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2005 DIGILAW 767 (KAR)

Basavarajappa v. Halappa Nadigar

2005-11-21

V.G.SABHAHIT

body2005
JUDGMENT 1. This appeal by the defendant is directed against the judgment and decree passed by the Court of the Civil Judge (Sr. Dn.) Harihar, in R.A. No. 78/2002 dated 9-7-2003 reversing the judgment and decree passed by the Court of the Civil Judge (Jr. Dn.) Honnali, in O. S. No. 298/96 dated 30-11-1978 and consequently, decreeing the suit of the plaintiff for injunction against the defendant. 2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows :— The plaintiff filed a suit O. S. No. 298/86 against the defendant seeking for a decree for permanent injunction to restrain the defenant from interfering with the peaceful possession and enjoyment of the suit schedule property and for costs. It is averred in the plaint that the plaintiff and the defendant are brothers and they along with their parents constitute a joint family. The joint family owned 3-29 acres in Sy. No. 28/2, 2-05 acres in Sy. No. 4, 7-15 acres in Sy. No. 6/1 and Kuski land measuring 0-10 guntas in Sy. No. 6/2. All the properties are situated in Bommenhalli Village, Honnali Taluk. The said properties were in joint possession and under the registered partition deed dated 3-5-1963, Schedules A, B, C and D of the partition deed were allotted to the share of the father, mother, plaintiff and the respondent respectively. The defendant was allotted Sy. No. 6/1 measuring 7.15 acres and Sy. No. 4 measuring 13.38 acres. Sy. No. 6/2 measuring 13-14 acres in Sy. No. 6/2, 8 acres in Sy. No. 4 and 10 guntas in Kaneshmari No. 6/2 fell to the share of the plaintiff as described in Schedule C of the partition deed.It is further averred that as per the recital in the registered partition deed, the plaintiff was given a right over the pasture land situated on the northern side of Sy. No. 6/1 allotted to the share of the defendant as described in the schedule and eversince partition, the plaintiff has been using the suit schedule property as the absolute owner for the purpose of grazing cattle without any interruption by any person, but the defendant tried to interfere with the possession of the plaintiff. No. 6/1 allotted to the share of the defendant as described in the schedule and eversince partition, the plaintiff has been using the suit schedule property as the absolute owner for the purpose of grazing cattle without any interruption by any person, but the defendant tried to interfere with the possession of the plaintiff. Further, on 20-9-1996 defendant came with a pair of bullocks and tried to plough the suit schedule land with the intention to sow jower seeds thereon. When the plaintiff came to know the facts, resisted the high handed and illegal act of the defendant and some how, he prevented the defendant from ploughing the suit schedule land and wherefore, the suit for bare injunction. The suit schedule land is described as kushki land measuring 30 guntas attached to Sy. No.6/1, situated at Bommenahalli Village, Honnali Taluk and bounded by— East : Shimoga-Honnalli road West : Land of the defendant in Sy. No. 4 North : River South : Land of the defendant in Sy. No. 6/1. The suit was resisted by the defendant by filing written statement denying the material averment made in the plaint that the plaintiff is the owner of the suit property. The defendant denied the material averments made in the plaint and further averred that as per the recital in the registered partition deed, the right that was given to the plaintiff is only in respect of their fathers land situated from the boundary of Sy. No. 6/1 allotted to the defendant in the partition deed till the bridge on the eastern side and it is also clear from the recital that when there is a standing crop, the plaintiff shall not leave his cattle for grazing. There is no description regarding the extent of the property. The description of the schedule property as given in the plaint is not correct and therefore, the plaintiff is not entitled to, injunction as sought for in the suit. On behalf of the plaintiff, the plaintiff was examined as PW-1 and he also examined PW-2 and got marked documents as Ex.P1-partition deed. On behalf of the defendant, defendant was examined as DW-1 and he got marked documents as per Ex. D1-RTC pertaining to Sy. No. 6/1. On behalf of the plaintiff, the plaintiff was examined as PW-1 and he also examined PW-2 and got marked documents as Ex.P1-partition deed. On behalf of the defendant, defendant was examined as DW-1 and he got marked documents as per Ex. D1-RTC pertaining to Sy. No. 6/1. The trial Court after considering the material on record answered the issues against the plaintiff by holding that the plaintiff has failed to prove the description of the suit property and the fact that he is the owner of the suit property and wherefore, the plaintiff is not entitled to injunction as sought for in the suit and accordingly, dismissed the suit of the plaintiff by judgment dated 30-11-1998. Being aggrieved by the said judgment and decree, the plaintiff preferred R. A. No. 78/02 on the file of the Civil Judge (Sr. Dn.) Harihar, and the first appellate Court by its judgment dated 9-7-2003 held that the trial Court was not justified in dismissing the suit of the plaintiff for permanent injunction as the contents of the registered partition deed Ex.P1 is not disputed by the parties and there is a clear recital in the partition deed regarding the right of the plaintiff to graze the cattles in the pasture land from the boundary of Sy. No. 6/1 till the bridge on the eastern side except when there is standing crop in the said property and accordingly, reversed the judgment and decree passed by the trial Court and held that the plaintiff is entitled to injunction against the defendant and decreed the suit of the plaintiff by holding that the defendant is permanently restrained from obstructing the plaintiff to graze the cattle in the pasture land except at the time of standing crops. Being aggrieved by the said judgment and decree, defendant has preferred this appeal which was admitted on 2-9-2004 for consideration of the following substantial question of law :— Whether the finding of the lower appellate Court is perverse with regard to the pasture land measuring 20 guntas having regard to the admission made by defendants 1 and 2, and in the light of Ex.P.19? 3. 3. After hearing the counsel for the parties, I find that the substantial question of law framed on 2-9-2004, as stated above, has to be modified since the suit property measures 30 guntas and not 20 guntas and there is only one defendant in the suit and further, the document referred to is Ex.P1 and not Ex.P19. Therefore, the substantial question of law is modified as follows :— Whether the finding of the lower appellate Court reversing the judgment and decree passed by the trial Court and decreeing the suit of the plaintiff in respect of the property described in the schedule is perverse and arbitrary, being contrary to law and material on record? 