Megharaj and Others vs Sakarbai and Others

S.N. Satyanarayana, J.—Plaintiff in O.S. No. 97/2001 who is also sole defendant in O.S. No. 41/2001 has come up in these two appeals impugning the concurrent findings of both the Courts below in dismissing his suit in O.S. No. 97/2001, which was filed for the relief of declaration and permanent injunction against the defendants in the said suit and decreeing the suit of the plaintiffs in O.S. No. 41/2001 for the relief of possession. Appeal in RSA No. 5031/2009 is filed challenging the concurrent finding passed in O.S. No. 97/2001 and RSA No. 5032/2009 is filed challenging the concurrent finding passed in O.S. No. 41/2001.

The brief facts leading to these second appeals areas under:

"The suit in O.S. No. 41/2001 is the first suit filed by one Shivappa Hullappa Barker seeking possession of the property bearing CTS No. 744/1 measuring to an extent of 29 sq. yards situated in Gadag town. The said suit is filed by him against one Megharaj S/o. Basalingappa Pujar as sole defendant, who in turn has subsequently filed O.S. No. 97/2001 for the relief of declaration and injunction. In both the suits, after service of notice, defendants in the respective suits filed written statement. Both the suits were clubbed together and the following issues were framed in both the suits:

Issues framed in O.S. No. 41/2001

"i) Whether the plaintiff proves that, he is absolute owner of suit property?

ii) Whether the defendant proves that he has perfected his title by adverse possession over suit property?

iii) Whether plaintiff is entitled for relief of actual possession of suit property from defendant?

iv) What order or decree?

Issued framed in O.S. No. 97/2001

i) Whether the plaintiff proves that his signature were obtain, by committed fraud by husband of D-1 on the sale deed?

ii) Whether the plaintiff proves that the sale deed dated 12.11.1981, 26.05.1986, 24.05.1994 are not binding on him & null and void?

iii) Does this court has pecuniary jurisdiction to entertain the relief?

iv) Does the suit plaintiff is bad u/o II rule 2 of CPC?

v) Does the plaintiff is entitled for relief sought for?

vi) What order or decree?"

Subsequent to framing of issues in both the suits, they were taken up for recording common evidence. While recording the evidence, plaintiff in O.S. No. 41/2001 is treated as plaintiff in both the suits and in the evidence, he was referred to as P.W. 1. It is seen that he has examined one person by name Venkappa Narayanappa Banakar as P.W. 2 and he produced in all 10 documents, which are marked as Exs. P1 to P10. On behalf of the plaintiff in O.S. No. 97/2001, plaintiff-Megharaj Basalingappa Pujar examined himself as D.W. 1 and in support of his case, he examined three other persons, namely, Karimsab Babusab Hanagi as D.W. 2, Yellamma Siddappa Galaganti as D.W. 3 and Pankaj Veerji Gala as D.W. 4. On behalf of the defendants, totally 57 documents were produced, which are marked as Exs. D1 to 57. In the said proceeding, the Court Commissioner was also appointed, who in turn filed his report, which was not marked in the evidence.

The sum and substance of pleadings and evidence in both the suits are as under:

"(a) Plaintiff in O.S. No. 97/2001 Mr. Megharaj S/o. Basalingappa Pujar has purchased the suit schedule property under a registered sale deed dated 02.06.1980 from its original owner. The said document is at Ex. D3, which is not disputed by the parties to the proceedings. It is seen that, pursuant to the said sale deed, the suit property was also registered in the name of Megharaj in the revenue records. It is the case of Megharaj that he continued to be in possession and enjoyment of the suit property till 1994 i.e., the time when he came to know that his employer Veerji Gala has secured sale deed of the suit property in his favour under the guise of getting some document executed.

(b) Admittedly, the sale deed, which is said to have been executed in the name of Veerji Gala was executed on 26.11.1981 under Ex. D56. The recitals of which would disclose that D.W. 1-Megharaj has executed sale deed of the suit property in favour of Veerji Gala and conveyed the suit property in his favour. It is seen that the said Ex. D56 is accompanied by another document, which is marked as Ex. D57, which is said to be a rent document, under which, Veerji Gala permitted Megharaj to continue to be in possession of the suit property as tenant under him.

(c) According to Megharaj, he was not aware of the sale deed being executed in favour of Veerji Gala on 26.11.1981, till 1994, when Shivappa Hullappa Barker sought possession of the suit property from D.W. 1-Megharaj under the guise that he has purchased the suit property from its erstwhile owner Andanayya Hiremath, who is said to have purchased the suit property from Veerji Gala.

(d) At this juncture, it is stated that the plaintiff has filed the suit in O.S. No. 321/1994 seeking the relief of declaration that the sale deed dated 26.11.1981 said to have been executed in favour of Veerji Gala is a fraudulent document which the purchaser under the said document got executed the sale deed without the knowledge of D.W. 1 and that the said sale deed should be declared as null and void. Admittedly, the said suit which was filed on the file of Civil Judge (Jr. Dn.) Gadag was not pursued resulting in the same being dismissed for non-prosecution."

