Karnataka High Court
Smt Manikyamma vs Sri Somanna on 24 March, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 2353 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 2353 OF 2008 (INJ)
BETWEEN:
SMT MANIKYAMMA
DEAD BY HER LRs
1(a) SRI DORAISWAMY B.,
AGED ABOUT 82 YEARS,
H/O LATE MANIKYAMMA,
1(b) SMT. SOWBHAGYA,
AGED ABOUT 51 YEARS,
D/O LATE MANIKYAMMA,
W/O SURESH BABU,
1(c) SRI B. SOMASHEKHAR,
AGED ABOUT 47 YEARS,
S/O DORASWAMY,
1(d) SMT. GAYATHRI,
AGED ABOUT 45 YEARS,
W/O SOMUSUNDAR,
1(e) SRI. SHASHIKUMAR,
AGED ABOUT 43 YEARS,
S/O DORASWAMY B.,
APPELLANTS 1(a) TO 1(e) ARE
R/A NO.2569, NEAR OM SHAKTI TEMPLE,
SANTHEMAIDANA, MULBAGAL TOWN,
KOLAR DISTRCIT - 563 131.
SMT. PRABHAVATHI,
D/O DORAISWAMY
DEAD BY LRs
1(f) SRI AMARNARAYANA SWAMY,
AGED ABOUT 62 YEARS,
H/O D. PRABHAVATHI,
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RSA No. 2353 of 2008
1(g) SMT. ASHWINI,
AGED ABOUT 36 YEARS,
D/O D. PRABHAVATHI,
SRI RAKESH KUMAR,
AGED ABOUT 32 YEARS,
S/O D. PRAHAVATHI,
APPELLANTS 1(f) TO 1(h) ARE
ALL R/A NO.118, 10TH 'F' CROSS,
SANJEEVAPPA LAYOUT,
NAGAWARPALYA, C.V.RAMAN NAGAR POST,
BENGALURU - 560 094.
...APPELLANTS
[BY SRI G. PAPI REDDY, SR. COUNSEL FOR
SRI VARUN PAPI REDDY, ADVOCATE (PH)]
AND:
1. SRI SOMANNA
DEAD BY LRs
1(a) SMT. JAYAMMA,
W/O LATE SOMANNA,
AGED ABOUT 69 YEARS,
R/O SOMARASANAHALLI (BASAVANAMITTA),
MOTHAKAPALLI POST, THAYALUR HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT - 563 131.
1(b) MUNEENDRA BABU @ CHINNA BABU,
S/O LATE SOMANNA,
AGED ABOUT 48 YEARS,
R/O SOMARASANAHALLI (BASAVANAMITTA),
MOTHAKAPALLI POST, THAYALUR HOBLI,
MULBAGAL TALUK, KOLAR DISTRICT - 563 131.
1(c) RAMESHA,
S/O LATE SOMANNA,
AGED ABOUT 43 YEARS,
R/O SOMESHWARPALYA,
NEAR SOMESHWARA TEMPLE,
MULBAGAL TOWN, KOLAR DISTRICT - 563 131.
1(d) SHANTAMMA,
D/O LATE SOMANNA,
W/O VENU, AGED ABOUT 38 YEARS,
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RSA No. 2353 of 2008
R/O BANGLAVURU VILLAGE, BYRAPALLI POST,
V. KOTA MANDALAM, PALAMANER TALUK,
CHITTOR DISTRICT, ANDHRA PRADESH.
2. SRI BHASKAR
AGED ABOUT 49 YEARS,
S/O NARAYANAPPA,
R/O LORRY CHANGAPPA HOUSE,
HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
3. SRI SHANKAR,
AGED ABOUT 68 YEARS,
PROP. LALITHA RADIO ELECTRICITY,
HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
4. SRI SUBBAIAH,
AGED ABOUT 73 YEARS,
S/O UGRARAM KRISHNAPPA,
R/O MALINA AGRAHARA, MULBAGAL TOWN,
KOLAR 563 131.
5. SRI SEENAPPA,
AGED ABOUT 55 YEARS,
S/O POORINTI RAMAIAH
R/O SOMESHWARA PALYA,
MULBAGAL TOWN, KOLAR 563 131.
