Rakesh Kumar Agarwal vs Jayamma, Anjanappa and Muniraj

Ashok B. Hinchigeri, J.—This appeal is directed against the judgment, order and decree passed by the Court of VII Addl. City Civil Judge, Bangalore in O.S. No. 4262/1993.

The facts of the case in brief are that the appellant claims to have purchased the schedule property from Lakshminarayan Mane by a registered sale deed, dt. 29.10.1987. The schedule property is a Khaneshmari land measuring 40 1/2 � 54 bearing khaneshmari No. 202 of Hebbal Village. He claims to have got the khatha in respect of the schedule property transferred to his name and has been paying the tax. To safeguard the schedule property, he began to construct the slab compound but the respondents came in his way. He filed the suit and sought the relief of permanent injunction. The first respondent is the mother and the respondent Nos. 2 and 3 are her sons. The defence of the respondents before the Trial Court is that the land at Sy. No. 122/2 of Hebbal village measured 1 acre 18 guntas. Out of the said lands, 30 guntas were sold to Munoji Rao; the respondent retained the possession of 27 guntas of the said land. It is their unmistakable case that the entire extent of the land measuring 1 acre 18 guntas is purchased by one Kempakka, mother-in-law of the first respondent by a registered sale deed, dt. 24.10.1939. On the death of the said Kempakka and her son Papanna (husband of the first respondent and father of respondent Nos. 2 and 3), the respondents inherited the said property.

Based on the rival pleadings, the Trial Court framed the following issues:

Whether the plaintiff proves his lawful possession over the suit property as on the date of suit?

Whether the plaintiff proves interference by the defendants?

Whether the plaintiff is entitled to permanent injunction as prayed for?

What order or relief?

The appellant got himself examined as PW-1. marking the documents from Ex.P.1 to P.5. The first respondent got herself examined as DW-1 marking the documents from Ex.D.1 to D.4. On considering the pleadings, oral and documentary evidence placed on the record, the Trial Court answered the contentious issues in favour of the respondents and dismissed the suit.

Aggrieved by the dismissal of the suit, the plaintiff has come up in appeal before me.

Sri B.N. Anantha Narayana, the learned Counsel for the appellant scrupulously avoided making attack on the judgment under appeal. He confined his submissions only to I.A.III/2003, which he has filed seeking leave of the Court to produce additional evidence invoking Order 41 Rule 27 Code of Civil Procedure. The following documents are produced alongwith the said I.A.

i) Sub-Registrar''s certified copy of the Registered Sale deed dated 12.6.1932 in favour of Hanumantha Rao Mane.

ii) Sub-registrar''s certified copy of the Registered Sale Deed dated 8.5.1926 in favour of Abdul Kareem Sab.

iii) Certified copies of the House Tax assessment extract in respect of property KH No. 202/122-5 for the years 1952-52, 1959-60 and 1991-92 (three in numbers).

iv) Tax paid receipt in respect of HL No. 202.

v) License issued by the Hebbal Grama Panchayath in favour Rakesh Agarwal.

Based on the documents at serial Nos. 1 and 2, Sri Anantha Narayana contended that the schedule property had become non-agricultural property as early as in 1926 and 1932. He also relied on the house/land tax assessment list maintained by the local body for the year 1991-92. The extract of the said list assigns Janjar No. 202 to the schedule property and it also shows the name of the appellant in the occupant''s. It shows the dimension of the property as 40'' X 54''. Yet another document produced with the LA is again an extract of the property register for the year 1952-53. It contains the name of Hanumantha Rao Mane, perhaps the predecessor-in-title of the property. But it gives the number as 299 as per the revenue list but the property number is shown as Sy. No. 122. The last document is the endorsement, sanctioning the plan for putting up the building on the schedule property issued to the appellant

Sri Basavaraj, the learned Counsel for Sri Satish M. Doddamani for the respondents prays for the dismissal of both this appeal and I.A. III/2003 for the production of additional evidence. Sri Basavaraj submits that based on the evidence placed on the record of the Trial Court, the suit is rightly dismissed. He submits that the schedule property is a part of 27 guntas of land at Sy. No. 122 whose ownership and possession are with the respondents only.

The Trial Court cannot be held to be at fault for dismissing the suit deciphering the contradictions between the pleadings and the evidence. Ex.P.1, the sale deed in respect of the schedule property standing in favour of the appellant does not mention that the schedule property is carved out of Sy. No. 122 of Hebbai Village. Further it refers to there being two square building of Mangalore tiles roof in the schedule land whereas the evidence of the appellant is that the schedule property is a vacant land only. Nothing is placed on record as to whether and when the structure on the schedule property came to be razed to the ground. The Trial Court has held that possession has to follow the title. When the title is not established, the Trial Court has refused to grant the injunction. Ex.P.3 is the receipt for having paid the land revenue. It is therefore the sound reasoning of the Trial Court that, if land revenue was being paid, the question of the schedule property being treated as a residential site cannot arise at all. As it was never shown that the schedule property was converted from agricultural to non-agricultural land and as the provisions of Prevention of Fragmentation and Consolidation of Holdings Act are attracted, the Trial Court has disbelieved the version of the appellant and dismissed the suit

If the extract of house/land tax assessment list produced with the I.A. II/2003 are compared with the schedule either shown in the plaint or the sale deed at Ex. P. 1, some discrepancies, however minor they are, do emerge. I also see some overwriting on the said extracts. Therefore no finality can be arrived at based on the said documents. They do call for oral evidence.

On the face of it there appears to be some confusion about the demarcation, if not, the identity itself of the schedule property. Nonetheless, the documents produced alongwith the LA. cannot be thrown out at this stage. They require and merit serious consideration. As the valuable rights of the parties in the immovable properties are involved, this Court is of the considered view that the matter requires re-enquiry and re-adjudication.

Considering the appellant''s affidavit that the additional documents could not be produced despite the exercise of due diligence by him earlier in the suit proceedings and as the ends of justice require that the additional documents be considered, I allow I.A. III/2003.

In the result, I allow this appeal also not because the Trial Court has gone wrong anywhere but because the appellant has to be given one more chance to produce the additional evidence. Needless to observe that it is open to both the parties to adduce any additional evidence. All contentions are kept open.

As the respondents for no fault or lapse on their part have to stand the re-enquiry in the remanded matter, I also deem it just to impose some cost on the appellant The appellant shall pay a cost of Rs. 5,000/- to the respondent''s side within two weeks from today. Both the sides shall appear before the Trial Court on 23.04.2009 without waiting for any notice from the Trial Court.

Office is directed transmit the lower Court records to the Trial Court forthwith. Further, the documents filed with I.A. III/2003 are also to be transmitted to the Trial Court on collecting their xerox copes from the appellant''s learned Counsel for record purpose.

The Trial Court shall adjudicate the remanded mate independently of the reasons given for dismissing the suit and the reasons given by this Court for agreeing with what the Trial Court has done.