JANAKI v. APPID SOUZA — 1998 DIGILAW 178 (KAR)

M. B. VISHWANATH, J. ( 1 ) THIS is a second appeal filed under Section 100 of the C. P. C. ( 2 ) THE appellant is the plaintiff and the respondents are the defendants. ( 3 ) THE plaintiff filed the suit in O. S. No. 624 of 1980 before the principal Munsiff, Mangalore, for permanent injunction restraining the defendants from interfering with the plaintiffs peaceful possession of the suit property measuring 4 acres 10 cents in S. No. 108/8-A situated in Konaje Village in Mangalore Taluk. The plaintiff subsequently amended the plaint praying for possession of the eastern portion of the plaint schedule property, if the Court were to come to the conclusion that the plaintiff was not in possession. ( 4 ) THE Trial Court decreed the plaintiffs suit by its judgment dated 30-6-1986. ( 5 ) THE defendants preferred appeal in R. A. No. 92 of 1986 before the civil Judge, Mangalore. The learned First Appellate Judge, by his judgment dated 17-12-1991, allowed the appeal and dismissed the plaintiffs suit. ( 6 ) THE plaintiff has preferred the present second appeal. ( 7 ) THE sum and substance of the plaintiffs case is that she was granted 4 acres 10 cents (suit schedule land) under Saguvali Chit dated 23-8-1979 issued in favour of the plaintiff. The grant has been regularised. The further case of the plaintiff is that the third defendant has encroached to the extent of 91 cents out of the suit land measuring 4 acres 10 cents. Hence, the suit. ( 8 ) THE case of the defendants is that S. No. 108/8-A consists, of very vast area of land and the suit property measuring 4 acres 10 cents is a portion of S. No. 108 (S. No. 108/8-A ). The further case of the defendants is that they are in possession of 91 cents in the said survey number and the plaintiff has absolutely no right, title or interest over this 91 cents. The. defendants' case is that they have nothing to do with land other than the land measuring 91 cents which is in their possession. ( 9 ) FROM the pleadings it is clear that the controversy relates to 91 cents out of the suit area measuring 4 acres 10 cents in S. No. 108/8-A. ( 10 ) AS I have already stated, the Trial Court decreed the plaintiffs suit. ( 9 ) FROM the pleadings it is clear that the controversy relates to 91 cents out of the suit area measuring 4 acres 10 cents in S. No. 108/8-A. ( 10 ) AS I have already stated, the Trial Court decreed the plaintiffs suit. The defendants' appeal was allowed by the First Appellate Judge. The plaintiff has preferred the present second appeal. ( 11 ) ). At the time of admission, the following substantial question of law has been framed by this Court: whether the lower Appellate Court was justified in re-appreciating the evidence on record and giving its own independent conclusions discarding the evidence and interpreting the documents of title, Exs. P-1 and P-2 as inconsequential ignoring the weight of the evidence on record? ( 12 ) IT is contended by the learned Counsel for the respondents-defendants that there is dispute regarding the identity of the property. The plaintiff has claimed the eastern portion of the suit property which she says is in possession of the defendants. It is true that the plaintiff has not given the extent. The plaintiff has not stated that the portion she claims measures 91 cents. It has been suggested to the plaintiffs witness govinda (P. W. 2) that the defendants are in possession of the portion of the suit property since 1966-67 and the defendants are now in possession of about half an acre in the suit property. The third defendant (D. W. 1) has stated in his evidence that they have occupied a portion of the suit property because they were going to work in the village in which the suit property is situated. In Paragraph 11 of the written statement, the defendants have stated that the area of the said plot is a little over 91 cents. There is no dispute, in my opinion, regarding the identity of the property. ( 13 ) MORE importantly, there is doubt regarding the identity of the property has not been taken up by the defendants in the written statement nor is there any issue whether 91 cents forms part of the suit property measuring 4 acres 10 cents or is different. P. W. 1-Devappa is the son of the plaintiff. P. W. 2-Govinda is the plaintiffs witness. P. W. 1-Devappa is the son of the plaintiff. P. W. 2-Govinda is the plaintiffs witness. No suggestion has been made to these two witnesses that there is dispute regarding the identity or that the property claimed by the plaintiff is different from the portion in possession of the defendants. A plea not taken up before the Trial Court cannot be permitted to be taken up before this Court in an appeal under Section 100, C. P. C. ( 14 ) THE defendants admit that they are in possession of 91 cents. But they have not stated what right they have got to be in possession of 91 cents. The First Appellate Court has stated in its judgment that there is nothing to show that prior to grant under Saguvali Chit Ex. P-1 dated 23-8-1979 the plaintiff was in possession. Whether the plaintiff was in possession before the 'issue of Saguvali Chit Ex. P-l or not is irrelevant. The Saguvali Chit Ex. P-l clearly shows that the plaintiff has been granted the suit property measuring 4 acres 10 cents by the revenue authorities (Tahasildar ). Ex. P-3 is the notice issued to the plaintiff to pay the upset price in pursuance of Ex. P-l. ( 15 ) EVEN otherwise, the proceedings of the Tahsildar as per Ex. P-2 made on 18-6-1979, even prior to the Saguvali Chit dated 23-8-1979, clearly show that the plaintiff was in possession of the entire suit land unauthorisedly. ( 16 ) IT is because the plaintiff was in unauthorised occupation, she has been granted the Saguvali Chit Ex. P-l. The learned appellate Judge has ignored the unimpeachable documents Exs. P-l and P-2. ( 17 ) THE learned Counsel for the respondents-defendants set store by ex. D-4. Ex. D-4 is a certified copy of the notice dated 27-3-1981 issued by the Tahasildar to the plaintiff intimating the plaintiff that there is some discrepancy in the area of the land given to the plaintiff and so some rectification is required regarding the extent. It is argued by the learned Counsel for the respondents-defendants that in view of Ex. D-4, it should be presumed that the grant under Ex. P-l to the plaintiff should be deemed to have been cancelled. Nobody has been examined to prove the point that the