Rajareddy and Others vs Ashabee and Others

A.V. Chandrashekara, J—Both these appeals filed under Section 100, C.P.C. have arisen out of a common judgment and decree passed by the learned senior civil judge, Sedam, Gulbarga, in R.A. Nos. 14/08 and 15/08 disposed of on 8.12.2009. Those appeals filed under Section 96, C.P.C. had arisen out of the judgment and decree in O.S. 42/04 which was pending before the learned Civil Judge, Sedam, Gulbarga.

The appellant in both the appeals was the sole plaintiff in O.S. 42/04. Respondents herein were the defendants. Parties will be referred to as plaintiff and defendants as per their ranking before the trial court.

The facts leading to the filing of the present appeals are as follows:

"a) Plaintiff-Rajareddy chose to file a suit for the relief of declaration of title and permanent injunction in respect of 20 guntas of land in Survey No. 421/A of Gurugapalli village of Sedam Taluk, which measures in all 16.08 acres. His case is that the said property was divided into two parts, i.e. No. 421/A and 421/AA. After the sub-division, property No. 421/A measured 5.16 acres and it belonged to Basareddy, his brother.

b) Plaintiff is said to have purchased 1.16 acres in Survey No. 421/A from his brother, Basareddy through a registered sale deed dated 2.5.1975 for a consideration of Rs. 3,000/- in No. 141/1975-76. The remaining extent of 4 acres came to be purchased by Gudusab Korban, husband of the 1st defendant for a consideration of Rs. 4,000/- in No. 140/1975-76 dated 2.5.1975."

The case of the plaintiff is that he has been in possession and enjoyment of 1.16 acres of land purchased from his brother vide sale deed dated 2.5.1975. Since the defendants tried to interfere with his possession in respect of 20 guntas, he chose to file the suit for the relief of declaration of title and permanent injunction.

Per contra, the defendants chose to file detailed written statement denying all material averments. According to them, plaintiff was not at all in possession of the entire extent stated to have been purchased by him from his brother and they were in possession of 4.20 acres and not 4 acres of land as described in the sale deed bearing No. 140/1975-76. According to them, the 1st defendant was in lawful possession of 4.20 acres of land which was taken note of by the survey authorities in the year 1979 and necessary phoding was done and the name of the came to be entered to that extent. With these pleadings, the defendants had requested the court to dismiss the suit.

On the basis of the above pleadings, three issues came to be framed by the trial court as found in paragraph 5 of the judgment. Plaintiff-Rajareddy is examined as PW1 and 3 witnesses are examined on his behalf. 11 exhibits have been got marked. On behalf of the defendants, 1st defendant is examined as DW1 and 27 exhibit have been got marked. Ultimately the suit came to be decreed in part declaring the plaintiff to be the owner of 20 guntas of land in respect of Survey No. 421/A and the relief of permanent injunction was rejected on the ground that he was not in possession of 20 guntas as on the date of filing the suit.

The said judgment dated 20.12.2007 was challenged under Section 96 in R.A. No. 14/08 by the plaintiff. Being aggrieved by the grant of relief of declaration of title, the 1st defendant chose to file an appeal which came to be registered as R.A. No. 15/08. Since both the appeals had arisen out of one judgment, they were taken up together for common discussion. Ultimately the learned judge of the appellate court has chosen to dismiss the appeal filed by the plaintiff and has allowed the appeal filed by the 1st defendant. Thus the suit of the plaintiff is dismissed in entirety.

The learned judge of the trial court, while decreeing the suit of the plaintiff in part, had given liberty to the plaintiff to claim possession from the defendants as per law. What is held by the first appellate court is that if a person files a suit for declaration of title and injunction is found not to be in possession of the property as on the date of filing the suit, the question of granting declaration of title does not arise in view of the proviso to Section 34 of the Specific Relief Act.

Both the appeals have been admitted to consider the following substantial question of law on 4.8.2015:

"Whether the First Appellate Court has committed serious illegality by ignoring the material evidence placed on record in the form of Ex. D3 and Ex. P6 specifying the exact portion of the land sold to defendant No. 1 measuring 4 acres with Eastern boundary as the remaining land in Sy. No. 421/A as found in Ex. P3?"

Heard the learned counsel for the parties and perused records. The fact that the entire extent of 5.16 acres in Survey No. 421/A of Gurugapalli village of Sedam Taluk belonged to Basareddy, brother of the plaintiff, is not in dispute. Plaintiff and 1st defendant based their title from Basareddy to claim possession and title. The said Basareddy chose to sell 4 acres in favour of the husband of the 1st defendant on 2.5.1975 at 11.00 a.m. for Rs. 4,000/- and the document came to be numbered as No. 145/1975-76. This is marked as Ex. D3. On the very same day, plaintiff chose to purchase the remaining 1.6 acres in Survey No. 421/A from the same vendor and the said sale deed presented for registration at 11.20 a.m. is numbered as No. 141/1975-76. This is marked as Ex. P6.

It is useful to refer to the boundaries mentioned in Ex. D3 relied by the 1st defendant. In paragraph 1 of Ex. D3 and Ex. P6, the exact extent of land sold is mentioned with specific reference to boundaries. Hence paragraph 1 of Ex. P6 and Ex. D3 are extracted below:

"Ex. P6:

''1. That just prior to this sale deed the vendor was the full owner and possessor of land Sy. No. 421/A measuring 5 acres 16 guntas with land revenue assessment of Rs. 7-18 paise, situated at village Buragpalli, Taluk Sedam, District Gulbarga. Due to his family and private necessities, the vendor has sold the said land to the extent of 1 acre 16 guntas with land revenue assessment of Rs. 2-18 paise towards north east corner having the following boundaries:

east : another land of Rajreddy bearing Sy. No. 421/AA;

west : other portion of land under sale;

north : Government land; and

south: another land of Rajreddy Sy. No. 421/AA.''

