K.S. Bhavani Shankar and Others vs Gange Gowda and Others

N.K. Patil, J.—These two appeals are by the appellants being aggrieved by the common judgment and decree passed in R.A. Nos. 15/05 & 115/05 on the file of the learned Civil Judge (Sr. Dn.) & Additional CJM., Arsikere.

The lower appellate Court has dismissed R.A. No. 15/05 filed by the appellants with costs by confirming the judgment and decree in O.S. No. 73/98 dated 14.12.2004 on the file of the Additional Civil Judge (Jr. Dn.), Arsikere and allowed R.A. No. 115/05 with costs by setting aside the judgment and decree passed in O.S. No. 260/1996 dated 15.11.2005 on the file of Principal Civil Judge (Jr. Dn.), Arsikere and the said suit stood dismissed with costs filed by the appellants against the respondent. Being dissatisfied with the common judgment and decree passed by the lower appellate Court, the appellants herein felt necessary to present these two appeals respectively.

It is the case of the appellant Sri. K.S. Bhavani Shankar, who is the appellant No. 2 in R.A. No. 15/2005 that his property viz., site No. 336 along with site Nos. 337 and 338 belonging to his ancestor was granted to one Sri. Nanjappa, the late great grand father of appellant. Unfortunately, he has not produced any grant certificate in that behalf nor produced any credible documents. It is further case of the appellant that a family arrangement suit property was given to his share and he has not produced any documents to establish that he got his share in family partition except an affidavit sworn to by his cousin in O.S. No. 216/96 at Ex. P1. The trial Court has relied upon the same. The lower appellate Court opined that the said document cannot be considered either as a document of title or a document handing over possession to the appellant. Therefore, the said affidavit has no relevance. It is further case of the appellant that his case can be examined on other documents more particularly decree in O.S. No. 64/69, on which he is strongly relying. The same is at Ex. P3 in O.S. No. 73/98. A perusal of the same discloses that Bhavani Shankar''s father along with his brothers had filed the said suit against Mayanagowda''s father Byregowda, the respondent herein for declaration of title and permanent injunction. That was pertaining to only two sites. The Court has decreed only for ''MNOP'' & ''OXYZ'' area. The claim of the father of the appellant by giving schedule in the said case is relevant. The said schedule is item No. 1 in site No. 338, which is bounded by East: Item No. 2, site No. 337, West: by site of Appannaiah and Nanjappa, North: by road and property of Ramanna and Rudrappa, South: by property of Thammaiah. The second item was site No. 337 bounded by East: yard of Rangabyregowda, West: item No. 1 in site No. 338, North: by Byregowda and Ganganna''s property and South: by site of Thammaiah. It is crystal clear that to the east of site No. 338, site No. 337 is located. In the present suit property, appellant has described his property i.e., site No. 336 as bounded by East: site No. 337. His father has described that site No. 338 had site No. 337 on the east, whereas, the appellant now claims that the site No. 336 has site No. 337 on the east. He has admitted as D.W. 1 in O.S. No. 73/98 that he has put up construction in site No. 337 and it must be noted that according to his father site No. 338 had site No. 337 on the east. Thus, the claim of Bhavani Shankar is based upon decree in O.S. No. 64/69 is false and cannot be sustained and the stand taken is contrary to the material on record and he has utterly failed to establish the identity of his property. Therefore, the trial Court is not justified in decreeing the suit for permanent injunction particularly, in the absence of any document to show that his great grand father was also granted site No. 336 and at a family arrangement it was given to him. The revenue records are not documents of title is very well clear. Therefore, the trial Court was not justified in solely relying upon the affidavit executed by cousin of the appellant.

