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2014 DIGILAW 299 (KAR)

YELLAPPA v. HUSSAINSAB FAKRUSAB ANGADI

2014-03-04

A.V.CHANDRASHEKARA

body2014
JUDGMENT This is an appeal filed by the defendants of an original suit bearing O.S.No.123/1998, which was pending on the file of 1st Additional Civil Judge (Jr.Dn.), Hubli. Respondent herein was the plaintiff in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court. 2. A suit came to be filed by the plaintiff in respect of property bearing VPC No.21 in Ward No.1 of Mantur village of Hubli Taluk measuring 13 feet East-West and 78 feet North South, bounded by East-Property purchased by plaintiff and backyard, West-Property of Yallappa, Hanamappa Doddamani and Yallappa Ningappa Doddamani and Kanakappa Ningappa Doddamani of Backyard and house property, North-Government road and South-Property of Defendant No.1 and 2 and Yallappa Hanamappa Doddamani and house property. The case of the plaintiff is that he is the absolute owner in possession of property bearing VPC No.21 as described in the schedule appended to the plaint and that the defendants are adjoining owners on the southern side. Since they started interfering with his possession, he had to file a suit for the relief of permanent injunction. 3. Defendants appeared before the trial Court and filed detailed written statement. They have specifically denied all the material averments found in the plaint. According to them, property bearing VPC Nos.134 and 135 of Mantur village absolutely belongs to them and it measures East-West 63 feet and North-South 85 feet, backyard and house property measuring 22 feet East-West and 47 feet North-South, bounded by; East-House and open space of plaintiff, West-property of Laxamappa, Ramachandrappa and Mahadevappa, North-Government road and South-House property of defendants and the property of Yellappa Talawar. The said schedule, according to the defendants, is the counter claim schedule and they have also produced a sketch to that effect. Defendants are stated to be the absolute owners of the counter claim property and they are in actual possession of the same since several years without any obstruction. According to them, plaintiff is no way connected with the counter claim property and the plaintiff has purposefully shown VPC No.21 as suit property, but in fact the property shown by the plaintiff is a part and parcel of property bearing VPC Nos.134 and 135. With these pleadings he had prayed for the relief of permanent injunction by way of counter claim. 4. With these pleadings he had prayed for the relief of permanent injunction by way of counter claim. 4. According to the defendants, plaintiff has suppressed the material facts before the Court and had obtained temporary injunction and on the basis of the same, plaintiff is stated to have encroached an area measuring 9 feet x 30 feet towards East and adjoining to this 12 feet x 78 inches (VPC Nos.134 and 135) and has forcibly put up a fence and put up some illegal construction. The plaintiff is stated to have encroached the counter claim property to an extent of 9 feet x 30 feet shown by letters ‘GHIJ’ as indicated in the hand sketch submitted by him. Defendants have also prayed for consequential relief of mandatory injunction to remove the illegal construction. A Commissioner had also been appointed by the Court to visit and submit a report. 5. On the basis of the above pleadings, following issues came to be framed. i) Whether plaintiff proves that, he is in peaceful possession and enjoyment of suit property as owner? ii) Whether plaintiff proves that, the defendants are causing obstruction to his peaceful possession and enjoyment of suit property? iii) Whether description of suit property is correct and true? iv) Whether the suit of plaintiff is barred by limitation? v) Whether defendants have proved that, they are in peaceful possession and enjoyment of counterclaim property bearing VPC No.134 and 135 as a owner? vi) Whether defendants prove that, the plaintiff on the strength of T.I. order, illegally encroached upon counter claim property to the extent of 9’ x 30’ towards East adjoining this 12’x18’ (VPC No.134 and 135) and forcibly put up the fence and made illegal construction? vii) Whether defendants are entitled for the relief’s sought for? viii) Whether plaintiff is entitled for the relief sought for? ix) What order or decree? 6. Plaintiff is examined as P.W.1 and two witnesses have been examined on his behalf. Defendant No.1 is examined as D.W.1 and four witnesses have been examined on is behalf. 7 exhibits have been got marked on behalf of the plaintiff and 40 exhibits have been got marked on behalf of the defendants. ix) What order or decree? 6. Plaintiff is examined as P.W.1 and two witnesses have been examined on his behalf. Defendant No.1 is examined as D.W.1 and four witnesses have been examined on is behalf. 7 exhibits have been got marked on behalf of the plaintiff and 40 exhibits have been got marked on behalf of the defendants. After hearing the arguments and assessing the evidence, the learned Civil Judge (Jr.Dn.) has chosen to decree the suit as prayed for and has dismissed the counter claim of the defendant vide considered judgment dated 27.06.2002. It is this judgment and decree passed in O.S.No.123/1998, which was called in question before the first appellate Court by filing a regular appeal under Section 96 of CPC in R.A.No.185/2002. The said appeal has also been dismissed by a considered judgment dated 20.10.2008. Several grounds have been urged before this Court in the appeal memo filed under Section 100 of CPC. Several questions of law have been proposed as substantial questions of law within the purview of Section 100 of CPC. The learned counsel for the appellants has submitted his arguments on the question of admitting the appeal in order to frame substantial question of law. 7. Perused the judgment of both the Courts. The plaintiff has specifically mentioned the boundaries and measurements of his property in the schedule appended to the plaint. According to the plaintiff, his property bears VPC No.21 of Mantur village. To the southern side of his schedule property is the house of defendant Nos.1 and 2 and backyard. This fact is not disputed by the defendants. Admittedly, plaintiff and defendants are adjoining owners. The defendants not only chose to deny the very title and possession of the plaintiff in respect of property bearing VPC No.21, but even went to the extent of setting up a counter claim in respect of the property bearing VPC Nos.134 and 135. Specific boundaries and measurements have also been indicated in the written statement and it is termed as counter claim property. According to the defendants, the property shown by the plaintiff in his schedule is a part and parcel of the property bearing VPC No.134 and 135. 