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2010 DIGILAW 559 (KAR)

H. E. SHASHIKALA v. H. M. KANTHAMANI AND

2010-04-20

V.JAGANNATHAN

body2010
JUDGMENT This second is by the defendant in the Trial Court in O.S. No. 398 of 1995 and she calls in question the concurrent findings of the Courts below which led to the suit of the respondents-plaintiffs for permanent injunction being decreed and confirmed by the lower Appellate Court by dismissing R.A. No. 86 of 2005 preferred by the appellant herein. 2. The plaintiffs' case before the Trial Court, as could be seen from the plaint avernments, was that the plaintiffs purchased the suit schedule property from one Sowbhagya under two registered sale deeds dated 20-11-1989 for valuable consideration of Rs. 15,000/- and the suit schedule property was purchased in two bits, each measuring 24' x 55' and said Sowbhagya, in turn, has purchased the said property from one Seethalakshmi and even in the khatha, the measurement was 48' x 55'. It was the case of the plaintiffs that though the khatha was changed in the names of the plaintiffs, the suit schedule property was not pucca phoded and no durasthi work was undertaken by the survey authorities and after the measurement was done by the ADLR, Mandya, the plaintiffs' property was shown as measuring 52' x 50' and accordingly, the sale deed was also rectified by mentioning the dimension as 52' x 50' instead of 48' x 55'. It was the further case of the plaintiffs that the defendant owned a site towards the East of the plaintiffs' suit schedule property and the defendant had purchased the property from one Ashwathanarnyana and after the durasthi work and fixing of the boundary stone, it was found that towards the eastern side of the defendant, the neighbour had encroached about four feet space and the defendant, therefore, tried to encroach into the plaintiffs' suit schedule property and an attempt was made to encroach 3 to 4 feet from the plaintiffs' schedule property for the purpose of putting up the compound wall. Stating that on 7-10-1995, the defendant made an attempt to put up a compound in the plaint schedule property and that the defendant did not stop her illegal activities and made an attempt again on 29-10-1995, the plaintiffs sought for permanent injunction being granted to them and to restrain the defendant from interfering with their peaceful possession and enjoyment of the suit schedule property. 3. 3. The defendant denied the plaint allegations and took up the stand that she has put up the compound wall within her site and the site owned by her measures East to West 40' and North to South 60' and in the said site, she had put up a residential house leaving four feet margin towards the Western side and the western wall consists of a staircase landing and stretches 3.25' beyond the western wall at a height of five feet and the extension includes that of the window chejjas and the said extension lies within the setback left beyond the western wall of the defendant's house and the construction was completed on 2-11-1995. 4. The plaintiffs also filed additional pleadings by contending that the defendant did not leave any setback on the left side of her house and the defendant got the plan approved from MUDA behind the back of the plaintiffs and has illegally constructed the house projecting the chejja and the said projection is in the site of the plaintiffs and, therefore, the illegal projection of the chejja and the staircase landing are to be demolished as they are within the plaintiffs' property. 5. The said pleadings of the parties led the Trial Court to frame relevant issues as could be seen at page 17 of the paper book and after evidence appreciation, the suit of the plaintiffs was decreed. Aggrieved by the said judgment and decree, the appellant preferred regular appeal before the lower Appellate Court and the learned Judge of the lower Appellate Court confirmed the judgment of the Trial Court by dismissing the appeal. 6. I have heard learned Counsel Sri K. Suman for the appellant-defendant and learned Counsel Sri C.M. Nagabhushana for the respondents-plaintiffs and perused the entire material on record and the documents and the decision upon which reliance was placed by the learned Counsel for the parties. 7. This Court, while admitting this second appeal, had framed the following substantial question of law for consideration.- "Whether the Courts below were justified in coming to the conclusion that the plaintiff is in lawful possession of the 4ft. disputed land which lies to the West of the defendant's property and to the East of plaintiffs property in the light of the documents produced on record?" 8. disputed land which lies to the West of the defendant's property and to the East of plaintiffs property in the light of the documents produced on record?" 