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2019 DIGILAW 2283 (KAR)

Dharmegowda v. Savitha

2019-12-11

K.NATARAJAN

body2019
JUDGMENT : K. NATARAJAN, J. 1. This appeal is filed by the appellant/plaintiff being aggrieved by the judgment and decree of dismissal of the suit by the I Addl. Civil Judge (Jr.Dn) & JMFC, Tumkur, (hereinafter referred to as the "trial Court") in OS.No.448/2000 and the same was confirmed by the II Addl. District and Sessions Judge, Tumkur, (hereinafter referred to as the "First Appellate Court") in R.A.No.392/2009 dated 21.04.2011. 2. Heard the arguments of learned counsel for the appellant and the learned counsel for the respondent. 3. The ranks of the parties before the trial Court is retained for the sake of convenience. 4. The case of the plaintiff is that the plaintiff filed a suit for permanent injunction against the defendant contending that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property having derived the title by virtue of panchayath parikath dated 03.09.1982 effected between his father K.Nanjappa and his brother Shivashankar measuring 1 acre 10 guntas fallen to his share and 30 guntas fallen to the share of his brother. The revenue entries are mutated in his name. The defendant is a stranger and has no manner of any right, title or interest over the suit schedule property, but by creating some documents sheis making hectic effort to interfere with the possession of the plaintiff. Hence, the plaintiff filed a suit for permanent injunction as against the defendant. 5. Pursuant to the notice, the defendant appeared through her counsel and filed the written statement by denying the averments made in the plaint as false and contended that the defendant had purchased the land measuring 2 acres from the father of the plaintiff namely Nanjappa vide sale deed dated 27.10.1986 and the father of the plaintiff purchased the same from one Mohammed Peer Sab in the year 1980. The defendant sought for change of katha in her name, but the Tahsildar, Tumkur, forfeited the land on the ground that the defendant has violated Section 79 of the Land Reforms Act. She also filed an appeal before the Assistant Commissioner, which is still pending. The plaintiff has no right, title or interest over the suit schedule property. Hence, prayed for dismissal of the suit. 6. Based on the rival pleadings, the trial Court framed the following issues: 1. She also filed an appeal before the Assistant Commissioner, which is still pending. The plaintiff has no right, title or interest over the suit schedule property. Hence, prayed for dismissal of the suit. 6. Based on the rival pleadings, the trial Court framed the following issues: 1. Whether the plaintiff proves that he is in possession and enjoyment of suit schedule property as alleged at para-2 of the plaint? 2. Whether the plaintiff further proves that defendant has interfered with his possession and enjoyment of suit schedule property as alleged at para-4 of the plaint? 3. Whether the plaintiff further proves that the cause of action arose for the suit as alleged at para-5 of the plaint? 4. Whether the plaintiff further proves that he is entitled to the relief as sought for? 5. What order or decree? 7. To substantiate the contention, the plaintiff examined himself as P.W.1 and he also got examined two more witnesses as PWs.2 and 3 and got marked 12 documents as per Exs.P. 1 to P. 12 and on behalf of the defendant, one Shyamalal Agarwal examined as D.W.1 and got marked 9 documents as per Exs.D1 to D9. After considering the evidence on record, the trial Court dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff filed an appeal before the First Appellate Court. During the pendency of the appeal, the plaintiff also filed an application under Order 41 Rule 27 of Code of Civil Procedure (hereinafter referred to as "CPC") and sought permission to produce additional documents and after hearing the arguments, the First Appellate Court dismissed the appeal vide judgment dated 21.04.2011. Being aggrieved by the same, the plaintiff is before this Court by way of this second appeal. 8. This Court admitted the appeal on 21.06.2011 on the following substantial question of law: "Whether both the courts below are legally correct in dismissing the suit of plaintiff on the ground that, his possession is not legal, without examining the question, whether he is in settled possession or not?" 9. The learned counsel for the appellant/plaintiff has contended that both the court below committed error in dismissing the suit of the plaintiff by misreading the evidence on record by holding that the panchayath palupatti - Ex. P.1 is an unregistered document, wherein the sale deed of the defendant prevails over unregistered document. The learned counsel for the appellant/plaintiff has contended that both the court below committed error in dismissing the suit of the plaintiff by misreading the evidence on record by holding that the panchayath palupatti - Ex. P.1 is an unregistered document, wherein the sale deed of the defendant prevails over unregistered document. If an unregistered document is removed from the realm of suit, nothing remains to show that the plaintiff is in possession of the suit schedule property. It is not a title suit, but it is only a suit for injunction based upon the possession. The defendant do not dispute the partition. The registered sale deed cannot prevail over the unregistered document, which was exhibited before the trial Court and both the court below not disputed Ex.P.1. The revenue entries in the record of rights clearly establishes the possession of the schedule property by the plaintiff and the name of the defendant not at all mutated in