8. Specific boundaries and measurements have also been indicated in the written statement and it is termed as counter claim property. According to the defendants, the property shown by the plaintiff in his schedule is a part and parcel of the property bearing VPC No.134 and 135. 8. What is argued before this Court by the learned counsel for the appellants is that, issue No.5 has been held in the affirmative and therefore, defendants have virtually succeeded in the counter claim though it is formally dismissed in the operative portion of the judgment. According to him, the affirmative finding on issue No.5 is detrimental to the case of the plaintiff and therefore the dismissal of counter claim of the defendants does not affect the stand of the defendants in any manner. On a question being put to him as to whether any appeal had been filed as against the dismissal of the counter claim, the learned counsel for the appellants has fairly submitted that there was no necessity to file a separate appeal against the dismissal of the counter claim, more particularly, in the light of a positive finding on issue No.5. 9. This Court is unable to accept the said contention. The suit filed by the plaintiff was also for permanent injunction and the counter claim filed by the defendants initially for permanent injunction and subsequently got converted into mandatory injunction on the ground that the plaintiff chose to put up some illegal construction by encroaching the counter claim property during the pendency of the suit. But issue No.6 has been held in the negative and thereby the contention of the defendants that plaintiff has encroached the property of the defendants in VPC No.134 and 135 has been negatived. It is further held that though the defendants have been able to prove that they possess the property bearing VPC Nos.134 and 135, the trial Court has specifically held that schedule property is not a part and parcel of the counter claim property as shown in the rough sketch appended to the counter claim and the schedule appended to the written statement filed by the defendants. 10. In the light of the dismissal of the counter claim, defendants should have filed an appeal under Section 96 of CPC. The counter claim as contemplated under Order 8 Rule 6A of CPC is nothing but a suit for all practical purposes. 10. In the light of the dismissal of the counter claim, defendants should have filed an appeal under Section 96 of CPC. The counter claim as contemplated under Order 8 Rule 6A of CPC is nothing but a suit for all practical purposes. In a suit of the plaintiff, if a counter claim is made, notwithstanding the dismissal of the plaintiff’s suit, the Courts will have to proceed with the counter claim. Such being the case, defendants did not choose to file any appeal against the dismissal of their counter claim. 11. Apart from that, the positive finding on issue No.5 cannot be construed as though the schedule property described by the plaintiff in the rough sketch and the schedule appended to the plaintiff is a part and parcel of the counter claim property. Even otherwise, there is negative finding on issue No.6 in regard to the alleged encroachment of the counter claim property by the plaintiff. Having not preferred any appeal against the dismissal of the counter claim under Section 96 of CPC before the first appellate Court, the second appeal filed before this Court is not maintainable in law. 12. In the light of a categorical finding by the trial Court that the schedule property of the plaintiff is not part and parcel of the property described in the counter claim, no substantial question of law arises for consideration by this Court. The questions of law proposed in the appeal memo are not substantial questions of law within the purview of Section 100 of CPC. Viewed from any angle, there are no merits in the appeal filed under Section 100 of CPC. 13. Alternatively, the trial Court has assessed the evidence on the touchstone of intrinsic probabilities. Though the report of the Commissioner is not accepted by the trial Court, it has based its finding on the oral evidence of the parties and both the Courts have adopted right approach to the real state of affairs. No illegality or perversity is found in the approach adopted by the trial Court and the first appellate Court. Hence, the appeal is liable to be dismissed as unfit for admission. ORDER 14. The appeal is dismissed as unfit for admission. The judgments of the trial Court and the first appellate Court are upheld. No illegality or perversity is found in the approach adopted by the trial Court and the first appellate Court. Hence, the appeal is liable to be dismissed as unfit for admission. ORDER 14. The appeal is dismissed as unfit for admission. The judgments of the trial Court and the first appellate Court are upheld. Notwithstanding the dismissal of the appeal, the defendants are at liberty to file a comprehensive suit seeking the relief of declaration and consequential reliefs, if they are so advised, more particularly, in resect of an open space in terms of the principles laid down by the Hon’ble Supreme Court in the case Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors reported in AIR 2008 SC 2033 . There is no order as to costs.