SRI M SHESHAIAH, vs SRI MYLARAPPA,
- Court
- Karnataka High Court
- 1 -
RSA No. 1757 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
REGULAR SECOND APPEAL NO.1757 OF 2011 (DEC/INJ)
BETWEEN:
SRI M. SHESHAIAH
S/O M. VENKATASUBBAIAH,
AGED ABOUT 75 YEARS,
RESIDING AT: NO.G1, ADITYA RESIDENCY,
BHADRAPPA LAYOUT, NAGASHETTY HALLI,
BENGALURU - 560 094.
…APPELLANT
(BY SRI VIVEK SUBBAREDDY, SENIOR COUNSEL, FOR
SRI K.N. SUBBA REDDY, ADVOCATE)
AND:
SRI MYLARAPPA
S/O LATE MOGAIAH,
SINCE DEAD, BY HIS LEGAL REPRESENTATIVES:
1(A) SRI YELLAPPA
S/O LATE MYLARAPPA,
SINCE DEAD, BY HIS LEGAL REPRESENTATIVE:
1(A)1 SRI NAGRAJ
S/O YELLAPPA,
AGED ABOUT 36 YEARS.
1(B) SRI KRISHNAPPA
S/O LATE MYLARAPPA,
AGED ABOUT 55 YEARS.
1(C) SRI MUNIYANNA
S/O LATE MYLARAPPA,
AGED ABOUT 53 YEARS.
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad
- 2 -
RSA No. 1757 of 2011
1(D) SMT. YELLAMMA
D/O LATE MYLARAPPA,
AGED ABOUT 51 YEARS.
1(E) SMT. NEELA RATHNAMMA
D/O LATE MYLARAPPA,
AGED ABOUT 41 YEARS.
1(F) SMT. VARALAKSHMI
D/O LATE MYLARAPPA,
AGED ABOUT 47 YEARS,
1(G) SMT. MANJAMMA
D/O LATE MYLARAPPA,
AGED ABOUT 45 YEARS.
ALL ARE RESIDING AT
VADERAHALLI VILLAGE,
YELAHANKA HOBLI AND TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU - 560 064.
2. SRI D. RAJAN
S/O LATE Y. DANIEL,
AGED ABOUT 72 YEARS,
RESIDING AT NO.115, KALATHUR LAYOUT,
GANGAMMA CIRCLE, JALAHALLI,
BENGALURU - 560 013.
3. SRI RAMACHANDRA REDDY
S/O LATE C.V. REDDY,
AGED ABOUT 46 YEARS,
RESIDING AT NO.26, SREE RANGAM RESIDENCY,
FLAT NO.1, 1ST MAIN ROAD,
HEBBALA,
BENGALURU - 560 024.
…RESPONDENTS
(BY SRI UDAY HOLLA, SENIOR COUNSEL, FOR
SRI AKSHAY R. HUDDAR, SRI NAVEED AHMED, AND
SRI RAMANA, ADVOCATES, FOR R-1 (A TO G), &
SRI B. RAMESH, ADVOCATE, FOR R-2)
*
- 3 -
RSA No. 1757 of 2011
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE DATED
13.06.2011 IN R.A. NO.23/2011 PASSED BY THE PRINCIPAL SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, AND
ALSO SET ASIDE THE JUDGMENT AND DECREE DATED 05.03.2011 IN
O.S. NO.479/2004 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.
DN.), BENGALURU RURAL DISTRICT, BENGALURU, AND
CONSEQUENTLY, DECREE THE SUIT OF THE APPELLANT-PLAINTIFF
AS PRAYED IN THE ABOVE SUIT WITH COSTS.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 28.08.2026, COMING ON FOR PRONOUNCEMENT,
THIS DAY, THE VENKATESH NAIK T. J., PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE VENKATESH NAIK T
CAV JUDGMENT
This appeal is filed by the appellant challenging the
concurrent findings of the trial Court in O.S. No.479/2004 and
the First Appellate Court in R.A. No.23/2011.
2. The appellant is the plaintiff and the respondent is
the defendant (since the respondent has died and is
represented by his legal representatives, for the sake of
convenience, the respondents are referred to as the defendant
throughout this judgment).
3. Brief facts of the appellant's case, in nutshell, are
as under:
The appellant-plaintiff claims to be absolute owner and in
lawful possession and enjoyment of the suit schedule property
- 4 -
RSA No. 1757 of 2011
bearing Sy.No.12/1, measuring 3 acres, out of the total extent
of 5 acres 7 guntas, situated at Doddabettahalli Village,
Yelahanka Hobli, Bengaluru North Taluk. The said property was
acquired by the appellant under a registered sale deed dated
14.09.1998 for valuable consideration. The appellant had
acquired the remaining extent of 2 acres 7 guntas in the same
survey number from the same vendors, namely Narasimhaiah,
Muninanjappa and Muniraju, under a registered sale deed dated
20.12.2001. Thus, according to the appellant, he became the
absolute owner of the total extent of 5 acres 7 guntas
comprised in Sy.No.12/1 and has been in lawful possession and
enjoyment thereof. Pursuant to the said transactions, the
revenue authorities mutated his name in the revenue records.
Owing to the development of the surrounding area, he could
not carry on agricultural operations in the suit schedule
property and, therefore, the schedule property was kept
vacant. The respondent-defendant, who has no manner of
right, title or interest over the suit schedule property, is alleged
to have interfered with the appellant's possession and
attempted to dispossess him.
4. When things stood thus, on 07.05.2004, the
respondent, along with his henchmen, attempted to interfere
- 5 -
RSA No. 1757 of 2011
with the suit schedule property and tried to form a layout by
putting up fence. The appellant, with the assistance of his
neighbours, resisted the said attempt, whereupon the
respondent and his associates left the spot. The appellant
claims that, when he called upon the respondent to produce
any document evidencing his alleged right over the property,
the respondent failed to produce any such document, instead
threatened him with dire consequences.
5. It is further alleged that, on 22.05.2004, the
respondent again appeared near the suit schedule property and
attempted to interfere with the appellant's possession. The
appellant once again resisted the said attempt. At that time,
the respondent allegedly asserted that he is the absolute owner
of the suit schedule property and denied the appellant's title
and interest therein. In the aforesaid circumstances, the
appellant contends that he was left with no alternative, but to
institute a suit seeking a declaration that he is the absolute
owner and in lawful possession and enjoyment of the suit
schedule property, along with the consequential relief of
permanent injunction restraining the respondent from
interfering with his peaceful possession and enjoyment thereof.
- 6 -
RSA No. 1757 of 2011
6. Per contra , the respondent filed his written
statement, inter alia contended that the suit of the plaintiff is
not maintainable either in law or on facts. He specifically denied
the contention that the appellant is the absolute owner or that
he is in lawful possession and enjoyment of the suit schedule
property. The respondent contended that the property
described in the plaint schedule is, in fact, the property
belonging to him, over which he had been in continuous,
peaceful and lawful physical possession and enjoyment as its
absolute owner. He disputed the appellant's claim of possession
and contended that the alleged possession pleaded by the
appellant was merely illusory and imaginary.
7. The respondent further denied the alleged
incidents of interference dated 07.05.2004 and 22.05.2004.
According to him, no such incidents had occurred and the
alleged cause of action had been concocted by the appellant for
the purpose of maintaining the suit. He also pointed out that
the appellant had initially referred to the date of the alleged
incident as 03.05.2004 and subsequently, corrected the same
to 07.05.2004, which according to the respondent,
demonstrated the falsity of the appellant's case.
- 7 -
RSA No. 1757 of 2011
8. The respondent disputed the evidentiary value of
the mutation entries and other revenue records relied upon by
the appellant. It is contended that such entries had been made
merely on the basis of the sale deeds relied upon by the
appellant and that revenue records did not confer title upon a
person. The respondent also relied upon Section 136 of the
Karnataka Land Revenue Act, 1964, in support of his contention
regarding the nature and evidentiary value of revenue entries.
