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2014 DIGILAW 885 (KAR)

G. P. Narashimahaiah v. S. B. Shivaji Rao Sindhya

2014-10-10

R.B.BUDIHAL

body2014
Judgment : 1. This regular second appeal is preferred by the appellant-plaintiff being aggrieved by the judgment and decree dated 10.3.2006 passed by the learned Civil Judge (Sr.Dn.) and JMFC., Bhadravathi in R.A.No.7/2004 in reversing the judgment and decree dated 17.4.2004 passed by the lower Court in C.S.No. 117/1993. 2. The facts leading to the present appeal are that appellant in this regular second appeal filed the suit before the trial Court against the respondents- defendants seeking the relief of permanent injunction in respect of suit schedule properties to restrain the defendants, their men, agents and servants or representatives from entering into or interfering with the plaintiffs peaceful possession arid enjoyment of the suit schedule properties. The suit schedule properties are landed properties as shown in schedule 'A' and 'B' to the plaint. It is averred in the plaint by the appellant- plaintiff that he is the owner in possession of the suit schedule lands and said properties have been allotted to him in the family partition in the year 1965 since then, he is in peaceful possession and enjoyment of the properties and cultivating the said properties personally without any interruption. Subsequent to the allotment of the said property, khata and RTC stands in his name and he is paying kandayam to the government. The defendants who have no manner of right, title or interest over the schedule properties and without any authority of law, with an intention to take forcible possession of the suit schedule properties and with the motive to harvest the crop, interfered with the possession and enjoyment of the plaintiff. Defendants are powerful persons in the locality. On 8.2.1993, defendants came near the suit schedule properties and obstructed the cultivation of the land with an intention to cause loss and inconvenience to the plaintiff and threatened the plaintiff with dire consequences if he does not quit the suit schedule lands. Plaintiff resisted the illegal and highhanded acts of the defendants, but he is apprehending danger to his legal rights and the rest over the schedule properties and illegal invasion of the defendants over the suit lands. Defendants being influential persons may again try to interfere with the plaintiffs peaceful possession and enjoyment of the schedule properties and in that event it is very difficult for the plaintiff to resist the illegal and highhanded act of the defendants. Hence, he has filed the suit. 3. Defendants being influential persons may again try to interfere with the plaintiffs peaceful possession and enjoyment of the schedule properties and in that event it is very difficult for the plaintiff to resist the illegal and highhanded act of the defendants. Hence, he has filed the suit. 3. The respondent No. 1-defendant No.1 in the suit has filed the written statement contending that the defendants names and address are not correctly shown in the cause title of the plaint. The allegation that plaintiff is the owner in possession of the suit schedule lands as pleaded in paragraph No.2 of the plaint are all false. The documents produced along with the plaint are all created and concocted documents which lacks the bonafides. In fact, defendant No.1 is in actual possession and cultivation of 4 acres 9 guntas including 7 guntas of kharab land in Sy.No.8/11 and 1 acre of land in Sy.No.8/1 of Bhadra colony village, in all, measuring 5 acres 9 guntas. The defendant is in actual possession and cultivation of the above lands after he purchased the same from its previous owner Kamalamma Savithramma, W/o late Ramashastri and her son K.R.Manjunath. The vendor Smt. Kamalamma was in undisturbed continuous possession and cultivation of the said lands till she sold the same to defendant No. 1 and now the defendant No. 1 is in actual possession of the same as owner. Plaintiff has got no right, title or interest. By giving wrong description of the properties, plaintiff wanted to lay hands in the property of the defendants. There is no property as described by the plaintiff in the plaint nor he is in possession. The allegations that defendant has tried to have forcible possession of the plaint schedule properties and tried to harvest the crop and defendants are powerful persons and on 8.2.1993 defendants tried to interfere with his possession are all false and baseless. There is no cause of action to file the suit. The suit as brought for bare injunction without seeking the relief of declaration is also not maintainable. Plaintiff has not approached the Court with clean hands. Hence, he has sought to dismiss the suit. 4. On the basis of the said pleadings, the lower Court has framed the following issues: i) Whether the plaintiff proves the correctness of the cause title? ii) Whether the plaintiff proves the correctness of the boundaries shown in the schedule? Plaintiff has not approached the Court with clean hands. Hence, he has sought to dismiss the suit. 4. On the basis of the said pleadings, the lower Court has framed the following issues: i) Whether the plaintiff proves the correctness of the cause title? ii) Whether the plaintiff proves the correctness of the boundaries shown in the schedule? iii) Whether the plaintiff proves his lawful possession and enjoyment of the suit land as on the date of suit? iv) Whether plaintiff proves interference by defendants? v) Whether the suit is maintainable without the relief of declaration? vi) What decree or order? After considering the merits of the case, ultimately, the lower Court has decreed the suit and has granted permanent injunction against the respondents- defendants. 