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Judgment
A.S. Bopanna, J.—The appellants herein are the plaintiffs in O.S. No. 139/1987. The suit in question was filed seeking for a judgment and decree of declaration and permanent injunction. The trial Court after considering the rival contentions has dismissed the suit by its judgment and decree dated 16.08.1995. The plaintiffs were therefore before the Lower Appellate Court in R.A. No. 61/2001. The Lower Appellate Court on re-appreciation of the materials on record and also considering the application filed seeking for production of additional documents, has come to the conclusion that the Trial Court was justified and as such, dismissed the appeal and affirmed the judgment of the Trial Court by its judgment dated 22.01.2007. Against the concurrent findings and judgments rendered by the Courts below, the plaintiffs are before this Court in this second appeal.
The parties are referred to in the same rank as assigned to them before the Trial Court for the purpose of convenience and clarity.
The learned Counsel for the appellants while assailing the judgments passed by the Courts below would contend that firstly, the Trial Court and the Lower Appellate Court have committed perversity in the manner of appreciation of the evidence which was tendered before the Courts below and as such, had come to its wrong conclusion, that the plaintiffs had not made out a case with regard to the property having fallen to the share of the father of the plaintiffs in the partition effected between the family members. It is attempted to point out that the Trial Court has in fact, not taken note of the change of the revenue entries by way of mutation proceedings which would be conclusive and therefore, the Trial Court as well as the Lower Appellate Court were not justified. It is further contended that the Lower Appellate Court was not justified in dismissing the application filed under Order 41 Rule 27 CPC and in any event, no reasons ere assigned and as such, the said aspects arise for consideration as a substantial questions of law in this appeal.
In the light of the contention urged, a perusal of the papers would indicate that the plaintiffs were before the Trial Court seeking for the relief of declaration and permanent injunction against the defendants in respect of the suit schedule property. Insofar as the relationship between the plaintiffs and the defendants, it is not in dispute, inasmuch as they are cousins being the sons of the brothers. It is in that context, the plaintiffs contended before the Trial Court that the property measuring 1 acre 26 guntas in Sy. No. 49/2p was assigned to the share of the father of the plaintiffs on effecting the partition. The hud-bust was carried out and there were bunds separating the property and as such, in respect of the suit schedule property, the plaintiffs are the absolute owners having succeeded to the same from their father. It is in that context, the contention had been put forth that there is interference by the defendants and the relief was sought.
The defendants however, disputed the said claim and contended that the property was the absolute property of their father. Hanumanthappa and they have succeeded to the same and the theory of partition is disputed by them.
In the light of the said contentions, a perusal of the judgment passed by the Trial Court would indicate that the Trial Court framed five issues for its consideration and answered the same against the plaintiffs based on the evidence which had been tendered before it.
In order to appreciate as to whether the Courts below have committed any perversity in the manner of appreciation of the evidence, a perusal of the judgments would at the outset, no doubt, indicate that the Courts below have referred to each of the aspects relating both to the oral as well as the documentary evidence. In this regard, the Trial Court has made reference to the documents at Exs D8 and D21, which were relied on by the defendents. Ex. D8 and the mahazar conducted and the panchanama of the commissioner indicates that they were not in possession and enjoyment of any portion of Sy. No. 49/2. No doubt, in addition to the evidence of PW-1, a witness, PW-2 was examined. While noticing the evidence of PW-2, the Trial Court has noticed the admission by the said witness stating that the property in question had been purchased by Hanumanthappa, i.e., the father of the defendants. So far as the other oral evidence which was available on record, considering the fact that the case put forth by the plaintiffs was that there was a partition in the family and in the said partition, the suit schedule property had fallen to the share of the father of the plaintiffs, in my view, the evidence of DW-3, Giriyappa, would be relevant, since the said witness is none other than the brother of the father of the plaintiffs and the father of the defendants. The said witness has stated that the property in question was purchased by Hanumanthappa. Even though the learned Counsel for the appellants has contended that the same has not been proved by the defendants, what requires to be noticed is that the witness of the plaintiffs had admitted this aspect and as such, what has been admitted need not be separately proved.
Further, one other aspect of the matter which requires to be noticed is that the plaintiffs have relied on the entries in the revenue records to indicate that pursuant to the partition, the property has come to the share of the father of the plaintiffs. In this regard, reliance is placed on the mutation entry at M.R. No. 106/77-78. On this aspect of the matter, on noticing the said evidence, the Trial Court has also referred to the evidence of the defendants to indicate that even if such entry was effected, the same was without notice to the concerned parties and in this regard, no materials have been placed by the plaintiffs to indicate that such change of revenue entries was made after compliance with due procedure as contemplated under Sections 128 and 129 of the Karnataka Land Revenue Act. Therefore, the Trial Court on analysis of the evidence available before it had come to the conclusion that the plaintiffs had not made out a case. As against the same, when the plaintiffs were before the Lower Appellate Court, it is no doubt, true that the plaintiffs had filed an application under Older 41 Rule 27 CPC. Though reliance has been placed on the judgment in the case of K.R. Mohan Reddy v. M/S. Net Work Inc. reported in AIR 2006 SC 579 by the learned Counsel for the appellants, what is to be noticed is in the instant case, the Lower Appellate Court on considering the application, has thought it fit to reject the same. In any event, the documents sought to be produced along with the said application were the revenue documents and there was already abundant revenue documents available on record which had been analysed by the Courts below and therefore, notwithstanding the said judgment, in the instant case, the rejection of the application has not prejudiced the appellants. That apart, the Lower Appellate Court has also made specific reference to the cross-examination portion of PW-1 and also that of PW-2 and on analysis of the other documentary evidence, has come to the conclusion that the Trial Court has not erred.
One other aspect of the matter which requires to be noticed is that the Lower Appellate Court has also made reference to the document which was marked as Ex.D26, which would clearly indicate that there was a disciplinary enquiry conducted by the Department against the Village Accountant and the said document at Ex.D26 is the copy of the order passed by the Deputy Commissioner. By the said order, it was held that the Village Accountant had committed a mistake in the register by entering the name of Govindappa i.e., the father of the plaintiffs in the revenue records to the extent of 1 acre 26 guntas in Sy. No. 49/2. When such proceedings have been initiated against the Village Accountant, any amount of reliance placed on the revenue documents to indicate that pursuant to the alleged partition, the change has been made in favour of the father of the plaintiffs cannot be accepted and as such, even on that ground, the rejection of the application for additional documents would not lead to any other conclusion and therefore, considering all these aspects of the matter and noticing that both the Courts below have adverted to the evidence in its correct perspective and have arrived at a finding of fact, no substantial question of law for consideration would arise in the present appeal.
Accordingly, the appeal being devoid of merit is disposed of. No order as to costs.