Sidgandi Eranna and Others vs Korishetty Budeppa

K.N. Phaneendra, J.—This appeal is preferred by the aggrieved plaintiff in O.S. No. 130/2003 on the file of Addl. Civil Judge (Sr. Dn) & JMFC Raichur, wherein, his suit came to be dismissed. In turn he preferred an appeal before the Prl. District & Sessions Judge, Raichur, in R.A. No. 117/2009. He also failed to succeed in the said appeal and said appeal came to be dismissed vide judgment dated : 15-09-2014.

I have heard the arguments of the learned counsel for the appellant. Perused the records. I have also carefully perused the judgments of the trial Court as well as of the First Appellate Court. On overall re-looking into the materials on record, I do not find any substantial question of law to be framed in this case so as to admit the appeal. Hence the appeal is liable to be dismissed at the admission stage itself for the following reasons.

The plaintiff (appellant) filed a suit against defendant Nos. 1 and 2, seeking declaration of his title and for permanent injunction against the defendants on the ground that he acquired suit schedule property by virtue of an oral partition taken place between himself and his brother defendant No. 1. There is no dispute that plaintiff and defendant No. 1 and one Yelubhaviyappa are the children of one Appanna s/o Eranna of Gabbur village in Devadurga taluk of Raichur District. It is alleged by the plaintiff that after the death of said Appanna, family properties were mutated in the name of defendant No. 1. Subsequently, in the year 1968, they divided the property among themselves and in that oral partition, sy. No. 66 fallen to the share of the plaintiff measuring 19-acres 18-guntas and sy. No. 65 measuring 14-acres 38-guntas fallen to the share of the 1st defendant.

It is contended that defendant No. 1 has sold sy. No. 66 which was allotted to the plaintiff in favour of the defendant No. 2 under regd. Sale deed dated : 23-8-1984. Khata and mutation have been changed over to the name of the 2nd defendant. The RTC records were wrongly continued in the name of the plaintiff pertaining to sy. No. 65 though he is the owner of sy. No. 66. Whereas sy. No. 66 was wrongly mutated in the name of the 1st defendant and thereafter in the name of 2nd defendant but the boundaries of sy. No. 66 is shown to be that of sy. No. 65 while executing the sale deed by the defendant No. 1 in favour of defendant No. 2. Therefore, defendant No. 2 started interfering with the possession and enjoyment of the plaintiff pertaining to sy. No. 66, which prompted the plaintiff to file the suit.

The defendant Nos. 1 and 2, though at the initial stages, did not appear but subsequently after getting ex-parte order set-aside, they contested the suit by filing written statement. Apart from denying the allegations made in the plaint, the defendant No. 1 has categorically narrated that the defendant No. 1 was allotted with sy. No. 66 in the partition measuring 19-acres 18-guntas and in fact he sold the said land in favour of 2nd defendant. Right from the year 1968, the defendant No. 1 had been in possession and enjoyment of sy. No. 66 and in the year 1984 he sold the said land in favour of 2nd defendant and thereafter the mutation was accepted in the name of 2nd defendant and that from the date of purchase, 2nd defendant has been in possession and enjoyment of the suit property. Therefore, there is no question of the defendant No. 2 or defendant No. 1 interfering with the possession of the plaintiff arises for consideration.

The defendant No. 2 has also taken up contention that even the plaintiff is able to prove that he is the absolute owner of the suit schedule property in sy. No. 66, as the defendant No. 2 has exercised his right of ownership and possession over the sy. No. 66, he has perfected his right by means of adverse possession.

On the basis of above pleadings of the parties, the trial Court has framed the following issues:

ISSUES

"1. Whether the plaintiff proves that, he is the owner and possessor of suit land sy. No. 66 of Gabbur village?

Whether the plaintiff proves that, the interference by the defendant No. 2 to his possession?

Whether the defendant No. 2 proves that, the plaintiff got recited false boundaries to impugned suit sale deed No. 346/84-85?

Whether the defendant No. 2 proves that, he has purchased the suit land bearing sy. No. 66 of Gabbur village impugned sale deed No. 346/84-85?

Whether the defendant No. 2 proves that, the suit sale deed refers to suit property?

Whether the defendant No. 2 proves that, he has perfected his title over suit property by adverse possession as contended in para No. 9 of W.S.?

Whether the plaintiff is entitle to the decree?

What order or decree?"