It is the case of respondent-Mayanagowda that he is claiming site No. 331 with definite boundaries. Bhavani Shankar-appellant was examined as D.W. 1 in O.S. No. 73/98 and in the cross-examination he has made candid admissions about the said property of Mayanagowda and his father Byregowda. Further, he has deposed in the cross-examination that the sketch relied upon by him to show that site No. 331 was in possession of Mayanagowda''s father Byregowda, to which his answer is the said sketch is not correct. However, his pleading supports the said sketch. Therefore, the attempt made by him and the sketch being false is to suit his convenience but that cannot be accepted. Further, he has admitted that he has constructed a house in site No. 337. He also admits that site No. 331 has on east: road, West: balance of site No. 331, North: by house of Nagaraju and South: by property of Gangadharaiah and the same measures 90''x40''. He further deposed that the property within the said boundary has been in possession of Parameshwarappa and Marulappa. He also admits that site No. 331 has been divided into two numbers and both originally belonged to Mayanagowda''s father Byregowda. Therefore, the lower appellate Court is justified in observing that he has failed to establish his title over the property and further it is significant to note that he had categorically admitted in his cross-examination that the suit property in case of Mayanagowda originally belonged to Krishnamurthy and also that the sale deed dated 26.07.1963 at Ex. P1 shows that the said Byrappa had purchased site No. 331 measuring 30 x 25 yards (approximately 90''x75'') and further, he has admitted that the khatha of the said property earlier stood in the name of Byrappa, the father of the respondent. It is further case of respondent that on the basis of Ex. P1, the sale deed dated 26.07.1963 a mutation has been certified, his name is entered in the khatha and he is paying the tax. As on today, the appellant has not made any efforts to question the correctness of the sale deed dated 26.07.1963 at Ex. P1 that has become final. It is established beyond reasonable doubt since more than 51 years; the respondent is in peaceful possession and enjoyment of the property and at no point of time, the appellant made any attempt to dispossess him. Taking all these relevant facts into consideration and appreciation of oral and documentary evidence and other material on file, has dismissed the regular appeal filed by the appellant in R.A. No. 15/05 and by imposing costs confirmed the judgment and decree passed in O.S. No. 73/98 dated 14.12.2005 on the file of the Additional Civil Judge (Jr. Dn.), Arsikere and also allowed R.A. No. 115/05 with costs and set aside the judgment and decree passed in O.S. No. 260/96 dated 16.11.2005 on the file of Principal Civil Judge (Jr. Dn.), Arsikere and dismissed the said suit filed by the appellant with costs. Being dissatisfied with the impugned common judgment and decree passed by the lower appellate Court, the appellants have presented these appeals.

The submission of the learned counsel appearing for the appellants Sri. Rakshith K.N., at the outset is that, the lower appellate Court has erred in interfering with the judgment and decree passed in O.S. No. 260/96 on the file of Principal Civil Judge (Jr. Dn.), Arsikere wherein the trial Court after considering the material on records is justified in granting injunction abstaining the respondent and his servants, agents from interfering with the plaintiffs'' possession and enjoyment of the suit property on the sole ground that the reliance placed on the affidavit filed by his cousin Narayan swamy cannot be accepted and in view of the admission made in the cross-examination it is not a ground for interference. The reasoning given by the lower appellate Court cannot be sustained. Further he is quick to point out and submit, the notification of the property in question was in dispute. The Trial Court ought to have suo motu appointed a Commissioner to find out and identify the suit schedule property. That exercise has not been carried out. Therefore, he submitted that the judgment and decree passed by the lower appellate Court be set aside and remit the matter back to the trial Court for re-consideration afresh in accordance with law.

