Shri Ganapati Venkatraman Bhat vs Shri Shambu Venkatraman Bhat

A.V. Chandrashekara, J.—Sri Ganapati Venkataman Bhat is the appellant in both these appeals filed u/s. 100 of CPC challenging the judgment and decree passed in O.S. No. 61/1989 and O.S. No. 70/96 respectively. Both these suits were pending on the file of the Civil Judge (Jr. Dn.) & JMFC, Bhatkal. The appellant was the plaintiff in O.S. No. 61/1989 and defendant in O.S. No. 70/1996. Shambu Venkatramana Bhatta was the defendant in O.S. No. 61/1989, a suit filed by this appellant and plaintiff in O.S. No. 70/1996 against him. Both the suits had been clubbed to record common evidence and to dispose of the same by a common judgment. After recording common evidence, O.S. No. 61/1989 filed by this appellant as the plaintiff, has been dismissed and that the suit filed by Shambu Venkatramana Bhatta has been decreed. Suit filed by this appellant in O.S. No. 61/1989 was for the relief of declaration to the effect that the exchange deed executed between himself and the defendant on 07.12.1987 vide Ex. D. 1 is null and void and does not bind him and for the consequential relief of possession. Whereas the suit filed in O.S. No. 70/1996 was for the relief of injunction against this appellant in respect of the same properties. As already discussed, suit O.S. No. 70/1996 is dismissed, as such, R.S.A. No. 5107/2009 has arisen out of the judgment passed in O.S. No. 61/1989 and connected R.S.A. No. 5108/2009 has arisen out of O.S. No. 70/1996. Since the parties and the schedule in both the suits are identical and the suits had been disposed of by a common judgment, both these appeals are taken up together for common discussion. The facts leading to filing of suit in O.S. No. 61/1989 by this appellant as plaintiff before the Court of Civil Judge (Jr. Dn.) & JMFC, Bhatkal is as follows:

Plaintiff and defendant are genetic brothers and they had joint family properties and they had entered into a partition amongst themselves on 21.04.1982. The said partition so effected between the parties to the suit is not in dispute. Later on a registered exchange deed was executed between the plaintiff and defendant on 07.12.1987. According to the plaintiff, said exchange deed is the outcome of coercion and therefore it does not bind him. According to him, possession of the properties mentioned in the exchange deed have been taken by the defendant under duress and therefore he chose to file a suit for the relief of declaration to the effect that the said exchange deed dated 07.12.1987 marked as Ex. D. 1 does not bind him as it is the outcome of coercion and duress, and for consequential relief of possession.

Suit in O.S. No. 70/1996 has been decreed and permanent injunction has been granted against this appellant as prayed for. It is these judgments and decrees which are called in question on various grounds as set out in the appeal memorandum. Since the grounds urged in both these appeals are identical, I have heard the learned counsel for the appellant in both these appeals in regard to admission.

Perused the impugned judgments. The fact that there was a partition between the plaintiff and defendant in the year 1982 through a registered partition deed is not in dispute. What is disputed is the binding nature of the exchange deed dated 07.12.1987 entered into between the plaintiff and the defendant. According to the plaintiff, this exchange deed was executed by him under duress and coercion because of the force exercised on him by the defendant and his henchmen. According to the plaintiff, 1 acre 23 guntas of one land out of the total area of land in sy. No. 17/2 was given to the defendant along with 14 guntas of garden land. The defendant was expected to hand over 2-12 acres in sy. No. 18/2. According to him, a mistake had crept in the said deed and the property handed over by the defendant to the plaintiff is said to have fallen to the share of Sri. Rama Venkatraman Bhat, who is the another brother of the parties. According to the defendant, 1 acre 23 guntas of land was to be given to him in exchange of land in Sy. No. 18/2 measuring 2 acres 12 guntas. According to the plaintiff, it is not possible to follow the covenants of the exchange deed more particularly the exchange deed being executed without any consideration.

Defendant Shambu Venkatramana Bhatt had filed a detailed written statement denying all the material averments. According to him, there was no threat or coercion whatsoever in the matter of executing the exchange deed and that plaintiff is a literate and intelligent person and has acted upon the same by handing over possession of the property in sy. No. 17/2 to him and that he has taken possession of the land from him as per the covenants of the deed. It is his case that the same has been acted upon and necessary mutation, entries have been effected in the revenue records which have been in existence uninterruptedly. With these pleadings he had requested for dismissal of the suit and had requested for granting injunction in respect of the land given to him under the exchange deed. Accepting the contention of the defendant Shambu Venkatramana Bhatta, suit filed by the appellant herein has been dismissed and suit filed by the plaintiff in O.S. No. 70/1996 has been allowed.