It is seen that the dismissal of the said suit was not further pursued by D.W. 1-Megharaj, who is plaintiff in the earlier suit by filing an application seeking restoration of the suit or by filing an appeal challenging the order of dismissal. In any event, it is seen that he kept quite and continued to reside in the said property till 2001. It is only in the year 2001, when O.S. No. 41/2001 was filed by Shivappa Hullappa Barker for the relief of possession, he entered appearance and filed statement denying the title of the plaintiff-Shivappa Barker over the suit property and simultaneously filed suit in O.S. No. 97/2001 for the relief of declaration and permanent injunction. The recitals in the said suit is to the effect that the sale deed obtained by Veerji Gala from D.W. 1-Megharaj is a fraudulent document and any transaction which has taken place subsequent to that, would not bind him. In addition to that, he was claiming declaration regarding adverse possession on the ground that, since 1981 to the date of filing of the suit, he has been continuously in possession and enjoyment of the suit property without any disturbance, though his possession is adverse to the interest and title of the defendants in the said suit.

Whereas, the pleadings in O.S. No. 41/2001 filed by Shivappa Barker is to the effect that the suit property was sold by D.W. 1 in favour of Veerji Gala, which was subsequently sold in favour of Andanayya Hiremath and from Andanayya Hiremath, he has purchased the suit property and he has been continuing as owner and since the possession of D.W. 1 is tenant of the said property, he cannot seek adverse possession at this juncture. With these rival pleadings, the aforesaid issues are framed and the evidence as stated supra was recorded.

On going through the evidence and documents available on record, though the plaintiff in O.S. No. 97/2001 namely Megharaj claimed that he is in possession of the suit property as owner and not as tenant and that the document at Exs. D56 and 57 and other documents are fraudulently created behind his back, there is nothing on record to substantiate how he continued to remain undisturbed even after the said documents were executed in the year 1981, till 1994, there is no cogent and acceptable reasoning given either in the pleadings or in the evidence of D.W. 1. The witnesses examined as D.Ws. 2, 3 and 4 though tried to support D.W. 1 contending that he is in possession of the suit property, they are not in a position to speak anything about the sale deed which was executed by him in favour of Veerji Gala and as well as the rent deed which has come into place in pursuant to sale deed dated 26.11.1981. In the absence of acceptable evidence regarding denial of tenancy rights from 1981 to this day and acceptable document to show that the plaintiff-Megharaj was not aware of the sale deed executed by him in favour of Veerji Gala as on 26.11.1981, until there was a threat to his possession by Shivappa in the year 1994, there is no evidence on record to substantiate the same.

In that view of the matter, it is clearly seen that both the Courts below while considering the pleadings and evidence available on record answered issues Nos. 1 and 3 in O.S. No. 41/2001 in affirmative holding that the plaintiff-Shivappa Barker is the absolute owner of the suit property and that he is entitled for the relief of possession, while answering issue No. 2 which was framed on the ground of adverse possession, in the negative. While coming to O.S. No. 97/2001, the very same Court has answered issue Nos. 1, 2, 4 and 5, which are framed to consider whether the signature was fraudulently obtained by Shivappa Barker on Ex. D56 and also subsequent sale deeds dated 26.05.1986 and 24.05.1994 are null and void are held in the negative. Similarly, issue No. 4 which was with respect to Order 11 Rule 2 of CPC and as well as entitlement of Megharaj for the relief were answered in the negative. While doing so, the jurisdictional point, which was raised was answered in favour of the defendants in the said proceedings and accordingly, the suit filed by Shivappa Hullappa Barker in O.S. No. 41/2001 was decreed and the suit filed by Megharaj in O.S. No. 97/2001 is dismissed.

It is seen, as against these two concurrent judgments and decree dated 25.02.2004 which was subject matter of R.A. Nos. 38 and 39 of 2004 on the file of the Additional Civil Judge (Sr. Dn.) Gadag, wherein, it is seen that the lower appellate Court on the basis of the pleadings and evidence available on record proceeded to frame the following points for consideration.

"i) Whether the appellants prove that judgment and decree passed by the trial court in O.S. No. 41/01 and 97/01 are perverse, arbitrary and this court interference is necessary?

ii) What order or relief?"

The lower appellate Court on re-appreciation of the oral and documentary evidence available on record, answered point No. 1 in the negative and consequently, dismissed both the appeals, which were filed by Megharaj, one decreeing the suit of Shivappa Hullappa Barker in O.S. No. 41/2001 and dismissing his suit in O.S. No. 97/2001 by common judgment dated 24.06.2008.

As against the concurrent findings of both the Courts below, these two second appeals are filed. In the light of the aforesaid discussions with regard to the pleadings, evidence and finding of both the Courts below, this Court find no justifiable grounds are made out to consider whether any substantial question of law arises for consideration to ascertain whether the defence raised by the plaintiff regarding adverse possession and also with reference to his plea in continuing in the suit property on the basis of adverse possession could be re-considered in this appeal. In that view of the matter, this Court find no justifiable grounds are made out to admit these two appeals, inasmuch no substantial question of law arises for consideration in these two appeals.

Accordingly, these second appeals are dismissed.