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2011 DIGILAW 160 (KAR)

M. Abdul Rasheed v. V. L. Shivappa

2011-02-08

A.S.PACHHAPURE

body2011
JUDGMENT A.S. PACHHAPURE, J.—The appellants have challenged the judgment and decree of the Lower Appellate Court in R.A. No. 5/1989 by allowing the appeal of the respondents and dismissing the suit instituted by the appellants. 2. The facts relevant for the purpose of this appeal are as under: The parties are referred as per their rank before the trial Court for the purpose of convenience. The facts reveal that Abdul Sattar, the father of the plaintiffs and defendants 2 and 3 had two wives, i.e., Jahirabi to whom the plaintiffs were born, whereas, the first wife had two sons, i.e., defendants 2 and 3. The plaintiffs claimed that the suit property bearing R.S. No. 73 measuring 1.2 hectares 62 ares assessed at Rs. 250.34 with the boundaries mentioned in the plaint schedule was of their father Abdul Sattar and that the defendants 2 and 3 have relinquished their rights in the said property by registered deeds dated 28.2.1947 and 3.1.1953 and since then, the defendants 2 and 3 have no right, title or interest of whatsoever type over the suit property. The deceased father of the plaintiffs and defendants 2 and 3 executed a mahar sale deed dated 15.3.1.932 in favour of the plaintiffs and since then, the plaintiffs claim that they are in possession of the suit; property and that the defendants have no right, as they have relinquished whatever rights they had in the suit, land. 3. Further they contend that defendant No. 2 executed a sale deed in favour of the first defendant and the 3rd defendant relinquished his rights in the suit property in favour of the first defendant under the registered document. The first defendant has been causing obstruction to the peaceful possession and enjoyment, of the suit property and, therefore, they instituted a suit for declaration that they are the absolute owners of the suit land and for possession of the same from the first defendant. 4. The Defendant No. 1 in his written statement contended that there was no relinquishment of the rights of defendants 2 and 3 in favour of Abdul Sattar at any time in the suit land and that the suit property is of the ownership of defendants 2 and 3 who executed a sale deed dated 21.2.1970 and since then, the first defendant claims to be in possession of the suit land. So also, it is his contention that he has been in possession of the suit property since from the sale deed and defendants 2 and 3 were in possession of the suit land prior to the sale deed for about six years and, therefore, he has acquired a title by adverse possession, He has also denied about themahar sale deed dated 15.3.1932 said, to have been executed in favour of the second wife Jahira Bi and claims that the plaintiffs have no right, title or interest of whatsoever type to claim the possession. On the basis of these pleadings, the following issues have been framed: 1. Do the plaintiffs prove that Jahirabi was the wife of late Sattarsab and that they are the sons and daughters of Sattarsab and Jahirabi? 2. Do the Plaintiffs prove that late Satarsab sold the suit, land to their mother late Jahirabi by sale deed dated 15.3.1932 and that the survey number stated in it is a clarical mistake? 3. Do the Plaintiffs prove that Defendants 2 and 3 executed release deed dated 28.3.1947 and 3.1,1953 and that, therefore, they has no right over the suit land? 4. Do the plaintiffs prove that they are the owners of the suit land as heirs of late Jahirabi or Sattarsab? (Amended v/o. dated 25.3.1987). 5. Does defendant No. 1 prove that the suit is bad for non-joinder of necessary parties? 6. Does defendant No. l prove that the suit is barred by res judicata? 7. Does defendant No. 1 prove that the suit is barred by rule 2 of Order 2 of the C.P.C.? 8. Does defendant No, 1 prove that the suit is time barred? 9. Does defendant No. 1 prove that defendants 2 and 3 were owners of the suit land by adverse possession? 10. Does defendant No. 1 prove that defendant No. 2 sold him the suit land by sale deed dated 21.2.1970? 11. Does defendant No. l prove that defendant No. 3 released her rights in the suit land in his favour by deed dated 5.9.1980? 12. Does defendant No. l prove that he is owner of the suit land by adverse possession? 13. Whether the plaintiffs are entitled to declaration of their title to the suit land? 14. Whether the plaintiffs are entitled to the possession of the suit land? 15. 12. Does defendant No. l prove that he is owner of the suit land by adverse possession? 13. Whether the plaintiffs are entitled to declaration of their title to the suit land? 14. Whether the plaintiffs are entitled to the possession of the suit land? 15. Whether” they are entitled to the mesne profits of the suit land from defendant No. 1? 16. What decree or order? 