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2023 DIGILAW 1258 (KAR)

A. v. Sarojamma VS Chandrashekara

2023-10-31

H.P.SANDESH

body2023
JUDGMENT 1. Heard the learned counsel for the appellants-plaintiffs and learned counsel for the respondent-defendant. 2. The parties are referred to as per their original ranking before the Trial Court to avoid the confusion and for the convenience of this Court. 3. The factual matrix of the case of the appellantsplaintiffs before the Trial Court while seeking the relief of declaration of ownership and permanent injunction is that suit schedule property bearing Sy.No.66/2 measuring 1 acre, 12 guntas stands in the name of husband of first plaintiff and Sy.No.66/3, an extent of 1 gunta stands in the name of defendant's father. It is also contended that defendant wrongly got changed the khatha in his name in M.R.No.30/2010-2011 and it is also contended that on 1/5/2012, the defendant tried to interfere with the plaintiffs possession over the suit schedule property. It is also the contention that the property in Sy.No.66/2 originally was an ancestral property of late Doddamallappa, the father-in-law of the plaintiff No.1 and grandfather of the plaintiff Nos.2 to 4 and he enjoyed and was in possession of the schedule property till his life time. It is contended that till 1966, land measuring 1 acre, 12 guntas in Sy.No.66/2 was standing in the name of late Doddamallappa, the father-in-law of the plaintiffs and 1 gunta of land in Sy.No.66/3 was standing in the name of the father of the defendant by name Ningappa. When this was the case, after 1966-67, the property measuring 1 acre, 12 guntas in Sy.No.66/2 was interchanged in the name of the defendant's father Ningappa as Sy.No.66/3 to that extent and 1 gunta in Sy.No.66/3 entered in the name of husband of the first plaintiff late A.D. Veerappaji as Sy.No.66/2. The documents clearly reflects the fact that an extent of 1 acre, 12 guntas of land in Sy.No.66/2 is standing in the name of the father-in-law of first plaintiff late Doddamallappa and subsequent to death of fatherin-law, the documents disclose the name of husband of the first plaintiff and he has got mutated the revenue entries in his name and the same has been interchanged. 4. The defendant appeared and filed the written statement denying the claim of the plaintiffs and he contended that he is the absolute owner of the suit schedule property and the same is his ancestral property. 4. The defendant appeared and filed the written statement denying the claim of the plaintiffs and he contended that he is the absolute owner of the suit schedule property and the same is his ancestral property. It is his contention that schedule property belongs to his father and he acquired the same from his ancestors and since from 1950 to 2010, the schedule property was standing in the name of his father. He also contend that the schedule property is in his possession from his forefather and also took the contention that they entered into a partition dtd. 9/3/2011 and the suit schedule property has fallen to his share and accordingly, he has got changed the khatha and he is in possession of the suit schedule property. 5. The Trial Court allowed the parties to lead evidence and on behalf of the plaintiffs, the plaintiff No.3 has been examined as P.W.1 and also examined a witness as P.W.2 and got marked the documents as Exs.P1 to P73. On the other hand, the defendant examined his power of attorney holder as D.W.1 and got marked the documents as Exs.D1 to D23. 6. The Trial Court, having considered the material on record, granted the relief of declaration declaring that the plaintiffs are the absolute owners of the suit schedule property and also granted permanent injunction against the defendant. Being aggrieved by the judgment and decree of the Trial Court in O.S.No.169/2012, an appeal is filed before the First Appellate Court in R.A.No.26/2017 and the First Appellate Court, having considered the grounds urged in the appeal memo, formulated the points whether the plaintiffs prove that they have acquired title to the suit schedule property having succeeded to the same upon death of their ancestors, whether the plaintiffs prove that they are in exclusive possession and enjoyment of the suit schedule property and defendant has interfered with the same and whether the impugned judgment and decree of the Trial Court is perverse, capricious, arbitrary and illegal and it requires interference. The First Appellate Court, reversed the findings of the Trial Court and answered point Nos.1 and 2 as 'negative' and answered point No.3 as 'affirmative', in coming to the conclusion that the judgment of the Trial Court is perverse, capricious, arbitrary and illegal. Hence, the present second appeal is filed before this Court. 