K. Muninarayana vs Sundara Raju and Others

L. Narayana Swamy, J.—This appeal is filed by the appellant-plaintiff being aggrieved of the concurrent judgment and decree dated 5.9.2005 passed in R A No. 189/97 on the file of the Civil Judge (Sr.Dn.) Kolar confirming the judgment and decree dated 27.9.1997 in OS No. 292/90 on the file of Additional Civil Judge (Jr.Dn.), Kolar. The Courts below have dismissed the suit of the appellant-plaintiff for the relief of declaration and perpetual injunction.

For the sake of convenience, the parties would be referred to as per their ranking in the trial court.

The facts of the case to be stated in brief are that plaintiff filed the suit on the ground that he is the absolute owner in possession and enjoyment of the suit schedule property. He purchased the suit schedule property under a registered sale deed dated 20.2.1969 from one K.V. Nagappa and since then he has been in possession and enjoyment of the suit schedule property. The plaintiffs vendor purchased the suit property from one Lakshminarayanappa, under an unregistered sale deed dated 4.11.1943 for Rs. 30/- and he was put in possession. One Shameelaiah, purchased portion of land in suit survey number on the eastern side of the suit schedule property. Neither the defendant nor his grandfather got right, interest or possession over the suit schedule property. The defendant illegally trespassed into the suit schedule property, cut and removed about 30 plants from the schedule property. When the defendant was questioned, defendant denied the plaintiffs title to the suit schedule property. Hence the plaintiff filed the said suit.

The defendant filed written statement denying the plaint averments and contending that plaintiff is not in possession and enjoyment of 2 acres of land but he is in possession and enjoyment of about 1 acre of land. The suit Sy. No. 77/1 old No. 6 measured totally 6 acres 23 guntas including kharab land of 1 acre 35 guntas. Excluding the kharab, the land in Sy. No. 77/1 was 4 acres 28 guntas. Under a registered sale deed dated 3.4.1944 Puttaiah, father of the defendant and one Samuelaiah purchased 3 acres 21 1/4 guntas of land from Sri Lakshminarayanappa and they were put in possession. On 12.10.1963, the said Samuelaiah executed release deed in favour of Puttaiah and released 1 acre 2 1/4 guntas of land on the western side of property in favour of Puttaiah and Samuelaiah retained 2 acres 19 guntas. Since then Puttaiah was in possession and enjoyment of 1 acre 2 1/4 guntas of land in S. No. 77/1. After his death, the defendant is in possession and enjoyment of this land by raising crops. Though there was no land measuring 2 acres in the Survey Number, the plaintiff by concocting and fabricating documents he is falsely claiming property of the defendant. The property of the plaintiff is measuring about 1 acre. The description of the suit schedule property is not correct. The plaintiff has filed the suit only to knock of the property of the defendant. The plaintiffs vendor was never in possession and enjoyment of 2 acres of land. Thus he prays for dismissal of the suit.

On the basis of the pleadings, the trial court framed as many as 12 issues. The issue relating to exclusive possession of the suit schedule property by the plaintiff is answered in the negative and as to whether the plaintiff proves the registered sale deed in his favour is answered in the affirmative. But because there is difference in the area mentioned in the sale deed and the actual possession of the plaintiff, the court below dismissed the suit of the plaintiff declining to grant any relief.

The plaintiff filed regular appeal. The lower appellate court concurred with the findings recorded by the trial court and dismissed the regular appeal. Hence the present regular second appeal is filed by the plaintiff.

This Court while admitting the appeal, framed the following substantial question of law for consideration:

"Whether the courts below were justified in declining to grant a decree for permanent injunction solely on the ground that the sale deed dated 4.11.1943 was not registered when the plaintiff had proved his possession?" 8. I have heard the learned counsel for the parties and perused the entire records.

The learned counsel for the appellant submits as follows:

"(a) Section 18 of the Registration Act clearly says that the registration is optional in respect of a value less than Rs. 100/-and therefore the court below erred in disbelieving sale deed dated 4.11.1943 on the ground that it is an unregistered document.

(b) The courts below failed to appreciate that when Samiullaiah and Puttaiah sold 15 guntas vide Ex. P43 sale deed dated 3.6.1952 in favour of Seekalappa and Vijanappa, Samiullaiah after releasing 1 acre 2 1/4 guntas in favour of Puttaiah vide release deed dated 12.10.1963, retaining 2 acres 19 guntas does not arise.

