Karnataka High Court
Melville Pinto vs Mohammed Rasheed on 4 July, 2019
RSA.No.161/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY 2019
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR SECOND APPEAL NO.161 OF 2015(POS)
BETWEEN:
MELVILLE PINTO
S/O ALBERT PINTO
AGED ABOUT 65 YEARS
R/AT D.NO.25-14-817
VALENCIA,
MANGALURU -575 002 ... APPELLANT
(BY SRI. S.N.BHAT, ADVOCATE)
AND:
MOHAMMED RASHEED
S/O ABDUL RAHIMAN
AGED ABOUT 35 YEARS
R/AT MOHAMMED MANZIL
NEAR MARAVOOR MASJID
KENJAL POST
MANGALURU - 575002. ... RESPONDENT
(BY SRI.A.R.DESAI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY I ADDITIONAL DISTRICT JUDGE, DAKSHINA
KANNADA, MANGALURU DATED 17.12.2014 IN
R.A.NO.26/2010 CONFIRMING THE JUDGMENT AND DECREE
PASSED BY THE PRL. CIVIL JUDGE (SR. DVN) CJM
MANGALURU IN O.S.NO.67/2007 DATED 27.11.2009.
THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
RSA.No.161/2015
2
JUDGMENT
This second appeal of defendant arises out of judgment and decree dated 17.12.2014 in R.A.No.26/2010 passed by I Additional District Judge, Dakshina Kannada, Mangaluru.
2. By the impugned judgment and decree, First Appellate Court dismissed the appeal and confirmed the judgment and decree dated 27.11.2009 passed by the Principal Civil Judge (Sr. Dvn.) and C.J.M., Mangaluru in O.S.No.67/2007.
3. By the said judgment, trial Court had decreed the suit of plaintiff for possession of suit schedule property and granted mesne profits at the rate of Rs.50/- per day from 10.02.2007 till defendant delivers possession of the property to the plaintiff.
4. Respondent was the plaintiff and appellant was the defendant before the trial Court. For the purpose of convenience, parties will be referred to henceforth with their ranks before the trial Court. RSA.No.161/2015 3
5. Subject matter of the suit was house property bearing Door No.25-14-817 situated at Jappinamogaru Village of Mangaluru Taluk carved out of Sy.No.5-1A.
6. The case of the plaintiff in brief is as follows:
That he purchased the suit schedule property under the registered sale deed dated 15.11.2001 from one Ms.Angeline Pinto and rectification deed dated 18.12.2001. Defendant was the relative of Ms.Angeline Pinto and he was in possession of the property. At the time of purchase, defendant represented that he would vacate and surrender the possession of the property within one year, which he did not comply despite requests. Therefore, plaintiff got issued notice dated 24.01.2007 revoking the license and demanded for possession of the property, which was not complied.
Therefore, he sought decree for possession and mesne profits at the rate of Rs.100/- per day from the date of notice.
RSA.No.161/20154
7. Defendant contested the suit denying the execution of the sale deed and rectification deed by Ms.Angeline Pinto. He contended that as per the documents, sale deed was executed by one Mr.Lancy Pinto as Power of Attorney holder of Ms.Angeline Pinto and execution of the said Power of Attorney was also disputed. He contended that all those documents were forged and concocted one and the alleged rectification deed was registered subsequent to the death of Ms.Angeline Pinto. He claimed that Ms.Angeline Pinto was spinster and on her death he being her nephew, property devolved on him and his brother.
8. On the basis of such pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that he became the owner of the suit schedule properties under the registered sale deed dated 15.11.2001 and rectification deed dated 18.12.2001?
2) Whether the plaintiff proves that the defendant is in permissive possession of the suit schedule properties under his previous vendor ?RSA.No.161/2015 5
3) Whether the plaintiff is entitled for possession of the suit schedule properties ?
4) Whether the plaintiff is entitled for past mesne profits at Rs.1,100/- and future mesne profits at the rate of Rs.3,000/- p.m. as prayed ?
5) Whether the defendant proves that he has perfected his title to the suit schedule properties by way of adverse possession ?
6) What decree or order ?
9. In support of the case of the plaintiff, his Power of Attorney was examined as PW.1 and Ex.P1 to Ex.P9 were marked. Defendant was examined as DW.1 and on his behalf Ex.D1 to Ex.D11 were marked.