9. The respondent traced his title to the larger extent
of land bearing Sy.No.12/1, which originally measured 29 acres
20 guntas and, according to him, the entire property belonged
to one A. Shamanna. It is contended that the respondent's
father, Mogaiah, along with five others, purchased the said
property under a registered sale deed dated 07.09.1942 for
valuable consideration and thereafter continued in joint
possession and enjoyment of the property along with their
respective family members.
10. The respondent further relied upon a series of
subsequent transactions to establish his claim over the
property. According to him, his father purchased 5 acres from
Muniswamappa under a registered sale deed dated 31.07.1948
- 8 -
RSA No. 1757 of 2011
and subsequently sold the said extent to Thimma Reddy under
a registered sale deed dated 09.02.1950. It was further
contended that the respondent purchased 5 acres from
G. Venkatappa under a registered sale deed dated 15.09.1960
and thereafter sold 1 acre 10 guntas to Sheik Ahmed under a
registered sale deed dated 04.06.1966. He claimed to have
subsequently further purchased 1 acre from H. Muniswamappa
under a registered sale deed dated 17.10.1966 and again sold
20 guntas to H. Muniswamappa under a registered sale deed
dated 06.07.1967.
11. The respondent further stated that he sold 1 acre in
favour of H. Muniswamappa under a registered sale deed dated
12.12.1967 and thereafter purchased 1 acre 10 guntas from
Sheik Ahmed Sahib under a registered sale deed dated
14.12.1967. He subsequently sold 2 acres 20 guntas to
Muniswamappa under a registered sale deed dated 12.03.1969
and again purchased 2 acres 20 guntas from H. Muniswamappa
under a registered sale deed dated 19.02.1970. According to
the respondent, upon taking into consideration the aforesaid
transactions, he and his father had, at different points of time,
purchased an aggregate extent of 19 acres 13 guntas and sold
- 9 -
RSA No. 1757 of 2011
10 acres 10 guntas, leaving an extent of 9 acres 20 guntas, as
claimed by him, in their ownership and possession.
12. The respondent also relied upon the proceedings
before the Survey Authority to dispute the appellant's claim and
the identity of the suit schedule property. According to him,
proper revenue and survey records had not been maintained in
respect of the original Sy.No.12 resulting in disputes among
several persons claiming portions of the said survey number.
The respondent stated that he had approached the Survey
Department seeking phodi proceedings in respect of his lands.
The appellant had also participated in the said proceedings
along with several other persons, including Jayachandra,
Adhilakshmamma, Krishnoji Rao, Manohar Lal, Abdulla,
R. Subramanyam and Venkatappa.
13. It is contended that the Assistant Director of Land
Records, in Case No. ADLR/MPR/BN/380/2003-04, after
conducting an enquiry, found that proper survey records were
not available and that extents mentioned in the respective sale
deeds did not correspond with the extent actually available on
the ground. Consequently, by order dated 07.01.2004, the
Survey Authority held that it was not possible to undertake the
- 10 -
RSA No. 1757 of 2011
phodi work and disposed of the proceedings, reserving liberty
to the parties to approach the competent authority for
resolution of their disputes.
14. The respondent further contended that the survey
records did not disclose the names of the persons from whom
the appellant allegedly purchased the suit schedule property.
He alleged that the appellant had deliberately furnished
boundaries corresponding to the respondent's property and had
relied upon fabricated or invalid documents purportedly
executed by persons who themselves had no right, title or
interest over the property. The respondent accordingly
maintained that the sale deeds relied upon by the appellant did
not confer any valid title upon him and that the appellant had
failed to establish either his title or possession over the suit
schedule property.
15. Based upon the pleadings of both the parties,
learned trial Court framed relevant issues. In order to prove the
case of the plaintiff, he himself entered the witness box and
was examined as PW1. The plaintiff also examines one witness
as PW2 in support of his oral evidence. He also got marked
Exs.P1 to P20 and closed his side of evidence. To rebut the
- 11 -
RSA No. 1757 of 2011
evidence of the plaintiff, the defendant was examined as DW1.
He got marked Exs.D1 to D46 and closed his side of evidence.
Upon hearing the arguments of both the side and on careful
examination and consideration of facts as well as law, the trial
Court had dismissed the suit of the plaintiff. Being aggrieved by
the dismissal of the suit, the plaintiff preferred Regular Appeal
before the First Appellate Court. The learned First Appellate
Court after hearing the arguments of both the sides and on
appreciation of evidence of both the parties, being the last fact
finding Court, dismissed the appeal of the plaintiff, by
confirming the judgment and decree passed by the trial Court.
Hence, the plaintiff is before this Court challenging the
judgment and decree passed by both the Courts in this regular
second appeal.
16. Sri Vivek Subba Reddy, learned senior counsel
appearing for Sri K.N. Subba Reddy, learned counsel for the
appellant-plaintiff, has vehemently contended that the Courts
below erred in accepting the defence of the respondent despite
the absence of a clear and consistent plea regarding the exact
extent, identity, boundaries and location of the land allegedly
retained by him. The respondent had taken mutually
inconsistent stands regarding the extent of land claimed by
- 12 -
RSA No. 1757 of 2011
him, namely 9 acres 20 guntas in the written statement, 7
acres in the written arguments and 2 acres 20 guntas in the
revenue proceedings, without establishing which specific
property constituted the suit schedule property. It is contended
that the respondent's case could not have been accepted when
his evidence travelled beyond and was inconsistent with his
pleadings. The respondent had set up different versions in the
written statement, objections to the application under Order
XXXIX, Rules 1 and 2 of the Code of Civil Procedure,1908 (for
short, ‘CPC’), evidence, proceedings before the revenue
authorities and written arguments. The trial Court and the First
Appellate Court, without considering these material
contradictions, accepted the defence and recorded findings in
favour of the respondent. Learned senior counsel further
contended that the finding regarding the respondent's
possession of 9 acres 20 guntas was not supported by any
definite pleading or evidence and that, when the respondent
himself had taken different stands regarding the extent of land
allegedly remaining with him, the Courts below could not have
recorded a definite finding regarding his possession without
identifying the property and the documentary basis of such
possession.
- 13 -
RSA No. 1757 of 2011
17. Learned senior counsel further contended that both
the Courts have failed to appreciate that the respondent had
not specifically disputed the appellant's possession of the suit
schedule property in the cross-examination of PW1. The
respondent had also not denied the appellant's specific
assertion regarding interference on 07.05.2004 and
22.05.2004. These unchallenged assertions materially
supported the appellant's case and could not have been
ignored. It is further contended that the Courts below
committed an error in dismissing the suit principally on the
ground that the appellant's predecessor-in-title was entitled to
4 acres 25 guntas, whereas the appellant's sale deed referred
to 5 acres 7 guntas. It is further contended that, a discrepancy
in extent could not, by itself, establish the respondent's title or
defeat the appellant's claim when the respondent had failed to
prove any better or competing title over the suit schedule
property. Learned senior counsel contended that DW1 himself
admitted the title of the appellant's vendor and the transfer of
the property to the appellant. Despite such admission, the
Courts below accepted the defence without examining how the
respondent could claim title over the very property or whether
he had established any independent source of title.
- 14 -
RSA No. 1757 of 2011
18. Learned senior counsel further contended that a
material circumstance ignored by the Courts below was that the
respondent, who claimed title to 2 acres 20 guntas under a sale
deed dated 19.02.1970 and asserted continuous possession
thereof, had allegedly sold the very same property on
26.02.1970. The appellant relies upon Ex.D.41 and the relevant
encumbrance entries to contend that the respondent's claim of
continued ownership and possession since 1970 was
demonstrably false. It is further contended that the respondent,
notwithstanding the earlier sale, again sold the property in
favour of Saira Banu on 29.10.2004 after initiation of the suit.