the revenue records, even though, the sale deed was effected in the year 1986. The suit schedule property, though purchased by his father, but it was put to common hatch pot of the joint family and the same was divided among them by way of family partition and till 1997, the name of father of the plaintiff was continued in the Revenue Records and thereafter, the name of plaintiff was entered in column Nos.9 and 12 of the revenue records. Such being the case, in a suit for bare injunction, the plaintiff is required to prove only the possession, but not the title from the oral as well as documentary evidence. The plaintiff proved the same before the trial Court, but both the court below misread the evidence and dismissed the suit. Therefore, prayed for setting aside the same. 10. Per contra, learned counsel for the respondent has contended that the defendant had purchased the suit schedule property from the father of the plaintiff in the year 1986 and the sub-registrar sent "Form-J" to the Tahsildar for changing the name of the defendant in the revenue records, but the Tahsildar initiated suo motu proceedings on the ground that the defendant had violated the provisions of Section 79 (A) of the Karnataka Land Reforms Act and forfeited the land. Then the same was challenged by the defendant before the Assistant Commissioner by filing an appeal and later the Assistant Commissioner allowed the appeal and set aside the order of the Tahsildar for having forfeited the land. The copy of the order of the Assistant Commissioner dated 08.05.2005 - Ex.D2 is also produced before the Court, which reveals that the defendant is facing an enquiry from 1988 onwards. Against Ex.D2, the plaintiff filed the revision before the Deputy Commissioner, which came to be dismissed. The plaintiff by taking advantage of non-entering the name of the defendant in the revenue records, immediately after the sale deed executed by his father, created unregistered document in the name of panchayath parikath and got entered his name only in the year 1998, in order to defeat the lawful right of the defendant. The plaintiff is not in possession of the suit schedule property. Therefore, prayed for dismissal of the appeal. 11. Upon considering the evidence on record and the rival contentions of both the parties, it is not in dispute that the suit of the plaintiff is only a bare injunction and the plaintiff required to prove the possession over the suit schedule property, but not the title. The plaintiff also filed suit for injunction, but not for declaration to declare the sale deed executed by his father in favour of the defendant on 27.10.1986 as null and void, even after production of copy of the sale deed before the trial Court along with the written statement. Once the defendant denied the title and possession of the plaintiff over the suit schedule property, it is the duty of the plaintiff to at least convert the suit into declaration of title and also for injunction. The Hon'ble Supreme Court in the recent judgment in the case of Behram Tejani and Others vs. Azeem Jagani passed in Civil Appeal No. 150/2017 decided on 06.01.2017 has held that the possession must be effective and undisturbed. The Hon'ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others, 2008 AIR SCW 2692, at paragraph Nos. 11 and 12 has held as under: "11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. and Others, 2008 AIR SCW 2692, at paragraph Nos. 11 and 12 has held as under: "11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title." 12. In view of the principle laid down by the Hon'ble Supreme Court, the plaintiff is required to prove the actual, effective and undisturbed settled possession over the suit schedule property. In this regard, on perusal of the record, Ex. P. 1 though it was an unregistered document, it could be used for collateral purpose to prove the possession over the schedule property as held by this Court in the case of Hussain Sab and Others vs. Jalaluddin, (1982) 2 KLJ 593 and another judgment in the case of C.D. Narayana Rao vs. Karibasappa and Others, AIR 1951 Mysore 126. The partition palupatti though it was unregistered, but it is also admissible in evidence to prove the nature of possession of the properties. In another judgment in the case of Mahadeva vs. Commissioner of Mysore City Corporation, AIR 2003 Kar. The partition palupatti though it was unregistered, but it is also admissible in evidence to prove the nature of possession of the properties. In another judgment in the case of Mahadeva vs. Commissioner of Mysore City Corporation, AIR 2003 Kar. 217 , this Court has held that the unregistered document can be received for the purpose of proving any collateral transaction and it can be used for limited purpose of proving nature of possession. By keeping the principles laid down in the above said judgments and on perusal of the record in this case, it would go to show that the defendant purchased the suit schedule property from the father of the plaintiff in the year 1986 under the sale deed-Ex.D1. Ex.D2 the order passed by the Assistant Commissioner dated 08.05.2005 shows that the Assistant Commissioner issued direction to the Tahsildar to enter the name of the defendant in the revenue records based upon the sale deed dated 27.10.1986. On perusal of the contents of the order in Ex.D2, which shows that the Tahsildar by its order No.CON.LR.SR.66/88-89 dated 29.11.1988 forfeited the land on the ground that there was violation of provision of Section 79 (A) of the Karnataka Land Reforms Act by the defendant. The said order came to be passed by the Tahsildar, Tumkur, while receiving "Form-J" from the sub-registrar office for entering the name of the