8. The learned Counsel for the appellant-defendant contended that the Courts below, though have concurred on facts, yet, the conclusion reached is against the very pleadings and the admission made by the plaintiffs themselves and also the documents produced by both sides were not properly appreciated by the Trial Court as well as the lower Appellate Court. It is, therefore, argued that though, normally, interference with the findings of facts is not resorted to by the Appellate Court sitting in second appeal in view of Section 100 of the Civil Procedure Code, 1908, yet, where the Courts below failed to consider the vital piece of evidence and ignores the admissible evidence and placed reliance on inadmissible evidence, in such circumstances, interference in second appeal against the concurrent findings of facts is permissible in law. In this regard, reliance is placed on an Apex Court decision in Ishwar Dass Jain (dead) through L.Rs v Sohan Lal (dead) by L.Rs1. 9. It is then argued by referring to the plaint averments and also to the evidence of the plaintiffs that they admit that their property actually measures 48' x 55' i.e., two pieces of sites each measuring 24' x 55', and, therefore, the plaintiffs, being the owners of the suit schedule property which, according to the plaint schedule, measures 52' x 50' does not arise. It is then argued that the Trial Court placed reliance on Ex. P. 4 to hold that the plaintiff's property measures 52' x 50', but a close look at the documents produced by the defendant would go to show that the very document-Ex. P. 4 has been nullified by issuance of Ex. D. 16 by the Deputy Commissioner on 18-10-1995 and this itself, therefore, renders the document-Ex. P. 4 not reliable and once Ex. P. 4 is taken out of consideration, then, according to the plaint averments, the property purchased by the plaintiffs under two registered sale deeds will measure up a total of 48' x 55' (24' x 55' + 24' x 55') and, as such, the Courts below have failed to take note of the admission made in the plaint as well as the documents produced by the defendant. As such, the concurrent findings recorded are perverse in nature. 10. Yet another submission made is that, even in the plaint as well as in the evidence before the Court, the plaintiffs have admitted that the defendant has put up the construction already in the plaintiffs' property and, therefore, the question of the plaintiffs being in actual possession of space measuring 4' x 50' does not arise and, therefore, the Trial Court should not have granted the relief of permanent injunction when the plaintiffs have failed to establish their possession over the area measuring 4' x 50'. k3 such, even for this reason also, the judgments of the Courts below cannot be sustained. 11. The further submission made is that, nowhere in the plaint nor in the evidence before the Court, the plaintiffs have come up with a case of they being dispossessed by the defendant during the pendency of the suit. In this regard, the date of filing of the suit and the construction completed by the defendant and the sanction of the plan as per Exs. D. 17 and D. 18 were all referred to by the learned Counsel to contend that it is not the case of the plaintiffs that during the pendency of the suit, the defendant had put up the construction. Under these circumstances, the Trial Court could not have decreed the suit of the plaintiffs by ignoring all these material aspects of the case, which are borne out of the record in the form of admission made by the plaintiffs both in their pleadings and the evidence and the documents as well. Under these circumstances, the appeal be allowed by setting aside the judgments of the Courts below. 12. On the other hand, the learned Counsel for the respondents-plaintiffs supported the judgments of the Courts below by contending that the averments made in paragraphs 2 and 3 of the plaint have not been disputed by the defendant and, therefore, what is not disputed will have to be taken as proved and no evidence, either oral or documentary, is needed to prove the fact of the measurement of the plaintiffs' property being rectified after survey and it is 52' x 50' and not 48' x 55'. It is also submitted that the said fact, which is proved through Ex. It is also submitted that the said fact, which is proved through Ex. P. 4, has not been questioned by the appellant and, as such, the order of the Deputy Commissioner as per Ex. P. 4 has to be taken as establishing the case of the plaintiffs that following pucca phodi durasthi, the plaintiffs property measures 52' x 50' and not 48' x 55'. 13. The further submission made by the learned Counsel for the respondents is that the plaintiffs have been in possession of the suit schedule property and it was only during the pendency of the suit that the defendant came up with further construction within the suit schedule property and, as such, even if the plaintiffs have not asked for any relief for delivery of possession, yet, the Court can mould the relief by taking into account the facts and circumstances of the case. 14. The learned Counsel also argued that Ex. D. 4, which is produced by the defendant shows that the defendant's area measures 1.75 in S. No. 111 and 0.50 in S. No. 112 and, therefore, if the said measurement in guntas is converted into feet, the question of the defendant becoming the owner of the property measuring 40' x 60' cannot arise. It was also argued in this connection that the defendant's vendor