Therefore, the prior sale and the subsequent alienation were
material facts bearing directly on the respondent's credibility,
title and locus to contest the suit, but the same were not
properly considered by both the Courts. It is contended that the
trial Court and the First Appellate Court also misread the
documentary evidence by treating documents, including
Ex.D.39 to Ex.D.46, as establishing the respondent's title
without correctly appreciating their nature and contents. In
particular, Ex.D.41 discloses the alienation of the property
claimed by the respondent, which was not given due
consideration.
- 15 -
RSA No. 1757 of 2011
19. Learned senior counsel further contended that the
revenue records relied upon by the respondent did not establish
his title over Sy.No.12/1, which is the subject matter of the
suit. The earlier RTCs relied upon by him related to Sy.No.12/2,
while the subsequent entry concerning 2 acres 20 guntas in
Sy.No.12/1 was subject to revenue litigation. The Courts below,
therefore, erred in relying upon records pertaining to a different
survey number or disputed revenue entries to uphold the
respondent's claim. It is also contended that the appellant had
established a consistent chain of title through the sale deeds,
mutation entries, RTCs and other revenue records. The
appellant had relied upon the survey conducted by the Taluk
Surveyor in the presence of the respondent, wherein the
appellant's property was identified and the respondent had
failed to produce documents in support of his rival claim.
20. Learned senior counsel further contended that the
findings of both the Courts are the result of failure to consider
the material admissions, contradictions in the defence, prior
and subsequent alienations made by the respondent, the
distinction between Sy.No.12/1 and Sy.No.12/2, and the
documentary evidence produced by the appellant.
- 16 -
RSA No. 1757 of 2011
21. It is contended that the defendant, Mylarappa,
fraudulently obtained mutation entries in respect of 2 acres 20
guntas of land in Sy.No.12/1 of Doddabettahalli Village,
Yelahanka Hobli, by representing before the Tahsildar that he
had acquired the property under the sale deed dated
19.02.1970. It is alleged that Mylarappa suppressed the
material fact that, within seven days of the said purchase, he
had sold the entire extent of 2 acres 20 guntas to Shaik Pyaru
under a registered sale deed dated 26.02.1970. Having already
divested himself of title, Mylarappa allegedly executed another
sale deed dated 29.10.2004 in favour of Saira Banu in respect
of the very same property. It is contended that the boundaries
mentioned in the subsequent sale deed were initially
inconsistent with the suit schedule property and were
subsequently altered through a rectification deed dated
26.11.2004, allegedly with an intention of bringing the property
within the suit schedule. It is also alleged that Mylarappa
executed further agreements of sale dated 25.07.2011 and
06.02.2012 in favour of other persons in respect of the same
property, despite having no subsisting title over the extent
already conveyed in 1970. It is further contended that the
subsequent transactions arising out of the alleged fraudulent
- 17 -
RSA No. 1757 of 2011
sale deed in favour of Saira Banu have resulted in further
claims over the suit schedule property. Saira Banu is stated to
have entered into an agreement of sale dated 25.06.2019 with
one Ravi Chandra Reddy, who instituted O.S. No.1351/2021
seeking specific performance of the agreement, which came to
be dismissed, leading to Regular First Appeal No.818/2022.
Saira Banu also executed a registered agreement of sale dated
14.01.2019 in favour of Zaheer Pasha, who allegedly attempted
to interfere with the appellant’s possession and assert rights
over the property. The appellant alleges that these transactions
are fraudulent, collusive and pendente lite , having been
undertaken to create multiple claims over the property and
defeat the appellant’s lawful rights.
22. It is further contended that, despite the status quo
orders passed by the Court, attempts were made to interfere
with the possession of the suit schedule property through the
involvement of other persons and alleged anti-social elements.
The appellant therefore seeks to bring the subsequent
developments to the notice of the Court to demonstrate the
alleged fraud and prevent the creation of further third-party
rights during the pendency of the proceedings. Learned senior
counsel further contended that the appellant asserts absolute
- 18 -
RSA No. 1757 of 2011
ownership over 4 acres 25 guntas of the suit schedule property
on the basis of the original sale deeds dated 10.09.1998 and
20.12.2001, together with the earlier title deeds of 1948
executed in favour of Thammaiah, the predecessor in title of
the appellant's vendor, Narasimhaiah. It is contended that
certain original title documents were not produced before the
trial Court because the defendant had, during cross-
examination, admitted the appellant's title to an extent of 4
acres 25 guntas, whereas the remaining documents are
necessary to establish the complete chain of title and the
identity of the property through its boundaries. The appellant
accordingly seeks permission to produce the additional
documents, including the subsequent sale deeds, rectification
deed, agreement of sale, historical title deeds and photographs
showing alleged interference with possession. It is contended
that these documents are essential for the effective and
complete adjudication of the dispute, particularly in view of the
subsequent developments during the pendency of the suit and
second appeal.
23. In support of the appeal, the appellant filed I.A.
No.4/2026 under Order XLI, Rule 27 of the Code of Civil
Procedure, 1908, seeking production of documents such as
- 19 -
RSA No. 1757 of 2011
original sale deeds, certified copy of the sale deeds, rectification
deed, agreement of sale, etc. The said I.A. is supported by an
affidavit of the appellant, wherein he has stated that he has
purchased the suit schedule property bearing Sy.No.12/1
measuring to an extent of 3 acres, and 2 acres 7 guntas of
Doddabettahalli Village, Yelahanka Hobli, Bengaluru North
Taluk, under two separate sale deeds dated 10.09.1998 and
20.12.2001, respectively. Relying on the principle that fraud
vitiates all judicial and other acts, the learned senior counsel
prayed that the additional documents be received on record to
establish the alleged fraudulent transactions, protect the
appellant's title and possession, and prevent irreparable loss
and injury to the appellant, who is 87 years of age. Hence, he
prayed to allow the appeal.
24. Learned senior counsel for the appellant relied on
following decisions:
i. M.S. Karuppanna Nadar vs Nariyan alias
Shanmugham (dead) and others reported in
1997 (1) CTC 309,
ii. Uttaradi Mutt vs Raghavendra Swamy Mutt
reported in (2018) 10 SCC 484,
- 20 -
RSA No. 1757 of 2011
iii. Smt. Dayamathi Bai vs K.M. Shaffi reported in
(2004) 7 SCC 107,
iv. Jamuna Prasad and others vs Shivnandan and
others reported in 2011 (4) M.P.L.J 427,
v. Nanjunda Setty @ N.S. Tallam and Others vs
Tallam Subbaraya Setty and Sons and Others
reported in ILR 2004 KAR 924, and
vi. S.P. Chengalvaraya Naidu (Dead) by L.Rs vs
Jagannath (Dead) by L.Rs and others reported
in 1994 (1) SCC 1.
25. Per-contra, Sri Uday Holla, learned senior counsel
appearing for Sri Akshay R. Huddar, learned counsel for the
respondent-defendant, has vehemently contended that, the suit
filed by the appellant-plaintiff is not maintainable and the
plaintiff is not absolute owner or in lawful possession and
enjoyment of the suit schedule property. The plaintiff has no
title over the suit schedule property. The plaintiff has shown
wrong boundary and claiming property of the defendant. In
fact, the defendant is in lawful, peaceful, physical possession
and enjoyment of the same as absolute owner thereof. The suit
schedule property is in the vicinity of developed area and the
plaintiff could not take up any agricultural operation in the suit
schedule property and thus, same is kept vacant, all these
- 21 -
RSA No. 1757 of 2011
contention are illusionary and imaginary one. Since the
defendant is in possession of his property, the question of
interfering with illusionary and imaginary possession over the
suit schedule property by the plaintiff is nothing but an
imaginary story set up by the plaintiff. It is contended that
there is no cause of action for the suit and the cause of action
one stated is created for the purpose of the suit. It is
contended that, all the revenue records have been created
pursuant to fabricated sale deeds. Hence, no title can be
conferred on the plaintiff.