4. I have heard the learned counsel appearing for the parties on the above said substantial question of law. 5. The learned counsel appearing for the appellant-defendant submitted that in view of the proper description of the schedule property and in the absence of the extent of the property mentioned in the partition deed, the Court below was not justified in decreeing the suit of the plaintiff for injunction. The learned counsel for the respondent-plaintiff submitted that the Judgment and decree passed by the Court below on the question of fact is justified and is to be answered against the appellant. On the other hand the learned counsel appearing for the appellant submitted that the first appellate court was not justified in setting aside the judgment and decree passed by the trial Court and granting injunction in favour of the plaintiff as the description of the schedule property was not properly given. On the other hand the learned counsel for the respondent-plaintiff submitted that the first appellate Court has rightly set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. The plaintiff was not given right in respect of the pasture land to the south of the property in S. No.6/1 and the schedule property is not comprised in S.No. 6/1 which is in the ownership of the defendant. The plaintiff was not given right in respect of the pasture land to the south of the property in S. No.6/1 and the schedule property is not comprised in S.No. 6/1 which is in the ownership of the defendant. The learned counsel further submitted that if the Court feels that the description of the schedule property has not been given and the same has to be ascertained with reference to the admitted document the partition deed, the matter may be remitted to the trial Court with a direction to give a finding about the description of the property as described in the partition deed Ex.P.1 with a further direction to grant injunction in respect of the said property. 6. I have considered the contentions and perused the material on record and I answer the substantial question of law in the affirmative as per the final order for the following reasons : It is clear from the perusal of the material on record that the contents of Exhibit P.1-partition deed is not disputed. There is no dispute that defendant was allotted the land comprised in S.No. 6/1 and S. No. 4 and the recital of the said document Exhibit P.1 clearly shows that the plaintiff was given right over the pasture land commencing from the boudary of S.No. 6/1 belonging to the defendant till the bridge on the eastern side of the river and that the plaintiff should not use the same for grazing the cattle when there is standing crop. The said recital in the partition deed is not disputed by the defendant. The said recital in the partition deed is not disputed by the defendant. However, the apprehension of the defendant is that the plaintiff under the guise of injunction in respect of the right which was allotted to him under the partition deed which excluded the property in S. No. 6/1 may interfere with the property of the defendant in S. No. 6/1 and therefore according to the defendant it is necessary to show the actual extent of the pasture land that is available as per the description given in the partition deed as the partition deed itself does not give the extent of the pasture land and the plaintiff has failed to prove that the schedule property measures 30 guntas and therefore it is clear that the right of the plaintiff for injunction as per the right given to him under the partition deed Exhibit P.1 has been proved by the plaintiff as a prima facie case has been made out in view of the contents of the admitted document Exhibit P.1 and the alleged interference is also proved as defendant is trying to assert that it is part of S. No. 6/1. As the extent of the property is not given in the partition deed, it only refers to the property commencing from the Boundary of S. No. 6/1 and the bridge to the eastern side of the river and the extent of 30 Guntas is not mentioned in the partition deed. However, it is clear from the finding given by the courts below that the injunction cannot be granted in respect of S. No. 6/1 which is admittedly allotted to the defendant and the said land allotted to the defendant as per the partition deed measures 7.15 acres and therefore there is force in the submission of the counsel appearing for the defendant that it is necessary to identify the portion of the property over which plaintiff is entitled to right as per the partition deed, as both the courts below have failed to consider the extent of land as per the document Ex.P.1. In the absence of any recital regarding extent of pasture land over which the plaintiff has got right has not been described in document Ex.P.1, I hold that the Judgment and decree passed by the trial Courts below is perverse and arbitrary as trial Court failed to consider the fact that the plaintiff has made out a prima facie case and also entitled to injunction in view of the interference by the defendant in respect of right to which he is entitled to under the partition in respect of the pasture land from the boundary of S. No. 6/1 belonging to the defendant till the eastern bridge of the river. The first appellate Court has granted injunction without ascertaining the extent of pasture land over which the plaintiff is entitled to exercise right under the partition deed. Hence, it is necessary to ascertain the extent of the property. Therefore the matter is remanded to the trial Court for ascertaining the extent and description of the pasture land in respect of which the plaintiff is entitled to. Accordingly, I pass the following order : The appeal is allowed. The judgment and decree dated 9-7-2003 passed by the Court of Civil Judge (Sr. Dn.) Harihar in R.A. No. 78/2002 is set aside and the judgment and decree passed by the Civil Judge (Jr. Dn.) Honnali in O. S. No. 298/96 dated 30-11-1998 is set aside, with a direction to dispose of the suit afresh after giving a finding on the extent and description of the schedule property as per the right given to the plaintiff under the document Exhibit P.1 the contents of which are not described and thereafter grant decree in favour of the plaintiff in respect of the said property. Opportunity shall be given to the parties to adduce additional evidence. There shall be no order as to costs in this appeal. 7. During the pendency of this appeal at the instance of the appellant, status quo order regarding possession was granted. The said order shall be in force during the pendency of the suit before the trial Court. 8. The parties shall appear before the trial Court on 23-12-2005 to seek further instructions without necessity of issuing fresh notice by the trial Court. 9. A copy of this judgment with L.C.R. shall be transmitted to the trial Court forthwith. 10. Appeal allowed.