Karaveerayya and Others vs Andanappa Gurubasappa Kaddi

B. Veerappa, J.—The defendants filed the present regular second appeal against the judgment and decree dated 26.11.2011 made in R.A. No. 62/2010 on the file of the Prl. Civil Judge (Sr. Dn.), Gadag, confirming the judgment and decree dated 21.08.2010 made in O.S. No. 4/2008 on the file of the Civil Judge & JMFC, Mundargi, decreeing the suit of the plaintiff declaring that the plaintiff is the owner and in possession of the suit property.

The respondent who is the plaintiff in the Trial Court had filed the original suit for declaration against the defendants contending that the plaintiff is the permanent resident of Mundargi and he has purchased the agricultural land bearing R.S. No. 59/1A measuring 5 acres 17 guntas situated within the limits of Hesarur of Mundargi Taluk under a registered sale deed dated 16.01.1984 for a valuable consideration of Rs. 12,000/- and on the very same day, he was put in possession and he has been in peaceful possession and enjoyment of the same. During the last week of December 1996, these defendants openly proclaimed that plaintiff is not an owner of the suit land and they have not executed any sale deed in favour of him. Furthermore, they are in possession of the suit land, with these words they try to disturb his peaceful possession and enjoyment of the property. Consequently, the plaintiff filed the suit in O.S. No. 44/2006 for permanent injunction which was dismissed and therefore he filed the suit for declaration of title.

The defendants filed written statement and denied the entire plaint averments and admitted that suit property R.S. No. 59/1A measuring 5 acres 17 guntas was executed in favour of plaintiff in the year 1984, but it was not absolute sale deed. Previously plaintiff, his brothers and his father were businessmen and they had Dallali shop in APMC yard. Always the defendants and their father had to sell their agricultural produce in their shop for which they had some money transaction with the father of the plaintiff Meantime, in the year 1984 defendants were in need of Rs. 12,000/- for which the sale deed was executed as a security till repayment of the loan amount, but possession was and is with the defendants and at no point of time possession is handed over. Said transaction was made by the father of the plaintiff, but disputed land was registered in the name of the plaintiff. In order to repayment of the said loan amount, the defendants have executed lease deed in favour of one Basavantappa Yarashi for five years in the year 1995 for the valuable consideration of Rs. 25,000/-. On the very day the particular land was hand over to Basavantappa Yarashi in his possession and for his personal cultivation. On the very day in the presence of elderly persons, loan amount was returned to the plaintiff, but till today he has not relinquished the land in favour of them. Further, the plaintiff already filed suit in O.S. No. 44/2006 for permanent injunction which was dismissed on 25.01.2007. Thereafter, the suit in O.S. No. 4/2008 was filed which is not maintainable etc. Therefore, the defendants sought for dismissal of the suit.

Based on the pleadings, the Trial Court framed the following issues:

"i. Whether plaintiff proves that he is the owner in possession of the suit land?

ii. Whether he further proves the interference of defendants as alleged in plaint?

iii. Whether suit is barred by limitation?

iv. Whether court fee paid is not sufficient?

v. Whether plaintiff is entitled for the reliefs claimed?

vi. What order or decree?"

In order to establish his case, the plaintiff examined himself as P.W. 1 and the witness as P.W. 2 and marked documents as Exs. P-1 and P-2. The 2nd defendant examined himself as D.W. 1 and other witnesses as D.Ws. 2 to 5 and marked documents as Exs. D-1 to D-7.

After considering the entire material on record, the Trial Court recorded a finding that the plaintiff proved that he is the owner of the suit schedule property and also proved the alleged interference by the defendants. The defendants failed to prove that the suit is barred by limitation and plaintiff is entitled the relief sought for. Accordingly, the suit came to be decreed. Against the said judgment and decree, the present appellants filed appeal in R.A. No. 62/2010 on the file of the Prl. Civil Judge (Sr. Dn.), Gadag, who after hearing both the parties by its impugned judgment and decree dated 26.11.2011 has dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the concurrent findings of facts recorded by the Courts below, the appellants did not deter in preferring this regular second appeal as a last ditch attempt.

I have heard the learned counsel for the parties to the lis.

