SRI C V MALLESHAPPA v. SMT PARVATHAMMA

( BY SRI. T.PRAKASH, ADV.,) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED: 16.8.2006 PASSED IN RA.NO.40/2005 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:17.8.2005 PASSED IN OS.NO. 84/1998 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.), KADUR. 2 THIS APPEAL IS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T This appeal is by the plaintiff against the judgment and decree in R.A.No.40/2005 dated 16th August 2006 on the file of Fast Track Court, Kadur, confirming the judgment and decree in O.S.No.84/1998 dated 17th August 2005 on the file of Addl.Civil Judge (Jr.Dn.), Kadur.

2. Plaintiff sought for declaration, declaring that, he is the absolute owner of the suit schedule property and consequently for permanent injunction restraining the defendant or her family members or anybody claiming on her behalf from interfering with the peaceful possession and enjoyment of the suit schedule property.

3. Case of the plaintiff is that, the suit schedule property is a vacant site measuring 41 feet East-West and 22 feet North-South bearing Khata No.417 situated at Chikkanallur village in Kadur taluk. Plaintiff is using the suit schedule property for stocking the firewood, 3 ragi, jowar and hay stock. Defendant without any right, title and interest much less in possession, made illegal attempts to trespass into the suit schedule property and as such, plaintiff enquired and came to know that her name has been mutated in the khata, which is illegal.

4. The schedule property originally belonged to the Khatedar Veerabhadrappa, father of the plaintiff. Plaintiff came to know from his senior and junior uncle by name Gangappa and Mallikarjunappa that the defendant has no right over the suit schedule property.

5. The said suit was contested by the defendant interalia alleging that the plaintiff is not related to her. Plaintiff has no right, title or interest over the suit schedule property. Defendant has acquired the suit schedule property under a registered gift deed and has been in lawful possession for the last 30 years.

6. The trial court on the basis of the pleadings framed the following issues:

1. Whether the plaintiff proves that he is the owner of 4 suit schedule property?

2. Whether plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of suit?

3. Whether plaintiff proves that alleged obstructions and interference in respect of suit property by the defendant?

4. Whether plaintiff is entitled for the reliefs as prayed in the suit? Whether court has no pecuniary jurisdiction to try

5. this suit?

6. What order or decree? The Trial Court dismissed the suit holding that the plaintiff has failed to prove that he is the owner of the suit schedule property and failed to prove that he is in possession of the suit schedule property. Against the said judgment and decree, the plaintiff had filed R.A.No.40/2005. The Appellate Court on consideration of the rival contentions on the points formulated, confirmed the judgment and decree of the trial court. As against both the judgment and decree, plaintiff is before this court. 5

7. Learned Counsel for the plaintiff submitted that, the plaintiff in support of his case has produced Exs.P1 to P19. Amongst Exs.P1 to P19, Exs.P1 to P9 are the Kandaya receipts. They show that, tax is paid in respect of property bearing khata No.24 standing in the name of Puradappa s/o Ganganna. Puradappa is none other than the grand father of the plaintiff. Plaintiff has inherited the suit schedule property. Learned Counsel relied on Ex.P12 – genealogical tree to show that the plaintiff and defendant are related and further relied on Ex.P14 – certificate of death of Veerabhadrappa, wherein Puradappa is shown as father of Veerabhadrappa. Relying on these documents, he submitted that, the property has been enjoyed by the grand father of the plaintiff and thereafter his father and now the plaintiff. Hence, plaintiff has proved the title and possession to the suit schedule property. He contended that, both the courts have erroneously rejected the consideration of the documentary evidence.

8. On the other hand, learned Counsel appearing for the defendant submitted that, Ex.D9 is a registered gift deed dated

28.4.1961. It reveals that the defendant’s father gifted the suit 6 property in her favour and it bears khata Nos.38/3, 132/3, 197/4, 91/5, 5/11 and 91/4 and a house and also a vacant site situated in Chikkanallur village. Defendant’s father had gifted this property and her name has been mutated in the khata. Veerabhadrappa’s name, which is appearing along with the name of the defendant, is not the father of the plaintiff and is not related to plaintiff. As such, learned Counsel contended that, both the courts on facts have concurrently held against the plaintiff. Hence, there is no substantial question of law.

9. This Court while admitting the appeal had framed the following substantial questions of law: “1. Whether the rejection of the I.A. filed under Order 41 Rule 27 CPC by the Lower Appellate Court and the non-consideration of the additional evidence sought to be tendered under the said I.A. has led to the erroneous conclusion in the manner of re-appreciation of the evidence by the Lower Appellate Court?

2. Whether in that light, in the absence of the said documents, the appreciation as well as the re- appreciation of the evidence on record by the Courts below would admit of perversity?" 7

10. As far as the substantial question of law No.1 is concerned, plaintiff had filed an application under Order XLI Rule 27 read with Section 151 of CPC on 23.6.2006 before the first appellate court. In the application, no documents are referred or mentioned. In the supporting affidavit also what is stated is that, plaintiff had produced some documents in lower court at the time of judgment and the said document is on record, but the same has not been marked and also has not adduced his evidence on the said document. Application is so bald that it does not reveal what is the additional evidence. It does not state that what is the nature of documents, it does not state as to at what stage these documents were produced before the trial court, there is no material to show that additional evidence was sought to be produced before the appellate court. Further even before the trial court, it is not mentioned as to what documents the plaintiff wanted to produce. In the absence of any document or additional evidence sought to be produced in terms of application filed under Order XLI Rule 27 of CPC, the application being frivolous, the substantial question of law No.1 as framed by this Court does not arise for consideration. 8

11. In the light of negativing the first substantial question of law, consideration of second substantial question of law also does not arise.

12. Even otherwise, the entire case of the plaintiff is based on tax paid receipts. There is no document of title, there is no evidence as to who acquired the property and the manner of acquisition of property and how the suit property was inherited by the plaintiff. In turn, the documents produced by the defendant show that her name has been entered in the khata and there is a gift deed at an undisputed point of time. Both the courts on proper appreciation of the evidence have held that even the defendant has also failed to prove her title.

13. Having regard to the evidence produced by both the parties and having regard to the concurrent findings of both the courts, I find that there is no error in the judgment and decree passed by both the courts below nor any substantial question of law arises in this appeal. 9 Accordingly, the appeal fails and same is dismissed. However,