Channamallaiah and Others vs H.H. Siddappa and Others

A.V. Chandrashekara, J.—1. RSA No. 2444/2006 has arisen out of the divergent judgment passed by the learned Additional District Judge at Hassan in R.A. No. 502/2005. R.A. No. 502/2005 had arisen out of the judgment and decree passed in O.S. No. 56/1997 which was pending on the file of the Civil Judge (Sr.Dn.) and Additional C.J.M., at Arsikere.

Connected RSA No. 2445/2006 has arisen out of the divergent judgment passed by the Additional District Judge at Hassan in R.A. No. 502/2005 an appeal filed under Section 96 of CPC.

R.S.ANo.2095/2006 has arisen out of the granting of permanent injunction in favour of these appellants by the trial Court in O.S. No. 56/1997 and confirmation of the relief of permanent injunction in R.A. No. 502/2005.

O.S. Nos. 56/1997 and 128/1997 had been disposed of by a common judgment after recording common evidence. Similarly, R.A. Nos. 502/2005 and 503/2005 had also been disposed of by a common judgment. Hence, all these appeals are taken up together for common discussion.

Appeals have been admitted to consider the following substantial questions of law framed on 31.10.2007 in RSA Nos. 2444/2006 & 2445/2006. The same is as follows:

"1. Whether the lower Appellate Court was justified in reversing the judgment and decree of the learned trial Judge without meeting its reasoning?

Whether the lower Appellate Court would have reversed the finding on the question of declaration and possession in the companion suit when the rectification deed, Ex. D3, is unregistered?"

RSA No. 2095/2006 is admitted to consider the separate substantial questions of law framed on 27.10.2010 by this Court. The same is as follows:

"Whether in the facts and circumstances of the case, the appellate Court was justified in granting injunction in favour of the 1st respondent in respect of entire extent of land in Sy. No. 78/6 having held that 1st respondent is in possession of 1 acre and 21 guntas of land?"

The facts leading to the filing of these appeals are as follows:

"a. One person by name Malledevaru was a resident of Murundi village, Kasaba Hobli, Arsikere Taluk. The said Malledevaru died on 8.10.1954 leaving behind his three sons namely, Channamallaiah, the plaintiff in O.S. Nos. 56/1997 and 128/1997 and Sadashivaiah - 9th defendant in O.S. No. 56/1997 and Jayaswamy - 10th defendant in O.S. No. 56/1997. The said Sadashivaiah and Jayaswamy were defendants Nos. 2 and 3 in O.S. No. 128/1997.

b. Sri. Malledevaru had purchased 2.21 acres of land in Sy. No. 78/6 and 2.17 acres of land in Sy. No. 78/7 of Nagsamudra Dhakle, G. Hosahalli, Banavara Hobli, Arsikere Taluk vide registered sale deed 21.03.1951. He was in possession of those two items of lands till his death and the same is inherited by the plaintiff and his two brothers Sadashivaiah and Jayaswamy.

c. 1 acre of land out of 2.21 acres in Sy. No. 78/6 of Nagsamudra Dhakle, G. Hosahalli, Banavara Hobli, Arsikere Taluk was sold by Sadashivaiah and Jayaswamy - defendant Nos. 9 and 10 of O.S. No. 56/1997 in favour of defendant No. 1 -H.H. Siddappa through a registered sale deed 25.04.1970. According to the plaintiff, there was no partition between himself and his brothers and therefore his brothers had no absolute right or title to execute any sale deed in favour of anybody and he claims to be in enjoyment of the possession of entire extent of 1.21 acres of land has described in schedule appended to the plaint in O.S. No. 56/1997. He has chosen to file a suit for the relief of declaration of title to the effect that he is the absolute owner of 1.21 acres of land in Sy. No. 78/6 and for permanent injunction against all the defendants inclusive of purchaser Siddappa and his family members and his two brothers namely, Sadashivaiah and Jayaswamy. The said suit was filed against Sannappa who is the 8th defendant. After the death of 8th defendant, his LR''s were brought on record. He was made party to the suit since he had interfered with the title of the plaintiff relating to 1.21 acres in Sy. No. 78/6. The said suit was contested by first defendant and 8th defendant. Defendant Nos. 2 and 7 are the children of the first defendant.