In order to prove the case of the plaintiff, he has examined himself as P.W. 1 and examined 4-more witnesses on his side P.Ws. 2 to 5 and got marked Ex. P-1 to Ex. P-28. Defendant No. 2 also examined himself as D.W. 1 and also examined four more witnesses as D.Ws. 2 to 5 and got marked Ex. D-1 to Ex. D-17 and closed his case.

After appreciating the oral and documentary evidence on record, the trial Court has answered Issue Nos. 1, 2, 6 and 7 in the Negative and Issue Nos. 3, 4 and 5 in the Affirmative and concluded that the plaintiff has not proved his case and consequently dismissed the suit. Aggrieved by the said judgment and decree, the plaintiff has preferred the appeal before the Principal District & Sessions Judge Court Raichur. The First Appellate Court after going through the memorandum of appeal and also the pleadings of the parties, formulated the following points for consideration:--

"1) Whether the plaintiff has proved that he is the absolute owner in possession of the suit schedule land as on the date of suit?

2) Whether the sale deed dated : 23.08.1984 executed by defendant No. 1 in favour of father of the defendant No. 2 is liable to be declared as not binding on the plaintiff?

3) Whether the impugned judgment and decree is illegal, perverse and capricious and not based on record and as such, same is liable to be set-aside?

4) What order?"

The First Appellate Court after hearing the parties and after re-appreciating the documentary and oral evidence and after re-evaluating the same, has answered Point Nos. 1 to 3 in the Negative and consequently dismissed the appeal filed by the plaintiff and confirmed the judgment and decree passed by the trial Court.

On perusal of the above said analysis of the evidence by the trial Court and the first appellate Court, this Court has to consider whether there arises any substantial question of law to be framed. Admittedly, neither the trial Court nor the first appellate Court framed any legal issues to be decided. The entire issues framed by the trial Court and the points for consideration framed by the first appellate Court discloses that the parties have taken up the task of proving their case by means of oral and documentary evidence and particularly by means of proving factual aspects. No legal grounds have also been taken by the plaintiff or the defendant either before the trial Court or before the first appellate Court. It goes without saying that even the appreciation of the evidence oral and documentary either by the trial Court or by the first appellate Court is perfunctory in nature and the trial Court and the first appellate Court, have mis-interpreted the evidence and caused mis-carriage of justice, then only the second appellate Court can re-appreciate the materials on record and give its own findings. However, such scope is very limited so far as the second appellate Court is concerned. Normally where the trial Court and the first appellate Court have concluded the case only on the basis of appreciating the factual aspects, the second appellate Court should not interfere with such concurrent findings of the trial Court and the first appellate Court. Bearing in mind the above said principle, let me have a cursory look of the evidence and as well as the appreciation of evidence by the trial Court and the first appellate Court.

It is the main contention of the plaintiff that he acquired the property bearing sy. No. 66 by way of oral partition. It appears there is no dispute between parties that there was a partition between themselves. However, plaintiff say that he acquired suit property bearing sy. No. 66 but the defendant No. 1 also claims that he acquired sy. No. 66 to his share and sy. No. 65 was allotted of the plaintiff. The main problem in the case is that, both the parties claim the properties under oral partition. Plaintiff in fact has confused himself with regard to the partition taken place, whether it was oral or documentary. At one breath, he says before the Court that it was oral partition, in another breath, he says that there was a documentation evidencing the partition between the parties. Though he is confused himself, he has not placed any conclusive material before the trial Court or the first appellate Court to accept that sy. No. 66 was specifically allotted to the plaintiff. Though the plaintiff has examined himself as P.W. 1 and other two witnesses, but, P.Ws. 2 and 3 never submitted themselves for cross examination. Therefore, their examination in chief cannot be looked into. P.Ws. 4 and 5 though stated that there was oral partition and sy. No. 66 was allotted to the plaintiff, but during the course of cross examination, they also created a serious doubt in the mind of the Court regarding the said partition by saying that, whatever the property allotted to defendant No. 1 in the oral partition, the same has been sold in favour of defendant No. 2. If at all sy. No. 65 was allotted to defendant No. 1 how, he could alienate sy. No. 66 in favour of defendant No. 2 has not been explained by the plaintiff or his witnesses. Therefore, the anomaly created in the evidence of P.W. 1 and P.Ws. 4 and 5 has not been clarified by the plaintiff in order to make the courts to believe with all certainty that sy. No. 66 was allotted in favour of the plaintiff.

