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2017 DIGILAW 1487 (KAR)

Dasappa v. Chikkamuniyamma

2017-11-09

SREENIVAS HARISH KUMAR

body2017
JUDGMENT : 1. This appeal is by the 1st defendant in O.S.No.329/1994 on the file of the Civil Judge (Jr.Dn.) & JMFC, Devanahalli. The suit was filed by the 1st respondent Chikkamuniyamma and 2nd respondent Muniyappa. Since the 1st respondent Chikkamuniyamma is dead her legal representatives have been impleaded. By referring to the parties with respect to their position in the Trial Court, the pleadings in a nutshell are as below: In respect of 1 acre 19 guntas of land in Sy.No.119 of Mahadevakodigehalli, Jala Hobli, Bangalore North Taluk, referred to as suit property, the plaintiffs filed a suit for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the said property. The plaintiffs pleaded that the said property earlier belonged to one of them i.e., the 1st plaintiff and she sold the same in favour of one Vanitha Rao by executing sale deed on 2.12.1967 and they repurchased the very same property through the sale deed 10.11.1993. Since the date of repurchase they were in possession of the suit property carrying on agricultural operations. The 1st defendant is in occupation of 1 acre of land to the East of the suit property. On 30.05.1994 when the 2nd plaintiff was ploughing the suit property the defendants obstructed and threatened to dispossess them and thereafter they filed the suit for permanent injunction. 2. The 1st defendant in his written statement contended that the suit property was the Government land and in the records it was classified as Gomala. The suit land had not been granted to the plaintiffs or their predecessors in title and therefore the 1st plaintiff had no right to sell any part of land in Sy.No.119 in favour of Vanitha Rao. He also contended that he was in continuous uninterrupted possession and enjoyment of 1 acre of land in Sy.No.119 for more than 30 years. He pleaded further that the boundaries of the suit property shown in the plaint were not correct and that the plaintiffs were not at all in possession of the suit property. The 1st defendant filed additional written statement contending that his land was not situated on the Eastern side of the suit land, but it was situated within the boundaries given in the plaint schedule. 3. The 1st defendant filed additional written statement contending that his land was not situated on the Eastern side of the suit land, but it was situated within the boundaries given in the plaint schedule. 3. The Trial Court after examining the witnesses and appreciating the evidence both oral and documentary came to the conclusion that the plaintiffs were not able to prove the identity of the suit property and also their possession on the date of suit and therefore dismissed the suit. 4. Aggrieved by the judgment of the Trial Court the plaintiffs preferred the appeal, R.A.No.175/2004. The learned Fast Track Court Judge who decided the appeal, by its judgment dated 01.12.2009 reversed the judgment of the Trial Court and decreed the suit. Hence this second appeal. 5. On 26.11.2010 this appeal was admitted on the following substantial question of law: "Was the Appellate Court right in decreeing the suit for injunction against the appellant when a serious dispute was raised regarding identity of the property?" 6. For dismissing the suit of the plaintiffs, the Trial Court recorded the finding that the plaintiffs would rely upon three sale deeds Ex.P.1 to 3. In Ex.P.1, the certified copy of the sale deed dated 05.01.1961 the boundaries of the property are shown as towards East - land of Shanubogara Gundappana, towards West - Dongara, North - land of Venkatamma and towards South - land of Thoti Thimma and others. Ex.P.2 and Ex.P.3 pertain to the very same property where the same boundaries are mentioned. Ex.P.4 is the sale deed dated 10.11.1993 under which the plaintiffs repurchased the suit property from Vanitha Rao. In this sale deed the boundaries are mentioned as towards East - land of Munishamappa, Dasappa and Papanna, towards West - Dongara, towards North - Bagalur - Budigere Road and towards South - land of Kodige Muniyappa. In this sale deed, the total extent of the land is shown as 2 acres. Then the Trial Court referred to the answers given by PW-1 in the cross-examination to hold that according to his own admission the boundaries given in Ex.P.4 do not tally with the boundaries given in boundaries Ex.P.1 to Ex.P.3. It appears that PW-1 offered an explanation for the changes in the boundaries by saying that wrong boundaries were mentioned in Ex.P.1 to 3 and that the boundaries shown in Ex.P.4 were correct. It appears that PW-1 offered an explanation for the changes in the boundaries by saying that wrong boundaries were mentioned in Ex.P.1 to 3 and that the boundaries shown in Ex.P.4 were correct. The plaintiffs also examined one more witness PW-2 and evidence of this witness has not been believed by the Trial Court. The Trial Court then referred to the evidence given by DW-1 who admitted that the Revenue records that stood in his name with respect of 1 acre of land in Sy.No.119 of Mahadevakodigehalli was ordered to be cancelled by the Deputy Commissioner and that he did not challenge the said order. The Trial Court referred to the evidence given by DW-2 who stated that the 1st defendant was in possession of piece of land bounded on East - land of Munishamappa, West - Government Dongara, North - Road and South - land of Kodigemuniyappa. This Kodigemuniyappa was none other than the father of DW-2. Therefore assessing the evidence of all these witnesses, the Trial Court recorded the finding that if according to the plaintiffs the boundaries in Ex.P.1 to 3 were not correct and that the boundaries in Ex.P.4 was correct, the plaintiffs should have produced survey records for establishing that there was some discrepancies with regard to the mentioning of the boundaries. The plaintiffs failed to prove that the land that was in their possession was same as the land described in Ex.P.1 to 3 and that the same land was re- conveyed to them under Ex.P.4. For these reasons, the Trial Court came to the conclusion that the plaintiffs were not able to prove the identity of the property much less their possession on the date of the suit. Therefore the suit came to be dismissed. 