1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO.1848 OF 2005 (DEC) BETWEEN: 1. SRI. MUNIAPPA S/O LATE SANJEEVAPPA SINCE DEAD BY LRs 1(A) SMT. NARAYANAMMA W/O G.S. MUNIYAPPA SINCE SHE WAS DED LRS ARE ALREADY ON RECORD AS APPELLANT NO.1(B) TO 1(E) 1(B) SRI. MAHESH S/O G.S. MUNIYAPPA AGED ABOUT 57 YEARS R/AT DOOR NO. 231, 2ND CROSS SHIVARUDHRAPPA BUILDING BRINDAVANA LAYOUT, KODIGENAHALLI BENGALORE NAGARA AND DISTRICT. 1(C) SRI. MANJUNATH S/O G.S. MUNIYAPPA AGED ABOUT 56 YEARS R/AT DOOR NO. 231, MENUKUNTEE HOSURU, DOODAJALA POST BANGALORE NORTH, BANGALORE-562 152. 1(D) SRI. VIJAY KUMAR S/O G.S. MUNIYAPPA AGED ABOUT 54 YEARS 2 R/AT DOOR NO. 231, MENUKUNTEE HOSURU, DOODAJALA POST BANGALORE NORTH, BANGALORE-562 152. 1(E) SMT. PADHMAVATHI W/O D. MOHANKUMAR AGED ABOUT 48 YEARS R/AT FLAT NO.321, 2ND FLOOR 3RD BLOOK, EMBASSY HABITAT NEAR MOUNT KARMAL COLLEGE VASANTHANAGAR, PALACE ROAD BANGALORE-560 052. 2. SRI. JAGADEESHA S/O LATE SANJEEVAPPA SINCE HE WAS DEAD HIS LRs 2(A) SMT. LAKSHAMAMMA W/O LATE JAGADEESHA AGED ABOUT 74 YEARS 2(B) PARAMESH .S S/O LATE JAGADEESHA AGED ABOUT 55 YEARS 2(C) PRAKASHA .J S/O LATE JAGADEESHA AGED ABOUT 53 YEARS 2(D) SMT. BAGHYALAKSHAMI D/O LATE JAGADEESHA W/O M. KUMAR AGED ABOUT 51 YEARS ALL ARE R/AT NO.44/2, 35TH CROSS 2ND BLOCK, RAJAJINAGAR BANGALORE-560 010. 3 3. SRI. NANDESHA S/O LATE SANJEEVAPPA AGED ABOUT 78 YEARS R/AT 44, 35TH CROSS 2ND BLOCK, RAJAJINAGAR BANGALOE-560 010. ...APPELLANTS (BY SRI. G. KRISHNA MURTHY, SENIOR ADVOCATE FOR SRI G.V.NARASIMHA MURTHY, ADVOCATE FOR A1(B TO E), 2(A TO D) AND A3; V/O DATED: 03.06.2024 A1(A) DEAD AND A(B TO E) ARE LRS;) AND: 1. CHANNAPPA .K S/O LATE KARIANNA (SINCE DEAD BY LRs) 1(A) SMT. LATHA W/O BOJARAJ D/O LATE CHANNAPPA .K AGED ABOUT 40 YEARS 1(B) SMT. KUSUMA W/O DEVARAJ D/O LATE CHANNAPPA .K AGED MAJOR 1(C) SMT. PUSHPA D/O LATE CHANNAPPA .K AGED MAJOR 1(D) SRI. BHASKAR S/O LATE CHANNAPPA .K AGED MAJOR ALL ARE R/AT NO.43 4 35TH CROSS, 2ND BLOCK JUGANAHALLI RAJAJINAGAR BENGALURU-560 010. …RESPONDENTS (BY SRI. S.KALYAN BASAVARAJ, ADVOCATE FOR R1(B TO D)) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.16574/2001 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE (CCH- 22) DATED 23.09.2005 AND ETC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.02.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM CAV JUDGMENT The captioned appeal is by the defendants assailing the judgment and decree rendered in O.S.No.16574/2001 on the file of the XIII Additional City Civil Judge, Mayo Hall, Bengaluru (CCH-22). 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 5 3. The facts leading to the case are as under: Plaintiff is asserting that he is the absolute owner of suit schedule 'A' and 'B' properties. Plaintiff is tracing title based on registered sale deed dated 20.03.1967. Plaintiff filed a suit seeking relief of declaration by specifically pleading that defendants who are the adjoining owners and own property towards Eastern side of the plaintiff's schedule 'A' and 'B' properties are trying to put up construction by encroaching over schedule 'B' property. Apprehending encroachment, plaintiff filed the present suit seeking declaration of title and for consequential relief of injunction against the defendants. Defendants, on receipt of summons, tendered appearance and filed written statement and contested the suit. Defendants in their written statement have referred to the title of plaintiff's vendor. Referring to title documents of plaintiff's vendor, defendants have contended that for the 6 first time in the sale deed executed by one S.Muniswamappa to Smt. Puttananjamma which is dated 13.06.1956, the eastern measurement for the first time is shown as 48 feet. Defendants therefore contend that the property held by plaintiff's vendor measured East-West on the southern side 41 feet. The defendants further contend that Puttananjamma has sold portion of the property in favour of Muniswamy Gowda which covered only 18 feet East-West and 30 feet North-South in the sale deed dated 06.10.1958. Therefore, defendants have seriously