Sri N. Venkateshaiah vs Sri Ganganarasaiah and Others

K.N. Phaneendra, J.—This Regular Second Appeal is preferred against the concurrent findings recorded by the Trial Court in OS No. 279/1995 on the file of the Civil Judge Jr. Dvn. Gubbi and as well by the first Appellate Court in RA No. 93/2006 on the file of the Civil Judge (Sr. Dn.) at Gubbi. The brief facts that emanate from the records are that:

One Sri N. Venkateshaiah, plaintiff before the Trial Court filed a suit for declaration of his title to the suit property and for permanent injunction against defendant Nos. 1 to 6. The plaintiff''s contention is that he has purchased the suit schedule property, which is a part and parcel of land bearing survey No. 53 of Kallipalya, Kasaba Hobli, Gubbi Taluk, measuring 8 guntas of land out of total extent of 16 guntas having specific boundaries towards East and West - remaining land in the same survey number, North - road and South by H.C. Jayarathna''s property. The plaintiff traces his title on the basis of the registered sale deed executed by the 6th defendant in the year 1993 precisely on 29.7.1993. It is also the contention that after purchase of the said land, the katha and RTC have been made out in the name of the plaintiff. As the defendants 1 to 5 have attempted to interfere with the plaintiffs peaceful possession and enjoyment of the suit schedule property, the plaintiff filed the suit for several reliefs before the Trial Court.

The defendants 1 to 5 appeared before the Trial Court and filed their written statement claiming that the suit schedule property is the part and parcel of land measuring 16 guntas of land in the said survey No. 53 which the defendants 1 to 5 have purchased the same from the vendor of the plaintiff i.e. 6th defendant earlier to the plaintiffs purchase of the suit schedule property precisely on 10.6.1991. It is contended that after the purchase they have converted the same as sites. They have also stated that, as the plaintiff is not at all in possession, question of interference with the peaceful possession and enjoyment over the property does not arise. In fact, the defendants 1 to 5 since the date of purchase i.e. from 10.6.1991 have been in peaceful possession and enjoyment of the said property.

On the basis of the aforementioned rival contentions of the parties, the Trial Court framed the following issues:

(1) Whether the plaintiff proves that he is in lawful possession over the schedule property as on the date of suit?

(2) Whether the plaintiff proves that the interference by the defendants into his lawful possession?

(3) Whether the plaintiff is entitled for relief of permanent injunction?

Additional issue:

(1) Whether the plaintiff proves her title to the schedule property?

(4) What order?

The plaintiff examined herself as PW-1, examined a witness as PW-2 and got marked Exhibits P-1 to P-10. On the side of the defendants, the first defendant was examined as DW-1, 6th defendant was examined as DW-2 and Exhibits D-1 to D-7 were got marked. After appreciating both the oral and documentary evidence, the Trial Court came to the conclusion that plaintiff failed to prove his title as well as possession over the suit schedule property, therefore answering issue Nos. 1 to 3 and additional issue No. 1 in the Negative, dismissed the suit of the plaintiff. Aggrieved plaintiff approached the first Appellate Court on the ground that the Trial Court has committed serious error in appreciating both oral and documentary evidence on record. The first Appellate Court after hearing both the parties in detail, framed the following points for consideration:

(1) Whether the appellant/plaintiff has made out grounds that the Trial Court erred in coming to the conclusion that plaintiff is not entitled for the relief of declaration and injunction and thereby findings given are perverse, capricious and as against the principle of law and facts and probabilities of the case?

(2) Whether the appellant has made out good and substantial grounds that the Trial Court has not properly appreciated the oral and documentary evidence, resulted in mis-carriage of justice?

(3) What Order?

After re-evaluating the pleadings and evidence adduced by the parties before the trial court, the first Appellate Court also come to the conclusion that the Trial Court has not committed any error in law or on facts. Therefore, the first Appellate Court also dismissed the appeal. Against the concurrent findings of the above said judgments recorded by the Trial Court and the first Appellate Court, the present Regular Second Appeal is preferred.

