Venkatappa vs Venkatamma

B.S. Patil, J.—This appeal is filed by the plaintiff challenging the judgment and decree dated 15.04.2002 passed by the XXIV Addl. City Civil Judge, Bangalore, dismissing the suit O.S. No. 2506/1981.

The suit was originally filed by Venkatappa S/o Venkatanarasaiah. Upon his death, his legal representatives appellants herein have prosecuted the suit. Plaintiff-Venkatappa filed the suit seeking the relief of declaration that he was the absolute owner in possession and enjoyment of the suit schedule property and for permanent injunction to restrain the defendants from interfering with the suit schedule property. The suit schedule property as described in the plaint schedule is, a vacant site bearing house list No. 182 measuring East to West 40'' and North to South 40'' bounded on the East by road, West by remaining portion of the site belonging to the plaintiff, North by road, and South Kempa Hanumaiah''s land, situated at Shivapura village, Nallakadarenahalli Dhakale, Yeswanthpur Hobli, Bangalore North Taluk.

The suit was filed against Venkatamma, W/o late Moodalappa arraying her as 1st defendant, and Venkatalakshmamma, W/o Hanumanthaiah arraying her as 2nd defendant. Chokkasandra Group Panchayat, Dasarahalli, was arrayed as 3rd defendant. Venkatamma died during the pendency of the suit. Her legal representatives have been brought on record as defendant 1(a).

The case of the plaintiff was that he was the absolute owner in possession and enjoyment of site measuring East to West 80'' and North to South 40'' marked as ''A'', ''B'', ''C'', ''D'', ''E'' & ''F'' in the suit sketch, having purchased the same from a Jodidar by name K. Shamachar under registered sale deed dated 24.03.1946. Ever since the date of purchase, plaintiff was in possession and enjoyment of the property. After purchase, he was using the property for Kana and for tethering the cattle; besides he had raised two trees on the property and was also making use of a portion of the site as kitchen garden. Plaintiff claimed that he filed an application before the 3rd defendant-Panchayat on 14.02.1981 for recognizing him as kathedar in the records of the panchayat and to assess the site for property tax, but the panchayat did not oblige.

It is alleged that 2nd defendant-Venkatalakshmamma attempted to interfere into the eastern portion of the site measuring East to West 40'' and North to South 40''. When questioned, she informed that she had purchased the property from 1st defendant and khatha had been made over in her name in the panchayat records. Immediately, plaintiff applied for certain documents from the panchayat, obtained the same and thereafter came to know on 13.08.1981, that a portion of the property belonging to the plaintiff had been alienated by 1st defendant in favour of 2nd defendant.

Plaintiff alleged that 1st defendant did not have any right, title or interest over any portion of the property purchased by the plaintiff and 2nd defendant did not derive any title nor was she in possession over the portion of the property described in the schedule to the plaint and in the plaint sketch as ''C'', ''D'', ''E'' & ''F''. Plaintiff further alleged that the transaction entered into between defendants 1 & 2 was an illegal transaction intended to deprive the plaintiff from suit schedule property, so as to make illegal gain. Allegations of collusion were also made against the panchayat with defendants 1 & 2 in effecting change of khatha to the name of 2nd defendant and in issuing building license, etc.

1st defendant-Venkatamma filed her written statement denying the plaint averments and urging that plaintiff was not the owner of the suit schedule property and was never in possession of the same and that he was putting forth his claim based on a fabricated document. She contended that 2nd defendant had every right to be in possession of the suit schedule property and put up construction because the site which she (1st defendant) got under the sale deed dated 28.09.1945, was sold by her in the joint names of 1st defendant and one Nanjundappa, which document was also signed by Shamachar, the then owner of the suit schedule property. She further contended that in the said sale deed, it had been recited at the instance and on the request by 1st defendant, that Nanjundappa shall give a portion of the property measuring East to West 40'' and North to South 40'' and accordingly, 1st defendant-Venkatamma had chosen a portion of the entire property which she got jointly along with Nanjundappa to an extent of East to West 40'' and North to South 40'' and sold the same to the 2nd defendant under sale deed dated 16.09.1974.