contested and disputed that plaintiff's property more particularly schedule 'B' measured 48 feet East-West. Defendants have alleged that it is the plaintiff who has encroached CITB property and is claiming title to a larger extent. Defendants have also referred to enquiry conducted by the City Surveyor and PT sheet drawn on 03.11.1970. Defendants specifically alleged that plaintiff has not questioned PT sheet prepared in 1970. Defendants 7 have also pleaded that it is only after having disclosed their defence by filing written statement, an injunction suit simplicitor is now converted into a comprehensive suit by seeking amendment and additional written statement is filed to that effect to contend that the pleadings initially pleaded in the plaint and the proposed amendment are distinct and independent and the prayer made in the plaint is contradictory to the pleadings of the plaintiff. Based on the rival pleadings, trial Court formulated following issues: 1) Whether plaintiff proves that he is owner of 'B' schedule property? 2) Whether plaintiff proves that defendants are trying to put up construction in 'B' schedule property? 3) Whether plaintiff proves alleged interference by defendants in plaint schedule 'A' and 'B' properties? 8 4) Whether defendants prove that valuation made and court fee paid is not correct? 5) To what decree or order the parties are entitled to? Plaintiff and defendants have let in oral and documentary evidence. The trial Court after conclusion of trial and appreciation of oral and documentary evidence as well as pleadings answered issued Nos.1 to 3 in the affirmative. While answering issue No.1 in the affirmative, trial Court held that plaintiff has succeeded in proving his ownership over schedule 'B' property. While answering issue No.2 in the affirmative, trial Court has held that plaintiff has substantiated that defendants are trying to put up construction in schedule 'B' property. Similarly, while answering issue No.3 in the affirmative, trial Court held that plaintiff has proved interference by defendants in plaint 9 schedule 'A' and 'B' properties. Consequently, suit is decreed declaring that plaintiff is the absolute owner of schedule 'A' and 'B' properties and consequential relief of injunction is granted. 4. Learned Senior Counsel reiterating the grounds urged in the appeal memo has raised a primary objection in regard to evidence let in by the plaintiff through his daughter. Learned Senior Counsel would point out that his daughter had no competence to lead evidence and the transactions are much prior to her birth and therefore, she lacks competence to depose on behalf of the original plaintiff. Therefore, he would point out that no evidentiary value can be attached to the oral evidence let in by the GPA holder. While questioning the findings of the trial Court on issue Nos.1 to 3, learned Senior Counsel would bring to the notice of this Court that the trial Court having taken cognizance of Ex.P-22 had made a comment on plaintiff's right over the disputed property wherein plaintiff is seeking 10 enhanced portion of 48 feet x 17 feet. He would point out that trial Court has clearly held that plaintiff has failed to substantiate the extent over East-West portion. He would further point out that in a suit for declaration and possession, the burden is always on the plaintiff to prove and substantiate his title. Learned Senior Counsel would point out that lacuna found in the defence of the written statement is taken into consideration while granting decree of ownership in favour of plaintiff and therefore, he would vehemently argue and contend that the procedure adopted by the trial Court is fundamentally flawed. He would point out that this Court and Hon'ble Apex Court has clearly held that in a comprehensive suit plaintiff has to succeed on his own and cannot bank on the weakness of the defendant. 