Mahadevappa vs Gunderao and Others

K.N. Phaneendra, J.—1. This second appeal is preferred against the judgment and decree passed in O.S. No. 251/2003 on the file of Civil Judge (Senior Division) at Aland, which judgment and decree is confirmed in R.A. No. 22/2005 passed by the Principal District Judge at Gulbarga.

I have heard the arguments of the learned counsel for the appellant and learned counsel for the respondents and I have carefully perused the judgments of both the Courts and also records of the Trial Court.

For the purpose of easy understanding and convenience and to avoid repetition, ranks of the parties as per their ranks before the Trial Court is retained.

One Mahadevappa S/o. Bhimasha Shambhai @ Jamga has filed a suit against three defendants for declaration of his title and for injunction restraining the defendants from interfering with the plaintiffs possession and enjoyment of the property.

Brief factual matrix of the case of the plaintiff and defendants are narrated below:

"It is the case of the plaintiff that property originally belonged to one Vithal who is none other than grand father of the plaintiff. Vithal and Dattappa are brothers. They have divided the family properties amongst themselves and the property which fallen to the share of Vithal alleged to have been fallen to the share of father of plaintiff as well as one Sidramappa who is the paternal uncle of the plaintiff. It is the case of the plaintiff that the suit schedule property actually fallen to the share of his father Bhimsha and not to the share of Sidramappa-uncle of the plaintiff and defendants have no right, title and interest over the said property. As defendants moved the Tahsildar for change of Katha and pahani, the plaintiff was forced to file a suit for declaration and injunction. It is contended by the plaintiff that he has made objection before the Tahsildar on 25.02.2003 not to effect the change in the ROR in the name of defendant Nos. 1 and 2. However, the Tahsildar in collusion with the defendants has planned to change ROR on the ground that defendant No. 2 has purchased one of the properties from Sidramappa and therefore, plaintiff has objected for the same stating that the suit schedule property was fallen to the share of his father Bhimsha and therefore, he is entitled for the change of katha into his name etc.

The defendants have appeared before the Trial Court and they have taken up the contention that said land belonged to Sidramappa who acquired the same from Vithal i.e., his father and some of the properties were also fallen to the share of father of the plaintiff by name Bhimsha. The suit schedule property is Sy. No. 146/2 of Munnoli village in Aland Taluk. It is the case of the defendants that Sy. No. 146 was fallen to the share of Sidramappa and in turn, Sidramappa has sold the suit property in favour of defendant No. 2-Jaipal under a registered deed in the year 1980-1981 precisely, on 10.10.1980 and put defendant No. 2 in possession and enjoyment of the property to the extent of 3 acres 27 guntas for which the plaintiff has sought for declaration. It is also alleged that after the purchase of the said property in the year 1980 the defendants have made an application for change of katha and accordingly, katha has been made out in the name of defendant No. 2 and subsequently, it appears, in the year 2003 suit has been filed and plaintiff has also approached revenue department for the purpose of cancellation of entries stood in the name of defendant No. 2 and to make entries in his name. However, it appears, the Tahsildar has not passed any order and directed the parties to agitate their rights before the Civil Court."

In this background, on the basis of the rival pleadings of the parties, the Trial Court has formulated as many as eight issues which are as under:

"i. Whether the plaintiff prove his title and ownership of the suit property bearing Sy. No. 146/2 measuring 2 acres 15 guntas situated at Munnoli village Tq. Aland?

ii. Whether the plaintiff prove his lawful possession over the schedule property?

iii. Whether the plaintiff prove that the interference made by the defendants on suit property?

iv. Whether the defendants prove the suit of the plaintiff is not maintainable in law as the plaintiff is not in possession of the property?

v. Whether the 2nd defendant prove that he is bonafide purchaser of Sy. No. 145 and 146 measuring 3 acres 27 guntas from Sidramappa S/o. Vithal?

vi. Whether the defendants prove that they have perfected their title by law of adverse possession?

vii. Whether the plaintiff is entitled for decree as prayed for?

viii. What decree or order?"

The plaintiff in order to prove his title and ownership of the suit schedule property bearing No. 146/2 measuring 2 acres 15 guntas has examined as many as three witnesses on his side including himself as PWs. 1 to 3 and got marked as many as 33 documents as Exs.P-1 to P-33. On the side of the defendants, DWs.1 to 5 have been examined and as many as 37 documents have been marked as Exs.D-1 to D-37.

