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2011 DIGILAW 1105 (KAR)

Haseen Taj v. Mahalingaiah

2011-11-15

JAWAD RAHIM

body2011
JUDGMENT JAWAD RAHIM, J.—This second appeal is by the unsuccessful plaintiff against the judgment in O.S. No. 216/1995 dated 20.9.1999 confirmed in R.A. No. 174/2006 by the Civil Judge, Senior Division & JMFC Turuvekere. 2. Heard. 3. The contextual facts are appellant filed suit in O.S. No. 216/1995 seeking an order to restrain the respondents from interfering with her possession of the lands bearing survey No. 7/67 an 7/69 described in the schedule to the plaint on the plea that by a deed of sale dated 3.12.1993, she purchased the properties from the original allottee and has since then been in possession of the same. All revenue records are mutated in her name evidencing factum of possession. Describing the defendants as neighboring land owners, she sought injunction against them on the plea that they were unjustifiably interfering with her possession. 4. The defendants entered contest through their detailed written statement resisting the suit contending that the property bearing survey Nos. 7/42, 7/45, 7/35, 7/38 and 7/39 measuring four acres situate at Elenahalli Kaval were purchased by them under various sale deeds and they are in physical possession. They denied plaintiff’s contention that they had interfered with her property. 5. The learned trial Judge considering the material propositions in the pleadings raised following issues for consideration. 1. Whether the plaintiff proves her lawful possession over the suit schedule property as on the date of the suit? 2. Whether the plaintiff proves that the defendants illegally interfered with her lawful possession as alleged? 3. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants as prayed? 4. To What relief if any, the parties are entitled? 6. The parties have lead evidence. 7. The appellant examined herself as P.W. 1 and placed reliance on evidence of Cheluvegowda-P.W. 2 and Mahadevappa-P.W. 3. She relied on Ex. P1-original sale deed and Ex. P2 to P8-revenue records. In rebuttal, the defendants lead evidence as D.Ws. 1 and 2 and relied on 17 documents which includes original grant certificate Ex. D13 to D17 and Registered sale deed Ex. D1 and D5. 8. Learned trial Judge considering the evidence opined that the plaintiff did not establish exclusive possession of the suit schedule property and by the impugned judgment dated 20.9.1999 dismissed the suit. Aggrieved by it, she was in RA 174/2006 reiterating the same plea. D13 to D17 and Registered sale deed Ex. D1 and D5. 8. Learned trial Judge considering the evidence opined that the plaintiff did not establish exclusive possession of the suit schedule property and by the impugned judgment dated 20.9.1999 dismissed the suit. Aggrieved by it, she was in RA 174/2006 reiterating the same plea. The Appellate Court favored no ground urged before him and dismissed the appeal confirming the judgment of the trial Court. Against which, this second appeal is filed. 9. Sri. P.B. Rajanna, learned counsel for the appellant would submit that the finding of the trial Court confirmed by the appellate Court is improper and against the record. He submits that plaintiff had established she has purchased the property bearing survey No. 7/67 vide Ex. P1 and she had also substantiated that the property has been in her physical possession from the date of purchase. Referring to objections raised by the respondents/defendants, he submits that plaintiff is not seeking any order in respect of property purchased by them and Ex. D1 to D5. What the plaintiff seeks is protection of her right in respect of the property bearing survey No. 7/67 and 7/69 to an extent of four acres which was purchased on 3.12.1993. He would submit that merely because there were certain answers given by her in the evidence, the documentary evidence cannot lose its credentiality. In this regard, he refers to the conclusion of the learned appellate Court that plaintiff had not established exclusive possession. 10. Learned counsel for the respondent has supported the impugned judgments. 11. On perusal of the judgment of the trial Court, it is evident that the learned trial Judge has noticed Ex. P4 and Ex. P5 though evidences the purchase of the property by the plaintiff, but the factum of possession was not proved. Learned Judge has taken note of her contention that she purchased property on 3.12.1993 and claimed possession only from the said date. But in cross examination, she categorically made a statement that she does not know the survey number of the lands in her possession. She also does not know till date as to where actually the lands purchased by her are situate. She has further admitted that the respondents/defendants are cultivating eight acres of land in the same Survey Numbers. But in cross examination, she categorically made a statement that she does not know the survey number of the lands in her possession. She also does not know till date as to where actually the lands purchased by her are situate. She has further admitted that the respondents/defendants are cultivating eight acres of land in the same Survey Numbers. The learned Judge further noticed her admission that she has filed suit for obtaining possession of the property from the defendants, On this basis, it recorded a finding that she was not in possession of the suit land as on the date of suit though the RTC Ex. P4 and Ex. P5 shows that she is in possession. The learned trial Judge has tested her testimony referring to the rebuttal evidence brought on record by them which showed that they are in fact in possession and cultivating the land. The learned trial Judge has referred to the sale deeds produced by them which supports title and the revenue entries which supports their possession and on that basis, the suit was dismissed. The learned trial Judge could not have summoned himself to differ from the view taken by the learned trial Judge. 12. Though the learned counsel for the appellant submits that it was incumbent on the trial Court to appoint a Commissioner when the dispute relates to location of the property in a question, I unable to accept this proposition for the simple reason it is the plaintiff who must seek appropriate relief. The plaintiff had taken burden of proving factum of possession on herself, But her evidence shows a different version, She admits defendants to be in possession. There is no material evidence to show where her lands are situate. Of course, she is not questioning the transaction in favour of defendants by Ex. D1 to D5 but what is important is to know the factum of possession. This is a suit for bare injunction and no other issue had arisen, Had the plaintiff sought for declaration, the trial Court would have gone into the question of title also. As regards physical possession, her evidence is enough to hold that she is not in exclusive possession. 13. I do not find any substantial question of law arising of consideration in this appeal. As regards physical possession, her evidence is enough to hold that she is not in exclusive possession. 13. I do not find any substantial question of law arising of consideration in this appeal. Hence, the appeal is dismissed of course reserving the right of the appellant to seek such remedy for declaration as may be advised.