5. Being aggrieved by the judgment and decree of the trial Court, defendants have preferred an appeal in K A.No.7/2004 and the Civil Judge (Sr.Dn.) & JMFC., at Bhadravathi after considering the merits of the said appeal, has allowed the appeal and set aside the judgment and decree of the trial Court and consequently, suit filed by the plaintiff was dismissed. 6. Being aggrieved by the judgment and decree of the lower appellate Court, the plaintiff has preferred the present regular second appeal on the grounds that the first appellate Court is not justified in allowing the appeal on the basis of the mutation register, registered partition deed and also record of rights showing the name of the plaintiff in the kabzedar and cultivator's column. The lower appellate Court has approached the case in a perverse manner and has set aside the judgment and decree of the trial Court on the basis of irrelevant considerations. The defendant has pleaded that be has purchased 4 acres of land from Smt.Kamalamma in Sy.No.8 and that was phoded as Sy.No.8/11 and plaintiff has not claimed any right to that property. But the defendant being a powerful person and under the guise of sale deed that he has purchased in the year 1993, tried to interfere with the plaintiffs possession, which aspect is ignored by the first appellate Court. The first appellate Court is not justified in setting aside the judgment and decree ct the trial Court, particularly when the plaintiff has produced the documents to show that he is in possession of the property and personally cultivating the land. The first appellate Court is not justified in setting aside the judgment and decree ct the trial Court, particularly when the plaintiff has produced the documents to show that he is in possession of the property and personally cultivating the land. The appellant-plaintiff has raised arecanut garden in the suit schedule property. The first appellate Court has failed to see that suit is for bare injunction and not for declaration of title. The appellant and his brother have purchased the properties by means of registered sale deed and subsequently, there was partition in the year 1965 between the appellant-plaintiff and his brother. The first appellate Court is not justified in disallowing the application filed by the plaintiff producing the certified copy of the registered sale deeds. If the judgment and decree of the first appellate Court are allowed to stand, it will end in miscarriage of justice to the appellant. 7. While admitting the appeal, this Court has framed the following substantial questions of law: i) Whether the judgment passed by the lower appellate Court in reversing the judgment and decree of the trial Court admits of perversity in as much as the very same set of documents have been re appreciated in a different manner by the lower appellate Court? ii) Whether the judgment rendered by the lower appellate Court is contrary to the documents, more particularly, Ex.P12 and P13, which were available on record? 8. Heard the arguments of the learned counsel appearing for the appellant. Learned counsel for the respondents submitted that his side of the arguments may be taken as heard. 9. I have perused the pleadings of both the parties presented before the trial Court, oral evidence of both sides, documents produced before the trial Court and also the judgment and decrees of both the Courts below. I have also perused the averments and the grounds urged in the appeal memorandum before this Court. 10. The appellant-plaintiff has filed the suit seeking the relief of permanent injunction in respect of the suit schedule properties. In the plaint it is alleged that in the family partition the schedule properties were fallen to the share of the plaintiff in the year 1965 and he has furnished the boundaries to the suit schedule properties as shown in Schedule 'A' and 'B'. In the plaint it is alleged that in the family partition the schedule properties were fallen to the share of the plaintiff in the year 1965 and he has furnished the boundaries to the suit schedule properties as shown in Schedule 'A' and 'B'. The respondents-defendants in their written statement have denied the case of the plaintiff stating that plaintiff is not at all in possession and enjoyment of the said properties and by showing wrong boundaries to the