d. According to the first defendant - Siddappa, Malledevaru died on 8.10.1954. It is averred that plaintiff was the legal representative of his father. According to him, there was partition between three sons of Malledevaru on 9.5.1965 and the same was evidenced by means of palupatti and 2.36 acres of land had fallen to the share of Jayaswamy in Sy. No. 78/7. He is stated to have purchased 1 acre of land in Sy. No. 78/7 on 25.04.1970. He is stated to have enjoyed the entire extent of land in Sy. No. 78/7. But it is wrongly mentioned as 1 acre of land by oversight and the boundaries of the land so purchased in Sy. No. 78/7 pertains to the entire extent. He is stated to have perfected his share to the title in Sy. No. 78/7 by way of adverse possession i.e., being in possession for 26 years.

e. Defendant No. 8 has averred and filed written statement stating that he has purchased 1.18 acres of land in Sy. No. 78/7 through a registered sale deed dated 12.08.1996 executed by defendant No. 1 - Siddappa and therefore he is in possession of the land in Sy. No. 78/7. Defendant No. 9 has virtually supported the case of the plaintiff."

On the basis of the above pleadings, following issues came to be framed. The same is as follows:

Additional Issues:

"5. Whether the suit is barred by limitation?

Whether 1st defendant has perfected his possession over the suit schedule property by adverse possession?

Whether the suit is bad for non-joinder of necessary parties?

Whether the 8th defendant proved the suit schedule from 1st defendant on 12.08.1996 and he is a bonafide purchaser?"

Plaintiff - Channamallaiah chose to file a suit in O.S. No. 128/97 against first defendant in O.S. No. 56/97, making his brothers Sadashivaiah and Jayaswamy as defendant Nos. 2 and 3 and making Sannappa - defendant No. 4. Sannappa died during the pendency of the said suit and his wife and children were brought on record. According to the plaintiff, land in Sy. No. 78/7 had been purchased by his father in the year 1954 through a registered sale deed. After his death, plaintiff is stated to be in possession and enjoyment of the suit schedule property. He is in continuous possession and enjoyment of the suit schedule property that to without any interruption. Since Siddappa sold 1.18 acres of land in Sy. No. 78/7 in favour of Sannappa son of Narasingegowda without any valid title and possession, he was constrained to file suit for the relief of permanent injunction in respect of 2.17 acres of land in Sy. No. 78/7.

The first defendant - H.H. Siddappa chose to file written statement admitting the death of Malledavaru on 8.10.1954. It is his averment that plaintiff is the absolute owner of the entire extent of land measuring 2.17 acres of land in Sy. No. 78/7 is specifically denied. He has averred that he has purchased the entire extent of land in Sy. Nos. 78/6 and 78/7 through a registered sale deed and therefore he was competent to sell the land in favour of Sannappa. With these pleadings, he has requested the Court to dismiss the suit. It is his case that necessary rectification deed is executed under which the transfer of lands in Sy. Nos. 78/6 and 78/7 is ratified and affirmed.

Sadashivaiah had filed written statement in the plaint. Eramma had chosen to file written statement and she has averred that her husband had purchased 1.18 acres of land in Sy. No. 78/7 and being in lawful possession of the same. She has requested to dismiss the suit. Both the suits were clubbed to record common evidence and both the suits were disposed of by a common judgment.

Mallikarjuna, GPA holder of the plaintiff -Channamallaiah is examined as PW-1 and two witnesses have been examined as PW-2 - Jayanna and PW-3 - H.N. Thimmappa. On his behalf, 11 exhibits have been got marked and first defendant -H.H. Siddappa is examined as DW-1 and Smt. Eramma W/o. Sannappa is examined as DW-4 and Maheshwarappa as DW-2, Siddegowda as DW-3 and Sadashivaiah as DW-5 have been examined. 12 exhibits have been got marked on their behalf. Ultimately, both the suits came to be decreed and by molding the relief of possession and thereby directing Eramma and her children being the legal representative of the deceased Sanappa to hand over 1.18 acres of land in Sy. No. 78/7 to the plaintiff. Common judgment dated 16.04.2005 was called in question by first defendant -H.H. Siddappa in terms of Section 96 of CPC before the District Court at Hassan which came be numbered as R.A. Nos. 502/2005 & 503/2005. R.A. No. 502/2005 is allowed in part dismissing the relief of declaration of title relating to 1.21 acres of land in Sy. No. 78/6, but confirming the relief of permanent injunction granted in favour of plaintiff relating to 1 acre of land. Appeal bearing R.ANo.503/2005 is allowed in its entirety and the entire suit bearing O.S. No. 128/1997 is dismissed.