Per contra, learned counsel appearing for the respondent Sri. K.G. Sadashivaiah, inter alia substantiated the impugned common judgment and decree passed by the lower appellate Court stating that, after due appreciation of oral and documentary evidence and other material on file, the lower appellate Court has rightly allowed R.A. No. 115/05 filed by the respondent and set aside the judgment and decree passed by the trial Court in O.S. No. 216/96 dated 15.11.1995. To substantiate the submission he is quick to point out and take through the material on record & submits that it is the case of the appellant that he got the suit schedule property in a family partition contending that his great grand father has granted the site in question but he has not produced any grant certificate nor any other documents except placing reliance on the affidavit of his cousin filed in O.S. No. 216/96 at Ex. P1, which cannot be a basis for claiming the title in respect of the property in question and further he is quick to point out and submit that the father of the respondent, Sri. Byregowda has purchased the property from his vendor, Sri. Krishmamurthy as early as on 26.07.1963 at Ex. P1 & that has attained finality. After the death of Byregowda, the property was succeeded by Mayanna Gowda and mutation has been certified, Khatha had been registered and in fact he is in possession of the site in question and further he submitted that the respondent is in possession of the site No. 336 wherein he has constructed a house and is living with his family members and site No. 331 is a backyard. Further, he submitted that the appellant also enjoyed two sites i.e., Site No. 337 is a constructed house where he is living with his family and site No. 338 is utilized as the backyard. They both are peacefully enjoying the respective two sites and there is no need for the appellant to make unnecessary grievances because of misunderstanding at a village level creating false prestige and without having any documents. The lower appellate court is justified in allowing the appeal of the respondent and setting aside the judgment and decree passed by the trial Court and whereas, the suit filed by him for declaration and permanent injunction and that is confirmed in R.A. 15/05 recording concurrent finding of fact after due appreciation of oral and documentary evidence and other material on file. Therefore, interference by this Court is not called for and there is no substantial question of law involved in these two appeals. Therefore, in view of Section 100A of Civil Procedure Code, interference by this Court is not called for.

After careful consideration of the submissions made by the learned counsel for the appellants and learned counsel appearing for the respondents, and after perusal of the common judgment and decree passed by the lower appellate Court and the judgment and decree passed by the trial Court in O.S. No. 216/96 and O.S. No. 73/98, it is not in dispute that the respondent has substantiated his case establishing the title of the property in question in respect of site No. 331. Producing Ex. P1-the sale deed dated 26.07.1963 executed by his vendor one Krishnamurthy in favour of his father Byregowda and thereafter, mutation has been certified, khatha has been granted and he is in peaceful possession and enjoyment of the said site for more than 51 years. It is the case of the respondent that in fact the appellant also constructed a house in site No. 337 and he is enjoying another site No. 338 as a backyard is also not in dispute and further, it is the case of the respondent that he has constructed his house in site No. 336 and is residing there with his family members and site No. 331 utilizing the backyard by using the baboon trees boundaries and he admitted categorically that site No. 331 is purchased by Byregowda which is succeeded Mayanna Gowda, the respondent herein and also admitted that the khatha stood in the name of the respondent. The appellant except placing reliance on the sworn affidavit of his cousin Narayana swamy in O.S. No. 216/96-Ex. P1, in support of the case that he has not produced any sale deed, khatha certificate or mutation. Further it is pertinent to note that it is the case that he got this site in family partition contending that the site in question has been granted in favour of his great grand father Nanjappa. Except his oral testimony, no credible acceptable documents as such are produced nor has he examined any neighbour as witnesses to show that he is enjoying this property. Taking all these relevant facts into consideration as referred to above, the lower appellate Court has after going through the oral and documentary and other material on file is justified in holding that the respondent has established the title over the property and he is entitled for the relief sought & rightly decreed the suit confirming the judgment and decree passed by the trial Court and also justified in reversing the judgment and decree passed by the trial Court allowing R.A. No. 15/05 filed by the respondent & set aside the judgment and decree passed by the trial Court. In view of the concurrent finding of fact recorded by the lower appellate Court in R.A. No. 115/05 and reversing the judgment and decree passed by the trial Court allowing R.A. No. 15/05 after due evaluation of the material on file, interference by this Court is not called for nor the appellants have made out any good ground to consider the prayer sought in these appeals. Taking all these relevant facts into consideration, both the appeals filed by the appellants are dismissed as devoid of merits. No costs.