6. SRI RADHAKRISHNA,
AGED ABOUT 53 YEARS,
S/O VENKATAPPA,
R/O KURABARAPALYA,
MULBAGAL TOWN, KOLAR 563 131.
7. SRI MUNIYAPPA,
AGED ABOUT 63 YEARS,
S/O HOSAPALYA, MULBAGAL TOWN,
KOLAR 563 131.
...RESPONDENTS
[BY SRI C.M. GOVINDA REDDY, ADV., FOR R1 (a-d) (AB);
R3 & R5 - SERVED & UNREPRESENTED;
V/O DATED 07.09.2021 R2, R4, R6 & R7 ARE H/S]
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RSA No. 2353 of 2008
THIS RSA FILED U/S. 100 AGAINST THE JUDGMENT AND
DECREE DATED 9.7.2008 PASSED IN R.A.NO.147/2005 ON THE
FILE OF THE II ADDL. CIVIL JUDGE (SR. DN.), C/O III ADDL.
CIVIL JUDGE (SR. DN.), KOLAR, ITINERATING AT MULBAGAL,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 10.03.2005 PASSED IN OS NO.97/1992
ON THE FILE OF THE ADDL. CIVIL JUDGE (JR. DN.),
MULBAGAL.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 04.12.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 09.07.2008
passed by III Addl. Civil judge (Sr. Dn.), Kolar, itinerating
at Mulbagal, in RA.no.147/2005, this appeal is filed.
2. Brief facts of case are that, appellant was
plaintiff in O.S.no.97/1992 filed for permanent injunction
restraining defendants, their agents etc., from interfering
with peaceful possession and enjoyment of property
measuring 1 Acres 20 guntas of dry land in Sy.no.478/5
totally measuring 3 Acres situated at Someshwara Palya,
Mulbagal Town (‘suit property’ for short).
3. In plaint, it was stated plaintiff had acquired
suit property under registered sale deed dated 15.09.1976
from Somanna son of Appaiah and got her name entered
in revenue records. Since then she was in possession and
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RSA No. 2353 of 2008
cultivating it by growing ragi etc. It was stated,
defendants being total strangers, without any right, title
or interest tried to interfere with plaintiff’s possession of
suit property and attempted to form house sites and
construct buildings. It was alleged, defendants were
powerful persons backed by political leaders and
attempted to trespass into suit property on 13.03.1992.
As there was likelihood of dispossession of plaintiff, suit
was filed. But, as some persons had put up temporary
constructions after filing of suit, plaint was got amended
and assertion that defendants had put up temporary
construction during pendency of suit and prayer for
mandatory injunction, directing defendants to remove
unauthorized construction etc., were added.
4. After service of suit summons, defendants
no.2, 4, 6 and 7 failed to enter appearance. Therefore,
they were placed ex parte. Defendant no.3 filed written
statement denying plaintiff’s claim to have purchased suit
property, being in possession as well as allegation about
defendants attempting to interfere with her possession. It
was contended defendant had perfected title over suit
property by way of adverse possession. It was also stated
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one Digavinti Appaiah died leaving behind his two sons
viz., Hanumanthappa and Somanna and that
Hanumanthappa had died leaving behind his son
Narayanappa. As such, they were in possession and
enjoyment of suit property. Likewise, defendants no.2 to 5
viz., Krishnappa, Nagaraja, Venkateshappa and 25 others
were in possession and enjoyment of suit property since
18 years by constructing houses. They claimed to have
grown coconut, tamarind and other trees, which were also
aged more than 17 to 18 years. It was stated some
defendants were using land for haystacks and tethering
cattle. They had put up fence and had also constructed
Yellamma Temple, 17 years ago. It was alleged,
suppressing said facts, suit was filed. It was contended
plaintiff was not an agriculturist. Therefore, purchase of
agricultural land was in violation of Section 80 of
Karnataka Land Reforms Act (‘KLR’ for short). Even
valuation of suit property was disputed. It was contended
suit was not maintainable without prayer for declaration
and mandatory injunction.
5. Based on pleadings, trial Court framed
following:
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RSA No. 2353 of 2008
Issues on 1.6.1994.
