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Judgment
Ram Mohan Reddy, J.—This is plaintiffs second appeal, calling in question the Judgment and Decree dated 12.3.2004 in OS No. 377/2002, on the file of the Principal Civil Judge [Jr. Dn.,], Davanagere and the Judgment and Decree dated 26.3.2008 in RA No. 118/2004 on the file of the Additional Sessions. Judge, FTC-II, Davanagere, dismissing the appeal and confirming the Judgment and decree of the trial court. The appellant instituted OS No. 377/2002 for declaration and injunction in respect of the immovable property bearing CTS No. 168 measuring 48 ft x 24 ft, situated in Shabanur Village, Davanagere Taluk, on the premise that Shabanur Mandal Panchayat in its resolution dated 26.7.1978, allotted the site in question in her favour, following which, she made a deposit of Rs. 748.80/- being its value resulting in execution of the sale certificate No. 5/1978-79 dated 14.8.1978 and delivery of possession. On the allegation that defendants 2 to 4 denied title of the plaintiff and interfered with her possession of that property on 11.3.2002, the suit was instituted.
Defendants 2 and 3 though served with court notice, remained absent and were unrepresented, hence were placed ex parte. Defendants 1 and 4 filed separate written statements, whence Defendant No. 1 denied the case of the plaintiff while admitting the fact that the schedule property fell within the jurisdiction of Shabanur Mandal Panchayat, and later within the territorial jurisdiction of Davanagere City Municipal Corporation. According to 1st defendant, sites were formed and allotments made to needy persons and that the suit schedule property was allotted to the 2nd defendant by the Mandal Panchayat, in its resolution passed in the meeting held on 26.7.1978, fixing an upset price of Rs. 748.80/- and on deposit issued a sale certificate on 8.6.1981 and delivered possession. It was asserted that since the plaintiff was never in possession of the suit schedule property, has no right, title or interest over the same and further that there was neither a resolution nor execution of a sale certificate in favour of the plaintiff. The Defendant No. 4 in his written statement asserted that Defendants 2 and 3 have no subsisting right, title or interest, since after the suit schedule property was allotted on 8.6.1981 to H. Virupakshappa the 2nd defendant, conveyed the same in favour of the 3rd defendant for a sale consideration of Rs. 3,000/- under a conveyance deed dated 30.9.1982 where afterwards, the 3rd defendant sold said site in favour of the 4th defendant, for a valuable consideration of Rs. 20,000/- under a registered sale deed executed on 30.11.1989 following which the 4th respondent''s name was entered in the revenue records in respect of the suit schedule property.
The trial court, in the premise of pleadings of parties, framed as many as seven issues and one additional issue. The plaintiff was examined as P.W. 1 and a witness as P.W. 2 and introduced in evidence Exhibits. P1 to P8, while for defendants, 4th defendant was examined as DW 1 and introduced in evidence Exhibits. D1 to D22.
The trial court, having regard to the material on record, evidence both oral and documentary, recorded findings in the negative over issues 1 to 3 and 6 and in the affirmative over issues 4 and 5 and accordingly dismissed the suit.
The Lower Appellate Court too having re-appreciated the evidence, concurred with the reasons, findings and conclusions arrived at by the trial court to dismiss the appeal.
Learned counsel for the appellant submits that in the light of the certified copy of the resolution dated 26.7.1978 marked as Exhibit. P1 and the sale certificate dated 14.8.1978 as Exhibit. P2 followed by khata extract-Exhibit. P3 and assessment extract-Exhibit. P4, the trial court was not justified in declining to accept the plaintiffs proof of title to the suit schedule property. In addition, learned counsel submits that the 1st defendant custodian of records, having failed to place before court the original of the resolution book, had acquiesced in the plaintiffs title to suit schedule property. It is further submitted that Defendant No. 1 having not entered the witness box, adverse inference must be drawn. Lastly, it is submitted that there was no resolution passed by the then Mandal Panchayat allotting the suit schedule property to the 2nd defendant, a relevant factor which was not considered by the courts below.