26. The defendant further contends that the land
bearing Sy.No.12/1 originally measured 29 acres 20 guntas and
belonged to one A. Shamanna from whom the defendant’s
father, Mogaiah, along with five others, purchased the same
under a registered sale deed dated 07.09.1942 for valuable
consideration, and thereafter continued in joint possession and
enjoyment thereof as absolute owners along with their
respective family members, including the defendant. He further
contends that his father purchased 5 acres of land from
Muniswamappa under a registered sale deed dated 31.07.1948
and subsequently sold the said extent to Thimma Reddy under
a registered sale deed dated 09.02.1950. The defendant further
- 22 -
RSA No. 1757 of 2011
claims to have purchased 5 acres from G. Venkatappa under a
registered sale deed dated 15.09.1960 and thereafter, sold 1
acre 10 guntas to Sheik Ahmed under a registered sale deed
dated 04.06.1966; purchased 1 acre from H. Muniswamappa
under a registered sale deed dated 17.10.1966 and
subsequently, sold 20 guntas to H. Muniswamappa under a
registered sale deed dated 06.07.1967; sold 1 acre in favour of
H. Muniswamappa under a registered sale deed dated
12.12.1967 and thereafter, purchased 1 acre 10 guntas from
Sheik Ahmed Sahib under a registered sale deed dated
14.12.1967; again sold 2 acres 20 guntas to Muniswamappa
under a registered sale deed dated 12.03.1969 and
subsequently, purchased the same extent from
H. Muniswamappa under a registered sale deed dated
19.02.1970. Hence, on a cumulative consideration of the
aforesaid transactions, he and his father had purchased an
aggregate extent of 19 acres 13 guntas and sold 10 acres 10
guntas, leaving an extent of 9 acres 20 guntas. It is further
contended that proper revenue and survey records relating to
the original Sy.No.12 was not maintained by the competent
authorities, resulting in disputes among the persons claiming
lands in the said survey number. In this regard, the defendant
- 23 -
RSA No. 1757 of 2011
had approached the Survey Department seeking phodi of his
lands, and the plaintiff and several other persons, namely,
Jayachandra, Adhilakshamma, Krishnojirao, Manohar Lal,
Abdulla, R. Subramanyam and Venkatappa were also parties to
the proceedings. The Assistant Director of Land Records, after
conducting proceedings in Case No.ADLR/MPR/BN/380/2003-
04, found that proper survey records were not available and
that extents mentioned in the respective sale deeds did not
tally with the actual extent available on the ground.
Consequently, by order dated 07.01.2004, the Survey Authority
held that it was not possible to undertake the phodi work and
disposed of the proceedings with liberty to the parties to
approach the competent authority for appropriate relief. The
defendant further contends that the survey records do not
disclose the names of the persons from whom the plaintiff
allegedly purchased the suit schedule property and that the
plaintiff, with an intention to establish a false claim, has
furnished incorrect boundaries and relied upon documents,
including sale deeds allegedly executed by persons who
themselves had no right, title or interest over the suit schedule
property. The defendant has been in peaceful, lawful and
continuous possession and enjoyment of the suit schedule
- 24 -
RSA No. 1757 of 2011
property and his possession and title are supported by the
aforesaid chain of registered transactions. On these grounds,
the defendant contends that the plaintiff has no right, title or
interest over the suit schedule property and consequently,
prays for dismissal of the appeal.
27. In view of the submissions made by both the
parties, the following substantial questions of law are framed
for consideration:
“A. Whether the Courts below are justified in not
attaching due weightage to Ex.D19, under which
Narasimhaiah, vendor of the appellant, purchased
4 acres 25 guntas in the suit schedule property?
B. Whether the Courts below are justified in
dismissing the suit in its entirety solely on the
ground that what was purchased by the vendor of
the appellant was 4 acres 25 guntas and not 5
acres 7 guntas, particularly when it was open for
the Courts below to mould the relief?”
28. I have carefully considered the pleadings of the
parties, oral and documentary evidence, the judgment and
decree passed by the trial Court and the First Appellate Court,
the grounds urged by the appellant, the submissions of learned
senior counsel appearing for both the parties and the list of
authorities relied upon by them. The principal controversy in
- 25 -
RSA No. 1757 of 2011
the present Regular Second Appeal concerns the appellant's
claim of title over the suit schedule property bearing
Sy.No.12/1, measuring 3 acres, purchased under a registered
sale deed dated 14.09.1998, and another piece of land bearing
Sy.No.12/1, measuring 2 acres 7 guntas, purchased under a
registered sale deed dated 20.12.2001 from previous owners
Narasimhaiah, Muninanjappa and Muniraju for valuable
consideration, so totally measuring 5 acres 7 guntas, situated
at Doddabettahalli Village, Yelahanka Hobli, Bengaluru North
Taluk.
29. The respondent-defendant disputes the appellant's
title contending that the appellant's vendor did not possess a
valid title to the entire extent conveyed and that the boundaries
described in the plaint including the land belonging to the
respondent. The question that arises for consideration is
whether the concurrent findings recorded by the Courts below
suffer from any perversity, misreading or non-consideration of
material evidence, or an erroneous application of law
warranting interference under Section 100 of CPC. Hence, it is
just and necessary to analyse Section 100 of CPC, which reads
as under:
- 26 -
RSA No. 1757 of 2011
" 100. Second appeal
(1)[Save as otherwise expressly provided in the
body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any case,
it shall formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the
case does not involve such question:
Provided that nothing in this sub-section
shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be
recorded, the appeal on any other
substantial question of law, not formulated
by it, if it is satisfied that the case involves
such question.]"
- 27 -
RSA No. 1757 of 2011
30. At the outset, it is necessary to bear in mind the
limited scope of the jurisdiction of this Court under Section 100
of CPC. A Regular Second Appeal cannot be treated as a
continuation of the first appeal for the purpose of undertaking a
fresh appreciation of the entire evidence. Interference with
concurrent findings of fact is permissible only when such
findings disclose a substantial question of law, including where
there are perverse, based on no evidence, recorded by not
considering the material evidence, founded upon a misreading
of material documents or vitiated by the application of an
erroneous legal principle. Therefore, the mere possibility of
another view being taken on the evidence does not, by itself,
justify interference with the judgments under challenge.
31. In the instant case, the respondent-defendant is
disputing the title of the appellant-plaintiff and his vendor on
the ground that the vendor of the plaintiff had no title to the
suit schedule property and there is variation as to an extent
and boundary of the suit schedule property and hence, no valid
title has been passed to the plaintiff. Thus, it is just and
necessary to analyse Section 54 of the Transfer of Property Act,
1882, which reads as under:
- 28 -
RSA No. 1757 of 2011
"54. “Sale” defined .—
"Sale” is a transfer of ownership in exchange for a
price paid or promised or part-paid and part-
promised.
Sale how made .—
Such transfer, in the case of tangible immoveable
property of the value of one hundred rupees and
upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered
instrument.
In the case of tangible immoveable property of a
value less than one hundred rupees, such transfer
may be made either by a registered instrument or by
delivery of the property.
Delivery of tangible immoveable property takes place
when the seller places the buyer, or such person as
he directs, in possession of the property.
Contract for sale .—
A contract for the sale of immoveable property is a
contract that a sale of such property shall take place
on terms settled between the parties.
It does not, of itself, create any interest in or charge
on such property."
32. A perusal of the aforesaid proposition of law, it
appears that, there must be a transfer of ownership from one
person to another. Right of possession over the property is a
- 29 -
RSA No. 1757 of 2011
fact of title, upon every transfer of property, all the rights and
claims, including those which are capable of being waived and
which are not exercised, do not automatically pass to the
transferee, whether, they relate to property or as to property.
The question whether there has been transfer of ownership in
any case will depend upon the intention of parties, and this
again must be ascertained from the fact and circumstances of
the particular case. That means vendor of the property must
have clear title over the property. The burden is on the person
who asserts his title over the property that his vendor has/had
clear title over the property. This is the condition precedent as
per the definition under Section 54 of the Transfer of Property
Act, 1882 .
