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2015 DIGILAW 889 (KAR)

IRAMMA v. CHANDRASHEKRAYYA @ SHEKARAYYA

2015-08-10

B.VEERAPPA

body2015
JUDGMENT 1. This is a plaintiffs’ regular second appeal filed against the judgment and decree dated 08.07.2011 made in R.A. No.15/2009 on the file of Senior Civil Judge, Ron confirming the judgment and decree dated 17.04.2009 made in O.S. No.116/2008 on the file of the Civil Judge (Jr. Dn.), Ron dismissing the suit for declaration and permanent injunction. 2. The appellants – plaintiffs filed original suit for declaration and permanent injunction against the defendants contending that 1/3rd share in the land bearing R.S. No.348/2 measuring 1 acre 8 guntas of Abbigeri Village, Ron Taluk and the house bearing VPC No.894 belongs to the propositus Maharudrayya, who died about 70 years back and has sons by name Shivayya, Kashayya and Ishayya who have died. The said Shivayya had sons by name Chandrashekarayya, Shivaputrayya and Nandikeshavarayya, who are the defendant Nos.1 to 3. The said Ishayya had two sons by name Maharudrayya and Irayya. The said Maharudrayya died and his wife Iramma and children Channamma and Rekha are the plaintiff Nos.1 to 3. The suit properties are the properties of said Maharudrayya which have been succeeded by his said sons and further contended that defendant Nos.1 to 3 have left the village since about 20 to 25 years back, as there was a famine and till today they have not been turned up. The said Maharudrayya and his son Ishayya searched for them and the whereabouts of defendant Nos.1 to 3 not traced and therefore, the plaintiff published a notice on 31.05.2008 in Navodaya Kannada daily newspaper, but the defendant Nos.1 to 3 have not turned up and they have not traced out. Defendant Nos.1 to 3 have disappeared for more than 7 years, since from 20 to 25 years and they are to be considered as dead. The suit properties were in joint possession and enjoyment of the sons of propositus, wherein the said Ishayya got 2/3rd share, but it was sold in favour of Shekawwa wife of Basappa Nadavalagudda and registered sale deed in the year 199697 and the remaining share of the defendant Nos.1 to 3 are in joint possession and enjoyment of the plaintiffs since 20 to 25 years. 3. 3. It is the further case of the plaintiffs that the defendants had 1/3rd share each in the suit houses and said Kashayya has received Rs.6,000/from the plaintiff on 16.04.1987 towards his 1/3rd share in the suit house and relinquished the share in favour of plaintiff No.1. Therefore, the defendant No.4 who is the son of deceased Kashayya is made as formal party and the plaintiffs requested the panchayath authorities to enter their name by deleting the names of the defendant Nos.1 to 3 in the records of the suit properties and they were instructed to get the decree that the defendant Nos.1 to 3 in the eye of law have died etc. Therefore, they have filed the suit. Notice issued by the defendants could not be served and therefore, suit summons were issued through paper publication in Navodaya Kannada daily newspaper and ultimately placed ex parte. 4. Based on the plaint averments, the Trial Court framed the following issues: “1) Whether the plaintiffs prove that the defendants No.1 to 3 have disappeared since 2025 years from the village? 2) Whether the plaintiffs are entitled for the relief as prayed for? 3) What order or decree?” 5. In order to establish the case, the plaintiffs examined plaintiff No.1 as P.W.1 and witness as P.W.2 and marked the documents Exs.P1 to P5. 6. Considering the entire material on record, the Trial Court recorded a finding that the plaintiff failed to prove that the defendant Nos.1 to 3 however disappeared since 20 to 25 years from the village and they are entitled to any relief as prayed for in the plaint. The suit accordingly came to be dismissed. 7. Aggrieved by the said judgment and decree, the plaintiffs filed appeal in R.A. No.15/2009 before the Senior Civil Judge, Ron, who after hearing both the parties dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the concurrent finding of fact, the present second appeal is filed. 8. I have heard the learned counsel for the appellants to the lis. 9. Shri V.G.Kattimani, learned counsel for Shri B.V.Somapur has contended that the impugned judgment and decree passed by both the Courts below are contrary to law and evidence on record and same are liable to be set aside. 8. I have heard the learned counsel for the appellants to the lis. 9. Shri V.G.Kattimani, learned counsel for Shri B.V.Somapur has contended that the impugned judgment and decree passed by both the Courts below are contrary to law and evidence on record and same are liable to be set aside. He further contended that both the Courts failed to notice that inspite of notice issued in Navodaya Kannada daily newspaper, defendants or the relatives have not appeared in the suit and not come forward to state that defendant Nos.1 to 3 are living. Therefore, the Courts below ought to have adjudicated the suit of the plaintiffs declaring that the defendant Nos.1 to 3 presumed to be dead. Therefore, he sought to set aside the impugned judgment and decree of the Courts below. 10. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellants and perused the entire material on record. 11. It is the case of the plaintiffs that defendant Nos.1 to 3 have left the village since about 20 to 25 years back and their whereabouts are not known and therefore, they have to be treated as dead and plaintiffs should be declared as owners of the properties by granting permanent injunction restraining the 4th defendant. Ex.P1 RTC of the suit land properties standing in the name of the 1st defendant and in the name of the Government, Exs.P2 to P3 VPC property extracts of suit house are standing in the name of defendant Nos.1 and 2 and Maharudrayya and also defendant No.3. Ex.P4 public notice issued in Navodaya Kannada daily newspaper, stating that defendant Nos.1 to 3 disappeared since 20 to 25 years, but the plaintiffs have not produced any satisfactory material to show that they have searched defendant Nos.1 to 3 and plaintiffs have not lodged any complaint nor published in a reputed regional news paper about the disappearance of defendant Nos.1 to 3 from the village. If defendant Nos.1 to 3 have really disappeared since 20 to 25 years, the plaintiffs should have lodged a Police complaint, but no such complaint is lodged and no notice or information is given in a reputed regional newspaper. If defendant Nos.1 to 3 have really disappeared since 20 to 25 years, the plaintiffs should have lodged a Police complaint, but no such complaint is lodged and no notice or information is given in a reputed regional newspaper. The public notice as per Ex.P4 given in a local newspaper which is circulated in a particular and limited place and not throughout the Karnataka or any other State and it is also relevant to note that the plaintiffs have not ventured to examine any of the relatives of defendant Nos.1 to 3 or the relatives of the plaintiffs to show that the defendant Nos.1 to 3 have disappeared about 20 to 25 years except the allegations made in the plaint averments. 12. P.W.2 examined who is not related either to the plaintiffs or defendants. In view of provisions of Section 108 of the Indian Evidence Act, 1872 the burden of proof that a person who is not heard of for seven years is presumed to be dead is on the person who affirms it. In the present case, the plaintiffs affirmed that the whereabouts of defendant Nos.1 to 3 have left the village about 20 to 25 years back and they have not produced any sufficient, reliable and satisfactory material document and evidence to prove that the defendant Nos.1 to 3 are dead. 13. The provisions of Section 108 of the Indian Evidence Act reads as under: “108. Burden of proving that person is alive who has not been heard of for seven years.—1[Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is 2[shifted to] the person who affirms it.” 14. A plain reading of said section makes it clear that the burden on the person who affirms a man is alive or dead has to be proved by cogent evidence. In the present case, the plaintiff has not examined or produced any evidence to show that defendant Nos.1 to 3 are dead and he has not satisfactorily proved that defendants 1 to 3 have left the village about 20 to 25 years back and they are presumed to be dead. In the present case, the plaintiff has not examined or produced any evidence to show that defendant Nos.1 to 3 are dead and he has not satisfactorily proved that defendants 1 to 3 have left the village about 20 to 25 years back and they are presumed to be dead. There is no sufficient or believable or supportable material and evidence to presume that defendants 1 to 3 are dead. In the absence of the same, the plaintiff is not entitled to any relief before this Court in view of the dictum of the Hon’ble Supreme Court in the case of Saroop Singh vs. Banto and others, reported in (2005) 8 SCC 330 . The Hon’ble Supreme Court at paragraphs 22 and 26 held as under: “22. There is neither any doubt nor dispute that the date of death of Indira Devi is not certain. By reason of the aforementioned provision, a presumption of death can be raised. In this case, however, death of Indira Devi is not in question, the date of death is. In the instant case, both the parties have failed to prove the date of death of Indira Devi. However, having regard to the presumption contained in Section 108 of the Evidence Act, the Court shall presume that she was dead having not been heard of for a period of seven years by those who would naturally have heard of her, if she had been alive, but that by itself would not be a ground to presume that she had died seven years prior to the date of institution of the suit. 26. In the instant case, the question of applicability of the Limitation Act does not arise. The appellant – first defendant could have legitimately raised a plea that Indira Devi having died in the year 1961, his possession thereafter has become adverse to the true owner and, thus, on the expiry of the statutory period of limitation he had perfected his title by adverse possession. But, he did not raise such a plea. Even before us, Mr Jain categorically stated that the appellant does not intend to raise such a plea.” 15. But, he did not raise such a plea. Even before us, Mr Jain