The Trial Court after thorough evaluation of the oral and the documentary evidence on record has come to a definite conclusion that the plaintiff has failed to prove title over the property and on the other hand, materials placed before the Court including the sale deed confer title and possession of the property on defendant No. 2. Having come to such a conclusion, the Trial Court has dismissed the suit.

Being aggrieved by the said judgment and decree, the plaintiff has approached the First Appellate Court in R.A. No. 22/2005. The First Appellate Court formulated four points for consideration which are as follows:

"i. Whether the appellant/plaintiff is shown sufficient cause for production of additional documentary evidence at this stage?

ii. Whether the lower Court has committed error in holding that the plaintiff has failed to prove his title to the suit schedule land and possession over it?

iii. Whether the lower Court has committed error in holding that defendant No. 2 has proved his title and possession over the suit land?

iv. Whether the lower Court has committed error in passing impugned judgment and decree?"

The First Appellate Court on re-appreciation of the material on record, giving cogent and convincing reasons has dismissed the appeal vide judgment dated 29.11.2006.

Being aggrieved by the said concurrent judgments, the plaintiff is before this Court.

On perusal of both the judgments, it would indicate that the plaintiff has produced oral and the documentary evidence at Exs.P-1 to P-33 which amply discloses that defendant No. 2 has purchased suit schedule property from one Sidramappa who is none other than paternal uncle of the plaintiff, vide registered deed dated 10.10.1980. In the course of cross-examination of PW.1, he has admitted that, the said transaction, but he has not raised any grounds till the filing of the suit from 1980 in order to question the legality of the said documents suit was filed in 2003. The learned trial Judge has also observed that all the documents which are produced before the Court by the plaintiff i.e., Exs.P1 to P33 establish that the plaintiff has purchased the suit schedule property by means of registered document executed by Sidramappa. The documents also reveal that sale deed dated 10.10.1980 discloses that Sidramappa was in possession of the said property and he sold the same in favour of defendant No. 2 but that sale deed was not subjected to any contest before the Trial Court nor plaintiff has made any pleadings and prayer for cancellation of said sale deed. The plaintiff himself has admitted in his evidence, apart from the production of those documents that there was a partition between his father by name Bhimsha and Sidramappa and in particular the suit schedule property was fallen to the share of his father Bhimsha and not to the share of Sidramappa. It is also the case of the defendants that in the said partition the suit schedule property was fallen to the share of Sidramappa and Sidramappa sold the same in favour of defendant No. 2. Of-course, both plaintiff and defendants are relying upon earlier partition between Bhimsha and Sidramappa. When the plaintiff has come to the Court he has to establish conclusively that the said property exclusively fallen to the share of his father Bhimsha but during the course of evidence he has categorically admitted that he has seen the suit schedule property and he has further admitted that the land belonging to Jaipal is existed to the northern side of the suit schedule property. It is also admitted that there is a well in the said property and Jaipal is also enjoying the property towards the north of the suit schedule property. Therefore, by virtue of this evidence the plaintiff wants to establish northern portion of the suit schedule property perhaps fallen to the share of Sidramappa and southern portion of the land fallen to the share of Bhimsha. Therefore, he has contended that the property which was sold in favour of defendant No. 2-Jaipal is the property fallen to the share of his father Bhimsha. As rightly observed by both the Courts below, the plaintiff has not produced so called partition deed entered into between Bhimsha and Sidramappa and the plaintiff wants to establish his case only on the basis of revenue documents. Of-course, the revenue documents were recorded in the name of the plaintiffs grandfather for some time and thereafter, the name of defendant No. 2 has been entered on the basis of sale deed. Certified copies of ROR produced before the Court pertaining to Sy. No. 146 shows that name of defendant No. 2 has been mutated in the entries. But earlier to that, from the year 1980 up to the change of mutation in the name of defendant No. 2, said property was in the name of Vithal, grand father of plaintiff. The Trial Court and the First Appellate Court have materially analyzed these factual aspects and relying upon the decision of this Court in ILR 1995 KARNATAKA [in case of Golappa v. Malkappa] wherein Sections 128 and 129 of the Karnataka Land Revenue Act has been discussed, the Court held in that case that, registration of a document pertaining to the agricultural lands it is the duty of the registering authority to send intimation to the revenue authorities and on the basis of that, revenue authorities have to change the entries. Therefore, mere any change of entries in the name of defendant No. 2 who claims on the basis of registered sale deed will not in any way take away the rights of the plaintiff if any over the property. But he has to prove the title otherwise then the mere entries in the revenue records. Therefore, the Courts have held that defendant No. 2 prayed his title and possession on the basis of revenue entries though changed subsequently in the name of defendant No. 2 on the basis of sale deed. Though there is some delay in changing the entries into the name of defendant No. 2 it will not in any manner affect the right, title and interest of defendant No. 2 over the suit schedule property.

