2020 Supreme(Kar) 115

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Sreenivas Harish Kumar, J.
Smt. Jayamma Venkatram and ors. – Appellants
Versus
Smt. Ashraf Jahan Begum Major, W/o. Syed Basheer Ahmed Mallik and ors. – Respondents
Regular First Appeal No.170 & 171 of 2005
Decided On : 21-05-2020

Headnote:

Indian Evidence Act - Section 40 - Karnataka Court Fee and Suits Valuation Act - Section 7 - Possession of suit property - Permanent injunction - Whether trial court has correctly held that title of plaintiffs 1 and 2 is not established - Whether conclusion of trial court that possession of suit property is with plaintiffs is correct - Whether trial court’s findings on issue relating to title over suit property is correct or not it is necessary to examine its findings on identity of suit property on issue - Whether documentary evidence produced by DW1 displaces title of plaintiffs or not - Whether based on revenue documents title of plaintiffs can be declared - Suit property is a bit of land measuring feet situate of land with boundaries as mentioned in plaint schedule - Plaintiffs claim to be its absolute owners - Total measurement of land - After acquisition of lands on three occasions for formation of Road extension of Lalbagh and formation of link roads ultimately there remained twenty guntas of land - Entire land earlier belonged to plaintiffs’ father and after his demise their mother held katha till her death - She let out portion of land in favor of father of third plaintiff - Plaintiffs 2 and 3 succeeded to property after their mother’s death and they leased entire property to third plaintiff - Plaintiffs pleaded that defendants asserted their right over suit property and tried to interfere with their possession - Therefore they brought suit against defendants claiming declaration of their title and permanent injunction to restrain defendants from interfering with their possession – Held, Trial court has held that possession is not with plaintiffs - As plaintiff No.3 who is said to be tenant of plaintiffs 1 and 2 is not examined as a witness possession of suit property cannot be inferred to be with them - Another finding is that according to plaintiffs 1 and 2 there is a cow shed but suit property is vacant land - There is no document evidencing suit property being leased to plaintiff No.3 - Again it is a wrong finding - It may be that plaintiffs 1 and 2 pleaded that they had leased suit property to plaintiff No.3. Non-examination of plaintiff No.3 as a witness has no consequence as what is important when title is sought to be declared in background of circumstances made out is dejure possession - Exs.P76 and P78 are rent agreements which trial court has ignored to consider - Perusal of these two documents show that third plaintiff was allowed to have a shed in a portion of suit land and he was also entrusted with responsibility of supervising remaining vacant land - PW1 asserts in his cross-examination that suit property is vacant - Photographs marked Exs.P50 to P52 with their negatives show that there is temporary shed like structure where cows are tethered and remaining land being vacant - Therefore possession was with plaintiffs 1 and 2 when suit was filed - PW1 has spoken about interference by defendants - In fact tenor of defense put forward by defendants No. 5 and 6 indicates their intention to interfere with plaintiffs’ possession – Therefore trial court ought to have held that possession of suit property was with plaintiffs and that there was interference with their possession - There are three more points to be adverted to - Trial court has observed that after death of plaintiff No.1 his legal representatives were not brought on record and that plaintiff No.2 alone could not have prosecuted suit - PW1 while deposing stated that plaintiff had executed a family arrangement deed confirming entire management of suit property on second plaintiff - But he stated in cross-examination that said family arrangement had no bearing on suit - This is reason for trial court holding that legal representatives of first plaintiff should have been brought on record - This reason appears to be not correct for whether or not there was any family arrangement if one of plaintiffs dies and his legal representatives do not come on record surviving plaintiff can prosecute according to Order XXII Rule 3 of CPC - If first plaintiff died leaving behind him legal representatives they would have made an application to come on record in suit - But nobody made any application - This reason alone cannot jeopardize right of other plaintiffs - In this case PW1 speaks about family arrangement and if it is in force legal representatives of first plaintiff may not get any right if not they can still assert their right – Therefore death of first plaintiff has no effect of abating entire suit - Plaintiffs appear to have not valued suit correctly - They valued suit property applying section 7 of Karnataka Court Fee and Suits Valuation Act treating it as an agricultural land - But by time suit was filed suit property was no more an agricultural land and it had been brought under corporation limits – Therefore court fee should have been paid on actual market value - Appellants counsel also submitted that plaintiffs are ready to pay court fee - For this reason plaintiffs may be directed to value suit as also these appeals properly and make good deficit court fee – Appeals is allowed