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2022 DIGILAW 1442 (KAR)

Keshava Reddy S/O Hanumanth Reddy v. Syed Raza Hashmi S/O Syed Musthafa Hasmi

2022-11-08

SACHIN SHANKAR MAGADUM

body2022
JUDGMENT : The captioned second appeal is filed by the defendant questioning the divergent findings of the Courts below wherein plaintiff's suit which was dismissed by the Court of first instance is reversed by the Appellate Court by allowing the appeal and consequently suit is decreed declaring the plaintiff as absolute owner and defendants are directed to handover vacant possession. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The plaintiff instituted suit for injunction simplicitor at the first instance alleging that he is highhandedly dispossessed. The plaintiff sought for relief of possession and declaration. The subject matter of the suit is site bearing Mpl.No12-10-62/A. The plaintiff claimed that CMC, Raichur has allotted the site in favour of plaintiff by issuing the 'Hakku Patra'. The plaintiff claimed that he was in lawful possession and enjoyment as absolute owner. The plaintiff has further alleged that defendants taking undue advantage of the fact that the site was kept vacant, tried to encroach and grab the suit property owned by the plaintiff and started highhandedly putting up construction. The plaintiff further alleged that inspite of repeated requests, the defendants have completed the construction and therefore are in unlawful possession of the suit land and hence, sought for relief of declaration and for possession. 4. The defendant No.2 tendered appearance and filed written statement and contended that he is not the owner of the suit property and claimed that it is the defendant No.3 who is the owner. The defendant No.3 appeared and filed written statement and claimed that she has acquired valid right and title pursuant to registered gift deed executed by defendant No.2 who is none other than her husband. The defendant No.3 claimed that she has put up construction after securing permission from the competent authority. Therefore, defendants claimed that plaintiff is well aware of this fact and therefore, sought for dismissal of the suit. 5. The plaintiff to substantiate his claim examined himself as PW.1 and adduced documentary evidence vide Exs.P-1 to P-7. While defendants have let in oral evidence by examining GPA holder as DW.1 and two independent witnesses are examined. The defendants also produced documentary evidence vide Exs.D-1 to D-19. 6. The trial Court having examined oral and documentary evidence held that plaintiff is not sure about the details of suit property. While defendants have let in oral evidence by examining GPA holder as DW.1 and two independent witnesses are examined. The defendants also produced documentary evidence vide Exs.D-1 to D-19. 6. The trial Court having examined oral and documentary evidence held that plaintiff is not sure about the details of suit property. Referring to relevant cross-examination and also prayer sought in the plaint, trial Court held that the plaintiff is seeking relief of possession of property bearing Mpl.No.12-10-62/A and by way of amendment, he has also sought possession of 12-10-111/117. It is in this background, trial Court has drawn adverse inference against the plaintiff and has come to conclusion that plaintiff is not sure about his property. The trial Court has given more emphasis on the fact that defendant No.3 has acquired title pursuant to gift deed executed by her husband i.e., defendant No.2. Therefore, trial Court was of the view that defendant No.3 has put up construction after securing valid permission from the authority. It is in this background, trial Court held that defendant No.1 had every right to put up construction over the suit schedule property and that she is in lawful possession pursuant to registered gift deed executed by her husband i.e., defendant No.2. On these set of reasonings, the trial Court has proceeded to dismiss the suit. 7. The plaintiff feeling aggrieved by the judgment and decree of the trial Court, preferred appeal before the Appellate Court. 8. The Appellate Court has independently assessed oral and documentary evidence on record. The Appellate Court while discharging its statutory duty as final fact finding authority has dealt with every document. Referring to Ex.P-4, Appellate Court was of the view that CMC, Raichur has granted property under Government Scheme vide No.CMR/TAX/MVT/13/28/93-94 dated 27.04.1993. Appellate Court found that the property which was allotted to plaintiff, the authority post allotment has assigned assessment number way back in 1993. Referring to demand register extract at Ex.P-2 and assessment extract vide Ex.P-3 and tax paid receipts at Exs.P-4 and P-5 and self assessment payment of tax at Ex.P-6, Appellate Court found that there was proper procedure adopted by the authority and consequent issuing of allotment letter. Referring to demand register extract at Ex.P-2 and assessment extract vide Ex.P-3 and tax paid receipts at Exs.P-4 and P-5 and self assessment payment of tax at Ex.P-6, Appellate Court found that there was proper procedure adopted by the authority and consequent issuing of allotment letter. Referring to Exs.P-7 and P-2, Appellate Court found that assessment number is given to the property held by plaintiff having its old assessment No.12-10-62/A and the assessment number is given by virtue of order passed by the Municipality Commissioner vide Ex.P-3 dated 27.04.1993. It is in this background, Appellate Court found that assessment number is assigned to plaintiff's property way back in 1993 while defendants alleged allotment which is of the year 1992 is followed by assessment number which is assigned in 2006-07. 9. The Appellate Court has also dealt with the extents reflected in both the Hakku Patras while plaintiffs' Hakku Patra indicate that property measuring 15x30 feet is allotted but boundaries referred to in alleged Hakku Patra of defendants vide Ex.D-19 are found to be totally different from the property claimed by plaintiff. The Appellate Court relying on this cogent and clinching evidence let in by plaintiff held that plaintiff has succeeded in proving his title by producing Ex.P-1 coupled with other relevant documents, grant of assessment, tax paid receipts. While adverse inference was drawn against the defendants by the Appellate Court on the premise that defendants to support and substantiate their title over the property have produced certified copy of Hakku Patra which is marked at Ex.D-19. It is precisely on these grounds, Appellate Court was not inclined to concur with the reasons and findings recorded by the trial Court. While dismissing the suit filed by the plaintiff, Appellate Court was of the view that trial Court has virtually misread the evidence on record. Appellate Court found that there is no proper appreciation of title documents. Consequently appeal is allowed and suit filed by the plaintiff is decreed declaring the plaintiff as owner and consequently defendants are directed to handover possession. 