5. Referring to the evidence let in by the plaintiff, he would point out that plaintiff has not proved his ownership over schedule 'A' and 'B' properties. He would strongly question the extent indicated in Ex.P-21. He would 11 contend that for the first time in Ex.P-21, the measurements are enhanced. While executing sale deed, he has clearly disclaimed that he is not sure of the accurate measurements. This ambiguity is not examined by the trial Court and therefore, he would contend that the findings recorded on plaintiff's title to an extent of 48 feet towards East-West is erroneous. Referring to Ex.D-12, Ex.D-10 and commissioner's report, learned Senior Counsel would point out that the vacant space measuring 8 feet x 97 feet is clearly found to be in possession of the defendants and the plaintiff has failed to substantiate his possession to the above said extent and these crucial aspects are not dealt by the trial Court. He would point out that plaintiff has admittedly left 4 feet from the six stones and has constructed a building in 1970 itself and this aspect is reflected in the commissioner's report wherein it is clearly forthcoming that stones are embedded from a long time between plaintiff's property and defendants property. He 12 would conclude his arguments by contending that suit is clearly barred by limitation as per Article 65 of the Limitation Act. He would conclude his arguments by contending that plaintiff who had personal knowledge about the facts of this case has consciously not mounted the witness box and therefore, adverse inference has to be drawn against the plaintiff. 6. Learned Senior Counsel has placed reliance on the following judgments: 1) Smriti Debbarma (Dead) through Legal Representatives vs. Prabha Ranjan Debbarma and Others - 2023 SCC Online SC 9; 2) Rangammal vs. Kuppuswami & Another - (2011) 12 SCC 220; 3) V.M.Salgaocar and Bros vs. Board of Trustees of Port of Mormugao and Others - (2005) 4 SCC 613; 4) Manisha Mahendra Gala & Others vs. Shalini Bhagwan Avatramani & Others - MANU/SC/0301/2024. 13 7. Per contra, learned counsel appearing for the plaintiff has vehemently argued and tried to persuade this Court not to grant any indulgence. Referring to the flow of title, he would point out that the erstwhile owner who sold property to plaintiff's father purchased the suit property from one Smt. Puttananjamma vide registered sale deed dated 13.02.1964. Referring to Ex.P-25, he would contend that the sale deed obtained by the plaintiff's father's vendor, the measurement towards East-West is clearly shown as 48 feet and towards North-South 97 feet. He would further taking this Court to the title deed of Puttananjamma which is marked at Ex.P-24, he would point out that even in Puttananjamma sale deed, the East-West measurement is shown as 48 feet and North-South 80 feet. Puttananjamma's vendor sale deed is also produced which is marked at Ex.P-22. This sale deed is of the year 1958. Even in 1958 sale deed which was obtained by Manjappa S/o Honnegowda who is the vendor of Puttananjamma, the 14 East-West extent is shown as 48 feet and North-South 80 feet. While taking this Court through the sale deed obtained by one K.Chennappa which is dated 06.03.1967, he would vehemently argue and contend that East-West extent is shown as 48 feet. Referring to these title documents, he would contend that the dimension towards East-West has through out remained constant at 48 feet. 8. Now referring to the title deeds of defendant's property, he would point out that Ex.P-27 would clinch the entire controversy between the parties. One Kempaiah who was the original owner sold site No.44 in favour of one Muniyamma and her son Thimmaiah vide registered sale deed dated 30.01.1936. The measurement of defendant's property is shown as 40 feet East-West. He would further point out that Kempaiah purchased this property in a court auction. On the very next day i.e., 31.01.1936, the said Muniyamma and her son have executed sale deed in favour of defendant's father vide registered sale deed dated 15 31.01.1936 which is marked at Ex.P-28. The measurements towards East-West is clearly shown as 40 feet. The father of defendant namely Late Sanjeevappa while selling a portion of site No.44, however, has