Nagaraj vs D.M.Mohanraj

This appeal is filed by the defendant in O.S.No.176/2005 on the file of the II Additional Senior Civil Judge and JMFC, Tumakuru. Respondent

in this second appeal is the plaintiff in the said suit.

The plaintiff filed a suit for declaration of his title over ''A'' schedule property consisting of two sites bearing Nos.5 and 6, measuring 30 feet x 40

feet each formed in Sy.No.3 of Channanadinne village, now called Mahalakshmi Nagara, Tumakuru and also, sought for recovery of possession of

''B'' schedule property marked as ''ABCD'' in the plaint sketch, where the defendant appeared to have put up a shed. In addition to these reliefs,

the plaintiff also sought for mandatory injunction directing the defendant to demolish the shed and for permanent injunction for protecting his

property.

The plaintiff pleaded that, one Kempaiah was the grandfather of the defendant. He purchased ''A'' schedule property from said Kempaiah on

27.01.1982 through a registered sale deed and then obtained revenue documents to his name. He further stated that, Kempaiah had obtained

conversion order for 20 guntas of land in Sy.No.3 from agriculture to non agricultural purpose, formed a lay-out and sold all the sites formed in the

said land. On 25.06.2003, when the plaintiff went near the suit property, he found a small shed in a part of ''A'' schedule property, having been put

up by the defendant. The plaintiff questioned the defendant as to why he had put up the shed, and it was alleged that, at that time, the defendant

threatened him. The plaintiff made a complaint to the police and also to the municipal authorities. They did not take any action and therefore, the

plaintiff filed a suit for the above reliefs.

In the written statement, the defendant admitted that Kempaiah was his maternal grandfather and further stated that, his grandfather was a tenant

in respect of 20 guntas of land in Sy.No.3 of Channanadinne village. The Tribunal granted occupancy rights in his favour. Thereafter his grandfather

converted the land for non-agricultural purpose and formed 14 sites each measuring 30 x 40 ft. The defendant further stated that his grandfather

Kempaiah sold 11 sites, 1 to 3 and 7 on the Southern road and 7 sites on the Northern road, but retained sites bearing No.4, 5 & 6 for himself.

The defendant specifically pleaded that he was taking care of his grandfather Kempaiah and therefore the said Kempaiah bequeathed the three

sites bearing Nos. 4 to 6 to him by executing a Will dated 28.08.1999. Kempaiah died on 05.11.2001 and therefore defendant stated that he

became the absolute owner of the three sites by virtue of the Will.

The trial court framed necessary issues and examined the witnesses. It held that the oral evidence adduced by PWs 1 and 2 and the documents

produced by the plaintiff as per Exs. P1 to P4 would establish that Kempaiah executed a sale deed in favour of the plaintiff who later on obtained

the revenue documents transferred to his name. Thus, the trial court came to the conclusion that Kempaiah sold the sites to the plaintiff and

therefore he became the absolute owner of ''A'' schedule property. With regard to defence set up by the defendant, the trial court held that the

documents marked Exs. D1 to D11 would not help to establish his case. In particular it observed that Ex.D1 came into existence during the

pendency of the suit. With regard to the specific defence taken by the defendant about the sale deed dated 28.8.1999, the trial court clearly

observed that the defendant having failed to produce the Will, was not able to establish his specific defence. For these reasons, the trial court

decreed the suit of the plaintiff.

Aggrieved by the judgment of the trial court, the defendant preferred the first appeal to the court of District Judge, Tumakuru. The first appeal

also came to be dismissed affirming the findings of the trial court.

The learned counsel for the appellant argues that occupancy right was granted in favour of Kempaiah, the grandfather of the defendant

according to the Karnataka Land Reforms Act. At the time of granting occupancy right, a condition was imposed that for a certain number of

years, the re-granted property should not be sold. Violating this condition, Kempaiah sold the property in favour of the plaintiff and therefore the

sale deed was illegal. The learned counsel also argued that the plaintiff also failed to prove execution of the sale deed by examining at fleast one of

the attestors. He further argued that before the first appellate court, the defendant who had preferred the appeal made an application under Order

XLI Rule 27 CPC for producing grant certificate. The trial court dismissed the application and thus denied an opportunity to the defendant to

prove that the land should not have been sold by Kempaiah. According to him, the judgment of the trial court as well as the first appellate court

suffers from illegality and, therefore, in this context there arises a substantial question of law.

With regard to dismissal of application under Order 41 Rule 27 CPC, it is to be stated now that the documents that the defendant sought to

produce before the first appellate court was grant certificate issued by the Land Tribunal in favour of Kempaiah. The plaintiff also admitted that the

land had been granted to Kempaiah. Since this is an admitted fact there is no need to produce this document and even if his application under

Order 41 Rule 27 CPC had been allowed, it would not have helped the defendant to establish his case which is otherwise founded on a Will said

to have been executed by Kempaiah in his favour.

Perusal of the judgment of the trial court and the first appellate court indicates that firstly the trial court appreciated the evidence thoroughly. The

plaintiff relied upon the sale deed executed by Kempaiah. The said sale deed was produced by him. The trial court has also held that the sale deed

was acted upon as the revenue entries were obtained by the plaintiff pursuant to the sale deed. The plaintiff also examined another witness PW-2

to prove that there had taken place sale transaction. Just because the defendant denied the execution of the sale deed in the written statement, it

was not necessary for the plaintiff to examine the attestors. The trial court has given cogent reasons as to why examination of attestors was not

necessary. Moreover the specific defence of the defendant was on the basis of the Will said to have been executed by Kempaiah. If really

according to the defendant Kempaiah had executed the Will, the burden was on him to prove the Will according to law, but the defendant did not

produce the Will at all. The trial court has observed this fact.

Therefore in my opinion the trial court rightly decreed the suit. Perusal of the judgment of the first appellate court, shows that it has re-appreciated

the evidence to come to conclusion that the judgment of the trial court needs to be upheld. It has held that the sale made by Kempaiah during the

period of prohibition to alienate does not benefit the defendant, as he did not challenge the sale transactions pertaining to other sites. These are the

findings on facts. In these circumstances, I do not find any perversity in appreciation of evidence. No substantial question arises for admitting this

appeal. Therefore appeal is dismissed.