Krishnappa vs Ramegowda

A.V. Chandrashekara, J.—1. Since parties are identical and the property involved in both the appeals are almost identical, they are taken up together for common disposal.

The facts leading to the filing of these two appeals are as under:

"Regular Second Appeal No. 1498/2005 has arisen out of the judgment and decree by the First Appellate Court in R.ANo.63/1999 allowing the appeal and dismissing the suit filed in O.S. No. 385/2004 (old O.S. No. 409/1988). It was a suit filed by Krishnappa and Nanjundappa, the sons of Sri. Munivenkatappa against Ramegowda for the relief of declaration of title and permanent injunction relating to land bearing Sy. No. 50 measuring 2 acres 7 guntas of land at Bendaganahalli village, Kasaba Hobli, Bangarpet Taluk bounded on the east by Sy. No. 18/3, west by Sy. No. 59, North by Channappa and Krishnappa Naidu''s land and south by lands of Muneppa, Narayanappa and Thimmaiah."

According to the plaintiffs, land bearing Sy. No. 50 measuring 2 acres 7 guntas of land as described in the schedule appended to the suit was purchased by both of them from one lady Smt. Lalithareddy W/o. Ramalingareddy for a valuable consideration under a registered sale deed dated 01.05.1981. Since the date of purchase they are stated to be in lawful possession and enjoyment of the same and they are raising crops in the suit schedule land. According to them, the Katha of the land in question stands in their names and they are the owners from the date of purchase and that the defendant has no manner of right, title over the suit schedule land and he is trying to interfere with the peaceful possession and enjoyment of the suit schedule land of the plaintiffs.

Defendant has filed detailed written statement denying all the material averments calling upon the plaintiffs strictly to prove the contents of the plaint. According to the defendant, his father had purchased the suit schedule land bearing Sy. No. 50 measuring 2 acres 12 guntas of land from one Lalithareddy through a registered sale deed dated 23.11.1974 and that by oversight survey numbers had been wrongly mentioned as Sy. No. 44, though the land was purchased by the father of the defendant. Necessary rectification was done by the Revenue Authorities is the averment.

Defendant is stated to be in lawful possession and enjoyment of land bearing Sy. No. 50 measuring 2 acres 12 guntas of land which is bounded by east Rajakaluve, west by Sy. No. 49, North by Hoskote and Kadirenahalli boundaries and south by Sy. No. 58 and halla. He had request the Court to dismiss the suit on the basis of the above pleadings.

Learned Judge has framed the following issues on 26.08.1999. The same is as follows:

"1. Whether plaintiffs prove their title to the suit schedule property?

Whether plaintiffs prove the correctness of the boundaries of S. No. 50 mentioned in the plaint schedule?

Whether plaintiffs prove their lawful possession of the suit schedule property as on the date of suit?

Whether plaintiffs prove the alleged interference by the defendant?

Whether plaintiffs are entitled for the relief of declaration and permanent injunction as prayed?

What decree or order?"

Mr. Ramegowda, the defendant in O.S. No. 384/2004 chose to file a suit for declaration of title and permanent injunction and also for rectification of sale deed dated 23.11.1974 in respect of Sy. No. 50 measuring 2 acres 12 guntas of land purchased by him which is bounded by east Rajakaluve, west by Sy. No. 49, North by Hoskote and Kadirenahalli boundaries and south by Sy. No. 58 and halla. He has stated that his father is stated to have purchased the same under the registered sale deed dated 23.11.1974 from Smt. Lalithareddy. Due to over sight, survey number is wrongly mentioned as Sy. No. 44 instead of Sy. No. 50. Therefore, rectification was done by the revenue authorities. According to him, the plaintiffs interfered with his peaceful possession and enjoyment of the suit schedule land by filing a suit in O.S. No. 384/2004 (old O.S. No. 409/1988). Smt. Lalithareddy who is the 3rd defendant has not chosen to file written statement. Defendants Nos. 1 and 2 chose to file written statement. The averment is similar to the earlier suit bearing O.S. No. 409/1988. With the above pleadings, following issues came to be framed:

In O.S. No. 409/1988 subsequently numbered as O.S. No. 384/2004, Ramaiah is examined as PW-1 and Gopalappa is examined as PW-2. Ramegowda is examined as DW-1 and two witnesses have been examined on behalf of the defendant. 7 exhibits is marked on behalf of the plaintiffs and similarly 7 exhibits on behalf of the defendant. Ultimately, suit came to be decreed as prayed for vide judgment dated 26.08.1999 by answering Issue Nos. 1, 3, 4 and 5 in the Affirmative and Issue No. 2 in the Negative.