categorically stated that the appellant does not intend to raise such a plea.” 15. Considering the both oral and documentary evidence, the trial court also recorded a finding that when the plaintiffs failed to prove that defendants 1 to 3 have disappeared and they have not appeared for more than seven years, they cannot be declared as owners and possessors of the suit properties and the permanent injunction against defendant4 and merely because the whereabouts of defendants 1 to 3 not known for more than 20 to 25 years, the plaintiffs automatically cannot become the owners and rights of defendants 1 to 3 in respect of the suit schedule property. The plaintiffs have not produced any material document to prove that the said persons are dead. 16. Admittedly in the present case, the plaintiffs have not raised any pleading that after the death of defendants 1 to 3 their possession became adverse to the true owner and that on the expiry of the statutory period of limitation they had perfected his title by adverse possession. In the absence of the same, the trial court dismissed the suit of the plaintiff which is based on the cogent legal evidence on record and the same is in accordance with law. 17. On reappreciating the entire material on record, the Appellate Court has recorded a finding that the next mode of tracing defendant Nos.1 to 3 adopted by the plaintiffs is by way of public notice in a paper publication which was published in Navodaya daily newspaper as per Ex.P4. On meticulous reading of Ex.P4, nowhere it is clear that the said paper is published and circulated in the eight districts of North Karnataka. Even otherwise, if it is considered that said Ex.P4 duly circulated in eight North Karnataka districts, certainly it amounts to be case of noncompliance of prerequisite condition in the claim of the plaintiffs to declare civil deaths against the defendant Nos.1 to 3. Because the proper mode of search regarding the whereabouts of defendant Nos.1 to 3 is mandatory on the part of the plaintiffs to seek such civil deaths against the defendant Nos.1 to 3. When the entire State comprising 32 Districts, the Appellate Court also recorded a finding that the State is comprising of 30 Districts at that time. Because the proper mode of search regarding the whereabouts of defendant Nos.1 to 3 is mandatory on the part of the plaintiffs to seek such civil deaths against the defendant Nos.1 to 3. When the entire State comprising 32 Districts, the Appellate Court also recorded a finding that the State is comprising of 30 Districts at that time. When that is so, it cannot be said that defendant Nos.1 to 3 have jurisdiction only in eight districts of North Karnataka. Even there is likelihood of pleaing some other districts apart from eight districts of North Karnataka in which it is stated to be the said Navodaya daily newspaper is being circulated. Even there are every chance of pleaing by the defendant Nos.1 to 3 to the other States in India. In respect of the same no proper steps have been taken by plaintiffs apparently at the outset with respect to other districts, Karnataka State also. When that is so, it is clear that the plaintiffs have not taken any steps by way of paper publication Ex.P4 in a very restricted sense is not acceptable in the eye of law. 18. It is also no doubt the lower Court mentioned to make certain observation with regard to the entry in Ex.P1, as a Government, but in fact it is a Government patta. The said observation will never stand to the aid of the plaintiffs to seek that the instant appeal being allowed. Unless and until the plaintiffs established substantial questions of law regarding the proper and exhaustive efforts put forth by them to search and trace out and know the whereabouts of defendant Nos.1 to 3, the appeal filed by the plaintiffs does not deserve to be considered. Therefore, the lower Appellate Court has dismissed the appeal confirming the judgment and decree of the Trial Court. 19. Further, the appellants have not produced any material to prove that they have made all efforts to trace defendant Nos.1 to 3, when the plaintiffs are claiming the property rights of defendant Nos.1 to 3 in respect of immovable property, as it is an obligation on the part of the plaintiffs to make every endeavour to trace defendant Nos.1 to 3. Efforts made by plaintiffs in the present case seems only to grab the property of defendant Nos.1 to 3 and not to trace them personally. Efforts made by plaintiffs in the present case seems only to grab the property of defendant Nos.1 to 3 and not to trace them personally. In view of the concurrent finding of fact recorded by both the Courts below that the plaintiffs failed to prove that the defendant Nos.1 to 3 have disappeared since 20 to 25 years and plaintiffs are not entitled to any relief in the suit filed by them for declaration that they were the owners and permanent injunction cannot be granted. The plaintiffs have not made out any case for interference by this Court exercising the powers under the provisions of Section 100 of the Code of Civil Procedure. No substantial question of law involved in the present appeal. Accordingly, the appeal is dismissed at the stage of admission itself.