Sri T.N. Ashwathnarayanareddy vs Sri Yuvaraja Patil

N. Ananda

This appeal was admitted for consideration of following substantial questions of law:-

1) Whether the judgment and decree of both the courts below are perverse in misreading the material evidence on record?

2) Whether the first appellate court is erroneous in not considering the additional documents sought to be produced by the appellant?

I have heard Sri G. Balakrishna Shastry, learned counsel for appellant-plaintiff and Sri Somanagouda Patil, learned counsel for respondent-defendant.

The plaintiff had filed the instant suit for declaration of title and injunction in respect of suit schedule property viz. land bearing survey No. 70/6, in an extent of 1 acre 74 cents, of Chowtakuntahalli, Kasaba Hobli, Gudibanda Taluk, inter alia contending that defendant has no manner of right, title or interest on suit schedule property. The vendor of defendant namely T.N. Subba Reddy (elder brother of plaintiff) had no transferable title to suit schedule property. The suit schedule property had fallen to share of plaintiff under a registered partition deed dated 26.05.1974.

Before the trial court, plaintiff had not produced original partition deed dated 26.05.1974, on the other hand, he had produced certified copy of original partition deed dated 26.05.1974 along with ''C schedule. The remaining part of document viz. ''A'' & ''B'' schedules which contain description of properties which had fallen to shares of father and elder brother of plaintiff, was not produced by plaintiff.

The learned trial Judge has held that defendant had purchased land bearing survey No. 70/6A in an extent of 2 acres 31 guntas from the elder brother of plaintiff, therefore, plaintiff cannot have any grievance, more particularly when partition deed relied upon by plaintiff would show that what was allotted to the share of plaintiff was survey No. 70/6. The learned trial judge dismissed the suit. Thereafter, plaintiff was before I-appellate court.

During pendency of appeal, plaintiff filed an application under Order 41 Rule 27 CPC, for production of certain documents along with ''C'' schedule of registered partition deed dated 26.05.1974. The learned Judge of I-appellate court has held that plaintiff has not produced entire document to prove that plaintiff is the owner of suit schedule property. In other words, plaintiff has not produced body of document and ''A'' and ''B'' schedules, which are part and parcel of registered partition deed dated 26.05.1974. The learned Judge of I-appellate court accepting the ''C'' schedule (part of registered partition deed dated 26.05.1974) has held that plaintiff has; failed to prove that he is the owner of and bearing survey No. 70/6A in an extent of 2 acres 33 guntas and this property had fallen to his share under registered partition deed dated 26.05.1974.

It is not a case where I-appellate court has ignored the document produced by plaintiff. The courts below have appreciated documents relied upon by plaintiff to record a finding that plaintiff has not established right, title or interest in respect of land bearing Sy. No. 70/6A. The plaintiff has failed to prove that his elder brother namely T.N. Subbareddy had no transferable right over land bearing survey No. 70/6A in an extent of 2 acres 31 guntas, which he had transferred in favour of defendant under registered sale deed dated 28.07.1994.

There are concurrent findings of courts below that land bearing survey No. 70/6A, in an extent of 2 acres 31 guntas was allotted to share of elder brother of plaintiff namely T.N. Subbareddy, who had sold the said property in favour of defendant. There are concurrent findings by the courts below that plaintiff has failed to prove that property bearing survey No. 70/6A in an extent of 2 acres 31 guntas had fallen to his share.

The learned counsel for plaintiff would submit that interest of plaintiff in relation to property bearing survey No. 70/6 in an extent of 1 acre 74 cents may be protected by this court.

The courts below have held that what has been transferred in favour of defendant is land bearing survey No. 70/6A in an extent of 2 acres 31 guntas. Therefore, plaintiff cannot have any apprehension in relation to land bearing survey No. 70/6.

In view of the above discussion, I hold that courts below have not misread the documents and I-appellate court has not committed any error. The I-appellate court has considered additional documents produced by plaintiff. In view of the aforestated findings, the substantial questions of law are answered in negative and the appeal is dismissed.