7. The First Appellate Court, reversed the findings of the Trial Court and answered point Nos.1 and 2 as 'negative' and answered point No.3 as 'affirmative', in coming to the conclusion that the judgment of the Trial Court is perverse, capricious, arbitrary and illegal. Hence, the present second appeal is filed before this Court. 7. The main grounds urged by the learned counsel for the appellants-plaintiffs before this Court is that D.W.1 categorically admits the case of the plaintiffs and the same has been considered by the Trial Court but, the First Appellate Court without looking into the documentary evidence and admission, reversed the findings of the Trial Court and the judgment of the First Appellate Court is perverse and the same is against the material on record. 8. This Court, having heard the matter, admitted the second appeal and framed the following substantial question of law: "Whether the finding by the appellate Court that the appellants have not been able to establish title and therefore, possession of an extent of 1 Acre 12 Guntas described as land bearing Survey No.66/3 of Avarthi Village, Haranahally Hobli, Periyapatna Taluk is based on evidence including the statement made by the respondent in cross-examination". 9. Learned counsel appearing for the appellantsplaintiffs in his argument would vehemently contend that there is no dispute with regard to the relationship between the plaintiffs and original family member of late Doddamallappa. The appellants are the daughter-in-law and grand children of said late Doddamallappa. Learned counsel also would vehemently contend that all the revenue documents stands in the name of late Doddamallappa from 1960 onwards till 1966-67 in respect of Sy.No.66/2 and the revenue records clearly disclose that an extent of 1 gunta of land in Sy.No.66/3 stands in the name of Ningappa, who is the father of the respondent-defendant. Learned counsel would vehemently contend that the said extent of land was got interchanged in the revenue records and though 1 gunta of land was in existence in Sy.No.66/3 and the same was interchanged as 1 acre, 12 guntas and the revenue entries are made in the name of the father of the defendant in respect of the said extent of land. 10. 10. The counsel also would vehemently contend that the evidence of P.Ws.1 and 2 is clear with regard to the claim made by the plaintiffs and P.W.2 has also spoken with regard to the possession of the plaintiffs before the Trial Court and the Trial Court rightly appreciated the evidence of P.Ws.1 and 2 and so also the admission of D.W.1. The witness D.W.1 categorically admitted in the cross-examination that he does not know how the said interchange was made and also do not know what is the basis for interchanging the same and the Trial Court rightly appreciated the admission by extracting the admission of D.W.1 with regard to the interchange of extent as well as the possession since, he has given the undertaking before the police when the complaint was given that plaintiffs are in possession and till the disposal of the suit, they will not interfere with the possession of the plaintiffs and the same has been extracted by the Trial Court while appreciating the evidence available on record. 11. The learned counsel would further contend that the First Appellate Court while reversing the judgment, erroneously comes to the conclusion that the plaintiffs have not placed any documents and not looked into the voluminous documents placed before the Trial Court which substantiate the claim of the plaintiffs, but erroneously comes to the conclusion that there are contradictions in the pleadings and the evidence but, no such contradictions are found and the reasons assigned is against the material on record. 