Nagamma and Others vs Dase Gowda and Others

Aravind Kumar, J.

This is a plaintiffs second appeal directed against judgment and decree passed by Principal Civil Judge (Sr. Dn.) and JMFC, Madhugiri, dated 17.04.2010, in R.A. No. 301/2007 dismissing the appeal filed by unsuccessful plaintiff and affirming the judgment and decree passed by Civil Judge (Jr. Dn.) and JMFC, Koratagere, in O.S. No. 275/1993 whereunder judgment and decree dated 23.07.1999 passed dismissing plaintiffs suit for declaration and perpetual injunction came to be confirmed.

I have heard Sri. Balagangadhar, learned counsel appearing on behalf of Sri. G.S. Venkat Subba Rao for appellant and Sri. G.M. Siddappa, learned counsel appearing for respondents.

Facts in brief which has led to filing of this second appeal are as under and parties are referred to as per rank in the trial Court.

Plaintiff filed a suit for perpetual injunction in respect of three (3) items of suit property, which is morefully described in plaint schedule (hereinafter referred to as ''suit property'' for the sake of brevity), contending inter alia that sale deed dated 25.01.1966 executed by her in favour of defendant is only a nominal sale deed and despite execution of sale deed, she had continued to be in possession of suit properties and thereby she has perfected her title to suit schedule properties by adverse possession. Hence, she sought for declaration to declare that she had perfected title to suit property by adverse possession and also to restrain defendant from interfering with her possession.

On service of suit summons, defendant appeared and filed written statement and averments made in the plaint came to be denied except to the extent expressly admitted therein and it was contended by defendant that khatha of suit property has been transferred to the name of defendant and he is in possession and enjoyment of same and khatha transfer proceedings initiated by plaintiff had also resulted in adverse order being passed against plaintiff and other averments made in the plaint also came to be denied. It was specifically pleaded that defendant had purchased the suit schedule property under a registered sale deed dated 25.01.1966 and he is in possession eversince date of purchase and khatha of suit schedule properties has been transferred to defendant''s name and he has also sold 20 guntas of land in Sy. No. 37/8 (which is not the subject matter of suit property) to one Sri. Gidadagalahalli Boppanna and he is in possession of said property. All other averments of the plaint came to be denied by defendant.

On the basis of pleadings of parties, trial Court framed following issues for its adjudication:

"(1) Whether the plaintiff proves that she is the owner in possession of the suit schedule property?

(2) Whether the plaintiff proves that the sale deed dated 25.1.1966 is a Nominal sale?

(3) Whether the suit is not maintainable?

(4) Whether the boundary furnished by the Plaintiff is not correct?

(5) What order or Decree?"

Plaintiff got her husband examined as P.W. 1 and in all she produced 7 documents and they were all got marked as Exs. P-1 to P-7. Defendant got himself examined as D.W.1 and in all produced 17 documents and got it marked as Exs. D-1 to D-17. On appreciation of oral and documentary evidence, trial Court held that plaintiff has failed to prove that she has continued in possession of suit property and sale deed under which suit property has been sold by her to defendant namely, sale deed dated 25.01.1966, Ex. D-1, would evidence that defendant is in possession and enjoyment of suit property and in the pahanis for the year 1990 to 1997-98 produced and marked as Exs. D-3 to D-14 defendant''s name is reflected in Column Nos. 8 to 12(2) and as such, a presumption arises under Section 133 of the Karnataka Land Revenue Act that defendant is in possession. It was also noticed by the trial Court that in the proceedings initiated by plaintiff before the Revenue Authorities to set aside katha made over to the name of defendant, plaintiff has not been able to succeed and as such, for these reasons amongst others as belatedly set out in the judgment and decree passed by trial Court by its judgment and decree dated 23.07.1997, dismissed the suit.

