In a suit for declaration of title, the party relying on title deeds with incorrect survey numbers must prove the identity of the property through concrete evidence; a mere presumption under Section 90 of the Evidence Act regarding the document's age does not establish the truth of its recitals.

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

CAV JUDGMENT

Challenging judgment and decree dated 27.06.2023 passed by II Additional District and Sessions Judge, Tumakuru, in RA no.141/2020 confirming judgment and decree dated 10.01.2018 passed by I Additional Civil Judge and JMFC., Tumakuru, in OS no.14/2023, this appeal is filed.

2. Though matter was listed for admission, since records were received and both learned counsel consented for final disposal of appeal on proposed substantial question of law, matter was heard affording opportunity to both counsel.

3. Sri Raghavendra Desai Ramrao, learned Counsel for appellants submitted, appeal was by plaintiff in OS no.14/2003 filed seeking for declaration of plaintiff as absolute owner and for permanent injunction restraining defendants from interfering with his possession and enjoyment of dry land bearing Sy.no.21/1B measuring 01 Acre 27 guntas of Brahmasandra, Kora Hobli, Tumkur Taluk ('Suit Property', for short).

4. In plaint, it was stated, plaintiff was absolute owner in lawful possession of suit property having purchased it under registered Sale Deed dated 09.11.1960 from one Nanjundaradhya son of Channaveeradevaru of Brahmasandra village. And since then he was in continuous peaceful possession and enjoyment of suit property, his name was entered in revenue records and he was paying land revenue regularly. Even, mortgage of property to local Co-operative Society by him evidenced his possession.

5. That, suit property originally belonged to his mother, Chikkadaramma, who got it in family partition and thereafter initially on 24.09.1932 mortgaged it in favour of Nanjundaradhya and thereafter sold it to him under registered Sale Deed dated 19.05.1948. But, due to bonafide clerical mistake in sale deeds of 1948 and 1960, there was error in mentioning survey number and extent, Sy.no.40/1 was mentioned instead of Sy.no.21/1B, but, boundaries of property were correctly described. RTC extracts correctly reflected Sy.no.21/1B, as measuring 1 acre 27 guntas and identity of property sold was never in doubt despite above errors.

6. It was further stated, plaintiff had raised hurali crop in suit property and was in settled possession. But, about one month prior to filing of suit, defendants taking advantage of above errors and old age of plaintiff attempted to interfere with his peaceful possession and harvest hurali crop without any right, title or interest over suit property, giving rise to cause of action for suit.

7. On entering appearance, defendants no.3 and 4 filed written statement denying plaint averments in toto. They denied plaintiff’s claim about suit property belonging to Chikkadaramma, who mortgaged and later sold it to Nanjundaradhya and his claim of purchasing it from Nanjundaradhya under registered Sale Deed on 09.11.1960. Contention about sale deeds suffering from clerical mistakes was specifically denied as false. Even plaintiff’s claim of being in continuous possession, entry of name in revenue records, payment of land revenue, cultivating hurali crop and mortgage of suit property to Co-operative Society were also denied.

8. They asserted that suit property was ancestral joint family property of defendants no.3 and 4. That it belonged to their ancestor - Chikkanarasimhaiah (also called Narasimhaiah), who was in physical possession and enjoyment of same. That revenue records stood in his name and therefore it was Undivided