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2013 DIGILAW 464 (KAR)

V. SRINIVASA PRASAD v. S. N. KRISHNAIAH SETTY

2013-04-04

ARAVIND KUMAR

body2013
JUDGMENT ARAVIND KUMAR, J.-These appeals are filed by the unsuccessful plaintiffs questioning the correctness and legality of the judgment and decree passed by XVII Additional City Civil Judge, Bangalore in O.S. Nos. 8835/2006, 8836/2006, 8837/2006 and 8838/2006, dated 9.12.2009, whereunder plaintiffs suits (O.S.Nos. 8835, 8836 & 8837/2006) for declaration and perpetual injunction and O.S. No. 8838/2006 for perpetual injunction, came to be dismissed. 2. Applications for additional evidence under Order 41, Rule 27 CPC in I.A.2/2010 have also been filed in all these appeals seeking production of 18 documents more fully described in the schedule to the respective applications. Under the said applications, as already noticed hereinabove, plaintiffs are seeking for production of 18 documents and they are as described herein below: Sl. No. Date Description 1. - Hissa Survey tippani of Sy. No. 33 of Sampigehalli village showing the division of Sy. No. 33 between Narayanappa and his brothers 2. - Village map of Sampigehalli Villgae of Yalahanka Hobli 3. - RTC of the land bearing Sy. No. 33/1 for the period 1966-67 to 1992-93, showing the name of M. Narayanappa as the owner and after him Byramma, Jayagopala Gowda and Chandrashekara Gowda in the owners and cultivators column 4. 4. 16.1.98 General power of Attorney executed by Smt. Byramma, Jayagopala Gowda and Chandrashekara Gowda, in favour of Sri. S.N.Krishnaiah Setty (1st defendant) 5. - Layout plan of Sy. No. 33/1 and 34 of Sampigehalli, showing the suit sites 6. 28.5.2001 Copy of registered sale deed executed by the 1st defendant S.N. Krishanaiah Setty as the General Power of Attorney holder of Byramma, Jayagopala Gowda and Chandrashekara Gowda 7. 6.9.2004 Tax Assessment extract issued by the Byatarayanapura Town Municipally 8. 6.9.2004 Challan showing the payment of Tax to the Byatarayanapur Municipality for the 2002-03 9. 6.9.2004 Challan showing the payment of Tax to the Byatarayanapur Municipality for the 2003-03 10. 5.3.2009 Tax paid receipt issued by the Bruhat Bangalore Mahanagara Palike, for the 2008-09 11. 23.12.2009 Property Tax paid receipt for the year 2009-10 12. 29.3.2010 Encumbrance certificate showing the sale transactions made by the 1st defendant as the general power of attorney holder of Byramma, Jayagopala Gowda and Chandrashekara Gowda, conveying the sites bearing Nos. 58/A, 55, 50, 63, 67, 64, and 68 in favour of different persons 13. 23.12.2009 Property Tax paid receipt for the year 2009-10 12. 29.3.2010 Encumbrance certificate showing the sale transactions made by the 1st defendant as the general power of attorney holder of Byramma, Jayagopala Gowda and Chandrashekara Gowda, conveying the sites bearing Nos. 58/A, 55, 50, 63, 67, 64, and 68 in favour of different persons 13. 23.3.2010 Encumbrance certificate of the site bearing No. 68 showing the suit site No. 51 as the Eastern boundary 14. 13.9.2001 Certified copy of the sale deed executed by Byramma, Jayagopala Gowda and Chandrashekara Gowda represented by their Power Attorney Holder the 1st defendant S.N. Krishnaiah Setty in favour of one Sri Balaji Singh, conveying site No. 68 showing site No. 50 and 51 situated as the Eastern side 15. 13.9.2001 Certified copy of the sale deed executed by Byramma, Jayagopala Gowda and Chandrashekara Gowda represented by their Power of Attorney Holder the 1st defendant-S.N. Krishnaiah Setty in favour of one Smt.Premaleela, conveying site Nos. 66 and 67, showing site No. 51 situated on the Eastern side of site No. 67 sold therein 16. 22.6.2001 Certified copy of the sale deed executed by Byramma, Jayagopala Gowda and Chandrashekara Gowda represented by their Power Attorney Holder the 1st defendant-S.N. Krishnaiah Setty in favour of one Smt.Thimmamma @ Shanthamma, conveying site No. 50 showing site No. 51 situated on the northern side 17. 3.3.2001 Certified copy of the sale deed executed by Byramma, Jayagopala Gowda and Chandrashekara Gowdarepresented by their Power Attorney Holder the 1st defendant-S.N. Krishnaiah Setty in favour of one Sri Krishnaprasad s/o Sri S. Sridhara Acharya, conveying site No. 47, in the said layout formed in Sy. No. 33/1 of Sampigehalli Village 18. - Photographs with negatives 3. Heard the arguments of Sri Mohan Rao, learned counsel appearing for the appellants, Sri. D.R. Ravishankar, learned counsel appearing for respondent No. 1 in all the appeals and Sri. Diwakar, learned counsel appearing on behalf of Sri. K. Suman for respondent No. 2 in all these appeals. Notice to respondent No. 3 in RFA Nos. 586/2010, 587/2010 and 588/2010 has been dispensed with. In RFA No. 585/2010, Respondent No. 3 is served and unrepresented. 4. It is the contention of Mr. Diwakar, learned counsel appearing on behalf of Sri. K. Suman for respondent No. 2 in all these appeals. Notice to respondent No. 3 in RFA Nos. 586/2010, 587/2010 and 588/2010 has been dispensed with. In RFA No. 585/2010, Respondent No. 3 is served and unrepresented. 