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2017 DIGILAW 697 (KAR)

Rathnamma v. Dyamanna

2017-04-05

K.N.PHANEENDRA

body2017
JUDGMENT : 1. Heard the learned counsel for the appellant with regard to the admission of the appeal. Perused the records. 2. For the purpose of easy understanding and convenience, the ranks of the parties, as per their ranks before the trial Court, is retained. 3. The plaintiff filed a suit for declaration and possession of suit schedule property and also for damages of Rs.500/- per month for occupation of the suit schedule property illegally by the defendants. It is the case of the plaintiff that the Government through Tahasildar, Hosadurga granted a site situated in Hosadurga under Ashraya Yojana in the year 1996-1997. According to the site granted, the khata was made out in the name of the plaintiff and Grant certificate was also issued on 23.03.1998. Since that date of grant, the plaintiff has been in possession and enjoyment of the suit property. He has also paid taxes to the Government and thereafter, under the Rajeev Gandhi Rural Housing Scheme, the Town Municipality has granted house in his favour. Accordingly, on 30.06.2000, he constructed a house on the basis of the loan amount granted by the Municipality in the suit schedule property. The said house was mortgaged for the purpose of obtaining loan and the plaintiff has also repaid the said loan and got the said mortgage cancelled. It is the further case of the plaintiff that in the year 2011, the plaintiff and his family members had gone to their village locking the door of suit schedule property. In the month of march 2012, when they came back, they found that, the defendants had illegally broke open the lock put to the suit schedule property and were residing in the house. Hence, he filed a complaint before the police and Municipality. When the Municipality issued notice, the defendant had agreed to vacate the suit schedule property on 05.04.2012, but the defendant did not vacate the suit property. Hence, the plaintiff has filed this suit. 4. The defendants in pursuance of the notice, entered appearance and filed written statement. They have taken up the contention, apart from denying the allegation made by the plaintiff, that the Government has allotted the suit schedule property to the site-less persons and also under Rajeev Gandhi Rural Housing Scheme, houses were constructed to the houseless persons. 4. The defendants in pursuance of the notice, entered appearance and filed written statement. They have taken up the contention, apart from denying the allegation made by the plaintiff, that the Government has allotted the suit schedule property to the site-less persons and also under Rajeev Gandhi Rural Housing Scheme, houses were constructed to the houseless persons. It is the further case of the defendants that she had given application for grant of house. Accordingly, the local MLA orally allotted the site. As per the oral grant by the MLA, she was in possession and enjoyment of the said house. She has subsequently given a written application exactly mentioning the description of the property. It is also stated that she has been in possession of the said property for more than 12 years. The plaintiff has no right over the property. Therefore, she prayed for dismissal of the suit. 5. On the basis of the above rival contentions, the trial Court has framed the following issues: “1. Whether plaintiff proves that he is the owner of the suit schedule property? 2. Whether plaintiff proves defendant wrongfully occupied suit schedule property and liable to hand over the possession of the suit schedule property to plaint? 3. If so, plaintiff entitled damages of Rs.500/- p.m. from defendant from December 2011 to till handing over the possession of suit schedule property? 4. Whether the plaintiff entitled the relief as sought in the plaint? 5. What order or decree?” 6. Plaintiff has examined himself as PW1 and produced 21 documents which are marked as Ex.P1 to P21. Defendant has produced Ex.D1 to D9 and examined herself as DW1. She also examined two witnesses DW2 and DW3. The trial Court after analyzing oral, and documentary evidence on record has answered the above said issue Nos.1 and 2 in the affirmative, No.3 in the negative, No.4 in partly affirmative and partly decreed the suit of the plaintiff, ultimately declaring the plaintiff as the owner and directed the defendant to hand over the possession of the suit property within 3 months from the date of the order. 7. Being aggrieved by the said judgment and decree, the defendant Smt. Ratnamma preferred an appeal before the first appellate court in R.A.No.230/2016 before the Senior Civil Judge and KMFC, Hosadurga. The appellate court after hearing both the parties, framed the following points for consideration:- “1. 7. Being aggrieved by the said judgment and decree, the defendant Smt. Ratnamma preferred an appeal before the first appellate court in R.A.No.230/2016 before the Senior Civil Judge and KMFC, Hosadurga. The appellate court after hearing both the parties, framed the following points for consideration:- “1. Whether plaintiff was able to prove his ownership over the suit schedule property? 