5. It is thereafter that the plaintiffs examined Plaintiff No. 3 as P.W. 1. and in his evidence, the documents Exs. P1 to P12 were marked. The defendants examined D.Ws. 1 to 6 and in their evidence, the documents Exs. D1 to D24 were marked. The Trial Court after hearing the counsel for both the parties and on appreciation of the material on record decreed the suit against the first defendant and aggrieved by the judgment and decree, the first defendant preferred an appeal before the Lower Appellate Court in R.A. No. 5/1989 and the said appeal came to be allowed by the Court below dismissing the suit filed by the plaintiffs. Aggrieved by the judgment and decree of the Lower Appellate Court, the present appeal has been filed. 6. At the time of admission, this Court has framed the following substantial question of law as under: Whether the first appellate Court, was justified in reversing the finding given by the trial Court: without considering the reasons given by the trial Court that the boundaries given in the schedule tallies with the description of the property given in the lease deed? 7. The counsel for the appellants would contend that the suit property was given to Jahira Bi, the second wife under mahar sale deed dated 15.3.1932 and since then, Jahira Bi has been in possession of the suit land and on her death, the plaintiffs have been in possession of the suit property. It is also the contention that the boundaries mentioned in the deed dated 15.3.1932 tallies with the boundaries of the suit property and thereby, the principle that the boundaries prevail over the survey number of the property would be applicable and in these circumstances, it is his submission that the Lower Appellate Court erred in reversing the finding of the Trial Court. So also, it is his contention that the suit instituted was within a period of 12 years from the date, when, the possession of the defendants becomes adverse to the plaintiff. Therefore, it is his submission that the defendants 2 and 3 executed the sale deed and subsequently, the relinquishment deed in favour of the first defendant as per Exs. D1 and D.2 on 2.2.1970 and the suit came to be instituted on 17.2.1982 and, therefore, he claims that the suit, instituted was within limitation. Furthermore, so far as the release deeds are concerned, defendants 2 and 3 have given up their interest in the suit land in favour of the father of the parties and, therefore, they do not have any right, title or interest of whatsoever type in the suit property and have not conveyed any title in favour of the first defendant. Per contra, the learned counsel for the respondents supporting the judgment of the Lower Appellate Court would contend that, the mahar sale deed dated 15.3.1932 is not in respect, of the suit property and that the release deeds said to have been executed by defendants 2 and 3 do not refer to the suit property and as the defendants 2 and 3 were the absolute owners in possession of the suit property have conveyed the title in favour of the first, defendant under the registered sale deed dated 20.2.1.970 and, therefore, the Lower Appellate Court was justified in dismissing the suit. 8. Now, as could be seen from the evidence that has been led by the parties, the first defendant claims to have acquired the absolute title to the suit property on the basis of the sale deeds and release deeds executed by defendants 2 and 3 under Exs. D1 and D2 dated 21.2. 1970 and 5.9.1980. Since from the date of the purchase, he has paid the land revenue and produced Exs. D3 to D11 the receipts and the documents Exs. D12 to D17. So, the first defendant who claims to be the absolute owner of the suit property claims to have derived the title on the basis of Exs. D1 and D2. There is no dispute that the boundaries mentioned in Ex. D1 are in respect of the suit land bearing S. No. 73 measuring 12 hectares 62 acres assessed at Rs. 250.34 ps. and as per the boundaries mentioned in. D1 and D2. There is no dispute that the boundaries mentioned in Ex. D1 are in respect of the suit land bearing S. No. 73 measuring 12 hectares 62 acres assessed at Rs. 250.34 ps. and as per the boundaries mentioned in. the schedule to the plaint. 9. Now, It. is the plaintiffs who approached the Court and it is for them to establish that there was a mahar sale deed dated 15.3.1932 in respect, of the suit land executed by Abdul Sattar, their father in favour of his second wife Jahira. Bi. Ex. R3 is the mahar sale deed dated 15.3.1932 and as could be seen, from this document, it pertains to the land bearing S. No. 21 measuring 27 ares and the boundaries mentioned therein are on the East. West and North is the Government land and on the South is the land of one Sidde Gowda and as could be seen from the description of the boundaries in the plaint on the northern side, there is a Government stream. So as could be seen from the area mentioned in Ex. P3 and also the boundaries on the northern side, there is material difference and the suit land though is Survey No. 23 mentioned in Ex. P3 as Survey No. 21 and though the land measures 12 hectares and 62 guntas, i.e., about. 