Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 668 (KAR)

Junjappa v. Nanjamma.

2010-05-28

A.N.VENUGOPALA GOWDA

body2010
JUDGMENT A. N. Venugopala Gowda , J.—Defendant has filed this second appeal. Respondent had filed the suit for declaration of her title in respect of suit land and for a decree of perpetual injunction restraining the appellant from interfering with her possession and enjoyment of the suit land. The trial Court decreed the suit, which when questioned in first appeal by the appellant herein, was affirmed by dismissal of the appeal. 2. Brief facts of the case are that, One Eraiah had two sons by name (1) Eramadaiah @ Gundaiah and (2) Junjappa-the appellant. The respondent is the wife of Eramadaiah @ Gundaiah. Said Eramadaiah @ Gundaiah and the appellant partitioned their properties. One of the items of properties, which was partitioned between them is Sy.No.247/1 of Machahalli village. Each of them took 24 guntas of land in the partition. The property that fell to the share of the respondent—s husband was phoded as Sy.No.247/1A and the property which feil to the share of the appellant was phoded as Sy.No.247/1B. Katha was mutated in their respective names. 3. Appellant got his 24 guntas of land converted into non-agricultural purpose and thereafter, formed residential sites and has disposed of the same. According to the appellant, 6 guntas of land in the said survey number was exchanged by executing a document and thus, he was the owner in possession of 6 guntas out of the said land i.e., Sy.No.247/1A. There was proceedings before the revenue authority with regard to mutation proceedings, since the defendant had got his name entered as Kathedar in respect of the said 6 guntas of land in Sy.No.247/1A (portion of suit land) on the basis of an alleged exchange deed, he contended that he was in possession of the said property as its absolute owner. Respondent/Plaintiff questioned the said Act of the plaintiff and instituted the suit for the said reliefs. 4. The suit was contested by the appellant by filing written statement. In view of the contest, considering the material pleadings, the learned Trial Judge raised three issues. During trial, plaintiff deposed as PW-1 and examined a witness as PW.2, Ex.P-1 to P-8 were marked. Defendant/appellant did not enter the witness box and did not lead any other evidence. Considering the rival contentions and the record, the learned Trial Judge has decreed the suit. 5. During trial, plaintiff deposed as PW-1 and examined a witness as PW.2, Ex.P-1 to P-8 were marked. Defendant/appellant did not enter the witness box and did not lead any other evidence. Considering the rival contentions and the record, the learned Trial Judge has decreed the suit. 5. The appellant questioned the judgment/decree of the Trial Court by filing an appeal. The Lower Appellate Court considering the rival contentions and the record, raised three points for consideration and held that the appellant has failed to prove that the Trial Court had not given him proper and sufficient opportunity to cross-examine PW-2 and also to lead his evidence. It further held that the plaintiff has proved her case and hence, she is entitled for relief of declaration and injunction as prayed for and as a result, the appeal having been found to be without any merit, was dismissed. 6. Learned counsel Sri.Muniraja, appearing for the appellant, by taking through the impugned judgments, contended that the appellant did not have reasonable opportunity before the Trial Court and in the absence of his evidence, the suit has been disposed of and even otherwise the Courts below have not correctly appreciated the oral and documentary evidence and on account of erroneous approach, the suit was decreed and the appeal filed their against was also erroneously dismissed and hence the impugned judgments have given raise to the substantial questions of law raised in the appeal memorandum, in view of which the appeal may be admitted for further consideration. Learned counsel also drew my attention to the documents produced along with the application filed seeking permission to produce the additional evidence. 7. Appellant has admitted that the respondent is the wife of his brother late Eramadaiah. He has also admitted that Sy.No.247 was partitioned in equal proportion and that himself and his brother Eramadaiah were allotted 24 guntas of land each which were phoded as Sy.Nos.249/1A and 249/1B. 8. The appellants case is that he got 6 guntas of land in Sy.No.249/1A by way of exchange. The appellant has not produced any registered deed of exchange to establish his contention. The appellant has not cross-examined PW.2. The appellant has not lead any evidence on his side. The case of the plaintiff with respect to the acquisition of title by her husband in respect of 24 guntas of land bearing Sy.No.247/1A has been admitted by the appellant. The appellant has not produced any registered deed of exchange to establish his contention. The appellant has not cross-examined PW.2. The appellant has not lead any evidence on his side. The case of the plaintiff with respect to the acquisition of title by her husband in respect of 24 guntas of land bearing Sy.No.247/1A has been admitted by the appellant. His case that, he got by way of exchange 6 guntas of land, has not been proved by producing any evidence. There is absolutely no evidence in support of the plea of exchange and acquisition of right in respect of 6 guntas of land in Sy.No.249/1A by the defendant/appellant. 9. Learned counsel for the appellant invited attention to the Misc.Petn. No.4948/2010 filed under Order 41, Rule 27 of CPC to receive additional evidence namely three documents i.e., consent agreement deed dated 16.6.1993, RTC extract of the year 1994-95 and the certified copy of the sale-deed dated 25.4.2001. According to the learned counsel, the 1st document i.e., consent agreement establishes the exchange of the properties. Undisputedly, the said document is an unregistered deed. Proof of exchange of properties, if any can only be proved by production of a registered deed. Exchange deed is compulsorily a registerable document. The said document i.e., consent agreement is inadmissible in evidence and cannot be looked into. RTC for the year 1994-95 shows that the appellant is the Kathedar in respect of 6 guntas of land in Sy.No.247/1AP. The property bearing Sy.No.247/1AP is not the subject matter of this appeal. The sale deed dated 25.4.2001 is subsequent to the institution of the suit and hence has no relevance. Even otherwise, defendant/appellant has not made out the conditions contemplated under clause (aa) of Rule 27 of Order 41, CPC for receiving of additional evidence in the second appeal. The appellant has not shown any diligence. No reason has assigned as to why the additional evidence was not produced before the First Appellate Court. The affidavit in support of Misc. petition seeking permission for production of additional evidence is bald. Vague allegation that he had handed over the documents to the advocate and the non-production is not intentional one or mala fide, is highly unbelievable. No reason has assigned as to why the additional evidence was not produced before the First Appellate Court. The affidavit in support of Misc. petition seeking permission for production of additional evidence is bald. Vague allegation that he had handed over the documents to the advocate and the non-production is not intentional one or mala fide, is highly unbelievable. The appellant who did not bother to appear before the Trial Court and tender his evidence, cannot contend at this stage that he had handed over the documents to his advocate which was not produced. 10. The case of the appellant has been considered both by the Trial Court and the First Appellate Court in the proper perspective. Material pleadings and evidence, both oral and documentary, have been appreciated at great length. Both the Courts below have concurrently found that the plaintiff has established her lawful title to the suit property. There is no omission on the part of the Courts below in consideration of the case of the appellant. There is no misconstruction of evidence or any wrong application of law by the Courts below. 11. The impugned judgments have not given rise to any substantial question of law to entertain this appeal. The grounds raised by the learned advocate are mere repetition of the grounds urged before the 1st Appellate Court. The First Appellate Court has considered the contentions in detail and the findings recorded by it are with reference to the oral and documentary evidence placed on record. There is correct re-appreciation of evidence by the lower appellate Court. Since the appeal does not raise any substantial question of law and the findings recorded in the impugned judgments being pure findings of fact, this second appeal in the absence of substantial question of law is not maintainable. 12. In the result, both the Misc. Petition No. 4948/2010 and the appeal stand rejected. 13. Appeal dismissed.