At the very threshold, what is pertinent to be noticed is that the plaintiff though placed on record Exhibits. P1, certified copy of the resolution and Ex. P2 the sale certificate, nevertheless, did not establish by cogent evidence, proof of contents of the said documents. It was open for the plaintiff to have called upon the 1st defendant to place before court the original of the resolution book which would, perhaps have thrown light on the veracity of the claim of the plaintiff, more appropriately, in the light of the written statement denying the resolution and execution of the sale certificate. The mere self interested testimony of P.W. 1 - plaintiff in the absence of corroboration, is not proof of Exhibits. P1 and P2 and legal title to the suit schedule property. P.W. 2 said to be a witness who had seen the plaintiff in possession of the suit schedule property and the issue of Ex. P2 sale certificate, nevertheless in cross examination stated that the husband of the plaintiff having informed him that some amount has to be paid on the allotment of the site, was aware of the allotment, hence does not tantamount to corroboration of the factum of resolution Ex. P1 and execution of sale certificate Ex. P2. In fact in the cross examination of PW1 it is elicited that during the year 1981 was aware of the issue of the sale certificate dt. 8.6.81 in favour of the 2nd defendant. P.W. 1 in examination in chief states that the receipt for having paid the sale consideration of Rs. 748.80/- is produced, nevertheless, did not produce it to court. P.W. 2 testifies in examination in chief that he paid Rs. 750/- to the Gram Panchayat on 14.8.1978 on which date Ex. P2 sale certificate was issued.
It. is a matter of fact that plaintiff, instituted O.S. 1670/92 on 19.12.92 arraigning the respondents herein as defendants, for the reliefs of declaration and permanent injunction, which when dismissed for non- prosecution, the Civil Judge (Jr. Dvn.) by order dated 25.7.1998 recalled the order of dismissal of the suit, and allowed IA No. 8 permitting withdrawal of the suit and filing a fresh suit on the same cause of action. It appears the plaintiff filed O.S. 377/02 on 19.9.2002, for the very same reliefs, beyond three years on different cause of action, alleging that the plaintiff came to know of withdrawing O.S. 1670/92 only a month prior to 19.9.2002. This is yet another circumstance disentitling the plaintiff to any relief. In that view of the matter, Order 2 Rule 2 of CPC applies and the subsequent suit on separate cause of action is not maintainable. The sale certificate Ex. P2; (a) does not mention the katha number of the site, though the description of the suit schedule property is vacant site bearing No. 168; (b) has two dates one under the nomenclature sale certificate dated 4.8.1978 and at the foot of the certificate as 14.8.1978; (c) issued by the Shabanur Grama Panchayat office; (d) records that on 6.8.1978, Rs. 748.80 was deposited under receipt No. 0008; Ex. P1 copy of the resolution dated 26.7.1978, bears the seal of secretary Mandal Panchayat Shabanur with a date, but without the name of the person who affixed his signature. Even otherwise, the sale certificate - Exhibit. P2 being an unregistered document does not have evidentiary value in the light of section 17 of the Registration Act, 1908, requiring compulsory registration of a document of conveyance of immovable property of value more than Rs. 100/-. In my opinion the evidence both oral and documentary does not probabilise the case of the plaintiff.
The courts below being fact finding courts, in the facts and circumstances, having concluded that plaintiff failed to prove by cogent evidence, Exhibits. P1 and P2, the basis for the claim of title to the suit schedule property, it would be a pretence to accept the submissions of learned counsel for the appellant.
The Judgment and decree of the Courts below and the findings recorded therein, cannot be characterized as either unjust, or perverse, calling for interference. No substantial question of law arises for decision making.
Appeal devoid of merits, is dismissed. IA No. 2/2008 for stay does not survive for consideration and is rejected.