10. The trial Court after hearing the parties decreed the suit on the following grounds:-
(i) Ex.P2 and Ex.P3 - the sale deed and rectification deed are the registered documents.
Therefore, they carry presumption of execution of the same.
RSA.No.161/20156
(ii) The defendant did not challenge the sale deed and rectification deed by filing any suit.
(iii) The defendant has not replied the notice Ex.P7 denying the documents set up by the plaintiff.
(iv) Though rectification deed Ex.P3 was registered on 26.04.2002, after the death of Ms.Angeline Pinto, as per Section 47 of the Registration Act, 1908, the document operates from the date of its execution. Therefore, later registration of the document will not enure to the benefit of defendant.
11. Defendant challenged the said judgment and decree before the First Appellate Court in R.A.No.26/2010, wherein the First Appellate Court confirming the reasons and findings of trial Court, dismissed the appeal.
12. This Court admitted the appeal to consider the following substantial questions of law:
(i) Whether the Courts below justified in decreeing the suit on the basis of Power of Attorney said to have been executed by Angeline Pinto when RSA.No.161/2015 7 the original Power of Attorney was not registered under the provisions of Section 33(a) of the Registration Act?
(ii) Whether the Ex.P3, rectification deed registered after the death of the original owner of the property is a valid document or not?
(iii) Whether the Courts below were justified in decreeing the suit of the plaintiff on the basis of Power of Attorney mentioned in Ex.P2 and Ex.P3 in the absence of production of such Power of Attorney?
(iv) Whether the Courts below justified in decreeing the suit when Ex.P2 and 3 are not challenged by the defendant?
(v) Whether the Courts below justified in decree the suit of the plaintiff in the facts and circumstances of the present case?
13. Sri S.N.Bhat, learned Counsel appearing for appellant seeks to assail the impugned judgments and decrees of the Courts below on the following grounds:
(i) The plaintiff nowhere in the plaint referred that Ex.P2 and Ex.P3 were executed by a Power of Attorney holder. It is mentioned that Ms.Angeline Pinto had executed Power of Attorney in favour of Mr.Lancy RSA.No.161/2015 8 Pinto and he in turn executed the sale deed. The said Power of Attorney was not produced in evidence.
(ii) Defendant disputed the execution of the sale deed and rectification deed and rectification deed was registered after the death of Ms.Angeline Pinto.
Therefore, a cloud was created on the title of the plaintiff and he could not have maintained suit for possession without seeking for declaration of title.
(iii) The executant of Ex.P2 and Ex.P3 was not examined and Courts below passed the judgment and decree based on no evidence.
(iv) Ex.D3 - the endorsement issued by the Sub Registrar states that Ms.Angeline Pinto herself presented the document for registration, but by that time she had died. That fact was overlooked by the Courts below.
14. Per contra, Sri A.R.Desai, learned Counsel for respondent seeks to support the impugned RSA.No.161/2015 9 judgments and decrees of the Courts below on the following grounds: [
(i) Ex.P2 and Ex.P3 were the registered documents. The executant of Ex.P2 and Ex.P3 was nonetheless the brother of defendant. The defendant did not challenge those documents. Therefore, the Courts below rightly relied on the registered documents which carry some sanctity/presumption.
(ii) As per Section 47 of the Registration Act, 1908, the documents operate from the date of execution, not from the date of registration. Therefore, even if Ex.P3 was registered subsequent to the death of Ms.Angeline Pinto, that is a valid document.
(iii) Since defendant did not challenge Ex.P.2 and Ex.P3 before any Court of law, there was no need for plaintiff to seek declaration of the title.
15. This being a second appeal under Section 100 of CPC, when a Court can substitute its own opinion is explained by the Hon'ble Supreme Court in Gurnam RSA.No.161/2015 10 Singh v. Lehna Singh (2019 SCC Online SC 374) relying upon the earlier judgment of the Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [(1999) 3 SCC 722] in para 26 of the judgment held as follows:
"26. .......As per law laid down by this Court in a catena of decisions, the jurisdiction of High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of 'a substantial question of law' is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in case of Kondiba Dagadu Kadam (Supra), in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; or
(ii) Contrary to the law as pronounced by the Apex Court; or
(iii) Based on in-admissible evidence or no evidence."