Sri Murali, learned counsel appearing on behalf of Sri B. Veerappa for the appellant mainly contends before this court on three points which are enumerated below:

(1) When the sale deed so executed in favour of the defendants 1 to 5 by the 6th defendant on 10.6.1991, he was not the absolute owner of the property because the sale deed executed by the vendor of the 6th defendant was impounded by the competent authority for non payment of proper evaluation fee for the said document. The said document was released only in the year 1992. The sale deed was executed in favour of the plaintiff on 29.7.1993. Therefore, the plaintiffs sale deed is valid and the defendants'' sale deed cannot be construed as a valid one.

(2) Secondly, he has contended that there was no katha in the name of the 6th defendant as on the date of execution of the sale deed in favour of defendants 1 to 5.

(3) Lastly it is contended that the vendor of the defendant Nos. 1 to 5 and as well the plaintiff i.e. the 6th defendant has denied the execution of the sale deed in favour of defendants 1 to 5 and admitted the execution of the sale deed in favour of plaintiff and in fact the 6th defendant also filed a suit against the defendants 1 to 5 for cancellation of the sale deed executed in favour of defendants 1 to 5.

Therefore for all these reasons, the learned counsel contended that there arise substantial questions of law to be framed by this court as the first Appellate Court has not properly appreciated these legal facts in proper perspective.

I have carefully perused the judgments of the Trial Court as well as the first Appellate Court. Each and every contention raised by the learned counsel for the parties before the courts below, have been considered by both the courts. It is seen from the judgments of the Trial Court and the first appellate court, that both the Courts have observed that the plaintiff though has produced Ex. P-1 registered sale deed executed by the 6th defendant in favour of the plaintiff and Exs. P-2 to P-5 - the kandayam paid receipts and Ex. P-6 to P-8 - Tax demand register extracts, Ex. P-9 - Mutation Register Extract and Ex. P-10 - Lay out plan of Kallipalya. These documents came into existence subsequent to the registered sale deed executed by the 6th defendant in favour of defendant Nos. 1 to 5, they are subject to the validity of defendants'' sale deed. The, Trial Court and the first Appellate Court have also observed that though the document i.e. the sale deed executed by the vendor of the 6th defendant in favour of the 6th defendant pertaining to 16 guntas of land in survey No. 53 was impounded but subsequently in the year 1992, it was released in favour of the 6th defendant. Therefore, the courts below have observed that it is the only dispute between the registration authority and the 6th defendant and it no way connects either the vendor of the 6th defendant or the plaintiff. When once the sale deed was released after payment of proper fee, that sale automatically dates back to the date of execution of the sale deed in favour of defendant Nos. 1 to 5 by 6th defendant. In my opinion, the Trial Court and the first Appellate Court have not committed any legal error in construing that defendant No. 6 had title over the schedule property as on the date of execution of the sale deed in favour of defendants 1 to 5.

The second contention is that the katha was not in the name of the 6th defendant. It is well re-cognized principle of law that the entries in the RTC extracts and as well as the katha in the name of the owner of the property is only for the purpose of recovery of land revenue. The mere mentioning of a name in the RTC extract do not confer any title on any person and those documents are not documents of title. The Transfer of Property Act recognizes certain modes of transfer of the property only under which the right vested in a particular person can be divested in favour of another. Therefore, the Trial Court and the first Appellate Court have come to the conclusion that the 6th defendant has acquired a valid title under the document Ex. D-1 so as to transfer the said property in favour of defendant Nos. 1 to 5.