did not possess any land in S. No. 112/7A2. Under these circumstances, the finding recorded by the Trial Court cannot be faulted and there is no evidence which was ignored by the Trial Court to say that, had the said evidence been considered, the decision would have gone in favour of the opposite side. In other words, the argument put forward is that the Trial Court did not leave any of the evidence out of consideration and, as such, the finding recorded being a finding of facts and having been affirmed by the lower Appellate Court, no second appeal can lie against such concurrent finding of facts and, as such, the question of this interfering under Section 100 of the CPC does not arise and the decision referred to by the learned Counsel for the appellant has no application. 15. Having thus heard both sides and after going through the entire material on record placed in the form of paper book, the substantial question of law raised, therefore, requires to be answered. 15. Having thus heard both sides and after going through the entire material on record placed in the form of paper book, the substantial question of law raised, therefore, requires to be answered. In the light of the documents produced by the parties, can it be said that the Courts below were not justified in coming to the conclusion that the plaintiffs are in lawful possession of four feet in the disputed land lying to the West of the defendant's property. It is not in dispute, as could be seen from the pleadings of the parties, that the plaintiffs purchased two sites each measuring 24' x 55' under two sale deeds dated 20-11-1989 for Rs. 15,000/-. The further fact that the vendor of the plaintiffs' vendor viz., Seethalakshmi, was the owner in possession of the site measuring 48' x 55' and the khatha also reflects the said State of affairs as mentioned in paragraph 2 of the plaint itself. Therefore, when the plaintiffs purchased two bits of property each measuring 24' x 55' in area put together, the plaintiffs' suit schedule property will have the dimension of 48' x 55'. In the schedule to the plaint, the measurement is shown as 52' x 50' and the reference is to the durasthi work given by the survey authorities. 16. It is also not in dispute that the defendant purchased from one Ashwathanarayana the site measuring East-West 40 feet and North-South 60 feet. The defendant has also stated categorically in the written statement filed that he had put up construction in the site belonging to him and the construction was completed on 2-11-1995. 17. Insofar as the measuring of the suit schedule property is concerned, the plaintiffs have placed reliance heavily on Ex. P. 4 and the Trial Court also took note of the said document in arriving at the conclusion that the plaintiffs' property measures 52' x 50'. The said document-Ex. P. 4 dated 7-10-1995 mentions that, following the pucca phoding durasthi, the plaintiffs' property measures East-West 16.4 meters and North-South 16 meters and it has been indicated as 52' x 50' totalling 2,600/- sq. ft. after durasthi, whereas in the khatha, the measurement is stated as 48' x 55' totalling 2,640 sq. ft. This document-Ex. P. 4 has been referred to in Ex. D. 16 by the Deputy Commissioner and the said document-Ex. ft. after durasthi, whereas in the khatha, the measurement is stated as 48' x 55' totalling 2,640 sq. ft. This document-Ex. P. 4 has been referred to in Ex. D. 16 by the Deputy Commissioner and the said document-Ex. D. 16 dated 18-10-1995 also refers to the document-Ex. P. 4 and mentions that the plan obtained by the appellant herein and the licence given to her are in order. By reading together Exs. P. 4 ad D. 16, one can, therefore, hold that the measurement given by the defendant while obtaining the plan sanctioned is in order. In other words, the defendant's property measures 40' x 60'. 18. It is for the plaintiffs to establish at the first instance that their property actually measures 52' x 50' as indicated in the schedule to the plaint. By the very admission made by the plaintiffs in paragraph 2 of the plaint, the property purchased under two sale deeds together measure upto 48' x 55'. If the document-Ex. P. 4 is not considered in view of the reasons mentioned above, there remains no other document to support the plaintiffs' case that their property actually measures 52' x 50'. Though the learned Counsel for the respondents referred to the measurement of the defendant's property, since it is the plaintiffs who approached the Trial Court for an order of injunction against the defendant, it is the burden on the plaintiffs to establish that their property actually measures 52' x 50'. From the sale deeds produced by the plaintiffs and the khatha which stood in the name of Seethalakshmi, vendor of the plaintiffs' vendor Sowbhagya, it cannot be said that the property purchased by the plaintiffs actually measures 52' x 50'. At best, the documents produced by the parties themselves, as admitted by them, show that the measurement of the plaintiffs' property cannot be more than 48' x 55'. 