Pavadappa vs Yamanoorappa

A.V. Chandrashekara, J.—Defendants of an original suit bearing O.S. No. 39/1997, which was pending on the file of the Civil Judge (Jr. Dn.), Kushtagi are before this Court. Suit filed by the respondent herein as plaintiff suit for the reliefs of declaration of title and permanent injunction has been decreed as prayed for vide considered judgment dated 09.10.2001. Against the said judgment and decree, an appeal came to be filed u/s 96 of CPC in R.A. No. 65/2004 before the District Court at Koppal. The said appeal has also been dismissed after contest. Hence, the concurrent findings are called in question before this Court. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

Facts leading to the filing of the suit are as follows:

Plaintiff has claimed himself to be in lawful possession and enjoyment of the suit schedule property bearing Sy. No. 571/1 Hissal No. 6/A measuring 5 guntas carved out of total extent of 39 guntas of Antarthana village of Kushtagi Taluk. He is stated to have been purchased the schedule property for a consideration of Rs. 5,000/- from one Bheemappa, the original owner through registered sale deed bearing No. 970/95-96. Since then he is stated to be in lawful possession and enjoyment of the schedule property. The property in question has been described with specific boundaries on all the four sides. Since the defendants tried to interfere with his lawful possession during the first week of March 1997, he had to file a suit for the relief of permanent injunction. After written statement was filed by the defendants, he got the suit amended seeking the relief of declaration of title also. Accordingly, suit so filed was one for the relief of declaration of title and permanent injunction.

Defendants appeared before the trial Court and denied all the material averments. They had called upon the plaintiff to prove the contents of the plaint strictly. The sale deed stated to have been executed by Bheemappa in favour of the plaintiff is stated to be false and fictitious. The said Bheemappa is stated to have sold the area in question as non-agricultural land for Rs. 95/- orally to the father of the defendants about 15 years ago. Since then the father of the defendants was in possession of the schedule property and after his death defendants are stated to be in lawful possession of the said property bounded on the East-School Avarana, West-Road leads to Huchanoor, North-Khabarastan place and South-PWD canal. According to the defendants, suit plot is triangular in shape and PWD canal is towards the south of the plot. Defendants intend to construct a building in the said plot by obtaining permission from Gram Panchayath. The Gram Panchayat authorities visited the plot and granted permission. It is averred that the plaintiff is not at all connected with the suit schedule property and suit for the relief of permanent injunction is not maintainable without seeking the relief of possession.

After the suit was got amended seeking the relief of declaration of title, additional written statement came to be filed by defendant No. 1 stating that plaintiff has no title or possession over the suit schedule property and that the defendants are in lawful possession of the schedule property, more particularly, on the basis of a decree obtained by them in O.S. No. 71/1999 passed by the Court of Civil Judge (Jr. Dr.), Kushtagi against the Bheemappa the alleged vendor of the plaintiff. On the basis of the above pleadings following issues came to be framed.

i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit land, as on the date of suit?

ii) Whether the plaintiff further proves the interference by the defendants?

iii) What order or decree?

Additional issues:

i) Whether the plaintiff proves that, he is the absolute owner and possessor of five guntas of land, out of land being Sy. No. 57/1 Hissa NO. 6/A, total measuring 39 guntas?

ii) Whether the plaintiff proves that he purchased the suit land from one Bheemappa s/o Siddappa Chalawadi under a Regd. Sale deed bearing No. 970/95-96 for a valuable consideration of Rs. 5,000/-?

iii) Whether the defendants proves that, they are the owners of the suit open space in pursuance of the oral sale made by Siddappa Chalawadi in favour of the defendants father, since then, they are actual possession?

Plaintiff is examined as P.W. 1 and two witnesses have been examined on his behalf. In all four witnesses have been examined on behalf of the defendants. 5 exhibits have been got marked on behalf of the plaintiff and 11 exhibits have been got marked on behalf of the defendants. After hearing the arguments and assessing the evidence placed on record, regular issue Nos. 1 and 2 and additional issue Nos. 1 and 2 have been answered in the affirmative. Additional issue No. 3 has been answered in the negative. Ultimately, suit came to be decreed as prayed for. As already stated, appeal filed u/s 96 of CPC came to be dismissed after contest. My learned predecessor has admitted the appeal by framing the following substantial question of law on 20.01.2006.