Shri U.G. Kattimam, learned counsel appearing on behalf of Shri B.V. Somapur for the appellants has contended that Ex. D-1 sale deed executed by the defendants only for security purpose and not an absolute sale deed and the Courts below has not considered both the oral and documentary evidence on record. Thereby wrongly dismissed the suit which has resulted injustice to the appellants and the learned counsel also contended that as per Ex. D-1--lease deed dated 06.05.1985 was also executed by the defendants in favour of Basavantappa Yarashi for Rs. 25,000/-. Therefore, it clearly indicates that possession was not given to the plaintiff and sale deed was not acted upon. Therefore, he sought to set aside the judgment against the judgment and decree of the Courts below.

Per contra, Miss Rekha Patil, learned counsel appearing on behalf of Shn M.G. Naganun for the respondent sought to justify the impugned judgment and decree of the Courts below and contended that Ex. D-1 is not disputed by the appellants and it is an absolute sale deed. Both the Courts below justified in decreeing the suit. Therefore, she sought for dismissal of the appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

The substance of the plaintiffs case is that he is the owner and in possession of the suit schedule property by virtue of the registered sale deed dated 16.01.1984 executed by the defendants for the valuable consideration of Rs. 12,000/- and the earlier suit filed by him in O.S. No. 44/2006 was only for bare injunction and suit came to be dismissed with liberty to file a fresh comprehensive suit. Therefore, the suit in O.S. No. 4/2008 is filed.

The substance of the written statement by the defendants is that the registered sale deed executed in favour of the plaintiff in the year 1984 was not absolute deed. It was only for security and further contended that in the year 1985, the defendants have executed the lease deed in favour of Basavantappa Yarashi for five years. In order to establish his case, plaintiff examined as P.W. 1 and witness as P.W. 2 and marked documents as Exs. P-1 and P-2. In order to disprove the plaintiffs case, the defendant No. 2 examined as D.W. 1 and witnesses as D.Ws. 2 to 5 and marked documents as Exs. D-1 to D-7.

The Trial Court considering the entire material on record has recorded a finding that the registered sale deed is a registered and original one which is primary and important document under the provisions of Section 62 of the Indian Evidence Act, 1872. In order to discard this evidence, defendants have not produced any document, but they have taken a contention that defendants have transaction with the father of the plaintiff They use to sell the agricultural produce and they obtained loan of Rs. 12,000/- as a security and executed the sale deed in favour of plaintiff, but it is not a sale deed which is nominal one. Further they have contended that they have executed a lease deed in favour of Basavantappa Yarashi. But the plaintiff has not cancelled the sale deed and relied upon the lease deed dated 06.05.1985 which is marked as Ex. D-1. But it is unregistered one. This unregistered lease deed has no weight before the registered sale deed dated 16.01.1984.

Counsel for the defendants argued in O.S. No. 44/2006 which was dismissed on 25.01.2007. The said suit was hit by the provisions of Section 11 of the Code of Civil Procedure, 1908. Plaintiff has no cause of action to file the suit and bared by law of limitation and relied upon the decision of this Court in the case of Smt. Siriyala and Others Vs. B.N. Ramesh, , wherein this Court has held that when the subsequent suit for declaration between the same parties maintainable. The suit will be barred only when i) the facts relating to file are plead in the earlier suit; ii) an issue regarding title was framed in the earlier suit; m) the parties led evidence on the issue of title in that earlier suit; iv) the Court in the earlier suit, instead of relegating the parties to an action for declaration of title had decided upon the issue of title; and v) such decision has attained finality.

In the present case, the plaintiff has filed the suit only for permanent injunction against the defendants in which issue in respect of title and ownership was not framed upon that issue evidence is not recorded and findings was also not given. Under such circumstances, there is no bar under law for filing the suit for declaration when the title is in dispute.

The Trial Court also recorded a finding that the plaintiff has proved his title over the suit property through Exs. P-1 and P-2. In order to fortify the case of the defendants, they have not given any cogent evidence and ultimately the suit came to be decreed declaring that the plaintiff is the owner and in possession of the suit schedule property.

