V. Lakshminarayana vs Sharadamma

Anand Byrareddy, J.—Heard the learned counsel for the appellant. The respondents are served and remain unrepresented.

The appellant was the plaintiff before the trial court and the suit was one for declaration that the plaintiff was the absolute owner of the suit property bearing Survey No. 86/1, measuring 3 guntas of Yelahanka and for injunction restraining the defendant No. 3 from interfering with the possession and enjoyment of the suit property.

It was the plaintiffs case that originally, the land bearing Survey No. 86/1 measured 1 acre 32 guntas and 2 guntas of kharab and it belonged to defendants 1 and 2. Of this, a portion of the land was acquired for the purpose of National Highway-7 and defendants 1 and 2 had sold the remaining land measuring 33 guntas, running east to west along the National Highway in favour of the plaintiff under a registered sale deed dated 22.4.1987. Thereafter, the revenue records were also transferred in the name of the plaintiff.

It then transpires that the National Highways Authority of India had acquired a further extent of 11 guntas out of 33 guntas in the said land bearing Survey No. 86/1 and an award was passed in favour of the plaintiff. The plaintiff is said to have received the award amount and also sought enhancement of the compensation before the competent court. The plaintiff had then sold the remaining extent of land measuring 19 guntas on the western side of the National Highway-7 to one Shridharan and therefore, 3 guntas of land has remained with the plaintiff on the western side of the National Highway. The plaintiff therefore claims as the absolute owner of 3 guntas of land, the possession of which was sought to be interfered with by the defendants. It is in that background that a suit came to be filed.

It is also stated that the defendants 1 and 2 are said to have filed a civil suit against the plaintiff in O.S. No. 6519/2003 for injunction in respect of the very land bearing Survey No. 86/1. However, the said suit is said to have been dismissed for default as on 18.7.2007.

The defendants had entered appearance and inspite of opportunity having been granted, they had not chosen to file pleadings or tender evidence. The plaintiff examined himself as P.W. 1 and got marked 13 documents. The Court below had framed the following points for its consideration:

"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property bearing land in Survey No. 86/1 measuring 3 guntas situated at Yelahanka as claimed?

Whether the plaintiff proves his possession over the suit schedule property?

Whether the plaintiff is entitled for the relief sought for?"

The court below has held all the points in the negative. It is that which is under challenge in the present appeal.

At the outset, the learned Counsel for the appellant has also filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity) seeking to produce additional documents namely, a sale deed dated 16.2.2004 executed in favour of Shridharan in respect of 19 guntas of land, which was admittedly sold out of the land belonging to the plaintiff. This is in the wake of the trial court having formed an opinion that the plaintiff had not made out a case, as the several extents of land sold by the plaintiff were not established by production of appropriate documents. The sale deed is now sought to be produced along with an application.

Be that as it may, the court below has, while considering the case of the plaintiff, expressed with reference to the several documents produced by the plaintiff that the plaintiff was left with only 2 guntas and not 3 guntas. However, the learned Counsel for the appellant would point out that the court has arrived at a wrong conclusion with reference to Exhibit P.2, which was a document produced to establish that out of total extent of 1 acre 32 guntas, 39 guntas had been acquired by the National Highways Authority of India and possibly, the remaining 33 guntas was sold to the appellant. This however has been misconstrued and on a wrong calculation, the court has held that the plaintiff could have retained only 2 guntas, when actually it was 3 guntas.

Further, the court below has opined that the sale deed executed in favour of one Shridharan had not been produced and it is after the sale in favour of Shridharan that the appellant claimed to have been left with 3 guntas of land and the non-production of the sale deed has been held as being fatal to the suit and accordingly, the court on these primary grounds came to the conclusion that the plaintiff has not made out a case.

Incidentally, the plaintiff had produced the revenue records, Exhibit P.1 which indicated that there was an extent of 19 guntas as well as 7 guntas standing in the name of Shridharan in land bearing Survey No. 86/1 and therefore, the court has expressed doubts as to whether or not the plaintiff had retained any land at all. And as there was no explanation forthcoming from the appellant as to the entries in favour of Shridharan, namely, apart from 19 guntas that had been sold to him, there was another extent of 7 guntas of land shown in the very survey number as belonging to Shridharan, the court has expressed serious doubts as to the merits of the claim of the plaintiff and has dismissed the suit.

The learned Counsel would therefore submit that if these were the only doubts that disentitled the plaintiff to the relief prayed for, the additional document now produced along with an application under Order XLI Rule 27 of the CPC would certainly clinch the issue. Insofar as the doubt expressed as to Shridharan having secured any other land than 19 guntas is concerned, it is quite possible that he may have acquired another extent of 7 guntas from a third-party as the land bearing Survey No. 86/1 is a large extent of land and that could not have been confused as also being a portion of the land sold by the plaintiff in favour of Shridharan. The learned Counsel would submit that this doubt was unfair in rejecting the plaintiff''s suit and therefore seeks that the application be allowed and the additional evidence be taken on record to reconsider the case of the plaintiff.

Since the suit was not contested and was dismissed on the doubts expressed by the trial court on the non-production of the sale deed executed in favour of Shirdharan, which is now sought to be produced before the court as additional document, in the opinion of this court, in the interest of justice, and to adjudicate the matter completely, this piece of evidence is necessary and therefore, in terms of Order XLI Rule 27(4)(b) of the CPC, this court deems it fit that the said document be brought on record. Consequently, the same shall be produced before the trial court and the plaintiff shall be permitted to adduce additional evidence not only to bring the document on record, but also to tender evidence as to the extent of land that ultimately remained with the plaintiff and support the same with such other independent witness, to endorse that the plaintiff continues to retain 3 guntas of land.

With that observation, as a matter of form, the appeal is allowed and the judgment of the court below is set aside. The matter is remanded to the trial court. The trial court shall deal with the matter in terms as above, in accordance with law. The registry is directed to remit the record forthwith to the trial court. The plaintiff shall appear before the trial court on 9.2.2015 without any further notice and the matter shall proceed in accordance with law. The Registry is directed to refund the entire court fee paid on the memorandum of appeal, as envisaged under Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958, to the plaintiff.