1. Whether the plaintiff proves that she is in lawful
possession of suit schedule properties as on the
date of suit?
2. Whether plaintiff further prove that the
defendants interfered with her peaceful 2.
possession and enjoyment?
Additional issues framed on 16.02.2001:
1. Whether the plaintiff proves that defendants
have put up some temporary constructions over
suit schedule property after filing this suit?
2. Whether the plaintiff is entitled for mandatory
injunction as prayed for?
3. Whether the defendants prove that they are the
absolute owners of suit schedule property ?
4. Whether the defendants have perfected their
title to the suit schedule property ?
Additional Issues framed on 29.5.2001:
5. Whether the plaintiff proves her title to the suit
schedule property?
6. Whether the defendants prove that this Court
has no Pecuniary jurisdiction to try this suit?
6. To prove her case, plaintiff examined herself
and two others as PWs. 1 to 3 and got marked Exs.P1 to
P4. Defendants no.3 and 5 and independent witness were
examined as DWs 1 to 3. They got marked Exs.D1 to 26.
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RSA No. 2353 of 2008
Court Commissioner was appointed and examined as
CW.1, who got marked Exs.C1 to 7.
7. On consideration, trial Court answered issues
no.1 and 2, addl. issues no.1, 2 and 5 in affirmative; Addl.
issues no.3 and 4 in negative and addl. issue no.6 as not
arising for consideration. Based on said findings, it
decreed suit restraining defendants from interfering with
plaintiff’s peaceful possession over suit property and
directing them to remove constructions over suit property.
8. Aggrieved, defendants filed R.A.no.147/2005
on various grounds, based on which following points for
consideration were framed:
1. Whether the judgment and decree of the
lower court is not based on pleading and
evidence on record, is perverse and capricious
and requires interference?
2. What order?
9. On consideration, point no.1 was answered in
affirmative and point no.2 by allowing appeal, setting
aside judgment and decree passed by trial Court and
dismissing suit, leading to this Appeal.
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RSA No. 2353 of 2008
10. Sri G Papi Reddy, learned Senior Counsel
appearing for Sri Varun Papi Reddy, learned counsel for
plaintiff submitted judgment and decree passed by first
appellate Court was without proper consideration or re-
appreciation passed impugned judgment. It was
submitted, plaintiff had filed suit for permanent injunction
against interference with her peaceful possession over suit
property and mandatory injunction directing defendants to
remove unauthorized construction on suit property with
clear and proper description of suit property. She also
stated about mode and manner of acquisition of title. She
also led oral evidence and deposed as PW1 along with two
others as PWs.2 and 3 and supporting same with
documentary evidence viz., Sale deed dated 15.09.1976
as Ex.P.1, mutation extract as Ex.P.2, record of right as
Ex.P.3 and copy of police complaint as Ex.P.4.
11. It was submitted, in written statement filed by
defendant no.3 and adopted by defendants no.1 and 5,
main defence set up was perfection of title by adverse
possession, based on assertion about continuous,
exclusive and uninterrupted possession of suit property for
18 years. As oral evidence, defendants no.3 and 5
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RSA No. 2353 of 2008
examined as DWs.1 and 2 and independent person as
DW.3 along with documentary evidence consisting of RoR,
Residential Certificates by Chief Officer, TMC, KEB
certificates, Photographs and Agreements of sale marked
as Exs.D1 to D26.
12. It was submitted, initially suit was for
permanent injunction only. Four years after filing of suit
i.e. on 23.08.1996, defendants trespassed into suit
property and put up unauthorized construction at two
places covering 30ft. X 40ft. and 40ft. X 60.ft respectively.
It was submitted, same was even during operation of
order of temporary injunction. Therefore, plaintiff filed
application for amendment of plaint to incorporate
additional facts and prayer for mandatory injunction.
Application was allowed and amendments were
incorporated.
13. On consideration, trial Court decreed suit. But,
first appellate Court allowed appeal filed by defendants
and dismissed suit, mainly on two grounds. Firstly, that
plaintiff had not sought for declaration of title and
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RSA No. 2353 of 2008
secondly, failure to produce original sale deed dated
15.09.1976.
