A.R. Basavarajappa vs Naramma and Others

A.V. Chandrashekara, J.—1. Divergent judgment passed by the learned judge of first appellate court in Fast Track Court-I, Davanagere, in R.A. 126/04 is called in question.

The appellant was plaintiff in an original suit in O.S. 197/97, a suit for declaration of title and permanent injunction relating to 1.15 acres of land in Survey No. 35/1 of Echagatta village, Mayakonda Hobli, Davanagere Taluk. His case is that he is in possession of the said land on the strength of a registered sale deed dated 28.8.1996 executed by the 6th defendant-Ekanthappa who had in turn purchased the same from Revanasiddappa, son of Revanna by means of a registered sale deed dated 10.1.1994. Since defendants 1 to 6 interfered with his lawful possession, he was constrained to file the suit for declaration of title and permanent injunction.

The 5th defendant alone filed written statement denying all the material averments in the plaint, and called upon the plaintiff to strictly prove the contents of the plaint. According to him, his father-Siddappa had borrowed some loan from Kariyayppa and had executed a nominal sale deed in his favour without handing over possession to him. It is his case that a document had been executed as a security for the loan availed and at no point of time, possession had been handed over. According to him, his father was in possession of the property till his death and he i.e., plaintiff has inherited the same subsequently.

He has further averred that his father had discharged the loan and the alleged vendee was promising his father to re-convey the property, but reconveyance deed was not executed.

The trial court framed the following issues for consideration based on the pleadings of the parties:

"1) Whether the plaintiff proves his title to the suit schedule property?

2) Whether the plaintiff proves his possession of the suit schedule property?

3) Whether the plaintiff proves the interference of defendants for his lawful possession of suit property?

4) Whether defendant No. 5 proves that defendant No. 6 was not the owner of suit schedule property and hence the sale deed dated 28.8.1996 will not convey any title to the plaintiff?

5) Whether the court fee paid is correct?

6) What decree order?"

Plaintiff is examined as PW-1 and 8 exhibits are marked on his behalf. The 5th defendant-Shivalingappa is examined as DW-1 and 2 witnesses are examined on his behalf and 2 exhibits are marked. Ultimately the suit came to be decreed as prayed for by answering issue Nos. 1, 2, 3 and 5 in the affirmative and issue No. 4 in the negative. Against the said judgment and decree, an appeal is filed in terms of Section 96, C.P.C. before the senior civil judge and the same was withdrawn and transferred to Fast Track Court-I and re-numbered as R.A. 126/04.

The learned judge of the first appellate court has allowed the appeal essentially on the ground that the sale deed is not proved in accordance with law and therefore, the defence of the 5th defendant is probablised. It is this divergent judgment which is called in question in this appeal on various grounds as set out in the appeal memo.

The following substantial question of law is framed on 10.1.2008 by this court:

"Whether the lower appellate court was justified in interfering with the decree of the trial court on the ground that neither the plaintiff nor his predecessors in title did not acquire any title under the registered sale deed and on the ground that the sale deed in favour of Kariyappa was a nominal one?"

Learned counsel for the appellant is heard in full. In spite of giving several opportunities, learned counsel for the respondent did not appear to submit his arguments.

Learned counsel for the appellant has furnished Xerox copies of Exs.P1 to P3. They were compared with the originals and originals were been returned to the learned counsel, Mr. R. Gopal. The case of the plaintiff is for declaration of title and permanent injunction. It is his case that Kariyappa executed a registered sale deed dated 28.10.1958 vide Ex. P2 to one Revanna. In Ex. P2, there is a clear reference about the schedule property put to auction by the court pursuant to a decree obtained by Kariyappa against Siddappa. A decree was obtained in O.S.617/54 by Kariyappa against Siddappa, father of 5th defendant.

The 5th defendant is examined as DW-1. He has deposed in his cross-examination that he his father did not pay the amount after the decree was obtained by Kariyappa and execution petition was filed by Kariyappa. A suggestion put to him that the property in question had been sold in auction is denied. Mere denial is insufficient. If the decree obtained by Kariyappa in the suit had been executed, it was for the defendant to have shown as to what happened to the execution petition so filed.

