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2001 DIGILAW 652 (KAR)

R. T. Venkatagiriyappa v. C. R. Krishnaiah

2001-08-18

A.M.FAROOQ

body2001
JUDGMENT A.M. Farooq, J.—This is a Plaintiff's second appeal under Section 100 Code of Civil Procedure. The Plaintiff--appellant is aggrieved by the decree dated 28.7.1986 in O.S. No. 34 of 1979 on the file of the learned Civil Judge, Ramanagaram, and confirmed in appeal in Regular Appeal No. 96 of 1989, dated 1.8.1997 on the file of the learned II Additional District and Session Judge, Bangalore Rural District, Bangalore. 2. Brief facts of the case are that the Plaintiff filed the suit for declaration of title and consequential injunction in respect of the suit schedule property alleging that the property belonged to his father and that it was a choultry assessed to Municipal Tax and in due course of time the choultry collapsed and small portion of it remained as a small room in a dilapidated condition. That the Municipality exempted property tax and after the death of his father the Plaintiff is having possession and enjoyment of the property. That the katha of the property was changed from 261 in 1902 to 356/31 in 1970 and the number was later changed to 634/356 which is the existing katha number. That the Defendants 1 and 2 have set title to the suit property on the ground that it is a public property belonging to the members of Balija community to which all the parties belong. That the 3rd Defendant is alleged to have colluded with the other Defendants in granting a building licence and that the Defendants 1 and 2 performed Guddali pooja. According to the Plaintiff the Defendants 1 and 2 have no right, title or interest in the suit property and hence the suit seeking declaration and perpetual injunction. 3. In their joint written statement Defendants-1 and 2 denied all the averments made by the Plaintiff and questioned the genuineness of the documents produced by the Plaintiff and also contended that; at no time the Plaintiff or his father were in possession and enjoyment of the suit property. They also alleged the Plaintiff's collusion with the 3rd Defendant in creating the documents and contended that the katha of the suit property was assigned Municipal number 356/31 by cancelling the assessment levied earlier and all, with the collusion of the Municipality. They also alleged the Plaintiff's collusion with the 3rd Defendant in creating the documents and contended that the katha of the suit property was assigned Municipal number 356/31 by cancelling the assessment levied earlier and all, with the collusion of the Municipality. It is stated that the Defendants are not claiming any individual or private right over the suit property and claimed it to be a property belonging to Andhra Balija Community to which community the Plaintiff and Defendants belong. It is stated that a Association was formed called "Andhra Balija Ramanuja Sangha" in the year 1957 and an application was submitted by the members and a meeting was held on 17.4.1957 in which the legal representative of the Plaintiff was elected as a treasurer of the Sangha. According to the Defendants the suit property was originally owned and possessed by one Sri V. Thimma Shetty S/o Vodavattada Hanuma Shetty and a choultry was constructed and made over to the Sangha to be treated as a public property.T Hat the said Thimmaiah executed his last Will dated 15.11.1921 giving directions for the upkeep of the choultry and hence the Defendants as members of the community obtained the permission to construct and performed Guddali pooja. It is stated that the community people have perfected their title even by adverse possession and that the Plaintiff has no title and prayed for dismissal of the suit. 4. At the time of admission of the appeal the following substantial questions of law were framed. a) When the case of the Plaintiff is that there is no title deed, but long possession of the property evidenced by acknowledgment in public records, is the basis for the claim for title; whether the Courts below are justified in dismissing the case of the Plaintiff, on the ground that he has not produced any title deed? b) Whether the Courts below are justified in holding that Exs.P-1 to P6 produced in the case cannot be proof of title of the Plaintiff? c) Whether the Courts below are justified in concluding that the Plaintiff is not in possession, when there is no evidence of dispossession of the Plaintiff, at any particular point of time? 5. b) Whether the Courts below are justified in holding that Exs.P-1 to P6 produced in the case cannot be proof of title of the Plaintiff? c) Whether the Courts below are justified in concluding that the Plaintiff is not in possession, when there is no evidence of dispossession of the Plaintiff, at any particular point of time? 5. The learned Counsel for the appellant however, submitted that only the first two questions framed at the time of admission are real substantial questions of law and the 3rd one may not be a substantial question of law. 6. I have heard the learned Counsels appearing for both the parties. Even though it may not be correct to hold that the public documents cannot be regarded as acknowledgment of title to certain properties, before considering that question, it is necessary to see whether the alleged documents are really public records and whether they prove title of the Plaintiff to the suit property. 7. After going through the evidence on record and also the material documents and after considering the elaborate discussions and reasoning adopted by the Courts below, I am of the view that none of the documents including Exs. P-1 to P-3 relates to the suit property. Both the Courts below have rightly held that none of the parties could produce any title deed to the suit property. 8. While considering Exs. P-1 to P-3 the trial Court found that they are katha extracts for the year 1906 to 1909 showing Thimmaiah bin Doddaramaiah as the kathedar in respect of a tiled roof house, a snuff shop and a dharmashala all are which bear a single number 261. The description given in the plaint is as K. No. 634/356 situated at Chatrada Beedi, Ramanagaram, measuring 102' x 124' but it does not show the tiled roof house or snuff shop and PW-2 himself was not in a position to say what was existing at the suit property earlier. No document was placed by the Plaintiffs to show when the original katha number 261 was changed to 634/356. Further there is no material to show that katha number 261 was changed to 356/31 and hence the trial Court held that Exs. P1 to P3 does not pertain to the suit property. No fault could be found with the reasoning adopted by the trial Court. Even in respect of Exs. Further there is no material to show that katha number 261 was changed to 356/31 and hence the trial Court held that Exs. P1 to P3 does not pertain to the suit property. No fault could be found with the reasoning adopted by the trial Court. Even in respect of Exs. P-4 to P-6 which are demand register of building extracts for the years 1949-50, 1971-72 and 1967-70, the name of the property is shown as Thimmaiah navara chatra which is different from Thimmaiah bin Doddaramaiah which is the name of the grand father of the Plaintiff. Even though as argued by the learned Counsel for the appellant the name Thimmaiah-navara Chatra relates to their grand father Thimmaiah bin Doddaramaiah may be correct, but there is no link between the two especially when no documents are produced to show the changes in the Municipal numbers. 9. Apart from all this the city municipality had totally exempted payment of Municipal Tax to the Chatra which will be done only in respect of public property. As rightly pointed out by the Courts below it is strong circumstances to suspect the documents. 10. The trial Court has considered the other documents Ex.P-7 and has held there are over writings and therefore, it cannot be considered. Ex.P-8 is a resolution of the Municipality dated 30.6.1965 when Plaintiff's name was inserted and assessment was levied, but under a resolution dated 30.9.1969 as per Ex.D-11 there was a direction to restore the katha as a Chatra which is a public property and directed refund of the tax to the Plaintiff. Thus after considering the entire materials on record, I find that no substantial question of law is involved in this Second Appeal. Both the Courts below on facts have held that the Plaintiff or its predecessors were never in possession of the suit property. There is no prayer made by the Plaintiff seeking possession of the property. The finding regarding possession is a finding on a question of fact. Hence no interference is called for in this second appeal. The appeal is dismissed. 11. Parties to bear their own costs.