(Emphasis supplied) RSA.No.161/2015 11
16. From the aforesaid judgment, it becomes clear that generally when there are concurrent findings of the Courts below, the High Court do not interfere with such findings unless any of the three conditions mentioned in Gurnam Singh's case are satisfied.
17. In the light of the said judgment, now this Court has to see whether judgments and decrees of the Courts below are contrary to the mandatory provisions of applicable law, or the law pronounced by the Apex Court or based on inadmissible evidence or no evidence.
18. There was no dispute that Ms.Angeline Pinto was the absolute owner of the suit property and she was the maternal aunt of defendant. It was also not in dispute that Mr.Lancy Pinto was the younger brother of defendant. Ms.Angeline Pinto died on 22.12.2001.
19. In the plaint, plaintiff claimed that Ms.Angeline Pinto executed the sale deed Ex.P2 on 15.11.2001 and rectification deed Ex.P3 on 18.12.2001. In the entire plaint, there was no whisper about RSA.No.161/2015 12 Ms.Angeline Pinto executing General Power of Attorney in favour of Mr.Lancy Pinto on 16.06.2001 and Mr.Lancy Pinto in turn executing Ex.P2 and Ex.P3 in favour of the plaintiff as a General Power of Attorney holder. Therefore, this material fact was missing from the plaint.
20. Even during the course of evidence, the alleged General Power of Attorney executed by Ms.Angeline Pinto in favour of Mr.Lancy Pinto on 16.06.2001 was not produced in evidence and the said Mr.Lancy Pinto was not examined. Even the plaintiff himself was not examined.
21. Ex.P2 - the sale deed dated 15.11.2001 is purportedly executed by Mr.Lancy Pinto as Power of Attorney holder in respect of building bearing Door No.25-14-817 carved out of Sy.No.5-1(Part) measuring 12½ cents of Jappinamogaru Village of Mangaluru Taluk.
RSA.No.161/201513
22. Ex.P3 - rectification deed purportedly executed again by Mr.Lancy Pinto on 18.12.2001 for substituting Sy.No.5/1(Part) by Sy.No.5-1A. Ex.P3 is purportedly registered on 26.04.2002. Admittedly, Ms.Angelino Pinto died on 22.12.2001, which is reinforced by Ex.D2-extract from the Register of Burials kept at the Church of St. Vincent Ferrer, Valencia, Mangaluru.
23. The concerned Sub Registrar was not examined by the plaintiff to prove who presented Ex.P2 and Ex.P3 for registration. The defendant produced Ex.D3 - the endorsement issued by Public Information Officer of Sub Registrar's Office, Mangaluru on 26.03.2007. In the cross-examination of defendant, this document was not challenged. The recitals in Ex.D3 state that Ms.Angeline Pinto presented that document on 16.04.2002 for registration and that was registered on 26.04.2002. Apparently, the alleged presentation by Ms.Angeline Pinto was after her death. RSA.No.161/2015 14
24. The Courts below without appreciating such evidence, simply say that Ex.P2 and Ex.P3 are the registered documents, therefore, they carry presumption. The Courts below did not even refer to the statute which confers presumption regarding execution of Ex.P2 and Ex.P3.
25. The Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others [(2008) 4 SCC 594] held under what circumstance in a case, declaration of title has to be sought and whether the same is not necessary.
26. In para No.14 of the said judgment, it was held as follows:-
"14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is RSA.No.161/2015 15 made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient".
(Emphasis supplied)
27. Therefore, this Court has to see whether there was cloud on the title of the plaintiff. As already pointed out in the plaint, there was no whisper about the General Power of Attorney executed by Ms.Angeline Pinto in favour of Mr.Lancy Pinto and in turn Mr.Lancy Pinto executing Ex.P2 and Ex.P3 on behalf of Ms.Angeline Pinto.
28. The defendant in his written statement as well as in the evidence seriously disputed the execution of Ex.P2 and Ex.P3. Ex.P3 was registered after the RSA.No.161/2015 16 death of Ms.Angeline Pinto. Ex.D3 states that Ms.Angeline Pinto presented the document for registration after the date of her death. These facts and circumstances certainly throw a cloud on the title of the plaintiff.
