Shree Shree Shivamurthy Murugharajendra Mahaswamigalu vs D.M. Channaveeraiah and Others

A.S. Bopanna, J.

The first respondent herein had filed a suit in O.S. No. 391/2000 seeking for declaration that he is the absolute owner in respect of the suit schedule property. Consequent thereto, the judgment and decree of permanent injunction was sought.

The appellant herein is the fourth defendant in the said suit. The trial Court on considering the rival contentions has decreed the suit. The fourth defendant claiming to be aggrieved by the same was before Lower Appellate Court in R.A. No. 18/2011 (Old No. 157/2004). The Lower Appellate Court by its judgment dated 15.12.2011 has dismissed the appeal. Against such concurrent findings and judgments rendered by the Courts below, the appellant is before this Court in this second appeal filed under Section 100 of the Civil Procedure Code.

The facts in brief is that the plaintiff had claimed that he is the absolute owner in possession of the suit schedule property bearing Khatha No. 648/2 of Tyavangi Village measuring 405 Ft. East to West and 218 Ft. North to South. The suit property was the part and parcel of the land bearing Sy. No. 333 of Tyavangi Village measuring 4 acres 24 guntas. The plaintiff claims that he had purchased the said property under a sale deed dated 22.06.1960 which was registered on 29.08.1960 from Sreeman Maharaja Niranjana Jagadguru Jayavibhava Murugharajendra Mahaswamy. The plaintiff is stated to have come in possession of the property immediately thereafter and the revenue entries were also secured in his name. Reference is made to the earlier proceedings between the plaintiff and the fourth defendant. However, for the purpose of filing the suit, reference is made to the order passed in W.P. No. 1383/1994, which was disposed of in a manner permitting the suit when the plaintiff had assailed the order passed in the revenue proceedings as the revenue entries had been altered. The fourth defendant had disputed the claim putforth by the plaintiff. The manner of purchase as made is disputed and it is contended that the plaintiff has no manner of right in respect of the suit schedule property.

The trial Court on considering the rival contentions had framed four issues for its consideration. The plaintiff examined himself as PW.1 and relied upon the documents at Ex. P1 to P23. The defendants did not choose to examine any witness but, the documents relied upon were marked as Ex. D1 to D7. In the light of the evidence tendered by the plaintiff and the documents that were available on record, the trial Court has held the issue Nos. 1 to 3 in the affirmative and had decreed the suit. The Lower Appellate Court while re-appreciating the said evidence has arrived at similar conclusion as that of the trial Court and has dismissed the appeal.

Learned counsel for the appellant while assailing the judgments of the Courts below would contend that the Courts below have concurrently erred in their conclusion. It is his case that the Courts below could not have taken into consideration the leave granted by this Court to file a suit in W.P. No. 1383/1994 as the starting point as the challenge made by the fourth defendant to the title as claimed by the plaintiff so as to consider the computation of limitation for the purpose of filing the suit. He contends that even earlier to the same, the fourth defendant had challenged the title of the plaintiff and therefore, the said aspect ought to have been taken into consideration by the Courts below while computing limitation. If that is done, the suit is hopelessly bared by limitation and the suit is liable to be dismissed.

Learned counsel for the appellant would also contend that the reliance on the documents placed by the plaintiff more particularly, the document at Ex. P22 namely, the sale deed dated 22.06.1960 could not have been taken into consideration by the trial Court when the power of Attorney based on which the said document was executed was not produced before the Courts below. It is therefore, contended that in a circumstance where the plaintiff was before the trial Court seeking for declaration of his right in respect of the suit schedule property, the case as made by the plaintiff should have been taken into consideration and only thereafter, a declaration could have been granted and to that extent, the suit instituted by the fourth defendant at that instance being only for injunction could not militate against the fourth defendant. Therefore, on all these aspects when the Courts below have erred, the same would raise a substantial question of law for consideration.

Learned counsel for the plaintiff/first respondent herein would however seek to sustain the judgments passed by the Courts below. Reference is made to the issues framed and the evidence that was led and the manner in which the evidence has been considered by the Courts below to arrive at a concurrent finding based on the materials available on record. When such judgments and finding of fact has been recorded by both the Courts below, no substantial question of law would arise for consideration in the limited jurisdiction that is available to this Court under Section 100 of Civil Procedure Code is the contention.

In the light of the rival contentions, I have perused the appeal papers more particularly, judgments rendered by the Courts below. The pivotal document based on which the plaintiff had claimed right in respect of the property is the sale deed dated 22.06.1960 which was marked as Ex. P2. Though the learned counsel for the appellant has contended that the said document could not have been relied upon for not producing the power of Attorney based on which the said document is executed, it is too late in the day to raise such contention, firstly, for the reason that immediately after the sale deed was executed, the mutation based on the said document has been made as per Ex-P23 and the plaintiff has continued in possession of the property.

Further, what is also necessary to be noticed is that the fourth defendant himself had instituted a suit in O.S. No. 115/1991 and the judgment passed therein is produced as Ex-P19. It is no doubt true, as contended by the learned counsel for the appellant, the said suit was for injunction. Even if that be so, while defending the suit, the plaintiff herein who was the defendant therein had relied upon the document dated 22.06.1960 to justify his claim to be in possession of the said property. Despite the same, no effort had been made at that stage by the fourth defendant to either seek that the said sale deed is declared as void or as not binding on the fourth defendant.

Furthermore, what is also necessary to be noticed is that despite the same, there was certain efforts with regard to change of revenue entries to the detriment of the plaintiff. In the natural course, while assailing such order passed by the statutory authorities, the plaintiff was before this Court in W.P. No. 1383/1994. Though the petition was disposed of, no doubt an observation was made with regard to the petition having abated earlier and leave had been granted to the plaintiff to file a suit to have his right declared in accordance with law. Therefore, in such a situation, merely because at an earlier instance the fourth defendant had filed a suit for injunction and the judgment therein had attained finality, that in itself cannot be construed as a point where the plaintiff should have instituted a suit seeking for declaration. When the revenue entries were changed and this Court had also noticed at that stage that the plaintiff should establish his right by filing an appropriate suit and when at that stage there was a real challenge to the title of the plaintiff, the plaintiff had chosen to file the suit. Therefore, the Courts below keeping in view the said sequence based on which the suit had been instituted was justified in their conclusion.

Further, what is necessary to be noticed is that the defendants have not chosen to tender any evidence before the Courts below except, relying on the revenue documents which in any event cannot conclude the issue with regard to validity of the sale deed based on which the plaintiff had claimed title. Therefore, in a circumstance where both the Courts had referred to the evidence available on record in detail and thereafter a conclusion was reached based on the finding of fact recorded with regard to the manner in which the plaintiff purchased the property and thereafter, remained in possession thereof, in my opinion, no substantial question of law would arise for consideration in this appeal.

Accordingly, the appeal being devoid of merit stands disposed of.