Be that as it may, the plaintiff has come up before this Court the burden is on him to establish that suit schedule property fallen to the share of his father Bhimsha and thereafter he succeeded to the said property, therefore he is entitled for declaration of his title. Both courts have strenuously extensively relied upon the oral and documentary evidence produced by the plaintiff in order to come to the conclusion that the plaintiff himself has not proved the case as pleaded by him. It is the basic document the plaintiff has relied upon is the partition document which had been entered into between his father and Siddramappa and to show that the suit schedule property fallen to the share of his father. He relies upon such document but he has not produced the said document before the Trial Court and nor he has produced any document to show that subsequent to the said partition and after the death of his father they have divided the property among themselves i.e. plaintiff and his brothers etc. However, it is stated in the evidence that the plaintiff and his brothers have divided the property by entering into a registered partition deed. However, the plaintiff has to establish that as on the date of suit the property was fallen to his share. Though lot of documents have been produced which are revenue records as rightly observed by both the Courts that on the basis of revenue documents also the plaintiff has not established the title over the property. Of course the Courts can rely upon the revenue records and draw presumption under Section 133 of the Karnataka Land Revenue Act, nevertheless such presumption cannot be drawn to confer title on any person who does not establish the title before the Court. The revenue records though to some extent standing in the name of Vithal, grandfather of the plaintiff but the Courts have rightly observed that the revenue records themselves will not create any title over the property, and that has to be independently established by the plaintiff. The non production of the partition deed and not specifically stating in what manner the suit schedule property has been fallen to the share of Bhimsha, the plaintiff cannot succeed in his suit for declaration of his title. On the other hand, the both Courts have also considered the evidence of DWs.1 to 5 who have categorically stated about the possession of the suit schedule property with the second defendant. Further added to the above the plaintiff himself has admitted as already noted that southern side of the suit schedule property the second defendant is in possession of the said land in Sy. No. 146, but he has failed to show that the said portion which has been in possession of second defendant actually fallen to the share of plaintiffs father, that clearly establishes that the second defendant is in possession and enjoyment of the suit schedule property to some extent on the southern side. The plaintiff has not produced any cogent and convicting material to show that the southern portion of the said survey number, which was fallen to the share of Bhimsha, the same was wrongly sold by Siddramappa in favour of the second defendant.

The above evaluation of materials on record by the Trial Court and as well as by the First Appellate Court on the basis of the facts produced by the parties to the suit, on perusal of the issues framed by the Trial Court and as well the points for consideration framed by the First Appellate Court there is no legal question raised by either of the parties and no legal question formulated by the trial court or by the First Appellate Court. When there is no legal question arose between parties and the Court on appreciation of oral and documentary evidence and also appreciating facts drawn certain inference against the plaintiff and in favour of the second defendant such appreciation of facts cannot be subjected to further appreciation by this Court while exercising powers under section 100 of C.P.C in the second appeal.

Even while arguing before this Court the learned counsel for the appellant has not shown what exactly substantial legal point involved in this case and that the Trial Court and First Appellate Court have not appreciated the said legal aspect. Therefore, I am of the opinion, even looking to the entire materials on record, both Courts have only appreciated the oral and documentary evidence and the factual dispute between the parties and dismissed the suit of the plaintiff. In my opinion when there is no substantial question of law arises for consideration, the appeal deserves to be dismissed at the threshold at the admission stage itself. Hence, the following:

ORDER

The appeal is dismissed. Parties to bear their own cost.