A.V. Sreenivasa Reddy, J.
1. These two appeals arise from the judgment and decree dated 28th November, 2000 passed by the Principal Civil Judge (Senior Division), Hubli in R.A, No. 69 of 2000 setting aside the judgment and decree passed in O.S. No. 378 of 1992, dated 24-3-2000 on the file of the III Additional Civil Judge (Junior Division), Hubli.
2. The appellant and respondent herein filed suits against each other for the relief of permanent injunction. The suit schedule property in both the suits is a site forming part of R.S. No. 53 measuring 3 acres and 29 guntas of Mariyan Timmasagar. The Schedule given in the suit filed by the appellant-Kyarakatti in O.S. No. 449 of 1992 is CTS No. 8A1A2 + 8A1B/2 in CST Ward No. III, Hubli City bounded on the west by road, east by R.S. No. 52, north by CTS No. 8A1A2 + 8E + 8A1B/1 and to the south by CTS No. 8A1A1A/2. The suit schedule property as mentioned in O.S. No. 378 of 1992 filed by the respondent-Gomadi is the site measuring east-west 72 feet 6 inches and north-south 57 feet 6 inches bounded on the east by R.S. No. 52, on the west by 20 feet road, on the north by open site belonging to Jafarsab Sethsanadi and on the south by open site belonging to late Keshava Gidada Hubballi. The exact measurement of the suit schedule site with reference to the boundaries has not been given by the appellant who merely stated in his plaint that it measured 333 sq. yards. In both the suits it was claimed by the respective plaintiff that he had purchased the site from the previous owner and has been in possession and that the possession is being interfered with by the other side.
3. At the trial both the suits were clubbed together and common evidence was recorded. The Trial Court formulated the following issues for its consideration:
Issues in O.S. No. 378 of 1992:
1. Whether the plaintiff proves that he has been in lawful possession of suit property?
2. Whether the plaintiff proves that there has been an illegal interference by the defendant with peaceful possession and enjoyment of the suit property?
3. Whether the defendants proves that suit property is not in existence?
4. Whether the plaintiff is entitled for permanent injunction as sought for?
5. What order or decree
Issues in O.S449 of 1992: 449 of 1992:
1. Whether the plaintiff proves that he is in lawful possession of the suit property as on the date of filing of the suit?
2. Whether he further proves that the defendants made interference in the same?
3. Whether the plaintiff is entitled to the relief sought for?
4. What decree or order?
4. The Trial Court on the findings recorded by it on the above issues, decreed O.S. No. 449 of 1992 and dismissed O.S. No, 378 of 1992. Aggrieved by the said judgment and decree the respondent herein went in appeal to the Court below by filing two appeals, one against the dismissal of his suit and another against the decreeing of the suit of the respondent.
5. The Court below formulated the following issues as arising for its consideration:
1. Whether the properties involved in both the suits are one and the same?
2. If so, who among Gomadi and Kyarakatti is in lawful possession of the said property?
3. Who has caused obstruction to whom?
4. What order?
6. The Court below found that the suit schedule property involved in both the suits is one and the same and that Gomadi is in lawful possession of the suit property. On these findings the Court below set aside the judgment and decree of the Trial Court and allowed the appeals. Hence, the present appeals by the aggrieved appellant.
7. I have heard the learned Counsels for both sides. On the issue of identity of the suit properties, both the learned Counsels submitted that two properties are involved and not one property as has been held by the Court below.
8. For the sake of convenience in the course of this judgment I would be referring to the parties by their name.
9. The substantial questions of law that arise for consideration in these appeals are:
(1) Whether the findings of the Court below are vitiated on account of application of wrong tests while determining the question of fact of ownership arising for its consideration?
(2) Whether the sale in favour of Gomadi is hit by Section 52 of the Transfer of Property Act?
10. Both suits were filed for decree of permanent injunction. The relief in both suits was sought on the ground that the plaintiffs are the owners of their respective sites. In order to be entitled to the relief of perpetual injunction on the ground of ownership of the site, it was for the plaintiff to establish his right of ownership and the fact of its violation by the other party.
11. In deciding the fact as to who is in lawful possession of the property which is vital in a suit for permanent injunction, the Court below held in favour of Gomadi relying on the description of the property given by him and the title deeds produced by him. The plaintiff-Gomadi has produced the sale deed, Ex. P. 11, executed by original owner Jafarasab Setasanadi on 1-6-1960 in favour of Ningappa Koppad and Ex. P. 12, the sale deed executed by Ningappa Koppad in favour of Gomadi. The sale in favour of Ningappa Koppad by Jafarasab Setasanadi being prior to the coming into force of the Karaataka Village Offices Abolition Act, 1961 it is hit by Section 5 of the Bombay Hereditary Offices Act. Under Section 5 of the Bombay Hereditary Offices Act the watandar could not have sold his interest in 'watan' land beyond the period of his lifetime and any violation of this condition would render such transfer void. The creation of permanent leasehold right in favour of Ningappa Koppad by watandar Jafarasab and the in turn alienation of this right by Ningappa Koppad in favour of plaintiff, both being hit by Section 5 of the Bombay Hereditary Offices Act, the Court below was not justified in coming to the conclusion on the basis of Exs. P. 11 and P. 12 that Gomadi was in lawful possession of the suit land. However, subsequent to the coming into force of the Village Offices Abolition Act, 1961, the land was regranted in favour of Jafarasab and subsequent to this re-grant Jafarasab had taken the permission from the Deputy Commissioner to alienate the land by relaxing the non-alienation condition. It is well-settled law that an alienee of a service inam land does not acquire any title to such land if the alienation had taken place prior to the coming into force of the Village Offices Abolition Act. But the case of Gomadi is on a different footing when it is based on Ex. P. 13, the sale deed executed by Jafarasab Setasanadi on 23-2-1970 under which Gomadi purchased the right, title and interest of Jafarasab in the suit land after its regrant. This sale has taken place after regrant in favour of Jafarasab and the transfer has been effected after obtaining permission from the Deputy Commissioner. The provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 are also not applicable to the transfer effected on 23-2-1970 as the said Act was amended by Act 1 of 1963 whereby under Section 4 of the Amended Act any transaction including transfer of land entered or effected before the commencement of the Act and in contravention of the provisions of the principal Act shall, notwithstanding anything contained in the principal Act, be not deemed to be void merely on the ground of such contravention. Therefore, there was absolutely no impediment for transfer of the right, title and interest in the suit property by Jafarasab after its regrant. Insofar as the identity of the suit property is concerned the Court below has relied on the boundaries given in Ex. P. 13. In order to ascertain the factum of possession the Court below relying on the principle of law that in case of vacant site possession follows title proceeded to hold that Gomadi is in lawful possession of the suit site. The finding recorded by the Court below placing reliance on Ex. P. 13 that Gomadi has established his title over the suit property and further the suit property being a site possession must be deemed to be with Gomadi and not with Kyarakatti, cannot be said to be vitiated by reason of application of wrong tests for determining the questions of fact that arose for its consideration. Therefore, the finding of the Court below requires to be upheld as it is not vitiated by application of wrong tests while determining the question of fact of ownership.
