V.CHANDRASHEKARAIAH Vs. SHIVARUDRAIAH

JUDGEMENT

(1.) Heard the learned counsel for the appellant.

(2.) This appeal is filed against the concurrent finding. The case of the plaintiff before the Trial Court is that the plaintiff is in possession of the suit schedule property in terms of document Ex.P1 and consequently, the mutation - Ex.P2 came into existence as well as Ex.P17 and also RTC stands in the name of the plaintiff in terms of Exs.P3 to P8 and Exs.P13 to P16 and sought for the relief of permanent injunction. Defendant No.4 appeared and filed written statement before the Trial Court disputing the document of Ex.P1 and also the revenue document and apart from that also, he has filed an appeal before the Assistant Commissioner, Ramanagara and the same also dismissed vide order dtd. 1/7/1999. The plaintiff relies upon the documents which have been placed on record i.e., Ex.P1 to P17 and the Trial Court also having considered the material on record, the 4th defendant being the family member of plaintiff and other defendants has gone to the extent of denying that the plaintiff is his mother and has also gone to the extent of filing an affidavit to the effect that his father Late. Veeranna had an illegitimate relationship with Puttamma and the same is discussed in paragraph No.33 and also in paragraph No.35 also taken note of the defence of the defendant and he claims that he has been in possession of the property as on the date of filing of the suit but not placed any documentary proof with regard to his possession is concerned and hence, the Trial Court decreed the suit in favour of the plaintiff relying upon documents of Exs.P1, P2 and P17 and RTC extract - Exs.P3 to P8 and P13 to P16. The same is challenged before the Appellate Court. The Appellate Court also having considered the grounds urged in the appeal memo formulated the point that whether plaintiff No.1 proved her possession over the suit schedule property as on the date of filing of the suit and whether it requires interference of this Court?. The Appellate Court also having reassessed the material available on record particularly documentary evidence which have been placed on record and also taken note of the document which have been produced by the defendant i.e., appellant Ex.D1 - RTC extract in respect of item No.1 for the year 1989 to 1993 and it shows the name of defendant Nos.1 to 4 as per MR No.6/1983-84 and also MR No.4/1985-86 and partition in column No.(9) and the names of defendant Nos.1 to 3 in column No.12(2). Exs.P3, P4 and P5 are the RTC extracts in respect of item No.1 of suit schedule properties showing the name of plaintiff for item No.1 as per MR No.7/1995-96 and also the names of defendant Nos.1 to 4 for the remaining extent as per the partition in MR No.5/1983-84. The Appellate Court having taken note of these documents and also reappraised both oral and documentary evidence and also taken note of Ex.P11 is the registered deed dtd. 13/7/1999 and it recites that the plaintiff mortgaged the suit schedule property in favour of Sri Siddashivacharya Swamy Gavi Mutt for Rs.15,000.00 by delivering the possession for 25 years and within the said period, this mortgage deed is to be taken back by paying mortgage amount. Ex.P12 is the redemption of mortgage deed dtd. 9/6/2004 and it recites that the plaintiff redeemed the said mortgage. Having taken note of all these documents in paragraph No.26 in detail discussed that an application was filed under Order 26 Rule 10(a) read with Sec. 75(E) of CPC and the said application was dismissed. An attempt was made by the defendant before the Trial Court to send the document of Ex.P1 for handwriting expert and same was dismissed on 14/9/2012 and suit was decreed on 26/10/2013 after almost one year and defendant No.4 has not challenged the said dismissal order. Moreover, in the absence of Ex.P1 also the other documents are taken note of and other documents also clearly discloses that plaintiff is in possession of the suit schedule property and confirm the judgement of the Trial Court in coming to the conclusion that as on the date of filing of the suit, Court has to take note of who has been in possession of the property. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court.

(3.) The main contention of the learned counsel appearing for the appellant is that document of Ex.P1 is disputed and also an application was filed to send the same to the handwriting expert and the same was dismissed and the learned counsel also would contend that Ex.D1 doesn't confirm to the date of document, the ownership or possession and the learned counsel also would vehemently contend that the other documents which have been placed before the Court also not confirm any right in favour of the plaintiff and fails to take note of the document Ex.P1 and cannot be looked into and the learned counsel also would contend that this Court has to frame substantial question of law that as per Sec. 49(c) of the Registration Act, the document doesn't confirm any right in favour of the plaintiff and also would contend that defendant No.4 questioned Ex.P1 and the same was not taken note of and Appellate court also committed an error in holding that Ex.P11 - registered mortgage deed and Ex.P12 - redemption of mortgage deed executed subsequent to the filing of the suit and considering the same, confirmed the judgement of Trial Court and hence, this Court has to frame substantial question of law.