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2021 DIGILAW 331 (KAR)

Sundrabai v. R. Ananthram Singh

2021-03-01

NATARAJ RANGASWAMY

body2021
JUDGMENT : Nataraj Rangaswamy, J. 1. This appeal is filed under Section 100 of Code of Civil Procedure, 1908 (henceforth referred to as 'C.P.C.') by the plaintiff challenging the Judgment and Decree of the Courts below in O.S. No. 33/1996 and R.A. No. 11/2002. 2. The plaintiff claimed that the suit property which is a vacant site measuring 81 ft. x 90 ft. was owned and possessed by her, having derived it in terms of a gift deed executed by her brother Bhagavan Singh who was tenant of original jodidars of Bhavanahalli village. It is claimed that the defendants who are residents of the same village, though not concerned with the plaintiff's family were trying to take forcible possession of suit schedule property. Hence, plaintiff filed the suit for declaration of her title to the suit property and for consequential relief of perpetual injunction. 3. The suit was contested by the defendants, who claimed that the suit property was assessed in the records of village panchayat as property No. 193/new number 23. They claimed that their father, Ramsingh had purchased it in terms of a sale deed dated 29.06.1952 from one Syed Gafar, Mirja Ali, Syed Mohammed, Syed Hussain, B.H. Bhavani Singh, B.H. Govinda Singh, B. Narayanasingh, B. Shamsingh and others. They also claimed that after the death of their father, their names were entered in the Tax Demand Register and that they had paid the property tax to the Panchayat. They also claimed that they were in possession of suit property and since the plaintiff and her sons were attempting to enter into possession of the suit property, they filed O.S. No. 505/1995 where an order of temporary injunction was granted against the sons of the plaintiff. Hence, they claimed that plaintiff had no manner of right, title or interest over the suit property. Based on these contentions, the Trial Court framed the following issues : (i) Whether the plaintiff proves that she is the absolute owner of the suit schedule property? (ii) Whether plaintiff proves that she is in lawful possession and enjoyment of suit schedule property? (iii) Whether plaintiff further proves the alleged interference by defendants? (iv) Whether defendants prove that they are absolute owners of the suit schedule property since their father B. Ram Singh purchased the suit schedule property under registered sale deed dated 29.06.1952? (ii) Whether plaintiff proves that she is in lawful possession and enjoyment of suit schedule property? (iii) Whether plaintiff further proves the alleged interference by defendants? (iv) Whether defendants prove that they are absolute owners of the suit schedule property since their father B. Ram Singh purchased the suit schedule property under registered sale deed dated 29.06.1952? (v) Whether defendants further prove that they are in lawful possession of suit schedule property? (vi) To what reliefs the parties are entitled to? (vii) What order or decree? 4. The plaintiff was examined as P.W. 1 and she examined two other witnesses as P.Ws. 2 and 3 and they marked documents at Exs. P-1 to P-10, while defendant No. 1 was examined as D.W. 1 and defendant No. 2 was examined as D.W. 2 and they marked documents as Exs. D-1 to D-7. 5. Based on the oral and documentary evidence, the trial Court held that the plaintiff was unable to prove her title to the suit property, but since the suit property lay adjacent to the house property where the plaintiff was residing, the trial Court held that the plaintiff was in possession of the suit property, and therefore, decreed the suit in part for the relief of perpetual injunction. 6. Feeling aggrieved by the grant of a decree of perpetual injunction, the defendants filed R.A. No. 11/2002. The First Appellate Court summoned the record, framed points for consideration and based on the oral and documentary evidence, set aside the judgment and decree of the trial Court and dismissed the suit in its entirety. 7. Feeling aggrieved by the aforesaid judgment and decree of the First Appellate Court, the plaintiff has filed the present appeal. 8. This Court admitted the appeal to consider the following substantial questions of law- i. Whether the lower Appellate Court was right and justified in brushing aside the documents i.e., Ex. P-3 (copy license), Ex. P-4 (demand register extract), Ex. P-7 (another demand register extract) and Ex. P-9 (certificate issued by the Village Panchayat) while holding that the trial Court was in error in recording finding regarding the actual possession of the house by the plaintiff? ii. Whether the lower Appellate Court was right and justified in not referring to the report of the Court Commissioner, based on which, the trial Court recorded its finding? 9. P-9 (certificate issued by the Village Panchayat) while holding that the trial Court was in error in recording finding regarding the actual possession of the house by the plaintiff? ii. Whether the lower Appellate Court was right and justified in not referring to the report of the Court Commissioner, based on which, the trial Court recorded its finding? 9. I have heard the learned counsel for the parties and I have also perused the records of the Trial Court, the First Appellate Court as well their Judgments and Decrees. 10. It is necessary to note that the plaintiff had not challenged the judgment and decree of the trial Court refusing the relief of declaration of title to the suit property. It is also relevant to note that the suit property is undisputedly a vacant site lying adjacent to the house of the plaintiff. Hence this appeal would have to decided on the basis of the first principle of law that possession follows title. In order to establish her lawful possession over the suit property, the plaintiff relied upon Ex. P-2 which is an unregistered gift deed allegedly executed by her brothers in respect of the suit property. The Courts below noticed that Ex. P2 was mutilated and the contents were clearly not legible. Be that as it may, the Trial Court held that Ex. P2 was not registered in accordance with law and mere payment of duty and penalty could not resuscitate it. Therefore, it was held that the plaintiff was not able to prove her title to the suit property. 