It was also urged that there was a rectification deed dated 02.06.1982 executed by her and that from the date of sale in favour of 1st defendant-Venkatamma and Nanjundappa by Shamachar, the property continued to be in joint possession of 1st defendant-Venkatamma and Nanjundappa. She also contended that original document executed by Shamachar in favour of 1st defendant-Venkatamma and Nanjundappa jointly, was given to 2nd defendant at the time of sale.

1st defendant-Venkatamma died during the pendency of the suit. Her legal representative-Shankarappa was brought on record. He has filed another written statement contending that 2nd defendant was not the owner of the suit schedule property nor was the 1st defendant Plaintiff purchased the property from Shamachar, of which he had personal knowledge and it was he who was in possession and enjoyment of the same. He admitted the plaint allegations and stated no objection to decree the suit.

2nd defendant-Venkatalakshmamma filed her written statement and contended that Shamachar was the Jodidar of the village and was the owner in possession of the suit schedule property. He had parted with the property much earlier to the alleged sale deed executed by him in favour of the plaintiff; plaintiff had forged the said document and had come up with a false claim in respect of the suit property. She further urged that in the sale deed executed by Shamachar in favour of plaintiff''s father-Venkatanarasaiah, one of the boundaries of the land sold to 1st defendant-Venkatamma and Nanjundappa, had been shown as the land sold to Nanjundappa along with 1st defendant by Shamachar. She has urged that 1st defendant-Venkatamma had the right to sell the suit schedule property in favour of the 2nd defendant as she was in possession of the same before sale and that after the sale, it was 2nd defendant who came in possession of the property. Other allegations made in the plaint were denied.

Based on the pleadings, the Tria Court framed the following issues on 21.06.1984 and another set of issues on 25.07.1985.

Issues framed on 21.06.1984:

Does the plaintiff prove that the plaintiff is the owner and in legal possession enjoyment of the suit property on the date of the suit?

Does the plaintiff prove he made application to the village panchayat to effect change in the ownership register?

Whether the plaintiff proves that the 2nd defendant attempted to interfere over a portion of the suit property towards the eastern portion of the said site measuring east 40'' and west 40'' and north to south 40'' dated 11.08.1981?

Does the plaintiff proves that the 1st defendant has no right, title, interest or possession over the suit schedule property?

Whether the plaintiff proves that defendants 1 & 2 have entered into illegal transaction in order to deprive the plaintiff''s right to the suit schedule property?

Whether the defendants prove that the plaintiff has prepared a fabricated document and attempted to put forth false claim to the suit schedule property?

Whether the defendants prove that there is no question of ''Kana'' or any kitchen garden and suit schedule property was never held in possession of the plaintiff?

Whether the defendants prove that the 1st defendant and Nanjundappa held in possession of the suit schedule property from the date of rectification dated 02.06.1982?

Whether the 2nd defendant proves that the 1st defendant has sold the suit schedule property in favour of the 2nd defendant and the 2nd defendant is in possession of the suit schedule property?

Whether the plaintiff has a prima facie cause of action?

To what relief''s the parties are entitled?

Issues framed on 25.07.1985:

Whether the plaintiff proves that he is the absolute owner in lawful possession and enjoyment of the suit schedule property?

Whether the plaintiff is entitled to the relief of permanent injunction sought for?

Whether the 2nd defendant proves that she is the absolute owner in lawful possession of the suit schedule property?

What decree or order?

In support of the case of the plaintiff, plaintiff examined PWs-1 to 3 and produced and marked Exs. P1 to P5. On behalf of the defendants, husband of the 2nd defendant was examined as DW-1. Exs. D1 to D16 were produced and marked.

On consideration of the oral and documentary evidence on record, the Trial Court has held that plaintiff failed to establish that he was the absolute owner in lawful possession and enjoyment of the suit schedule property and was, therefore, not entitled for the relief of declaration of title as sought. It further held that defendant was able to establish that plaintiff had putforth a false claim to the suit schedule property and that 1st defendant and Nanjundappa were in possession of the suit schedule property which the 1st defendant sold in favour of 2nd defendant and 2nd defendant was in possession of the suit property from the date of purchase by her. Thus, the Trial Court has dismissed the suit. Aggrieved by the same, present appeal is filed.