enhanced the measurement towards East-West contrary to what was purchased by defendant's father under Ex.P-28. While selling under Ex.P-29, the defendant's father has sold a portion of the property in excess of 40 feet. Referring to the recitals in the sale deed at Ex.P-29, he would contend that excess 10 feet is shown towards the western side of the property which is owned by the plaintiff and is referred to as schedule 'B' property. One Eshwar Pattar who has purchased the land from Sanjeevappa again re-sold the same to defendant's father under registered sale deed dated 29.10.1964. Under this sale deed, the East-west measurement of the site is shown as 36 feet and on the southern side is shown as 50 feet contrary to the earlier title documents. 16 9. Referring to these title documents, he would point out that there is no explanation forthcoming as to how defendants acquired title towards East-west side in excess of 40 feet as indicated in 1936 sale deed which is marked at Ex.P-27. Therefore, defendants father who has re- purchased the property under registered sale deed dated 29.10.1964, an excess measurement is shown on East-west side. He has also countered the commissioner's report and has vehemently contended that commissioner's report cannot be looked into as the report does not conclusively resolve the dispute between the plaintiff and defendants. He would also point out that objections are filed to the commissioner's report. Citing the flow in the survey undertaken by the Court Commissioner, he would point out that the measurements are not aligning with the extent and measurements shown in the title deeds which were infact provided at this point. 17 10. While comparing the title documents of the plaintiff to that of defendants, he would point out that plaintiff has succeeded in substantiating the ownership of the schedule 'B' property by leading cogent evidence and there is no rebuttal evidence. In support of his contention, he has placed reliance on the following judgments: 1) Narne Rama Murthy vs. Ravula Somasundarama and Others - (2005) 6 SCC 614; 2) M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Pachma District Sehore and Others vs. Modi Transport Service - (2022_ 14 SCC 345; 3) Jayamma and Others vs. State of Karnataka, Represented by its Secretary, Department of Revenue and Others - 2022 SCC Online Kar 211. 11. Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. This Court has given its anxious consideration to the pleadings and oral and documentary evidence. The following points would arise for consideration: 18 1) Whether the finding of the trial Court that plaintiff has succeeded in proving that he is the absolute owner of schedule 'A' and 'B' properties is erroneous and warrants interference? 2) Whether the finding of the trial Court that plaintiff having substantiated his title is entitled to recover possession warrants any interference? Findings on Point Nos.1 and 2: 12. The plaintiff has successfully established his title and extent over Schedule 'B' property through a series of well-documented transactions supported by voluminous documentary evidence. At this juncture, it would be relevant to refer to the comparison chart containing details regarding both the plaintiff and defendants title documents. The same is produced as under: 19 Plaintiff’s title Defendant’s title Manjappa acquired property via sale deed dated 23.06.1958 (Ex.P22) Measurements East – West 48 ft. North-South 80ft. Kempaiah sold to Muniyamma and Thimmiah (Ex.P27) Measurements East – West 40 ft. North-South 80ft. Manjappa sold property to Puttananjamma via sale deed dated 13.09.1960 (Ex.P24) Measurements East – West 48 ft. North-South 80ft. Muniyamma sold to Sanjeevappa (Ex.P28) Measurements East – West 40 ft. North-South 100ft. Puttananjamma sold to Pushpakanthamma via sale deed dated 13.02.1964 (Ex.P25) Measurements East – West 48 ft. North-South 97ft. Sanjevappa sold property to Eshwar Pattara via sale deed dated 24.04.1961 (Ex.P29) Measurements East – West on northern side 36 ft. East – West on