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2013 DIGILAW 868 (KAR)

H. T. RAMEGOWDA v. H. M. CHENDREGOWDA

2013-07-31

RAM MOHAN REDDY

body2013
JUDGMENT RAM MOHAN REDDY, J.-The defendant in O.S. No. 254/1996 aggrieved by the judgment and decree dated 29.05.2006 allowing R.A. No. 15/2006 to reverse the reasons, findings and conclusions of the trial Court in the judgment and decree dated 18.08.2000 dismissing O.S. No. 254/1996, has presented this second appeal. Briefly stated facts are: 2. Respondent instituted O.S. No. 254/1996 for permanent injunction restraining the appellant arraigned as defendant from interfering with the plaintiffs peaceful possession and enjoyment of the land measuring 04 Acres 30 Guntas in Sy. No. 118/P of Heggudlu village bounded on: East by : Coffee land of Mukthar Ahmed; West by: Coffee land of Basamma, W/o Mallegowda; North by: Heggudlu-Thalavara pathway and South by: River/Bynigadde Stream (Halla). According to the plaintiff, the suit schedule property subject matter of darkhast under a bagair hukum saguvali chit No. 558/77-78, in his possession, cultivated Coffee, silver Oak and other shade bearing trees and paid the land revenue and fenced it with barbed wire and wooden poles. Plaintiff alleging that the appellant-defendant, having no manner of right, title and interest over the said property tried to remove the fence on the northern side and trespass into the property on 27.11.1996, the cause of action for the suit for permanent injunction. 3. Appellant-defendant, on notice, entered appearance and opposed the suit by filing written statement inter alia contending that the plaintiff was not in possession, occupation and enjoyment of the suit schedule property and that documents produced by the plaintiff were created as also denied the allegation of trespass. At paragraph No. 6, defendant admitted the fact that during the year 1978-79 one Tahsildar by name, Thimmaiah issued saguvali chit without following due process of law and that saguvali chit when seized by the Lokayuktha was subject matter of a pending enquiry. The boundaries furnished in the suit schedule pertaining to the said Saguvali Chit is incorrect. According to the defendant, the boundaries of the suit schedule property encompassed the land in the possession of the defendant. It was further asserted that the plaintiff was in possession of the land measuring 04 Acres 30 guntas in Sy. No. 118/P bounded on: East by: Coffee Estate of L.M. Goues; West by : Coffee estate of Sri Bona Pinto; North by: Heggudlu Talavara Pathway and South by: Pathway leading to Talavara from Heggudlu. It was further asserted that the plaintiff was in possession of the land measuring 04 Acres 30 guntas in Sy. No. 118/P bounded on: East by: Coffee Estate of L.M. Goues; West by : Coffee estate of Sri Bona Pinto; North by: Heggudlu Talavara Pathway and South by: Pathway leading to Talavara from Heggudlu. The defendant further asserted that he had filed an application dated 27.11.1964 to the Tahsildar, Mudigere for grant of land under Darkhast and in anticipation of the grant, had cultivated some portion of the land and fenced it to an extent of 5 Acres. It was lastly stated that the darkhast proceedings when completed, revenue officials visited the spot, drew a mahazar and prepared the sketch recommending grant of land in Sy. No. 118/P in favour of the defendant. 4. In the premise of pleadings of the parties, the trial Court framed the following issues:- "(1) Whether the plaintiff proves that, he is the lawful owner in possession and enjoyment of the schedule property on the date of suit? (2) Whether the plaintiff further establish the alleged interference of the defendant? (3) Whether the defendant establishes that, he is the owner in possession and enjoyment of the schedule property for the reasons set out in W/s? (4) Whether the plaintiff is entitled to the relief sought? (5) To what order or decree ?" Plaintiff when examined as PW. 1 and another witness as PW.2, marked documents Exs.P1 to P4 while the defendant when examined as DW. 1 and one witness as DW.2 marked four documents as Exs.D1 to D4. The trial Court, having regard to the material on record and evidence, both oral and documentary, returned findings in the negative over issue Nos. 1 to 4 and accordingly, dismissed the suit by the judgment and decree dated 18.08.2000. The trial Court observed that though the defendant admitted that the plaintiff was in possession and enjoyment of the suit schedule property, granted by way of bagair hukum saguvali chit issued by one Thimmaiah, the Tahsildar, however defendant failed to place before Court, material to establish that the said saguvali chit was subject matter of enquiry with the Lokayuktha, nevertheless, in the absence of proof of the original bagair hukum saguvali chit, concluded that the plaintiff did not establish possession of the suit schedule property. So also, the defendant having advanced a plea that he was in possession of the suit schedule property, failed to place on record relevant material such as Saguvali chit and the grant certificate, hence, the trial Court declined to accept as credible evidence, the testimony of DWs. 1 and 2, and accordingly, rejected the documents Exs.D1 to D4, which did not establish a grant in favour of the defendant and recorded a finding that defendant too was not in possession of the plaint schedule property. 