Hanumaiah vs Dharmaiah and Others

B. Sreenivas Gowda, J.—This is plaintiffs second appeal challenging the concurrent judgment and decree of the courts below.

Heard the learned counsel appearing for the appellant and the respondent and perused the judgments and decrees of both the courts.

For the sake of convenience, the parties are referred to as they are referred in the suit before the trial court.

It is the case of the plaintiff that he is the absolute owner of the property bearing Assessment No. 1. 14B/12B (old number) and new No. 347 measuring East to West: 16 mtrs North to South: 18 mtrs., consisting of tiled roof house measuring East to West: 21 feet and North to South: 25 Feet situated at Vedalaveni Village in Gauribidanur Taluk, bounded on the East by : Sandi and house of Nanjaiah, West by : Kere Angala, North by : house of D. Nagappa and on the South by : Reddappa''s vacant site, hereinafter referred to as suit schedule property. The defendants having no manner of right or title over the house situated in the suit schedule property, illegally occupied the same when the plaintiff was away from the village. The plaintiff on his return, demanded the defendants to vacate the house property, the defendants who sought time to vacate the house, did not vacate the suit house property since several years and hence the plaintiff left with no other alternative has filed the suit for the relief of declaration of his title in respect of the suit house and for recovery of possession of the same from the defendants.

The defendants after entering appearance in the suit through their advocate have filed a common written statement denying the plaint averments inter-alia contending that they are living in the tiled roof house bearing Assessment No. 44 (Old No. 109) measuring East to West 12 Feet and North to South : 20 Feet situated at Vedalaveni Village in Gauribidanur Taluk and further contending that the plaintiff has got created the documents by giving wrong boundaries and the suit is barred by limitation and prayed for dismissal of the suit among other grounds.

The trial court based on the rival contention of the parties has framed the following issues:

"(1) Whether the plaintiff proves his title over the suit property?

(2) Whether the plaintiff further proves that when he was away from the village, the defendants have illegally occupied the suit schedule property?

(3) Whether the defendants prove that the plaintiff colluding with the officials of Grama Panchayat, obtained an Assessment Register Extract with wrong measurements and plaintiff has filed this suit by mentioning wrong boundaries?

(4) Whether the plaintiff is entitled to the relief of recovery of possession?

(5) What order or decree?"

The plaintiff in support of his case has examined himself and two witnesses as PW-1, 2 and 3 respectively and produced six documents which were marked as Ex. P-1 to P-6. That on behalf of the defendants, the 2nd defendant was examined as D.W. -1 and they have produced eight documents which were marked as Ex. D-1 to D-8.

The Trial Court after hearing the learned counsel appearing for the parties and perusing the oral and documentary evidence on record has answered Issue Nos. 1, 2, 4 and 5 in negative and answered Issue No. 3 holding the defendants have proved that the plaintiff colluded with the officials of Village Panchayat has obtained Assessment Register Extract with wrong measurement, and has filed the suit by mentioning wrong boundaries and dismissed the suit.

The plaintiff aggrieved by the said judgments and decrees of the Courts below has challenged the same in R.A. No. 163/2011 before the Lower Appellate Court which also dismissed the appeal and confirmed the judgment and decree of the trial court. Hence, the plaintiff has preferred this second appeal.

Learned counsel for the plaintiff/appellant submits that the lower appellate court having considered the documents produced by the plaintiff along with the application filed under Order 41 Rule 21 of CPC could not have rejected the application. He submits when the title of the plaintiff to the suit schedule property is not denied by the defendants, the courts below were not justified in dismissing the suit of the plaintiff.

He submits if there is any inconsistency in the oral evidence of the plaintiff with that of documentary evidence, courts below should have considered the case of the plaintiff on the basis of documentary evidence as documentary evidence prevails over the oral evidence. He submits there is substantial question of law which arises for consideration in this second appeal and he therefore prays for allowing the appeal as prayed for.