4. It is the contention of Mr. Mohan Rao, learned counsel appearing for the appellants/plaintiffs, that Trial Court committed a serious error in dismissing the suit and not considering the material evidence available on record in proper perspective, namely, sale deeds produced by the plaintiffs which were marked as Exs.P1 and P7, relating to site Nos. 51 and 56, which has resulted in prejudice to the plaintiffs claim. He would elaborate his submission by contending that Trial Court committed a serious error in not considering the oral evidence of the plaintiffs relating to loss of original title deeds and to establish this fact, plaintiffs had produced the copy of the police complaint as per Exs.P3 and P9, respectively and the public notice issued pursuant thereto as per Exs.P4 and P10; Trial Court committed serious error in rejecting the prayer of the plaintiffs on the ground that the original title holders, namely, Shriyuths Jayagopal Gowda, Chandrashekhar Gowda and Smt. Byramma were not examined and the said issue did not arise at all, in as much as, the subsequent purchaser in whose favour sale-deed relating to suit property was executed namely, defendant No. 3 had not appeared before Trial Court, and filed his written statement or contested the claim of the plaintiff; trial Court having ordered for clubbing of the cases and recording a common evidence it ought to have taken judicial note of the fact that plaintiffs had produced the certified copy of the sale deeds relating to site Nos. 52 and 57 and it ought to have marked the said documents suo motto and contends that in respect of site Nos. 52 and 57 and it ought to have marked the said documents suo motto and contends that in respect of site Nos. 51 and 56, which had been produced and marked as Exs.P1 and P7, clearly indicated that the oral testimony of PW1 was corroborated by documentary evidence; General Power of Attorney holder viz., first defendant has not denied the execution of sale deeds in favour of plaintiffs and neither he has proved his right in executing the sale deeds in respect of the very same suit schedule properties in favour of defendant No. 3, as General Power of Attorney holder of defendant No. 2 or defendant No. 2 had proved that he possessed title to the suit schedule property and as such he had executed the power of attorney in favour of defendant No. 1 and thereby, defendant No. 1 executing the sale deed in favour of defendant No. 3 and as such trial Court ought to have drawn adverse inference against the defendants; in view of the fact that defendants 1 and 3 having not denied the execution of the sale deeds in favour of plaintiff trial Court ought to have decreed the suit; non-examination of attestors to the sale deed, was not fatal and Trial Court ought to have presumed the execution and authenticity of the general power of attorney executed by the erstwhile owners in favour of defendant No. 1 by raising presumption under Section 84 of the Indian Evidence Act; plaintiffs are in actual and physical possession of the sites in question which are vacant and to deprive right of the plaintiffs, defendants 1 and 2 have created the sale deeds in favour of defendant No. 3, subsequently and sale deeds executed by first and second defendants in favour of third defendant being subsequent to sale deed of the plaintiffs, Trial Court ought to have decreed the suit by cancelling the said sale deed executed by defendants 1 and 2 in favour of defendant No. 3; as such he contends the Trial Court has passed an erroneous judgment calling for interference at the hands of this Court and prays for judgment and decree of the Trial Court to be set aside and appeal be allowed or in the alternate he submits, in view of additional evidence being sought for by producing additional documents matter be remitted back to the Trial Court for fresh adjudication to enable the plaintiff to establish that their vendors, namely, the persons who had executed the power of attorney in favour of defendant No. 1 had title to the suit properties. 5. Per contra, Sri D.R. Ravi Shankar, learned Counsel appearing for respondent No. 1 would support the judgment and decree passed by the trial Court and though he initially contended that suit itself is not maintainable on account of plaintiff not seeking for adjudication of sale deeds being declared void and prayed for cancellation of sale deed alone having been sought and as such appeal was not maintainable, he retraced his steps and sought leave of the Court to urge this ground before the trial Court with a liberty to file written statement, since, first defendant has not filed his written statement, in the event of application for additional evidence being allowed and matter being remanded back to the trial Court. As otherwise, he would submit that judgment and decree passed by the trial Court is based on proper appreciation of material evidence available on record and it does not suffer from any infirmities whatsoever. He contends that findings of the trial Court are neither contrary to facts nor contrary to material evidence, and as such prays for dismissal of these appeals. 