33. In the light of the above provisions of law, let me
analyse the evidence of the parties, the appellant-plaintiff
entered the witness box and led his evidence. In his chief-
examination, he states that he is the absolute owner and in
lawful possession and enjoyment of land bearing Sy.No.12/1
measuring to an extent of 5 acres 7 guntas situated at
Doddabettahalli Village, Yelahanka Hobli, Bengaluru North
Taluk. He further states that he has acquired the said land to
an extent of 3 acres by virtue of sale deed dated 14.09.1998
- 30 -
RSA No. 1757 of 2011
and further purchased 2 acres 7 guntas in Sy.No.12/1 by virtue
of sale deed dated 20.12.2001. Subsequently, the khata has
been effected in his name. However, the respondent-defendant
without having any manner of right, title and possession over
the same, is interfering in the suit schedule property and
claiming his right over the suit schedule property.
34. PW1 was cross-examined at length. In his cross-
examination, he has stated that Narasimhaiah had purchased 5
acres 7 guntas from Thammaiah, wherein Thammaiah sold 4
acre 25 guntas in Sy.No.12/1 to Narasimhaiah and not an
extent 5 acre 7 guntas. He further admits that Narasimhaiah
was absolute owner to an extent of 4 acre 25 guntas. However,
he subsequently states that he had purchased 5 acre 7 guntas
from Narasimhaiah by virtue of two registered sale deeds. He
expressed his inability to answer the suggestions that,
Thammaiah purchased 9 acre 10 guntas in land bearing
Sy.No.12/1 and subsequently, sold 6 acre 11 guntas to one
Abdullah. Further, certain suggestions were suggested to PW1
that Thammaiah retained only 3 acre 1 gunta after alienation of
6 acre 11 guntas to Abdullah, the plaintiff's vendor,
Narasimhaiah, purchased land bearing Sy.No.12/4 measuring
10 guntas and Sy.No.12/5 measuring 4 acres 15 guntas from
- 31 -
RSA No. 1757 of 2011
one Muniyappa, however, these transactions are not within the
knowledge of the plaintiff. Further, the plaintiff has no
knowledge that, on 11.12.1967, the plaintiff's vendor,
Narasimhaiah, sold 6 acre 7 guntas to one Abdullah. The
plaintiff has not answered in clear terms as to the suggestion
that, the plaintiff's vendor had right over 4 acre 15 guntas and
how he can sell 5 acre 7 guntas to the plaintiff. The plaintiff is
unaware of the fact that, the defendant purchased the land
which is measuring in all 14 acre 30 guntas in Sy.No.12/1.
Further, the plaintiff does not know whether the Tahsildar has
passed an order in favour of the defendant for change of khata
in respect of 2 acre 20 guntas. He admits that he had filed an
appeal before the Assistant Commissioner challenging khata,
which stands in the name of the defendant. He also admits
that, in the application filed before the Assistant Commissioner
for condonation, he has claimed only 4 acre 19 guntas. He
specifically expressed that he does not know whether the
defendant purchased 14 acre 30 guntas in Sy.No.12/1 and sold
7 acre 30 guntas and retained 7 acres in his name.
35. The trial Court mainly relied upon the admission of
PW1 during cross-examination that Narasimhaiah, the
appellant's predecessor-in-title, had rights only to an extent of
- 32 -
RSA No. 1757 of 2011
4 acres 25 guntas in Sy. No.12/1, whereas the appellant
claimed 5 acres 7 guntas. The trial Court considered the
evidence relating to the earlier ownership and alienations made
by Thammaiah and the transactions concerning Sy.Nos.12/1,
12/4 and 12/5. It concluded that the appellant had not
satisfactorily established how his predecessor-in-title could
convey an extent exceeding that which was shown to have
been held by him. The trial Court further held that the khata
standing in the name of the predecessor for a particular extent
could not, by itself, establish ownership over the entire extent
claimed by the appellant.
36. The First Appellate Court independently considered
the aforesaid admission and rejected the appellant's
explanation that the same was attributable to a language
problem or that the deposition did not reflect his actual
understanding. It found that the explanation subsequently
advanced in the written arguments did not displace the
evidentiary value of the deposition recorded before the trial
Court. The appellant relies upon Exs.P1 and P16, being the sale
deeds under which the property was allegedly acquired, and
contends that the original title deeds and earlier conveyances
would establish his ownership. However, the existence of
- 33 -
RSA No. 1757 of 2011
registered sale deeds, though relevant to the claim of title,
does not dispense with the requirement of establishing the
vendor's title to the extent purportedly conveyed. A conveyance
ordinarily transfers only such right, title and interest as the
transferor is legally competent to convey.
37. The appellant has contended that the Courts below
failed to appreciate the admission of DW1 concerning the title
of the appellant's vendor and the transfer of the property in
favour of the appellant. Such an admission, if established from
the evidence, is undoubtedly a relevant circumstance and must
be considered along with the other evidence on record.
However, an admission concerning the title of a predecessor or
the execution of a conveyance must be read in its proper
context. It does not necessarily establish that the transferor
possessed title to the entire extent claimed under the sale deed
or that the boundaries of the property conveyed correspond to
the entire suit schedule property. The evidentiary value of the
admission must therefore be assessed together with the earlier
conveyances, the extent held by the vendor and the evidence
identifying the property. The question is whether the Courts
below failed to consider a material admission or whether they
- 34 -
RSA No. 1757 of 2011
considered it, but found it insufficient to establish the
appellant's title to the entire extent claimed.
38. The Courts below also examined the identity and
boundaries of the suit schedule property. The trial Court found
inconsistencies between the boundaries described in the
appellant's documents and those appearing in the earlier
transactions, and concluded that the appellant had not
established that the entire extent described in the plaint
corresponded to the property validly acquired under the
conveyances relied upon. The First Appellate Court affirmed
that finding. Since the identity of the property is essential to a
decree declaring title, the appellant was required to establish
that the land claimed in the suit could be identified with the
land conveyed under the sale deeds. The proceedings
before the Assistant Director of Land Records in Case
No.ADLR/MPR/BN/380/2003-04, which culminated in the order,
dated 07.01.2004 declining to undertake phodi work owing to
the absence of proper survey records and discrepancies in the
extents, are also relevant to this issue. However, the said order
cannot, by itself, be treated as a determination of title in favour
of either party. The identity and title of the property must
- 35 -
RSA No. 1757 of 2011
ultimately be established before the civil Court on the basis of
the evidence adduced.
39. The appellant has further contended that the
respondent took inconsistent stands concerning the extent of
land allegedly retained by him, referring to 9 acres 20 guntas in
the written statement, 7 acres in the written arguments and 2
acres 20 guntas in the revenue proceedings. It is also
contended that the Courts below recorded a finding regarding
the respondent's possession of 9 acres 25 guntas without a
clear and consistent basis in the pleadings and evidence. Such
inconsistencies, if established, are relevant to the assessment
of the respondent's credibility and the evidentiary basis for the
findings recorded by the Courts below. However, it must be
examined whether the alleged discrepancies relate to the very
property described in the suit schedule or to different extents
forming part of the larger survey number. A discrepancy in the
aggregate extent claimed by the respondent would not, without
more, establish that the appellant has title to the particular
extent in dispute. The material question remains whether the
Courts below have identified the property in dispute and
considered the documentary evidence relevant to the rival
claims.
- 36 -
RSA No. 1757 of 2011
40. The appellant has also relied upon the alleged sale
of 2 acres 20 guntas by the respondent to Shaik Pyaru under a
registered sale deed dated 26.02.1970, following the
respondent's alleged purchase of the same extent under a sale
deed dated 19.02.1970. According to the appellant,
notwithstanding the earlier alienation, the respondent
subsequently executed a sale deed dated 29.10.2004 in favour
of Saira Banu, followed by a rectification deed dated
26.11.2004, and thereafter executed or was associated with
further agreements of sale concerning the same property. The
appellant contends that the earlier alienation demonstrates that
the respondent had no subsisting title when he executed the
subsequent conveyance and that the rectification deed was
intended to bring the property within the boundaries of the suit
schedule property.