Being aggrieved by this judgment and decree plaintiff preferred an appeal in R.A. No. 301/2007. Lower Appellate Court after considering the arguments advanced by respective parties sought to secure records from trial Court. One intriguing fact which requires to be noticed at this stage itself is that by the time records were called for, same had already been destroyed by the Registry of trial Court. In fact, Sri. Balagangadhar, learned counsel appearing for appellant has vehemently contended before this Court that on account of destruction of records it has prejudiced plaintiffs claim. This would be dealt by me subsequently during the course of this judgment and it would suffice if it is observed that undisputedly, in the instant case, judgment and decree came to be passed by trial Court on 23.07.1999 and appeal came to be presented on 28.09.1999 i.e., beyond prescribed period of 30 days. On account of there being delay, an application also came to be filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay. At that undisputed point of time, for reasons best known, Registry of Lower Appellate Courts were not assigning regular appeal numbers and it was construed as unnumbered appeal and it was either classified as UR number or Miscellaneous number was assigned and on the issue of limitation, matters would be proceeded with before the Lower Appellate Courts either for months or years. Only in the event of cause shown for delay in filing the appeal being accepted, Regular Appeal Number was assigned as otherwise not. On account of this factual development and as per the extant Rules namely, Karnataka Civil Rules of Practice, 1967, Registry of trial Courts under Rule 202 of Civil Rules of Practice, 1967 and at the end of sixth (6th) year ''File - B'' came to be destroyed. Thus, depositions and exhibits came to be destroyed. In the instant case, observation made by the Lower Appellate Court at paragraph 8 of its judgment and decree would indicate that after the records were called for from the Lower Court it was noticed by the Lower Appellate Court that only ''A File'' has been sent by the Central Record Room with an endorsement that ''B'' and ''C'' Files have been destroyed. Though it was incumbent upon the Registry of trial Court to follow the rigour of Rule 202 of Civil Rules of Practice, an endeavour could have been made to ascertain as to whether appeal had been filed against judgment and decree passed in O.S. No. 275/1993 before destroying the record. Likewise, learned counsel who had appeared on behalf of unsuccessful plaintiff before the trial Court could have filed a memo in the Registry indicating thereunder that appeal had already been filed in respect of said judgment and decree and intimating the Registry about matter being seized by the Lower Appellate Court or learned counsel who had appeared on behalf of appellant/defendant before the Lower Appellate Court in R.A. No. 301/2007 could have filed a memo in the Registry of trial Court indicating thereunder about such appeal having been filed against the judgment and decree passed by trial Court in O.S. No. 275/1993 and requested the trial Court and its Registry not to destroy the records or appellant himself could have filed a memo requesting the registry or Central Record Room not to destroy records since Lower Appellate Court was seized of the matter. Neither the Registry nor learned Advocates nor parties have adopted such a course. It is in this factual background, records came to be destroyed as per extant Rules namely, Rule 202 of Karnataka Civil Rules of Practice, 1967. As such, no fault can be found or laid at the doors of the trial Court Registry in destroying the records.

Be that as it may. By way of precaution or to ensure that on account of destruction of records the valuable rights of parties are not truncated, Registry could have taken steps in this regard as already observed hereinabove. Now the said situation does not arise at all, inasmuch as, on the administrative side proper steps have been taken in this regard. Hence, with this observation issue regarding destruction of records is laid to rest.

Now turning my attention back to facts on hand, Lower Appellate Court after reappreciation of finding recorded by the trial Court has formulated following points for its consideration:

"(i) Whether the Judgment and Decree passed by the lower court called for interference?

(ii) What order?"

After considering the material evidence available on record, Lower Appellate Court has dismissed the appeal and affirmed the judgment and decree passed by trial Court. Sri. Balagangadhar, learned counsel appearing for appellant would vehemently contend that Courts below have failed to consider or examine the plea of adverse possession in proper perspective and thereby it has given scope for this Court to formulate Substantial Questions of Law as formulated in the appeal memorandum for being adjudicated and answered. This Court is of the considered view that finding recorded by trial Court as affirmed by Lower Appellate Court, are all questions of fact. In fact, Sri. B.M. Siddappa, learned counsel appearing for respondent has supported the judgment and decree passed by Courts below. It has been brought to the notice of this Court by learned Advocates appearing for parties that deceased respondent has sold the suit schedule property in favour of respondent Nos. 2 and 3 during the pendency of R.A. No. 301/2007 and they (respondents-2 and 3) have instituted a suit for perpetual injunction against one daughters of deceased plaintiff namely, Smt. Shivamma in O.S. No. 299/2012.