29. The Courts below ought to have observed that the suit filed by the plaintiff for possession simplicitor without declaration of title was not maintainable.
30. The Courts below hold that defendant did not challenge Ex.P2 and Ex.P3 by filing any suit, therefore, the plaintiff need not have sought for declaration and whatever evidence adduced was sufficient to prove the plaintiff's case.
31. Section 101 of the Evidence Act, 1872 speaks of burden of proof. It says whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts RSA.No.161/2015 17 must prove that those facts exist. Therefore, burden of proof lies upon him.
32. Section 102 of the Evidence Act states that the burden of proof in a suit lies on that person who would fail, if no evidence at all were given on either side.
33. Section 103 of the Evidence Act states that burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
34. With regard to legal presumption, though the Courts below state that there is a presumption in favour of registered documents, they do not refer any legal provision under which the Courts below drew such presumption. The only presumption that can be pressed into service in respect of registered documents probably is Section 114 (e) of Indian Evidence Act which say that the judicial and official acts have been regularly performed. But even presumption under Section 114(e) RSA.No.161/2015 18 is not an irrebuttable presumption as the words used are 'may presume'. Such presumption was rebutted by the defendant by producing Ex.D3 and by non- production of General Power of Attorney allegedly executed by Ms.Angeline Pinto in favour of Mr.Lancy Pinto.
35. What is degree of proof? In a suit, burden of proof was examined by the three judges Bench of the Hon'ble Supreme Court of India as long as back in the year 1954 in Moran Mar Basselios Catholicos and Another Vs. Most Rev. Mar Poulose Athanasius & Others [AIR 1954 SC 526]. In the said case, it was held that in a suit for possession, in order to succeed, plaintiffs must establish their title by adducing sufficient evidence to discharge the onus on them irrespective of whether defendants have proved their defence. It was further held that it is well established that plaintiff in ejectment must succeed on the strength of his own title and not on the weakness of the defendant. That view was reiterated by the Hon'ble Supreme Court of India in its judgment Rangammal Vs. Kuppuswamy and RSA.No.161/2015 19 Another [(2011) 12 SCCC 220: (2012) 2 SCC (Civ) 448]. It was held that plaintiff has to prove his case on the basis of material available and he cannot rely on weakness or absence of defence of defendant to discharge the onus. It was further held, if plaintiff claims title to property, he must prove his title and until he discharges his burden, the Court cannot proceed on the basis of the weakness of the other party.
36. Though GPA under which the title has allegedly passed to the plaintiff under Ex.P2 and Ex.P3 was not proved in evidence and though the alleged Power of Attorney holder/executant of Ex.P2 and Ex.P3 was not examined, the Courts below held that defendant has not denied the title (though the same was denied) and that the title of the plaintiff is proved and passed decree for eviction. Such judgments and decrees were contrary to Sections 101 to 103 of Indian Evidence Act and the judgments of the Hon'ble Supreme Court of India referred to supra. Therefore, the impugned judgments and decrees of the Courts below RSA.No.161/2015 20 are clearly covered under the three criteria explained in Gurnam Singh's case. Therefore, even though there are concurrent findings of the Courts below, such concurrent findings are the outcome of the concurrent errors of the Courts below.
37. At this stage, learned counsel appearing for respondent relying on para No.33 of the judgment in Anathula Sudhakar's case referred to supra submits that no opinion expressed in this appeal shall be construed as expression of opinion regarding the title.
38. Therefore, the appeal is allowed. The impugned judgment and decree dated 17.12.2014 passed by I Additional District Judge, Dakshina Kannada, Mangaluru in R.A.No.26/2010 and the judgment and decree of the trial Court in O.S.No.67/2007 passed by the Principal Civil Judge (Sr.Dvn.) and C.J.M., Mangaluru on 27.11.2009 are hereby set aside.
Suit of the plaintiff is hereby dismissed. RSA.No.161/2015 21 Having regard to the facts and circumstances of the case, no order as to costs.
Nothing stated herein or by the Courts below shall be construed as expression of opinion regarding title in any future suit for declaration that may be filed by the respondent in accordance with law or any defence available to the appellant.
In view of disposal of the appeal, IA No.2/2015 filed for interim stay does not survive for consideration and is disposed of accordingly.
Sd/-
JUDGE PYR