12. Point No. 2.--It is submitted by learned Counsel Mr. S.V. Shas-try, that the sale in favour of Gomadi is hit by Section 52 of the Transfer of Property Act as in a suit in S.A. No. 29 of 1963 between Jafarasab and his cousin Davalsab Sethsanadi a compromise was entered into and under the compromise Jafarasab was liable to give part of R.S. No. 53 but as he failed to surrender part of Sy. No. 53, Execution Case No. 234 of 1969 was filed and in that execution case part of CTS No.
8A/1A/1A
_________
1A/1A
8A/1A/1A
_________
1A/1A
8A1A + 8E + 8A1B
_________________
2 8A/1A/1A
_________
1A/1A
52
13. Insofar as the suit filed by Kyarakatti, the same was dismissed by the Court below on coming to the conclusion that Kyarakatti failed to establish his title to the suit property. The Court below found that Kyarakatti has not proved his case that he is in lawful possession of the suit property after purchase from Davalsab. The sale deed in respect of the suit property was not produced by Kyarakatti. A Xerox copy of the sale deed was sought to be produced as evidence but was rightly discarded by the Court below from consideration. The reason given by Kyarakatti that the sale deed was deposited with the Bank for obtaining loan and therefore he could not produce it does not appear to be a valid reason. Kyarakatti could have easily obtained a certified copy of the sale deed and produced the same in Court to establish his ownership over the suit land or at least could have summoned the same to the Court. The observation of the Court below that the Trial Court erred in entirely depending on CTS extract, tax paid receipt, maps and licence for coming to the conclusion that Kyarakatti is in possession of the suit site cannot be found fault with as it is a well-known principle of law that revenue records are not documents of title and they on their own cannot establish title to any property. The suit of Kyarakatti based as it is entirely on the ground of he being the rightful owner of the site, in the absence of establishment of his right, title and interest over the property it must be held that even if it is shown that he is in possession of the suit property the same cannot be held to be lawful possession. It cannot be lost sight of the fact that Kyarakatti does not claim the suit property in any other capacity than that of a owner and when such claim is not established, he would not be entitled to any relief in a suit for permanent injunction. Therefore, no fault could be found with the order of the Court below in dismissing the suit filed by Kyarakatti.
14. Learned Counsel for appellant relied on Kulwant Kaur v. Gurdial Singh Mann (dead) by L.Rs and Ors., : [2001]2SCR525 Therein the Apex Court held that where a finding stands vitiated on application of wrong test and the finding is a result of assumptions and conjectures and resultantly there is an element of perversity, the High Court will be within its jurisdiction to deal with the issue. The decision is of no aid to the appellant as I have found on consideration of the judgment passed by the Court below that there is no element of perversity in it. The principle laid down in the decision in Noorulla Amin Musuba and Ors.v. Chandru Sheniyar Naik, : ILR1996KAR2693 is to the effect that ownership of the land is not irrelevant in a suit for injunction. In deciding the issue of permanent injunction this Court has also duly considered the question of ownership. The factum of ownership is indeed relevant when the parties rest their case of lawful possession on the basis of their claim to ownership of the lands. The principle laid down in Ram Prasad v. Hari Narain and Ors., to the effect that the power of attorney holder is not entitled to appear as witness for party appointing him power of attorney holder is irrelevant in the facts and circumstances of the present case as the power of attorney holder has been examined in the case not in his capacity as such but as the son of the plaintiff who had knowledge of all the relevant facts and circumstances of the case and his examination was necessitated on account of the fact that the plaintiff was indisposed and was not in a position to attend the Court and depose as a witness. There can be no dispute about the correctness of the principle in Sathyam alias Ramaiah and Ors. v. Karnataka Milk Federation Co-operative Limited, ILR 1999 Kar. 301 to the effect that a trespasser who is in settled possession cannot be thrown away except in due course of law because such a trespasser is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him. This decision also would not go to the aid of the appellant because it has been shown by evidence, both oral and documentary, that the appellant is not in possession of the suit schedule property claimed by the respondent.
15. In the result, for the reasons stated above, both the appeals fail and they are, accordingly, dismissed