14. It was submitted, plaintiff had laid foundation
in pleading (para-2 of plaint) that she had lost original
sale deed. Therefore she got marked certified copy as
Ex.P1 as secondary evidence. Moreover, Ex.P2 – mutation
in revenue record was based of acquisition of title by her
under Ex.P1. Entry of her name in Columns no.9 and 12
(2) of RoR as Ex.P3 was also consequent to Ex.P1. It was
submitted, defendant no.1 – plaintiff’s vendor had not
questioned Ex.P1 since 1976. And revenue entries
attracted statutory presumption under Section 133 of KLR
Act. In any case, plea of adverse possession ipso facto
meant admission of plaintiff’s title over suit property.
15. It was submitted, in absence of pleading about
when and how defendants came into possession or
rebuttal, presumption under Section 133 of KLR Act
plaintiff would be attracted and presumed to be in
possession of suit property. It was submitted, documents
relied on to substantiate possession were residential
certificates dated 04.11.1999, few of which were issued in
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RSA No. 2353 of 2008
name of persons, who were not parties to suit. Moreover,
certificates were post-lite documents. And as they were
tampered, altering Sy.no.78/5 as Sy.no.478/5, they were
unreliable. However, first appellate Court relied on same
to reverse trial Court findings.
16. It was submitted, defendants relied on
Exs.D.25 and D26 – agreements of sale dated
11.02.1987, allegedly executed by defendant no.1 in
favour of Venkateshapppa and Shivamma in respect of
sites measuring 30ft. X 40ft and 60ft. X 40ft. in
Sy.no.478/5. But, plaintiff purchased suit property from
defendant no.1 under sale deed dated 15.09.1976 prior
to Exs.D25 and D26. It was contended, mere agreement
for sale did not create any legal right in immovable
property. It was contended, photographs produced by
defendant no.3 were not relating to suit property, which
was in 1 Acre 20 guntas out of total extent of 3 Acres.
Suit property was northern half of Sy.no.478/5 and DW.1
admitted in cross-examination that entire land measuring
3 Acres in Sy.no.478/5 was owned by Appaiah, who had
two sons namely, Somanna (defendant no.1) and
Hanumathaiah. DW.1 admitted, after death of Appaiah,
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RSA No. 2353 of 2008
out of 3 Acres in Sy.no.478/5, each son got half of it
measuring 1 Acre 20 guntas in oral partition.
17. It was contended, southern boundary of suit
property was stated as land of Hanumanthaiah. Thus, suit
property was northern half of land in Sy.no.478/5,
purchased by plaintiff from defendant no.1 on
15.09.1976. Learned counsel drew attention of this Court
to assertion by DW.1 that total extent of suit property
was 2½ Acres. He also admitted temple was constructed
in government land is contrary to his pleading. He also
admitted about plaintiff having removed one Honge tree
and planted new saplings etc. Even DW.2 admitted about
temple constructed in government land.
18. It was submitted, independent witnesses –
DW.3, however deposed that temple was constructed in
suit property, contradicting evidence of DWs. 1 and 2.
Despite same, first appellate Court relied on his
deposition to upset well reasoned judgment and decree
by trial Court, thereby committing error of relying upon
unreliable evidence for arriving at conclusion.
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RSA No. 2353 of 2008
19. In support of proposition that plea of adverse
possession amounts to admission of title, learned Senior
counsel relied on decision of Hon’ble Supreme Court in
K.M. Krishna Reddy v. Vinod Reddy & Anr. reported
in (2023) 10 SCC 248, wherein it held:
“Their plea was of adverse possession against
the appellant, which presupposes that the
appellant was the owner. When in a suit
simpliciter for a perpetual injunction based on
title, the Defendant pleads perfection of his
title by adverse possession against the plaintiff
or his predecessor, it cannot be said that there
is any dispute about the title of the plaintiff.
Hence, the plaintiff need not came a
declaration of title in such a case as the only
issues involved in such a suit are whether the
plaintiff has proved that he was in possession
on the date of the institution of the suit and
whether the Defendant has proved that he has
perfected his title by adverse possession.
