:1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 06th DAY OF JULY 2011 BEFORE THE HON’BLE MR.JUSTICE K.GOVINDARAJULU R.F.A. No.971/2003 IDECI BETWEEN: I. SHLVAWWA W/O VEER\PPA SHIVASTM PAR AGED 70, OCC.AGRICULTURE R/O.BALAGANUR. (;ADAG 2. CHANDRASEKAR S/O.VEERAPPA SHIVASIMPAR AGE.45, OCC.AGRICULTURE R/O. BALAGANUR. GADAG APPELLANTS (By Sri. MALLIKARJUN C BASAREDDY: HEMANTH R. CHANDANAGOLJDAR ADVsJ AND: SH1VAYOGISHWAR S/O.SRISHAILAPPA SHIVASIMPAR AGED.24 YEARS. OCC.AGRICULTURE RIO. BALAGANUR, GADAG RESPONDENT (By Sri. PRAVEEN KU MAR RAIKOTE ADV. FOR C,’ R) THIS RFA IS FILED U/S. 96 OF CPC AGAINST THE JUDGMENT AND DECREE DT.6.9.02 PASSED IN O.S.NO.71/98 ON THE FILE OF THE CIVIL JUDGE (SRDN) AND CJM, GADAG. DECREEING THE SUIT FOR DECLARATION. THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT Ti- 1 (. 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The defendants have filed the written statement contending that property claimed by the plaintiff is registered in the name of the pLaintiff nominally, but, it is the father of the plaintiff namely Srishailappa that is the owner, plaintiff has not acquired any kind of right or title under the sale deed, the mutation cnn-v No.4252 by itself will not convey the title to the plaintiff. 7. It is further contended that in reply about the case of the defendants in regard to the manner in which the suit schedule property is acquired. For better appreciation, the case as one pleaded by the defendants is extracted as the one found in pam 7-9. It reads as under: 7. The plaintiff’s father Shrishailappa, Channabasappa. lshwarappa, Shankarappa. Kashappa are the natural brothers of the defendant No.1. The husband & the defendant No.1 comes from Morab Village in Navalgund Taluka. The husband of the defendant No.1 died in the year 1948. Thereafter. the brothers of defendant No.1 got sold the property of the husband of the defendant No.1 and retained the sale 4—..-. 0+ proceeds with them only. As defendant No.1 and her son i.e., defendant No.2 were brought to Balaganur by the said brothers, the defendants No.1 and 2 have been living with the said brother since then. 8. Out of the amount of the defendant No.1’s husbands property. that was realised by sale. that plaintiff’s father purchased the suit property nominally in the name of his son. Likewise. Channabasappa had purchased the some other property in the name of her son Parutappa. That the aid brothers utilised the sale said amount and purchased nominally R.S. Nos.196/1, 19612B, 216!IB. Thus, the suit land and other said lands were and are in possession of the defendant No.1 only and the all the said lands were and are in possession of the defendant No.1 till today. 9. However, the plaintiffs father and the other two brothers — Channabasappa and Shankarappa have given the said land and also other two lands in recognition of her ownership right only. By voluntarily giving Wardi ttiat was affected. As such, the name of defendant No.1 has been duly entered as :6: ‘4 owner and Kabjedar of the suit land as per M.E. No.5023.” 8. In the words of defendants, defence is the plaint schedule properly is purchased in the name of the plaintiff. the father of the plaintiff and the brothers of the plaintiff have given a varadi. So, the varadi is not a collusive one, it is a binding one. 9. Learned trial judge has framed issues permitted the parties to lead evidence. PWs- I & 2 arc examined, Exs.P- 1 and 9 are marked. In response, DWs- I to 4 are examined and Exs.D-1 to 13 are marked. 10. Learned trial judge has answered the following issues with the following reasons: - ISSUES: 1. Whether the plaintiff proves that he is the absolute owner and in exclusive possession and enjoyment of the suit property? 2 Whether the plaintiff proves that M.E. No.5023 is not binding on him? 3. Whether the plaintiff proves the alleged interference with his possession and enjoyment of the suit property by the defendant? :7: 4. Whether the defendants proves that suit property and other properties were purchased by plaintiffs father out of the sale proceeds of the property belonged tot he husband of defendant No.1 situated at Morab Village? 5 Whether the plaintiff is entitled to the reliefs prayed for? 6. What order or decree? FINDINGS: Issue No.1 Partly in the affirmative: though the plaintiff has been able to prove that he is absolute owner of the suit property, has not proved satisfactorily that he is in possession and enjoyment of the suit property. Issue No.2 : In the affirmative; Issue No.3 : In the negative; Issue No.4 Not duly proved; Issue No.5 : The plaintiff is entitled to the relief of declaration and alternative relief of possession, but not entitled to the relief of injunction; Issue No.6 As per the final order. A— 8 j 111 •i ii I 1 C j n t . IT U nd h i t 1 itfi is rcItiab I h h his I Ocr hts IxP? tar) ft I h li’i’II ii I I t t at! C I tEa j EdO I 1k tI. l 1 J I up 4 it II I. ai x t i t I’ I F t r ‘isa 1’ t’ I ) 1) I. red i 1 cte fn 1 ’c rutty is U tat fi 11 IEP) rntcr ‘c n list s’ ic O’iT)it ntrmc nt’ of ftc s it dcd soulo sh paid thc mont Ii ,. I hc n tii dc ar-ic t hc ciilc c. I FA ftc r i cl-c ‘r usc-I t 1. a. I 4- :9: from which date he has lost the possession. Under the guise of collusion without giving the particulars of collusion. the plaintiff intends to grab at the property in possession of the defendants. So, pray for setting aside the decree passed by the learned Civil Judge (Sr. Dn.). Ciadag. 