The documents produced before the Court also created an anomaly as to the boundaries and also extent of the properties. These documents were also appreciated by the trial Court and as well as by the first appellate Court. The documents at Ex. P-24 to Ex. P-28 admittedly came into existence after filing of the suit. Therefore, the trial Court has rightly dis-carded those documents for consideration. Ex. P-1 Khasra Pahani, Ex. P-2 to 9 RTC extracts, Ex. P-10 to Ex. P-18 khasra pahanis and though all discloses that the property sy. No. 66 has been in the name of defendant No. 1. The other properties Ex. P-20, 21 are the certified copies of maps and Ex. P-22 is the certified copy of panchanama also do not in any manner goes to establish that sy. No. 66 was actually allotted to the plaintiff in the oral partition. The documents produced before the Court by the defendants i.e. to say Ex. D-1 which is the sale deed, in which defendant No. 1 has sold the property in favour of defendant No. 2. There is no dispute between defendant Nos. 1 and 2 so far as this aspect is concerned. Ex. D-2 and Ex. D-3 are the documents which go to show that the property has been mutated in the name of defendant No. 2. Ex. D-4 to Ex. D-13 are the tax paid receipts, Ex. D-15 is the mutation extract, Ex. D-16 also RTC extract, Ex. D-17 also mutation extract. These documents clearly establish that the property bearing sy. No. 66 was in fact mutated in the name of defendant No. 2 after the sale transaction. The documents also discloses that prior to the execution of the sale deed, sy. No. 66 was standing in the name of defendant No. 1.

The plaintiff has taken up contention that while executing the sale deed Ex. D-1 by defendant No. 1 in favour of defendant No. 2 there was a discrepancy in the boundaries. Actually, the boundaries of sy. No. 65 has been mentioned to sy. No. 66 while executing such sale deed. Therefore, it goes without saying that actually sy. No. 65 was fallen to the share of defendant No. 1 and that he sold the same with specific boundaries in favour of defendant No. 2. Therefore, in all probabilities, the defendant No. 1 must have put the defendant No. 2 into the possession of sy. No. 65 and not sy. No. 66. This particular aspect has also been considered by the trial Court as well as first appellate Court. Both the courts have held that though there is some discrepancy with the mutation extracts prior to the sale deed and after sale deed and the mutation extracts produced by the plaintiff clearly establishes survey number and extent of the property. Merely because some discrepancy is there in the sale deed regarding boundaries, it cannot be said that sy. No. 65 was sold in favour of defendant No. 2. Though in a decision reported in AIR 1975(2) K.L.J. Page 469 relied upon by the plaintiff, whenever there is a dispute with regard to the extent and survey number, then boundaries will prevailing, however, it is to be noted that when no measurement is mentioned nor survey number is available, then only there will be discrepancy with regard measurement and extent arises. But, it is a clear admission on the part of the plaintiff and also defendant No. 1 that sy. No. 66 specifically measures 19-acres 18-guntas and sy. No. 65 measures 14-acres 38-guntas. Therefore, there is absolutely no dispute with regard to survey number and measurement of the said lands. Therefore, it cannot be said that parties have confused with the property and the extent of the properties. Further added to the above, the trial Court and the first appellate Court have on facts, came to the conclusion that the plaintiff in fact came to know about this discrepancy in the year 1984 itself when the mutation was accepted in favour of the defendant No. 2. Even if the plaintiffs case is accepted for moment, that from 1968 he may not be knowing the entries in the revenue records in the name of the first defendant. Nevertheless, in view of his admission, it can be safely said that it was well within his knowledge that the mutation and RTC were accepted in the name of defendant No. 2 in the year 1984 but he did not choose to challenge those entries before the competent authorities but he files a suit in the year 2003 after long lapse of 9-years. There is absolutely no explanation so far as this aspect is concerned.

Looking to the above said factual aspects and the documentary oral evidence placed before the court by the parties, the trial Court and the first appellate Court have in fact properly appreciated the materials on record and came to conclusion that the plaintiff has not established his case by discharging his burden cast upon him by way of proving the issues.

Though the defendant No. 2 has taken up the contention of adverse possession, it is incumbent upon the plaintiff to discharge his burden on the issues framed against him, unless the plaintiff proves his case, no onus can be shifted on the defendant to dis-prove the same, because plaintiff himself has not proved his case to the satisfaction of the Court. Therefore, the question of defendant No. 2 taking the plea of adverse possession in any way come to the help of the plaintiff. Under the above said circumstances, I absolutely find no mistake on the part of the trial Court and the first appellate Court in concluding that the plaintiff has not proved his case. However, both the courts have appreciated the evidence on record and truth was found out on facts and on the basis of such materials on record, no substantial question of law arises. Hence the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:--

"The Regular Second Appeal is dismissed at the admission even without issuing any notice to respondent."