6. Sri Diwakar, learned Counsel appearing on behalf of Sri K. Suman, for respondent No. 2 would also support the judgment and decree passed by the trial Court and prays for dismissal of these appeals. 7. After considering the submissions made by learned Advocates and on perusal of judgment and decree passed by the trial Court, I am of the considered view that following points would arise for my consideration:- 1. Whether application-I.A. No. 2/2010 filed by plaintiff/appellant under Order 41, Rule 27 read with Section 151 of CPC is to be allowed and if so, whether the matter requires to be remanded to the trial Court in its entirety or partially namely to record findings on the additional documents produced? 2. Whether the common judgment and decree passed by the trial Court in O.S. Nos. 8835/2006, 8836/2006, 8837/2006 and 8838/2006 is based on due and proper appreciation of evidence on record or it suffers from any material irregularity calling for interference by this Court? And, if so, whether the judgment and decree passed by the trial Court is to be affirmed or reversed? 3. What Order? 8. Facts in brief leading to the filing of these appeals can be crystallized as under by referring to the parties as per their rank in the trial Court. 9. And, if so, whether the judgment and decree passed by the trial Court is to be affirmed or reversed? 3. What Order? 8. Facts in brief leading to the filing of these appeals can be crystallized as under by referring to the parties as per their rank in the trial Court. 9. Plaintiffs filed in all four suits O.S. Nos. 8835/2006, 8836/2006 and 8837/2006 seeking for cancellation of the sale deeds dated 27.04.2004 executed by first defendant for and on behalf of second defendant in favour of third defendant and to restrain defendant No. 3 or others claiming under him or through him from interfering with the peaceful possession and enjoyment of plaintiffs suit schedule sites namely site Nos. 51, 52 and 57. Plaintiff in O.S. No. 8838/2006 sought for perpetual injunction against defendant Nos. 1 and 2 therein, namely to restrain the defendants from interfering with plaintiff's peaceful possession and enjoyment of suit schedule site namely site No. 56. 10. On service of suit summons, second defendant appeared and filed his written statement. Defendant No. 1 in all the suits and third defendant in O.S. Nos. 8835, 8836, 8837/2006 and second defendant in O.S. No. 8838/2006 were placed ex parte. In the written statement filed by second defendant plaint averments came to be denied and he sought for dismissal of the suit. Trial Court by order dated 28.09.2007, directed for clubbing of all the suits namely O.S. Nos. 8836/2006, 8837/2006 and 8838/2006 with O.S. No. 8835/2006 and for recording of common evidence. The guardian of plaintiff in O.S. No. 8838/2006, filed affidavit evidence and additional affidavit towards examination in chief and said witness was treated as P.W.2. 11. On the basis of pleadings of parties, trial Court framed issues. In O.S. Nos. 8835/2006, 8836/2006 and 8837/2006 following issues came to be framed. 1. Whether the plaintiff proves that he is the owner of the plaint schedule site? 2. Whether the plaintiff proves that the first and second defendants in collusion with each other have fabricated and created the sale deed dated 27.04.2004? 3. Whether the plaintiff proves that the sale of the plaint schedule site by the first and the second defendants in favour of the third defendant is fraudulent and illegal? 4. Whether the defendants prove the Court fee paid is insufficient? 5. What decree or order? 12. 3. Whether the plaintiff proves that the sale of the plaint schedule site by the first and the second defendants in favour of the third defendant is fraudulent and illegal? 4. Whether the defendants prove the Court fee paid is insufficient? 5. What decree or order? 12. In O.S. No. 8838/2006, following issues came to be recasted by the trial Court during the course of judgment and they read as under:- 1. Whether plaintiff proves that as on the date of suits she was in possession of suit schedule premises? 2. Whether plaintiff proves there is interference by the defendants? 3. What Order or decree? 13. In O.S. Nos. 8835/2006, 8836/2006 and 8837/2006 plaintiff got himself examined as PW.1. In O.S. No. 8838/2006 the mother of the plaintiff as natural guardian of plaintiff got herself examined as PW.2. Plaintiffs in all produced 14 documents and got them marked as Exs. P. 1 to P. 14. Defendants did not lead any oral evidence and no documents were produced on their behalf. On appreciation of evidence of parties, trial Court dismissed the suit which is now assailed in the present appeals. Findings of the trial Court: 14. Trial Court dismissed the suits on the ground that plaintiff was not been able to establish the title of their predecessors and no documentary evidence was placed before Court to consider the claim of plaintiff; sale deeds produced by plaintiff have not been proved; no evidence available to establish that plaintiff's vendor's had any title to the suit schedule property. On these grounds, trial Court dismissed the suit of the plaintiffs. 