Therefore, in the case at hand, it was not
necessary for the appellant to claim
declaration of ownership. There was no cloud
on his title. Therefore, the suit, as originally
filed, was maintainable”.
20. In view of above, there was no need for
seeking prayer for declaration of title. Alternatively,
prayer for moulding relief was sought relying on decision
of Hon’ble Supreme Court in Gaiv Dinshaw Irani &
Ors. v. Tehmtan Irani & Ors. reported in (2014) 8
SCC 294, wherein, it was held:
“Considering the aforementioned changed
circumstances the High Court taking note of
subsequent events moulded the relief in the
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RSA No. 2353 of 2008
appeal under Section 96 of the Code of Civil
Procedure and the same has been challenged
by the appellants before us. In ordinary course
of litigation, the rights of the parties are
crystalized on the date the suit is instituted
and only the same set of facts must be
considered. However, in the interest of justice,
a court including a court of appeal under
section 96 of the Code of Civil Procedure is not
precluded from taking note of Developments
subsequent to the commencement of the
litigation, when such events have a direct
bearing on the relief claimed by a party or on
the entire purpose of the suit, the courts
taking note of the same should mould the
relief accordingly. This rule is one of ancient
vintage adopted by the Supreme Court of
America in Patterson VS Alabama followed in
Lachmeshwar Prasad Shukul v. Keshwar Lal
Chaudhuri”
21. It was lastly submitted, plaintiff was claiming
right under Ex.P1, registered sale deed, as against
Exs.D25 and D26 mere agreements of sale, which were
subsequent to plaintiff’s sale deed. It was submitted,
registered sale deed attracted presumption about it being
validly executed by relying on decision of Hon’ble
Supreme Court in C. Jamila Begum v. Shami Mohd.
reported in (2019) 2 SCC 727, held as follows:
“Sale deed dated 21/12/1970 in favour of
Jamila Begum is a registered documents and
the registration of the sale deed reinforces
valid execution of the sale deed. A registered
document carries with it a presumption that it
was validly executed. It is for the party
challenging the genuineness of the transaction
to show that the transaction is not valid in
law.”
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RSA No. 2353 of 2008
22. On above grounds, learned Senior Counsel
sought for answering substantial questions of law in
favour of plaintiff and allow appeal.
23. Heard learned counsel for plaintiff, perused
impugned judgment and decree.
24. Sri CM Govinda Reddy, learned counsel for
respondents no.1(A-D) remained absent; while
respondents no.3 and 5 are served, unrepresented and in
respect of respondents no.2, 4, 6 and 7 notice held
sufficient.
25. As stated above, appeal was by plaintiff
against divergent findings in a suit for permanent
injunction and mandatory injunction, wherein plaintiff
claimed to have purchased suit property under Ex.P.1 –
registered sale deed from defendant no.1 and claimed to
be in possession and enjoyment thereof as indicated in
Ex.P.2 – mutation extract and Ex.P.3 – RoR. Plaintiff
alleged interference by defendants with her possession
prior to suit and trespass/dispossession during pendency
of suit based on Ex.P.4 – police complaint dated
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RSA No. 2353 of 2008
23.08.1996. Plaintiff sought to establish her case based
on her own deposition as PW.1 and two others examined
as PWs.2 and 3 and producing documents mentioned
above.
26. Suit was contested by defendants no.1, 3 and
5 only, who denied plaintiff’s claim of title over suit
property under Ex.P1. They stated that suit property
originally belonged to Appaiah, who died 20 years earlier
leaving behind sons – Hanumanthappa and Somanna. And
that Hanumanthappa also died leaving behind his only
son – Narayanappa. Therefore, it belonged to Somanna
and his family members, and since 18 years, defendants
and 25 others were possession of sites in suit property,
wherein they had constructed compound, building and
residing therein. They also claimed to have grown trees
etc., and using land for haystacks, tethering cattle etc.
Thus, they claimed to have acquired title by adverse
possession.