southern side 50 ft. North-South 130 ft. Pushpakanthamma sold to K.Chennappa via sale deed dated 6.03.1967 (Ex.P26) Measurements East – West 48 ft. North-South 97ft. Eshwar Pattara reconveyed the property to Sanjevappa via sale deed dated 29.10.1964 (Ex.P) Measurements East – West on northern side 36 ft. East – West on southern side 50 ft. North-South 130 ft. Sanjevappa sold property to Sarojamma via sale deed dated 29.10.1964 (Ex.P31) 20 Measurements East – West on northern side 36 ft. East – West on southern side 50 ft. North-South 130 ft Sarojamma reconveyed the property to Sanjevappa via sale deed dated 1969 (Ex.P 32) Measurements East – West on northern side 36 ft. East – West on southern side 50 ft. North-South 130 ft. 13. The chain of title clearly demonstrates that Manjappa originally acquired the property via registered sale deed dated 23.06.1958 (Ex.P-22), with measurements of East-West 48 feet and North-South 80 feet. Subsequent conveyances, including those from Manjappa to Puttananjamma (Ex.P-24), Puttananjamma to Pushpakanthamma (Ex.P-25), and Pushpakanthamma to K. Chennappa (Ex.P-26), consistently maintain the integrity of the dimensions, confirming the rightful ownership and extent of the plaintiff’s property. 21 14. In contrast, the defendants have failed to substantiate their title, as their claim is based on repurchase transactions that contradict the extent reflected in Ex.P-27 and Ex.P-28. Notably, Ex.P-27 records the sale of property by Kempaiah to Muniyamma and Thimmiah with measurements of East-West 40 feet and North-South 80 feet, while Ex.P-28 reflects Muniyamma’s sale to Sanjeevappa with dimensions of East-West 40 feet and North-South 100 feet. However, subsequent transactions involving Eshwar Pattar (Ex.P-29), his reconveyance to Sanjeevappa and the eventual sale to Sarojamma (Ex.P-31) reflect a significant increase in the East-West measurement showing an extent of 36 feet on the Northern side and 50 feet on the Southern side, with a North-South dimension of 130 feet. This unexplained enhancement in extent, particularly in the East-West measurement, is in direct contradiction to the originally recorded dimensions in Ex.P- 22 27 and Ex.P-28, casting serious doubts on the legitimacy of the defendants’ claim. 15. Given the various discrepancies observed in the defendants' assertions, it is abundantly clear that the plaintiff has successfully established and substantiated his title to the property in question. The inconsistencies in the extent of the property claimed by the defendants in their alleged repurchase cast serious doubts on the credibility of their claim. These variations not only weaken the defendants' position but also render their claim over the Schedule 'B' property legally untenable. In contrast, the plaintiff has meticulously placed on record a series of valid and legally recognized documents, including a comprehensive chain of sale deeds, which collectively trace the ownership history and conclusively establish his title to the property. The authenticity and reliability of these documents further reinforce the plaintiff’s legal rights and strengthen his case beyond reasonable doubt. Additionally, 23 the citations relied upon by the Learned Senior Counsel representing the defendants do not hold relevance in the present matter, as the facts and circumstances differ significantly. The plaintiff’s ability to furnish an unbroken chain of title documents, coupled with the defendants’ failure to substantiate their repurchase in so far as schedule B property with credible evidence, strengthens the plaintiff’s rightful claim over the disputed property. 