Perusal of judgment and decree passed by trial Court in the instant case would clearly indicate that it has noticed that plaintiff has admitted in her cross-examination that she had sold the suit schedule property to defendant on 25.01.1966, which document came to be marked as Ex. D-1. Though she contended that she has been residing in one portion of suit schedule property, said plea was not accepted by the Courts below inasmuch as, in the course of her evidence she has admitted that she is residing at Boothanahally Village along with her husband and children and it was also admitted by her that she is having properties at Boothanahally Village. In that view of the matter, regarding plaintiff being in possession of suit schedule property, rightly came to be negatived by trial Court. The witnesses who came to be examined on behalf of plaintiff and particularly P.W.3 has admitted that he did not have any personal knowledge with regard to sale transaction that took place between plaintiff and defendant in the year 1966. As such, plea of plaintiff having executed a nominal sale in favour of defendants was not proved. Though P.W.2 -Sri. Veerakyathappa was examined on behalf of plaintiff to contend that no consideration had flown from defendant to plaintiff, it has been noticed by trial Court that at the time of registration of document P.W.2 was not present. In fact, he has admitted in the course of his cross-examination that he had not signed the sale deed - Ex. D-1 as a witness. In fact deceased defendant had raised a plea that plaintiff had also sold a bit of land namely, 10 guntas of land in Sy. No. 37/8 and in her (P.W.1) cross-examination, it is admitted by her that said property had been sold by defendant in favour of one Sri. Boppanna, who is said to be in possession of said property. Said property is also one of the properties described in sale deed dated 25.01.1996 under which plaintiff had sold these properties (suit schedule properties) in favour of defendant. P.W.2 has also admitted in the course of his cross-examination that defendant sold the property bearing No. 37/8 measuring 10 guntas in favour of said Boppanna. This would clearly indicate that defendant had acted upon sale deed dated 25.01.1966 and as such, plea of plaintiff that she continued to be in possession of suit schedule property, rightly came to be disbelieved by the trial Court. Further it requires to be noticed that plaintiff has nowhere contended that sale deed executed by her was either under force, threat, duress and coercion and as such, recitals found in the registered document cannot be disbelieved and plea of the plaintiff that recitals in a registered document prevail over any other contrary plea and as such plea of plaintiff that possession of suit schedule properties was not delivered to defendant was rightly not accepted by the Courts below.

Lower Appellate Court has reexamined/reappreciated entire evidence and has found that plea of plaintiff raised in the plaint that sale deed dated 25.01.1966 Ex. D-1 was nominal or "" had remained as a plea without proof. In that view of the matter, there being no other material placed by plaintiff to rebut the presumption under Section 91 of the Evidence Act, Courts below have rightly negatived the claim of plaintiff. In that view of the matter, I do not find any infirmity committed by the Courts below to enable this Court for formulating Substantial Questions of Law as canvassed before this Court by the learned counsel appearing for appellant.

Yet another factor which requires to be noticed at the cost of repetition is that subsequent purchaser of suit property namely respondent Nos. 2 and 3 have already filed a suit in O.S. No. 299/12 before the jurisdictional Court seeking for a perpetual injunction against one of the daughters of deceased plaintiff namely, Smt. Shivamma, this Court would not express any opinion with regard to the merits or demerits of such claim and it is left to parties to work out their rights in that suit.

For reasons aforestated, I proceed to pass the following:

ORDER

"(i) Second appeal is hereby dismissed without being admitted.

(ii) Judgment and decree passed by Principal Civil Judge (Sr. Dn.) and JMFC, Madhugiri, dated 17.04.2010, in R.A. No. 301/2007 is hereby affirmed and thereby judgment and decree passed by Civil Judge (Jr. Dn.) and JMFC, Koratagere, dated 23.07.1999, in O.S. No. 275/1993, stands affirmed.

(iii) Costs made easy."