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2023 DIGILAW 744 (KAR)

Honne Gowda v. Dyavaiah

2023-06-02

JYOTI MULIMANI

body2023
JUDGMENT/ORDER 1. Sri.Adithya Bhat., learned counsel on behalf of Sri.G.S.Bhat., for the appellant has appeared in person. 2. This is an appeal from the Court of III Addl. District Judge, Mysuru. 3. For the sake of convenience, the parties shall be referred to as per their status and ranking before the Trial Court. 4. The brief facts are these: The plaintiff contended that land measuring to the extent of 05 Acres 03 Guntas in Sy.No.45 situated at Hanchya Village, Kasaba Hobli, Mysore Taluk was granted to one Sri.Dyava by the Government in the year 1936. In the year 1945, he executed a Gift Deed in respect of Sy.No.45 in favor of his sister Smt.Lingamma to an extent of 01 Acre. It is said that the original plaintiff Sri.Nangegowda @ Nanjaiah purchased the property from Smt.Lingamma in the year 1956. The survey number mentioned in the sale deed is 45. The plaintiff averred that the defendants are the children of Dyava and they tried to interfere with his peaceful possession and enjoyment of the property. Hence, he was constrained to take shelter under the Court of Law and sought for the relief of declaration and consequential relief of injunction. After service of the suit summons, defendants 1 & 2 appeared through their counsel and filed a detailed written statement and denied the plaint averments. They contended that the schedule land is granted land and attracts the provisions of the P.T.C.L Act and as such it cannot be alienated to anyone except with prior permission of the Government. They disputed the Gift Deed and the sale deed. Among other grounds, they prayed for the dismissal of the suit. 5. Based on the above pleadings, the Trial Court framed the Issues. The original plaintiff Nangegowda was reported dead during the pendency of the suit. Hence, his legal representatives were brought on record. Thereafter, the legal representative No.2 of the original plaintiff was also reported dead and hence, his legal representatives were brought on record. The GPA holder of the first legal representative of the plaintiff was examined as PW1 and two more witnesses were examined as PW2 & 3 and produced twelve documents which were marked at Exs.P.1 to P12. On the other hand, the second defendant examined as DW1 and examined a witness as DW2 and produced three documents which were marked at Exs.D.1 to D3. On the other hand, the second defendant examined as DW1 and examined a witness as DW2 and produced three documents which were marked at Exs.D.1 to D3. On the trial of the action, the Trial Court declined to grant the relief of declaration and consequently, dismissed the suit. Aggrieved by the Judgment and Decree of the Trial Court, the plaintiffs preferred an appeal before the First Appellate Court. On appeal, the Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Sec. 100 of CPC. 6. Sri. Adithya Bhat., learned counsel for the appellant submits that the Judgments and Decrees of the Trial Court and the First Appellate Court are opposed to the law, and evidence on record, and therefore, the same are liable to be set aside. Next, he submits that the Judgments and Decrees of the Courts are contrary to the documents produced by the plaintiff and especially, Ex.P.5 Gift Deed dtd. 2/1/1945. The said Gift Deed was executed in favor of Smt.Lingamma and in turn, she has sold the suit property in favor of the appellant's father under the Registered Sale Deed dtd.:11/6/1956 as per Ex.P.1. It is also submitted that these two documents are 30 years old documents and there is a presumption under Sec. 90 of Indian Evidence Act. A further submission is made that the Courts have erroneously held that the suit schedule property is a granted land and the same is hit by the PTCL Act. Learned counsel vehemently contended that the Courts have erroneously and wrongly held that Smt.Lingamma is not the owner of the property solely on the ground that her name was not entered in the Revenue Records. It is also submitted that the courts have erred in concluding that the sale deed is a sham document. Learned counsel further submits that the findings of the Trial Court with regard to the new Sy.No.346 is wholly untenable in law. Counsel also submits that the defendants never pleaded about the same. Lastly, he submits that viewed from any angle, the Judgments and Decrees of the Courts are unsustainable in law. Therefore, this Regular Second Appeal raises substantial questions of law and hence the same may be admitted. 7. Counsel also submits that the defendants never pleaded about the same. Lastly, he submits that viewed from any angle, the Judgments and Decrees of the Courts are unsustainable in law. Therefore, this Regular Second Appeal raises substantial questions of law and hence the same may be admitted. 7. Heard, the contentions urged on behalf of the appellant and perused the Judgments and Decrees of the Trial Court and the First Appellate Court with utmost care. The facts have been sufficiently stated and the same does not require reiteration. The base for a claim of declaration is Ex.P.2. It is the case of the plaintiff that his vendor Smt.Lingamma had acquired the property under the Gift Deed which is said to have been executed by her brother Dyava. She has sold the property in his favor. Ex.P.1 is the sale deed that appears to have been executed by Smt.Lingamma in favor of the plaintiff. The Trial Court framed as many as five issues and the first issue relates to proof of title and ownership over the suit schedule property. Suffice it to note that the plaintiff produced the Tippani Uthar. The same is marked as Ex.P.2. A careful perusal of the judgment and decree depicts that the Trial Judge extenso referred to the same and concluded that Sy.No.45 was changed into Sy.No.346 since 16/5/1936. As already noted above, the plaintiff is claiming title over the property under the registered sale deed dtd. 11/6/1956. Ex.P.1 is the registered sale deed and relates to Sy.No.45. There is no mention of survey number 346. Furthermore, the plaintiff himself has admitted that Sy.No.45 has been changed into Sy.No.346 way back in the year 1936. An attempt is made on behalf of the appellant to contend that due to a mistake, rectification is not carried out. In my view, the contention about the same must necessarily fail. It is pivotal to note that no attempt was made by the plaintiff's vendor to enter her name in the revenue records. Sri.Adithya Bhat., learned counsel appearing on behalf of the appellant in presenting his arguments strenuously urged that the finding with regard to the change of survey number and holding that documents Exs.P.1 & 2 are sham documents are totally unsustainable in law. He argued by saying that the defendants did not raise any plea with regard to the change in survey number. He argued by saying that the defendants did not raise any plea with regard to the change in survey number. A further attempt is also made on behalf of the appellant to contend that in Exs.D.2 & 3 that are Mortgage Deeds executed by defendants and they have shown the survey number as 45 instead of 346. A good deal of argument is addressed about the change in Survey numbers. I may venture to say that it is the plaintiff who has approached the Court seeking a declaration that he is the absolute owner of the property in question. He should plead, prove and establish his case. The law is well settled that the plaintiff should not depend upon the weakness of the defendants. Even otherwise also, the mentioning of survey number 45 in the Mortgage Deeds, has no relevance. The Trial Court rightly held that the plaintiff has failed to prove & establish that he is the absolute owner of the suit schedule property and the defendants are causing interference. Hence, the Trial Court dismissed the suit and the First Appellate Court confirmed the Judgment & Decree of the Trial Court. In my view, the findings recorded by both Trial Court is either vitiated by non-consideration of relevant evidence or by an erroneous approach to the matter. The First Appellate Court on re-appreciation of the evidence, has rightly rejected the suit and confirmed the Judgment and Decree of the Trial Court. I am only able to say this much that the First Appellate Court has given the finding in proper perspective. It is perhaps well to observe that after the 1976 amendment, the scope of Sec. 100 of the CPC has been drastically curtailed and narrowed down. Under Sec. 100 of the Code of Civil Procedure 1908 (as amended in 1976) the jurisdiction of the Trial Court and the First Appellate Court High Court to interfere with the judgment of the Court below is confined to hearing substantial questions of law. Interference with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence. No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and accordingly, it is dismissed at the stage of admission. No order as to costs.