16. The plaintiff, by producing a chain of registered sale deeds and other documentary evidence, has successfully discharged his burden of proof and established his lawful title over Schedule 'B' property. Under Section 101 of the Indian Evidence Act, 1872, the burden of proving ownership lies on the party asserting the title. The plaintiff has meticulously traced his title through successive transactions, beginning with Manjappa’s acquisition via a registered sale deed dated 23.06.1958 (Ex.P-22) and continuing through subsequent lawful transfers, including 24 those documented in Ex.P24, Ex.P25, and Ex.P26. These documents not only confirm the plaintiff’s title but also substantiate the exact extent of the property as East-West 48 feet and North-South 97 feet, leaving no ambiguity regarding the dimensions of the land in question. Conversely, the defendants have failed to produce any documentary evidence substantiating their alleged title over more than 40 feet in the East-West direction. 17. As per Section 103 of the Indian Evidence Act, the burden of proving any fact that contradicts the plaintiff’s established title rests on the defendants. However, their claim is directly contradicted by Exs.P-27 and P-28, which clearly limit the extent of their predecessor’s property to 40 feet in the East-West direction. Any attempt by the defendants to assert title beyond 40 feet is legally untenable, as they cannot claim a greater extent than what was conveyed in the original transactions. Furthermore, under Section 58 of the 25 Evidence Act, facts admitted or evidenced through valid documentary proof need no further proof. Since the plaintiff’s title and extent are supported by registered sale deeds, the defendants’ assertion without credible supporting documents amounts to a mere unfounded claim, devoid of legal standing. Hence, the plaintiff has conclusively proven his ownership, while the defendants cannot assert any right beyond the originally recorded extent of 40 feet East-West, as reflected in their own chain of title documents. Conclusions: 18. Based on the foregoing analysis, it is evident that the plaintiff has successfully established his title and extent over Schedule 'B' property through a clear and well- documented chain of transactions. The series of registered sale deeds, beginning with Manjappa’s acquisition via Ex.P- 22 and extending through Ex.P24, Ex.P25, and Ex.P26, 26 consistently confirm the plaintiff’s ownership and the precise dimensions of the property as East-West 48 feet and North-South 97 feet. These documents provide irrefutable proof of the plaintiff’s lawful title, satisfying the requirements under Section 101 of the Indian Evidence Act, 1872. 19. In contrast, the defendants’ claim lacks credibility due to significant inconsistencies in the property’s extent across their alleged transactions. Exs.P-27 and P-28 unambiguously limit the defendants' predecessors’ title to only 40 feet in the East-West direction. The unexplained increase in dimensions in subsequent conveyances, including those reflected in Exs.P29, Ex.P30, and Ex.P31, contradicts the originally recorded extent and casts serious doubt on the legitimacy of their claim. As per Section 103 of the Indian Evidence Act, the burden of proving facts inconsistent with the plaintiff’s established title rests on the defendants, a burden they have failed to discharge. 27 20. Furthermore, under Section 58 of the Indian Evidence Act, 1872, facts evidenced through valid and registered sale deeds require no further proof. Since the plaintiff’s title is backed by substantial documentary evidence, while the defendants’ assertions lack credible supporting documentation, their claim is legally untenable. The defendants cannot claim an extent beyond the originally recorded 40 feet East-West measurement, as indicated in their own title documents. 21. In light of the above, it is conclusively established that the plaintiff holds a valid and lawful title over Schedule 'B' property. The discrepancies in the defendants’ claim further reinforce the strength of the plaintiff’s case, rendering the defendants’ assertion legally unsustainable. Accordingly, the plaintiff is entitled to the relief sought, and the defendants' claim over Schedule 'B' property stands dismissed. Accordingly, Point Nos.1 and 2 are answered in the negative. 28 22. For the foregoing reasons, this Court proceeds to pass the following: ORDER The appeal is dismissed. SD/- (SACHIN SHANKAR MAGADUM) JUDGE CA