41. The legal effect of these transactions depends upon
the terms of the instruments, the identity of the property
conveyed, the rights of the parties under the earlier
conveyances and the admissible evidence establishing the
alleged prior alienation. If the respondent had already
conveyed the very same property in 1970, the legal
consequences of such conveyance would have to be considered
- 37 -
RSA No. 1757 of 2011
while assessing his claim under the subsequent transactions.
Nevertheless, the appellant's allegations concerning the prior
sale, subsequent conveyance and rectification deed cannot be
treated as conclusively establishing fraud merely because such
transactions have been referred to in the pleadings or in the
application for additional evidence. The civil Court must
examine the documents and determine whether the
transactions concern the same identifiable property and what
legal effect follows from them. Even if a subsequent transaction
relied upon by the respondent is found to be invalid or
ineffective, such a finding would not automatically establish the
appellant's title to the entire extent claimed. The appellant
must independently establish the title asserted in the plaint.
42. The appellant has also relied upon mutation entries,
RTCs, khata and other revenue documents to establish his title
and possession. In this regard, the legal position is well settled.
In Smt. Sawarni v. Smt. Inder Kaur and Others , reported
in (1996) 6 SCC 223 , the Hon'ble Supreme Court held that
mutation of property in revenue records neither creates nor
extinguishes title and has no presumptive value as to title.
Such entries are primarily maintained to enable the person in
whose favour the mutation is effected to pay land revenue. The
- 38 -
RSA No. 1757 of 2011
principle has also been reiterated in Suraj Bhan and others v.
Financial Commissioner and others , reported in (2007) 6
SCC 186 , wherein the Hon'ble Supreme Court held that entries
in revenue records do not confer ownership upon the person
whose name is recorded therein and that title to immovable
property must be determined by the competent civil Court.
43. Consequently, the mere fact that the appellant's
name has been entered in the revenue records pursuant to the
sale deeds cannot, by itself, establish his title to the suit
schedule property. Equally, the revenue entries relied upon by
the respondent cannot independently establish his ownership
over the disputed extent. The evidentiary value of the revenue
records must be assessed in the context of underlying title
documents, chain of conveyances, identity of the property and
other admissible evidence. The order of a revenue authority
recording a person's name in the record of rights does not
operate as a conveyance of ownership or a relinquishment of
another person's proprietary rights. The jurisdiction of the civil
Court to determine the underlying title remains unaffected by
such entries. Therefore, the decisive question in the present
case is whether the appellant has established a valid chain of
title and identity of the property through the documents and
- 39 -
RSA No. 1757 of 2011
evidence relied upon, and not merely whether his name
appears in the revenue records.
44. The appellant has relied upon the principle laid down
in S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath
(Dead) by LRs and Others , reported in (1994) 1 SCC 1 ,
that fraud vitiates judicial proceedings and that a party who
obtains an advantage by suppressing material facts cannot be
permitted to retain such advantage in law. The principle is well
settled. However, the existence of fraud, the material facts
allegedly suppressed and the effect of the impugned
transactions must be established on the evidence and in
accordance with law. The Court cannot presume fraud merely
from the existence of successive transactions or from a party's
allegation that an earlier conveyance was suppressed. The
alleged sale dated 26.02.1970 and the subsequent transactions
may be material to the respondent's claim of title, but his
evidentiary and legal effect must be determined on the basis of
the documents themselves. The principle that fraud vitiates an
act cannot dispense with the appellant's obligation to establish
his own title and the identity of the property claimed.
- 40 -
RSA No. 1757 of 2011
45. The appellant has sought permission to produce
additional documents under Order XLI, Rule 27 of CPC,
including original sale deeds, earlier conveyances, the sale deed
dated 29.10.2004, and the rectification deed dated 26.11.2004,
subsequent agreements of sale and photographs allegedly
showing interference with possession. The appellant contends
that the documents are necessary for effective adjudication and
that their non-production before the trial Court was occasioned
by understanding that their production was unnecessary in view
of the admissions made during cross-examination. The
application must be considered independently in accordance
with the requirements of Order XLI, Rule 27 of CPC. The mere
relevance of a document does not automatically entitle a party
to produce it as additional evidence at the appellate stage. The
Court must determine whether the conditions prescribed by the
provision are satisfied, including whether the evidence could
not, despite the exercise of due diligence, have been produced
earlier, whether the Appellate Court requires the document to
pronounce judgment, or whether another ground expressly
recognised by the provision is made out. Unless the application
is allowed and the documents are received in accordance with
- 41 -
RSA No. 1757 of 2011
law, their contents cannot be treated as proved merely because
they are referred to in the written submissions.
46. The perusal of the rival contentions of both the
parties, throughout the legal proceedings, it is a specific
defence and assertion of the respondent-defendant that the
land bearing Sy.No.12/1 originally was measuring 29 acre 20
guntas which originally belongs to one A. Shamanna. It was
defendant’s father, Mogaiah, along with five others had
purchased the said property under a registered sale deed dated
07.09.1942 for a valuable consideration. These purchasers
continued in joint possession and enjoyment of the schedule
property, and also enjoyed the same as absolute owners, along
with respective family members, including the present
defendant. On scrupulous perusal of the pleadings pleaded by
the defendant, it is shown that defendant's father had
purchased 5 acres of land from one Muniswamappa under a
registered sale deed dated 31.07.1948, and subsequently they
sold the said property to one Thimma Reddy under a registered
sale deed dated 09.02.1950. It is further pleaded and stated on
oath by DW1 that he purchased 5 acre from G. Venkatappa
under a registered sale deed dated 15.09.1960. Thereafter, he
sold 1 acre 10 guntas to one Sheik Ahmed under a registered
- 42 -
RSA No. 1757 of 2011
sale deed dated 04.06.1966 and purchased 1 acre from H.
Muniswamappa under a registered sale deed dated 17.10.1966.
It is further pleaded and stated on oath by DW1 that he
subsequently sold 20 guntas to H. Muniswamappa under
registered a sale deed dated 06.07.1967 and he also sold 1
acre in favour of same person under a registered sale deed
dated 12.12.1967. Thereafter, he purchased 1 acre 10 gunta
from Sheik Ahmed under a registered sale deed dated
14.12.1967 and again sold 2 acre 20 guntas to Muniswamappa
under a registered sale deed dated 12.03.1969. It is further
stated that he subsequently purchased 2 acre 20 guntas from
H. Muniswamappa under a registered sale deed dated
19.02.1970. To prove the said transactions, the defendant
relied upon Exs.D16, D27, D28, D29, D30 and D31,
respectively.
47. On cumulative reading of the aforesaid sale deeds
and transactions so pleaded by the defendant, it is very much
clear that, his father had purchased an aggregate extent of 19
acre 30 guntas and from that, he sold 10 acre 10 guntas of
land and thereby, retained 9 acre 20 guntas of land. It is a
specific defence of the defendant that, the concerned revenue
and survey number was with respect to Sy.No.12 and in this
- 43 -
RSA No. 1757 of 2011
regard, there was revenue dispute. Due to this, the defendant
was compelled to approach Survey Department seeking for
phodi/bifurcation of his land, by arraying the plaintiff and also
others as stated in the pleadings as the respondents. But the
result was that the Assistant Director of Land Records after
conducting proceedings found that, the property survey record
was not available and the extent mentioned in the sale deeds
did not match with the actual extent available on the spot.
Accordingly, an order was passed on 07.01.2004 giving liberty
to the parties to approach the competent authority, seeking
appropriate relief.
