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Judgment
Appeal is against the order passed on 1A in Execution Petiton 100/2000 before the XIV Addl. City Civil Judge, Bangalore on 27.9.2008.
The 1st Respondent had filed suit in OS 2198/1987 before City Civil Court, Bangalore to declare that he is the absolute owner of the suit property and to deliver possession of the same and for the relief of permanent injuction restraining the defendant from interfering with the plaintiff''s peaceful possession of the suit property. The matter was contested. The defendant denied the title of the Plaintiff and possession of the suit schedule property and contened that the Paintiff is not in possession and enjoyment of the property as contended by him since 1972. On the other hand, it is stated, defendant has put up construction on the schedule site and his possessioj is legal. He did not commit trespass on it during January 1987 and he was never approached by the plaintiff seeking vacating the schedule property. It is also contended, he has perfected his title by way of adverse possession. Based on the sasme, as many as six issues were framed by the trial court regarding title, trespass, maintainability and as to the relief of declaration, possession and permanent injunction after inquiry, on 8.10.1999, the trial court while decreeing the suit in part ordered, the Plaintiff is the owner of the schedule property and directed the defendant to hand over possession of the premises and, also having found that plaintiff is not in possession as on the date of the suit, rejected the prayer for injunction. In the executine proceedings filed by the decree holder in No. 100/2000, an IA came to be filed under Order 21 Rule 27 R/w Section CPC by the appeliant/objector. This objector was not a party to the suit proceedings. According to the Appellant/objector, he is in possession since 1972. The suit schedule property bearing No. 261 is said to have been granted in favour of the Appellant by the tahsildar, South Taluk, Bangalore and he has also been residing in the suit property. It is also stated, after allotment he along with his son, put up temporary shops of about 5 squares and he has leased out the shops on a monthly rental. It is also contended, the judgment debtor was not in possession of the suit schedule property and that he is paying the taxes regularly. Further, according to this appellant, the decree holder had come to the suit schedule property along with some persons to disposses him and tried to evict the Appellant in collusion with the judgment debtor who had obtained an unexecutable decree. Rather, the Appellant is the true owner and he has not been made a party to the suit. Even the decree is not executable against the Defendants and it is necessary to decide the right of the Applicant/objector.
During pendency of the matter, the original applicant died and thereafter his legal representatives have come on record. The Executing Court, after hearing, having raised a point whether the objector proves his right and possession over the suit property, his right and possession over the suit poperty, after inquiry, held that the ovjection/Applicant filed to establish his possession and title over the suit schedule property and that he has no legal right to ovserved the execution of the decree ovtained by the decree hjolder. As against the said order, the present appeal.
Heard the counsel representing the pareties.
Appellant''s counsel elying upon the judgment of the Apex Court in the case of The Roman Catholic Mission Vs. State of Madras and Another, , contended as per Section 65 of the Evidence Act, if the original document is not produced at any time, foundation cannot be laid down for establishment of right to give secondary evidence. Counsel has also relied upon the judgment of this Court in the case of Annaiah v. Subbaramaiah and Ors. ILR 1998 1039 to contend, as per Section 133 of the Land Revenue Act, non-production of the pahani entries not necessary if it is shown that Petitioner was cultivation lands as on 1.3.1974 and for the period earlier to that. Counsel has also relied upon another judgment of this Court in the case of Devish v. M.K. Subbiah and Ors. AIR 1970 Mys 249 regarding presumption and limitation. It is also contended mere maring of documents is not proof of title as per the opinion of the Apex Court in the case of sait Trarajee Khimchand and Ors. Yelamarti Satyam and Ors. AIR SC 1865.
It is the contention of the Appellant''s counsel, the Plaintiff had only produced Xerox copy of the hakku patra which was taken into consideration by the trial court, which is bad in law and it does not lay the foundation to consider the came in the absence of production of original and, mere production of the Xerox copy also does not amount to proof of document much less secondary evidence. It is also contended, the Appellant is in settled possession since 1972 and also put up a construction. Without making him a party, a collusive suit was filed by the Plaintiff and decree has been obtained. The trial court jumped to a conclusion that the evidence of the Plaintiff is gospel truth and dismissed the application filed by the applicant which is erroneous.
