Devamma and Others vs Hanumanthegowda and Others

A.S. Pachhapure, J.—The appellants have challenged the Judgment and Decree of the first appellate, dismissing their suit so far as item No. 1 of the suit properties is concerned and modifying the Judgment and Decree of the trial Court. The facts relevant for the purpose of this appeal are as under:

The parties are referred to as per their rank before the trial Court for the sake of convenience.

The appellants herein are the plaintiffs, whereas the respondents are the defendants in the trial Court. The genealogy is provided by the plaintiffs in para 1 of the plaint. One Kuntegowda was the propositus, who had 3 sons viz., (1) Bettegowda-the 1st plaintiff and the 6th defendant are the descendents of the first branch and (2) Chaluvegowda-defendants 1 and 2 are the successors and (3) Chatigowda-defendants 3 to 5 are the successors of the third branch. ''The appellants claim that there was a partition amongst the 3 brothers'' and the properties fell to the share of Bettegowda and on the death of Bettegowda, his wife Mariyamma i.e., the mother of the 1st plaintiff succeeded to the suit properties and as she executed a Will dated 18.11.1996 bequeathing the suit properties in favour of the plaintiffs, on the death of Mariyamma, the plaintiffs claim to be in possession of the suit properties as owners. They contended that the defendants have no right, title or interest of whatsoever over the suit properties. As there was an interference in their possession, the plaintiffs approached the trial Court, seeking the relief of declaration and injunction in respect of 6 items of the suit properties.

Defendants 3 and 5 filed their written statement admitting the genealogy and contended that the suit item No. 1 of the suit properties belongs to them and they are in possession of the said items of the suit properties. They disputed the title and possession of the plaintiffs over the said lands.

On the basis of these pleadings, the trial Court framed two issues relating to the title and possession of the plaintiffs and execution of the Will dated 18.11.1986 etc.

During the trial, the 2nd plaintiff was examined as P.W. 1 and 2 witnesses P.Ws. 2 and 3 and in their evidence documents Exs. P1 to 11 were marked. The defendants examined D.Ws. 1 and 2 and in their evidence documents Exs. D1 to 13 were marked.

The trial Court after hearing learned counsel for the parties and on appreciation of the evidence on record, decreed the suit as prayed for. Aggrieved by the Judgment and Decree, defendants 3 and 5 preferred an appeal in R.A. No. 76/2008. The first appellate Court has allowed the appeal partly and dismissed the suit of the appellants insofar as item No. 1 of the suit properties is concerned and confirmed the decree of the trial Court so far as the other items. Aggrieved by the Judgment and Decree of the first appellate Court, the plaintiffs are in the appeal.

At the time of admission, this Court raised the following substantial question of law for consideration:

Whether the first appellate Court was justified in hazarding a guess in reversing the finding of the trial Court that the plaintiffs had established possession in respect of item No. 1 of the suit schedule property, as found by its reasoning at para 33?

I have heard learned counsel for the parties.

The appellants to prove their title, relied upon the record of rights produced at Exs. P4 to 9. The perusal of Ex. P4 would reveal that the name of Mariyamma i.e., w/o. Bettegowda is shown in column No. 9 for the year 2000-01. Exs. P10 is the Will said to have been executed by Mariyamma, w/o. Bettegowda, the eldest son which needs no consideration as it is the plaintiffs to establish their title not on the basis of the Will, but on the basis of the partition said to have been effected long back.

Ex. P2 is the copy of the Order passed by the Tahsildar, wherein defendants 1, 3 and 5 i.e., the legal representatives of the second and third branch had challenged the mutation entry relating to Mariyamma''s name having been entered in the records and Mariyamma was the 1st respondent in that appeal. The defendants have also produced the copy of this Order at Ex. D11. The appeal of defendants 1, 3 and 5 was allowed by setting aside the entry of the name of Mariyamma in the records and the appellants herein had contended that survey No. 343 was fallen to the share of the decedents branch of two and three. Pursuant to the Order of the Assistant Commissioner, the Tahsildar passed the Order-Ex. D11 and ordered the parties to approach the Civil Court directing to continue the names of those persons, which were entered in the records prior to entering name of Mariyamma till adjudication of the rights in the Civil Court. So, it is on the basis of the record of rights at Ex. P4 and the Order of the Tahsildar-Ex. P2 the plaintiffs claim title of item No. 1 of the suit properties and contended that they are in possession of the same. Apart from these two documents, it is the oral evidence of P.Ws. 1 and 2, which was appreciated by the Court below and it is pertinent to note that the 2nd plaintiff, who was examined as P.W. 1 in his cross-examination pleads ignorance as to the manner of partition and distribution of the properties amongst the members of the family. He also does not know as to whether the partition was in the year 1954 or 1957 or any other year. It is his oral version that after the partition, the names of respective three branches were entered in the records. She states that in the records of item No. 1 was the name of Bettegowda, which was entered after the partition. At this stage, it is necessary to mention that he has not produced any records to show that the name of Bettegowda was entered in the revenue records after the partition. He does not know how many properties fell to the share of Bettegowda. He does not know the survey numbers and though he states that there are records to show that the name of Bettegowda was entered, he has not produced them.