7. The First Appellate Court re-appreciated the evidence and came to a different conclusion that a revenue record Ex.P.7 contained an entry showing that the plaintiffs were the owners as well as cultivators. Ex.P.7 has a presumptive value and it cannot be ignored. It also held that there was possibility that because of passage of time, there might have occurred changes in the boundaries and the court could take notice of this. It further held that Ex.P.1 to Ex.P.3 are documents which are more than 30 years old and because of this reason there might have taken place changes in the boundaries. It also held that there was possibility that because of passage of time, there might have occurred changes in the boundaries and the court could take notice of this. It further held that Ex.P.1 to Ex.P.3 are documents which are more than 30 years old and because of this reason there might have taken place changes in the boundaries. These changes can be inferred even though the same is not pleaded by the plaintiffs. If DW-1 had answered in the cross- examination that there was mistake in the boundaries it was only due to his ignorance and there was no need for him to obtain rectification of the boundaries in the sale deed. Another observation of the First Appellate Court is that the sale deed Ex.P.4 cannot be ignored because until it is set aside by the course known to law, document should be taken as valid and must be upheld in the court of law. 8. Assailing the finding of the First Appellate Court the learned counsel for the appellants argues that the Trial Court dismissed the suit on the ground that identity of the suit had not been established. The finding of the First Appellate Court that the defendant should have challenged the sale deed Ex.P.4 is erroneous. It is the specific case of the defendant that 1 acre of land is situated within the boundaries shown by the plaintiff. By giving wrong boundaries, the plaintiffs have included the defendants' property also. The First Appellate Court has wrongly applied Section 90 of the Evidence Act. Ex.P.4 was executed in the year 1993 and it is not 30 year old document. The Trial Court should not have drawn inference about the changes in the boundaries without there being pleading to that effect. Therefore he argues that the judgment of the First Appellate Court should be set aside and the Trial Court order restored. 9. The learned counsel for the defendant argues that defendant has not at all been in possession of any piece of land. His application for grant was cancelled by the Tahsildar. The boundaries in Ex.P.1 to 3 were not correctly written and the boundaries mentioned in Ex.P.4 are correct. The First Appellate Court has correctly held that because of passage of time changes in boundaries might have taken place. His application for grant was cancelled by the Tahsildar. The boundaries in Ex.P.1 to 3 were not correctly written and the boundaries mentioned in Ex.P.4 are correct. The First Appellate Court has correctly held that because of passage of time changes in boundaries might have taken place. When the First Appellate Court came to this conclusion after re- appreciating the evidence, the same findings cannot be interfered with. Therefore the appeal needs to be dismissed. 10. After hearing both sides, it is to be mentioned that in a suit for bear injunction, the plaintiffs have to prove their possession on the date of suit. If the dispute was with regard to the identify of the property, the plaintiffs must also establish the identity. Here in this case the boundaries of the suit property mentioned in the plaint are same as the boundaries that are found in Ex.P.4, the sale deed under which the plaintiffs re- purchased the property from Vanitha Rao. It is also the case of the plaintiffs that the plaintiffs had sold the very same property to Vanitha Rao and from her, they repurchased the same. Exs.P.1 to 3 are the sale deeds through which the plaintiffs trace their title to the suit property. But the boundaries mentioned in Ex.P.1 to 3 are not the same as the boundaries mentioned in Ex.P.4. According to PW-1 the boundaries mentioned in Ex.P.1 to 3 are not correct and that the correct boundaries are mentioned in Ex.P.4. Therefore it is clear that the plaintiffs' assert that the boundaries mentioned in Ex.P.4 are correct. If according to plaintiffs, there had taken place changes in the boundaries because of passage of time that should have been pleaded by the plaintiffs. Even assuming that what the plaintiff says that the boundaries mentioned in Ex.P.1 to 3 are not correct, the plaintiffs should have stated in the plaint that the boundaries in these three sale deeds were wrongly written and in Ex.P.4 the boundaries were written correctly. There is no pleading to that effect. It is only when DW-1 gave evidence before the Trial Court he came up with an explanation that these changes had taken place in the boundaries. It is well established principle that any amount of evidence without pleading has no value. There is no pleading to that effect. It is only when DW-1 gave evidence before the Trial Court he came up with an explanation that these changes had taken place in the boundaries. It is well established principle that any amount of evidence without pleading has no value. If the judgment of the First Appellate Court is perused, it becomes clear that learned Judge had drawn inference about the possibility of changes in the boundaries. This is not a matter for drawing inference taking judicial notice. It is factual aspect which should be pleaded and proved. Further the First Appellate Court observes that Ex.P.1 to 3 are 30 years old documents and Section 90 of the Evidence Act is applicable. In my opinion the First Appellate Court should not have drawn presumption about Ex.P.1 to 3 by applying Section 90 of the Indian Evidence Act. Presumption under Section 90 can be drawn with regard to execution and attestation. Presumption cannot be drawn with regard to the contents of the documents. Even though the First Appellate Court appreciated the evidence by applying mind independently but the judgment shows that there is perversity in appreciation of evidence. Inferences can be drawn from proved facts. It is the case of plaintiff found in the plaint the defendant is also in possession of a piece of land situated towards East of suit property. This being the position, in order to establish the identify of property with changed boundaries, the plaintiff should have pleaded and proved that aspect of the matter. The First Appellate Court appears to have committed error in law by drawing an inference without any basis. Therefore I am of the opinion that the judgment of the First Appellate Court is not sustainable. Therefore, the substantial question is answered in negative and hence the following order. Appeal is allowed. The judgment of the First Appellate Court is set aside and the judgment of Trial Court is restored. There is no order as to costs.