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2014 DIGILAW 815 (KAR)

N. Varalakshmi v. Noorulla Khan

2014-09-15

A.S.PACHHAPURE

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JUDGMENT A.S. Pachhapure, J. 1. The appellant has challenged the Judgment and Decree of the trial Court, dismissing the suit for permanent injunction, confirmed in the appeal by the first appellate Court. The facts reveal that the appellant, who claims to be the tenant and owner of the land bearing Sy. No. 178/11, measuring 29 guntas described in the schedule to the plaint filed the suit for injunction to restrain the contesting respondents 1 and 2 from putting up any construction over the suit property and later sought for mandatory injunction to demolish the construction made in the suit land. Respondents 1 and 2 appeared before the trial Court and filed the written statement denying the title of the appellant and construction of the house on the suit land. The trial Court framed issues and permitted the parties to produce evidence. Accordingly, on behalf of the plaintiff, PWs. 1 to 3 were examined and documents Exs. P1 to 7 were marked. On behalf of the defendants, D.W.1 was examined and documents Exs. D1 to 17 were marked. During the pendency of the trial Court, a Commissioner was appointed to survey the suit land and he inspected the suit property and submitted his report, including the sketch and other documents. He was examined as C.W. 1 and in his evidence, documents Exs. C1 to 5 were marked. The trial Court after hearing counsel for the parties and on appreciation of the evidence on record, dismissed the suit. The decree of dismissal was affirmed by the first appellate Court in R.A. No. 42/2009. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed. 2. The appellant has filed an application, seeking permission to produce additional documents, i.e., copy of the Order of the Land Tribunal granting occupation rights over the suit property, katha extract, RTC, etc. 3. I have heard learned counsel for both the parties. 4. It is the contention of learned counsel for the appellant that during the pendency and subsequent to disposal of the appeal before the first appellate Court, the Tribunal has granted occupancy rights over the suit agricultural land and this document is sufficient to prove his title as the Order of the Land Tribunal has not been questioned by any of the parties in appropriate proceedings. He submits that as the construction by the defendant is in the suit land, by permitting production of the document aforesaid he submits that the appeal may be admitted as the Courts below have ignored the facts on record and submits to raise substantial questions of law for consideration. Learned counsel for respondent No. 1 has supported the Judgment and Decree of the Courts below. 5. It is the contention of respondent No. 1 that the construction is not on the suit agricultural land. It is in pursuance of this construction, a Commissioner was appointed by the trial Court to survey the suit agricultural land and to show the location of the aforesaid construction. C.W. 1 visited the suit property, held the survey and submitted the report and also the sketch. As per the said report, the construction is over in the suit agricultural land. This evidence of C.W. 1 and his report are not accepted by the Courts below for the reasons that at the time of the survey, there were no boundary stones and C.W. 1 has admitted in the cross-examination that the survey was not done on the basis of the boundary stones as the stones were not found and he also admits that to fix the location of the suit agricultural land, it is necessary to survey the adjoining lands as well as there are no boundaries existing on the date of the survey. In view of this doubt expressed by C.W.1 in the cross-examination, the Courts below have held that the construction is not over on the suit agricultural land and therefore, dismissed the suit of the appellant both for injunction and mandatory injunction. 6. In the absence of the survey of the adjoining lands, the location of the suit property cannot be fixed and in the absence of the location of the suit property, the obstruction cannot be said to be an encroachment of the suit agricultural land. That apart, the appellant has been granted occupancy right, subsequent to disposal of the appeal before the first appellate Court. She is claiming title on the basis of the Order of the Land Tribunal. So, looking at the contentions raised by the parties, there are complicated questions, which could be sorted out in a comprehensive suit for declaration with other ancillary reliefs. She is claiming title on the basis of the Order of the Land Tribunal. So, looking at the contentions raised by the parties, there are complicated questions, which could be sorted out in a comprehensive suit for declaration with other ancillary reliefs. Considering the submissions made by learned counsel for the appellant and in the context of the aforesaid material placed on record, I do not find any substantial questions of law for consideration in this appeal. At the most, the appellant can approach the Courts below for the relief of declaration and other consequential reliefs if she is so advised. Accordingly, the appeal cannot be admitted and it is accordingly dismissed. In view of the aforesaid finding, I.A. No. 2/13 filed for stay and I.A. No. 2/14 filed for production of additional documents do not survive for consideration and hence they are rejected.