(c) Samiullaiah sells 30 guntas vide Ex. P44 dated 12.10.1963, Ex. P49 sale deed dated 2.1.1970 in favour of his son, Israil, does not mention the extent but it is stated that out of 7 acres 15 guntas, what he had in possession, Ex. P46 sale deed dated 12.2.1970 executed by Israil S/o. Samiullaiah in favour of Maguvanna in which also extent is not mentioned, Ex. P45 sale deed dated 4.6.1973 Maguvanna sold in favour of Venkatamma an extent of 1 acre 05 guntas, Ex. P49 sale deed dated 23.6.1975 executed by Israil in favour of Thimmappa measuring E-W 200 feet and North to South 100 feet, which is around 20 guntas, Ex. P50 sale deed dated 14.4.1977 executed by Israil in favour of Vijinappa for an extent of 15 guntas stating that he retained 13 guntas. These sale deeds disclose full extent of 3 acres 21 1/4 guntas has been sold in favour of several persons. Then the question of retaining 1 acre 2 1/4 guntas by Puttaiah does not arise.

(d) The trial court marked the unregistered sale deed dated 4.11.1943 as Ex. P52. The first appellate court without looking into the said document, held it is not marked.

(e) The requirement of Section 54 of the Transfer of Property Act is clear from the sale deed dated 4.11.1943 marked as Ex. P52, therefore suit ought to have been decreed."

On the other hand, the learned counsel for the defendant supported the judgment and decree of the courts below. It is contended that the plaintiff has failed to prove title and possession of his vendor to the extent of 2 acres of land in the absence of any documentary evidence to that effect, the sale deed executed by the very same vendor in favour of Samiullaiah and Puttaiah dated 3.4.1944 does not disclose the sale made in favour of vendor of the plaintiff nor one of the boundary and therefore the plaintiff is not in possession of 2 acres of land, the sale deed in favor of Samiullaiah and Puttaiah is earlier to the sale deed in favour of the plaintiff and therefore the earlier purchasers are entitled to exact extent of the property sold in their favour as per the sale deed and the plaintiff is entitled to only what is available after that. Therefore, the courts below have properly considered the case of the respective parties and there are no grounds to interfere with the said judgment and decree in this second appeal, prays for dismissal of the appeal.

It is not in dispute that cultivable land in Sy. No. 77/1 is 4 acres 28 guntas, which totally measured 6 acres 23 guntas including 1 acre 35 guntas of kharab. The plaintiff got examined himself as PW-1 and two witnesses as PW-2 and PW-3 and got marked Ex. P1 to P52 documents. PW-2 is the son of K.V. Nagappa, who said to have sold the suit schedule property to the plaintiff. PW-2 deposed that his father sold the suit schedule property in favour of the plaintiff under sale deed dated 20.2.1969 marked as Ex. P1 to which he has also signed as an attestor.

PW-3 is an independent witness. He has deposed that the plaintiff is in possession and enjoyment of the suit schedule property.

The defendant got himself examined as DW-1. The Assistant Director of Land Records, who was appointed as Court Commissioner is examined as DW-2. DW-2 has deposed about the survey conducted by him. DW-3 is an independent witness who has deposed that the plaintiff is not in possession and enjoyment of 2 acres of land in Sy. No. 77 as claimed by him. The defendant has got marked 27 documents as Ex. D1 to D27.

It is the case of the plaintiff that he has purchased the suit schedule property under registered sale deed dated 20.2.1969. It is his further case that his vendor K.V. Nagappa had purchased the suit schedule property under an unregistered sale deed dated 4.11.1943 for Rs. 30/-. The sale deed of vendor of the plaintiff was not admitted in evidence as it is an unregistered document. Ex. D2 is the registered sale deed executed by the very same vendor Sri Lakshminarayanappa dated 3.4.1944 in which there is no reference as to the sale made in favour of K.V. Nagappa in Sy. No. 77/1. When Ex. D2 is a subsequent sale deed executed by the very same vendor, there ought to have been mention of selling portion of a property in favour of K.V. Nagappa.

The plaintiff has deposed in his cross-examination that soon after purchase of 2 acres of land by Nagappa, the khata of the property was transferred in the name of Nagappa and his name was also entered in pahani. But on perusal of the documents produced by the plaintiff, there are no documents to show that name of Nagappa was entered pursuant to sale deed dated 4.11.1943 in the revenue records. Therefore, the theory of the plaintiff that his vendor was in possession and enjoyment of 2 acres of land in Sy. No. 77/1 cannot be accepted.

The Assistant Director of Land Records, Kolar was appointed as a Court Commissioner. The Court Commissioner who is an expert witness has submitted report along with the sketch. The sketch is marked as Ex. P10(a). Ex. P10(a) shows that the property in possession of the plaintiff totally measures 1 acre 20 guntas including kharab of 22 guntas and the defendant is in possession of 1 acre 2 1/4 guntas of land on the eastern side. The court commissioner has clearly demarcated the boundaries of the properties which are in possession of the plaintiff and the defendant.

The plaintiff has admitted in his cross-examination that on 12.10.1963 Sameelaiah executed release deed in favour of Puttaiah releasing 1 acre 2 1/4 guntas to him. He has also admitted, Puttaiah is none other than father of the defendant and on death of Puttaiah, the property came to the defendant. The plaintiff has also admitted in the cross-examination that property of the defendant is situated on the eastern side of the property belongs to him.