Lastly, it is contended that 6th defendant had entered into the witness box and deposed that she has not executed any sale deed in favour of defendants 1 to 5 pertaining to 16 guntas of land in survey No. 53 which is the part and parcel of the suit schedule property. If such things are allowed, the 6th defendant can go on selling the properties in favour of innumerable number of persons and say that he has not sold the property in favour of earlier purchasers. In fact, in this particular case the 6th defendant is the beneficiary who has taken the consideration from defendant Nos. 1 to 5 at the earliest point of time while executing the sale deed in favour of defendant Nos. 1 to 5, he is the person who has to inform the plaintiff with regard to the earlier sale deed but it appears he suppressed the same and executed once again the sale deed to an extent of 8 guntas which is the part and parcel of the 16 guntas of land, for which the defendants 1 to 5 are the owners. The defendant No. 6 having taken consideration amount from plaintiff and defendants 1 to 5 also, he has doubly benefited, enriched himself at the cost of plaintiff and defendants 1 to 5. The 6th defendant comes before the court and says that he has not executed the sale deed in favour of defendant No. 1, cannot be accepted as the same is against the legal and moral obligation of sixth defendant. 6th defendant has admitted in the evidence as observed by the Trial Court that he went to the Sub-Registrar''s office and executed Ex. D-1 in favour of defendants 1 to 5, but his explanation was that defendants 1 to 5 on the guise of taking signature of defendant No. 6 on an agreement of sale, they got the sale deed registered. But all these things are not substantiated by means of any cogent, convincing evidence before the Trial Court and as well as before the first Appellate Court. The plaintiff made the defendant Nos. 1 to 5 to believe that he was the absolute owner of the property sold. On such belief, the defendants 1 to 5 acted upon. Therefore, defendant No. 6 is estopped from contending, deposing any thing contrary to the transaction under Ex. D-1 unless Ex. D1 is cancelled or declared as void by any competent authority or court.

Therefore, I do not find any legal error committed by the Trial Court and the first Appellate Court having concluded that such an evidence by 6th defendant cannot be believed.

The last contention of the learned counsel for the appellant is that after purchase the plaintiff have converted the lands and therefore, they have produced Ex. P-10 Lay out plan of Kallipalya. In this connection on the last date of hearing, the court wanted to see these documents, had directed the learned counsel to produce those documents, but the'' learned counsel has failed to produce those documents before this court. Even considering that the plaintiff produced layout plan Ex. P-10, it cannot be said that he is in possession of the said land because of the reason, the earlier sale deed executed by the defendant No. 6 in favour of defendants 1 to 5 clearly discloses as per the observations of the Trial Court and the first Appellate Court that the possession of 16 guntas of land had been delivered in favour of defendant Nos. 1 to 5 when it is amply established before the Trial Court and the first Appellate Court that the defendants 1 to 5 have been in peaceful possession and enjoyment of the entire 16 guntas of land in survey No. 53, there is no question of plaintiff entering into the possession of the land to the extent of 8 guntas out of 16 guntas on the basis of the subsequent sale deed alleged to have been executed by defendant No. 6. The Trial Court and the first Appellate Court have also aptly considered the provisions of section 47 of the Transfer of Property Act which says that:

if a person effects a transfer of a property in accordance with law, he cannot thereafter deal with the property already transferred by him. If a person has effected a transfer of property he cannot thereafter deal with the same property ignoring the rights already created by the earlier transfer effected by him.

Therefore, in view of the above said provisions both the courts below have concluded that the 6th defendant had no right, title, interest or possession over 8 guntas of land which was alleged to have been sold in favour of the plaintiff as the same is part and parcel of 16 guntas of land sold in favour of defendant Nos. 1 to 5 under Ex. D-1.

Now, coming to Section 100 of CPC, it contemplates that, the High Court can only entertain Regular Second Appeal where substantial question of law arises. If the concurrent findings on facts rendered by the Trial Court as well as the first Appellate Court, such findings cannot be interfered with in the second appeal without formulating any substantial question of law. Even considering that the Trial Court and the first Appellate Court while appreciating oral and documentary evidence, commit any error but not amounting to error under law but only error in appreciating the facts even under such circumstances also, Section 100 cannot be invoked by the High Court. It is worth to note here a decision of the Hon''ble Supreme Court in the case of Madhavan Nair v. Bhaskar Pillai reported in (2005) 10 SCC 553, wherein the Supreme Court has observed thus:

the High Court was not justified in interfering with the concurrent findings of fact. It is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High court to upset the same.

The plaintiff has not proved his title and possession over the suit schedule property. Such a finding of fact cannot be interfered with. Therefore, the Regular Second Appeal deserves to be dismissed at the threshold and therefore, the appeal is not admitted and the same is liable to be dismissed.

Accordingly, the Regular Second Appeal is dismissed at the stage of admission itself.