12. Per contra, learned counsel appearing for the respondent-defendant would vehemently contend that when the plaintiffs claim that Sy.No.66/2 is interchanged as Sy.No.66/3, not produced any document to substantiate the same. Learned counsel also would vehemently contend that Ex.P3-M.R. Extract is clear with regard to the fact that revenue entries are changed in M.R.No.30/2010-11 based on the partition. It is also not in dispute that Sy.No.66/3 belongs to the defendant and declaration is also sought in respect of Sy.No.66/3. Learned counsel also brought to notice of this Court the document of Ex.P7, which discloses the fact that 1 gunta of land in Sy.No.66/2 stands in the name of the husband of the first plaintiff. The document of Ex.P8 discloses the fact that 1 acre, 12 guntas of land stands in the name of the father of the defendant. Learned counsel also brought to notice of this Court the document of Ex.P7, which discloses the fact that 1 gunta of land in Sy.No.66/2 stands in the name of the husband of the first plaintiff. The document of Ex.P8 discloses the fact that 1 acre, 12 guntas of land stands in the name of the father of the defendant. Ex.P15 is also in respect of Sy.No.66/2 i.e., the land to the extent of 1 gunta stands in the name of the plaintiffs. So also, Ex.P37 is an important document i.e., Revision Settlement Aakarband which clearly discloses measurement of each survey numbers i.e., Sy.Nos.66/1, 66/2, 66/3 and 66/4. Learned counsel also brought to notice of this Court the document of Ex.P46-R.T.C. Extract for the year 1966-67 which discloses that 1 acre, 31 guntas of land in Sy.No.66/1 stands in the name of Kalamma, 1 gunta of land in Sy.No.66/2 stands in the name of the husband of the first plaintiff and 1 acre, 12 guntas in Sy.No.66/3 stands in the name of the father of the defendant and these are the documents which are taken note by the First Appellate Court and the Trial Court failed to take note of the material available on record. 13. Learned counsel for the respondent-defendant also brought to notice of this Court the document of Ex.P64-survey sketch and Ex.P67 which disclose the same measurement. Learned counsel would vehemently contend that appeal was also filed before the Assistant Commissioner and the same was dismissed and for having phoded the property also, no document is placed and so also in respect of changing the Sy.Nos.66/2 and 66/3, no document is placed before the Court. The First Appellate Court also taken note of the fact that the witness P.W.2 has been examined and he says that he is not aware of anything and hence, not accepted his evidence. The plaintiffs have also not challenged the entries from 1967 and the same is discussed by the First Appellate Court in Para Nos.14 and 15 of the judgment and comes to the conclusion that the judgment of the Trial Court is perverse and rightly reversed the findings of the Trial Court. Hence, it does not require any interference. 14. In reply to the arguments of the learned counsel for the respondent-defendant, learned counsel for the appellantsplaintiffs brought to notice of this Court the admission given by D.W.1 in the cross-examination. Hence, it does not require any interference. 14. In reply to the arguments of the learned counsel for the respondent-defendant, learned counsel for the appellantsplaintiffs brought to notice of this Court the admission given by D.W.1 in the cross-examination. The counsel also contend that the very admission given by the witness D.W.1 has been extracted by the Trial Court in the judgment, particularly in Para Nos.13, 14 and 15 and also taken note of the documentary evidence available on record and rightly decreed the suit. Hence, this Court has to interfere with the findings of the First Appellate Court and no reasons are assigned while reversing the findings of the Trial Court and the reason assigned is also erroneous. 15. Having heard the learned counsels for the appellants-plaintiffs, respondent-defendant, the grounds urged in the appeal memorandum and the substantial question of law framed, this Court has to analyze the material available on record. The substantial question of law framed by this Court is whether the finding of the First Appellate Court that the appellants have not been able to establish title and therefore, possession of an extent of 1 acre, 12 guntas described as land bearing Survey No.66/3 of Avarthi Village, Haranahally Hobli, Periyapatna Taluk is based on evidence including the statement made by the respondent in cross-examination. Hence, the substantial question of law involved between the parties is with regard to whether the finding of the First Appellate Court is erroneous that the appellants have not been able to establish their title. Hence, this Court has to consider both oral and documentary evidence placed on record. 