Mr. Yoganarasimha, learned Senior Counsel appearing for the appellants, has principally contended that Ex. P1-sale deed dated 24.03.1946 executed by Shamachar in favour of Venkatappa-plaintiff was in respect of site measuring East to West 80'', North to South-40'' with road on three sides and Kempahanumaiah''s land to the south, and Ex. D3-sale deed dated 16.09.1974 on which reliance was placed by the defendants, wherein 1st defendant-Venkatamma sold an extent measuring East to West 40'', North to South 40'', was bounded on East by Road, West by Site fallen to the share of Venkatappa, North by Road and Chikkavenkatappa''s site, South by Road. He invites the attention of the Court to the Commissioner''s report and sketch and contends that as per the rough sketch prepared by the Court Commissioner at the spot marked as Ex. C5, a road is shown at C5(a). Therefore, he asserts that in the report and in the final sketch prepared by the Commissioner, he has dispensed with the road, thereby trying to locate the property of the defendant inside the property of the plaintiff.

He invites the attention of the Court to the cross-examination of the Court Commissioner, to point out that he has admitted the existence of the road at Ex. C5(a). Hence, he requests the Court to ignore the report and the sketch of the Commissioner and to accept the rough sketch prepared at the spot which would probablize the version of the plaintiff.

It is next contended by him that the rectification deed dated 02.06.1982 at Ex. D8 has been executed after the suit was filed, and therefore, the same cannot be made basis for holding that there existed land belonging to 1st defendant-Venkatamma and Nanjundappa towards the West. It is urged by him that if the rectification deed is ignored, the boundary to the western side of the plaintiff''s land would be his own portion i.e., Venkatappa''s land. It is also urged by him that Ex. D16-sale deed dated 28.09.1945 executed by Shamachar in favour of Nanjundappa and Venkatamma to an extent of 80'' x 100'' with a stipulation that 40'' x 40'' shall be given to Venkatamma as per her choice cannot be made basis to hold that Venkatamma was given 40'' x 40'' towards south-eastern side in the absence of any identification of her portion. Ke is critical of the fact that the Trial Court did not frame proper issues as the question was essentially with regard to the identity of the property that fell to the share of Venkatamma and also regarding the factum of any division between Nanjundappa and Venkatamma of the property which they claim to have jointly purchased as per Ex. D16.

Appellants have filed an application under Order XLI Rule 27 read with Section 151 CPC seeking produce certain documents. I have heard the learned Counsel for the parties on the said application as well.

Counsel for the appellants has contended that the document sought to be produced are, order passed on the interlocutory applications filed in O.S. No. 1877/1984. He urges that this suit was filed by Nanjundappa against the appellants for injunction and the same was dismissed for non-prosecution. The other documents sought to be produced are, order dated 23.08.2007 passed in the said suit holding that the suit was not maintainable and the order dated 18.04.2007 dismissing the application filed under Order I Rule 10 read with Section 151 CPC. It is urged by the learned Counsel for the appellants that these documents disclose that claim of Nanjundappa had been decided, and therefore, he did not have any right over the property and could not have effected any transfer. It is also urged that Nanjundappa did not enter the witness box and hence, he urges that the judgment of the Trial Court has been vitiated, and therefore, the appeal deserves to be allowed.

Mr. Santosh S. Gogi, learned Counsel for the 2nd respondent, has at the outset raised strong objections for allowing the application filed contending that the application is sought to be filed during the course of arguments at a belated stage and that none of the ingredients of Order XLI Rule 27 CPC are made out to allow the said application. He has further pointed out that the documents which are sought to be produced as additional documents have been obtained in the year 2007 and there is absolutely no explanation as to why they were not produced all these years. He has also urged that the suit O.S. No. 1877/1984 was dismissed as not maintainable and the schedule of the property in the old suit had nothing to do with the suit schedule property in the present suit, and therefore, these documents cannot be received as additional evidence. He takes me through the written statement filed by 1st defendant and contends that as she was not alive at the time when the evidence was recorded, her version in the written statement becomes crucial, wherein she has in unmistakable terms confirmed the sale made in favour of 2nd defendant.