10. The said divergent findings are under challenge at the instance of defendants. 11. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. I have given my anxious consideration to the divergent findings recorded by both the Courts below. 12. 10. The said divergent findings are under challenge at the instance of defendants. 11. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. I have given my anxious consideration to the divergent findings recorded by both the Courts below. 12. The plaintiff is asserting title over the suit schedule property and original copy of Hakku Patra is produced by the plaintiff. Coupled with Hakku patra, plaintiff has also placed on record the assessment extract which is marked at Ex.P-3 and tax paid receipts which are produced and marked at Exs.P-4 and P-5. The Commissioner by a quasi judicial order has assigned assessment number and the same is produced by the plaintiff which is marked at Ex.P-3 which is dated 27.04.1993. Therefore, post issuance of Hakku Patra, Commissioner, CMC, Raichur has passed an order vide Ex.P-3 and assessment number is assigned. 13. If these documents are read against the rebuttal evidence let in by the defendants, this Court would find that several significant details which would have a direct bearing on the actual controversy between the parties is conveniently ignored by the trial Court. The defendant No.2 claimed that he is a allotee and relied on Ex.D-19 which is certified copy of Hakku Patra issued in his favour. On reading of entire written statement, it is quite strange to note that defendant No.2 has not even whispered in regard to allotment of a site having a dimension of 20x61 feet in his favour. Equally, strangely and surprisingly, defendant No.3's written statement also does not disclose the allotment of site in favour of defendant No.2. The defendant No.3 who happens to be the wife of defendant No.2, straight away sets up title by placing reliance on registered gift deed. The registered gift deed is of no consequence in the present case on hand. Its validity and genuineness depends upon subject to proof of Ex.D-19. The defendant No.2 has not whispered about the Hakku Patra. Equally, defendant No.3 has not whispered about the Hakku Patra. If at all the suit property was allotted to defendant No.2, there is no proper explanation forthcoming as to what prevented defendant No.2 from getting his name mutated based on the Hakku Patra. Assessment number is also not assigned to the defendant No.2 property. 14. Equally, defendant No.3 has not whispered about the Hakku Patra. If at all the suit property was allotted to defendant No.2, there is no proper explanation forthcoming as to what prevented defendant No.2 from getting his name mutated based on the Hakku Patra. Assessment number is also not assigned to the defendant No.2 property. 14. The next crucial aspect which is not dealt by the trial Court while virtually granting declaration of title in favour of defendant No.3 nor defendant No.3 has entered the witness box to substantiate her claim. The defendant No.2 mounts the witness box as GPA holder of defendant No.3. While defendant No.3 has not chosen to lead any evidence to substantiate her claim. It is more than trite law that any amount of oral evidence let in by defendant No.2 in absence of pleadings in the written statement in regard to acquisition of property would be of no consequence. Civil disputes are to be decided by applying the theory of preponderance of probabilities. The original Hakku Patra produced by plaintiff is pitted against the certified copy of Hakku Patra which is not even whispered in the written statement filed by the defendant No.2 and defendant No.3. If further it is tested along with other supporting documents, this Court is of the view that Hakku Patra relied on by the plaintiff appears to be more probable and genuine. 15. I find some force in the submission made by the learned counsel appearing for the plaintiff in regard to the extent that is sought to be allotted in favour of defendant No.2. This becomes more relevant in the context of several categorical admissions elicited in cross-examination of DW.1 who has admitted in unequivocal terms that his elder brother is a politician and he has acquaintance with Ex. MLA. Though this relevant cross-examination may not have a direct bearing but the said documents elicited in cross-examination have some relevance and significance in the manner in which defendant Nos.2 and 3 have set up a defence in the present case on hand. 16. All these significant details are dealt by the Appellate Court and the trial Court has ignored the same. The trial Court has superficially proceeded on an assumption that there is a registered gift deed in favour of defendant No.3 and therefore, title of defendant No.3 stands established and therefore, she has every right to put up construction. 16. All these significant details are dealt by the Appellate Court and the trial Court has ignored the same. The trial Court has superficially proceeded on an assumption that there is a registered gift deed in favour of defendant No.3 and therefore, title of defendant No.3 stands established and therefore, she has every right to put up construction. This is precisely where the trial Court has virtually missed the actual lis between the parties. Before adverting to record any finding on the registered gift deed, trial Court ought to have examined as to whether the hurdle of establishing the Hakku Patra is successfully established by the defendant Nos.2 and 3. These aspects are not dealt by the trial Court but the Appellate Court has rightly assessed the entire evidence on record independently. Appellate Court on independent assessment of material on record has come to conclusion that plaintiff has succeeded in establishing his title over the suit property. The documents produced by the plaintiff and the material placed on record supported by plaintiff in the plaint probabalises the plaintiff's case. Therefore, this Court is of the view that the judgment and decree of the Appellate Court in decreeing the suit is in accordance with law and based on legal evidence let in by the plaintiff and in absence of clinching rebuttal evidence let in by the defendant Nos.2 and 3. Therefore, this Court is of the view that the judgment and decree of the Appellate Court does not suffer from any infirmity. 17. No substantial question of law arises for consideration. Accordingly, appeal is dismissed.