plaint, plaintiff wanted to lay his hands over the properties of the defendants. In view of these contentions, the trial Court as well as the first appellate Court have rightly observed that firstly the plaintiff has to establish the location and identity of the properties, otherwise, the decree even if it is granted in favour of the plaintiff, cannot be executed at all. But the trial Court, after considering the materials placed before it has observed that plaintiff has established the identity to the suit schedule properties and he has also established the boundaries to the suit schedule properties. But the first appellate Court while discussing the matter has taken into consideration the boundaries furnished to the properties in the registered partition deed of the year 1965 between the plaintiff and his brother, so also, the boundaries furnished to the suit schedule properties in the plaint schedule and has observed that they are not one and the same and therefore, it has come to the conclusion that the identity with the specific boundaries to the suit schedule properties is not at all established by the plaintiff. 11. I have also perused the boundaries furnished to the properties in the registered partition deed produced as per Ex.P1 and its certified copy at Ex.P2. Looking to the boundaries furnished in the said documents Exs.P1 and P2 and comparing to the schedule provided in the suit, they are not exactly tallying with each other. In the oral evidence of plaintiff P.W.1, he has stated that when the partition was effected under the registered partition deed at that time, the boundaries were mentioned in the said document, but subsequently, because of the subsequent transactions there is a difference in the boundaries. But in his oral evidence, he has not given satisfactory evidence as to when the subsequent transactions took place and between whom and how the boundaries are changed as contended by him. But in his oral evidence, he has not given satisfactory evidence as to when the subsequent transactions took place and between whom and how the boundaries are changed as contended by him. Therefore, only on the basis of vague evidence, the contention of the plaintiff cannot be accepted. The first appellate Court has taken into consideration all these aspects of the matter and came to the conclusion that the boundaries are not tallying with each other by comparing the suit schedule property boundaries with the documents Exs.P1 and P2. 12. Though in the plaint it is stated by the plaintiff that in the family partition between himself and his brother the suit schedule properties were fallen to his share, but to show the source of title to the said properties, he contended that the;/ purchased the properties from one Gururaj in the year 1965, but he has not produced the copy of the sale deed before the Court and none is examined from the side of the said vendor Gururaj. Although, in the evidence, plaintiff-P.W.1 has stated that he and his brother have purchased the property from Gururaj in the year 1965, but in his evidence he has deposed that in the year 1965 he has executed ostensible sale deed in favour of one Sabjansab Khuddus, but subsequently, as he has not re-conveyed the property, he filed the application before the Land Tribunal claiming occupancy rights in respect of the suit schedule properties. That document has been produced by the defendants as per Ex.D17 and in his cross-examination, he has admitted that he has filed such application before the Land Tribunal. But looking to the document Ex.D17, it shows that he has furnished the information that he has purchased the property to the extent of 2 acres in Sy.No,8 from Gururaj. This statement made by the plaintiff in Ex.D1 is not consistent with what he has pleaded in the plaint. Apart from that, in his cross-examination he has admitted that he is not having any property in Sy.Nos.8 and 9 and he has further deposed that because of that reason, he filed application before the Land Tribunal claiming occupancy rights. In view of this evidence of P.W. 1, it goes to the root of the matter. 13. Apart from that, in his cross-examination he has admitted that he is not having any property in Sy.Nos.8 and 9 and he has further deposed that because of that reason, he filed application before the Land Tribunal claiming occupancy rights. In view of this evidence of P.W. 1, it goes to the root of the matter. 13. It is no doubt true the suit is for bare injunction and it is not for declaration of title to the suit schedule property, but then, plaintiff has to prove his lawful possession over the suit schedule property as on the date of filing the suit. When, in his oral evidence he has stated that he and his brother have purchased the property from one Gururaj in the year 1965, the appellate Court has rightly examined and observed that how in the year 1960 the name of plaintiff has appeared in the suit schedule property records. This aspect is not clarified by the plaintiff during the course of his evidence and it also raises doubt as to the case of the plaintiff and these materials also goes to show that the case of the plaintiff as pleaded in the plaint and as deposed in his evidence before the Court is not consistent. When it is his case that himself and his brother have purchased the suit schedule properties from its owner one Gururaj, then what was the necessity for the plaintiff to file the application seeking occupancy rights in respect of the suit schedule properties. This aspect is also taken into consideration by the first appellate Court while considering the materials on record. 