On re-appreciation of the entire material on record, the lower Appellate Court concurred with the findings of facts recorded by the Trial Court and recorded a finding that Ex. D-1 is in the name of the plaintiff as on the date of the suit. Hence, these two documents cannot be disbelieved. Even the Ex. P. 2 clearly indicates that the possession of the land has been delivered to the plaintiff and henceforth neither the defendants nor their legal representatives have no manner of right or interest in the suit land. Ex. P. 3 is the certified copy of the judgment passed in O.S. No. 44/2006, though the suit was dismissed on technical ground stating that there was no claim for declaration, but the court clearly held that suit land is in possession and enjoyment of the plaintiff Ex. P. 5 is the Revenue paid receipt. Ex. P. 6 is the certificate issued by the Village Accountant that there is no arrears of land revenue. Ex. P. 7 is the decree passed in O.S. No. 44/2006. In support of these oral evidence and pleadings the plaintiff himself examined as PW. 1. In the cross-examination of PW. 1 what has not been pleaded by the defendants has been cross-examined. It is suggested that the father of the plaintiff had purchased the land in the name of plaintiff, but on the contrary plaintiff was doing business. Further it is also suggested that the land was given by one Basavanthappa Shankrappa Yarashi for five years period from 1995 on lease basis. This fact is also not pleaded in the written statement. Therefore, in the cross-examination of PW. 1 nothing has been elicited to disbelieve the case of the plaintiff.

The defendants have produced Ex. D. 1-unregistered lease deed alleged to have been executed for the year 1985 in favour of Basavanthappa Shankrappa Yarashi. But after 1.3.1974 no lease in respect of agricultural land is recognized under the provisions of the Land Reforms Act and lease of any kind of agricultural land is prohibited. Therefore, Ex. D. 1 document is not a legal document and it has no evidentiary value. Ex. P. 2 is the registered sale deed executed by defendants on 16.01.1984 in favour of plaintiff prior to execution of Ex. D. 1. That means before the existence of Ex. D. 1 already the defendants had parted with the property and they were not holding any suit property on that day. The evidence of D.W. 1 is quite contrary to the pleadings made in the written statement. Evidence of DW. 2, DW. 3, DW. 4 and DW. 5 also is not helpful to the defendants. DWs. 3 and 4 have been examined in respect of alleged transaction between plaintiffs father and themselves. But what has been spoken by this witness and DW. 1 has not been pleaded in the written statement. Therefore, any amount of evidence without pleading has no evidentiary value. Thus, oral testimony of D.W. 1 to 5 is not assisting them in establishing their case. Ex. D. 1 document cannot be relied for any purpose since, it is illegal document in the light of the Karnataka Land Reforms Act, as any kind of lease of agriculture land is prohibited.

Ex. P. 1 is the RTC extract which clearly goes to show that for the year 2007-08 name of the plaintiff has been mutated in the column of owner and evidentiary presumption has to be drawn under Section 133 of Karnataka Land Revenue Act, unless rebutted in the present case. No such rebuttal evidence is placed before Court by the defendants to disbelieve Ex. P. 1 RTC, Ex. P. 2 the original sale deed and the hand-sketch map. Therefore, the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

The plaintiff filed suit mainly on the basis of Ex. P. 2 Sale Deed, RTC Extract and certified copy in O.S. No. 44/2006. The Ex. P. 1 sale deed executed by the very defendants in favour of plaintiffs on 16.01.1984 and it was registered before the Sub-Registrar and the contents of the documents clearly indicates that the possession was delivered and it was absolute sale deed and recitals of Ex. P. 1 does not disclose that it is only nominal for all security purposes as alleged by the present appellant. When the recitals of Ex. P. 1 clearly indicates that it was absolute sale deed the contention of the appellant that it was only for security purposes cannot be accepted and there is no material document to prove that it was only for security purpose the said document was executed. It is also not in dispute that O.S. 44/2006 the suit filed by the plaintiff for injunction was dismissed only on the ground that that the plaintiff has not sought for declaration. However, the trial court recorded a finding that plaintiff was in possession and enjoyment of the same. The said finding with regard to possession is final and conclusive.

So far as Ex. D. 1 lease deed said to have been executed by defendants in favour of Basavanthappa Shankrappa Yarashi in the year 1985 is concerned, it is an unregistered document. Both the courts below disbelieved the unregistered lease deed in the presence of execution of registered sale deed and with regard to the alleged lease deed there is no pleading in the written statement. In the absence of any pleading, it is not open for the defendants to contend that there was lease deed and it was not acted upon and the said lease is also prohibited in view of provisions of Section 5 of the Karnataka Land Reforms Act, 1961.

Both the courts below have concurrently held that the plaintiff has proved that he is the owner in possession of the suit property as on the date of the suit and the alleged interference by the defendants is also proved and accordingly, both the courts below decreed the suit declaring that the plaintiff is owner in possession and enjoyment of the same, which is based on cogent legal evidence on record. Such a finding of fact cannot be interfered with by this Court by exercising power under Section 100 of Code of Civil Procedure. No substantial question of law involved in the present appeal.

Accordingly, RSA is dismissed.