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2014 DIGILAW 888 (KAR)

R. Channappa v. Shamaiah Setty

2014-10-13

R.B.BUDIHAL

body2014
Judgment : 1. Heard the arguments of the learned counsel appearing for the appellant-plaintiff and also the learned counsel appearing for respondent No.1(a) and (b), on admission. 2. Learned counsel for the appellant during the course of arguments has submitted that the appellant filed the suit before the trial Court for the relief of declaration that plaintiff has become the owner of the suit schedule property by way of adverse possession and also for the consequential relief of permanent injunction to restrain the defendants from alienating the suit schedule property and also encumbering the same in any manner. That appellant was in possession and enjoyment of the suit schedule property since from the year 1970 and to show his possession he has produced record of rights before the trial Court. Even though in the record of rights in cultivators column, name of the appellant was appearing, the trial Court as well as the first appellate Court have not at all taken this aspect into consideration and ultimately, the trial Court has dismissed the suit of the appellant-plaintiff, which was confirmed by the first appellate Court. He has also submitted that the material placed by the plaintiff by way of oral as well as documentary evidence were not properly considered by both the Courts below and hence, there is an illegality committed by both the Courts below in dismissing the suit of the appellant-plaintiff. It is submitted that there are serious questions of law and facts to be considered by this Court in the appeal and hence, appeal is to be admitted. 3. As against this, learned counsel for respondent No.1(a) and (b) during the course of his arguments has submitted that the plaintiff has deliberately failed to prove that he was in possession and enjoyment of the suit schedule property from the year 1970 and he has perfected his title by way of adverse possession. Mere entry in the record of rights for some period will not show that plaintiff was cultivating the land and he has perfected his title by way of adverse possession. Both the Courts below have taken into consideration both oral and documentary evidence placed on record and have rightly come to the conclusion to dismiss the suit of the plaintiff. No illegality has been committed by the trial Court as well as the first appellate Court. Both the Courts below have taken into consideration both oral and documentary evidence placed on record and have rightly come to the conclusion to dismiss the suit of the plaintiff. No illegality has been committed by the trial Court as well as the first appellate Court. There are no valid and justifiable grounds for this Court to interfere into the judgment and decree of both the Courts below. Hence, he submitted to dismiss the appeal. 4. I have perused the judgment and decree passed by the trial Court as well as the appellate Court, so also, the grounds urged in the appeal memorandum by the appellant-plaintiff. 5. On a perusal of the judgment of the trial Court it is seen that appellant herein has filed the suit seeking declaration of title to the suit schedule property by way of adverse possession and for consequential relief of permanent injunction to restrain the defendants from alienating the suit schedule property and also encumbering the same in any manner and for costs. In the plaint the plaintiff has pleaded that he is in peaceful possession and enjoyment of the schedule property from more than two decades and he is raising ragi and other crops in suit schedule property. He is in uninterrupted possession and cultivation of the suit schedule property. Defendant being a very busy merchant throughout his career rarely found time to bestow his attention in the agriculture. As such, he was not in possession of the suit schedule property. It is also the contention of the appellant-plaintiff that he trespassed into the suit schedule property in the year 1970 and since then he is in continuous possession. His possession is actual, feasible, open, exclusive, continuous, uninterrupted and adverse to the interest of the defendant. Hence, he has sought for declaration of his title. 6. The defendant has filed the written statement denying the case of the plaintiff. It is also denied that plaintiff has trespassed into the suit schedule property in the year 1970 and that plaintiff has perfected his title to the suit schedule property by way of adverse possession. He has also contended that the RTC extract of the suit schedule property stands in the name of deceased defendant. He is paying necessary revenue to the Government and is in peaceful possession and enjoyment of the suit schedule property. He has also contended that the RTC extract of the suit schedule property stands in the name of deceased defendant. He is paying necessary revenue to the Government and is in peaceful possession and enjoyment of the suit schedule property. He has also contended that earlier also plaintiff filed the suit in O.S.No.196/1995 on the file of the Civil Judge (Jr.Dn.) at Devenahalli and he has suppressed this fact. So also, the plaintiff has filed the application before the Land Tribunal seeking occupancy rights in respect of the suit schedule property and the same has been dismissed by the Land Tribunal. On the basis of these pleadings, the trial Court has framed as many as six issues and after considering the merits of the case, ultimately, has come to the conclusion that the plaintiff has utterly failed to prove his case and hence, dismissed the suit. 7. Perusing the judgment and decree of both the Courts below it is seen that though it is specifically contended by the plaintiff in the plaint as well as in the oral evidence that since 1970 the plaintiff is in possession and enjoyment of the suit schedule property, but looking to the documents produced in the case i.e., RTC extracts, the name of the deceased defendant Shamaiah Setty is appearing in the owner's column and name of the plaintiff is appearing in the cultivator's column from the year 1979-1996 and thereafter again the name of the deceased defendant is appearing in the cultivator's column for the year 1996-97. The materials show that these documents are not supporting the contention of the plaintiff that he is in physical possession and enjoyment of the schedule properties from the year 1970 itself. It has been observed by both the Courts below that though P.Ws.2 and 3 have been examined, but they are not the neighbourers of the suit schedule land. Even in the suit the order sheet of the suit filed by the plaintiff in O.S.No.196/1995 for permanent injunction has been produced as per Ex.D1 and the materials also show that subsequently the said suit has been dismissed for non-prosecution. It has also come on record that the present plaintiff filed the application before the Land Tribunal claiming occupancy rights in respect of the suit schedule property and the same has been dismissed by the Land Tribunal. It has also come on record that the present plaintiff filed the application before the Land Tribunal claiming occupancy rights in respect of the suit schedule property and the same has been dismissed by the Land Tribunal. All these aspects have been considered by both the Courts below and ultimately, has held that plaintiff has failed to prove his case that he perfected the title to the suit schedule property by way of adverse possession. 8. Looking to the materials on record, the stand taken by the plaintiff in his pleadings as well as his oral evidence are inconsistent with each other. On the one hand he is claiming adverse possession on the ground that he trespassed into the suit schedule property in the year 1970 and continued in possession and on the other hand, he claims tenancy rights in respect of the said property by filing application seeking occupancy rights, which has been rejected by the Land Tribunal. In the plaint averments he has not whispered about the filing of the earlier suit as well as filing of his application before the Land Tribunal and its rejection. This has been properly examined by the Courts below and both the Courts have come to the conclusion that the plaintiff suppressed the material facts and he has not approached the Court with correct facts. 9. It is also the observation of the trial Court as well as the first appellate Court that the witnesses examined on the side of the plaintiff regarding possession of the plaintiff are not the adjoining owners and no importance can be given to their evidence. Even with regard to entering the name of the plaintiff in the RTC extracts from the year 1979 the defendant has challenged the same before the revenue authorities and ultimately, the revenue authorities have passed the order for deleting the name of the plaintiff. Hence, it is seen that both the Courts below have properly considered each and every aspect of the matter and also both oral and documentary evidence on record and have rightly come to the conclusion in dismissing the suit of the plaintiff and confirming the same by the first appellate Court. Therefore, there is no illegality committed by the Courts below nor there is any perverse or capricious view taken by the Courts below in giving a concurrent finding. Therefore, there is no illegality committed by the Courts below nor there is any perverse or capricious view taken by the Courts below in giving a concurrent finding. No substantial question of law arises for consideration in this appeal. Hence, appeal is dismissed.