27. To substantiate their claims, defendants no.3
and 5 examined as DWs.1 and 2 and also independent
witness as DW.3. To substantiate possession, they relied
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RSA No. 2353 of 2008
on residential certificates issued by Chief Officer, TMC,
and electricity connection certificates from KEB and
photographs – Exs.D2 to D24. They also produced
Agreements of Sale stated to have been executed in
favour of Venkateshappa and Shivamma on 11.02.1987
as Exs.D25 and D26.
28. While passing impugned judgment and
decree, trial Court adverted to rival pleadings, depositions
and documentary evidence. It observed, plaintiff and his
witnesses deposed in terms of plaint. It noted, except
making suggestions denying plaintiff’s title under Ex.P1,
about entry of her name in revenue records and plaintiff
being in possession of suit property, nothing material was
elicited in cross-examination.
29. Examining material on behalf of defendant, it
observed, defendant’s failing to lead rebuttal evidence
insofar as title. It observed, plaintiff had established
lawful ownership and title over suit property. It noted that
Assistant Executive Engineer of PWD was appointed as
Court Commissioner to measure properties of
plaintiff/defendants and examined as CW.1 and got
marked Exs.C1 to C7. It noted, admission by CW.1 that
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RSA No. 2353 of 2008
he had prepared report about buildings based on
information collected from public and observed,
Commissioner had failed to state whether constructions
were made prior to or after filing of suit and was unable
to identify buildings of defendants from photographs. It
therefore held, said evidence to be inconclusive.
30. After examining deficiencies/omissions or
discrepancies in documentary evidence of defendants,
especially competency of Chief Officer, TMC, to issue
residential certificates, answered issue no.1 and
additional issues no.1 and 5 in affirmative. In view of its
finding on issue no.1 and on ground that defendants had
taken inconsistent pleas which would be impermissible
without admitting plaintiff’s title, it answered additional
issues no.3 and 4 in negative and taking note of
contention about defendants claiming to have put-up
construction, being in possession etc., it answered
additional issue no.2 in affirmative. Consequently, it
decreed plaintiff’s suit.
31. In appeal, first appellate Court also took note
of rival pleadings and material placed on record by
parties. It firstly observed specific contention by
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RSA No. 2353 of 2008
defendants that as plaintiff was not an agriculturist, she
could not purchase suit property and defendant no.1 had
not executed any sale deed. It noted, since suit was not
only for permanent injunction but for mandatory
injunction wherein defendants had denied her title,
plaintiff had omitted to seek relief of declaration. It noted
that plaintiff had produced certified copy of Sale Deed as
Ex.P1. For failure to produce original Sale Deed or in case
of its loss, corroborative documents such as police
compliant or public notice cast doubt about plaintiff’s
claim of loss of original Sale Deed. It drew adverse
inference for failure to summon original registers from
Sub-Registrar’s office and lack of explanation for having
filed application for mutation of her name on 10.01.1992,
even when date of purchase was 15.09.1976. It further
referred to admission by PW.1 in cross-examination that
she was not aware of date of partition and not disputed
assertion by defendants that suit property was joint
family property of defendant no.1. On said reasoning, it
held, defendant no.1 did not have exclusive title over suit
property. It therefore held, transfer of title under Ex.P.1
would be defective. It noted, PW.2 admitted that he does
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RSA No. 2353 of 2008
not know when and how plaintiff purchased suit property.
On ground that PWs.2 and 3 admitted to have worked
under plaintiff, it discarded their deposition as being
biased.
32. And in light of specific case of defendants
about being in possession over different portions of suit
property, it observed admission by PW.1 about existence
of temple in suit property without explanation, whether it
was prior to or after her purchase going against her. On
bare examination of Exs.D11 to D24 – photographs, it
found buildings shown therein to be old and prior to suit.
It specifically observed that they were not recent
constructions.
33. It observed, trial Court though framed issue
regarding title, it had failed to scrutinize Ex.P1, which was
a certified copy and even when denied by defendants,
plaintiff had failed to produce original or summon register
from Office of Sub-Registrar, drew adverse inference,
held wrong appreciation of pleadings and evidence by trial
Court, drawing of wrong presumptions, which had
resulted in miscarriage of justice. On said conclusion, it
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RSA No. 2353 of 2008
upset trial Court judgment and decree. Thus, this second
appeal is against divergent conclusions.