48. On perusal of the documentary evidence, produced
by the plaintiff vide Exs.P1 to P20 and the contentions raised by
the defendant, the survey records do not disclose the names of
the persons from whom the plaintiff had purchased the suit
schedule property. The perusal of the admission in the cross-
examination of PW1, and the documents produced by parties, it
clearly established the fact that the present plaintiff has been
claiming the suit schedule property by furnishing
wrong/incorrect boundaries and relying upon various sale deeds
alleged to have been executed by the persons, who had no
right, title and interest over the suit schedule property. When
- 44 -
RSA No. 1757 of 2011
the plaintiff’s vendor had no better title over the suit schedule
property, the sale deeds relied upon by the plaintiff now will
not come to his rescue to prove that the plaintiff is the absolute
owner of the suit schedule property by virtue of the sale deeds
relied upon by him.
49. Therefore, the trial Court and the First Appellate
Court have rightly not given due weightage to Ex.D19 under
which, Narasimhaiah, vendor of the plaintiff, purchased 4 acre
25 guntas in the said survey number. Therefore, on reading of
the findings of both the Courts and evidence available on
record, both the Courts have rightly disbelieved the claim of the
plaintiff and rightly not attached due weightage to Ex.D.19.
Therefore, this Court finds no factual/legal error in the findings
of the Courts below in not giving due weightage to Ex.D.19.
50. Both the Courts below clearly held that, the plaintiff
has to succeed his case based on his merits and establish his
title to the schedule property, so also to his vendor. Now, the
plaintiff cannot take an undue advantage of the defendant’s
demerits and claim that he has established a better title and
rights over the suit schedule property. When the defendant’s
father retained portions of the property, so purchased, and his
- 45 -
RSA No. 1757 of 2011
right, never extinguished by any sale transactions,
decree/documents and when the defendant is exercising his
ownership and right peacefully, then he has a legal right
enforceable against the entire world, namely, a right in rem.
51. In so far as, the burden of proof under Section 101
of the Indian Evidence Act, 1872, is concerned, the burden of
proof to establish a title in the present case lies upon the
plaintiff, as this burden lies on the party who asserts the
existence of particular of state of things, based on which the
plaintiff claims relief. This rule may not be universal and has
exceptions, but in the factual background of the present case,
the general principle is applicable. The Hon'ble Supreme Court
in Smriti Debbarma (Dead) through Legal Representative
v. Prabha Ranjan Debbarma and Others , reported in
(2023) 19 SCC 782, while considering Sections 101 and 102
of the Indian Evidence Act, 1872, held that the burden of
proving title lies upon the party who asserts the existence of
facts on the basis of which relief is claimed. The burden may
shift during the evaluation of evidence, but such shifting
ordinarily occurs when the plaintiff has first produced evidence
creating a sufficiently strong probability in support of the title
asserted. In the absence of such evidence, the plaintiff must
- 46 -
RSA No. 1757 of 2011
discharge the initial burden of establishing title. The weakness
of the defendant's case cannot, by itself, constitute a
justification for decreeing the suit.
52. Applying the aforesaid principle to the present case,
the documentary evidence produced by the plaintiff and
admissions of PW1 and his witnesses, so also the rebuttal
evidence led by the defendant clearly shows that the plaintiff
has/had not discharged burden to prove his title over the suit
schedule property. When the plaintiff's vendor had no clear and
better title, on that strength, the plaintiff cannot claim any title.
This would be the true effect of Section 101 and Section 102 of
the Indian Evidence Act, 1872. Therefore, it follows that the
plaintiff should have satisfied and discharge the burden of proof
under the Evidence Act, failing which the suit would be liable to
be dismissed. Rightly, the trial Court had dismissed the suit and
dismissal of the suit is rightly affirmed by the First Appellate
Court.
53. So far as moulding of relief is concerned, the
question is whether the Court can exercise its power under
Order VII, Rule 7 of CPC where the prayer clause of the plaint
is defective, but plaint contains all facts to establish the
- 47 -
RSA No. 1757 of 2011
plaintiff's entitlement to relief. Order VII, Rule 7 of CPC
provides that every plaint shall specifically state the relief which
the plaintiff claims, either simply or in the alternative. The
provision also empowers the Court to grant general or other
relief as it may deem just and proper, provided such relief is
consistent with the pleadings and the case presented by the
plaintiff.
54. On perusal of the bare plaint, it is clear that
pleadings are confined to declaration and injunction claimed by
the plaintiff and opposed by the defendant. When specific
issues were framed in accordance with the specific pleadings
and parties had occasion to adduce evidence in support of their
respective claims, confining to the issues framed then it would
be beyond the jurisdiction of the trial Court in moving beyond
the scope of pleadings, issues and evidence, and thereafter
grant a totally different relief as claimed by the plaintiff now.
55. In Anathula Sudhakar v. P. Buchi Reddy (Dead)
by LRs. and others , reported in 2008 (4) SCC 594 , the
Hon'ble Supreme Court explained the principles governing suits
for injunction, declaration of title and possession. The Court
held that where the plaintiff's title is under a cloud and the
- 48 -
RSA No. 1757 of 2011
defendant asserts a hostile title, a mere suit for injunction may
not be sufficient, and a declaration of title, with consequential
relief where necessary, may have to be sought. Where the
plaintiff seeks a declaration of title and consequential
injunction, the Court must examine whether the plaintiff has
established the title asserted and whether the property in
dispute has been properly identified. The said decision also
makes it clear that a plaintiff who is not in possession may
have to seek the appropriate consequential relief of possession,
depending upon the facts of the case.
56. The appellant-plaintiff has sought both a declaration
that he is the absolute owner of the suit schedule property and
a consequential relief of permanent injunction against the
respondent-defendant. In the instant case, the trial Court and
the First Appellate Court consistently held that, the plaintiff is
not in possession of the suit schedule property and hence, the
ratio laid down in Anathula Sudhakar’s case squarely
applicable to the case on hand. The plaintiff ought to have
sought for possession along with declaration and injunction.
57. Therefore, the issue is not merely whether the
appellant was required to seek a declaration of title, but
- 49 -
RSA No. 1757 of 2011
whether he has established a valid title to the property claimed,
identity and extent of the property conveyed under the
registered sale deeds and his entitlement to the consequential
relief. The appellant relies upon the registered sale deeds dated
14.09.1998 and 20.12.2001, together with mutation entries,
RTCs, earlier title deeds and other revenue records. The
respondent, on the other hand, disputes the title of the
appellant's vendor and asserts an independent chain of title. In
such circumstances, the appellant is required to establish his
own title by admissible evidence and cannot succeed merely by
pointing out alleged inconsistencies in the respondent's
defence.
58. The provision of Order VII, Rule 7 of CPC cast upon
a duty over the plaintiff, also to seek relief, which the plaintiff
intend either simple or in alternative. Now, in view of the clear
finding of fact and law by the Courts below and also the factual
aspect involved, in the present case, this Court cannot exercise
its discretionary power in moulding the relief as claimed by the
plaintiff now. Therefore, it is held that the Courts below have
rightly not attached any due weightage to EX.D19 and have not
exercised their power of moulding the relief. Therefore, it is
held that the Courts below are justified in dismissing the suit in
- 50 -
RSA No. 1757 of 2011
entirety. Now, it is not at all open for the Courts below or to
this Court to mark the relief as claimed by the plaintiff. Hence,
the substantial questions of law are answered against the
plaintiff.
59. The scope of Section 100 of CPC is further explained
in C. Doddanarayana Reddy (Dead) by LRs. v.
C. Jayarama Reddy (Dead) by LRs , reported in (2020) 4
SCC 659 , wherein the Hon'ble Supreme Court, relying upon
Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-
Un-Niswan , reported in 1999 (6) SCC 343 , reiterated that
the High Court cannot routinely interfere with concurrent
findings of fact in the absence of a substantial question of law.
In State of Rajasthan and Others v. Shiv Dayal and
Another , reported in 2019 (8) SCC 637 , the Hon'ble
Supreme Court clarified that concurrent findings may be
challenged in second appeal where they are recorded dehors
the pleadings, based on no evidence, founded upon a
misreading of material documentary evidence, contrary to a
provision of law or are findings that no judicially acting judge
could reasonably have reached.