15. If Point No. 1 formulated above is answered in affirmative, i.e., in favour of the plaintiff-appellant in its entirety and matter requires to be remanded to the trial Court, then it may not be necessary to examine point No. 2. As to whether entire matter requires to be remanded back to the trial Court or for the purpose of securing additional evidence only it requires to be remanded is being examined. Thus, point No. 1 formulated herein above is taken-up for adjudication first. Re: Point No. 1: 16. Perusal of documents produced along with application for additional evidence when read in conjunction with the affidavit filed in support of said application, it would indicate that undisputedly suit schedule properties are vacant sites. Thus, point No. 1 formulated herein above is taken-up for adjudication first. Re: Point No. 1: 16. Perusal of documents produced along with application for additional evidence when read in conjunction with the affidavit filed in support of said application, it would indicate that undisputedly suit schedule properties are vacant sites. Plaintiffs in O.S. No. 8235, 8836 and 8837 have claimed to have purchased site Nos. 51, 52 and 57 from the predecessor in title Shriyuths Jayagopal Gowda, Chandrashekara Gowda and Smt. Byramma, through their power of attorney holder Sri S.N. Krishnaiah Shetty. Evidence on record would indicate that all the three sale deeds were produced before the trial Court namely certified copies. However, for reasons best known, only one sale deed namely sale deed relating to site No. 51 came to be marked as Ex.P.1. Though sale deeds relating to site Nos. 52 and 57 were produced, they were not marked. As observed herein above, common evidence has been recorded in all the suits, which was not the exercise which could have been undertaken by the trial Court. In fact trial Court in the judgment itself has observed that such an exercise should not have been undertaken and it is because of confusion that was created, documents have not been marked though available on file to examine at whose fault this situation has emerged would not serve any fruitful purpose. 17. Be that as it may, additional documents now produced along with application for additional evidence are the documents issued by revenue authorities which would indicate that there is some nexus to suit schedule properties. Some of the RTC's indicate the name of kathedar and tiller named as Narayanappa or Narayanagowda, property taxes have been collected by Municipal-Council, Byatarayanapura from plaintiff. However, this Court would not embark upon an enquiry to ascertain as to whether they actually relate to suit schedule properties or otherwise, since any such enquiry if conducted and finding given thereon by this Court may prejudice the rights of both parties. Further, defendants have not had an opportunity to rebut such evidence. These documents are also not marked and defendants have seriously disputed these documents though objections have not been filed to the applications for additional evidence. Further, defendants have not had an opportunity to rebut such evidence. These documents are also not marked and defendants have seriously disputed these documents though objections have not been filed to the applications for additional evidence. It would suffice if the matter is remanded to the trial Court to consider these documents produced by way of additional evidence by the plaintiff to the defendants to rebut said evidence and also by reserving liberty to both parties namely, plaintiffs and defendants to prove their respective contentions. The documents now sought to be produced way of additional evidence may have a direct bearing and impact on the issues formulated by the trial Court for its adjudication and as such it would be in the interest of both the parties that matter be remanded back to trial Court for adjudication afresh by considering the additional documents now produced by plaintiff by way of additional evidence, so that trial Court would be able to ascertain by analysing both oral and documentary evidence and to arrive at a conclusion about plaintiff's vendor possessing title to suit property to convey it in favour of plaintiff since trial Court has dismissed for suit on that ground alone. 18. It is also not in dispute that first defendant had not filed written statement before trial Court and he had been placed ex parte. However, before this Court first defendant has appeared and has defended the judgment and decree passed by trial Court. In view of subsequent developments namely, plaintiff having produced above said documents by way of additional evidence, it would be necessary in the interest of justice that first defendant should also be afforded an opportunity to putforth his defence by filing written statement within an outer limit of 30 days from the date of first hearing which will be fixed during the course of this order. Second defendant would also be at liberty to file additional written statement if any, and if so advised. 19. Second defendant would also be at liberty to file additional written statement if any, and if so advised. 