Against the said judgment and decree, an appeal was filed by the defendant - Ramegowda in R.A. No. 63/1999 before the Court of Senior Civil Judge at Kolar. The said appeal is allowed on 8.6.2005. Thus, the judgment of the trial Court passed in O.S. No. 409/1988 is set aside and dismissed. Divergent judgments are called in question in RSA No. 1498/2005.

Following are the substantial question of law framed by this Court on 28.07.2005 in RSA No. 1498/2005.

"Whether the findings of the first appellate court in reversing the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff is perverse, arbitrary and being contrary to law and material on record and to non consideration of the reason assigned by the Trial Court?"

The suit filed by Mr. Ramegowda in O.S. No. 226/1991 subsequently numbered as O.S. No. 387/2004 was taken up by the Senior Civil Judge at KGF. Ramegowda is examined as PW-1 and two witnesses have been examined on his behalf. 13 exhibits have been got marked on his behalf. On behalf of the defendants, three witnesses have been examined and 11 exhibits have been marked on their behalf. The suit came to be dismissed by answering Issue Nos. 1 and 2 in the affirmative and Issue Nos. 3 and 4 in the Negative. Against the said judgment, Ramegowda preferred an appeal in terms of Section 96 of CPC before the Senior Civil Judge, KGF in R.A. No. 115/2001. The said appeal is allowed by setting aside the judgment and decree passed by the trial Court in O.S. No. 226/91. Consequently, suit bearing O.S. No. 226/91 is decreed and Ramegowda is declared as the owner of the suit schedule property relating to Sy. No. 50 measuring 2 acres 12 guntas of land which is bounded by east Rajakaluve, west by Sy. No. 49, North by Hoskote and Kadirenahalli boundaries and south by Sy. No. 58 and halla. This connected appeal bearing RSA No. 1497/2005 is admitted to consider the following substantial questions of law framed by this Court on 28.07.2005. The same is as follows:

"Whether the findings of the first appellate court in reversing the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff is perverse, arbitrary and being contrary to law and material on record and to non consideration of the reason assigned by the Trial Court?"

Heard the learned counsel for the parties.

What is argued by the learned counsel appearing for the appellants in both the cases is that the approach of the first appellate Court in dealing with a well considered judgment of the trial court is contrary to the decision rendered in SANTHOSH HAZARI.v. PURUSHOTTAM TIWARI (, [2001] 3 SCC 179). It is held in the said decision that the first appellate court has to be conscious of its limits. If the appellate court wants to substitute the finding of the trial court with its own finding, then it has to assign valid reasons as to where the trial court has gone wrong.

What is further argued before this Court is that no steps were taken to get the survey number rectified by Ramegowda and therefore the First Appellate Court is not justified in reversing the judgment of both the Courts. He has argued that the First Appellate Court has adopted wrong approach to the real state of affairs and it has not been tested on the touchstone of intrinsic probabilities.

Per contra, learned counsel for the respondent has argued that the first appellate Court has taken into consideration the fact that the boundaries prevail over survey number and extent and that the boundaries so mentioned in the sale deed do tally with the survey number No. 50 and mentioning of wrong survey number No. 44 does not take away the effect that execution of sale deed. Hence, he has requested to dismiss both the appeals.

Both the substantial questions of law in both the cases are identical and entire case revolves round the aspect of the identity of the property in question.

Appellants herein will be referred to as plaintiffs, since they had filed the first suit for the relief of declaration and respondent will be referred to as defendant as per their ranking in the suit bearing O.S. No. 409/1988.

