Robert Martis and Others vs Nicholas Nazerath and Others

P.D. Waingankar, J.—1. This appeal is directed against the judgment and decree dated 26.10.2010 in R.A. No. 133/2001 on the file of III Addl. Senior Civil Judge, Mangalore, whereby the learned Judge confirmed the judgment and decree dated 01.02.2001 passed in O.S. No. 392/99 on the file of I Addl. Civil Judge, (Junior Division), Mangalore, decreeing the suit.

During the course of the judgment, the appellants are referred to as ''defendant Nos. 3 and 4'', respondent No. 1 as ''plaintiff'' and respondent Nos. 2 and 3 as ''defendant Nos. 1 and 2''.

The plaintiff filed a suit for a declaration of his title to the schedule property and for a consequential relief of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit schedule property purchased by him by registered sale deed dated 17.12.1970 from Mrs. Mercina Correa the mother of defendant No. 1. The defendant Nos. 3 and 4 who are the appellants contested the suit. In their written statement, they denied that the plaintiff purchased the schedule property from Mrs. Mercina Correa by a registered sale deed for a total consideration of Rs. 5,000/- and that the plaintiff is in actual possession and enjoyment of the schedule property. They further contended that the total extent of suit schedule property is 36 cents in R.S. No. 162/3 as disclosed in the revenue records and not 50 cents as alleged by the plaintiff. It is contended that the plaintiff in order to grab the property of defendant No. 3 to an extent of 14 cents in the possession of the defendant No. 3 filed the suit. The defendant No. 3 also contended that defendant Nos. 3 and 4 have perfected their title over 14 cents of land by adverse possession. Hence, defendant Nos. 3 and 4 have sought for dismissal of the suit.

The pleadings gave rise to the following issues:-

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

ii) Whether plaintiff proves that, he is in lawful possession and enjoyment of suit property as on the date of the suit?

iii) Whether plaintiff proves the alleged interference?

iv) Whether plaintiff is entitled to the relief of declaration and permanent injunction as prayed?

v) What Decree or Order?"

After framing of the issues, the plaintiff in order to prove his case examined himself as PW.1 apart from examining one Thomas Pinto as PW.2. Ex. P1-Original Sale Deed, Ex. P2-Sketch of the schedule property and Ex. P3- RTC for the year 1998-99 were marked on behalf of the plaintiff. On behalf of defendants, defendant No. 3 was examined as DW.1. GPA executed by defendant No. 4 in favour of defendant No. 3 was marked as Ex. D1. The Trial Court on appreciation of evidence held that the plaintiff purchased the schedule property from one Mrs. Mercina Correa by registered sale deed dated 17.12.1970 measuring 50 cents comprised in R.S. No. 162/3 and that the defendants have caused interference. Hence, the Trial Court decreed the suit as prayed for by the plaintiff by judgment and decree dated 01.02.2001.

On re-appreciation of evidence R.A. No. 133/2001 filed by the defendant Nos. 3 and 4 came to be dismissed by judgment and decree dated 26.10.2010, while confirming the judgment and decree passed by the Trial Court.

Questioning the legality and correctness of the judgment and decree passed by the Trial Court and the First Appellate Court, this appeal is preferred.

The following questions of law have been framed for disposal of this appeal:-

"1. Whether the Courts below have committed an error in accepting the extent indicated in Ex-P1, despite there being discrepancies in the evidence tendered by PW-1?

Whether in the circumstance when the extent of the land and the identity to the said extent was disputed by the defendants, the Courts below were justified in decreeing the suit without securing appropriate survey/measurement of the property to be obtained during trial?".

I have heard the learned counsel appearing for the appellants/defendant Nos. 3 and 4 and the learned counsel appearing for respondent No. 1/plaintiff. Perused the records.

The submission of the learned counsel for the appellants/defendant Nos. 3 and 4 is that in the RTC marked as Ex. P3, the property purchased by the plaintiff is shown as 36 cents and therefore, plaintiff is in possession of only 36 cents though he obtained sale deed for 50 cents of land. He further submitted that since there is dispute with regard to boundaries and area, the Court below ought to have appointed a Survey Commission to locate the property of the plaintiff, that in a suit for declaration of title and injunction not only the plaintiff must prove his title but his possession over the property as on the date of the suit. Further, the learned counsel submitted that the plaintiff is trying to grab 14 cents of land belonging to defendant No. 3 the adjacent holder and both the Courts below without appreciation of evidence placed on record in its proper perspective have decreed the suit as prayed for by the plaintiff. Hence, the learned counsel sought to set aside the judgment and decree passed by both the Courts below and to dismiss the suit. The learned counsel relied upon the following decisions in support of his arguments:-

"i) Laws , (SC) - 2000-3-87 (Shreepat v. Rajendra Prasad);

ii) , AIR 1966 SC 605 (Ambika Prasad Thakur and others etc., v. Ram Ekbal Rai (dead) by his Legal representatives and others etc.,)"

On the other hand, the learned counsel appearing for the respondent No. 1/plaintiff would argue in support of the judgment and decree passed by both the Courts below and sought for dismissal of the appeal as devoid of merits. The learned Counsel placed reliance on the following decision in support of his arguments:-