defendant in the revenue records. It is also found in the order that the defendant filed an appeal before the Assistant Commissioner in LRM(A)-2/90-91 and the Assistant Commissioner has held that there was no violation of Sections 79 (A) or (B) of the Karnataka Land Reforms Act. Therefore, directed the Tahsildar to enter the name of the defendant in the revenue records vide order dated 20.04.2000. But the said Tahsildar not entered the name of the defendant in the revenue record. Therefore, the defendant filed another application for execution of the order dated 20.04.2000 in (appeal) No. 141/05-06, wherein the Assistant Commissioner again treated the application as an appeal under Section 136(2) of the Karnataka Land Revenue Act and directed the Tahsildar to enter the name of the defendant in the revenue records. Therefore, the defendant filed another application for execution of the order dated 20.04.2000 in (appeal) No. 141/05-06, wherein the Assistant Commissioner again treated the application as an appeal under Section 136(2) of the Karnataka Land Revenue Act and directed the Tahsildar to enter the name of the defendant in the revenue records. The order of the Tahsildar forfeiting the land on the ground of violation of Section 79 of the Land Reforms Act was set aside by the Assistant Commissioner on 20.4.2000 prior to filing of the suit by the plaintiff. The said order of the Assistant Commissioner has not been challenged by the plaintiff which has attained finality. The Revenue Authorities have already ordered to set aside the name of the plaintiff in the revenue records in Exs.P.2 and P.3 vide RRT No.2453/97-98. Exs.D1 and D2 corrabates with the evidence of D.W.1 which clearly go to show that immediately after the purchase of the schedule property, the defendant is trying to enter her name in the revenue records and faced the revenue proceedings before the Tahsildar and the Assistant Commissioner till 2000 and again till 2005. 13. It appears that when the defendant was unable to get her name entered in the revenue records, the plaintiff has taken advantage of it and got mutated his name and his brother name in the revenue records in the year 1998 by producing unregistered panchayath palupatti. If at all, the panchayath palupatti has been held between the plaintiff and his brother and father in the year 1982, nothing prevented the plaintiff in producing the said palupatti before the revenue authorities in the year 1982 itself and unregistered document-Ex.P.1 was not at all acted upon by the parties till 1998 and Ex.P12 and other revenue records clearly go to show that the name of the plaintiff entered in the revenue records only 1998 onwards more than 16 years after alleged palupatti of 1982. Ex.P1 not seen the light of the day for 16 years and the contention of the plaintiff cannot be acceptable that he was continued to be in possession and in undisturbed possession of the schedule property from 1982 till 1998 as the father of the plaintiff sold the suit schedule property to the defendant on the ground that the suit schedule property was the self acquired property and he has sold the same for his family necessity and as per the recital available in the sale deed, the plaintiff put the defendant in possession over the suit schedule property and subsequently, the defendant continuously trying to get her name to enter in revenue records till 2000 and got succeeded prior to the filing of the suit on 20.04.2000 and even thereafter filed an appeal before the Assistant Commissioner for implementing the said order and succeeded in the year 2005. Therefore, it cannot be accepted that the plaintiff was in peaceful possession and enjoyment of the schedule property from 1982 to 2000 while filing the suit. 14. On the other hand, the records clearly show that till 1998, the name of father of the plaintiff was continued. In view of the enquiry held by the Tahsildar under the Land Reforms Act, the possession of the plaintiff over the schedule property cannot be said to be settled possession or undisturbed possession and in 1988 the Tahsildar forfeited the land to Government under the Land Reforms Act. Both the court below after appreciating the evidence not admitted Ex.P.1-panchayath palupatti in evidence and categorically held that the unregistered document cannot prevail over the registered sale deed Ex.D1. Therefore, merely the name of the plaintiff entered in the year 1998, which cannot be held that the plaintiff was in possession and enjoyment of the schedule property. That apart once the defendant disputed the possession of the plaintiff, the plaintiff could have converted the bare injunction suit into declaration suit to declare the sale deed of the defendant as null and void. If at all, the suit schedule property is joint family property and it was alienated by his father without his consent, he could have filed a suit for declaration for declaring his title and to set aside the sale deed. 15. Therefore, the suit for bare injunction based upon unregistered document is insufficient to prove his possession over the schedule property. 15. Therefore, the suit for bare injunction based upon unregistered document is insufficient to prove his possession over the schedule property. Therefore, I do not find any error or illegality committed by the both the court below by its concurrent findings for having dismissed the suit of the plaintiff. Therefore, the substantial question of law is answered against the appellant/plaintiff and in favour of the defendant/respondent. 16. Accordingly, the Regular Second Appeal filed by the appellant/plaintiff is hereby dismissed. The concurrent findings of both the courts below are hereby confirmed.