THIMMA NAIKA Vs. PAPANNA ALIAS KEMPEGOWDA

JUDGEMENT

(1.) This is a plaintiffs second appeal aggrieved by the dismissal of O.S. No. 25/98 on the file of the Civil Judge (Jr.Dn.), Hunsur. and the dismissal of R.A. No. 83/02 on the file of the Civil Judge (Sr.Dn.) & JMFC, Hunsur. Appellant instituted O.S.25/98 on 19/3/1998 arraigning the 1st respondent as defendant for a direction to the defendant to execute an amended or rectification deed incorporating the correct Sy. No. as 23/2, the extent as 2 acres 15 guntas, and the boundaries on the East and West, as described in the schedule to the mortgage deed dt. 29/1/1970, by deleting Sy. No. 72/2, extent 3 acres 3 guntas, in the sale deed executed and registered on 8/2/1971 by one Kempegowda, S/o. Kempegowda.

(2.) The defendant described as Papanna @ Kempegowda, S/o. Kempegowda and Honga Eramma, on notice entered appearance, resisted the suit by filing written statement interalia denying the execution of the sale deed dt. 8/2/1971 conveying 3 acres 3 guntas in Sy. No. 72/2 in favour of the plaintiff and the mortgage deed dt. 29/ 1/1970 in favour of Sanna Naika in respect of 2 acres 15 guntas of land in Sy. No. 23/2. Defendant however admitted that he was the owner of land measuring 3 acres 3 guntas in Sy. No. 72/2 and land measuring 2 acres 15 guntas in Sy. No. 23/2, the suit schedule (i) and (ii) properties. In the premise of pleadings of parties, the trial court framed 3 issues. The first relating to proof of execution of the sale deed dt. 8/2/1971; the second, over proof of the plaintiff having obtained possession of the mortgage schedule property from Sanna Naika in the year 1972 after redeeming the mortgage; the third, cast a burden on the plaintiff to prove that the schedule in the sale deed dt. 8/2/1971 executed by the defendant contained incorrect survey number and extent. Parties entered trial whence plaintiff was examined as PW-1 and two other witnesses as PWs. 2 & 3 and marked documents Ex.P1 to P9. For the defendants, two witnesses were examined as DWs. 1 & 2 and marked documents Ex.D1 to D5.

(3.) The trial court having regard to the material on record and the evidence, both oral and documentary, observed that the sale deed dt. 8/2/1971 Ex.P1, conveying 3 acres 3 guntas of land in Sy. No. 72/2 though said to be executed by Kempegowda, S/o. Kempegowda, there was no proof that the defendant Papanna @ Kempegowda, S/o. Kempegowda executed the sale deed, while Ex.P2, mortgage deed dt. 29/1/1970 said to be executed by Kempegowda, S/o. Kempegowda in favour of Sanna Naika, in respect of land measuring 2 acres 15 guntas in Sy. No. 23/2. too was not proved to have been executed by the defendant. In addition, the trial court opined that the plaintiff, in the absence of a probable explanation, could not have kept silent for 27 long years from the date of execution of the sale deed. Ex.P1. to institute the suit for rectification of the schedule in the sale deed. The trial court further observed that PW2 was admittedly a relative of the plaintiff and in cross-examination admitted ignorance and did not know as to who was in possession of the suit item No. (ii) property, while PW3 too admitted ignorance over the measurements and survey number of the property in the possession of the plaintiff, and in the absence of corroboration, declined to accept the oral testimony of the plaintiffs witnesses as credible evidence, to dismiss the suit by judgment and decree dt. 8/11/2002.