16. Having perused the material available on record, the plaintiff No.3 has been examined as P.W.1 and he relied upon the document of Exs.P1 to P73. On the other hand, the power of attorney holder of the defendant has been examined as D.W.1 and he relied upon the document of Exs.D1 to D23. The plaintiffs mainly relied upon the documents of Exs.P38 to P49 claiming that the property is an ancestral property which belongs to late Doddamallappa. On the other hand, the defendant contend that from 1950 to 2010, the property was standing in the name of his father. In order to prove the contention that it is an ancestral property, the defendant has produced the document of Exs.D1 to D23. On the other hand, the defendant contend that from 1950 to 2010, the property was standing in the name of his father. In order to prove the contention that it is an ancestral property, the defendant has produced the document of Exs.D1 to D23. The defendant though claims that suit schedule property is an ancestral property, in order to prove the same, he has not produced any document, except relying upon the document of partition which came into existence in the year 2011 and the R.T.C. Extracts which are marked as Exs.D3 to D17. The other document produced before the Court is Ex.D18 and the said document is the Survey Land Holding Cultivation for the year 1966-67 and no doubt, in this document, measurement is mentioned as 1 acre, 12 guntas in Sy.No.66/3, 1 gunta of land is standing in the name of the husband of the first plaintiff i.e., A.D. Veerappaji in respect of Sy.No.66/2. But, in order to prove the fact that it is an ancestral property, the defendant has not placed any document before the Trial Court. The document of Ex.D5 is against the defendant, since it discloses only 1 gunta of land in the name of the father of the defendant. 17. On the other hand, the plaintiffs particularly relied upon the documents of Exs.P5, P6, P7 to P10, P21, P24, P25, P33 to P40, P42 to P49, P55, P56, P58, P62 and P69. The document of Exs.P5 and P6 i.e., R.T.C. Extracts are in respect of Sy.No.66/2 pertaining to the year 1967 to 1982 and it reflects the name of A.D. Veerappaji. A perusal of these documents reveals that Sy.No.66/2 measures 1 acre, 12 guntas and it was standing in the name of A.D. Veerappaji. The documents pertaining to the year 1967 to 1982 clearly establishes that an extent of 1 acre, 12 guntas of land in Sy.No.66/2 stands in the name of A.D. Veerappaji. Likewise, Ex.P7 also reflects the ownership of A.D. Veerappaji pertaining to Sy.No.66/2 for having mutated the same in M.R.No.3/1996-97 through inheritance. 18. It is important to note that the document of Ex.P39 is the index of land which shows the measurement as 1 acre, 12 guntas in Sy.No.66/2 which stands in the name of late Doddamallappa. Likewise, Ex.P7 also reflects the ownership of A.D. Veerappaji pertaining to Sy.No.66/2 for having mutated the same in M.R.No.3/1996-97 through inheritance. 18. It is important to note that the document of Ex.P39 is the index of land which shows the measurement as 1 acre, 12 guntas in Sy.No.66/2 which stands in the name of late Doddamallappa. The document of Ex.P40 also discloses the name of late Doddamallappa to the extent of 1 acre, 12 guntas in Sy.No.66/2 and in respect of Sy.No.66/3, 1 gunta of land was standing in the name of late Ningappa i.e., the father of the defendant and this document is of the year 1960-61 and similarly, document of Ex.P41-index of land is of the year 1961- 62, Ex.P42 is of the year 1962-63, Ex.P43 is of the year 1963- 64, Ex.P44 is of the year 1964-65 and Ex.P45 is of the year 1965-66 which reflect the same measurement which discloses the ownership of late Doddamallappa in Sy.No.66/2 measuring 1 acre, 12 guntas and Sy.No.66/3 measuring 1 gunta in the name of late Ningappa, the father of the defendant. Though the defendant contend that property is an ancestral property, no document of index of land has been placed before the Court, but he claims that from 1950-2010, the document was standing in the name of his father and the same is an ancestral property and no document is placed to substantiate the same. But, in Ex.P47- index of land, once again, there was correction in the name in respect of Sy.Nos.66/2 and 66/3 and these are the materials which are taken note by the Trial Court while appreciating the evidence available on record. 