15. On the other hand, learned advocate for the plaintiff contends that the document Ex.P-2 produced would show that the property is purchased in the name of the plaintiff, when the plaintiff was aged about 4 or 5 years old. So, the mother of the plaintiff is examined to show that she has contributed the money. This case of the plaintiff is believed. So, the varadi as given, contended by the plaintiff, is a collusion by the father of the plaintiff along with his brothers. Also add that the varadi will not confer any title to the property. So, the approach of the learned trial judge is proper. 16. I-Ic also further invites the attention of the Court to the portions of deposition of DW-2. For better appreciation, the said portions of the deposition relied are extracted. They read as under: 4— 10: “The father of the plaintiff was getting handsome salary when he was serving as a teache(. The further portion reads as under: ‘it was my intention that the property should go to those persons in whose names properties have been purchased” 17. The material submissions would probablise that the identity of the parties is not in dispute, identity of the property is not in dispute. The settled law while considering the case of this nature in regard to the declaration of the title is, it is for the plaintiff to prove the case pleaded by him. In the light of the above, the points that arise for consideration are as under: 1. Whether the plaintiff prove the title to the plaint schedule property? 2. Whether the plaintiff proves interference in the enjoyment of the property? 3. Whether the plaintiff is entitled for declaration of title and other reliefs claimed by the plaintiff? 4. What order? C Ii Co POINT NOS. 1 TO 3: li-i SHIVAMURTHY SWAMY VS. AGADI SANGANNA rcported 1969 MYSORE 12, the Court has held t.hat.. the evide.nee is ree.oided to .find out. the truth Wi. tb th i.s yard - St ek, all the pc.b ii ts rai se.d t.:v t.he C.:urt arc iuknn on or consIderation. I 0. :\ Odin of ho. 2- sole (flt(i, \vceid shuvu the kJ.ilcwiniz partIculars as to \vh. ha .s paid the mle eon sidera.tio 1.1: tot o tu1D&ronduth:te As on t.he date of ExP-2, the plaintilT being I I — I I has. paid t.hn sunsideralionl So. the Court. intends to ihc evicleicn of 1-ho-S. the irutncr of Lhr Lunofi 20. pf1/9 in the course of her evk :enee state t.hat., she has completed TC.H in the sear 1970. She was givi.n uti(fl5 to t: he st.udc n ts, doint to I I. ni. ass and s.htt’ s carnin / - .u . •. ,. •wa s thur vat no old. In the eno os-exami u a it. she state t h she can not give the date or mon th of u rehase She states; A 1 2 that b r Ii sbat. ! •‘ ;“‘ s ri’ ‘bt n tin SJS tl(fll i I Ru’ ii .‘Ir a t 4n U’ L it ilk. • ti ‘ ‘ c;i fi •‘i’ . • ‘‘—• r• t’ .. r , iatt l• .t.aL% 4 .‘, %‘jV S !t t. 1.%1’. ‘ J!’t sunt numbcr ht cannc t jhc. thc p ii’ cii ears hcth.t r *fl. d”.in • Ltfl( 11’ 1% ‘.!‘. But •q 5 t J% tI; it .hr h is ‘h’ C’)’i%ldi”aLjtnl LtTh •tiili SFii itS’ sf..att s :l:.it t ‘,r’idernunii in irt ‘ pail’s hcr. I r i( lii par cn’io ‘Il( siid vtrsi’ni ft ta d in tht dttosiltot PW ‘ r “ 1. ri tcIs is L’nhIvr Unde the ale lad t ‘ rc’c.’ted that consideiation amount is paid by me 21 n’— “r t s: p ii .,jrip.,rij ‘ r the .tr’i. Mat I L 2 ‘1 rc au’s tf (‘K I I S. a’ L’.-’ lit I ‘‘!fl . .. .lr’ ‘ . .;. ,.i • •l :; • ; . i .‘ :. H:. .‘ lu. . S j r • C 3 I .‘t• .8 I • .4 t’ I I ‘I . 1. 13: 0 is that she has paid the money. So, examining the evidence in consonance with the law laid down by the ruling reported in AGAD1 SANGANNA S case it can be concluded that PW-2 is lying before the Court. 22. The next contention relied by the plaintiff to seek for declaration is that his father, father’s brothers, have colluded with each other and they have mutated. In regard to mutation, the defendants did agree about the mutation is by collusion, hut it is for the plaintiff to show that there is collusion and it is for the plaintiff to substantiate the collusion. In the cross-examination the occupation of the father of the plaintiff is shown as a teacher. It is also further fortified from the cross-examination of DW-2 that the father of the plaintiff while serving as a teacher had good income. Why the father did not enter the witness-box and explained whether the contents in Ex.P-2 are correct or the contention of the wife examined as PW-2 is correct remains unsubstantiated. So, probabilses that the son, father, mother tried to create the things after two years of the plaintiff attaining majority. In view of the above, the Court 14: •0 holds that the case of the plaintiff that there is a collusion by the father with his brothers is not substantiated. So, Court holds that the approach of the learned Civil Judge (Sr.Dn.) in analysing the evidence placed before it is contrary to the mandate under Sections 91 and 92 of the Evidence Act. Therefore, it is illegal. Therefore, it is liable to be set aside. The finding would probabilise that plaintiff has failed to prove consideration, possession. So he is not entitled for the relief of declaration. So, point Nos. 1 to 3 are answered in the negative. The submissions of the advocate Ibr the defendants are accepted. The submission of the advocate for the plaintiff are rejected. 23. In the light of the above, the Ibllowing order is passed: - ORDER 1. The appeal is allowed. 2. The judgment recorded by the Learned trial judge in O.S.No.71/98 on the file of the Civil Judge (Sr.Dn.), Gaclag is set, aside. aocrnt a’p