Shivalinge Gowda vs Puttaswamy Gowda

B. Veerappa, J.—This is an unsuccessful plaintiff''s regular second appeal against the judgment and decree dated 12-3-2013 made in R.A. No. 76 of 2012 on the file of Senior Civil Judge and Judicial Magistrate First Class, Channapaltana, Ramanagar District, confirming the judgment and decree dated 12-1-2011 made in O.S. No. 98 of 2007 on the file of Additional Civil Judge (Junior Division), Channapatna, dismissing the suit for declaration and permanent injunction.

The appellant, who is the plaintiff before the Trial Court, had filed the suit for declaration and permanent injunction in respect of suit schedule property contending that the propositus had six sons and three of his sons partitioned 15 years back and three other including the plaintiff are continuing in the joint family enjoying the properties together and 31 guntas in Sy. No. 134/1 of Sunnaghatta Village, was in the name of defendant out of joint family income vide sale deed dated 2-8-1989, but it belongs to the joint family and the said 31 guntas was partitioned in unregistered panchayath parikath in the presence of witnesses and the plaintiff having right to an extent of 15� guntas in the suit schedule property and the defendant is also having half snare in the said property ana they are enjoying the same separately since 8-8-2001. It is further contended that as the defendant is trying to alienate 31 guntas including the share of the plaintiff by using the entries in the R.T.C., hence, the plaintiff was constrained to file the suit.

The defendant has filed the written statement, inter alia, denying the plaint averments but admitted the relationship of the parties. It is averred that 15 years back there was a partition in the family of the plaintiff and defendant and all are in possession and enjoyment of their respective shares and there is a severance of joint family status. The panchayath parikath dated 8-8-2001 is said to be a concocted one. It is also stated that the sale deed dated 2-8-1989 is subsequent to the partition and the defendant has purchased the suit property, which is his absolute property and got it converted for non-agricultural purpose and plaintiff has no right over the suit schedule property. It was also contended that originally suit was filed for bare injunction, but later by way of amendment it was amended seeking the declaration of title. The defendant in the additional written statement has denied the title of the plaintiff over the suit schedule property.

On the basis of the aforesaid pleadings, the Trial Court framed the following issues and additional issue:

Whether plaintiff proves his possession and enjoyment over the suit schedule property as on the date of suit?

Whether the plaintiff proves the interference of defendant with his possession and enjoyment over the suit property as stated at para 3 of the plaint?

Whether plaintiff is entitled for suit reliefs?

What order or decree?

Additional Issue No. 1:

Whether the plaintiff proves that he is the absolute owner of suit property?

In order to substantiate his case, plaintiff examined himself as P.W.1 and three other witnesses as P.Ws. 2 to 4 and got marked the documents as per Exs. P.1 to P. 6 and the defendant has examined himself as D.W. 1 and the witnesses as D.Ws. 2 to 4 and got marked the documents as per Exs. D.1 to D. 15.

After considering the entire materials on record, the Trial Court recorded the finding that the plaintiff failed to prove his possession and enjoyment over the suit schedule property as on the date of suit and also failed to prove interference of defendant with his possession and enjoyment over the suit schedule property. Accordingly, the suit came to be dismissed holding that the plaintiff has not proved his title and possession over the suit schedule property as on the date of the suit.

Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed R.A. No. 76 of 2012 on the file of Senior Civil Judge and Judicial Magistrate First Class, Channapattana, Ramanagar District. The lower Appellate Court concurring with the findings of fact recorded by the Trial Court, dismissed the appeal by the impugned judgment and decree dated 12-3-2013.

The concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring this regular second appeal as a last ditch attempt.

I have heard the learned Counsel for the parties to the lis.

Sri Anil Kumar, learned Counsel for the appellant, has contended that both the courts below erred in dismissing the suit for declaration and permanent injunction without the material documents. He has also contended that the Trial Court committed an error in holding that the plaintiff has not proved the title over the suit schedule property ignoring the evidence of P.Ws. 1 to 4 and the material documents-Exs. P.1 to P. 6. The lower Appellate Court though recorded a finding that both the name of the plaintiff and defendant as shown as joint possession, ought not to have dismissed the appeal. Therefore, he sought to set aside the judgment and decree passed by the Courts below.

Per contra, Sri A.S. Mahesha, learned Counsel for the respondent, has sought to justify the impugned judgment and decree passed by the Courts below and contended that the plaintiff has not produced any material documents to prove that he is in exclusive possession over the suit schedule property i.e., 15� guntas more fully described in the schedule. In the absence both the Courts below erred declaration and of the same, both the Courts below were right in dismissing the suit of the plaintiff. Therefore, he prays for dismissal or the appeal.

I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire records.

The plaintiff filed the suit for permanent injunction mainly contending that there was a partition about 15 years back. In the partition, 15� guntas of land fallen to his share and is entitled for declaration and permanent injunction. The said fact has been disputed by the defendant by filing the written statement and contended that after the partition took place, the plaintiff and defendant are in possession and enjoyment of their respective shares. The sale deed dated 2-8-1989 is subsequent to the partition and the defendant has purchased the suit property and got it converted for non-agricultural purpose and the plaintiff has no right over the same.

