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2014 DIGILAW 80 (KAR)

K. Narayanappa v. Shaik Ismail Sab

2014-01-23

RAM MOHAN REDDY

body2014
JUDGMENT : Ram Mohan Reddy, J. This is a plaintiff's appeal against the concurrent findings of the Courts below in a suit for declaration and permanent injunction. Appellant instituted O.S. No. 28/1996 for declaration and permanent injunction in respect of immovable property being agricultural lands measuring 2 acres in Sy. No. 273; 2 acres and 1 acre 20 guntas (two portions) in Sy. No. 6, totaling to 5 acres 20 guntas, Hindiganala village, Nandagudi Hobli, Hoskote Taluk, arraigning the respondent as defendant. 2. The suit was opposed by filing written statement of the defendant, inter-alia not disputing the grant dated 28.08.1972 of 2 acres in Sy. No. 6 in favour of the plaintiff, while disputing the factum of grant dated 29.03.1971 over 1 acre 20 guntas of land in Sy. No. 6 and investing title in himself in the said property and as regards the grant certificate dated 29.12.1967 in respect of 2 acres of land in Sy. No. 6 in favour of Gururajachar who inturn conveyed the said property by sale deed dated 31.01.1975 in favour of plaintiff, was not within the knowledge of the defendant. According to the defendant, land measuring 2 acres in Sy. No. 6 granted to him under the land grant rules is bounded on the East by Honekal Bachanna's land, West by Ittasandra Gomal, North by plaintiffs land and South by Ittasandra village road. 3. In the trial, the plaintiff introduced as many as 30 documents marked as Exs. P. 1 to P. 30 out of which, Exs. P. 1 and 2 relate to the grant certificates issued by the authorities in favour of the plaintiff and Ex. P. 3-grant certificate in favour of Gururajachar, the vendor of the property conveyed under the sale deed dated 31.01.1975, Ex. P. 4 in favour of the plaintiff, and the remaining being other revenue records such as RTC, pahani, and mutation extracts. Plaintiff examined one Byrappa as P.W. 2. Defendant was examined as D.W. 1, and two witnesses, Basappa as D.W. 2 and Venkatesha as D.W. 3 and marked Exs. D. 1 to D. 8. The trial court by judgment and decree impugned, concluded that in the absence of the sketch, appended to the grant certificates, Exs. P. 1 to P. 3, the plaint schedule property could not be identified and accordingly dismissed the suit. 4. D. 1 to D. 8. The trial court by judgment and decree impugned, concluded that in the absence of the sketch, appended to the grant certificates, Exs. P. 1 to P. 3, the plaint schedule property could not be identified and accordingly dismissed the suit. 4. In appeal, the plaintiff/appellant filed I.A. No. 1 under Order 41 Rule 27 for additional evidence and I.A. No. 2 under Order 26 Rule 9 for appointment of a commissioner to conduct a survey of the suit schedule properties, and submit survey sketch. The lower appellate court found favour with the findings of the trial court and having noticed that no useful purpose would be served by additional evidence and to appoint a surveyor, at a belated stage, rejected the applications. In addition, it noticed that boundaries shown in the sale deed, Ex. P. 4 in respect of land grant under Ex. P. 3 in favour of Gururajachar, the vendor, mentioning existence of Sy. No. 5 on the Southern side, was found to be different in the plaint schedule and hence felt that there was no need for any additional evidence or appointment of a commissioner and accordingly, rejected the applications, while dismissing the appeal by judgment and decree impugned. 5. This appeal was admitted on 14.12.2009 to consider the following substantial questions of law: (i) Whether on the pleadings and materials brought on record by the plaintiff, the Courts below are right in holding that the plaintiff has failed to prove the identity of the plaint schedule property (ii) Whether the appreciation of evidence by the Courts below is perverse and illegal" 6. Having heard the learned counsel for parties, perused the pleadings, depositions, evidence-both oral and documentary as well as I.A. Nos. 1 and 2 filed in R.A. No. 81/2003, with the consent of the learned counsel for parties, the additional substantial question of law for consideration is as follows: "Whether in the facts and circumstances, the lower appellate Court was justified in rejecting I.A. No. 1 