Per contra, counsel for the respondent/plaintiff submitted, in respect of the suit property there was a hakku patra issued to the Plaintiff based on which all the records, including the encumbrance certificate, and tax paid receipts since 1972, have been produced and even the Xerox copy of the hakku patra had been produced as the original was taken back by the Tahsildar of the concerned taluk and since it was not returned, application was also filed seeking for production of the original which was taken bakck and summons was also taken through the court. As the Tahsildar did not appear nor produced any document, the trial court taking into consideration the other supporting documents apart from the hakku patra and also based on the copy of the hakku patra, passed an order which cannot be intertered with. It is also contended, on the other hand, the Applicant/objector has not produced any idea of evidence since 1972 except the hakku patra. In the circumstances, having drawn an adveise inference against the pbjector, his application came to be dismissed. The trial court has founded its reasoning not only on the Xerox copy of the hakku patra in favour of the Plaintiff but apart from, encumbrance certificate, tax paid receipts since 1972 produced in support of the Plaintiff''s case have been rightly believed by the trial court in entertaining the suit of the Plaintiff. He has also relied upon the judgment of this Court in the case of K.P. Krishnakumar v. Smt. Radhalakshmi Anna ILR 2004 KAR 4838 to contend that sufficient proff has been rendered so that secondary evidence is admissible and in those circumstances, rightly the executing court has drawn the inference based on other supporting documents in favour of the decree holder and accordingly, contended that the other supporting documents which were available formed the basis for the Plaintiff seeking for a declaration and for possession which has been rightly considerca by the trial court while rejecting the application which does not call for interference.
In the light of the arguments advanced, the points that would arise for consideration are - whether the executing court committed an error in rejecting the application filed by the objector and, what order.
The appellant, admittedly, is not a party to the proceedings in the suit. He claims title based on the hakku patra issued in his faorur in respect of the property. The executing court has noted, Ex. P2 said to have been issued on 13.5.1972 has not been entered in the Ramagondanahalli Panchyat as the property lies withis the jurisdiction of the said Panchyat. The applicant has produced only the tax paid receipts issued by the Mahadevapura City Municipal Council on 29.10.2000 and that from 1972 to 2000 this applicant has not acted upon the hakku patra alleged to have been issued in his favour Referring to Ex. P4 - Assessment Register for the year 1944-95, it has observed, there is no explanation offered by the applicant as to why his name did not came to be entered in the City Municipal as to why his name did not came to be entered in the City Municipal Council records of Mahadevapura or of Ramagondanahalli Panchayat.
So far as putting up construction and leasing out the said property to the lessees is concerned as per Ex. P5 to P7 produced by the applicant, it is stated they have not been proved by examining the alleged tenants, and on the other hand, the tax paid receipts have been produced by the decree holder form Ramagondanahalli Panchayath for the year 1984-85 and 1985-86 and in the owner''s column in respect of the property bearing No. 261 of Munekollal Village, the name of Kaneaiah Naidu is shown. Howerer, and name of Balakrishna is written in respect of the said site for the year 1994-95 in Ex. P4 - Assessment Register, copy of which is issued by the Chief Administrative Officer of the notified Area Committee, Mahadevapura Hobli. On the other hand, Ex. P5-6 are the certified copies of the approved plan and sketch of the building license obtained in the year 1982 by the decree holder. Ex. P18 -20 are the encumbrance certificates issued in favour of the plaintiff for the year 1972-1999 and 1999 to 2006.
In the case on hand, the entry of the name of the Plaintiff in the tax paid receipts, in the village panchyat records and the city municipal council records, being prier to the entry of the name of the applicant formed the basis for the Executing Court of the name of the applicant formed the basis for the Executing Court to form an opinion that the Plaintiff/decree holder has got priority of right and consequently, to rejuct the case of the Appellant/objector, apart from the hakku patra.
The appelicant''s/applicant contention that trial court ought not to have decreed the suit of the plaintiff based n the Xerox copy produced, though of course, is a point for consideration, but the applicant has not made any efforts soon after the grant was made in his favour nor appears to be in possession since 1972 whereas, sufficient documents are produced by Plaintiff egarding his encumbrance on the property and, other supporting documents have been considered by the Executing Court viz., approved plan and tax paid receipts produced which are even prior to the alleged right and title claimed by the applicant. It is also the case of Plaintiff that the Tahasildar has taken tack the document (hakku patra) and he could not produce the original and he has produced the Xerox copy of the document.
If the Plaintiff has established his title before the trial court before making this Applicant as a party, necessarily soon after knowledge, the applicant could nave moved the civil court/trial court seeking for setting aside the decree which was passed against which property he claims to be in possession by virtue of the alleged grant made in the year 1972. He has only appeared before the Executing Court to resist the execution based on some documents which is of the year 1999 onwards. Having taken into consideration the priority of the document and other related documents viz., encumbrance certificate and tax paid receipts which were obtained at an undisputed poing of time, the Executing Court has rightly rejected the case of the Applicant. To raise a contention that the decree ought not to have been passed in favour of the Plaintiff, the application cannot taise such contention before the Executing Court since the Executing Court is having a limited jurisdiction. It was for this applicant to approach the civil court seeking for declaration to set aside the decree passed in favour of the Plaintiff/decree holder contending that the decree is bad in law for non-joinder of necessary parties. The finding of the Executing Court dismissing the application filed by the appellant/objector cannot be faulted.
Appeal is dismissed. Parties to bear their own costs.