Whether the Courts below were justified in holding that the plaintiff is not bound by the judgment and decree passed in O.S. No. 71/99 wherein the appellant was declared to be the owner of the schedule property and the said finding is perverse and arbitrary, being contrary to law and material on record having regard to the contents of the decree passed in the said suit as per Ex. D10, wherein the vendor of the plaintiff was the defendant?

Plaintiffs case is a straight case based on the sale deed executed by Bheemappa in his favour on 12.12.1995 and Ex. P1 is the original sale deed. 5 guntas of land so sold in favour of the plaintiff has been described with specific boundaries in Ex. P1. On the basis of Ex. P.1, name of the plaintiff came to be incorporated to an extent of 5 guntas in column No. 9, as it was an agricultural land measuring in all 39 guntas in Sy. No. 57/1. Names of other persons who had purchased portions of the property from Bheemappa also finds a place. The names of other persons found in column No. 9 of RTC marked as Ex. P2 are Andanappa, Sharanappa, Sanganagouda and Basanagouda. The extent of land purchased by them has been mentioned against their names. Out of 39 guntas, Bheemappa had 21 guntas in his possession after alienating different extents of land in favour of the persons whose names finds a place in column No. 9. In RTC issued for the year 96-97 as per Ex. P2, name of Yamunoorappa the plaintiff finds a place in column No. 12(2) earmarked for depicting the name of the person in possession.

What is argued before this Court that Siddappa the father of Bheemappa the vendor of plaintiff had orally sold about 5 guntas of land which is described in the schedule appended to the plaint in favour of the father of the defendants orally for a consideration of Rs. 95/- and handed over the possession of the schedule property. The said stand is found in the written statement. After the death of Siddappa, Bheemappa was in possession of the same and against whom a suit was filed for the relief of declaration of title and permanent injunction by them in O.S. No. 71/99 before the Court of Civil Judge (Jr. Dn.) at Kushtagi. Ex. P3 is the certified copy of the plaint filed in O.S. No. 71/99. As could be seen from Ex. P3, suit was filed in respect of an open space bearing plot No. 166 measuring 75'' East-West, 125'' North-South. The boundaries mentioned in Ex. P3 are almost identical boundaries mentioned in the schedule appended to the plaint in O.S. No. 39/1997 and the extent would be more than 9 guntas, if extent is taken as 125 ft. x 75 ft. It is to be seen that the said suit ended in a compromise between the defendants herein and the said Bheemappa and the said decree is marked as Ex. D10. No credence can be attached to this decree because it is subsequent to the filing of the suit by the plaintiff. It is ununderstandable as to how an immovable property could be transferred in favour of the defendants without there being any valid conveyance. Suffice to state that, this decree could be considered as a collusive decree between Bheemappa and the defendants herein. Therefore, the trial Court has virtually discarded this compromise decree as no document in the eye of law.

Mr. Ganesh examined as D.W. 1 has relied upon the said sale transaction entered into between the father of the defendants and Siddappa for Rs. 95/-. According to him, Siddappa is stated to have executed the document. It is true that any conveyance deed in respect of which the consideration is below Rs. 100/- need not be registered. But nothing came in the way of the defendants to have produced that document, though the said document stated to have been executed by Siddappa. Therefore, the compromise decree marked as Ex. D1 has not been upheld in any manner by the trial Court and the first appellate Court. In fact, it is to be seen that certain suggestions have been put to D.W. 1 that a person by name Bheemappa the vendor of the plaintiff never appeared before the Court and he was not the person who accepted the compromise petition and that the said compromise petition is a false document.

It is ununderstandable as to how Bheemappa who has executed the sale deed in favour of the plaintiff for Rs. 5,000/- could go to the Court and sail with the plaintiff therein and enter into a compromise in respect of the same property stating that his father executed a sale deed for Rs. 95/- several years ago.; The trial Court has properly analyzed the oral and documentary evidence in the right perspective, that too on the touchstone of intrinsic probabilities. The first appellate Court, being the final Court of facts has reassessed the entire evidence in right perspective. Both the Courts have adopted right approach to the real state of affairs. No illegality or infirmity is found in the judgments of the trial Court or the first appellate Court. Suffice to state that, no good grounds are made out to interfere with the well considered factual findings in regard to the title of the plaintiff and also in regard to the possession of the schedule property held by the plaintiff. Accordingly, the substantial question of law is answered in the negative. Therefore, the appeal is liable to be dismissed.

ORDER

Appeal filed u/s 100 of CPC is dismissed by upholding the judgments of the trial Court and the first appellate Court.

There is no order as to costs.