Ganesh vs Govinda and Others

Ravi V. Malimath, J.

Aggrieved by the concurrent findings recorded by the Courts below in decreeing the suit of the Plaintiff by declaring him as owner of the suit schedule property and directing the Defendants to hand over the possession of the suit schedule property to him, the 1st Defendant has filed this appeal.

The parties will be referred to their ranking as referred before the trial Court.

The case of the Plaintiff is that the suit schedule property originally belongs to one Malledevaru S/o. Madappa of Honnur Village. The father of the Plaintiff purchased the said property from Malledevaru under a registered sale deed dated 15.04.1946. Ever since then, he is in possession and enjoyment of the said property. Out of 8 ankanas house, the father of the Plaintiff sold 2 ankanas house on the western side to one Doddagovinda and another 2 ankanas house was leased to one Chikkagovinda. Out of remaining 6 ankanas house, out of three portions therein, the Plaintiff is residing in 2 ankanas house in between the portion sold to Doddagovinda and the other portion leased to Chikkagovinda. The Plaintiff filed HRC petition against Chikkagovinda. The other two ankanas on the eastern side of the leased house, is vacant as the house has fallen down about 10 years prior to filing of the suit. The said two ankanas vacant site is the suit schedule property and the Plaintiff has produced the rough sketch of the same. The 1st Defendant has colluded with the 2nd Defendant i.e., City Municipality, Chamarajanagar and tried to raise a loan under the Ashraya Scheme. Further, he got issued a legal notice to the 2nd Defendant though his counsel. It is the further case of the Plaintiff that the 2nd Defendant in collusion with the 1st Defendant had changed the katha of the suit schedule property in favour of the 1st Defendant and has also sanctioned the loan to the 1st Defendant based on the concocted documents. It is alleged that even the house has been constructed with the assistance of the 2nd Defendant-the City Municipality. Hence, on these facts, the instant suit was filed by the Plaintiff seeking for a relief of declaration and alternative relief of possession and consequential relief of permanent injunction.

The Defendants entered appearance and denied the suit averments. It is the case of the 1st Defendant that the suit schedule property originally belongs to one Hanumanthaiah, the grand father of the 1st Defendant. After his death, the property came to his father Hanumanthasetty and he has given the suit schedule property being 1/3rd share to the 1st Defendant in the oral partition and hence, he is the lawful owner and possession of the suit schedule property.

On the basis of pleadings, the trial Court framed the following issues and additional issues for consideration:

Additional Issues dated 12.01.2005:

Whether Plaintiff proves that he is the absolute owner of the suit schedule property?

To what order?

Additional Issues dated 18.10.2005:

Whether Plaintiff proves that during the pendency of the suit, the defendant No. 1 is illegally put up construction in the suit schedule property with the help of defendant No. 2?

Whether the Plaintiff is entitled for vacant possession of the suit schedule property from the Defendant No. 1?"

In order to prove his case, the Plaintiff examined himself as PW-1 and a Court Commissioner was examined as PW-2 and marked 10 documents as well as Commissioner''s documents as C1 to C6. Defendant No. 1 himself examined as DW-1 and other two witnesses as DW-2 and DW-3 and got marked 41 documents.

Issues No. 1, 2, Additional Issue No. 1 dated 12.1.2005 and Additional Issues No. 1 and 2 dated 18.10.2005 were held in the affirmative. The trial Court decreed the suit of the Plaintiff declaring him as owner of the suit schedule property and defendant was directed to hand over the possession of the suit schedule property in favour of the Plaintiff. Aggrieved by the same, Defendant filed the first appeal, which was dismissed. Hence the present second appeal.

The learned Counsel for the appellant contends that both the Courts below committed an error in misreading the material on record. That the material on record would show that the Plaintiff has failed to make out a case in his favour. Hence, the decree granted by the Courts below is opposed to the material and evidence on record.

On hearing learned Counsel, I ''am of the considered view that there is no merit in this appeal.

In order to his prove, the Plaintiff has produced substantial material with regard to his ownership of the suit schedule property. Ex. P1 is the endorsement issued by the Sub-Registrar, Chamarajanagar; Ex. P2 is an encumbrance certificate; Ex. P3 is the certified copy of the Sale Deed. Exs. P4 to P6 are the Assessment Register extracts; Ex. P7 is the Mutation Register extract and Ex. P10 is the Xerox copy of the Sale Deed. Considering all these documents, it can be clearly seen that the Plaintiff is the owner of the suit schedule property. The original owner purchased the said property through an auction conducted by the Munsiff''s Court, Nanjangud and the Encumbrance Certificate - Ex. P2 also discloses the same. After purchasing the said property, Malledevaru sold the said property in favour of the father of the Plaintiff, who has purchased the same under a Sale Deed dated 15.04.1946. Ex. P10 is the Xerox copy of the same.

On the other hand, Defendant''s counsel has strongly denied the title of the Plaintiff contending that originally the suit schedule property belongs to one Hanumantha i.e., grand father of the Defendant and the said property was allotted in favour of his father through partition. After partition, the Defendant''s father was in possession and enjoyment of the same. However, the katha is not changed in the name of the Defendant''s father. Subsequently, when it was changed, the Defendant constructed the house. In order to prove his case, Defendant has produced the assessment registers, tax paid receipts, residency certificate, Genealogical Tree, Demand Notice, electricity bills and receipts. The same would show the name of the Defendant and the same has been accepted by the Municipality in terms of the Partition Deed. However, there is no material to show that the partition was effected and the suit schedule property came to the share of the Defendant''s father. Therefore, non-production of the Partition Deed is an adverse inference to the case of the Defendant. In view of the fact that it is the specific case of the Plaintiff that the Defendant No. 1 has colluded along with Defendant No. 2 i.e., the City Municipality and have created concocted documents, the Defendant has failed to establish it to the contrary. That the defendants are not the parties to the Partition Deed. There is no evidence to show that the partition is effected and what is the relationship and as to how the father of the Defendant got the property. Only because mutation entries are made in the name of the Defendant cannot prove title. Title has to be established in a manner known to law. The said Partition Deed has to be produced and the proof or the sale deed for having purchased would have to be established. None of these documents have been produced by the Defendant. Merely relying on the entries made in the mutation register would not lend any title to the Defendant. The material on record as narrated hereinabove would show the purchase of the suit schedule property in an auction conducted by the Munsiff Court, Nanjangud by the vendor of the Plaintiff''s father. Thereafter, the property has fallen to the share of the Plaintiff. The source of title has been clearly established by the Plaintiff. The source of title sought by the Defendant has remained in doubt. Consequently, both the Courts below have rightly decreed the suit of the Plaintiff. I find no error in the judgment and decree passed by both the Courts below. Further more, the entire case of the appellant revolves around facts. No substantial question of law arises for consideration in this appeal. Consequently, the appeal being devoid of merit is dismissed.

Since the appeal is dismissed, Misc. Civil No. 5676/2011 for stay does not survive for consideration. Hence, it stands rejected.