Being aggrieved by the rejection of the relief of declaration sought for by the plaintiff- Channamallaiah in O.S. No. 56/1997 and dismissal of the entire suit in O.S. No. 128/1997, he has filed two appeals which are numbered as RSA Nos. 2444/2006 and 2445/2006. First defendant - H.H. Siddappa is aggrieved insofar as it relates to granting of permanent injunction in favour of plaintiff relating to 1.21 acres of land in Sy. No. 78/7 and he has preferred an appeal bearing RSA No. 2095/2006.

Heard the learned counsel for the parties.

REASONS

The fact that 2.21 acres of land in Sy. No. 78/6 and 2.17 acres of land in Sy. No. 78/7 of Nagsamudra Dhakle, G. Hosahalli, Banavara Hobli, Arsikere Taluk were purchased by Malledevaru, the father of the plaintiff and defendants Sadashivaiah and Jayaswamy in the year 1950 through a registered sale deed is not disputed and the sale deed is produced to that fact. The record of rights of Sy. Nos. 78/6 and 78/7 issued by the Jurisdictional Tahsildar, Arsikere which is marked at Ex. P2 speak to that effect. Name of Malledevaru, is found as the purchaser of land in Sy. No. 78/6 to an extent of 2.21 acres of land and Sy. No. 78/7 to an extent of Sy. No. 2.17 acres of land, on the basis of the sale deed dated 21.03.1951. Hence, statutory presumption is to be attached as per provisions of Section 133 of the Karnataka Land Revenue Act in regard to the entry found in Revenue records. Even the defendants have not disputed the fact that these two lands had been purchased by Malledevaru - the father of the plaintiff and defendant Nos. 9 and 10.

It is not the case of the plaintiff that there was a partition between himself and his brothers Sadashivaiah and Jayaswamy and the lands in Sy. Nos. 78/6 and 78/7 had fallen to his share and therefore, he is the owner of the same. In the plaint, he has not whispered anything about the partition. He claims himself to be the owner of these two properties on the ground that after his father''s death, these lands had been left to him. There should be a document to evidence the ownership of these lands by the plaintiff. In the absence of the same, it is very difficult to hold that he has become the owner of these two items of lands to the exclusion of his brothers by Sadashivaiah and Jayaswamy. But his own brothers have not disputed his ownership in any manner. 1 acre of land in Sy. No. 78/6 out of the entire extent of 2.21 acres of land purchased by his father, so sold by defendant Nos. 9 and 10 namely, Sadashivaiah and Jayaswamy who are his brothers to first defendant in the year 1970 through a registered sale deed dated 25.04.1970 which is marked as Ex. D1. It is 30 year old document and hence execution of the same can be proved in terms of the presumption available under Section 90 of the Evidence Act.

On the basis of the said sale deed, name of H. Siddappa is found as Kathedar in Column No. 9 the RTC got marked as Ex. D4 issued for the year 1986-87 and upto 1993 his name also finds a place of 1 acre of land in Column No. 12, a column earmarked for incorporating the name of the person in position. Since the name of Siddappa as Kathedar to an extent of 1.00 acres of land in Column No. 9 pursuant to mutation entry. He was in possession of the same. Name of Malledevaru - plaintiffs father is found to an extent of 1.21 acres of land and not to the entire extent. Apart from this, he has paid tax in respect of one acre of land in Sy. No. 78/6 and they are evidenced by means of Ex. D9 and D10.