2. Whether the Judgment and decree passed by the learned Prl. Civil Judge, Hosadurga in, O.S.NO.325/2014 dated 08.01.2016 warrants interference of the Court? 3. What order?” 8. After analyzing the materials on record, the first appellate court answered point No.1 in the affirmative, point No.2 in the negative and dismissed the appeal filed by the defendant. 9. On careful perusal of both the judgments of the trial court and first appellate court, it is seen that both the Courts have appreciated the material on record and categorically held that, as per the documents produced before the Court i.e., Ex.P1 which is the Grant certificate, shows that the suit schedule property was granted in favour of the plaintiff as pleaded and evidence given by the plaintiff. The plaintiff has also paid taxes to the said property and he has produced the proof at Ex.P2 to P5 and in fact, an important document has been produced by the plaintiff which is the Mortgage Deed which is at Ex.P6, which shows that suit schedule property was mortgaged in favour of Town Panchayat for the purpose of constructing house. Later, the said mortgage was cancelled after satisfaction of the loan. He has also produced the water taxes paid by him and also the tax paid receipts which are marked as Ex.P7 to P15. He made complaint against the defendant that defendant has illegally occupied the possession of the suit schedule property and in fact Municipality has issued a notice to her which is at Ex.P17. It is the case of the plaintiff that the defendant had agreed to vacate the premise on 05.04.2012, but she did not vacate the same. 10. Of course, the trial court and the first appellate court have also meticulously examined the pleadings, evidence and documents produced by the defendant and it is clearly held that defendant has failed to prove the possession over the property. Ex.D3-6 produced by the defendant, which are the RTC extracts, are standing in the name of the plaintiff. 10. Of course, the trial court and the first appellate court have also meticulously examined the pleadings, evidence and documents produced by the defendant and it is clearly held that defendant has failed to prove the possession over the property. Ex.D3-6 produced by the defendant, which are the RTC extracts, are standing in the name of the plaintiff. It is the contention of the defendant that plaintiff is not entitled for any site or for a house to be granted to him by the Government under Ashraya Scheme. She also claimed that she has been in possession of the property and she produced Ration Card and Adhaar Card to show her possession over the suit schedule property. Both the Courts have considered the written statement and plaint schedule and held that the schedule mentioned in written statement and plaint are one and the same. Therefore, plaintiff and defendant are claiming the same property. Both the Courts, after appreciating the materials on record, have held that the defendant has not at all acquired any title to the property. On the other hand, the defendant has not produced any material to show, in what manner and in what capacity she entered the suit schedule property. As considered by both the Courts, the defendant entered the property by way of an oral direction issued by the local MLA which in no manner confer any right, title or interest on the defendant, unless there is a legal grant in her favour. It is also seen from the records that the defendant has taken up a contention that she has also made an application to the Government for grant of a house in her favour. But the said application is still pending for consideration. She has not made any effort to see that the government allots a site in her favour. It is also her contention that, plaintiff is not entitled for a grant of a house as he is owning property in his name and that he will not come within the category of site-less persons or for a grant of a house under the Ashraya Scheme. 11. On the basis of the pleadings, appreciation of the evidence, both oral and documentary, produced and adduced by the respective parties, I do not find there is any erroneous finding given by the Courts below. 11. On the basis of the pleadings, appreciation of the evidence, both oral and documentary, produced and adduced by the respective parties, I do not find there is any erroneous finding given by the Courts below. In the above said facts and circumstance, no substantial question of law arises for the consideration of this court. However, it is left to the defendant to question the grant made in favour of the plaintiff before the appropriate forum. 12. With these observations, following order is passed. ORDER This appeal is dismissed as no substantial question of law arises for consideration in peculiar circumstances of the case. No order as to costs. In view of the dismissal of the appeal, I.A.No.1/2017 does not survive for consideration. Hence, it is dismissed.