Ex. D3:

''1. That just prior to this sale deed the vendor was the full owner and possessor of land Sy. No. 421/A measuring 5 acres 16 guntas with land revenue assessment of Rs. 7-18 paise, situated at village Buragpalli, Taluk Sedam. Due to his family and private necessities, the vendor has sold the said land to the extent of 4 acres with land revenue Rs. 5-00 paise towards east having the following boundaries:

east: remaining portion of land under sale and land of Rajreddy;

west: another land of vendee;

north: Government land; and

south: another land of vendee."

On a plain reading of Ex. D3, it is clear that the remaining portion of land in Survey No. 421/A was with Basareddy and had been sold to Rajareddy and the eastern boundary is mentioned as remaining portion of land under sale and land of Rajareddy. This would go to show that the plaintiff-Rajareddy had lands to the east of 1.16 acres which remained after conveying 4 acres of land in favour of Gudusab Korban. It is not as though the 1st defendant''s husband was unaware of the sale of 1.16 acres of land in favour of the plaintiff by Basareddy on the same day. The difference of time in presenting these two sale deeds is only 20 minutes. This would throw light on the subject matter in dispute. Both the purchasers, i.e. husband of the 1st defendant and the plaintiff were present at the time of presenting both the documents for registration and the seller was also present to execute the same.

Plaintiff has relied on Ex. P6, original sale deed executed by his brother-Basareddy in respect of 1.16 acres on the eastern portion in Survey No. 421/A. Since the western portion of 4 acres had been sold to the husband of the 1st defendant, there is a specific reference about it to show as the other portion of land under sale. What is argued by the learned counsel for the 1st defendant is that though 4 acres is mentioned in Ex. D3, the actual extent of land that was conveyed was 4.20 acres and therefore, the survey authorities chose to effect sub-division of the land on the basis of actual extent of land possessed by the purchaser, i.e. husband of the 1st defendant. It is further argued that on the basis of possession, survey authorities effected phodi which was reflected in the land records. In the light of both the documents being presented for registration and ion the light of both the purchasers being present as on the date of presenting it, it cannot be said that the 1st defendant''s husband had in fact purchased 4.20 acres, i.e. 20 guntas in excess of the land shown in Ex. D3. It is in this regard the trial court has specifically held that the plaintiff is the owner of 20 guntas of land as described in the sketch appended to the plaint. This finding has been negatived by the first appellate court on the ground that a party who is not in possession of the property as on the date of filing of the suit will not be entitled for the relief of declaration of title in view of the proviso to Section 34 of the Specific Relief Act.

What is observed by the trial court and the first appellate court is that when a party seeking relief of injunction is not found to be in possession of the property, grant of the relief of declaration of title becomes otiose. In fact, the learned trial judge had given liberty to the plaintiff to seek possession in accordance with law.

The records of R.A. 15/08 are perused by this court. It was an appeal filed by the defendants challenging grant of declaratory decree against them. On perusing the appeal memo filed under Section 96, C.P.C., it is evident that nowhere they have taken the plea that the relief of declaration of title could have been granted in the light of the plaintiff being out of possession. A person who is in possession of the property can only remain till he is evicted under due process of law. In a country like ours where the rule of law should prevail, title should be protected and relief of possession is ancillary to the main relief of declaration of title. This aspect of the matter has been lost sight of by the appellate court.

Whether the revenue documents prevail over documents of title in a suit for the relief of declaration of title is the question. Revenue documents cannot become documents of title unless they are supported by valid documents like partition deed, release deed, sale deed, etc. The 1st defendant cannot claim title in excess of the extent marked in Ex. D3. Anyhow both the courts have held that the plaintiff is not in possession of 20 guntas, but he has demonstrated his title over the said extent on the basis of Ex. P6, original sale deed.

A Division Bench of this court ion the case of Neelawwa Vs. Shivawwa, AIR 1989 Kar 45 : (1988) ILR (Kar) 2761 : (1988) 1 KarLJ 58 has held that in a suit for declaration of title and injunction, the court can mould the relief of partition and grant relief even when not prayed for. The said analogy is aptly applicable to the facts of this case and therefore the relief granted by the trial court to seek possession in accordance with law cannot be found fault with. Any how the 1st defendant had not taken up any plea having acquired title based on adverse possession regarding the said 20 guntas which is stated to be in his possession.

When a suit would be filed for possession, it is for the 1st defendant to take up all pleas available to him under law. In this view of the matter, the first appellate court has adopted wrong approach to the real state of affairs by ignoring the material evidence in the form of Ex. P6 and D3. Admittedly these two documents speak about the specific boundaries of the extent of land conveyed in favour of the husband of the 1st defendant as well as the plaintiff. Accordingly the common substantial question of law framed is answered in the affirmative holding that the first appellate court has committed a serious illegality in ignoring the material evidence in the form of Ex. P6 and D3.

In the result, the following order is passed:

ORDER

The appeals are allowed and the judgment of the first appellate court in R.A. Nos. 14/08 and 15/08 is set aside. The judgment of the trial court is restored. Notwithstanding allowing of these appeals, the defendants are at liberty to take up all defences when a suit would be filed for possession by the plaintiff. In the facts and circumstances o the case, parties to bear their own costs.