2012 3 CurCC 172
KARNATAKA HIGH COURT
K.N. Keshavanarayana, J.
Venkateshappa and Anr. —Respondents
Regular Second Appeal No. 1914 of 2011(DEC and INJ).
Decided on 1.12.2011
Findings recorded by Courts below, being question of fact and having been recorded on proper appreciation of evidence on record cannot be interfered with in second appeal.
(i) Evidence Act, 1872—Sections 65(c), 74, 77, 114—Civil Procedure Code,1908— Section 100—Public document—Secondary evidence produced to prove contents of—Permissible—Once certified copy of entry in book maintained in public office is produced by way of secondary evidence and admitted—Competent for Court to draw statutory presumption that contents thereof are true in absence of any rebuttal evidence to prove contrary—Suit for declaration or title and injunction filed by party claiming title to suit land under registered sale deed executed by person to whom land is granted by Govt. —Concurrent findings of Courts below that sale deed is null and void and suit not maintainable—Grant of land made to vendor already cancelled—Same land re-granted to another long before execution of sale deed as evidenced by certified copy of relevant entries in ‘dharkhast register’ maintained by Tehsildar—Such concurrent findings warrants no interference in second appeal. (Para 18)
(ii) Civil Procedure Code, 1908— Section 100—Second appeal—Question, involved whether grant of land made to one was cancelled and land re-granted to another—A question of fact—No question of law involved in findings concurrently arrived at by courts below on basis of admissible evidence—Second appeal, on pure question of fact not maintainable. (Para 10 and 12)
Act Referred :CIVIL PROCEDURE CODE : S.100EVIDENCE ACT : S.65(c), S.74, S.77, S.114
Counsel for the Parties:For the Appellant: Sri S. Visweswaraiah, Advocate.
K.N. Keshavanarayana, J.—This appeal by the unsuccessful plaintiff is directed against the concurrent judgment and order passed by the Courts below dismissing the suit filed by him for the relief of declaration of title and permanent injunction.
2. The subject-matter of the suit is land bearing Survey No.181 measuring 2 acres situated in Sugatur Village of Kolar Taluk.
3. The case of the appellant/plaintiff in brief was that, the suit schedule property was granted to one Muniga, son of Thimma of Sigtur Village, under Dharkasth by the revenue authorities on 3.6.1942 and since then, the said Muniga was in possession and cultivation of the suit schedule property as its absolute owner; that subsequently, the said Muniga sold the suit schedule property in favour of the plaintiff father under a registered sale deed dated 4.1.1971 and placed the plaintiff’s father in possession of the same; that since then the plaintiff’s father was in possession and enjoyment of the suit schedule property as its absolute owner, till his death; that subsequent to his father’s death, the plaintiff has been in peaceful possession and enjoyment of the suit schedule property as is absolute owner; that the defendants who have no manner of right, title or interest over the suit schedule property are trying to interfere with the plaintiff’s peaceful possession and enjoyment and they have also denying the title of the plaintiff. The 2nd defendants is stated to be the son-in-law of the 1st defendant.
4. The defendants contested the suit denying the case of the plaintiffs. They inter alia contended that the grant in favour of the Muniga was subsequently cancelled by the revenue authorities and thereafter, the suit schedule property was granted in favour of the 1st defendant, during the year in 1957-58 and since then, he has been in peaceful possession and enjoyment of the suit schedule property as its absolute owner. They further contended that since grant in favour of the Muniga was cancelled by virtue of the subsequent sale effected on 4.1.1972, the plaintiff’s father had not derived any title to the suit schedule property and therefore, the plaintiff is not entitled to the reliefs sought.
5. The Trial Court on the basis of the pleadings of the parties framed issues. The parties led oral and documentary evidence in support of their respective extracts and the original sale deed as per Exs P1 to P5. On the other hand, the defendants produced the certified copies of the extract from the dharkasth register issued by the Tehsildar, Kolar Taluk, apart from the saguvali chit, revenue records like RTC mutation, survey sketch etc as per Exs D1 to D12.
6. The Trial Court on assessment of oral and documentary evidence answered the material issues against the plaintiff holding that the plaintiff has failed to prove his title to the suit schedule property on the ground that the defendants have proved that the grant made in favour of Muniga in the year 1942 has been subsequently cancelled and the suit schedule property has been granted in favour of 1st defendant and therefore, the sale effected by Muniga in favour of the father of the plaintiff has not conveyened any title in this favour, as such, the plaintiff cannot be declared any title in his favour of such, the
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