The Trial Court considering the entire materials on record, recorded a finding of fact that on perusal of D.1-the sale deed, it is noticed that there is no recital that the said property was purchased for and on behalf of the joint family. P.W.1 in his cross-examination on 2-6-2010 has admitted that he has not raised any objection or challenged the mutation order in respect of the property purchased under D.1. The said sale deed is dated 2-8-1989 and the Ex. P.1 parikath is dated 8-8-2001. But the khata in respect of the suit property still stands in the name of the defendant as per Ex. P. 2-R.T.C. Hence, it is clear that Ex. P.1 was not produced before the Revenue Authorities soon after the alleged partition. Moreover, it is important to note that Ex. P.1 is unregistered document, where the partition has been effected and therefore, it is nit by Section 17 of the Registration Act, 1908. Moreover, the relevant recital of Ex. D.1 regarding the suit property is as follows: "VERNACULAR MATTER". If at all the recital of Ex. P.1 is considered, then the 31 guntas of land is jointly allotted to the share of the plaintiff and defendant. But, according to the plaint averments out of the said 31 guntas of land eastern portion measuring 15� guntas is allotted to his share. But, the said fact is not mentioned in Ex. P.1. In the relief column of the plaint, the permanent injunction is claimed as follows: "to restrain the defendant ana his agents, servants, attorney or anybody claiming under him from interfere with the peaceful possession and enjoyment of the suit schedule property towards eastern portion of this plaintiff as per the panchayath parikath dated 8-8-2001 by granting permanent injunction against the defendants." But in the plaint schedule the eastern boundary is mentioned as remaining property of vendor S.G. Shivalingaiah and western boundary is mentioned as Government Katte and it is mentioned that out of 31 guntas half portion (0-15� guntas) is suit property. Therefore, it is to be noted that whether the 15� guntas is in the eastern portion or the western portion is not mentioned in the plaint schedule and the boundaries to the entire 31 guntas is mentioned. Hence, the description of the suit schedule property is not specific, so as to identify the very portion alleged to be allotted to the plaintiff under Ex. P.1 and the said document it is in dispute. P.Ws. 1 to 4 have been examined to prove the said alleged partition, but out of the said witnesses-P.W. 3 is said to be the scribe and P.W. 2 is said to be one of the witness to the said Ex. P. 1. Out of the said witnesses-P.W. 2 as admitted as follows: "VERNACULAR MATTER". The Trial Court further recorded that there is variance between the pleadings and evidence of the plaintiff. Moreover, P.W. 2 has admitted in his cross-examination as follows: "VERNACULAR MATTER". If the said evidence is considered, the very joint family" will not be in existence as on the date of Ex. D.1-sale deed ana therefore, the purchase cannot be construed to be on behalf of the joint family. Therefore, the plaintiff cannot have any right over the said property covered by Ex. D.1 and it would be the individual property of the defendant. Therefore, plaintiff has failed to prove his title over 15� guntas out of the suit property as alleged. Even the recitals of D.1-sale deed, disclose that possession was handed over to the defendant by his vendor. Even the recitals of Ex. P. 2-RTC, discloses that the suit property is standing in the name of the defendant as per the sale deed-Ex. D. 1. Hence, presumption is drawn on the basis of recitals of revenue records as per the provisions of Section 133 of the Karnataka Land Revenue Act, 1964. Accordingly, the Trial Court dismissed the suit holding that the plaintiff has not produced any material to prove his title and possession over the suit property.

The lower Appellate Court after re-appreciating the materials on record as contemplated under Order 41, Rule 31 of Civil Procedure Code, 1908, concurring with the findings of fact recorded by the Trial Court held that on perusal of the entire materials on record, it is clear that the appellant has not produced single document to show that he has been in possession of the said 15� guntas of land in suit schedule property on the eastern side. The lower Appellate Court has also observed that in view of the admission on the part of the witness of the appellant, it can be presumed that the appellant has tailed to prove his exclusive possession over the eastern side 15''A guntas of land in suit schedule property as contended by him. When the appellant has failed to prove his absolute title over the eastern portion 15� guntas in suit schedule property, he is not entitled for declaration of title over the same. Since the appellant has failed to prove his exclusive possession over the eastern side 15� guntas of land and has failed to prove the interference, he is not entitled for the relief sought for. It is well-established principle of law that when the appellant is not entitled for main relief of declaration of title, he is also not entitled for ancillary relief of permanent injunction. Accordingly, dismissed the appeal.

Both the Courts below concurrently held that the appellant has failed i to prove his exclusive possession and enjoyment over the suit schedule property, hence, he is not entitled for the relief of declaration and permanent injunction and held that the defendant is the owner of the suit schedule property by virtue of the registered sale deed dated 2-8-1989 under D.1, admittedly the entries made in pursuance of the same is not at all questioned by the plaintiff. Both the Courts below concurrently held that plaintiff failed to prove his possession and enjoyment as on the date of the suit is based on the sound legal evidence on record. No substantial question of law is involved in the present appeal.

Accordingly, the appeal is dismissed at the stage of admission.