P.W. 2 is the witness examined by the plaintiffs and he speaks of Ex. P10-Will said to have been. executed by Mariyamma in favour of the 1st plaintiff. P.W. 2 except stating that the suit properties were in possession of Mariyamma, he speaks about the will and states that he is not a adjoining land owner.

P.W. 3 is another witness to the Will-Ex. P10. Though he speaks about execution of the Will and the suit properties are being in possession of the plaintiffs, he is also not an adjoining land owner.

So far as the record of rights produced at Ex. P4 relating to item No. 1 is concerned, though a presumption could be raised under the provisions of Section 133 of the Karnataka Land Revenue Act, the plaintiffs cannot get the benefit of the aforesaid provision for the sole reason that the entry of the name of Mariyamma was set aside by the Tahsildar under Orders produced at Ex. P2 and hence, the question of presumption about the plaintiffs'' possession can not be revised. So, except the oral evidence of P.Ws. 1 to 3 referred to supra, there is no material worth acceptance at all to prove the title and possession of the plaintiffs over item No. 1. When the 1st plaintiff claims that prior to the entry of the name of Mariyamma, her husband''s name i.e., Bettegowda was entered in the records, she does not produce the record of rights to prove his possession prior to the disputed mutation entry by entering the name of Mariyamma in the records. No explanation has been offered by the plaintiffs for non-production of the record of rights though they claimed to be in possession of them.

It is in this context, learned counsel for the appellants would contend that the defendants have also not produced any evidence to show their possession and in the absence of the evidence by the defendants, he submits that the Court has to accept the evidence of the plaintiffs about the title and possession. It is also his submission that the evidence led by defendants 3 and 5 is insufficient to prove their possession and by weighing the evidence on record, the Court has to accept the evidence led by the plaintiffs. On this aspect of the matter, he has placed reliance on the decision of the Apex Court reported in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, ; wherein the Apex Court has observed as under:

The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic.

The perusal of the evidence of the defendants in the context of the principles laid-down by the Apex Court in the aforesaid decision, the 5th defendant is examined as D.W. 1 and he states in his evidence that he is in possession of the suit property i.e., item No. 1 along with his brother-3rd defendant. He has also examined D.W. 2, who is the adjoining land owner i.e., the owner of Sy. No. 349/3/2 on the eastern side of suit item No. 1. Apart from the oral evidence of D.Ws. 1 and 2, the defendants 3 and 5 have produced the record of rights-Exs. D5 to 10. The perusal of the same would reveal that prior to the entry of the name of Mariyamma, it was the names of defendants 1 and 2 which were in the records and they were shown as owners in possession of suit item No. 1. They have produced the mutation extract entering the name of Mariyamma in the records at Ex. D5 and it reveals that Mariyamma''s name was entered as her husband Bettegowda had died. But, it is clear from these documents that the name of Bettegowda was not in the records prior to the entry of the name of Mariyamma and it appears that a false report was submitted to the Revenue Authorities and the entry was certified, which was set aside by the Assistant Commissioner under the Order produced at Ex. D12. But, it is clear from these records that the name of Bettegowda was not in the Revenue Records prior to the entry of the name of Mariyamma and as the entry certified in favour of Mariyamma was set aside in the appeal, the plaintiff cannot take the benefit of her name in the records and as stated above, the presumption also cannot be drawn in favour of the plaintiffs. It is no-doubt true that it is the name of defendants 1 and 2, which appears in the owners column and also in the possessor''s column prior to the entry of the name of Mariyamma. But anyhow, it was not the name of either the plaintiffs or their predecessors in title that appeared in the owners column and cultivator''s column. The mere fact that defendants 1 and 2 did not contest the suit is itself insufficient and their absence before the trial Court cannot be a ground for the plaintiffs to draw any adverse inference in their favour. When defendants 1 and 2 have not shown any interest and defendants 3 and 5 claimed to be in possession of item No. 1 of the suit property, the plaintiffs cannot be granted the benefit of the conduct of defendants 1 and 2 in not contesting the claim. So, even scanning the evidence of the defendants, I do not find any material to support the version of the plaintiffs and that cannot be a ground for the plaintiffs to make a claim that they are in possession of the suit properties. It is relevant to note at this stage that the appeal which was filed before the Assistant Commissioner was at the instance of defendants 1, 3 and 5 jointly challenged the entry of the name of Mariyamma, the mother of the 1st plaintiff. I do not find any conflicting evidence as there is no document at all by the plaintiffs to prove that they succeeded to suit item No. 1 on the basis of a partition.