grant of the land to the plaintiff has been cancelled. It is argued by the learned Counsel for the respondents-defendants that in view of Ex. D-4, it should be presumed that the grant under Ex. P-l to the plaintiff should be deemed to have been cancelled. Nobody has been examined to prove the point that the grant of the land to the plaintiff has been cancelled. There is no evidence whether the notice as per Ex. D-4 was served on the plaintiff and whether further proceedings did take place. The defendants have not examined anybody from the Tahasildar's office nor have they produced any other documents to show that the grant as per Ex. P-l was cancelled. In the absence of convincing evidence Ex. D-4 does not turn the tables on the plaintiff. ( 18 ) THE case of the defendants is that the plaintiff is not in possession of the entire suit extent. This means the defendants admit that the plaintiff is in possession of some portion of the suit property. They feebly claim that they have been granted land in the suit survey number. But they have not produced any material to show that any grant was made in their favour. The learned appellate Judge has made out a new case for the defendants in holding that the Court is concerned with the extent of land which was in possession of the plaintiff in unauthorised cultivation. The learned First Appellate Judge says that none of the documents show that the plaintiff has been put in possession of the land to the extent mentioned in Ex. P-l. In fact, it is not the case of the defendants that the plaintiff was not put in possession in pursuance of the Saguvali Chit Ex. P-l. The First appellate Judge says in his judgment that in matters of this nature, the grant must necessarily be accompanied with a sketch prepared by the competent person locating the extent of the land. He does not say under what provision of law this is required when it is abundantly clear from ex. P-2 that the plaintiff was in unauthorised possession of the suit property. Anyway the plaintiff has produced the sketch Ex. P-8. ( 19 ) EX. P-8, sketch prepared by the concerned authorities, bears the stamp of truth. There is presumption under Section 114 of the Evidence act that the official acts have been regularly performed. P-2 that the plaintiff was in unauthorised possession of the suit property. Anyway the plaintiff has produced the sketch Ex. P-8. ( 19 ) EX. P-8, sketch prepared by the concerned authorities, bears the stamp of truth. There is presumption under Section 114 of the Evidence act that the official acts have been regularly performed. The First Appellate judge says that this is written on a white paper and there is no reference in this document as to which the proceeding relates. Thus he has wrongly rejected Ex. P-8 and has come to the conclusion in paragraph 8, towards the end, that there is no material to show the location of the suit land measuring 4 acres 10 cents granted in favour of the plaintiff. It is obvious that he has come to the conclusion by ignoring the saguvali Chit Ex. P-1 which clearly sets out the boundaries and the extent. He has also ignored the proceedings of the Tahasildar as per Ex. P-2 which says that the plaintiff was in unauthorised possession even before the grant. The reasoning of the First Appellate Ludge is perverse. ( 20 ) THE major portion of the judgment of the First Appellate Judge relates to the identity of the property when that was not in issue. ( 21 ) THE First Appellate Judge has ignored the material documents produced by the plaintiff and has blown out of proportion the notice Ex. D-4 issued to the plaintiff. He has thrown the burden on the plaintiff to show what happened in pursuance of Ex. D-4. The learned First Appellate judge has relied on the darkasth application Ex. D-5, Ex. D-6 Form no. 1 application made for grant of land by the first defendant, Ex. D-7 report of the revenue inspector, Ex. D-8 covering letter and Ex. D-9 Eye sketch. All these documents show at best for the defendants that they have been trying to get sanction of land from the Tahasildar. But there is absolutely nothing to show that they have been granted any land. Question which land was granted to the defendants does not, therefore, arise. ( 22 ) TO recapitulate, the learned First Appellate Judge, unlike the trial Judge, has chucked out lock, stock and barrel the unimpeachable documents produced by the plaintiff and has clutched at straws to decide in favour of the defendants. Question which land was granted to the defendants does not, therefore, arise. ( 22 ) TO recapitulate, the learned First Appellate Judge, unlike the trial Judge, has chucked out lock, stock and barrel the unimpeachable documents produced by the plaintiff and has clutched at straws to decide in favour of the defendants. ( 23 ) IT has been laid down by the Supreme Court in Jagdish Singh v natthu Singh , that even if there are concurrent findings of the Courts below and if those findings are vitiated by non-consideration of relevant evidence or by essentially wrong approach, the High Court is not precluded from recording proper findings. The Supreme Court was concerned with concurrent findings. In the instant case, the findings are divergent. This authority of the Supreme Court applies with greater force to the facts of the present case. ( 24 ) THE learned Counsel for the respondents-defendants relied on some authorities which lay down that the plaintiff can succeed only on the strength of his own case and not on the weakness of the defendant's case. I am aware of this position in law only too well. ( 25 ) I should have stated earlier that the learned Counsel for the respondents-defendants argued that in view of Ex. D-4, the burden was on the appellant-plaintiff to show that the grant under the Saguvali Chit ex. P-1 had not been cancelled. The plaintiff cannot be called upon to prove the negative when her case is that she was granted the land under saguvali Chit Ex. P-l. ( 26 ) FOR the aforesaid reasons I hold the substantial question of law in the negative. The lower appellate Court was not justified in reappreciating the evidence, ignoring the material documents and probabilities and coming to its own independent conclusion. ( 27 ) ACCORDINGLY the appeal is allowed. The judgment and decree passed by the First Appellate Court is set aside. The judgment and decree passed by the Trial Court is restored. In the circumstances of the case no costs in this appeal. --- *** --- .