34. Since this is an appeal under Section 100 of
Code of Civil Procedure, 1908, scope for interference
would be only on substantial questions of law. This appeal
was admitted on 29.09.2010, to consider following
substantial questions of law:
1. Whether the first appellate court is justified
in reversing the judgment and decree of the
trial Court merely for not producing the
original sale deed Ex.P.1 and not claiming the
prayer for declaration of title?
2. Whether the first appellate court is justified
in not considering the undisputed document
and material evidence supporting the case of
plaintiff while reversing the judgment and
decree of trial court?
3. Whether the first appellate court is justified
in not complying the statutory requirement of
reassessing the entire oral and documentary
evidence on record in requirement of Order XLI
Rule 31 of CPC while disagreeing with the
findings of the trial Court?
35. As rightly contended, one of grounds for
reversal of trial Court decree by first appellate Court is
failure of plaintiff to produce original sale deed and
seeking to rely on certified copy of it as Ex.P1.
36. Hon’ble Supreme Court elucidated principles
regarding secondary evidence in case of H.Siddiqui v.
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RSA No. 2353 of 2008
A.Ramalingam reported in (2011) 4 SCC 240, wherein
it held:
“12. The provisions of Section 65 of the 1872 Act
provide for permitting the parties to adduce
secondary evidence. However, such a course is
subject to a large number of limitations. In a case
where the original documents are not produced at
any time, nor has any factual foundation been laid for
giving secondary evidence, it is not permissible for
the court to allow a party to adduce secondary
evidence. Thus, secondary evidence relating to the
contents of a document is inadmissible, until the non-
production of the original is accounted for, so as to
bring it within one or other of the cases provided for
in the section. The secondary evidence must be
authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original.
Mere admission of a document in evidence does not
amount to its proof. Therefore, the documentary
evidence is required to be proved in accordance with
law. The court has an obligation to decide the
question of admissibility of a document in secondary
evidence before making endorsement thereon.
(Vide Roman Catholic Mission v. State of Madras [AIR
1966 SC 1457] , State of
Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000
SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC
491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ)
191] and M. Chandra v. M. Thangamuthu [(2010) 9
SCC 712 : (2010) 3 SCC (Civ) 907] .)”
37. Admittedly, Ex.P1 is certified copy obtained
from Office of Sub-Registrar. As observed in Jamila
Begum‘s case (supra), registration offers presumptive
value about due execution of deed. It is seen, Ex.P1 was
marked in deposition of PW.1 without any objection. As
per plaintiff, she purchased suit property from Somanna,
Vendor though arrayed as defendant no.1, merely chose
– 24 –
RSA No. 2353 of 2008
to adopt written statement of defendant no.3, who had
denied it. While plaintiff stepped into witness box as
PW.1, defendant no.1 did not. Other contesting
defendants though denied valid purchase, they admitted
that plaintiff’s vendor was amongst owners of suit
property. Only basis for title was adverse possession and
Exs.D25 and D26.
38. As held in K.M.Krishna Reddy‘s case
(supra), plea of adverse possession cannot survive
without admission of title. While passing impugned
judgment and decree, trial Court referred to said principle
of law. But, first appellate Court does not refer to
decisions and principles laid down even to record finding
if they did not apply to present case. In fact, without
traversing reasons assigned by trial Court, first appellate
Court proceeded to reverse findings.
39. Principle of law as to duty of first appellate
Court in an appeal are well established. Hon’ble Supreme
Court elucidated requirements under Order XLI Rule 31 of
CPC, H.Siddiqui’s case (supra) as follows:
“21. The said provisions provide guidelines for the
appellate court as to how the court has to proceed
and decide the case. The provisions should be read in
– 25 –
RSA No. 2353 of 2008
such a way as to require that the various particulars
mentioned therein should be taken into
consideration. Thus, it must be evident from the
judgment of the appellate court that the court has
properly appreciated the facts/evidence, applied its
mind and decided the case considering the material
on record. It would amount to substantial compliance
with the said provisions if the appellate court’s
judgment is based on the independent assessment of
the relevant evidence on all important aspects of the
matter and the findings of the appellate court are
well founded and quite convincing. It is mandatory
for the appellate court to independently assess the
evidence of the parties and consider the relevant
points which arise for adjudication and the bearing of
the evidence on those points. Being the final court of
fact, the first appellate court must not record mere
general expression of concurrence with the trial court
judgment rather it must give reasons for its decision
on each point independently to that of the trial court.