Defendant Nos. 9 and 10 sold 1 acre of land in favour of the first defendant. While executing the sale deed to an extent of one acre of land in Sy. No. 78/6 in favour of Siddappa vide Ex. D1 original sale deed, the southern boundary is shown as land of Siddappa to an extent of 1 acre which is to be challenged by the plaintiff. This is found in the plaint schedule of O.S. No. 56/1997. This is unequivocally demonstrates that Siddappa was in possession of 1 acre of land only out of 2.21 acres of land in Sy. No. 78/6 as described in the schedule appended to the plaint in O.S. No. 56/1997.

Though no document of absolute ownership to an extent of 1.21 acres of land is filed by the plaintiff, First Appellate Court could not have refused to confirm the relief of injunction as the co-owners i.e., brothers of plaintiff have not disputed the assertion of plaintiff. Apart from this, plaintiff has averred that his brothers have properties in another village.

Insofar as Sy. No. 78/7 is concerned, the total extent of land in respect of which the relief of declaration and permanent injunction sought by the plaintiff is to an extent of 2.17 acres of land. This was also purchased by the father of the plaintiff and defendants Sadashivaiah and Jayaswamy. As already stated that no document is forthcoming in regard to the absolute ownership by the plaintiff relating to entire extent of 2.17 acres of land in Sy. No. 78/7.

Name of H.H. Siddappa is found as Kathedar and in possession of 1.18 acres of land in Sy. No. 78/7 out of 4.34 acres of land. This is found in Ex. D7 - the RTC issued for the year 1999-2000. Similarly name of Malledevaru is found as Kathedar to an extent of 2.17 acres of land in Sy. No. 78/7 in Ex. P9 - Index of land and Ex. P8-record of rights.

Siddappa - the first defendant has relied upon Ex. D3 - rectification deed stated to have been executed in his favour by Sadashivaiah and Jayaswamy, the brothers of plaintiff - Channamallaiah on 06.08.1982. It is an unregistered rectification deed. Both the Courts have rightly rejected Ex. D3 because it is an unregistered document. It is mentioned that entire extent of Sy. No. 78/6 and 78/7 had been sold to the first defendant - H.H. Siddappa way back in the year 1970. It is ununderstandable as to how Siddappa''s name would find a place to an extent of 1.18 acres of land in the RTC marked as Ex. D7 relating to Sy. No. 78/7 for the year 1999-2000. The nature of acquisition of Sy. No. 1.18 acres of land is not mentioned in column No. 10 of the RTC marked as Ex. D-7. Siddappa is stated to have executed registered sale deed in favour of deceased - Sannappa who was the 4th defendant in O.S. No. 128/1997 vide registered sale deed dated 12.08.1996. When Siddappa had no right, title or possession of the land in Sy. No. 78/7, it is ununderstandable as to how Sennappa became the owner or got possession from Siddappa.

Ex. D-12 is the certificate issued in favour of Eramma wife of Sannappa on 23.12.2004 by the Syndicate Bank, Arsikere branch to the effect that she had obtained crop loan and dairy loan during the year 2000. It does not speak that for the diary loan, Sy. No. 78/7 had been mortgaged in favour of the bank to avail loan. While executing Ex. D11 - Siddappa mentioned the boundaries as though he is in lawful possession of entire extent of 1.21 acres of land and therefore he has shown the remaining land in Sy. No. 78/7 is the northern boundary. As already stated Siddappa had not become the owner of the Sy. No. 78/7.

In paragraph No. 77 of the judgment passed by the First Appellate Court there is a reference about 1.18 acres of land in Sy. No. 78/7 being in possession of the wife and children of Sannappa who was the fourth defendant in O.S. No. 128/1997. It is stated that suggestion was put to her by the plaintiff that she is in possession of the land in Sy. No. 78/7 to an extent of 1.18 acres of land and records produced by 8th defendant shall show that she has borrowed loan by hypothecating 1.18 acres of land in Sy. No. 78/7. The exact document on the basis of which loan had been availed is not forthcoming. Ex. D12 speaks only about availed crop and diary loan and does not speak about Sy. No. 78/7 being mortgaged. It is observed in paragraph No. 77 that document produced by the plaintiff himself would go to show that Eramma is in possession of 1.18 acres of land in Sy. No. 78/7. Nothing is forthcoming about either Sennappa being the owner of the land in Sy. No. 78/7 to an extent of 1.18 acres of land or in possession of the same. Such being the case, it is ununderstandable as to how the First Appellate Court could make an such observation only on the basis of Ex. D4 RTC issued in respect of Sy. No. 78/7.