- 51 -
RSA No. 1757 of 2011
60. The same principle was reiterated in Ramachandra
Reddy (Dead) through LRs and others v. Ramulu Ammal
(Dead) through LRs , reported in (2025) 8 SCC 788 , with
reference to the limitations governing interference with
concurrent findings of fact under Section 100 of CPC. The
decisions in Gurdev Kaur and others v. Kaki and others ,
reported in 2007 (1) SCC 546 , Ramanuja Naidu v.
V. Kanniah Naidu and Another , reported in 1996 (3) SCC
392, Navaneethammal v. Arjuna Chetty , reported in
(1996) 6 SCC 166 , and Mussummat Durga Choudhrain v.
Jawahir Singh Choudhri , reported in 1890 SCC OnLine PC
10 , likewise emphasise that a second appeal cannot be used to
enlarge the permissible grounds of interference with findings of
fact. These authorities, read together, establish that a
concurrent finding is not immune from scrutiny where a
recognised legal defect is demonstrated; however, the High
Court cannot substitute its own appreciation of the evidence
merely because another view is possible.
61. In the present case, the trial Court has considered
the appellant's title documents, testimonies of PW1 and PW2,
revenue records, earlier transactions and the documents
produced by the respondent. Therefore, it recorded reasons for
- 52 -
RSA No. 1757 of 2011
concluding that the appellant had failed to establish his title to
the entire extent of 5 acres 7 guntas claimed in the suit. The
First Appellate Court independently reconsidered the evidence,
addressed the appellant's explanation concerning the admission
of PW1 and affirmed the findings of the trial Court. The
essential basis of the concurrent findings is the discrepancy
between the extent claimed and the extent shown to have been
held by the appellant's predecessor-in-title, deficiencies
identified in the chain of title and inconsistencies concerning the
boundaries and identity of the property.
62. The allegations concerning the respondent's
inconsistent claims, the alleged prior alienation dated
26.02.1970, the subsequent sale deed dated 29.10.2004, the
rectification deed dated 26.11.2004 and the further agreements
of sale are relevant circumstances that must be assessed to the
extent they are established by admissible evidence and relate
to the very property in dispute. However, the existence of such
allegations does not, by itself, establish that the appellant has
title to the suit schedule property. Similarly, the appellant's
mutation entries and revenue records cannot independently
establish ownership, just as the respondent's revenue entries
cannot independently establish his title. The parties' respective
- 53 -
RSA No. 1757 of 2011
claims must be determined on the strength of their underlying
title documents and the evidence identifying the property.
63. On an examination of the reasoning recorded by the
Courts below, the appellant's contentions must be tested
against the principles laid down in Anathula Sudhakar’s
case , Smriti Debbarma’s case , Smt. Sawarni’s case ,
C. Doddanarayana Reddy’s case , Shiv Dayal’s case and
Ramachandra Reddy’s case , cited supra. The appellant has
not demonstrated, on the reasoning presently available, that
the Courts below treated revenue entries as conclusive
documents of title, or that they dismissed the suit solely
because the respondent had established a superior title.
Rather, the central ground for dismissal was the appellant's
failure to establish the title of his vendor to the entire extent
claimed and identity of the property conveyed. The alleged
contradictions in the respondent's case and the subsequent
transactions do not dispense with the appellant's burden under
Sections 101 and 102 of the Indian Evidence Act, 1872, as
applicable to the proceedings.
64. The Court is conscious that a finding based on a
material misreading of a registered conveyance, disregard of a
- 54 -
RSA No. 1757 of 2011
decisive admission or omission to consider evidence directly
establishing the identity of the suit property may, in an
appropriate case, give rise to a substantial question of law.
However, the appellant must demonstrate such a defect from
the record. A general allegation that the Courts below failed to
appreciate the evidence, or that the respondent's case contains
inconsistencies, is insufficient.
65. In the instant case, the substantial questions of law
framed has to whether the Courts below are justified in not
attaching due weightage to Ex.D19 under which Narasimhaiah,
vendor of the plaintiff, purchased 4 acre 25 guntas in the
property. Admittedly, the land bearing Sy.No.12/1 originally
measured 29 acre 20 guntas, which belong to one Shamanna.
Later, one Mogaiah, father of the defendant, purchased the said
land, along with five others, way back in the year 1940 and
thereafter, several transactions have taken place in the said
land. A perusal of Ex.D19, Narasimhaiah, plaintiff's vendor
purchased 1 acre 25 guntas, 1 acre 20 guntas, and 1 acre 20
guntas from one Chikkamuniappa under a registered sale deed
dated 29.06.1949. However, the plaintiff has not furnished the
said sale deeds before the Court. The schedule mentioned in
the sale deed and the schedule mentioned in the suit property
- 55 -
RSA No. 1757 of 2011
does not tally with each other. There is variance as to the
measurements shown in the schedule of the suit and shown in
the sale deeds. Therefore, the property of the plaintiff is not
identifiable and the source of title is also not established.
66. The appellant has taken contention that the
defendant has taken inconsistent pleas that his lands are not
identifiable and the defendant has not disputed the appellant's
possession over the suit schedule property. Hence, the plaintiff
is pointing out the demerits of the defendant. Admittedly, one
who comes to the Court must prove his case based on his
merits and weakness of the defendant is not a trump card to
the plaintiff. The trial Court as well as the First Appellate Court
correctly analysed the oral and documentary evidence on
record, including Ex.D19 and held that the plaintiff failed to
prove his title and possession of the suit schedule property.
Further, the trial Court as well as the First Appellate Court have
justified in dismissing the plaintiff's claim that the plaintiff
purchased the land from his vendor was 4 acre 25 guntas and
not 5 acre 7 guntas, particularly when it was open for the
Courts below to mould the relief.
- 56 -
RSA No. 1757 of 2011
67. A perusal of the defence of the defendant and cross-
examination portion of PW1, nowhere the defendant has
admitted the title of the plaintiff and his possession over the
suit schedule property. Learned counsel for the defendant
merely suggested that under the sale deeds, the plaintiff
purchased 5 acre 7 guntas, but the plaintiff's vendor had only 4
acre 25 guntas. Hence, it is not an admission under Section 58
of the Indian Evidence Act, 1872. The admission must be clear,
unambiguous, whereas the suggestions put to PW1 and
extracting answer based on the documents is not an admission
in order to grant relief by moulding the reliefs. The Hon'ble
Supreme Court, in a catena of judgments, held that the Courts
have the authority to mould the relief; modifying or shaping the
remedy requested based on established trial facts and
circumstances; to render complete justice instead of outright
dismissing a suit. Whereas, in the instant case, the plaintiff's
vendor title is not established, however, the plaintiff is claiming
the property of the defendant and hence, the relief cannot be
moulded.
68. In the absence of a demonstrated defect of the
nature recognised under Section 100 of CPC, this Court cannot
undertake a fresh assessment of the entire evidence or
- 57 -
RSA No. 1757 of 2011
substitute a different factual conclusion merely because the
appellant suggests an alternative interpretation.
69. For the foregoing reasons and subject to the
determination of I.A. No.4/2026 under Order XLI, Rule 27 of
CPC, this Court finds no demonstrated perversity, non-
consideration of material evidence or erroneous application of
law warranting interference with the concurrent findings of the
trial Court and the First Appellate Court. The appellant has
failed to establish a substantial question of law requiring
interference under Section 100 of CPC.
70. Consequently, the judgment and decree passed in
O.S. No.479/2004 and R.A. No.23/2011 do not warrant
interference by this Court in the present Regular Second
Appeal. Accordingly the appeal is dismissed .
71. I.A. No.4/2026 filed by the appellant under Order
XLI, Rule 27 of the Code of Civil Procedure, 1908, is hereby
dismissed. In view of the dismissal of the appeal, pending
interlocutory applications, if any, shall stand dismissed.
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK