1. This regular second appeal is filed challenging the judgment and decree dated 29.03.2006 passed in R.A.No.112/2002 on the file of the Civil Judge (Senior Division), Doddaballapur.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the plaintiff before the Trial Court is that he is seeking the relief of declaration, permanent injunction and for mandatory injunction directing the defendants to close down the door put up by them towards southern side and for possession in the event of this Court holds that plaintiff is not in possession and for a direction for an enquiry into rents or means profits from the date of suit till delivery of the possession.

4. The plaintiff while seeking the above relief's has contended in the plaint that he has become the owner of the suit schedule property by virtue of a registered sale deed dated 22.02.1937 executed in his favour by Smt.Achamma widow of Rama Jois. Ever since the date of sale, the plaintiff has been in actual possession and enjoyment of the suit schedule property of his own by paying the municipal taxes. The katha of the suit schedule property has also been transferred in the name of the plaintiff. The plaintiff has been exercising acts of ownership and in possession from the last 22 years without let or hindrances. The plaintiff also contend that even though the defendants have no manner of right, title or interest over the suit schedule property have been trying to encroach upon the same or thus, trying to interfere with the plaintiff’s possession and enjoyment of the suit schedule property taking advantage of the absence of the plaintiff near the spot. They are further trying to take possession of the suit schedule property by using the force thereto. It is further contended that the defendants constructed a shed towards southern side of the property just abutting the suit schedule property and have opened a door in the said shed in such a way as to make use of the suit land for their ingress and egress to the said shed and the same is liable to be closed and cause of action arose when the defendants tried to take possession of the suit schedule property forcibly.

5. In pursuance of the suit summons, the defendant appeared and filed the written statement denying the averments made in the plaint contending that the suit schedule property is the Thulasi Thota of Sri Venugopala Swamy Temple and the suit schedule property is in the compound of Sri Krishna Swamy Temple itself and as such the allegation of the plaintiff is absolutely false. The suit schedule property is meant only for the benefit and use of the temple and no one has any personal right or interest in the said temple and except the temple authorities, the plaintiff is not having any right or interest in the said property. It is contended that defendant No.1 who is a devotee of the said Sri Venugopal Swamy temple had taken much initiative in continuing the worship of Lord Krishna with the aid of the suit schedule property and in fact with the support of the other defendants, defendant No.1 has taken many schemes to improve the temple and further a scheme has been made by the defendants to have daily worship of the temple of which defendant No.1 is the chief architect and as such, the contention of the plaintiff is absolutely false. It is contended that Charity Garage of the temple is housed in the suit schedule property namely Tholasi Thota which is being used for the purpose of temple without which the daily worship of the deity cannot take place. The suit schedule property is meant only for the benefit and use of the temple and no one has any personal interest in it except the interest of the temple. The plaintiff colluded with some of the defendants with a view to make personal gains even though no one has any personal interest in the suit schedule property which is the property of the temple.

6. Defendant No.5(b) to (h) have contended in the written statement that the plaintiff has to prove his ownership over the suit schedule property and also has to prove that the vendor Smt. Achamma was the previous owner of the said property and the plaintiff and Achamma have been in possession of the suit schedule property. The defendant also denied with regard to the katha and payment of tax by the plaintiff. It is contended that they do not admit that the defendants constructed a shed towards southern side of just abutting the suit schedule property and opened the door in the shed in order to ingress and egress to the said shed through the suit schedule property. It is contended that father of these defendants and other defendants were growing flowers and vegetables in the suit land with the help of two wells dug in it since many years. It is contended that the suit property was in possession of the father of these defendants and after the death of the father, the mother was in possession of the suit schedule property, thus, the plaintiff is not at all the owner of the suit land.

7. The legal representatives of defendant Nos.6 to 9 have filed their additional written statement contending that the suit schedule property is the ancestral property of defendants’ legal representatives father deceased Venkataramanappa. It is contended that their father was doing the social work and celebrating utsav and performing pooja to Lord Gopalaswamy. The father of the defendants’ legal representatives is teaching the love and upliftment of mankind to the youngsters of the society. It is contended that his father had constructed a small shed for keeping cart in the suit schedule property which is still exists. It is contended that their family members perform many spiritual thoughts and devotional functions in the suit schedule property. It is contended that katha of the suit schedule property was in the name of Thimmaiah S/o Govindappa till 1956 and the plaintiff with the collusion of municipal authorities got changed the katha in his favour and again, the katha was changed in the year 1990 subsequent to the dismissal of the above suit in favour of defendant and during that period, the defendant has paid tax to the municipality. Again in the year 1996 by making false submission, the katha was changed into the name of the legal heirs of the plaintiff. But the possession was with the defendant without any interruption and even today the defendants are in possession of the suit schedule property. Hence, the plaintiff has not entitled for any relief as claimed in the suit.

8. The legal representatives of defendant No.1 has also filed the additional written statement on behalf of other legal representatives contending that the suit schedule property being used as Garden for worshiping Lord Gopalswamy by the deity which is adjacent to the suit land called as Tulasi Thota. The defendants’ father used to look after the flower plants and subsequent to his death, these legal representatives are used to look after these plants. Defendant No.1 has constructed a small shed for keeping cart in the suit schedule property which is still in existence. This additional written statement also in corroborate to the written statement filed by defendant No.1.

9. The Trial Court having considered the pleadings of the parties framed the Issues and Additional Issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiff, plaintiff examined six witnesses as PW1 to PW6 and got marked the documents at Ex.P1 to P27. The defendant H V Venkatesh examined as DW1 and other two more witnesses as DW2 and DW3 and marked the documents at Ex.D1 to D8. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the plaintiff is the owner in possession of the suit schedule property by answering Issue No.1 and answered Issue No.2 as negative in coming to the conclusion that the defendants have not proved that they are the owner in possession of the suit schedule property and also answered Issue No.3 as negative in coming to the conclusion that the suit is not barred by limitation and also answered Issue No.5 in the affirmative in coming to the conclusion that door is newly opened in the shed as alleged by the plaintiff and contention of the defendants that the same was erected about 25 years back and also comes to the conclusion that the plaintiff is not entitled for mandatory injunction in respect of the door is concerned.

10. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed in R.A.No.112/2002. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point that whether the impugned judgment and decree of the Trial Court is illegal, arbitrary and capricious and contrary to the facts and circumstances of the case calling for interference. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record answered the said point as negative and confirmed the judgment and decree of the Trial Court accepting the case of the plaintiff. Hence, this second appeal is filed before this Court.

11. The main contention of the counsel for the appellants as against the concurrent finding in the second appeal is that some of the legal representatives of the plaintiff died during the pendency of the suit itself and their legal representatives were not brought on record. Therefore, the suit itself was abated. This matter has been ignored by both the Courts below even though there was an admission to the effect that they died during the pendency of the suit. The Courts below have ignored the document at Ex.P22 and the boundaries mentioned therein which are admitted to be correct as submitted above. The Courts below have ignored the boundaries mentioned in Ex.P22 and other important documents. It is contended that in 1879, nobody thought of this litigation and as per the boundaries mentioned in the Deed of the year 1879 – Ex.P22, the vendor of the plaintiff had no title to the suit schedule property and on the other hand, Thimmaiah had all the title to the suit schedule property. Thimmaiah’s father was Govindaiah and his grandfather was Sharaff Krishnaiah. Sharaff Krishnaiah’s name appears in 1879 Deed. The Courts below have ignored the Deed of the year 1879 and have not appreciated the recitals found therein. The Courts below have erred in not considering the oral and documentary evidence adduced in the case. If mandatory injunction could not be granted, there was no question of granting either declaration or permanent injunction and therefore, the decrees of the Courts below are illegal. The specific case of the defendants that the suit is barred by limitation and this issue has been answered against the defendants and the same is erroneous when the plaintiff not being in possession of the suit schedule property, hence, the suit is hopelessly barred by time. The First Appellate Court felt that Ex.P22 is the Deed of the year 1879 conferring title in favour of the plaintiff. This is wholly illegal and erroneous. The Deed of the year 1879 namely Ex.P22 had been produced to show that the vendor of 1879 Deed – Lakshmana Bhatta had sold the suit schedule property to the father of Thimmaiah by name Govindaiah and the defendants claimed title to the property from Thimmaiah but the First Appellate Court has misread Ex.P22 of the year 1879 and because of misreading of Ex.P22, it has reached to a wrong conclusion. It is contended that right from 1879, up to the date of the suit, the records stood in the name of the defendants and they are in the name of defendant No.1 to defendant No.3 and these documents have not been considered by the Courts below. Ex.D2 stands in the name of Thimmaiah S/o Govindaiah in the year 1939-40 and this has continued till the date of filing of the suit, then, how the name of Shama Rao comes into existence. Ex.P1 is dated 22.02.1937 which according to the plaintiff, is the title deed in favour of the plaintiff – Shama Rao showing the eastern boundary as the property belonging to Maragondahalli Balacharya. Therefore, it is clear that the property covered under Ex.P1 is not the suit schedule property. The boundaries mentioned in Ex.P2 and P3 of 1901 Deed did not tally with the boundaries mentioned in Ex.P1 and therefore, the claim of the plaintiff itself is doubtful hence, the suit for declaration ought to have been dismissed.

12. This Court having considered the grounds urged in the second appeal, framed the following substantial questions of law:

"(i) Whether civil suit can be disposed of on the basis of the evidence which includes deleting of the chief examination of PWs 2, 3 and 4

(ii) Whether evidence before the Court in support of the case means individually a particular form of evidence such as documentary, oral testimony, circumstantial and the related

(iii) When the plaintiff and defendant are claiming the title over the property from two separate quarters, does it has implication of the deficiency of corroboration through cross examination of the witnesses

(iv) Whether the defendants prove that the main source of land was in Ex.D5

(v) Whether the Trial Court erred in relaying upon the available evidence to come to the finding of decreeing the suit by the Trial Court which is confirmed by the appellate Court"

13. The counsel for the appellant in her arguments would vehemently contend that when the suit is filed for the relief of declaration and permanent injunction and also for mandatory injunction, the Trial Court committed an error in decreeing the suit only relying upon the plaintiff’s documents and so also the First Appellate Court committed an error in confirming the judgment of the Trial Court. The counsel would vehemently contend that Ex.P22 is the title document of the year 1879 and the document of the year 1947 is the mother deed of vendors of the defendants. The counsel would vehemently contend that the plaintiff claims the title based on Ex.P1 and P2 and Ex.P1 is the sale deed dated 21.08.1901 and Ex.P2 is the sale deed dated 22.02.1937 and original of Ex.P2 is not marked and a Xerox copy of the said document is marked subject to objection and the same is not proved. PW1 is an attesting witness and plaintiff has not been examined before the Trial Court and there was no power of attorney on behalf of the plaintiff. The plaintiff has examined PW5 who is the son of the plaintiff and the plaintiff ought to have been examined himself before the Trial Court when the plaint was amended in the year 1977 when he was alive but he has not been examined. The counsel would vehemently contend that there is a change in the boundary. The Trust is run by the defendants. The reasons assigned by the Trial Court are nothing but an imaginary one. The Trial Court has committed an error in answering the question of limitation and same is over looked and consideration of documents by the Trial Court is erroneous. The First Appellate Court also committed an error in appreciating both oral and documentary evidence placed on record and erroneously confirmed the judgment of the Trial Court.

14. The counsel for the appellant in support of her arguments relied upon the judgment of the Apex Court reported in (2014) 2 SCC 269 in the case of UNION OF INDIA vs VASAVI COOP. HOUSING SOCIETY LTD. The counsel referring this judgment brought to notice of this Court Sections 34 and 5 of the Specific Relief Act, 1963 wherein the Apex Court held that when the suit is filed for declaration of title and possession, the burden is on the plaintiff to establish its case, irrespective of whether defendants prove their case or not. In the absence of establishment of its own title, the plaintiff must be non-suited even if title set up by defendants is found against them, weakness of case set up by the defendants cannot be a ground to grant relief to plaintiff. Further held that ownership and title, entries in revenue records did not conferred any title referring Section 35 of the Evidence Act, 1872.

15. The counsel also relied upon the judgment of the Apex Court reported in (2019) 6 SCC 82 in the case of JAGDISH PRASAD PATEL (DEAD) THROUGH LEGAL REPRESENTATIVES AND ANOTHER vs SHIVNATH AND OTHERS wherein also the Apex Court held that the plaintiff required to discharge his burden independent of case of defendant. Passing of declaratory decree where plaintiff did not lead evidence to establish his title, reiterated, impermissible, khata entries are not proof of title but for revenue purpose.

16. The counsel also relied upon the judgment reported in 2000 (2) MH. L. J. 386 in the case of SANJAY vs VIMAL wherein discussed Order 18 Rule 3-A of CPC as directory in nature. The only mandatory provision it incorporates is to the extent of obtaining permission of the Court. The normal rule laid down is that the party wanting to examine, himself should examine first before any witness is examined. This rule can be deviated only with the permission of the Court. Such permission of the Court, it is desirable, should be obtained before any witness is examined, but such is not the mandate. The permission can be obtained even at a later stage. The counsel referring this judgment would vehemently contend that the plaintiff has not been examined before the Trial Court.

17. The counsel also relied upon the judgment reported in (2002) 6 SCC 404 in the case of YADARAO DAJIBA SHRAWANE (DEAD) BY LRS vs NANILAL HARAKCHAND SHAH (DEAD) AND OTHERS wherein the Apex Court discussed with regard to the scope of Section 100 of CPC. In the second appeal, interference with judgment of final Court of fact, when justified, reiterated that if such judgment is based on misinterpretation of documentary evidence or consideration of inadmissible evidence or ignoring material evidence, or on a finding of fact has ignored admissions or concessions made by witnesses or parties, held High Court can interfere in second appeal.

18. Per contra, the learned counsel appearing for the respondents in his arguments would vehemently contend that the arguments canvassed by the appellant’s counsel is not sustainable. The counsel would vehemently contend that the plaintiff, based on the sale deed dated 22.02.1937, claimed the title in respect of the suit schedule property and the same was purchased from Smt. Achamma and both the Courts held in favour of the plaintiff. The counsel would vehemently contend that Ex.P1, P2 and P4 boundaries are same and Ex.D5 boundary not tallies with the suit schedule property. The counsel also would vehemently contend that tax paid receipts are also produced which are evident from the records and the boundaries at Ex.P22 which mainly relied upon by the appellant would not tallies. Ex.P25 is the order passed by the Divisional Commissioner. The plaintiff died in the year 1977 and he was not examined and his son is examined as PW5. The Trial Court as well as the First Appellate Court appreciated both oral and documentary evidence placed on record in a proper perspective and not committed any error in considering the same hence, it does not requires any interference.

19. The counsel in support of his arguments filed the written arguments contending that the appeal is misconceived and devoid of merits and the same is liable to be dismissed. The substantial questions of law are also formulated by the Court based on the submissions of the counsel for the respective parties i.e., whether the civil suit can be disposed off on the basis of the evidence which includes deleting of the chief examination of PW2 to PW4. The second substantial question of law is that whether evidence before the Court in support of the case means individually a particular form of evidence such as documentary, oral testimony, circumstantial and the related. With regard to the substantial questions of law (i) and (ii) are concerned, the counsel would vehemently contend that in support of the case of the plaintiff, PW1 has been examined and he has been cross-examined and particularly, PW5 who is the son of the plaintiff has been examined and PW6 one Ameerjan has also been examined and he has been cross-examined and several documents have been marked in support of the case of the plaintiff. On the other hand, PW2 and PW3 though they were examined in part in support of the case of the plaintiff, they could not turn up for cross-examination. Subsequently, they passed away and hence, their evidence was not considered. PW4 also examined in part and subsequently, he was convicted in a criminal case, due to which, he could not turn up for cross- examined and even his evidence was also not considered. Therefore, the evidences of PW2 to PW4 have not been considered by the Trial Court while decreeing the suit. It is well settle principle of law that witness if not produced for cross- examination, evidence of such witness cannot be considered. The Trial Court was decreed the suit in favour of the plaintiff only in keeping the evidence of PW1, 5 and 6 which was sufficient to prove the plaintiff’s title.

20. Insofar as the question of the form of evidence is concerned, it is submitted that in a suit for declaration and permanent injunction which is civil in nature, the possession and title to the suit schedule property needs to be proved by both oral and documentary evidence and the same is considered by the Trial Court as well as the First Appellate Court and possession and the title to the property was established through Ex.P1 to P27. The defendants miserably failed to prove their ownership over the suit schedule property through adverse possession.

21. The counsel in respect of substantial questions of law (iii) and (iv) are concerned, it is contended that the plaintiff in O.S.No.258/1964 has sought for declaration and permanent injunction under sale deed dated 22.02.1937 – Ex.P1 and the same was executed in favour of the plaintiff by one Smt. Achamma who acquired the same from her predecessors. As per the judgment dated 20.12.2001 passed in O.S.No.258/1964, the Trial Court held that the evidence of PW1, PW5 and PW6 and Ex.P1 to P27 clearly show that the plaintiff is in possession of the suit schedule property and the sale deed dated 22.02.1937 clearly depict the boundaries of the suit schedule property and the same was not challenged by the defendants during the course of the trial. The First Appellate Court also while considering the appeal held that the suit schedule property bearing khata No.831 as stated by PW5 finds support from the tax paid receipts marked at Ex.P12 to P20 and particularly, Ex.P16 to P20 filed by the plaintiff showing his name exclusively. The Court also taken note of TMC endorsement at Ex.P21 which also shows the very same khata No.831/767 with measurement as 125 x 42 feet as stated by PW5. Moreover, as per the sale deed dated 22.08.1901 – Ex.P3, one Sri Rama Jois who is the husband of Achamma from whom the plaintiff derives his title, purchased the suit schedule property from one Ramaswamachar and the boundaries are identical and the same was never disputed by the defendants. The First Appellate Court observed that if plaintiff’s property was different, it could not have found support from such old document.

22. The counsel for the respondents also would vehemently contend that the defendant who was once claiming that the suit schedule property belongs to Venugopalaswamy temple, there is no point for consideration at all. These aspects are considered by the First Appellate Court in paragraph 22 of its judgment. The First Appellate Court further considered that as to how the defendant claimed to have purchased the suit schedule property from Thimmaiah under Ex.D5 when Rama Jois purchased the suit schedule property under Ex.P3 i.e., the sale deed of the year 1901. As regards substantial question of law that the plaintiff lay emphasis one the fact that scope of interference with the finding of fact arrived at by the Trial Court and affirmed by the First Appellate Court is very limited. Merely because another view is possible is not a ground to dislodge the finding of fact arrived at by the Courts below.

23. The counsel in support of his arguments relied upon the judgment reported in (2001) 3 SCC 179 in the case of SANTHOSH HAZARI VS PURUSHOTTAM TIWARI (DECEASED) REP. BY LRS and also the judgment reported in (2006) 5 SCC 545 in the case of HERO VINOTH (MINOR) vs SHESHAMMAL.

24. It is contended that original suit had been pending from 1959 and during this long period, the parties could not survive, due to which, their legal representatives were brought on record and the original documents were lost hence, the plaintiff was permitted to lead secondary evidence and thus produced certified copies of the documents which are marked from Ex.P1 to P26. Ex.P27 is the copy of list of documents filed in Court at Bengaluru. The counsel also would vehemently contend that the Trial Court as well as the First Appellate Court observed that the boundaries as well as the dimensions of the property mentioned in Ex.D5 do not tally with the vendor’s document i.e., the sale deed of the year 1879 at Ex.P22.

25. The Trial Court in paragraph 30 and the First Appellate Court in paragraphs 22 and 23 categorically held that the defendants’ claim is as per Ex.D5 and the same does not tally with the source from which they are claiming the property and the First Appellate Court affirmed that the sale deed of the year 1937 has more evidentiary value compared to the sale deed of the year 1947. Both the Courts have also taken note of the documents produced by the plaintiff before it and also considered the evidence of PW1, 5 and 6.

26. The counsel also relied upon the judgment reported in (1996) 3 SCC 392 in the case of RAMANUJA NAIDU vs V KANNAIAH NAIDU AND ANOTHER as regards the scope of interference by this Court. The concurrent findings of fact arrived at by the Courts below cannot be interfered under a second appeal. The counsel in support of his contention also relied upon the following judgments reported in:

• (1999) 6 SCC 343 in the case of Karnataka Board of Wakfs vs Anjuman-E-Ismail Madris-Un-Niswan;
•  (2005) 12 SCC 270 in the case of Harjith Singh and another vs Amrik Singh and another;
• C.A.NO.2165/2009 DATED 14.02.2020 in the case of C Doddarayanna Reddy (dead) by Lrs and others vs C Jayarama Reddy (dead) by Lrs and others.

27. The counsel also relied upon the substantial question of law No.5 framed by this Court with regard to proving of possession is concerned i.e., Ex.P1 to P27 and the said fact has been considered by both the Courts and relying upon those documents, both the Courts have not committed any error with regard to the possession is concerned. Hence, the present appeal is devoid of merits. The appellants also made an attempt to produce some of the documents along with synopsis, but not filed any application under Order 41 Rule 27 of CPC before this Court without having produced the same before the Trial Court or the First Appellate Court. There are certain rules which have to be followed in regular second appeal and the question of permitting the appellants to produce the same does not arise and the Court also taken note of the fact that suit is of the year 1959 and almost more than half century has been elapsed and the question of considering the additional documents does not arise and prayed this Court to dismiss the second appeal.

28. In reply to the arguments of the counsel for the respondents, the counsel for the appellants has filed written submission in respect of the substantial question of law framed by this Court and contend that the Trial Court has discarded the evidence of PW2 to PW4 while passing the judgment. PW4 through whom the prime document on which the plaintiff relied that is Ex.P2 and P3 whose evidence itself has been discarded, the question of relying upon those documents does not arise. As per Section 68 of the Evidence Act, if the document requires statutory attestation, the attesting witness has to be examined. In the present suit, the evidence of the plaintiff cannot be substituted by PW1 who claims to be the attester of Ex.P1 and he is not aware of the contents of the document to which he attested his signature as a witness. When the plaintiff and the defendants are claiming the title over the suit schedule property from two separate quarters, does it has implication of the deficiency of corroboration through cross-examination of the witnesses, there is totally deficiency of corroboration of oral evidence on the part of the plaintiff and the plaintiff has never stepped into the witness box and the defendants relied upon their source of land as per Ex.P22 itself of the year 1879. Ex.D5, D7 clearly establishes the fact of the eastern boundary. The documents which have been relied upon by the plaintiff that is Ex.P1, P3 and the document at Ex.D5, eastern side boundary is 100 years old government road which was only main road connecting to Doddaballapura to Bengaluru. At Ex.P1, northern side boundary shown as road and hence, discrepancy found in the documents which have been produced has not been taken note of by both the Courts.

29. In reply to the arguments of the counsel for the respondents, the counsel for the appellants would vehemently contend that Ex.P1 is marked through the original plaintiff and he was not subjected for cross-examination and in Ex.P22 at middle portion, description is stated. The counsel further contends that PW1 evidence cannot be considered and the plaintiff also not proved the burden of him since burden is on the plaintiff not on the defendants. Objections raised before the Trial Court regarding production of documents also not considered by both the Courts and the reasons given by the Trial Court is erroneous since 1901 documents and 1937 documents, do not tally with each other and the plaintiff has not proved his title as well as possession and the very document of the year 1879 which relied upon by the defendants is in favour of the defendants but both the Courts have not been considered the said fact.

30. Having considered the grounds urged in the appeal memo and also both oral and documentary evidence placed on record and keeping in view the contentions of the learned counsel for the appellants and the learned counsel for the respondents, this Court has to consider the material on record taking note of substantial question of law framed by this Court while admitting the second appeal. No doubt, the learned counsel for the appellants has filed the synopsis along with some of the documents and not filed any application under Order 41 Rule 27 of CPC to consider those documents and in the absence of seeking permission of this Court to rely upon those documents, the question of considering those documents does not arise. The learned counsel for the respondents also contend that those documents are not necessary for adjudication of the matter.

31. The first substantial question of law framed by this Court is whether civil suit can be disposed of on the basis of the evidence which includes deleting of the chief examination of P.Ws.2, 3 and 4 Having perused the records, it discloses that the plaintiff has examined several witnesses and P.Ws.2, 3 and 4 were examined on behalf of the plaintiff. P.W.2 who was examined in chief speaks with regard to he has seen the plaintiff’s site and the plaintiff purchased it from Achamma and he is an attesting witness to the document and his signature is marked as Ex.P.1(b). But his evidence has not been completed and his evidence was deferred at the request of learned counsel for the plaintiff and later not further examined. Hence, the evidence of P.W.2 is discarded.

32. The other witness is P.W.3. The records discloses that his evidence is not completed and examination was stopped as the document was not received by the Court and his evidence also not considered since his evidence is not complete evidence.

33. P.W.4 is one of the son of the plaintiff and he speaks with regard to his father had purchased the property from Achamma on 22.02.1937. His evidence was also not completed when the other side objected for marking of the documents and the learned counsel took time to produce the case law and deferred and ultimately his evidence is also not completed. When the evidence of P.Ws.2, 3 and 4 are deferred and incomplete, the question of considering those evidence does not arise and deleting of chief examination of P.Ws.2, 3 and 4 will not enure the benefit of those witnesses evidence for consideration of the case. The Courts also not considered the evidence of these witnesses since their evidence is incomplete. The Trial Court considered only the evidence of P.Ws.1, 5 and 6 and the question of disposing of the case on the basis of the evidence which includes deleting of the chief examination of P.Ws.2, 3 and 4 does not arise. Hence, I answer the first substantial question of law accordingly.

34. The second substantial question of law framed by this Court is whether evidence before the Court in support of the case means individually a particular form of evidence such as documentary, oral testimony, circumstantial and the related The third substantial question of law is when the plaintiff and defendant are claiming the title over the property from two separate quarters, does it has implication of the deficiency of corroboration through cross examination of the witnesses The other substantial question of law is whether the defendants proves that the main source of land was in Ex.D5 and whether the Trial Court erred in relying upon the available evidence to come to the finding of decreeing the suit by the Trial Court which is confirmed by the Appellate Court

35. All the substantial questions of law are interconnected and hence the Court has to consider both oral and documentary evidence placed on record with regard to corroboration is concerned. The plaintiff mainly relies upon the evidence of P.W.1 who was doing stamp vending work from 1944-45 to 1950-51. His evidence is that he has seen the suit schedule property and the same originally belonged to Achamma and she was in possession of it and now it is in possession of the plaintiff. The plaintiff had purchased the property under a sale deed Ex.P.1 and he had attested the said document as well as identified Achamma before the Sub-Registrar when she had executed the document and his signature is marked as Ex.P.1(a). It is also his evidence that since two years ago, a shed has been constructed on the southern side of the suit site and door has been provided for it. He was subjected to cross- examination and he is only an attesting witness and he speaks with regard to the possession is concerned. In the cross- examination he admits that the plaintiff told him that a shed has been constructed and he says that he was under the impression that the plaintiff has himself constructed the shed and he did not inform him about that. The place adjacent to the shed is called chatra and also he does not know if that area is purchased by defendant No.1 and he was not present at the time of writing Ex.P.1. He admits that he was present at the time of registration and he cannot say whether the plaintiff gave amount to Achamma. The said Achamma died ten years back and he does not know who was in possession of the site before Achamma was in possession. He also says that Achamma is his relative. The said suit site is a vacant site and in his presence no possession was delivered.

36. Having perused the material on record with regard to the evidence of P.W.1, it is clear that he came to know through Ex.P.1 that Achamma was in possession earlier and the plaintiff was in possession based on Ex.P.1 and his evidence is clear that he was only an attesting witness to the document and not helpful for proving possession.