Thus, the entire evidence must be considered and
discussed in detail. Such exercise should be done
after formulating the points for consideration in terms
of the said provisions and the court must proceed in
adherence to the requirements of the said statutory
provisions. (Vide Sukhpal Singh v. Kalyan Singh [AIR
1963 SC 146] , Girijanandini Devi v. Bijendra Narain
Choudhary [AIR 1967 SC 1124] , G.
Amalorpavam v. R.C. Diocese of Madurai [(2006) 3
SCC 224] , Shiv Kumar Sharma v. Santosh
Kumari [(2007) 8 SCC 600] and Gannmani
Anasuya v. Parvatini Amarendra Chowdhary [(2007)
10 SCC 296 : AIR 2007 SC 2380] .)
22. In B.V. Nagesh v. H.V. Sreenivasa
Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808
: JT (2010) 10 SC 551] , while dealing with the issue,
this Court held as under : (SCC p. 531, para 4)
“4. The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. The first appeal is a
valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all
the issues arising along with the contentions put forth
and pressed by the parties for decision of the appellate
– 26 –
RSA No. 2353 of 2008
court. Sitting as a court of appeal, it was the duty of the
High Court to deal with all the issues and the evidence
led by the parties before recording its findings. The first
appeal is a valuable right and the parties have a right to
be heard both on questions of law and on facts and the
judgment in the first appeal must address itself to all the
issues of law and fact and decide it by giving reasons in
support of the findings. (Vide Santosh
Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] , SCC
p. 188, para 15 and Madhukar v. Sangram [(2001) 4
SCC 756] , SCC p. 758, para 5.)”
23. More so, none of the courts below had taken
into consideration Clause 11 of the agreement dated
30-6-1979, which reads as under:
“11. In the event of any default on the part of the
vendors in completing the sale the earnest money paid
herewith shall be refunded to the purchasers together
with a like amount of Rs. 5000 (Rupees five thousand
only) as liquidated damages for breach of contract.”
Thus, in case of non-execution of the sale deed, the
appellant could get the earnest money with damages.
24. So far as the issues of inadequate
consideration and rise in price are concerned, both
the parties have argued the same at length and
placed reliance on a large number of judgments of
this Court, including : Chand Rani v. Kamal
Rani [(1993) 1 SCC 519 : AIR 1993 SC 1742]
, Nirmala Anand v. Advent Corpn. (P) Ltd. [(2002) 8
SCC 146] , P. D’Souza v. Shondrilo Naidu [(2004) 6
SCC 649] , Jai Narain Parasrampuria v. Pushpa Devi
Saraf [(2006) 7 SCC 756] , Pratap Lakshman
Muchandi v. Shamlal Uddavadas Wadhwa [(2008) 12
SCC 67] and Laxman Tatyaba Kankate v. Taramati
Harishchandra Dhatrak [(2010) 7 SCC 717 : (2010) 3
SCC (Civ) 191] .
25. In view of the above, as we are of the
considered opinion that the courts below have not
proceeded to adjudicate upon the case strictly in
accordance with law, we are not inclined to enter into
the issue of inadequate consideration and rise in
price. However, the judgment impugned cannot be
sustained in the eye of the law.”
– 27 –
RSA No. 2353 of 2008
40. Bare perusal of judgment and decree by first
appellate Court reveals, it to be wanting in reasoning.
Therefore, substantial questions of law no.1 to 3 require
to be answered in favour of appellant-plaintiff.
41. Consequently, following :
ORDER
(i) Appeal is allowed;
(ii) Impugned judgment and decree dated
09.07.2008 passed by first appellate Court in
R.A.no.147/2005 is set-aside, restoring
judgment and decree dated 10.03.2005
passed by trial Court in O.S.no.97/1992.
No order as to costs.
Sd/-
(RAVI V HOSMANI)
JUDGE
Psg/AV
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