Name of Eramma and her children are found to be possession to an extent of 1.18 acres of land in Ex. P4, the RTC issued for the year 2001-2002 relating to Sy. No. 78/7. Admittedly, this RTC is subsequent to the filing of the suit and no credence could have been attached by the First Appellate Court. Therefore, the approach adopted by the First Appellate Court in regard to the rejection of the relief of declaration and injunction is improper and incorrect. On the other hand, trial Court has moulded the relief of possession being sought for by the plaintiff in O.S. No. 128/1997.

Order 7 Rule 7 of CPC empowers molding the relief appropriately. To this effect Division bench of this Court decision reported in AIR 1989 KAR 45 - SMT. NEELAWWA v. SMT. SHIVAWWA is relevant. The power of the Civil Court to mould reliefs based on the main and substantive reliefs is once again reiterated. The relevant portion is extracted below:

"The words" and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief. The plaintiff is entitled on the facts established on the evidence on record, even if such relief has not been specifically prayed for."

In the present case, plaintiff in O.S. No. 128/1997 has sought for declaration that he is the owner and in possession of 2.17 acres of land in Sy. No. 78/7. Any how Sadashivaiah and Jayaswamy who are his brothers have not seriously disputed his claim for title. Infact the trial Court has given the relief of declaration of title in favour of plaintiff as well as brothers and therefore, the approach adopted by the trial court granting the joint relief of declaration is perfect.

Insofar as it relates to the relief of possession granted in favour of plaintiff is concerned against Eramma and his children is concerned, the same cannot be found fault with. The first Appellate Court has not properly reassessed the entire evidence in relation to Sy. No. 78/7 in its right perspective. It has adopted too much importance to the entry found in RTC of Sy. No. 78/7 for the year 1999-2000 and endorsement issued by the Bank. As already stated endorsement issued by the Bank Ex. D12 does not speak anything about the loan and 1.18 acres of land having being mortgaged by Eramma to avail loan from Syndicate Bank, Arsikere branch. Hence, the approach adopted by the First Appellate Court in regard to Sy. No. 78/7 and dismissing the judgment passed by the trial Court suit is improper and incorrect.

Insofar as the connected appeal filed in RSA No. 2095/2006 by Siddappa is concerned. He is not able to prove that he is in possession of the entire extent of land in Sy. No. 78/6. As already stated the rectification deed vide Ex. D3 is an unregistered document i.e., the execution of which was after the execution of the sale deed in his favour. If the name of Siddappa had been entered as Kathedar in Column No. 12(2) of RTC in respect of entire extent of land in Sy. Nos. 78/6 and 78/7 for many years, it would have been something different. On the other hand, the revenue document filed by the plaintiff in respect of Sy. No. 78/6 specifically discloses that plaintiff is in possession of the land in Sy. No. 78/6 to an extent of 1.21 acres of land.

Therefore the trial Court as well as the First Appellate Court are justified in granting the relief of injunction to plaintiff - Chennamallaiah. The defendant - Siddappa is not able to prove that he is in possession of the suit schedule property. The presumption available under Section 133 of the Karnataka Land Revenue Act is taken up for consideration by the trial Court as well as the First Appellate Court.

Accordingly, no merits in the appeal filed by Siddappa in RSA No. 2095/2006. Accordingly, the substantial question of law framed in RSA Nos. 2444/2006 and 2445/2006 will have to be answered in the Negative. And substantial question of law framed in RSA No. 2095/2006 is to be answered in the affirmative and consequently, RSA No. 2095/2006 is to be dismissed. Accordingly following order is passed:

ORDER

"Appeals filed in RSA Nos. 2444/2006 and 2445/2006 are allowed in entirety. RSA No. 2095/2006 is dismissed.

Consequently, judgment of the trial court passed in O.S. Nos. 56/1997 and 128/1997 are restored.

Parties to bear their own costs."