19. Coming to the relief sought viz., permanent injunction against the defendant, the plaintiffs will have to establish that they are in possession of the suit schedule property as on the date of filing of the suit. The defendant has clearly mentioned in the written statement that the construction of the house was completed on 2-11-1995. The suit was filed by the plaintiffs on 9-11-1995. In other words, much before the filing of the suit, the construction of the defendant's house had been completed. Exs. The defendant has clearly mentioned in the written statement that the construction of the house was completed on 2-11-1995. The suit was filed by the plaintiffs on 9-11-1995. In other words, much before the filing of the suit, the construction of the defendant's house had been completed. Exs. D. 17 and D. 18 are the two sanctioned plans and Ex. D. 17 was of the year 1993 and Ex. D. 18, which is the other sanctioned plan, is dated 10-5-1995 and even these dates are also prior to the filing of the suit by the plaintiffs. Therefore, the question of the defendant putting up construction in the plaintiffs' suit property subsequent to the filing of the suit cannot arise. 20. As rightly argued by the learned Counsel for the appellant, there is no whisper in the pleadings or in the entire evidence of the plaintiffs nor any suggestion has been put to the defendant in the course of the cross-examination that the defendant's construction came up during the pendency of the suit. The inference to be drawn from all these undisputed facts is that the defendant had put up the construction in the property which he claims as belonging to him viz., site measuring 40' x 60', much prior to the filing of the suit by the plaintiffs. 21. Under these circumstances, when the plaintiffs have failed first of all to prove that they were in possession of the dispute area of four feet and secondly when the documents produced by the plaintiffs themselves indicate that the measurement of their property could not be more than 48' x 55' and not 52' x 50', the question of the plaintiffs' property being encroached by the defendant also cannot arise. As the plaintiffs had failed to prove the factum of they being in possession as on the date of the suit, the question of granting permanent injunction against the defendant also cannot arise. 22. The Trial Court, therefore, failed to appreciate the admitted evidence which is borne out from the pleadings as well as the documents produced by both sides and, as such, the finding recorded is a perverse finding not based on the admitted evidence but in ignorance of the admitted evidence. 23. Under these circumstances, whether this Court can interfere in the second appeal that too against the concurrent findings of facts is the point now to be considered. 24. 23. Under these circumstances, whether this Court can interfere in the second appeal that too against the concurrent findings of facts is the point now to be considered. 24. The Apex Court, in the case of the Ishwar Dass Jain, has observed thus in paragraph 11 of the said decision: "11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion'. This principle has been laid down in a series of judgments of this Court in relation to Section 100 of the CPC after the 1976 amendment. In Dilbagrai Punjabi v Sharad Chandra, 1988 Supp. SCC 710, while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M. Sharma, J. (as he then was) observed that (SCC pp. 712 and 713, para 5): "The Court (the First Appellate Court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case". In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiffs title and the description of the plaintiffs as "owner" of the property signed by the defendant were not considered by the First Appellate Court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld, in Jagdish Singh v Natthu Singh, (1992)1 SCC 647 , with reference to a second appeal of 1978 disposed of on 5-4-1991, M.N. Venkatachaliah, J. (as he then was) held (SCC p. 652, para 10): "... Where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings". Again in Sundra Naicka Vadiyar v Ramaswami Ayyar, 1995 Supp. Where the findings by the Court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings". Again in Sundra Naicka Vadiyar v Ramaswami Ayyar, 1995 Supp. (4) SCC 534, it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise, an order of the Revenue Court - reliance on oral evidence was unjustified. In yet another case in Smt. Mehrunnisa v Smt. Visham Kumari, (1998)2 SCC 295 , arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding...". 25. In the light of the aforesaid law laid down by the Apex Court, when the findings of the Courts below on facts are vitiated for wrong consideration of the relevant evidence, and in the instant case, the admission made by the plaintiffs, both in the pleadings as well as in the evidence, and the documents produced by both sides, interference by the High Court is inevitable. 26. For the aforesaid reasons, the substantial question of law raised is answered in the negative and consequently, this appeal has to succeed and hence, I pass the following order: The appeal is allowed, the judgments of the Courts below are set aside, and the suit of the plaintiffs is dismissed.