Learned counsel for the appellant has vehemently argued that Ganapathi Venkatraman Bhat has been directed to pay Rs. 24,600/- as damages to his brother Shambu Venkatramana Bhatt vide judgment dated 31.07.2000. In the appeals filed u/s. 96 of CPC in R.A. No. 307/2001 and 308/2001 the judgment of the trial Court is upheld and the order insofar as it relates to the payment of damages of Rs. 24,600/- has been set aside. Virtually, judgment and decree of the trial Court has been upheld by the first appellate Court. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.

Parties are brothers and there was partition between them in the year 1982 and the same is not disputed. Registered Exchange Deed is dated 07.12.1987. What is averred by the plaintiff-appellant Ganapati Venkatramana Bhat is that it is the outcome of coercion. Allegations of fraud, undue influence and misrepresentation require particulars as per Order 6 Rule 4 CPC. Higher degree of proof is required whenever such allegation of coercion, fraud, undue influence and misrepresentation are pleaded. Though the burden of proof is not equivalent to the burden of proof in criminal cases, it is almost akin to the same.

Plaintiff has not struck to his pleadings found in the plaint filed in O.S. No. 61/1989 and O.S. No. 70/1996. Admittedly, pleadings are sacrosanct in civil cases. Whoever makes an attempt to deviate from the main pleadings, same cannot be accepted. Though P.W. 1 has made an attempt to state that he has not acted upon as per Ex. p. 1 of 1987, the documentary evidence disproves his assertion. The trial Court has given more credence to the documentary evidence than the oral evidence. The case of the plaintiff, as put forth in the trial Court, is not that there is mistake in Ex. P. 2 in regard to the extent of property bearing sy. No. 17. On the other hand, case of the appellant-plaintiff Ganapati Venkatramana Bhatta is that property which fell to the share of their brother Rama Bhatt in regard to 1.33 acres in Sy. No. 17/2 is also mentioned as property to be handed over by him to his brother-defendant. Ex. P. 13 and 14 are revenue records and they fairly depict the name of the defendant Shambu Venkatramana Bhatta in regard to Sy. No. 17/2 as per the exchange deed. The mutation entries have been made by the revenue authorities on the basis of the exchange deed and RTCs at Ex. D. 2, D6 and D7 have been produced which depict the name of respondent-defendant.

As already discussed, in the decision reported in Savithramma Vs. H. Gurappa Reddy adn others, , if there is any allegation of coercion, fraud, undue influence and misrepresentation, level of proof required is almost equal to the level of proof required in criminal trial, since plea of coercion, fraud, undue influence and misrepresentation is a special plea. The trial Court as well as the first appellate Court have specifically come to know that P.W. 1 has made an attempt to depose contrary to what he has averred in the plaint.

Even otherwise, there is no acceptable evidence placed on record to show that defendant who is his own brother was in a greater position to dominate him in getting the exchange deed. In fact the evidence placed on record would go to show that exchange deed has been acted upon and revenue authorities have mutated long back and the entries have been found in the revenue records uninterruptedly. In fact the evidence of D.W. 2 is more helpful to the defendant and he has withstood the rigor of cross-examination. He has deposed that in 1987 document was registered and the boundaries mentioned therein are correct. D.W. 2 has no axe to grind against this appellant as he is the own brother. This assumes importance in the light of P.W. 2 being a witness to the exchange deed marked as Ex. D. 1, whose signature is marked as Ex. D. 1C. Such evidence of D.W. 2 coupled with the documentary evidence falsifies the oral evidence of P.W. 1.

The very fact that the plaintiff-appellant has sought for the relief of possession though alternative in nature, would indicate that he was not in possession of the property as on the date of filing of the suit or immediately prior to it. This would also indicate that the said deed has been acted upon by the parties and possession was handed over in respect of the properties mentioned therein. The trial Court has appreciated the oral and documentary evidence in right perspective testing the same on the touchstone of intrinsic probabilities. The first appellate Court, being the final Court of facts, has reassessed the entire evidence and has concurred with the findings of the trial Court by giving cogent reasons. Sufficient reasons are assigned as to why the application filed under Order 41 Rule 27 of CPC by the parties will have to be rejected. Suffice to state that Ex. D. 1 has been proved as a document which has come into being out of the volition of the parties and that the same has been acted upon. There is nothing on record to show that interference is required to meddle with the well considered concurrent findings in regard to the due execution of Ex. P. 1 and the same being acted upon by the parties. As such, there are no merits in these appeals more particularly when the first appellate Court has given cogent reasons to reject the relief of granting damages of Rs. 24,600/- in regard to the alleged theft of arecanut by the respondent-defendant. Hence these appeals are liable to be dismissed as unfit for admission.

ORDER

Appeals filed u/s. 100 of CPC are dismissed as unfit for admission by confirming the judgment of the trial Court as well as the first appellate Court.