries mentioned in Hakkupatra, actually similar with site No.56/1-B carved out in survey No.75/1. According to the defendant, this property has been sold by the vendor of the defendant No.1 in favour of one Smt.Jayamma and she is in possession of the said site. Unless, the plaintiff 24 satisfactorily by means of convincing evidence shows to the court that this particular site No.56/1-B is carved out of survey No.75/1 and the same either earlier belonged to or has been acquired by the Mandal Panchayath and thereafter, the said site has been allotted to the plaintiff. In the absence of such proof the court cannot draw any inference that the plaintiff has proved his title and possession over the said suit schedule property. The identity of the property with specific boundaries and the place where this particular site is situated itself is not satisfactorily established by the plaintiff. Therefore, the decree ought not to have been granted by the first Appellate Court. Neither the first Appellate Court nor the Trial Court have in fact meticulously gone into the fact that the plaintiff or the defendant have not shown how this site No.56 had been divided into 56/1-A, 1-B and 1-C with specific measurements.
19. On the above said discrepant documents, it is just and necessary to look into the Commissioner's report. In fact, the Commissioner was examined before the Trial Court as 25 D/C/R/W.4. He deposed before the Trial Court on taking the documents from the court, that there are no sites marked as site Nos.56/1-A, 56/1-B and 56/1-C in the sketch. But it is only shown as site No.56/1-C, to come to any conclusion that existence of site No.56/1A and 1B, the Commissioner stated there was absolutely no material. Therefore, the court ought not to have come to the conclusion that site No.56/1-B is in existence and the same was granted in favour of the plaintiff by the Manakaturu Mandal Panchayath.
20. The oral evidence adduced by the parties, is nothing but re-iteration of the plaint averments. Even in the evidence, none of the parties have said how and when the site No.56 had been divided into 56/1-A, 1-B and 1-C. They have not clarified as to what was the measurement of site No. 56/1 and what are the measurements in so far as those sites are concerned. Though the plaintiff has admitted that there are site Nos. 56/1-A, 1-B and 1-C, but in the absence of production of any documentary evidence before the court, such evidence cannot be believed. Likewise, though the 26 defendants have adduced oral evidence, is not sufficient in the absence of production of any documentary evidence as to how the site No.56 has been divided into 56/1-A, 56/1-B and 56/1-C when it is specifically mentioned in Ex.D-14 that site No.56/1 measures only 40' x 30'. How can other sites carved out of the said site, divided in Nos.56/1-A, 1-B and 1-C also could measure 40' x 30' each.
21. On perusal of the judgment of the Trial Court, it reveals the Trial Court has categorically observed that the plaintiff has not shown site No.56/1-B, earlier belonged to the Manakaturu Mandal Panchayath and it had a marketable value or valid title to sell the same in favour of the plaintiff. The first Appellate Court only on the ground that the site has been granted by the Mandal Panchayath, it is to be presumed that the site belongs to Mandal Panchayath. The first Appellate Court has only concentrated on the oral and documentary evidence of the defendants and arrived at the conclusion about the existence of site Nos. 56/1-A, 1-B and 1-C as admission on the part of the defendants. But, even if 27 it is admitted by the defendants or by the plaintiff, unless it is shown to the court by means of cogent and convincing documentary evidence with regard to the existence of site Nos.56/1-A, 1-B and 1-C with specific boundaries and measurements, the court cannot rely upon the oral evidence as done by the first Appellate Court to draw an inference.