under Order 41 Rule 27 for additional evidence and I.A. No. 2 under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a court commissioner 7. Undoubtedly, plaintiff except placing on record the grant certificates, the sale deed executed by the grantee by name Gururajachar and the revenue records, such as, RTC, pahani and the mutation, did not place on record the sketch which is said to form part of grant certificates, Exs. P. 1 to P. 3. If the sketch had been placed on record, then there would have been no difficult in identifying the suit schedule property, more so, since the extent of Sy. No. 6 is said to be more than 80 acres. Prima-facie, there is material over grant of land in favour of the plaintiff as well as his vendor by name Gururajachar. So also, regard being hand to the presumption arising under Section 133 of the Karnataka Land Revenue Act, 1964, the entries in the revenue records such as RTC, pahani and mutation, though rebuttable presumption, the name of the plaintiff when shown in RTC at columns Nos. 9 and 12 stating that he is the cultivator of the lands in question is indicative of the fact that the plaintiff is in possession of the said lands. The question therefore was, whether there was enough material to identify the lands to form a compact block within the boundaries mentioned in the suit schedule 8. It is in the aforesaid context of facts that the plaintiff filed I.A. Nos. 1 and 2 before the lower appellate Court. Those applications when considered, the lower appellate Court without noticing material fact that the suit was dismissed for not furnishing the sketches forming part of Exs. P. 1 to P. 3, grant certificates, disentitling the plaintiff to maintain a fresh suit for declaration, and since the revenue authorities are custodians of the records, ought to have extended an opportunity to the plaintiff to secure those records and place them before the Court as additional evidence. 9. In my considered opinion, the lower appellate Court on a perverse understanding of the claim of the plaintiff and presuming that Sy. No. 5 shown on the southern side of the land when not indicated in the boundaries to the suit schedule, observed that no useful purpose will be served by permitting additional evidence or appointing a court commissioner to survey the lands. The judgment and decree has denied justice to the plaintiff. No. 5 shown on the southern side of the land when not indicated in the boundaries to the suit schedule, observed that no useful purpose will be served by permitting additional evidence or appointing a court commissioner to survey the lands. The judgment and decree has denied justice to the plaintiff. Sub Rule (2) of Rule 27 Order 41 states that the appellate Court if requires any document to be produced or any articles to be examined to enable it to pronounce judgment or any other substantial cause may allow the application. The substantial cause was to produce records to substantiate the case of the plaintiff which aspect of the matter is given a go-bye by the lower appellate court. 10. The judgment and decree of the lower appellate court and the finding on I.A. Nos. 1 and 2 are unsustainable. In the circumstances, there is no necessity to answer the substantial questions of law framed on 14.12.2009 and suffice it to state that additional substantial question of law, is answered in the negative, i.e., that the lower appellate court was not justified in rejecting I.A. Nos. 1 and 2 filed by the plaintiff-appellant. 11. In the result, this appeal is allowed in part. The judgment and decree of the lower appellate court is set-aside. The I.A. No. 1 under Order 41 Rule 27 and I.A. No. 2 under Order 27 Rule 9 of the Code of Civil Procedure are allowed. The proceeding is remitted to the lower appellate court for consideration afresh, after extending opportunity of hearing to the parties concerned. The lower appellate Court to conclude the proceeding including recording of evidence and securing the report of the court commissioner by 30.04.2014. Parties, since represented by learned counsel are directed to be present before the lower appellant court on 30.01.2014, without further notice. Registry to transmit the records to the lower appellate court. In view of the disposal of the appeal, I.A. No. 1/2013 is dismissed as having become unnecessary. Appeal Partly Allowed.