37. P.W.5 claims that the suit schedule property is a vacant site and measuring 125 ft. x 42 ft. In terms of his evidence, he had given the description of the property as, on the east government road, on the west Mouiddin Sab’s children house and government road, on the north government road, on the south Venugopalaswamy Temple. He also admits that in the year 1901, Rama Jois purchased the property from Ramaswamy S/o Vasudeva. In the year 1937, Shama Rao had purchased the said property from Achamma and from the date of purchase they are in possession. The said property was mortgaged in the year 1948 in favour of Bajaneatti Ranganna and got it released within one year. Ex.P.1 is the sale deed under which his father had purchased the property and Ex.P.2 is the certified copy of Ex.P.1 and the same is marked subject to objections and relies upon other documents of demand extract, assessment extract, encumbrance certificate, demand made by the municipality and so also got marked the document Ex.P.22 under which the defendants also claim the right and the same is also a certified copy marked subject to objections. His evidence is very clear that under which the property was purchased by Govindaiah is on the west of the Temple and he also reiterated the boundary description in terms of Ex.P.22 and also relies upon assessment extract Ex.P.23 and endorsement given by the municipality in respect of the boundaries in terms of Ex.P.24. He admits that in the year 1956, a road was formed in their land to go to Venkataramanaswamy Temple. This witness was subjected to cross-examination.

38. In the cross-examination, he admits that when the property was purchased in the year 1901, he cannot say who was the owner of the said property and he cannot tell what are all the documents seen at the time of purchase by his father, since his father had purchased the property and he was a small boy. He did not see a old house and a well in the suit schedule property. He had seen the property in the year 1942 and he cannot tell in which year the khatha was transferred in the name of his father. The khatha was transferred from the name of Achamma and he had seen the document. He cannot tell in which year khatha was transferred in the name of Achamma. He admits that on the south there is Venugopalaswamy Temple wall. He admits that his father died in the year 1977 and thereafter he has not given any application for transfer of khatha. It is suggested that there is a shed in the suit property and the same was denied. He admits that on the east there is a Ashwathakatte and on the west there is Mouiddin Sab’s house. In terms of his evidence though he deposes that on the east there is a government road, but now he admits that on the east there is a Ashwathakatte. The suggestion of the defendant that on the west there is house of Mouiddin Sab and the same tallies with the recitals of the documents. He admits that he came to know that the suit schedule property was mentioned in their sale deed in the year 1978. He admits that in the document of the year 1879, the property which was sold by Govindaiah, it is mentioned that Temple is on the west and came to know about the same when the defendants have broken the compound wall. He claims that in the year 1947, municipality has given licence in favour of his father. It is suggested that the property was not standing in the name of Achamma and the same was denied. A suggestion was made that the property tax was exempted and they paid the tax in respect of different properties and claiming the same and the same was denied. He admits that an appeal is filed in Civil Judge Court and at that time, khatha was standing in the name of his father. He admits the mortgage made in favour of Bajaneatti Rangappa for Rs.400/-. It is suggested that in the year 1947, defendant No.1 had purchased the suit schedule property from G. Thimmaiah and the same was denied.

39. P.W.6 claims that the suit schedule property is a vacant site. Now the plaintiff’s children are in possession. In the cross-examination he admits that he cannot tell how Shama Rao got the property. It is suggested that the suit schedule property is not vacant and the same was denied.

40. D.W.1 deposes that defendant No.1 is his father and the plaintiffs are his uncles and the suit schedule property is near Kerebagilu Venugoplaswamy Temple, but he claims that the said Temple belongs to G. Thimmaiah and they have given the property 50 years back to them. The Temple made use of the same as Tulsi thota and Tulsi plants are used for Temple pooja. He says that on the west of the suit schedule property, there was property of G.Thimmaiah and the said Thimmaiah sold the western portion of the property in favour of Mouiddin Sab. He claims that the suit schedule property is the ancestral property of Thimmaiah and Thimmaiah sold the suit schedule property in the year 1947 in favour of his father and till date Thimmaiah was in possession. He claims that in the year 1947, he had purchased the suit schedule property from Thimmaiah and the suit schedule property is nowhere concerned to plaintiff Nos.2 to 6 and claims title in respect of the said property since the property belongs to Govindaiah in the year 1879 and Govindaiah purchased the same from Lakshmana Bhat. This witness was subjected to cross-examination.

41. In the cross-examination, he admits that his father and his brothers got partitioned in the year 1934 and once again partition was taken place in the year 1949 and he has not produced the partition deed before the Court. He admits that when the property was purchased, he was not born and also he cannot tell how Thimmaiah got the said property. But he claims that the same was ancestral property. He admits that Satyanarayana Das has filed a case in respect of suit schedule property against H.V. Murthy. He also admits that in that case, they filed an application to make them as party. But he claims that Satyanarayana Das had filed an application for Temple and he also says that he cannot say about the selling of the property in the year 1901-02 by Ramaswamachari in favour of Joshi and also he does not know about the sale made on 22.02.1937 in favour of the plaintiff Shama Rao. He admits that when the case was filed in the year 1959, the same was standing in the name of Shama Rao. He claims that prior to that, it was standing in the name of Thimmaiah. He admits that he has not produced any documents to show the same. He admits that when Shama Rao filed a suit, the same was dismissed and thereafter got transferred the khatha to his name. He admits that when partition was taken place in 1949, they did not include the suit schedule property in the said partition, but he claims that the said property belongs to the Temple. He admits that Satyanarayana Das had filed the case against his father in the Divisional Commissioner Court and he also knows the decision made in that case. It is suggested that when they purchased the property in the year 1947, it is mentioned that the said property was standing in the west of the Venugopalaswamy Temple and the same was denied. He claims that for exempting the property tax from 1947 to 1990, they have produced the documents to that effect and the municipality has not given any notice to pay the tax. He did not verify when the suit was filed whether Shayam Rao had purchased the property or not.