14. It is true that plaintiff has produced the record of rights and mutation entries for entering the name of plaintiff to the suit schedule properties and the RTC extracts Ex.P5 to P7 and P14 pertaining to Sy.No.8/3 and the entries from 1990-91 to 1995-96. Even in respect of Sy.No.9/ 1C the RTC extracts are produced by the plaintiff as per Exs.P8, P9 and P15 and the name of the plaintiff is mentioned for the year 1990-91 to 1995-96. On the basis of these entries, trial Court has come to the conclusion that plaintiff is in possession and enjoyment of the suit schedule properties. Even in respect of Sy.No.9/ 1C the RTC extracts are produced by the plaintiff as per Exs.P8, P9 and P15 and the name of the plaintiff is mentioned for the year 1990-91 to 1995-96. On the basis of these entries, trial Court has come to the conclusion that plaintiff is in possession and enjoyment of the suit schedule properties. But, it has also come on record that during the course of cross- examination P.W.I himself has admitted that in the year 1965 itself, he has executed ostensible sale deed in favour of one Sabjansab Khuddus. When there is such oral evidence of P.W.I regarding the sale transaction between himself and Sabjansab Khuddus, but to show that it was only ostensible sale deed and in spite of such sale deed he continued in possession of suit schedule properties, there is no acceptable evidence before the Court, as observed by the first appellate Court. 15. Regarding the entries in the record of rights and mutation entries, it is true that there is a presumption as per Section 133 of the Karnataka Land Revenue Act, but the said presumption is a rebuttable one and the other side can rebut the said presumption by producing acceptable material. In this case, the first appellate Court has discussed about the proceedings before the revenue authorities and the order passed by the JDLR wherein the JDLR has upheld the order of the ADLR passed by Shimoga, which aspect is also taken into consideration by the first appellate Court in coming to the conclusion that the said materials produced by the respondents-defendants also goes to show that the plaintiff has created false documents in order to grab the suit schedule properties. 16. In paragraph No.24 of its judgment, the first appellate Court has observed that Ex.D15 is the copy of the order passed by the JDLR, Bangalore in JDLR Revision Application No. 13/89-90. Wife of the appellant-plaintiff had filed this revision petition against the respondents and respondent No.3 in the said proceeding is the vendor of the defendants. It is also observed that JDLR in paragraph No.2 of his order has observed that it came to know that one Jayalakshmamma, W/o J.P.Narasimhaiah has been shown along with the name of Savithramma suspiciously and they have manipulated the documents. It is also observed that JDLR in paragraph No.2 of his order has observed that it came to know that one Jayalakshmamma, W/o J.P.Narasimhaiah has been shown along with the name of Savithramma suspiciously and they have manipulated the documents. The JDLR has observed in the same paragraph that the records and mutation documents pertaining to landed properties were transferred from ADLR to Revenue Department and again from Revenue Department to ADLR illegally. There is an illegal entry and overwriting in Form No. 10. Hence, the JDLR has ultimately dismissed the revision application as not maintainable, upholding the order passed by the ADLR, Shimoga and the said order has not been challenged before the higher forums. 17. Looking to the materials on record it is seen that the first appellate Court has extensively considered each and every aspect of the matter both oral and documentary and has come to the right conclusion to allow the appeal and to set aside the judgment and decree of the trial Court. The first appellate Court has taken into consideration the oral evidence lead by the parties, so also, the documentary evidence produced by both sides before the trial Court. Therefore, the judgment and decree of the first appellate Court is in compliance with the mandatory provision of Order 41 Rule 31 of C.P.C and no illegality has been committed nor there is any perverse or capricious view taken by the first appellate Court while passing the said judgment and decree. There are no valid and justifiable grounds for this Court to interfere into the judgment and decree passed by the first appellate Court. Hence, there are no merits in this appeal. Hence, appeal is dismissed.