30 acres of land in Ex. P3 it is mentioned as 27 acres. So in these circumstances, it is rather difficult to accept the contention of the learned counsel for the appellants that it is the property which was given to the second wife Jahira Bi by Abdul Sattar under Ex. P3 is the one which is the subject matter of the suit. 10. Though it is contended that there was a mistake in mentioning the suit survey number, area, it is relevant to note that in case if it was so. there was a necessity on the part of the plaintiffs to plead to that effect and prove the same by material evidence. There is no pleading that there was any mistake inmentioning the survey number in Ex. P3 and merely because, the plaintiffs in their evidence state that there is a mistake in Ex. P3 in mentioning the survey number, it is not sufficient to conclude that a property under the mahar sale deed Ex. P3 is the suit property. 11. There is no pleading that there was any mistake inmentioning the survey number in Ex. P3 and merely because, the plaintiffs in their evidence state that there is a mistake in Ex. P3 in mentioning the survey number, it is not sufficient to conclude that a property under the mahar sale deed Ex. P3 is the suit property. 11. Furthermore, there were earlier litigations between the parties and OS 14/1972 was instituted by the 3rd wife Sharifunisa and her three children and she sought for the partition and separate possession of her share in some properties. The certified copy of the plaint has been produced at Ex. D18. As could be seen from the schedule of the suit property in O.S. No. 14/1972, she never included the suit land as the subject matter of her suit for partition. In the said suit, Jahira Bi, the second wife was the second defendant and even the other plaintiffs were also the defendants in the said suit, in addition to defendants 2 and 3. If really the suit land was the property of Abdul Sattar, there could have been a mention of the suit property in the suit instituted by the third wife. The plaintiffs were defendants 3 to 8, including their mother, the second wife Jahira Bi and they filed the written statement in the said suit and the certified copy has been produced at Ex. D19. They have not referred to the suit property in the written statement as one belonging to Abdul Sattar, their father. 12. Furthermore, the judgment, in the suit instituted in O.S. No. 14/1972 was decreed by the Trial Court vide judgment and decree dated 31.10.1975 and aggrieved by the judgment and decree, an appeal was preferred to this Court in RFA No. 20/1976. In the said judgment also, there is no reference of the suit property. That apart, a suit, in O.S. No. 549/1964 was instituted by the daughters of Abdul Sattar, the father of the plaintiffs for declaration and possession of the suit property as against the 15 defendants in the said suit and in the said suit as well, there is no reference of the suit property. Ex. D21 is the certified copy of the plaint, in O.S. No. 549/1964, whereas Ex. Ex. D21 is the certified copy of the plaint, in O.S. No. 549/1964, whereas Ex. D22 is the written statement, filed by the defendant M. Osnian Basha and the perusal of the document pertaining to this litigation also reveals no reference to the suit land. 13. If the facts are seen from another angle, prior to the Mehar sale deed dated 15.3.1932, Abdul Sattar was said to be the owner of the suit land. Though there is no mention of the suit Survey number in the Mehar sale deed dated 15.3.1932, the plaintiffs at least could have produced the property extract of the suit land so as to prove that Abdul Sattar was the owner of the suit. land. Even subsequent to the mahar sale deed, atleast the name of Jahira Bi will, have to continue on the basis of the said sale deed and the plaintiffs have further failed even to produce the subsequent Record of Rights of the suit land after the mahar sate deed at Ex. P3. That apart, if the suit property was the family property of Jahira Bi or Abdul Sattar, at least prior to the sale deed and release deed executed by defendants 2 and 3 in favour of the first defendant as per Exs. P1 and P2 the names of either Jahira Bi or Abdul Sattar could have found in the records. The plaintiff have not even produced any such records to show as to the ownership of the suit property having been vested with either Abdul Sattar or Jahira Bi. 14. Furthermore, the Trial Court committed an error in stating that in respect of R.S. No. 73 the property stood in the name of plaintiffs mother Jahira Bi, but it is a factual error committed by the Trial Court and the records reveal, that the name mentioned therein is not Jahira Bi but to Jahira, d/o (Bin) Abdul Sattar Sab. So the careful perusal of the document. at, Ex. P3 reveal that Abdul Sattar was not the owner of the suit property and the land mentioned in Ex. P3 is not the suit land and in this context, the plaintiffs do not acquire any right to the suit property. 15. Now, as could be seen from the provisions of Section 90 of the Indian Evidence Act. it is necessary for the plaintiffs to produce the original sale deed but Ex. P3 is not the suit land and in this context, the plaintiffs do not acquire any right to the suit property. 