19. It has to be noted that when the plaintiffs also claim that it is their ancestral property and the defendant also claims that it is his ancestral property, the Court has take note of preponderance of probabilities as to whether the probabilities are in favour of the plaintiffs or the defendant. The Trial Court has taken note of both oral and documentary evidence placed on record in Para No.11 of the judgment and in Para No.12 of the judgment, extracted the admission of D.W.1, who categorically admitted the case of the plaintiffs and his admission is clear that from 1961-62, the R.T.C. Extracts in respect of the suit schedule property are standing in the name of late Doddamallappa. He also categorically admits that 1 gunta of land was standing in the name of father of the defendant. But, he says that there was mistake in mentioning the same and categorically admits that till 1966-67, the pahanis were standing in the name of ancestors of the plaintiffs. He further admitted in the cross-examination that he cannot say on what basis the extent of land i.e., 1 acre, 12 guntas was shown in respect of Sy.No.66/3 in the year 1967-68 and also he did not make any effort to know what is the basis for changing the same. He also admits that he did not made any enquiry as to who interchanged the same and also he does not know whether the said late Doddamallappa executed any document in favour of late Ningappa. 20. It is also pertinent to note that document produced by defendant i.e., Ex.D5 is also standing in the name of late Ningappa to the extent of 1 gunta and the same is admitted in the cross-examination of D.W.1 and the said admissions are discussed in Para No.13 of the judgment of the Trial Court while answering issue Nos.1, 2 and 5. Hence, the Trial Court answered issue Nos.1 and 2 as 'affirmative' and issue No.5 as 'negative' declining the claim of the defendant. Hence, the Trial Court answered issue Nos.1 and 2 as 'affirmative' and issue No.5 as 'negative' declining the claim of the defendant. Even with regard to the possession is concerned, issue No.3 was considered by the Trial Court in Para No.14 of the judgment and extracted the admission given by D.W.1 that in the year 2012, when the complaint was given by the plaintiffs against the defendant, both of them have given joint statement before the police that the property stands in the name of Sarojamma and she has also filed a suit before the Trial Court and till decision is taken in the suit, he is not having any objection to continue the possession of the plaintiffs and inspite of these answers elicited from the mouth of D.W.1, though the First Appellate Court formulated the points whether the plaintiffs prove that they have acquired title to the suit schedule property having succeeded to the same upon the death of their ancestors and whether the plaintiffs are in exclusive possession and enjoyment of the suit schedule property, answered these points as 'negative' and overlooked the admission of D.W.1 which has been extracted by the Trial Court while passing the judgment and erroneously comes to the conclusion that title and possession of the plaintiffs is not proved and comes to the conclusion that the finding of the Trial Court is perverse and failed to consider particularly, the documentary evidence i.e., Exs.P38 to P49. 21. Having reassessed the material available on record, the finding of the First Appellate Court is perverse and not the Trial Court. The Trial Court has taken note of both oral and documentary evidence placed on record and even taken note of the fact that from 1960-61 and 1966-67, all the documents were standing in the name of late Doddamallappa and subsequently, in the year 1966-67, the same has been interchanged showing the extent as 1 acre, 12 guntas in respect of Sy.Nos.66/2 into 66/3 and observation is also made that D.W.1 does not admit the ownership, possession and enjoyment of the plaintiffs in respect of land to the extent of 1 acre, 12 guntas in Sy.No.66/3 Hence, the admission of D.W.1 is very clear that till 1966-67, all the documents were standing in the name of late Doddamallappa and no document is placed for interchanging the extent and measurement of land is concerned. If 1 gunta of land is sought to be interchanged as 1 acre, 12 guntas, there must be documentary evidence and no document is placed in this regard and the admission given by D.W.1 has not been considered by the First Appellate Court. However, erroneously the First Appellate Court observed that though the said admission leads to an inference that first plaintiff is in possession of the suit schedule property, it is a litigatious possession and not a clear and unambiguous possession and the very approach of the First Appellate Court is erroneous when there is an unequivocal admission available on record. The First Appellate Court also in Para No.19 of the judgment, while appreciating both oral and documentary evidence placed on record, even not touched upon the very documents placed by the plaintiffs i.e., Exs.P38 to P46 but, only relied upon the document of Ex.P68, in coming to the conclusion that, except only one document, land in Sy.No.66/3 measuring 1 acre, 12 guntas to be standing in the name of late Doddamallappa, there is not even a single piece of document which would indicate that late Doddamallappa had succeeded to the suit land from his ancestors. It is the specific case of the plaintiffs that an extent of 1 acre, 12 guntas of land has been interchanged as Sy.No.66/3. 