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2011 DIGILAW 10 (KAR)

Appireddigari Chowdappa v. Narayanamma

2011-01-03

H.G.RAMESH

body2011
JUDGMENT H.G. RAMESH, J.—This appeal is arising out of the order of Prl. District Judge, Kolar, in R.A. No. 4/2002 dated 7.4.2004. 2. Appellant-plaintiff had filed a suit before the Civil Judge (Senior Division), Chintamani in O.S. No. 172/1997 seeking to declare that he is the absolute owner and in possession of the suit schedule property and, also for grant of permanent injunction against the defendant restraining her from interfering with his peaceful possession and enjoyment. The suit schedule property is an agricultural property in Sy. No. 52 measuring 4 acres and 8 guntas situate at T. Gollahalli village of Chintamani Taluk. 3. According to the plaintiff, the land in question was acquired by his father under darkast proceedings and since then his father and thereafter, he himself is in possession and enjoyment of the suit property. The matter was resisted by the defendant denying the right and title of the plaintiff. According to her, it is a joint family property and khata stood in the name of Chowdappa and Ramakka. Chowdappa is the son of Appanna, the original owner of the suit land. Appanna and Konappa are the brothers. Plaintiff is the son of Appanna and Ramaiah is the son of Konappa. Ramakka is the wife of Ramaiah and defendant is the daughter of Ramaiah and Ramakka and according to the defendant, plaintiff has got only half share in the suit property. Both plaintiff and defendant are in separate possession and enjoyment of two acres of land each. The plaintiff suppressing the material facts has made an attempt to obtain an order of injunction. 4. Based on the pleadings and the material evidence on record, the trial Court having raised as many as four issues, has dismissed the suit of the plaintiff on the ground that plaintiff has tailed to prove the case; there is no cause of action; intention of the plaintiff was only to swallow the portion of the defendant’s share in the suit property; he has failed to prove the exclusive title over the suit schedule property; defendant is having half share in the suit schedule property which has devolved on her after the death of her father Ramaiah, who is none other than the son of Konappa and that defendant is the co-owner of the suit schedule property. As against the said order, plaintiff preferred an appeal before the Prl. As against the said order, plaintiff preferred an appeal before the Prl. District Judge, Kolar in R.A. No. 4/2002. The appellate Court, after hearing both sides, has dismissed the appeal. Hence, this second appeal by the plaintiff. 5. At the time of admission, this Court has raised the following substantial question, of law for consideration. “Whether the appellate Court is legally wrong in disallowing the request for additional evidence and the finding by the appellate Court that the appellant has not proved the title to the property is perversely contrary to law and evidence on record?” 6. According to the learned Counsel for the appellant, before the trial Court the defendant has taken a contention that she is the co-owner of the suit, schedule property, but has also filed Form No. 7A on 29.4.1999 claiming occupancy rights in respect of two acres of suit land, which came to be rejected by the competent authority and, the application filed by her before the appellate Court was also dismissed and, as such, it is clear that the defendant has taken different stand at different times. But, when the appellant sought, to produce certain documents which have a bearing on the case, i.e., the order of the competent authority in rejecting the claim of defendant seeking grant of occupancy right and also to establish, his right that at no point of time the defendant was a co-owner and there is a partition long back in the family of the father of the plaintiff and grandfather of the defendant, the trial Court, as well as the appellate Court have not considered the said application. Accordingly, he has sought for allowing the appeal. In support of his contention, the learned Counsel for the appellant has relied upon the decision reported in the case of Jaipur Development Authority vs. Kailashwati Devi, AIR 1997 SC 3243 to contend that, production of additional evidence at the appellate stage has to be considered. 