He takes the Court through Ex. D16-sale deed dated 28.09.1945 which is prior in point of time and which cannot be disputed, wherein the property was jointly sold to 1st defendant-Venkatamma and Nanjundappa by Shamachar by delivering possession jointly in their favour. It is urged by him that how Nanjundappa and Venkatamma shared the property was of no concern for the plaintiff. He also refers to Ex. D2-sale deed dated 06.04.1946 executed by Shamachar in favour of Venkatanarasaiah-father of the plaintiff to point out that southern boundary in the sale deed is shown as Nanjundappa''s property, thereby indicating that earlier to the sale deed executed in favour of Venkatanarasaiah-father of the plaintiff, property had been purchased by Nanjundappa and Venkatamma under Ex. D16 on 28.09.1945. He urges that if the plaintiff had indeed purchased the suit property on 24.03.1946 as per Ex. P1, then in Ex. D2-sale deed, southern boundary would have been shown as land of the plaintiff. Therefore, he contends that Ex. P1 is not a genuine document. To support this contention, he points out that khatha was not changed in favour of the plaintiff pursuant to Ex. P1-sale deed, whereas pursuant to Ex. D3-sale deed khatha was got changed and tax came to be paid from 1979 onwards as per Exs. D9 to D13.

He has next contended that to show the actual possession of the property by the plaintiff, there is absolutely no material produced. If the plaintiff is not found to be in possession unless the plaintiff sought for relief of possession, relief of declaration cannot be granted. In this regard, he has placed reliance on the judgment of this Court in the case of Sri Aralappa Vs. Sri Jagannath and Others, . He has also relied on the judgment in the case of Union of India (UOI) and Others Vs. Vasavi Co-op. Housing Society Ltd. and Others, , to contend that in a suit for declaration of title and possession, burden being on the plaintiff to establish his case irrespective of whether defendants prove their case or not, in the absence of plaintiff establishing his title, he must fail and must be non-suited even if title set up by the defendants is found against him because weakness of case set up by defendants cannot be a ground to grant relief to plaintiff. It is urged by him that as there is no dispute regarding identity of the property and the dispute is with regard to the very title and possession set up by the plaintiff, Commissioner''s report will have no importance in the matter. He invites the attention of the Court to the evidence of PW-1-Somashekhar, son of the plaintiff, to contend that he has admitted that his grandfather purchased northern side of 2nd defendant''s property. He urges that PWs-2 & 3-Patel C. Narayanappa & Nanjundaiah, respectively, who have been examined by the plaintiff have not in any manner contributed to the case pleaded and set up by the plaintiff and their evidence was of no help to the plaintiff.

In reply, Mr. Yoganarsimha, learned Senior Counsel points out that PWs-1 & 3 have spoken regarding the existence of the road which corroborates the rough sketch prepared by the Court Commissioner. He again highlights that unless it was established before the Court as to how and when there was partition between Venkatamma and Nanjundappa, the case put forward by the defendant based on the sale deed Ex. D3 cannot be accepted.

Learned Counsel for the defendants further invites the attention of the Court to the suggestion put to DW-1 in the cross-examination to the effect that sale deed executed by Shamachar in favour of Nanjundappa and Venkatamma on 28.09.1945 was written on One Anna stamp paper and that in the suit filed by Nanjundappa in O.S. No. 1877/1984, sale deed executed by Shamachar on 28.09.1945 in favour of Venkatamma and Nanjundappa was produced. He, therefore, urges that even as per the suggestion made by the plaintiff, sale deed dated 28.09.1945 and the existence of the said sale deed was not disputed.

Having heard the learned Counsel for the parties and on careful perusal of the pleadings, evidence and the judgment on record, the points that arise for consideration are,

(i) whether the Trial Court has erred in recording a finding that the plaintiff failed to establish his title and possession over the suit property and that the defendant had successfully proved his title and possession over the same?

(ii) whether the findings recorded by the Trial Court suffers from illegality or perversity warranting interference in exercise of the appellate jurisdiction?