"i) , ILR 1999 KAR 1524 (A.V. Rangacharya & Anr. v. Pillanjinappa & Anr.);

ii) , (2006) 5 Supreme Court Cases 353 (Prem Singh and others v. Birbal and others);

iii) 1069 (2) Mysore Law Journal 536 (Devaiah v. M.K. Subbaiah (deceased by LRs);

iv) , AIR 1970 Kerala 310 (Thiruvanchan Sankaran v. Kunjipillai Amma Gouri Amma and others);

v) , AIR 1981 KAR 40 (Smt. Parameshwari Bai v. Muthojirao Scindia);

vi) , ILR 2008 KAR 3500 (M. Ethiraj v. Smt. Farida Khanum);

vii) 1980 (1) KLJ 419 (N. Shivanna v. State of Karnataka and Anr.);

viii) 1983 (1) KLJ 303 (Ramakantarao Arshinigi v. Land Tribunal, Raichur & Anr.)."

The case of the plaintiff is that he purchased 50 cents of land in R.S. No. 162 from Mrs. Mercina Correa the mother of defendant No. 1 for total consideration of Rs. 5,00/-. The plaintiff who has been examined as PW.1 has stated so in his evidence. He has produced the sale deed Ex. P1 for having purchased 50 cents of land in R.S. No. 162 of Permude Village of Mangalore taluk from Mrs. Mercina Correa for Rs. 5,00/- now numbered as R.S. No. 162/3. The boundaries of the said 50 cents of land purchased by the plaintiff are clearly spelt out in the schedule to the sale deed. Mrs. Mercina Correa is none other than the mother of defendant No. 1. The plaintiff purchased the schedule property by sale deed dated 17.12.1970. Defendant No. 3 said to have purchased his property adjacent to the schedule property from Mrs. Mercina Correa somewhere in the year 1984 subsequent to the purchase by the plaintiff. Therefore, under any circumstances, the defendants cannot purchase the property already purchased by the plaintiff nor they have right to claim possession over the 50 cents of land i.e., purchased by the plaintiff much earlier to the purchase said to have been made by defendant No. 3. The only ground on which the defendant Nos. 3 and 4 seems to be claiming or trying to encroach upon the schedule property purchased by the plaintiff is that in RTC for the year 1998-99 marked as Ex. P3, the extent of plaintiffs property is shown as 36 cents by the Revenue Authority. Once the registered sale deed is executed for 50 cents of land the ''J'' Form should automatically go to the concerned Village Accountant who in turn required to enter the name of the purchaser to any area as shown in ''J'' Form. There was no business for the Village Accountant to show the extent as 36 cents when the sale deed speaks 50 cents of land. Needless to say that the area shown in the revenue record i.e., RTC is without any basis or for that matter it appears to be mischief played by the Revenue Authority which the plaintiff can ignore. The Sale deed is a document of title. It is not questioned so far by anyone including defendant No. 1. The contents of Ex. P3 are contrary to Sale Deed. Thus, the plaintiff rebutted the presumption under Section 133 of the Karnataka Land Revenue Act. Hence, no reliance can be placed on RTC.

Defendant No. 3 who has been examined as DW.1, has made it clear that he is not claiming any right over the property purchased by the plaintiff, he went on record to depose in his cross-examination that he has got no right whatsoever in the property purchased by the plaintiff, he was never in possession of the property purchased by the plaintiff. If the defendants have got their property adjacent to the schedule property in all fairness they ought to have produced title deed and RTC extract of his property for perusal of the Court. They did not produce any such document for the reasons best known to them. Therefore, the existence of the property of defendant Nos. 3 and 4 adjacent to the schedule property is doubtful. Merely on the basis of wrong entry made in the RTC-Ex. P3 by the Revenue Authority, it is not open for the defendants to say the property purchased by the plaintiff is only 36 cents and accordingly it is entered in the RTC extract, that too when the sale deed makes it very clear that the property purchased by the plaintiff is 50 cents. Without there being any evidence placed on record by the defendants to show the extent of their property, it has to be held that the defendants are trying to encroach upon the property of the plaintiff and cause interference to the plaintiff in the enjoyment of the schedule property. The very fact that the defendants have set up adverse possession itself presupposes that the plaintiff is the owner of the schedule property. Be that as it may, the defendants have utterly failed to establish that they perfected their title by adverse possession. Thus, the evidence placed on record by the plaintiff is sufficient to establish that the plaintiff is the owner of the schedule property measuring 50 cents and the defendants are trying to encroach upon and cause interfere in the peaceful enjoyment of the schedule property by the plaintiff. The decision relied upon by the defendants are of no assistance since defendant No. 3 in his evidence has admitted that they are not claiming any right over the plaintiffs property and that they have no right over the same. Moreover, the possession is with the plaintiff eversince the purchase. Above all, there is no evidence to show that the property of the defendants exists adjacent to plaintiff''s property. When the possession is with the plaintiff, asking for relief of possession does not arise. As such, the Trial Court on proper appreciation of evidence decreed the suit and the First Appellate Court on re-appreciation of evidence confirmed the judgment and decree passed by the Trial Court. On perusal of the entire material placed on record, I do not find any merit in the appeal filed by the appellants/defendant Nos. 3 and 4.

Accordingly, the appeal is dismissed as devoid of merits.

In view of disposal of the main matter, Misc.Cvl. No. 6637/2011 for stay does not survive for consideration. Accordingly, it is disposed of.