15. Now, as could be seen from the provisions of Section 90 of the Indian Evidence Act. it is necessary for the plaintiffs to produce the original sale deed but Ex. P3 is the certified copy of the sale deed. The plaintiffs have not offered any explanation as to why the original sale deed was not produced in the suit and so far as Section 90 of the Indian Evidence Act is concerned, it is very much applicable only in respect of an original document, and not the certified, copies. In the circumstances, the certified copy cannot be accepted as secondary evidence. Furthermore, the perusal of Record of Rights at Exs. P6 and P8 reveal that they were obtained by the plaintiffs in the year 1971, though, the suit is instituted in. the year 1.982. As to why the plaintiffs kept quite all along since at least after the purchase of the suit property by the first defendant is not satisfactorily explained. 16. Now, as could be seen from Exs. P1 and P2, the release deeds said to have been executed, the certified copies and the originals have not been produced. There is no explanation oilered as to why the originals of Exs. P1 and P2 are not produced. So in the absence of the originals, the contents of Exs. P1 and P2 cannot be looked into. Even otherwise, as could be seen from these two documents, there is no mention of the suit land and in the circumstances, it cannot be said that defendants 2 and 3 released their rights in the suit land under Exs. P1 and P2. The evidence reveals that prior to the sale of the suit property by defendant No. 2 in favour of first defendant, it was in the name of defendants 2 and 3 and after the execution of Ex. P1, the defendant No. 2 has relinquished his rights in favour of first defendant and the sale deed is the document which conveys the title in favour of the first, defendant. P1, the defendant No. 2 has relinquished his rights in favour of first defendant and the sale deed is the document which conveys the title in favour of the first, defendant. So, therefore, the scrutiny of the evidence led by the parties reveal that the suit property was never owned by either Abdul Sattar or Jahira Bi and it was the property of defendants 2 and 3 which has been sold to the first defendant. 17. Now, coming to the question with regard to the limitation, it is the contention of the learned counsel for the plaintiffs that Article 65 of the Limitation Act. applies to and that suit has been filed within the limitation, period. As could be seen from Article 65 of the Limitation Act, the suit for possession of immovable property can be filed within 12 years from the date when the possession of the defendant becomes adverse to the plaintiffs. Though the Lower Appellate Court, held that the suit instituted is well within the time, the view expressed is incorrect as the plaintiffs never instituted the suit for possession of the property even when it was standing in the name of defendants 2 and 3. It is relevant to note that as per the claim made by the plaintiffs, Abdul Sattar was the owner of the suit property prior to 1932 and that he had given this property to Jahira Bi, his second wife under the mahar sale deed Ex. P3 and if Jahira Bi is to be the absolute owner of the suit property and if it was not in her possession all along since from the date of Ex. P3, the possession of defendants 2 and 3 would be adverse to the interest of Jahira Bi in the suit land. Therefore, even if Article 65 is applicable to the facts, the suit instituted is not in time. Even otherwise, if the provisions of Section 27 of the Limitation Act: is perused, Jahira Bi gets a right to possession of the property from the date of Ex. P3, Neither Jahira Bi nor the plaintiffs ever instituted any suit for possession right from. 1932 onwards till the property was sold by defendants 2 and 3 in favour of the 3rd defendant. P3, Neither Jahira Bi nor the plaintiffs ever instituted any suit for possession right from. 1932 onwards till the property was sold by defendants 2 and 3 in favour of the 3rd defendant. This inaction on the part of the plaintiffs to take the possession extinguishes their right in the property and thereby even under Section 27 of the Limitation Act,, the plaintiffs have no remedy to get the possession and the suit deserves to be dismissed on this count as well. Though the decision reported in Parepalli Pallalayya vs. Kasagani Ramuhi and others, 2000 (2) ALD 70 has been relied upon to claim that the suit is instituted within the time, in the context of the discussion made above, I am of the opinion that the decision is not at all applicable to the facts. The counsel also relied upon the decision of this Court reported in Dasappa vs. Seetharam, ILR 1995 Kant. 1683 wherein when a person has a right of ownership, it. is not necessary for the plaintiffs to seek a declaration and a suit for possession itself is sufficient there cannot be any dispute so far as the principle is concerned, but even the suit if it is to be treated as a suit for possession only it cannot be within the period of 12 years as the right to seek the possession accrued in favour of the plaintiff much earlier to Exs. D1 and D2. In that view of the matter, I am of the opinion that the Lower Appellate Court through its well reasoned finding, after evaluating the reasons considered by the Court has rightly allowed the appeal and hence, I answer the substantial question of law raised in affirmative and proceed to pass the following: ORDER The appeal is dismissed with costs.