It is not in dispute that the suit property originally belonged to Shamachar, a jodidhar. The earliest sale deed that the plaintiff has produced is Ex. D16 dated 28.09.1945 executed by Shamachar jointly in favour of Nanjundappa and Venkatamma. Its measurement is shown as 80'' x 100''. There is a stipulation in the sale deed that a portion of the site measuring 40'' x 40'' shall be given to Venkatamma as per her choice. The boundaries mentioned in this sale deed are as under: East by Road, West by Oni and Mango groove, North by Sites belonging to the vendor Shamachar, and South by Land belonging to vendor Shamachar. Therefore, it is clear that at an undisputed point of time by this earliest transaction between the parties, a portion of land measuring 80'' x 100'' has been transferred by way of sale in favour of Nanjundappa and 1st defendant-Venkatamma.

The next sale deed in point of time is Ex. P1 dated 24.03.1946 executed by Shamachar in favour of plaintiff to an extent of 80'' x 40''. In this sale deed, the boundaries are shown as road on three sides and Kempa Hanumaiah''s land to the south.

There is another sale deed produced as Ex. D2 dated 06.04.1946 executed by Shamachar in favour of Venkatanarasaiah-father of the plaintiff in respect of an extent of 80'' x 40''. This sale deed is executed after Ex. P1-sale deed allegedly executed in favour of Venkatappa-plaintiff. In this sale deed, the boundaries are shown as East by Road, West by Mango Groove, North by Sanjeevappa''s house, and South by Nanjundappa''s site. Nanjundappa and Venkatamma had together purchased under Ex. D16-sale deed dated 28.09.1945 prior to Ex. D2-sale deed dated 06.04.1946. Therefore, it becomes clear from Ex. D2 that the southern boundary in Ex. D2 has been shown as site belonging to Nanjundappa. It is not shown in Ex. D2-sale deed that any part of the land purchased under Ex. P1 by the plaintiff-Venkatappa was abutting the land sold to his father Venkatanarasaiah.

Therefore, if the picture obtained at an undisputed point of time is analyzed, it would emerge that existence of Nanjundappa''s open site could be traced to Ex. D16-sale deed dated 28.09.1945. It is not explained by the plaintiff how in the sale deed-Ex. D2, which was the sale deed under which plaintiff''s father had purchased sites from the vendor-Shamachar, how and why the southern boundary was shown as Nanjundappa''s open land. The only inescapable conclusion would be Nanjundappa had purchased the site earlier in point of time to Ex. D2 under Ex. D16 and therefore, his site was shown as lying to the south of the property sold to plaintiff''s father. Therefore, while there could be no dispute regarding the title of Nanjundappa under Ex. D16 which is the sale deed anterior in point of time to both Exs. P1 & D2, the burden was on the plaintiff to establish under Ex. P1 he had got a definite and identified property from Shamachar and thereafter he enjoyed the same as its absolute owner in possession thereof.

It is also necessary to notice here that plaintiff has himself suggested in the course of cross-examination of DW-1 regarding existence of Ex. D16 and the purchase of property by Nanjundappa and Venktamma from Shamachar. In addition, it is further suggested in the cross-examination that the said original sale deed dated 28.09.1945 executed in favour of Nanjundappa and Venkatamma was produced in O.S. No. 1877/1984. Whether the original sale deed was in the custody of Nanjundappa or was in the custody of Venkatamma, matters very little, because both of them had purchased the property jointly. The fact remains that it is suggested as the case of the plaintiff that there was a sale deed dated 28.09.1945 executed by Shamachar in favour of Nanjundappa and Venkatamma and the original document had been produced in O.S. No. 1877/1984. Therefore, plaintiff cannot now contend that Venkatamma had no title or possession over any portion of the property to transfer the same in favour of 2nd defendant.