42. The other witness is D.W.2 and he speaks about the possession with the defendants and the site is a vacant site. The defendant No.1 has grown the flower plants in the said property, which is used for Temple and he gives evidence in corroboration with the evidence of D.W.1. He admits that he cannot tell when defendant No.1 had purchased the property, but he claims that they are in possession from 40 years. He admits that Satyanarayana Das had filed the case against defendant No.1. He admits that his father was working as an Archak and defendant No.1 used to call him for pooja and also he did not see the municipality records of the suit schedule property.

43. D.W.3 also speaks with regard to purchasing of the property by defendant No.1 in the year 1947 and the property was in his possession. In the cross-examination, he admits that the said Venkataramanappa showed the sale deed, but he had not read the same. He cannot say the measurement and also he admits that no documents to show that the said Venkataramanappa is in possession, but he claims that he has been in possession.

44. Having re-assessed both oral and documentary evidence placed on record and keeping in view the substantial questions of law that when the plaintiff and the defendant are claiming the title over the property from two separate quarters, does it has implication of the deficiency of corroboration through cross-examination of the witnesses. Having perused these witnesses evidence with regard to the corroboration is concerned, particularly considering the boundaries which have been mentioned in the document and also the title which they have claimed, it is very clear that the plaintiff is claiming the right through the document of 1901 sale deed and also 1937 document and the same has been relied upon by the Trial Court and the Appellate Court. The defendants claim their title with regard to property based on the document Ex.P.22 filed by the plaintiff, which has been marked. The learned counsel for the appellants also produced the chart before this Court and their contention is that the property originally belonged to Lakshmana Bhat and the same was sold in favour of Govindaiah who had purchased the same in the year 1879. The appellants also claims the same based on the sale deed of the year 1947, but the suit schedule property is mentioned in terms of the document of 1901 sale deed as well as 1937. Both the descriptions mentioned in the document of the year 1901 and 1937 corroborate to the suit schedule property, which has been mentioned in both the documents.

45. On the other hand, the defendants/appellants claims different title of the document of the year 1879, which is mentioned as Ex.P.22 and contend that the vendor of the plaintiff had no title to the suit schedule property. On the other hand, Thimmaiah had all the title to the suit schedule property. Having considered the said document of Ex.P.22, the defendants/appellants relies upon Ex.D.5 under which they claim the title and the same is not in corollary to the suit schedule property. It is the specific case of the plaintiff before the Trial Court that the property which they are claiming and also the property purchased by defendant No.1 is on the western side of the suit schedule property and the same is also admitted by D.W.1 in his cross-examination. The claim made by the appellants/defendants not tallies with the boundaries which have been mentioned in the suit schedule property and the same has been taken note of by the Trial Court while answering the issues, particularly in answering issue No.1 having taken note of the evidence of P.W.5, who is the son of the plaintiff Shama Rao. The Trial Court in paragraph No.17 has taken note of the plaintiff has agitated his right since 1937-38 to the Town Municipal Commissioner by G. Balaram and notice was also issued by the TMC dated 23.04.1938, licence granted by the Town Municipal on 08.02.1939, mahazar copy dated 25.09.1944 and petition given by G. Thimmaiah to TMC, Doddaballapura by showing NOC to change khatha, resolution copy passed by TMC dated 24.01.1939 and all these documents were taken note of and these documents are immediately after purchasing the property by the plaintiff and the plaintiff assessment extract for the year 1947-48 to 1956-57.

46. The Trial Court also taken note of that during the life time of his father in the year 1901, 1935 they measured the suit property and no doubt, the answers elicited from the mouth of P.W.5 is that he was a young boy and he was not having personal knowledge. But the documents are taken note of that immediately after purchase of the property, all the documents stands in the name of the plaintiff’s vendor as well as plaintiff’s father. Though the defendants contend that there was an exemption granted by the Revenue Department to pay the tax, no documents are produced before the Court to that effect. But they contend that they were in possession of the property. The Trial Court also taken note of in paragraph No.21 with regard to the description mentioned in the suit. The suit property is bounded by the east Temple garden land as per the document of the year 1879, which was purchased by Govindaiah from Lakshman Bhat and west by Thimmaiah’s property, north by government road and south by galli. The temple is bounded by east government road, west old house vatara, north by temple suit property road. It is also important to note that the suit property bearing khatha No.831 measures east to west 125 ft. north to south 45 ft. It is important to note that the claim of the defendants is that the temple property bears khatha No.830 and both are clear that both are adjacent property and khatha claimed by the plaintiff is also bearing khatha No.831. This fact is also taken note of by the Trial Court while answering issue No.1. The evidence of P.Ws.1, 5 and 6 and Exs.P.1 to 27 clearly shows that the plaintiff is in possession and the sale deed Ex.P.1 shows the boundaries of the suit property and the same is not challenged by the other side in any Court with regard to boundary description mentioned in Ex.P.1. It is not in dispute that Ex.P.5 is an order passed by the Divisional Commissioner ordering to maintain status quo. When such materials are considered by the Trial Court and also taken note of the claim made by the defendants and the answers elicited from the mouth of defendants with regard to his claim of title and hence I do not find any error committed by the Trial Court in answering the issue No.1 as affirmative considering the title and boundaries mentioned in the document of the year 1901 and 1937 under which he claims title in respect of the suit schedule property.

