KALACHITTI BHIMAVVA Vs. GURIKARA NAGAPPA AND ORS.

JUDGEMENT

(1.) IN a small cause suit, S.C. No. 219 of 1939 on the file of the District. Munsif's Court, Hospet, the present appellant obtained a decree for a sum of money against one Obavva, the third defendant in this suit and another Bhimappa, the second defendant in this suit. On his attaching survey No. 601 in Kadligi village as belonging to Obavva, certain persons claimed those properties. One Muddabappa a cousin of Obavva claimed by E.A. No. 842 of 1941 his right to possession of a part of the property and that claim was allowed by the District Munsiff. No further proceedings have been taken to get that order set aside under Order 21, Rule 63, Civil Procedure Code and it has hence become final. The three uncles of Obavva, being her father's step -brothers filed a claim petition stating that they are entitled to the rest of the property. This claim was enquired into by the District Munsiff' who rejected it and thereupon the claimants as plaintiffs filed O.S. No. 575 of 1942 out of which this second appeal has arisen.

(2.) BOTH the lower Courts have upheld the plaintiffs' claim and decreed the suit as prayed for. The District Munsif in a fairly elaborate and considered judgment discusses the oral and documentary evidence on the side of the plaintiffs and the defendants. In paragraph 5 he mentions the various salient facts spoken to by P. Ws. 2, 3, and 4. In paragraph 6 of his judgment he contrasts the evidence on the side of the defendants with that of the plaintiffs and finally at the end of that paragraph comes to the conclusion that the oral testimony as regards possession and enjoyment is both in quality and quantity in favour of the plaintiffs' case. Thereafter the learned District Munsiff adverts to the documentary evidence in the case and devotes some space to the recitals contained in Ex. P -2 which is a patta in the joint names of the three plaintiffs and Obavva. According to the trial Court, in the absence of other evidence to show how Obavva's name came to be included in the patta it was impossible to accept that document at its face value as establishing the right of Obavva. Then the learned District Munsif went into the probative value of Exs. P -3 and P -4 and came to the conclusion that these documens also helped the plaintiffs' case. It is not as if he did not discuss the defendants documentary evidence though the same was rather meagre and scanty as it consisted only of two documents. The sum and substance of the learned District Munsif's discussion was the finding that the plaintiffs had established their case.

(3.) MR . Chenchiah, the learned advocate for the appellant, strenuously attacks this finding of fact basing his argument on the well -known proposition of law that in a suit under Order 21, Rule 63, Civil Procedure Code, the onus is very heavy on the defeated claimant to prove affirmatively his case. There is one distinction between what has to be proved in a suit under Order 21, Rule 63 and that in a suit under Order 21, Rule 103, Civil Procedure Code. So far as the class of suits contemplated by the latter provision is concerned, the Code lays down affirmatively that the plaintiff should prove his title. So far as suits under Order 21, Rule 63 are concerned all that the Code requires is that the plaintiff should prove the right to possession. This distinction is not, often kept in view by the Courts. In the present case we have the evidence of the plaintiffs' witnesses especially of the karnam of the village, P.W. 4 that the plaintiffs have been in possession of these properties for nearly 15 years. That would establish their right to possession. The question of title is not intended to be so elaborately gone into as in a case under Order 21, Rule 103, Civil Procedure Code. Mr. Chenchiah relies upon the fact that in Ex. P -2 in addition to the names of the three plaintiffs being mentioned as pattadars the name of Obavva is also given as the joint fourth pattadar. According to him that would indicate that Obavva also had a right to the suit property. I am inclined to agree with the learned District Munsiff that in the absence of any explanatory oral evidence as to how this Obavva's name came to be included in this document it is very difficult to hold that she had any positive right to the property. It would have been much better if the learned District Judge had discussed the oral evidence in the case before he dismissed the appeal after concurring with the judgment of the learned District Munsif but all the same I am not satisfied that the learned District Judge has erred in law in coming to the conclusion he did on the facts of the case. I am, therefore, of opinion, that the decision of both the Courts below is correct and that this second appeal should be dismissed but in the circumstances without costs. The second appeal is accordingly dismissed without costs. No leave.