5. In R.A. No. 15/2006 preferred by the plaintiff, the Fast Track Court I, Chikmagalur, re-appreciated the evidence both oral and documentary, framed the points for consideration and held that the admission of the defendant at paragraph No. 6 of the written statement, coupled with the admission in the cross-examination of DW.1 that he learnt during the year 1974, the then Tahsildar by name, Thimmaiah had issued a bagair hukum saguvali chit in respect of the suit schedule property in favour of the plaintiff, opined that the non-production of the saguvali chit was not justification for the trial Court to dismiss the suit. In addition, the lower appellate Court noticed that Exs.P1 to P4 the revenue records being the RTC, pahani, index of land, the record of rights and the tax paid receipts disclosed the name of the plaintiff as in possession and cultivation of land in Sy. No. 118/P, to hold that a presumption arose over the legality of the entries in the said documents which when not rebutted, accepted the testimony of PWs. 1 and 2, to reverse the reasons and findings of the trial Court that plaintiff was not in possession of the suit schedule property. In addition, the lower appellate Court examined the sketch-Ex.D3, disclosing that the land in possession of the defendant is described as block No. 1 while block No. 2 in possession of one H.K. Puttegowda, and the boundaries as: East by : Stream; West by : Government land; North by : Government land and stream and South by : land granted to Manjegowda. In terms of the said document, it was observed that the claim of the defendant that the plaintiff was not in possession of the suit schedule land and that the boundaries mentioned were that of the lands, granted to the defendant, was not established. In terms of the said document, it was observed that the claim of the defendant that the plaintiff was not in possession of the suit schedule land and that the boundaries mentioned were that of the lands, granted to the defendant, was not established. In other words, the defence that the suit schedule land in possession of the defendant bound on the East by : Coffee land of Mukthar Ahmed; West by: Coffee land of Basamma, W/o Mallegowda; North by: Heggudlu-Thalavara pathway and South by: River/Bynigadde Stream (Halla), was far from truth. The oral testimony of DW. 1, which was self-interested coupled with the testimony of DW.2, who in cross-examination admitted to have no knowledge of the boundaries of the land in possession of the defendant, the lower appellate Court reversed the findings recorded by the trial Court. So also, the allegation that defendant interfered with the plaintiffs peaceful possession and enjoyment was more probable in the light of the plea in defence advanced by the defendant, the lower appellate Court concluded that the plaintiff made out a case. The lower appellate Court allowed the appeal by judgment and decree dated 29.05.2006 to set aside the judgment and decree of the trial Court and accordingly decreed the suit. 6. This appeal was admitted on 30.09.2007 for consideration of the following substantial question of law: "Whether the lower appellate Court was justified in interfering with the well considered judgment of the trial Court and in holding that the schedule property is granted to the plaintiff in the absence of production of saguvali chit which would have shown the exact location of the property which is granted to the plaintiff?" 7. Sri Rajendra S., learned Counsel for the appellants submits that the trial Court, having considered the material evidence, both oral and documentary, justifiably concluded that there was a defect in the plaintiffs case of being in possession of the suit schedule property, and in the absence of the saguvali chit, the location of the property was not identifiable. Learned Counsel seeks to sustain the judgment and decree of the trial Court as being well merited, fully justified and not calling for interference. 8. Respondent, though served, is absent. 9. Learned Counsel seeks to sustain the judgment and decree of the trial Court as being well merited, fully justified and not calling for interference. 8. Respondent, though served, is absent. 9. Having heard the learned Counsel for the appellants, perused the pleadings, depositions of the witnesses for the plaintiff and defendant as well as the documentary evidence and examined the judgment and decree of the Courts below, undoubtedly, the admission of the defendant that he was fully aware of the issue of a bagair hukum saguvali chit during the year 1977-78 in favour of the plaintiff by one Thimmaiah, the Tahsildar, in respect of the suit schedule property, it cannot be said that the lower appellate Court's finding was improper. So also, in the absence of relevant material constituting substantial legal evidence in support of the defence that bagair hukum saguvali chit was subject matter of proceedings before the Lokayuktha, the self-interested testimony of DW.1 in the absence of corroboration, too, was justifiably not accepted as credible evidence by the lower appellate Court. In fact, the defendant, while cross-examining PW. 1, suggested that the plaintiff is in possession of the suit schedule property under a bagair hukum saguvali chit, which is lost sight of by the trial Court. In that view of the matter, it would be too far fetched for the appellant-defendant to contend that in the absence of production of the saguvali chit, the plaintiff had not made out a probable case of being in possession of the suit schedule property. 10. In my considered opinion, no exception can be taken to the reasons, findings and conclusions arrived at by the lower appellate Court. The substantial question of law is answered in the affirmative in favour of the plaintiff and against the defendant. The appeal, devoid of merit, is dismissed.