IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH DATED THIS THE 22ND DAY OF OCTOBER 2013 BEFORE THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA

R.S.A. NO.7251 OF 2012

BETWEEN:

VIJAY S/O KEERU RATHOD AGE: 35 YEARS OCC: COOLIE R/O UKKALI, TQ:BASAVAN BAGEWADI DIST:BIJAPUR – 586 101.

…APPELLANT

(BY SRI.SAYYED HABEEB, ADV.)

AND:

MADU S/O LASKIR CHAVVAN AGE: 45 YEARS OCC: COOLIE R/O UKKALI, TQ:BASAVAN BAGEWADI DIST: BIJAPUR – 586 101.

…RESPONDENT

(BY SRI.BAPUGOUDA SIDDAPPA, ADV. )

***** THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.11.2010 PASSED IN R.A.NO.3/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AT BASVANA BAGEWADI WHEREIN, THE APPEAL WAS DISMISSED AND THE

JUDGMENT AND DECREE DATED 08.12.2009 PASSED IN O.S.NO.215/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AT BASAVAN BAGEWADI WAS CONFIRMED.

THIS R.S.A COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

JUDGMENT

In this second appeal the appellant-plaintiff has questioned the legality and correctness of the concurrent judgment of the Courts below dismissing the suit filed by him for declaration of his title and permanent injunction in respect of plot bearing VPC No.23 measuring 40x30 sq.ft. situated in Ukkali L.T. of Basavana Bagewadi Taluk.

2. Appellant-plaintiff sought the relief of declaration of title on the ground that the suit schedule property was allotted to him by the village panchayat under the Record of Rights on 15.8.1989 and since then he has been in possession and enjoyment of the same and his name was also mutated in the relevant registers and he has been paying taxes in respect of the same

and that the respondent-defendant having no manner of right, title and interest is trying to interfere with the possession and is also denying the title.

3. The respondent-defendant contested the suit denying the case of the plaintiff. He further contended that in the year 1986, the Mandal Panchayat, Ukkali allotted the suit schedule property to him and since then he has been in possession and enjoyment of the same.

4. The Trial Court framed necessary issues in this regard. After the parties led evidence, the Trial Court on appreciation of oral and documentary evidence, dismissed the suit holding that the plaintiff has not produced any document evidencing allotment of the site by the village panchayat and in that view of the matter, it was held that the plaintiff has failed to prove his title to the suit schedule property. The trial Court also held that the evidence placed by the plaintiff does not

satisfactorily establish that he has been in possession of the suit schedule property. Consequently, the suit was dismissed in its entirety. Against the said judgment, the appellant filed appeal before the lower appellate Court. The lower appellate Court on re-appreciation of the oral and documentary evidence concurred with the findings recorded and conclusions reached by the learned Trial Judge and consequently, dismissed the appeal. Aggrieved by the said judgment of the Courts below, plaintiff has presented this second appeal.

5. Along with this appeal, an application under Order 41 Rule 27 r/w Section 151 of Code of Civil Procedure is filed seeking permission to produce additional documents in the form of a copy of Hakku patra said to have been issued by the village panchayat in respect of the suit schedule property.

6. Having heard the learned counsel for the appellant and on perusal of the judgments under appeal

as well as the additional documents now sought to be produced, I am of the considered opinion that the appeal does not involve any question of law, much less substantial question of law.

7. As noticed supra, the suit of the plaintiff was one for declaration of title in respect of the suit schedule property, based on the alleged allotment by the village panchayath in his favour. Admittedly, the plaintiff did not produce the so-called allotment order nor produced any document regarding transfer of right over the suit schedule property in his favour by the village panchayath. The only document produced by the plaintiff before the Trial Court was the extract of the building assessment register pertaining to VPC No.23 marked as Ex.P1 to show that his name has been mutated in the concerned register. Ex.P2 is a letter said to have been issued by the Secretary of the Grama Panchayat, Ukkali Village to the plaintiff stating that no hakku patra had been issued in his favour, in respect of the suit schedule property. Ex.P3 is another letter again by the Secretary of Grama Panchayath addressed to the plaintiff to the effect that no resolution in respect of the alleged allotment of the suit schedule property in favour of the plaintiff had been passed by the panchayath, at any time. Thus, the documents produced by the plaintiff did not establish the title over the suit schedule property. In the absence of any title deed or documentary evidence evidencing transfer of title in favour of the plaintiff in respect of the suit schedule property, the Courts below are justified in holding that the plaintiff has failed to prove his title over the suit schedule property. The findings recorded by the Courts below in this regard being findings of fact are based on the evidence on record. It cannot be said that those findings are perverse.

8. Now the additional document sought to be produced along with the application before this Court is stated to be the copy of hakku patra. In the plaint it was the specific case of the plaintiff that the plot was allotted to him under Record of Rights. In the plaint he did not lay claim on the basis of hakku patra stated to have been issued by the panchayath. Though, during the trial, the plaintiff sought to contend that the village panchayath had issued hakku patra, however, the original of hakku patra was not produced. The plaintiff appears to have sought issuance of a copy of the hakku patra from the village panchayath. However, the Secretary of village panchayath has issued a letter Ex.P2 stating that no such hakku patra has been issued to the plaintiff in respect of the suit schedule property at any point of time. It appears the plaintiff again sought for a copy of the resolution said to have been passed by the village panchayath regarding allotment of the suit schedule property in his favour. It is in

response to that request, Ex.P3, was issued by the Secretary, village panchayath stating that no such resolution has been passed. This shows that no hakku patra was issued in favour of the plaintiff. If that is so, how could a copy of hakku patra could be produced. In addition to this, it is pertinent to note that the document, which is now sought to be produced, is a xerox copy of hakku patra, which is certified by the Panchayath Development Officer as 'true copy' as per the original, by endorsing in kannada "C¸À°£ÀAvÉ £ÀP À®Ä ¸Àj EzÉ". To make such an endorsement, the official who certified the same must have looked into the original. Without looking into the original and comparing the copy with the original, he could not have made such an endorsement. This shows that there was original, however, that original was itself not produced. Even according to the appellant-plaintiff the original is not available. Therefore, it is not forthcoming as to on what

basis the Panchayath Development Officer has certified the said copy as 'true copy' of the original. Even according to the appellant-plaintiff no hakku patra was issued to him by the village panchayath. If hakku patra was not issued, it is very strange as to why the plaintiff sought issuance of the copy of hakku patra from village panchayath as indicated in Ex.P2. Therefore, this document cannot be permitted to be produced at this stage. Therefore, no ground is made out to grant permission to the appellant to produce additional documents.

9. Having regard to the fact that the appellantplaintiff has not produced any document evidencing transfer of title in respect of the suit schedule property in his favour, the Courts below are justified in dismissing the suit of the plaintiff for declaration of title. Therefore, the judgments under appeal do not call for interference by this Court. The appeal does not involve

any question of law much less substantial question of law warranting consideration by this Court. Therefore, appeal is dismissed.

SD/- JUDGE

SS*