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2013 DIGILAW 1353 (KAR)

C. E. Kuberaiah v. Thimmegowda

2013-11-29

R.B.BUDIHAL

body2013
JUDGMENT 1. The appellant has preferred this appeal against the judgment and decree dated 2.9.2011 passed in R.A. No.490/2008 by the Senior Civil Judge and JMFC, Arkalgud, wherein the judgment and decree dated 5.4.2008 passed in O.S. No.107/2006 by the Civil Court (Jr. Dn.) and JMFC, Arkalgud, has been confirmed. Appellant was the plaintiff before the Trial Court and respondent was the defendant. 2. Brief facts of the case of the plaintiff before the Trial Court are that, originally, the suit schedule property was a Government land and earlier, he was cultivating the suit schedule property unauthorizedly for more than 23 years and thereafter, the Government on 5.10.2002 granted the suit schedule property in his name. Thereafter, he became absolute owner of the suit schedule property and was in possession and enjoyment of the said property. The defendant though has no manner of right, title or interest over the suit schedule property, interfered with possession of the plaintiff and enjoyment of the property. Hence, the plaintiff filed a suit in O.S. No.257/2003 on the file of the Civil Judge (Jr. Dn.) And JMFC, Arkalgud, against the defendant seeking permanent injunction. The defendant appeared in the said suit and filed written statement stating that the land measuring 1 acre 13 guntas in Sy. No.62/1 and 0.20 guntas in Sy. No.62/2 has been granted in his favour. It is contended that since the date of grant, he is in possession and enjoyment of the suit schedule property and the plaintiff has no manner of right, title or interest over the suit schedule property. He has further contended that the suit is not maintainable and the same has to be dismissed. After considering the merits of the case, ultimately, the Trial Court dismissed the suit. The suit of the appellant-plaintiff is confirmed by the First Appellate Court in R.A. No.490/2008. 3. Heard the arguments of the learned counsel appearing for the appellant and the learned Counsel appearing for the respondent. 4. Learned Counsel appearing for the appellant-plaintiff, during the course of his arguments, submitted that, though the appellant-plaintiff earlier filed a suit in O.S. No.257/2003 and entered into compromise with the respondent-defendant, but the same is not valid in the eye of law, because the lands are granted to the appellant-plaintiff by the Government. 4. Learned Counsel appearing for the appellant-plaintiff, during the course of his arguments, submitted that, though the appellant-plaintiff earlier filed a suit in O.S. No.257/2003 and entered into compromise with the respondent-defendant, but the same is not valid in the eye of law, because the lands are granted to the appellant-plaintiff by the Government. The appellant-plaintiff cannot enter into the said compromise and give up his title on the said land in favour of the respondent-defendant. The learned Counsel further submitted that even though it is presumed that the appellant-plaintiff has entered into such a compromise with the respondent-defendant, it is against the grant rules and the said compromise is not binding on the appellant-plaintiff. The learned Counsel further made a submission that the defendant though granted with two pieces of lands in Sy. Nos.62/1 and 62/2, he wrongly claimed title over the properties granted in favor of the appellant-plaintiff. Hence, the learned Counsel submitted that unless and until a portion of the land belonging to the respondent-defendant were identified, the respondent-defendant cannot claim any right over the suit schedule property. The learned Counsel further submitted that the Courts below have not at all taken into consideration these aspects and without properly appreciating the oral and documentary evidence on record, have dismissed the suit. Hence, the learned Counsel submitted that the substantial question of law is involved in this appeal and that the appeal is to be admitted. 5. Contrary to this, learned Counsel for the respondent-defendant, during the course of his arguments, submitted that the plaintiff earlier also filed a suit in O.S. No.257/2003 in respect of the very property seeking injunction against the respondent-defendant and subsequently, the appellant-plaintiff entered into compromise in the said suit admitting that the suit property belongs to the defendant and the respondent-defendant is in possession and enjoinment of the suit schedule property. The learned counsel submitted that in view of the said compromise, the suit filed subsequently for a declaration and injunction is not at all maintainable and that, both the Courts below on properly appreciating the oral and documentary evidence on record have rightly dismissed the suit. The learned Counsel submitted that there is no substantial question of law involved in the present appeal and there are concurrent findings of both the Courts with regard to possession and enjoyment as well as title to property in favour of the respondent-defendant. The learned Counsel submitted that there is no substantial question of law involved in the present appeal and there are concurrent findings of both the Courts with regard to possession and enjoyment as well as title to property in favour of the respondent-defendant. The learned Counsel submitted that the appeal is liable to the dismissed. 