In response to his submission, learned counsel appearing for the defendants/respondents submits there is no illegality or infirmity in the concurrent findings of the courts below much less there is no substantial question of law which calls for interference of this court. Therefore he prays for dismissal of the appeal.

It is the specific case of the plaintiff that he is the owner of the suit schedule property with tiled roof house measuring East to West: 21 Feet and North to South: 25 Feet and defendants illegally occupied the said tiled roof house in his absence. Therefore he filed the suit for declaration of title in respect of suit schedule property and for recover of possession of the same from the defendants. Whereas, the case of the defendant, is, they are the owners in possession and enjoyment of the Eastern side of the suit schedule property having purchased it from their sisters through a registered sale deed based on which their names are entered in the Assessment Register Extract as per Ex. D-1 and they have been paying house tax as per Ex. D-2, D-3 and D-4.

The plaintiff in order to prove his title to the suit property has produced six documents which were marked as Ex. P-1 to P-6.

Ex. P-1 is the Assessment Register Extract wherein the measurement of the property of the plaintiff is shown as 12 x 18 yards, whereas in the plaint schedule, the measurement of the suit property is mentioned as 21'' x 20'' and at the end of the plaint schedule, the measurement of the property is shown as East to West : 16 mtrs and North to South: 18 mtrs. Thus, Ex. P-1 does not corroborate with either of the two measurements mentioned in the plaint schedule.

Ex. P-2 is the license issued by the Village Panchayat on 21.05.1978 in which the measurement of the property is shown as East to West: 21 feet and North to South : 25 Feet. Ex. P-3 is the tax paid receipt of the year 2006. Ex. P-4 and 5 are the legal notices wherein measurement of the property is shown as East to West : 16 mtrs and North to South: 18 mtrs. Thus, perusal of Ex. P-1 to P-6 would show there are serious discrepancies regarding the actual measurement of the property.

Apart from the discrepancies with regard to the measurement of the suit property in Ex. P1 to P6, the plaintiff who was examined as P.W. 1 in his cross-examination has deposed that the measurement of his property is 21 ft. East-West and 25 ft. North-South which measurement is contrary to measurement mentioned in Ex. P1 to P6. He has further stated that boundaries of his property is bound East by ''Sand'' (Conservancy) and the house of Nanjaiah, West by remaining property in the same schedule property, north by remaining property of plaintiff and South by site of Reddappa. It is to be seen that boundaries deposed by him do not tally with the boundaries of the property mentioned in the plaint schedule.

He has further deposed that, suit property was granted to him by Panchayat during 1977 but no where in the plaint, plaintiff has averred to that effect. When it was suggested to him by defendants that suit property has been purchased by them from the aunt of defendants, he has deposed that there were negotiations in that regard.

P.W. 2 who is an independent witness has been examined by the plaintiff has deposed that measurement of the suit property is 12'' x 12'' which is also not in corroboration either with the oral or documentary evidence of the plaintiff or with the measurement mentioned in the plaint schedule. He has further deposed that western boundary of the suit property is the property of the plaintiff thereby, he admits the Eastern side of the suit property is the property belonging to the defendants as contended by them. P.W. 3 who is another independent witnesses has deposed that the measurement of suit property may be 21'' x 16''.

There is a specific recital in the sale deed sought to be produced by the plaintiff along with an application under Order 41 Rule 27 by way of additional evidence that the eastern portion of the suit property belongs to Muddappa the father of defendants 1 and 2.

Considering the above material aspect of the matter, the Trial Court was justified in dismissing the suit of the plaintiff. The lower Appellate Court, on re-appreciation of entire oral and documentary evidence on record concurred with the findings of the trial court and dismissed the appeal of the plaintiff.

I have carefully gone through the Judgment and Decrees of both the Courts below and do not find any infirmity or illegality warranting my interference much less, there is no substantial question of law which arises for consideration in the appeal.

Accordingly, the appeal is dismissed as devoid of merit.

No order as to costs.