Learned counsel for the appellants placing reliance on the decision of the Supreme Court reported in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, ; wherein the Apex Court held that the Court ought to draw an adverse inference against the party who has suppressed the best evidence which was available in his favour. At this stage, it is necessary to refer to the contention of defendants 3 and 5, wherein they claim succession and possession to item No. 1 of the suit property on the basis of a partition in the year 1954. They contended that suit Sy. No. 343 fell to the share of Kempamma and Boramma, the persons of the second and third branch. Though defendants 3 and 5 did not produce the Partition Deed in the trial Court, in fact they had moved an application before the first appellate Court seeking permission to produce the unregistered Partition Deed. The request of the respondents was rejected by the first appellate Court. It is no-doubt true that the respondents ought to have produced this document in the trial stage itself and it may be that an adverse inference has to be raised against defendants 3 and 5 for non-production of this document in the trial. But, that itself is not sufficient to draw such an inference so as to hold that the plaintiffs have proved their title and possession. When both the parties admit that there was partition in between 1954 to 1957 and when the plaintiffs contended that the names of their predecessors were entered in the records of the properties, which fell to their share and when they do not produce any such records, inference that could be drawn by non-production of best evidence by the defendants is insufficient to fill in a serious lacuna in the evidence of the plaintiffs. So, even accepting the view expressed by the Apex Court in the decision referred to supra, the adverse inference for non-production of the Partition Deed which was sought to be produced in the appeal is not sufficient to declare the title of the plaintiffs. Furthermore, learned counsel for the appellants placed reliance on the decision of the Apex Court reported in Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, ; wherein the Apex Court taking into consideration the fact that the parties failed to prove their title and it was held that in case if the evidence is sufficient to prove the possession, it has to be protected by granting an injunction. The facts in the aforesaid decision would reveal that the plaintiff had succeeded in proving the possession over the suit property and had sought for a decree of injunction not to dispossess him except due process in law. In the context of the aforesaid facts, the Apex Court observed as follows:

Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, ...

It laid-down the principles to be adopted as a working rule for determining the attributes of possession. They are;

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case.

(iii) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) That one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.

After laying down the aforesaid working rule, the Apex Court observed thus:

In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.

On this aspect of the matter, it is relevant to note that the first appellate Court had raised a point for consideration so far as the proof of possession is concerned. Point No. 3 is raised by the first appellate Court reads;

Have they established that they are in possession of the same?

The first appellate Court appreciated the material placed on record and in paras 34-37, considered the oral and documentary evidence and held that the plaintiffs have failed to establish their possession over item No. 1 of the suit schedule properties. It has taken into consideration the record of rights the presumption to be raised in law, the oral evidence of the witnesses and having come to the conclusion that the entry of the name of Mariyamma was challenged in the appeal and it held that the presumption cannot be in favour of the plaintiffs and it did not accept the oral evidence of P.Ws. 1 to 3 on the ground that the evidence of P.W. 1 is an interested version and that P.Ws. 2 and 3 are not that of the adjoining land owners, who were examined prominently to prove the Will-Ex. P10, it took into consideration the evidence of D.W. 2, who was the adjoining owner of the suit land and also considered the records. It may be that it was not the name of defendants 3 and 5 in the record of rights and that there were names of defendants 1 and 2 as the said defendants did not contest the suit and as there was a claim by defendants 3 and 5 that they are in possession of suit item No. 1, on appreciating the evidence, it has come to the conclusion that the plaintiffs are not in possession of item No. 1 of the suit properties. Therefore, looking to the scanty evidence to prove the title and possession, I think it is not proper to interfere with the findings of the first appellate Court. The perusal of the Judgment and Decree of the first appellate Court reveals consistent and cogent reasons so far as title and possession of item No. 1 and even before concluding the point in favour of the defendant, it has assigned the reasons as to why the finding of the trial Court is wrong. It is pertinent to know that the trial Court went on with the mutation entry in the name of Mariyamma and raised a presumption under the provisions of the Karnataka Land Revenue Act. As the plaintiffs are not entitled to the benefit of this presumption in view of the disputed entry having been set aside in the appeal by the Assistant Commissioner, the first appellate Court has rightly felt that the plaintiffs have failed to establish their possession.

So far as the applications filed under the provisions of Order XLI Rule 27 CPC is concerned, the plaintiffs have produced a certified copy of a Settlement Deed executed by Kempamma, wife of Cheluvegowda, the person of the second branch in favour of defendants 1 and 2. This is registered on 12.06.1957. Under this document, the said Kempamma, wife of Cheluvegowda, the successors of the second branch executed the Settlement Deed of the suit survey number measuring 1 acre 10 guntas in favour of defendants 1 and 2. This document is of no help to the plaintiffs to prove their interest in the suit property. The other documents produced is the mutation entry made in the records of suit Sy. No. 343 on the basis of the registered Settlement Deed. The rest are the record of rights. These documents are of no help to the appellants. That apart, though the plaintiffs had sufficient opportunity to produce these documents in the trial Court, no satisfactory reasons are assigned by the plaintiffs for not producing them at the appropriate stage. The plaintiffs ought to have produced the documents at that stage. In the circumstances, I am of the opinion that the appellants are not entitled to any relief on the interim application as well. Consequently, the substantial question of law raised is answered in affirmative.

In the result, the appeal fails and it is accordingly dismissed. I.A. No. 1/2013 filed for production of additional documents is also dismissed.