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2016 DIGILAW 940 (KAR)

SWAMYGOWDA SANNEGOWDA v. NARANAIAH

2016-12-08

K.S.MUDAGAL

body2016
JUDGMENT : K.S. MUDAGAL, J. 1. This is the second defendant's appeal challenging the judgment and decree dated 13.03.2006 in R.A. No. 52/2001 passed by the Addl. District Judge, Hassan. By the said judgment, learned Addl. District Judge, Hassan confirmed the judgment and decree dated 28.08.2001 passed by the Civil Judge (Sr.Dvn.), Holenarasipura in O.S. No. 61/99 decreeing the suit of the plaintiff against the defendants for permanent injunction. 2. The appellant is the 2nd defendant in O.S. No. 61/99. The 1st respondent is the plaintiff and respondents 2 and 3 are defendant Nos. 1 and 3 respectively in the suit. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. 3. The subject-matter of the suit is the agricultural lands bearing Sy. No. 43/1 measuring 2 acres and Sy. No. 49/P measuring 1, acre 32 guntas of Basavanahally Kaval, Kasaba Hobli. Arkalgud Taluk with the boundaries as set-out in the plaint schedule. In the suit the plaintiff contended that the Government acquired his lands for the purpose of Hemavathi Reservoir Project, Gorur and in lieu of those lands granted him the suit lands vide grant certificate Nos. LND 1 CR 100/95/80-81 and 1/81-82 dated 07-05-1981. He contended that thereafter the katha is changed in his name and he is paying the land revenue. He contended that since the time of the grant, he is in possession and enjoyment of the suit property as absolute owner, Plaintiff further contended that since a week prior to the suit, the defendants without any manner of right and interest in the property are trying to oust him from the property. 4. Defendants 1 and 2 filed the written statement denying the case of the plaintiff. They further contended that the 2nd defendant is in unauthorized occupation of the suit lands since past 34 years and his names are entered in the Record of Rights in 1988 confirming hi s possession and the plaintiff in collusion with the revenue authorities has got up the documents in his favour. They further contended that since the 2nd defendant did not own any cultivable lands for the livelihood of himself and his family, he is cultivating that land and has even applied for grant of tenancy rights to the said land. Thus, they sought for dismissal of the suit. 5. They further contended that since the 2nd defendant did not own any cultivable lands for the livelihood of himself and his family, he is cultivating that land and has even applied for grant of tenancy rights to the said land. Thus, they sought for dismissal of the suit. 5. On the basis of the above pleadings, the trial Court framed the following issues: (1) Whether the plaintiff proves that he is in possession of the suit property? (2) Whether the cause of action arose to file this suit? (3) Whether the Court fee paid is insufficient? (4) Whether plaintiff is entitled for the relief sought for? (5) What order or decree? In support of the case of the plaintiff, plaintiff got examined himself as PW1, another witness Krishnegowda as PW2 and got marked Exs.P.1 to 6. On behalf of the defendants, Defendants 1 and 2 were examined as DW1 and DW2 and two other witnesses as DW3 and DW4 respectively and got marked Exs.D.1 to D.7. 6. The trial Court after hearing both the parties held that by virtue of the grant certificate - Ex.P.1, the plaintiff has become the owner of the property and Ex.P. 1 coupled with Exs.P.2 to 6 the Record of Rights, Mutation Register Extract, Revenue paid Receipts and the Patta Book show that he is in possession of the suit property as absolute owner thereof. Relying on Exs.P.1 to 6 and the oral evidence the trial Court decreed the suit rejecting the defence of the defendants. 7. The defendants challenged the said judgment and decree before the Additional District Judge, Hassan in R.A. No. 52/2001. The learned Addl. District Judge by judgment dated 13.03.2006 dismissed the appeal and confirmed the decree of the trial Court. 8. The 2nd defendant challenges the concurrent findings of the trial Court and the First Appellate Court in this appeal on the ground that the judgment and decree of both the Courts below are unsustainable since the property is not identifiable. 9. This Court while admitting the appeal has formulated the following substantial question of law: Whether the Courts below were justified in Decreeing the suit without there being any Proof for proper identification of the suit property? 10. The learned counsel for the appellant argued that in a suit for injunction, the plaintiff has to prove the identity of the property. This Court while admitting the appeal has formulated the following substantial question of law: Whether the Courts below were justified in Decreeing the suit without there being any Proof for proper identification of the suit property? 10. The learned counsel for the appellant argued that in a suit for injunction, the plaintiff has to prove the identity of the property. He contends that the Courts below relying on Ex.P.1 - the grant certificate have held that the plaintiff is in lawful possession of the property. Referring to Ex.P.1, he argued that in Ex.P. 1 the boundaries of the property are not mentioned and in column No. 6 meant for mentioning the boundaries of the property, it is only said that the boundaries are as per the sketch. He contends that plaintiff has not produced the sketch mentioned in Ex.P.1, therefore, the judgment and decree passed by the Courts below are without the proof of proper identification of the suit property which call for interference by this Court. 11. Section 5 of the Evidence Act requires a party to give evidence in any suit or proceedings of the existence or non-existence of every fact in issue. Section 3 of the Evidence Act defines the facts in issue to mean and include a fact which is asserted or denied in any suit or proceeding. The explanation to that definition says that in a matter relating to Civil Procedure Code, any Court records an issue of fact, the fact to be asserted or denied in answer to such issue, is a fact in issue. 12. In the light of the above provisions the question of proving the identity or boundaries of the property was arising to the plaintiff only if the defendants in their written statement disputed the same and an issue was framed on the same. In the plaint, the plaintiff has mentioned the survey numbers, extent and boundaries of the property. In the written statement the defendants have not denied the identity of the property or the boundaries as set-out in the plaint schedule. As against that, defendants 1 and 2 in the written statement and in the evidence specifically asserted that defendant No. 2 is in possession of the very same property. 13. In the plaint schedule, it is stated that the northern side of the suit property is the land of the 2nd defendant. As against that, defendants 1 and 2 in the written statement and in the evidence specifically asserted that defendant No. 2 is in possession of the very same property. 13. In the plaint schedule, it is stated that the northern side of the suit property is the land of the 2nd defendant. During the course of evidence, defendants contend that the Government has formed the road in their said land and since, the suit property was the adjacent Government land, for his livelihood, the 2nd defendant encroached that about 34 years back and since then he is in unauthorized occupation and cultivation of the same. 14. The defendants neither in their pleading nor in the evidence contend that the boundaries of the property as mentioned in the plaint vary from the property granted under Ex.P.1. It is also to be noted that the defendants claim that in respect of the same property, 2nd defendant has filed an application for grant of tenancy rights and the said matter is pending. When the defendants without disputing the boundaries and the identity of the property, set-up a specific defence that they are in possession of the very same property, the question whether the suit property is identifiable or not, did not lie for the consideration of the Courts below at all. In a case, parties are expected to prove a fact only when such fact is in issue. 15. Even otherwise, it is to be noted that in the cross-examination of the plaintiff's witness or in the defendant's evidence, the boundaries of the suit property were not disputed. Moreover, the Courts below while decreeing the suit have taken into consideration not only Ex.P.1 but also the material contentions in the pleadings and the other evidence on record. 16. Having regard to the aforesaid facts and circumstances, it cannot be said that there was no proof of identity of the suit property and the trial Court decreed the suit without the identity of the property and the First Appellate Court committed error in confirming the said decree. Therefore, this Court does not find any error in the judgment and decree passed by the Courts below and any justification to interfere with the same. Hence, the substantial question of law formulated by this Court is answered accordingly. The appeal is dismissed with costs.