Ex. P2 is the sale deed executed in favour of the plaintiffs by Smt. Lalithareddy W/o.]Ramlingareddy relating to Sy. No. 50 measuring 2 acres 7 guntas of land. Vide Ex. P2 - Smt. Lalithareddy chose to convey title in respect of the agricultural land. 15th Item is the land in Sy. No. 50 measuring 2 acres 7 guntas of land, so purchased by the plaintiffs from Lalithareddy are found in one compact block. No separate boundaries are indicated in respect of each items of land sold in favour of the plaintiffs. The boundaries so mentioned in respect of 18 items of land sold by Lalithareddy are as follows:

"East by : River

West by : Sy. No. 1

North by: Channappa & Krishnappa''s land

South by: Muneppa, Narayanappa and Thimmaiah''s land"

Whereas Ramegowda has relied upon Ex. D1 certified copy of the sale deed. This relates to the sale of 2 acres 12 guntas of land in Sy. No. 44. This is the first item sold i.e., Item No. 1 mentioned in Ex. D1 is the land bearing Sy. No. 44 is bounded by East by : Raja Kaluve, West by: Sy. No. 49, North by: Hosakote & Kadiranhalli boundaries, South by: Sy. No. 58 & Halla.

Infact, Ex. D5 is the village map of Bendaganahalli, Bangarpet Taluk issued by the Assistant Director of land records, Kolar Sub - division, Bangarpet on 05.04.1999. Ex. D5 shows that Sy. No. 50 is bounded on the east by Rajakaluve, West by Sy. No. 49, North by Hosakote - Kadirenahalli boundary and South by Sy. No. 58 and Halla. This is a document prepared by the survey authorities at an undisputed point of time i.e., in the year 1953 and the copy issued by the authorities depicts the exact location of law in survey number with reference to boundaries. Therefore, the genuineness of Ex. D5 cannot be disputed. Boundaries in Ex. D5 - village map of Bendaganahalli relating to Sy. No. 50 tally in entirety with the boundaries mentioned in Ex. D1 - certified copy of the sale deed executed by Lalithareddy in favour of the father of Ramegowda in the year 1974. Sy. No. 41 is mentioned as Sy. No. 44 marked as Ex. D1. The boundaries so mentioned actually mentioned as Sy. No. 50.

The learned judge of the first appellate court has made a categorical observation about the identification of both the lands found in Exs.D5 as found in paragraph 13 of the judgment. In fact, DW-2 is none other than the husband of the vendor of the plaintiffs. The order passed by the competent revenue court is not challenged by the plaintiffs in any manner and therefore, it has attained finality.

In the case of LAKSHMI NARASIMHA SHASTRY v. MANGESHA DEVARU (, ILR 1988 KAR 554), this court has reiterated that the boundaries mentioned in the sale deed would be decisive in identifying the property and the actual extent of land. It is also held that the boundaries prevail over extent of land. In the case of B.K.A.P. CO-OPERATIVE SOCIETY v. GOVERNMENT OF PALESTINE & OTHERS reported in 1948 PC 207, it is held as follows:

"''In construing a grant of land, description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as falsa demonstration.''"

The said decision is relied by the Madras High Court in the case of SIVISESHAMUTHU v. BALAKRISHNA reported in , AIR 1963 Madras 147 wherein it is held as follows:

"Where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document.''"

In the instant case, the entire extent of land in Survey No. 50 is 2.11 acres inclusive of 4 guntas of kharab land. Therefore, mentioning of 1.12 acres in Ex. D1 cannot be found fault with.

On the other hand, the trial court has adopted wrong approach to the real state of affairs without looking to the pleadings of the plaintiffs. It is to be borne in mind that the vendor of both plaintiffs and defendants was one and the same and the evidence of DW2- husband of the vendor of the plaintiffs could not have been so lightly ignored. The initial burden cast on the plaintiff to prove their case is not effectively discharged and even the inadequacies, if any, found in the case of the defendants cannot be considered as advantageous to the plaintiffs.

The first appellate court, while re-assessing the entire evidence placed on record, has tested the same on the touchstone of intrinsic probabilities, keeping in mind the solitary principles reiterated in the case of LAKSHMI NARASIMHA SHASTRY (supra). Being the final court of facts, the first appellate court has not only come to close quarters with the facts of the case, but has also shown as to where the trial court has gone wrong and what should have been the right approach. The first appellate court has adopted right approach by examining the documentary evidence available on record. In this view of the matter, no perversity is found in the approach adopted by the first appellate court. Therefore, the common substantial question of law framed in both the appeals has to be answered in the negative. Consequently both the appeals will have to be dismissed.

Even otherwise, no other substantial question of law arises for consideration in these appeals.

In the result, the following order is passed:

ORDER

The appeals are dismissed by confirming the judgment of the first appellate court passed in both the regular appeals.

A copy of this judgment shall be kept in RSA No. 1497/2005.

Parties to bear their own costs.