Ganapati vs Krishna and Others

A.V. Chandrashekara, J.—Plaintiff is before this Court by filing an appeal u/s 100 of CPC, challenging the concurrent findings passed in the suit filed by him in O.S. No. 47/2001 and affirmation of the same in Regular Appeal No. 7/2004. Appellant is the plaintiff and respondents are defendants 1 to 6 in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

The case of the plaintiff is that, he is the absolute owner of the schedule property, a residential site and that he is in possession of the same. According to the plaintiff, he is in possession of 1.2 anas of land in plot No. 249 carved out of survey No. 517 of Honavar town, U.K. District. The approximate dimension of the spot is 30'' east-west and 40'' north-south. The case of the plaintiff is that, Town Municipality - 6th defendant granted the site in question in his favour in the year 1983, in order to enable him to put up a house. Since then, he is stated to be in possession of the property. Since Town Panchayat has not provided basic amenities to the said site, he has not constructed house. According to him, defendants 1 and 2 have no manner of right, title in the property in question. The second defendant is stated to be residing in Haladipur village and that 6th defendant � Town Panchayat has not granted any site to the second defendant, more particularly, when second defendant has no eligibility to get the grant. Taking into consideration that the name of plaintiff and second defendant are one and the same, second defendant is stated to have alienated the property in question to the 1st defendant through the registered sale deed dated 12.11.1998. The said alienation is stated to be a fraudulent one and therefore, it does not bind him on the title he has. Defendants 1 and 2 have colluded with each other to grab the site belonging to the plaintiff is his case.

The first defendant has filed a detailed written statement denying all the material averments. According to him, the property in question was granted by the Honavar Municipality to the second defendant and that the second defendant, being the absolute owner of the same, has alienated in his favour through a registered sale deed and as such, he is in possession of the same. Defendants 3 to 6 are stated to be unnecessary parties. Patta was issued in favour of second defendant after collecting upset price of Rs. 600/- and later on, his name came to be mutated. The second defendant is stated to have sold the property in question in his favour on 12.11.1998 through a registered sale deed and therefore, he had requested for dismissal of the suit.

On the basis of the above pleadings, the following issues came to be framed:

i. Whether the plaintiff proves that suit schedule open site is granted to him by Honavar Town Panchayath in the year 1983 for the purpose of construction of house and he was put in possession of the same as alleged in the plaint?

ii. If so, whether the plaintiff proves that he is still the owner in possession of the suit schedule property as alleged in the plaint?

iii. Whether the plaintiff further proves that the Sale Deed dated 12.11.1998 alleged to have been executed by the 2nd defendant in favour of the 1st defendant bearing Reg. No. 868/1998-99 in respect of suit property is fabricated, bogus, void-ab-initio and not all binding on him as alleged in the plaint?

iv. Whether the plaintiff further proves that defendant No. 2 taking undue advantage of similar name of plaintiff have created the bogus Sale Deed in favour of defendant No. 1 as alleged in the plaint?

v. Whether the defendant No. 1 proves that the sale deed dated 11.11.1998 got executed by him is legally valid document and have created title in his favour and he is in possession of the suit schedule property from the date of purchase as contended in his W.S.?

vi. Whether the Court fee paid on the plaint is correct?

vii. Whether the plaintiff proves the alleged interference obstruction, attempt of alienation of the suit property by the defendant No. 1 as alleged?

viii. Whether the defendant Nos. 3 to 6 prove that they are unnecessary parties to this suit and thus the suit is bad for mis-joinder of parties as contended in their W.S.?

ix. Whether the plaintiff is entitled for declaratory relief so claimed?

x. Whether the plaintiff is entitled for injunction so prayed?

xi. What order/decree?

Plaintiff is examined as PW 1 and as many as five witnesses have been examined on his behalf. Second defendant is examined as DW 1 and one Krishna Satyanarayan Naik is examined as DW 2. 6 exhibits have been got marked on behalf of the defendants and 29 exhibits have been got marked on behalf of the plaintiff. Ultimately, suit came to be dismissed, as against which, an appeal came to be filed in R.A. No. 7/2004. The said appeal has also been dismissed by a considered judgment dated 25.03.2013.

Learned Counsel for the appellant has submitted his arguments in regard to the admission of the case. Several questions of law have been proposed to be considered as substantial questions of law by this Court.

Whoever approaches the Court seeking a particular relief must discharge the initial burden cast upon him or her effectively. Unless initial burden is effectively discharged, onus does not shift on the other side. The case of the plaintiff is that, in the year 1983 property in question is granted in his name. But the name of second defendant was entered in all the records maintained by 6th defendant - Town Panchayat. The entries were sought to be challenged before the Assistant Commissioner Bhatkal by the plaintiff. The same was dismissed. The appeal filed before the Deputy Commissioner was also dismissed.

Though the plaintiff has deposed that he has paid a sum of Rs. 1,200/- as upset price after the site in question was granted, he has not produced any receipt for having paid the said upset price to the Town Panchayat. He has not produced any hakku patra i.e., patta of the property in question, though he has made reference to that effect in his evidence. In spite of the Chief Officer of Town Panchayat, Honavar calling upon the plaintiff to produce grant certificate, he has not produced the same.

In the resolution passed by the Honavar Town Panchayat, the name of grantee is found as Ganapati Bhat, but the father''s name of Ganapati Bhat is not mentioned. Defendant No. 2 is examined as DW 1. But he has deposed that site in question was granted to him with a condition that it shall not be alienated for a period of 15 years. After the expiry of period mentioned in the grant, he has chosen to sell the same in favour of defendant No. 1. The original sale deed is produced, which is in respect of the plot No. 249 measuring 30'' x 40''.

What is argued before this Court is that the defendant has not been able to substantiate his case with regard to grant being made and sale being made in favour of 1st defendant. As already discussed, the initial burden will be on the party approaching the Court. Unless that burden is effectively discharged, the inconsistencies in the case of the adversary will not help the plaintiff. This is what is held by the Hon''ble Supreme Court in a decision reported in AIR 1954 SC 256. In an ejectment suit, plaintiff must succeed on the strength of his own title and to that effect, he has to adduce sufficient evidence to discharge the initial burden irrespective of the fact whether the defendant has proved his case or not. Just because the defendant questions the title of the plaintiff, it cannot be said that the onus has automatically shifted on the other side.

On the other hand, the defendants 1 and 2 have placed on record acceptable evidence in regard to their case. The case of the defendants 1 and 2 is more probable than the case of the plaintiff and that is what is held by the trial Court and affirmed by the First Appellate Court. Consequent upon the sale deed executed by the defendant No. 2 in favour of the defendant No. 2, mutation has already been effected by the Panchayat and it is prima facie case to support their title. Defendant No. 2 has produced hakku patra and the receipt for having paid upset price and he had also filed an application for mutating his name. The cumulative effect of all these is that, the case of the defendant is probabalised. Both the Courts have adopted a proper approach to the real state of affairs. The trial Court has assessed the evidence on the touchstone of intrinsic probabilities. The First Appellate Court, being the final Court of facts, has reassessed the entire evidence in right perspective and has assigned cogent reasons as to why it has concurred with the judgment of the trial Court. Hence there are no merits in the appeal. Consequently, the appeal is liable to be dismissed.

ORDER

Appeal is dismissed as unfit for admission. Judgment of the trial Court and the First Appellate Court are upheld.

There is no order as to costs.