7. Per contra, the learned Counsel appearing for the respondent-defendant has submitted that the plaintiff has failed to establish his right and title over the suit schedule property. The defendant is the co-owner. The claim put forth by the defendant as a tenant has been subsequently withdrawn and that does not have any bearing on the case and that the relationship between the plaintiff and the defendant is not in dispute. The defendant is the co-owner. The claim put forth by the defendant as a tenant has been subsequently withdrawn and that does not have any bearing on the case and that the relationship between the plaintiff and the defendant is not in dispute. The plaintiff has foiled to establish that he is the owner of the other two acres of land and only to make unlawful gain, has filed a suit to knock off the property of which, rightly, the trial Court as well as the appellate Court have dismissed the same and no substantial question of law arise for consideration in this appeal. Accordingly, learned counsel has sought for dismissal of the appeal. In support of his contention, the learned Counsel for the respondent has relied upon the decision reported in the case of Thimmaiah vs. Shabira and others, (2008) 4 SCC 182 to contend that, if the plaintiff is not in possession, he is not entitled for the relief of permanent injunction without seeking for recovery of possession. 8. Originally, the suit was filed by the plaintiff seeking for declaration of title and consequential relief of injunction. Of course, according to the plaintiff, he is in possession of the property and that has been disputed by the defendant stating that she is in possession of the property. As noted by the trial Court, Exs. D2 to D4 are the documents which demonstrate that the names of the defendant and the plaintiff have been entered in the RTC of the suit property continuously from 1975-1976 till 1980-81. However, the plaintiff has filed the RTC extract for the year 1995-96 and 1996-97 as per Ex. P1 and P2. However, the Deputy Tahsildar, Chilaka Janerpu by order dated 17.4.2000, has ordered to delete the name of plaintiff and to enter the name of the defendant in respect of 2 acres of land in the suit property. The trial Court has also noted that as per Ex. D2-RTC, the suit land was in possession of defendant’s father alongwith plaintiff and on the ground that revenue entries are not documents of title and plaintiff has not examined the adjoining owner to prove his exclusive possession, it has dismissed the suit. 9. The trial Court has also noted that as per Ex. D2-RTC, the suit land was in possession of defendant’s father alongwith plaintiff and on the ground that revenue entries are not documents of title and plaintiff has not examined the adjoining owner to prove his exclusive possession, it has dismissed the suit. 9. According to the appellant, since 1927 his father and thereafter, he himself is in possession of the suit property and the land was granted in favour of his father under darkasth on 30.4.1927 and the subsequent entries, if any, made in favour of the defendant or her father or grandfather would not be an evidence of possession. The defendant’s stand is not clear, at one point she says that she is the owner and at another point she claims tenancy right by filing Form No. 7A before the competent authority which itself shows that she is making hectic efforts to claim the property over which she has no right. No specific issues or points for determination have been raised by the appellate Court regarding the need for production of additional documents and simply, it has rejected the case without considering the case of the plaintiff. It is also further submitted that, additional evidence sought to be produced would throw light on the rights of the parties, 10. The undisputed fact is that the plaintiff is not in possession of the suit schedule property and he has to seek for possession alongwith the relief of permanent injunction. It appears there is short of evidence on record. Except certain of the documents produced by the defendant regarding the entries made in the RTC for some years, no cogent evidence is let in by the defendant to show that she is in possession either as a owner or as a tenant. Of course, the burden is on the plaintiff to establish the prima facie case that he is in possession when he is seeking for a permanent injunction. But nonetheless, in the case on hand, the defendant at one stretch says that she is a co-owner and on the other, she is the tenant, which is contrary and to clarify this aspect, when the plaintiff sought to produce certain relevant documents which throws light on the case, it ought to have been considered by the lower appellate Court. 11. 11. In the circumstances, as held by the Apex Court in Jaipur Development Authority’s case, when the plaintiff could not produce such an evidence before the trial Court for specific reasons and, to throw light on the case he sought to produce the same before the appellate Court which were secured subsequently, the impugned order passed by the lower appellate Court in dismissing the application of the plaintiff for production of additional evidence is set aside, while answering the substantial question raised in favour of the appellant. However, both the parties are permitted to lead additional evidence, if any, and it is for the lower appellate Court to reappreciate the matter and to dispose of the same in accordance with law.