It is true there is no document produced by 1st defendant-Venkatamma or by the; 2nd defendant-Venkatalakshmamma to show how Nanjundappa and Venkatamma got divided their property and how and when the properties sold by Venkatamma vide Ex. D3 dated 16.09.1974 fell to her share. As can seen from Ex. P16, Venkatamma was given right to opt for a portion of 40'' x 40'' as per her choice. When and how she exercised that choice is immaterial for the purpose of this case. Nanjundappa has not disputed the choice made by Venkatamma and the transfer effected by her in favour of 2nd defendant. It was only he, who could have challenged the same. Plaintiff cannot urge that Venkatamma had not exercised such an option and in the absence of proof of exercise of such an option, 2nd defendant cannot be regarded has having not duly purchased the portion of the land jointly purchased by Venkatamma and Nanjundappa. Plaintiff has to establish his case. He has come to the Court with a definite assertion that he purchased the suit property under Ex. P1. As rightly contended by the Counsel for the defendant-2nd respondent, if plaintiff had purchased the said property on 24.03.1946, then the existence of this property could have been reflected in Ex. D2-sale deed subsequently executed by very Shamachar in favour of the father of the plaintiff. Instead, in the sale deed-Ex. D2, the existence of the properties sold in favour of Nanjundappa has been shown. Therefore, while the defendant has been able to establish and trace the existence of sale deed-Ex. D16, there is serious doubt with regard to the way Ex. P1 was executed and how it came into existence and what where its boundaries.

The sketch prepared by the Court Commissioner no doubt, has some discrepancy if one compares the rough sketch and the fair sketch, but the question is not the identity of the property. The question is that of the existence of the property as claimed by the plaintiff traced to Ex. P1. The same property is claimed by both the plaintiff and the defendant.

So far as the vendor of the defendant is concerned, Smt. Venkatamma-1st defendant has filed her written statement. She has in unequivocal terms supported the 2nd defendant and has stated in detail as to how she acquired the property along with Nanjundappa from Shamachar and of the sale deed executed by her in favour of the 2nd defendant as per Ex. D3. Whereas, on behalf of the son of the original plaintiff, he himself has been examined and the evidence of two other witnesses is adduced. These witnesses-PWs-2 & 3 were not witnesses to any of the transactions between Shamachar and the plaintiff. PW-2 in his cross-examination has stated that he was not present when the sale deed in favour of the plaintiff was executed. He has gone on to say that the sale deed was executed in favour of the plaintiff in the year 1981, which is totally incorrect. PW-3-Nanjundaiah has not produced anything to show that he was owner of nearby property. His assertion that khatha was changed in the name of Venkatappa is also not correct. Therefore, in support of proof of Ex. P1, evidence of these two witnesses is of no help. So far as PW-1''s evidence is concerned, he admitted that his grandfather purchased northern side of 2nd defendant''s property. Therefore, this admission would go to show that property in the hands of 2nd defendant was not purchased by plaintiff or his father.

Hence, analysis of the evidence both oral and documentary as made by the Trial Court and the conclusions reached by it cannot be termed as perverse or illegal. The conclusion reached by the Trial Court logically flow from the reasons assigned by it. In such circumstances, exercising appellate jurisdiction, this Court cannot interfere with the findings reached by the Trial Court.

In so far as possession of the property is concerned, plaintiff having come to the Court and asserted that he purchased the property in the year 1946 and was put in possession of the same, has not produced any other material except Ex. P1 to show his possession. How he has exercised his possessory right over this property is not evidenced by any material whatsoever. Per contra, defendant has got the khatha changed during the year 1979 and paid taxes to the panchayat, which is evidenced by Exs. D9 to D13. Hence, the Trial Court has rightly come to the conclusion that the plaintiff has not proved his actual possession over the property.

As regards additional documents sought to be produced by the appellants, at the outset, it has to be stated that there is absolutely no acceptable explanation offered as to how and why these documents could not be produced during the course of trial before the Trial Court and before the commencement of arguments in this appeal. As rightly contended by the Counsel for the 2nd defendant, the documents have been obtained in the year 2007, but were sought to be produced in 2014 when the arguments in this appeal commenced. Therefore, I do not find any justification to allow this application at this stage. In any event, the documents sought to produced are essentially the orders passed in O.S. No. 1877/1984, which have no bearing with regard to the title of the plaintiff and his actual possession over the same. The said suit filed by Nanjundappa against the plaintiff was dismissed for non-prosecution. The said fact cannot improve the case of the plaintiff. Hence, the application deserves to be dismissed and accordingly, the same is dismissed.

In the result and for the foregoing, this appeal is dismissed. Parties to bear their respective costs.