11. In order to establish that the plaintiff was in possession of the suit property, she relied upon Ex. P-3 which is the licence issued by the Panchayat to enable the plaintiff to put up construction over a property bearing Katha No. 235. Ex. P-4 is the Tax Demand Register Extract of the property bearing No. 58. Ex. P-5 is the certified copy of a document relating to a property in Sy. No. 129. Ex. P-6 is the Special power of attorney deed. Ex. P-7 is the Tax Demand Register Extract for the year 2000-01 in respect of the property bearing No. 58 and Ex. P-8 which is the tax Assessment list for the year 2000-01 in respect of the house property. Ex. No. 129. Ex. P-6 is the Special power of attorney deed. Ex. P-7 is the Tax Demand Register Extract for the year 2000-01 in respect of the property bearing No. 58 and Ex. P-8 which is the tax Assessment list for the year 2000-01 in respect of the house property. Ex. P-9 is the certificate issued by the Gram Panchayat stating that Katha No. 235 is measuring east-west 81 ft. and north south 90 ft. and Ex. P-10 is the rough hand sketch of the property in question. In none of these documents, it is shown that the plaintiff was in possession of the suit property. 12. During the course of the proceedings before the trial Court in an effort to disprove the claim of the defendants that the suit property which was claimed to be bearing No. 193/new No. 23, as false and that these two properties were different, a Commissioner was appointed to identify the aforesaid properties. The commissioner submitted a report indicating that the property bearing katha No. 23 and property bearing katha No. 193 are two different properties which lay 250 meters away from each other. However, this did not demonstrate that the plaintiff was in possession of the suit property. Even otherwise, the evidence on record does not disclose the possession of the plaintiff over the suit property. P.W. 2 is a planted witness since he was not able to identify the properties lying around the suit property but selectively remembered the details of the suit property. He was not a neighbour and did not have any properties nearby. His nephew had married the daughter of the plaintiff. Thus, his evidence was not trustworthy. P.W. 3 is the grandson of the plaintiff who marked Ex. P6, 7, 8, 9, 10. Though he claimed that the plaintiff was in possession of the suit property, he was not able to depose as to how the name of the plaintiff was entered in the records at Ex. P6, 7 and 8. Therefore, his evidence too does not help the plaintiff in any manner whatsoever. 13. The defendants relied upon Ex. D-7 which was the sale deed executed by the erstwhile jodidars of Bhavanahalli village, namely Syed Gafar, Mirja Ali and others in respect of a vacant property measuring east west 16 yards and north-south 33 yards. It is relevant to note that one of the parties to Ex. 13. The defendants relied upon Ex. D-7 which was the sale deed executed by the erstwhile jodidars of Bhavanahalli village, namely Syed Gafar, Mirja Ali and others in respect of a vacant property measuring east west 16 yards and north-south 33 yards. It is relevant to note that one of the parties to Ex. D-7 was Mr. Laxman Singh, who is the husband of plaintiff and Bhagawan Singh who is the brother of the plaintiff. The plaintiff pleaded in the plaint that her brothers were tenants in the property owned by the Jodidars and this would explain the reason why her husband and her brother joined in the execution of sale deed in favour of the defendants in terms of Ex. D7. The plaintiff was not able to explain the circumstances under which her husband and her brother had joined in the execution of Ex. D7 to the father of the defendants. She was also not able to disclose as to whether her husband and her brother had any other property in the vicinity which they had conveyed to the father of the defendants. 14. In that view of the matter, the plaintiff cannot claim possession of the suit property in terms of Ex. P2 and the remaining documents which are relied upon by the plaintiff also would not establish the possession of the plaintiff over the suit property. In the oral evidence of the plaintiff, the plaintiff claimed that the suit property lay adjacent to the house property where she was residing and therefore, she was in possession and enjoyment of the suit schedule property. This however cannot be accepted in the face of the contention of the defendants that they are the owners of the suit property, in terms of Ex. D7, which was executed by the husband of the plaintiff and her brother. Hence the plaintiff cannot claim either title or possession over the suit schedule property. 15. The reliance placed by the plaintiff on the discrepancies found in the written statement of the defendants that the suit property was bearing Sy. No. 193 and re-numbered as 23 would also be of no consequence since the plaintiff had to establish her case and not rely upon the frailties or the weaknesses or the mistakes in the case of the defendants. No. 193 and re-numbered as 23 would also be of no consequence since the plaintiff had to establish her case and not rely upon the frailties or the weaknesses or the mistakes in the case of the defendants. Further, the contention of the plaintiff that D.W. 2 gave out the specific evidence in the cross-examination, which indicated that the plaintiff was in possession of the suit property, is inconsequential since the attempt of the plaintiff was more towards demonstrating that the defendants had sold off some portion of the property in Sy. No. 23 and therefore there remained nothing for them to claim possession or right over the suit property. D.W. 2 has explained the same by claiming that property No. 193 was wrongly mentioned instead of described as Property No. 23 in the sale deed executed by them in favour of Narasimhappa. 16. Yet another fact is that the defendants had filed O.S. No. 505/1995 for perpetual injunction against the sons of the plaintiff and the said suit was decreed on 30-03-2001. This decree is not challenged by the plaintiff and her sons and therefore it is more probable that the defendants were in possession of the suit property. 17. In view of the above, there is no merit in this appeal and the substantial questions of law framed by this Court are answered in the negative and hence, the appeal is dismissed.