Kariyappa had purchased the property in court auction relating to the above decree for money obtained by him. He had sold the same in favour of A.S. Revanna (father of Revanasiddappa) vide Ex. P2 and Revanna died and his son Revanasiddappa executed a sale deed in favour of Ekanthappa vide Ex. P3 dated 10.1.1994. In turn Ekanthappa sold the property in favour of the plaintiff vie Ex. P1 dated 28.8.1996. On the basis of the sale deed in favour of Revanna, khatha had been changed in favour of Revanna and consequently in favour of Revanasiddappa and later Ekanthappa became the khatedar. On the basis of Ex. P1, the name of the plaintiff is incorporated as Khatedar. Hence a statutory presumption is to be drawn as per Section 133 of the Karnataka Land Revenue Act, 1961.

The case of the 5th defendant is that his father had executed a nominal sale deed in favour of Kariyappa and he had already discharged the loan availed. Therefore, burden was on the 5th defendant to prove that it was only a nominal sale deed and that possession had not been handed over in favour of Kariyappa. If really it was a nominal sale deed, reconveyance deed ought to have been specifically executed. He has admitted that he did not take any steps to challenge the sale deeds executed by Revanasiddappa in favour of Ekantappa and also that of Ekantappa in favour of the plaintiff.

The learned judge of the first appellate court has come to the conclusion that the plaintiff should have proved Ex. P1 and the earlier sale deeds by examining witnesses. Sale deed is not required to be compulsorily attested and hence the question of proof by examining a witness does not arise. The case of the 5th defendant is that the sale deed executed by his father was only a nominal sale deed. Thus it is an indirect admission of the document executed by his father and subsequently got registered. In this view of the matter, the question of proving Ex. P1 or ExP2 or Ex. P3 does not arise. This important legal aspect has been lost sight of by the first appellate court.

Whenever the first appellate court intends to upturn a well considered judgment of the trial court, it is expected to come to close quarters and to indicate as to where the trial court has gone wrong and what should have been the right approach. No such indication is forthcoming in the judgment of the first appellate court.

Reliance is placed upon Ex. D1-decree obtained by the 5th defendant-Shivalingappa against defendants 1 to 4 in O.S.518/93. Admittedly plaintiff is not a party to the said suit. This document is considered to be a collusive document by the trial court. It is ununderstandable as to how the first appellate court could attach so much of importance to Ex. D1 which has been obtained behind the back of the plaintiff who is in possession of the land as per Ex. P1.

Ex. D2 is the RTC of the land in question for the Period 1980-81 to 1984-85. Name of 5th defendant is entered and it is specifically a pencil entry for the year 1980-81 and 1982-83. Even otherwise, stray entries found in revenue records cannot be given much importance. If the defendant had produced RTC entries depicting the entry of the name of his father for quite a long time, some credence could have been attached in view of the decision of the Hon''ble apex court in the case of AMBIKA PRASAD THAKUR & OTHERS v. RAM EKBAL RAI DEAD BY HIS L.RS. & OTHERS (, AIR 1966 SC 605). Even otherwise, entries depicting the name of Shivalingappa-5th defendant are disputed. In Ex. D2, the name of Revanna finds a place as khatedar based on the sale deed No. 2356 dated 28.10.1958. As already stated, statutory presumption in term of Section 133 of the Karnataka Land Revenue Act will have to be drawn in favour of the khatedar. If really Siddappa was in possession continuously his name would have formed a place in Column No. 12(2) of RTC, a column ear marked for entering the name of the person in possession.

Suffice to state that the first appellate court has not adopted right approach to the real state of affairs and has not assessed the evidence placed on record on the touchstone of probabilities. No cogent and convincing reasons are assigned to upturn a well considered judgment passed by the trial court. Accordingly, substantial question of law is answered in the negative.

In the result, the following order is passed:

ORDER

The appeal is allowed with costs. The judgment of the first appellate court passed in R.A. 126/04 on the file of Fast Track Court-I, Davanagere, is set aside. The judgment of the trial court in O.S. 190/97 is confirmed.