22. The first appellate court has also relied upon Exs.P-1 to P-5 and rejected the observations of the Trial Court on the ground that existence of suit property within the suit boundaries has been admitted by DW-4 himself. But here, the oral evidence of DWs.1 to 4 even taken as an admission, it only shows existence of 56/1-B site in survey No.75/1, but they neither admitted that the said property belonged to Manakaturu Mandal Panchayath nor admitted the title of the plaintiff in any manner. The contention of the first defendant that site No.56/1-B belongs to Smt. Jayamma, has been taken as her admission by the first Appellate Court. In my opinion, the first Appellate Court has committed an error in taking the evidence of the defendants as admissions to favour 28 the plaintiff. As I could able to see no where in the pleadings or in the evidence, that the defendants have admitted the title and possession of the Manakaturu Mandal Panchayath or the plaintiff in any manner. On the other hand, the defendants have contended that site No.56/1-B belongs to Smt. Jayamma and that the said property never belonged to Mandal Panchayath at any point of time. The first Appellate Court further wrongly arrived at the conclusion relying upon the rulings reported in ILR 1990 KAR 727 between Onkarappa Vs. Sanna Neelappa by holding that once the certificate is issued, it symbolizes constructive possession on the grantee. Relying upon another ruling of this Court reported in 1983(1) KLJ 69 in the case of Banashankari Temple Vs. Vishwanath & Another to the effect that in a suit for injunction it is found that the plaintiff's name is shown as kathedar in the Village Panchayath record that can be relied as prima facie evidence of title and the presumption that possession goes with the title, applies to such a situation. However, the above said rulings are applicable in the event of the plaintiff establishing the existence of site Nos. 56/1-A, 1- 29 B and 1-C carved out in site No.56 and previous possession and title of the Mandal Panchayath. In the absence of such materials on record, the first appellate court could not have drawn that the village Panchayath was the absolute owner in possession and enjoyment so as to pass on the title in favour of the plaintiff under Ex.P-1. In addition to that, when the boundaries appended to site No.56/1-B in the Hakkupatra tallies with the site No.56 carved out in survey No.75/1, it is incumbent upon the plaintiff to show that either survey No.75/1 originally belonged to the Mandal Panchayath and out of that, the Mandal Panchayath had carved out these sites, or purchased these sites from the owner of survey No.75/1 in order to grant the same in favour of the plaintiff. Without observing or finding out these material facts, the first Appellate Court committed serious error in law holding that the plaintiff has proved the title and possession over the property when there is a serious discrepancy with regard to the carving out of site Nos.56/1-A, 1-B and 1-C out of site No.56. The first appellate court has not even bothered whether the said site No.56/1-B claimed by the plaintiff falls 30 within the site carved out in survey No.75/1 or it is independent of that so as to grant the decree in favour of the plaintiff. Therefore, the evidence of the plaintiff and the defendants both documentary and oral, has been wrongly interpreted by the first appellate court without there being any basis.
23. It is a recognized principle of law, that, the inference drawn by the court must be based on the admissible legal evidence available on record. Merely on the conjunctures or surmises on the basis of imaginary assessment of the evidence, the court cannot draw an inference of existence or non existence of a fact in issue or relevant fact which are not proved by the plaintiff. Further, the first appellate court has observed that the defendant has not claimed any right, title, interest over the property of the plaintiff; he will not suffer any inconvenience or injustice in the event of granting any decree in favour of the plaintiff. If the analogy of the first appellate court is accepted, it goes without saying that even in the absence of proof by the 31 plaintiff, if the defendant does not suffer any inconvenience, the court automatically has to grant the decree. Such an observation cannot said to be a sound principle of law. The plaintiff has to fall or stand on the strength of his own case and he cannot take the advantage of the weakness of the defendants' case. There is no burden of proof on the defendants in so far as this case is concerned. But the entire burden of proving title and possession is on the plaintiff. When the plaintiff or the defendants fail to prove their case pleaded on the basis of evidence on record, the court has to draw the inference that the plaintiff has to fail, as initial burden has not been discharged by him. In the present case, the entire burden is on the plaintiff to prove his title and possession over the suit schedule property which has not been satisfactorily proved.
24. Merely because the defendant does not suffer any inconvenience or the defendant has not denied the existence of site No.56/1B, it does not mean to say that the plaintiff is entitled for a decree. On the other hand, when the defendant 32 has contested the case of the plaintiff, why the defendant should suffer an unnecessary decree throughout his life. When the defendant is called upon to the court by the plaintiff, she should establish the substantial legal right over the property. Whether it causes inconveniences to the defendant or not, is totally insignificant. When those aspects were not established, calling upon the defendants to the court itself amounts to infringement of their legal right. These are all the basic factors that have been lost sight of by the first Appellate Court. Therefore, the first Appellate Court has substantially committed an error in law in appreciating the documentary and oral evidence on record by wrongly setting aside the judgment of the Trial Court. Hence, this court inevitably has interfered with an order of the first Appellate Court by answering the substantial question of law formulated in the 'Affirmative'.
25. In view of the aforesaid observations, the Order of the first appellate court deserves to be set aside. Hence, I proceed to pass the following:33
ORDER:
The Regular Second Appeal is hereby allowed. Consequently, the judgment and decree passed by the first Appellate Court in RA No.58/2002 dated 1.7.2006 is hereby set aside. The judgment and decree passed by the Trial Court in OS NO.116/1996 dated 6.4.2002 is hereby confirmed. Consequently, the plaintiff's suit is dismissed.
As the plaintiff has made the defendant to run from pillar to post, the cost of the Original Suit, Regular Appeal and this Regular Second Appeal shall be borne by the plaintiff.
Sd/-
JUDGE PL