19. Though learned Advocate appearing for second defendant has contended that in O.S. No. 8838/2006 judgment and decree passed by trial Court be sustained, I am not inclined to accept the said contention for reasons more than one namely, (i) trial Court has not accepted the documents produced by plaintiff, as noticed herein above, only on the ground that plaintiff had not been able to demonstrate that predecessor in title of plaintiff had possessed valid title to the suit schedule property. In view of the fact that plaintiff is now being permitted to lead additional evidence by producing the documents above referred to and any finding given by the trial Court on those documents would necessarily have a bearing on the contentions raised by the parties in O.S. No. 8838/2006 also, judgment and decree passed by trial Court in O.S. No. 8838/2006 also requires to be set aside and matter requires to be remanded back to trial Court for disposal afresh. 20. Point No. 1 formulated herein above is answered by holding that matter requires to be remanded to the trial Court in its entirety and it is further clarified that entire judgment and decree has to be set aside for adjudication afresh in view of the documents now produced by plaintiff by way of additional evidence would have direct bearing on the issue of title of plaintiffs. In view of liberty having been given to first defendant to file written statement and liberty having been given to second defendant to file additional written statement, no prejudice would be caused to defendants 1 & 2 particularly when 3rd defendant has neither contested the suit or these appeals and in whose favour suit schedule properties having been sold. In view of the aforesaid discussion I.A.2/2010 filed by appellants/plaintiff in the above appeals are hereby allowed and matter is remanded back to trial Court by setting aside the judgment and decrees passed by trial Court. Re: Point No. (2): 21. Point No. 2 is not required to be adjudicated on merits and answered since point No. 1 is answered in favour of plaintiffs and matter has been ordered to be remanded to trial Court for fresh adjudication. Re: Point No. (2): 21. Point No. 2 is not required to be adjudicated on merits and answered since point No. 1 is answered in favour of plaintiffs and matter has been ordered to be remanded to trial Court for fresh adjudication. As already observed herein above, trial Court having arrived at a conclusion that suit was being dismissed only on the count of plaintiff having not established title of their predecessor and now by way of additional evidence, plaintiffs having sought leave of the Court to produce documents as additional evidence and as the matter having been remanded back to trial Court for adjudication afresh, judgment and decree passed in O.S. Nos. 8835 to 8838/2006 requires to be set aside in its entirety and accordingly it is hereby set aside. Re: Point No. (3): 22. For reasons aforesaid, following order is passed: (1) RFA Nos. 585/2006, 586/2006, 587/2006 & 588/2006 are hereby allowed and judgment and decrees passed in O.S. Nos. 8835/2006, 8836/2006, 8837/2006 and 8838/2006 by XVII additional City Civil Judge, Bangalore, dated 09.12.2009 are hereby set aside. (2) Matters are remanded back to trial Court for adjudication of the suits afresh. (3) Appellants/plaintiffs are permitted to produce the documents now sought to be produced along with I.A.2/2010 in all these appeals by way of additional evidence and it is needless to mention that trial Court shall permit plaintiffs to mark only such of those documents which are admissible in evidence. (4) Both the parties are at liberty to lead evidence. (5) First defendant is at liberty to file written statement if so advised within 30 days from date of appearance before Court and second defendant is also at liberty to file additional written statement if any. (6) Parties are also at liberty to amend the pleadings. (7) The parties namely plaintiffs and defendants 1 & 2 shall appear before trial Court on 25.04.2013 without waiting for any fresh notice. (8) Trial Court shall issue fresh suit summons to third defendant for appearance. (6) Parties are also at liberty to amend the pleadings. (7) The parties namely plaintiffs and defendants 1 & 2 shall appear before trial Court on 25.04.2013 without waiting for any fresh notice. (8) Trial Court shall issue fresh suit summons to third defendant for appearance. (9) Interim order granted by this Court on 28.06.2010 which is to the effect that respondents (defendants) shall not alienate, encumber or alter the nature of the properties described in the schedule to I.A. No. 1/2010 in all these appeals, shall be in operation for a further period of three months from today within which time plaintiffs shall make necessary application before trial Court seeking similar relief and defendants would be at liberty to file objections to said application. Trial Court would be at liberty to pass orders on merits without being influenced by its earlier judgment or orders passed by this Court. (10) Registry to transmit the records to jurisdictional Court forthwith. (11) Parties to bear their costs.