Considering the above oral and documentary evidence, it is clear that the plaintiff has failed to prove that his vendor was in possession and enjoyment of 2 acres of land in Sy. No. 77/1 and he sold the same land in his favour by virtue of the registered sale deed Ex. P1 and that the boundaries mentioned in the plaint schedule on the eastern side, is not correct and the plaintiff is not in possession and enjoyment of 2 acres of land but on the contrary he is in possession of 1 acre 22 guntas including kharab of 22 guntas. The plaintiff seems to be claiming more extent of land than the land which is in actual possession and enjoyment. The evidence of PW-2 and PW-3 is not of any help to the plaintiff to prove that his vendor K.V. Nagappa was in possession and enjoyment of 2 acres of land in Sy. No. 77/1 as they were not able to state the total extent of the land in Sy. No. 77/1 and the property details. DW-2 has admitted that he does not know the details of the properties sold by his father to third persons.

The sale deed dated 3.4.1944 Ex. D2 and release deed dated 12.10.1963 are earlier to sale deed in favour of the plaintiff dated 20.2.1969. Therefore, whenever there is shortfall in the extent of the property, earlier purchasers get the full extent as per the title document and the later purchaser has to be satisfied with whatever left there and available in the spot. The documents consisting of revenue entries in favour of the plaintiff are all after the sale deed in his favour i.e., Ex. P1. Ex. D3 and D4 RTC entries show that father of the defendant was in actual possession and enjoyment of 1 acre 2 1/4 guntas of land in Sy. No. 77/1. Ex. D5 tax paid receipt and Ex. D6 receipt patta book also support the case of the defendant. The oral and documentary evidence placed on record by the plaintiff is not sufficient to arrive at a conclusion that the plaintiffs vendor was having right, title, interest and possession in respect of 2 acres of land in Sy. No. 77/1 and that land is sold in favour of the plaintiff.

In the circumstances, I am of the view that the courts below have properly appreciated the entire materials and have arrived at correct conclusions in dismissing the suit of the plaintiff. There are no grounds made out to interfere with the said judgment and decree.

The plaintiff has not furnished the correct boundaries to the suit schedule property. The plaintiff is found to have claimed more extent of land than in his actual possession and enjoyment. The plaintiff has thus failed to establish title and possession and enjoyment in respect of the suit schedule property as claimed by him. Therefore, the plaintiff is not entitled to any relief as sought for. Hence, the courts below are justified in declining to grant any relief to the plaintiff. The substantial question of law framed as above is, therefore, answered accordingly.

Now coming to the contentions raised by the learned counsel for the appellant, firstly as to court below erring in disbelieving the unregistered sale deed dated 4.11.1943, the property which is less than Rs. 100/-, title could be transferred by delivery of possession of the said property but when the parties chose to write the document, it has to be compulsorily registered. That means to say, no property could be transferred by means of an unregistered sale deed. Therefore, this contention of the learned counsel for the appellant has no merit.

Secondly it is contended that Shameelaiah and Puttaiah sold 15 guntas of land under Ex. P43 dated 3.6.1952. After releasing 1 acre 2 1/4 guntas, retaining 2 acres 19 guntas by Shamiullaiah does not arise. This contention is quite opposed to the pleadings of the plaintiff. What he has pleaded is that he has been in possession and enjoyment of 2 acres of land having purchased the same from his vendor, which the plaintiff has failed to establish. The plaintiff only has admitted situation of the land of the defendant on the eastern side of the suit schedule property. Therefore, this contention merits no consideration.

Thirdly the learned counsel for the appellant contends that Shamiullaiah and his son have sold lands under different sale deeds as referred to earlier and if that is taken into consideration, entire 3 acres 21 1/4 guntas is sold. Then retaining 1 acre 2 1/2 guntas by Puttiah does not arise. Again this contention is contrary to the pleaded case of the plaintiff. The plaintiff himself has admitted situation of the land of the defendant on the eastern side. The court commissioner has affirmed the said situation. Therefore, this contention also deserves no consideration.

It is next contended that trial court has marked the unregistered sale deed dated 4.11.1943 as Ex. P52, the lower appellate court has erred in holding that it is not marked. It is the sale deed executed by Sri Shamuallaiah and not the one in favour of vendor of the plaintiff. Therefore, the said contention is rejected.

Lastly it is contended that requirement of Section 54 of Transfer of Property Act is complied through Ex. P52 sale deed dated 4.11.1943. As already stated Ex. P52 is the sale deed executed by Sri Shamiullaiah and not the unregistered sale deed dated 4.11.1943. Moreover, the unregistered sale deed 4.11.1943 is discarded from consideration and therefore the plaintiff cannot draw any help from the said document to prove the sale transaction.

Viewed from any angle, the appeal is liable to be dismissed and it is accordingly dismissed. No order as to costs.