47. Having perused the comparative chart produced by the learned counsel for the appellants and also the document of Ex.P.22 relied upon by the learned counsel for the defendants of the year 1879, it is mentioned as near Kere Bagilu, wherein on the north, it is shown as government property and no doubt in the title deed document of the plaintiff also it is mentioned as government property. But on the south, it is shown as Gollara Krishnaiah Chatra. In the document of 1879, in the south it is shown as government road. In the document of the year 1937, on the north, it is shown as road formed in the property and south also same description is given and the suit also shown as road on the north and southern side shown as Gollara Krishnaiah Chatra in all the documents of 1909 and 1937 and the suit schedule property tallies with each other and the same is also observed by the First Appellate Court in the appeal while answering the point for consideration in paragraph No.18 of the judgment. The First Appellate Court also taken note of the schedule property presently bearing khatha No.831 as suggested to P.W.5 circumstantially finds support from the tax paid receipts marked at Exs.P.12 to 20, particularly Exs.P.16 and 20 filed by the plaintiff showing his name exclusively. The First Appellate Court also taken note of the endorsement Ex.P.21 also shows khatha No.831 with measurement of 125 ft x 45 ft. The measurement and the boundary mentioned in the document also tallies. Ex.P.3 description also taken note of in paragraph No.19 and also taken note of the latest tax assessment register extract Ex.P.23 for the year 1994 to 1999 jointly standing in the names of his sons Y.S.Lakshmana Rao, Subbanna and Krishnaiah.

48. In the cross-examination of P.W.5, nothing is elicited with regard to the description of the property is concerned and the same is also discussed in paragraph No.20. The contention of the defendants is that the same is tulsi thota and admittedly all the witnesses admitted that the same is a vacant site and defendant No.1 is not justified in taking the claim in respect of the said property. The First Appellate Court also taken note of the specific case of the plaintiff that on the south of the suit schedule property, Venugopalaswamy temple is in existence and the said suggestions are made to D.W.1 and he denied Ex.D.3 assessment register extract is of a different property bearing No.767/680 with material alterations since the defendants claim that the suit schedule property belongs to his ownership. Both the defendants and the plaintiff claim their title through different parties. The Appellate Court also taken note of Exs.D.1 to 3 and those documents not supports the municipality documents. The Appellate Court in paragraph No.24 taken note of the answers elicited from the mouth of D.W.1 when the document of Ex.P.3 and description tallies with his title document of 1901, still the defendant claims that he has purchased the suit schedule property in the year 1947 under Ex.D.5, but the plaintiff’s sale deed is of the year 1937 and the boundaries clearly reflect with each other in respect of the claim of the plaintiff. The First Appellate Court also taken note that D.W.1 also has expressed ignorance about relevant suggestions made to him in the cross- examination in respect of Ex.D.5, particularly with regard to the boundaries is concerned as mentioned in Ex.P.22 not tallies with Ex.D.5 and comes to the conclusion that the plaintiff has proved his ownership with possession having re-assessed both oral and documentary evidence placed on record. The First Appellate Court having re-assessed both oral and documentary evidence placed on record, not committed any error and hence the substantial question of law framed by this Court with regard to the evidence available on record and also the claim made by the defendants and both oral and documentary evidence placed on record and also claiming title over the property from two separate quarters, no such any implication of deficiency of corroboration through cross-examination of witness considering the evidence of P.Ws.1, 5 and 6 and the defendants have not proved the main source of land as claimed in Ex.D.5 in respect of suit schedule property is concerned. Both the Courts have not committed any error in relying upon the evidence available on record and finding of the decreeing of the suit by the Trial Court and the First Appellate Court is based on both oral and documentary evidence placed on record. The case of the appellants cannot be accepted since the appellants failed to prove the case by relying upon Ex.P.22 and Ex.D.5 and particularly Ex.D.5 does not disclose the property number and boundaries also not as claimed by the plaintiff in the suit.

49. The learned counsel for the appellants relied upon the judgment of the Apex Court in the case of Vasavi Coop. Housing Society Ltd. (supra), wherein discussed with regard to Sections 34 and 5 of the Specific Relief Act. No doubt, the burden is on the plaintiff to establish his case, but the plaintiff has relied upon the title deed of 1901 and 1937 document. The learned counsel also relied upon the judgment of the Apex Court in the case of Jagdish Prasad Patel (supra), wherein also the Apex Court held that the plaintiff is required to discharge his burden independent of case of the defendant. No doubt, the plaintiff has to succeed on his own and not on the weakness of the defendants. Both the judgments will not come to the aid of the appellants considering both oral and documentary evidence placed on record. The learned counsel also relied upon the judgment in the case of Sanjay (supra), wherein discussion was made with regard to Order 18 Rule 3A of CPC, but the fact is that the plaintiff examined P.W.4, but his evidence has not been completed. No doubt, P.W.1 has been examined earlier, but he is only an attesting witness to the document of title deed. The evidence of P.W.5 is very clear with regard to claiming of the title based on the documentary evidence on record.

50. The learned counsel for the appellants also relied upon the judgment of the Apex Court in the case of Yadarao Dajiba Shrawane (supra), wherein the Apex Court discussed the scope of Section 100 of CPC with regard to justifying of interference with the judgment of final Court of fact. If judgment is based on misinterpretation of documentary evidence of consideration of inadmissible evidence or ignoring the material evidence, the same is settled law that if any perversity is found in appreciating the evidence on record, the Court can exercise the power under Section 100 of CPC. Such circumstances is not warranted in the case on hand. Hence, I do not find any error committed by both the Courts in appreciating both oral and documentary evidence placed on record and hence, I answer substantial questions of law framed by this Court accordingly.

51. In view of the discussion made above, I pass the following:

ORDER

The regular second appeal is dismissed.