22. The very case of the plaintiffs is that the extent has been interchanged in respect of Sy.Nos.66/2 and 66/3. When the document clearly discloses that Sy.No.66/3 is only measuring 1 gunta, no material is placed before the Court for interchanging the same as Sy.No.66/3 measuring 1 acre, 12 guntas and the First Appellate Court committed an error in reversing the findings of the Trial Court. The Trial Court, while appreciating the evidence available on record i.e., both documentary evidence as well as admission of D.W.1, not only taken note of proving of title by the plaintiffs though interchange was made to the extent of 1 acre, 12 guntas in respect of Sy.No.66/3, but also taken note of the fact that the same is not interchanged based on any order and only in the revenue documents, the extent is interchanged without any basis. When the defendant claim land to the extent of 1 acre, 12 guntas instead of 1 gunta, he ought to have placed the material before the Court to substantiate the same that he is the owner to the extent of 1 acre, 12 guntas. 23. On the other hand, the plaintiffs have placed voluminous documents before the Court with regard to the fact that the property is an ancestral property and there is a reference in the revenue documents that it is an ancestral property of late Doddamallappa and there is no dispute with regard to the fact that the plaintiffs are daughter-in-law and grand children of late Doddamallappa and all the documents clearly disclose the fact that the property stands in the name of late Doddamallappa and no doubt the land is measuring to the extent of 1 acre, 12 guntas in respect of Sy.No.66/2, subsequently after 1966-67, it has been interchanged as Sy.No.66/3 measuring 1 acre, 12 guntas instead of 1 gunta. When such material is placed before the Court, preponderance of probabilities are in favour of the appellants-plaintiffs and not in favour of the respondent-defendant. Hence, the First Appellate Court committed an error in reversing the findings of the Trial Court and the Trial Court has passed a well reasoned order and the First Appellate Court did not discuss anything about the documents of Exs.P38 to P45 and those documents are the main basis to grant the relief as sought for. 24. No doubt, learned counsel appearing for the respondent-defendant relied upon the document of Ex.P37 i.e., Revision Settlement Aakarband, the same does not disclose anything about title in respect of the property of the defendant and no doubt, the respondent-defendant also relied upon the documents of R.T.C. Extracts and sketch, those documents are subsequent documents after the interchange of the extent and with regard to the fact that the father of the defendant is holding right to the extent of 1 acre, 12 guntas, no material is placed before the Court, except interchanging the dimension of the property. Hence, I answer the substantial question of law that the finding of the First Appellate Court that the appellants have not been able to establish the title is nothing but an erroneous finding and the possession of extent of 1 acre, 12 guntas described as land bearing Survey No.66/3 of Avarthi Village, Haranahally Hobli, Periyapatna Taluk is established in view of admission given by the D.W.1 in the cross-examination, wherein he categorically admitted in the cross-examination that when the complaint was given for interference by the defendant, he gave an undertaking that he will not interfere with the possession of the plaintiffs, till the disposal of the case and the same is also not considered by the First Appellate Court while appreciating the material on record and instead, committed an error in reversing the findings of the Trial Court, in coming to the conclusion that the judgment of the Trial Court is perverse. Hence, I answer the substantial question of law framed by this Court as 'affirmative' that the finding of the First Appellate Court is erroneous and the same is against the material on record. 25. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed. (ii) The impugned judgment and decree of the First Appellate Court in R.A.No.26/2017 dtd. 14/12/2017 is hereby set aside and consequently, the judgment and decree of the Trial Court in O.S.No.169/2012 dtd. 20/9/2017 is restored.