6. I have perused the judgment and decrees passed by the Courts below and also perused the oral and documentary evidence placed on record by both the parties before the trial Court. I have also considered the submissions made by the learned Counsel on both sides before this Court. 7. Looking to the materials on record, certain facts that are admitted by the appellant-plaintiff and the respondent- defendant are that, a portion of the land measuring 2 acres in Sy. No.62/9 and another portion of the land measuring 2 acres in Sy. No.62/10 were granted in favour of the appellant-plaintiff by the Government. So also a portion of the land measuring 1 acre 13 guntas and 0.20 guntas in Sy. Nos.62/1 and 62/2 respectively, were granted in the name of the respondent-defendant. The appellant-plaintiff filed a suit seeking declaration of his title and also permanent injunction against the respondent-defendant in respect of the suit schedule property. Perusal of the schedule to the plaint would indicate the land is measured 2 acres in Sy.No.62 and the appellant-plaintiff has not at all mentioned in the plaint whether, the suit is in respect of a portion of the land bearing Sy. No.62/9 or 62/10. The respondent-defendant has clearly denied the title and possession of the appellant-plaintiff in respect of the suit schedule property. Therefore, heavy burden is casted on the appellant-plaintiff to establish the fact that he is the owner, in possession and enjoyment of the suit schedule property and that, the defendant has tried to interfere with his possession and enjoyment of the suit schedule property. It is an admitted fact that earlier, the very appellant-plaintiff filed a suit in O.S. No.257/2003 against the respondent-defendant in respect of the suit schedule property. But the same has been ended in compromise. The appellant- plaintiff has produced the compromise petition before the Trial Court as per Ex.P.2. It is an admitted fact that earlier, the very appellant-plaintiff filed a suit in O.S. No.257/2003 against the respondent-defendant in respect of the suit schedule property. But the same has been ended in compromise. The appellant- plaintiff has produced the compromise petition before the Trial Court as per Ex.P.2. It is mentioned in the compromise petition that the suit schedule property has been granted in favour of the respondent-defendant by the Special Land Acquisition Officer, Hassan, and the appellant-plaintiff admits that the said land is in possession of the respondent- defendant. Even, it is mentioned in the compromise petition that the plaintiff has no right or possession over the suit schedule property and requested to dismiss the suit. As per Ex.P.2, the appellant-plaintiff has admitted that there was such a compromise. The appellant-plaintiff-P.W.1, in the examination in chief, which is by way of filing an affidavit, has reiterated all contentions raised in the plaint. During the course of cross-examination, P.W.1 has deposed that the Government granted four acres of land in Sy. Nos.62/9 and 62/10 in two blocks. He has admitted that Ex.P.7-RTC Extracts is not pertaining to the suit schedule property and further deposed that Sy. No.62/9 is bounded on the East-land belonging to one Smt. Parvathi, West-Government Gomal land, North-land of one Chandamma and South-land belonging to one Kaveramma. If these boundaries were compared with the boundaries given in the schedule to the plaint in respect of the suit schedule property, they are not tallying with each other. P.W.1 has further admitted that in respect of the very suit schedule property, he had filed a suit in O.S No.257/2003 and the said suit was ended in compromise. He has further admitted that no RTC extract is produced in support of the suit schedule property as the RTC extract as per Ex.P.7 is not at all belonging to the suit schedule property. Therefore, it cannot be said that the appellant-plaintiff has established the identity of the suit schedule property. When the appellant-plaintiff has approached the Court by filing a suit for declaration of his title and for injunction, it is his duty to prove the said fact to the satisfaction of the Court. Till then, he is not entitled to any relief at the hands of the Trial Court or the First Appellate Court. When the appellant-plaintiff has approached the Court by filing a suit for declaration of his title and for injunction, it is his duty to prove the said fact to the satisfaction of the Court. Till then, he is not entitled to any relief at the hands of the Trial Court or the First Appellate Court. Perusal of the materials on record would clearly show that there is absolutely no material in favour of the appellant- plaintiff to prove his title and possession over the suit schedule property. The Trial Court as well as the First Appellate Court have appreciated the oral and documentary evidence on record and also pleadings of both the parties properly and ultimately came to the conclusion in dismissing the suit of the appellant-plaintiff which was confirmed by the First Appellate Court. Therefore, as both the Courts below have considered all the available materials on record and came to a right conclusion, I am of the view that no illegality has been committed by the Courts below in dismissing the suit of the appellant-plaintiff. So also, no perverse or capricious view has been taken by the Courts below in coming to such a conclusion. There are no legal or valid grounds for this Court to interfere with the judgment and decrees passed by the Courts below. There is no substantial question of law involved in this appeal to be tried by this Court. Hence, there is no merit in this appeal and it is accordingly dismissed.