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2019 DIGILAW 543 (KAR)

Mariyamma v. Kunhhalimma

2019-02-28

K.S.MUDAGAL

body2019
JUDGMENT : K S Mudagal, J. This second appeal of Defendant Nos. 2 to 4 arises out of the Judgment and Decree dated 31.01.2017 passed by the I Addl. District Judge, D.K, Mangaluru in R.A.No.5004/2016. 2. By the impugned Judgment and Decree, the first appellate court has dismissed the appeal of the defendants and confirmed the Judgment and Decree dated 02.01.2016 passed by the Principal Civil Judge, Puttur in O.S.No.96/1997, declaring the plaintiffs as the absolute owners of the plaint 'A" and "B" schedule properties and directing the defendants to hand over the possession of the suit "B" schedule property. 3. Respondents were the plaintiffs and appellants and their mother Asiamma were the defendants in the said suit before the trial court. The subject matter of the suit were "A" and "B" schedule properties. "A" schedule property was the land bearing Survey No. 328/1B2 measuring 3 acres 24 cents of Bettampady village, "B" schedule property was a residential house bearing Door No. 4-64 situated in "A" schedule property. 4. The plaintiffs claimed that they were the tenants of plaint schedule "A" property and they were granted occupancy rights under Ex.P.1 by the order of the land Tribunal dated 30.07.1981 and they were in possession and enjoyment of the said properties. Plaintiffs contended that after the death of her husband, first defendant was in a precarious condition without any accommodation and taking pity of her, she was accommodated in plaint schedule "B" property. The plaintiffs further contended that of late, the defendants altered the nature of the construction without consent of the plaintiffs, therefore, the licence was terminated by issuing notice dated 04.11.1996. Plaintiffs further contended that the defendants issued reply notice dated 28.11.1996, setting up the claim over the property, therefore, they sought declaration and possession. 5. The defendants contested the suit denying the right of the plaintiffs over the suit property and the allegation of permissive possession. Defendants contended that the land belonged to one Korgappa Rai and he gifted that property to the husband of the first defendant in 1959 and since then, they were in possession of the property. Defendants further contended that the area where "B" schedule house is situated was a Govt. land and was in occupation of one Kittanna Rai. They further contended said Kittanna Rai put the husband of first defendant in possession of the property and thereafter, the Govt. Defendants further contended that the area where "B" schedule house is situated was a Govt. land and was in occupation of one Kittanna Rai. They further contended said Kittanna Rai put the husband of first defendant in possession of the property and thereafter, the Govt. regularized the occupation of the husband of the first defendant and thus, they are in possession of the property in their own right. They further contended that they are in possession of the property openly and continuously, hostile to the interest of the plaintiffs, therefore, they have perfected their title by adverse possession. 6. On the basis of such pleadings, the trial court framed the following issues: (i) Whether the Plaintiffs have proved that plaint "B" schedule property forms a part and parcel of plaint "A" schedule survey number property? (ii) Whether the plaintiffs have proved that he is in possession and enjoyment of plaint "A" schedule property as described? (iii) Whether the plaintiffs have proved the allegation of interference by the defendant to his possession and enjoyment as described? (iv) Whether the plaintiffs have proved that he got put up the residential house in the plaint "B" schedule property in the occupation of the defendants? (v) Whether the plaintiffs have proved that defendants' occupation of the residential house in the plaint "B" schedule property is permissive as averred? (vi) Whether the defendants have proved that if any portion of plaint "A" schedule property is in their possession, and earlier by the husband of 1 st defendant and father of others, it is so openly, adversely and to the knowledge of the plaintiffs continuously for a period of more than 12 years, and as such they have acquired title over it by Law of Adverse Possession? (vii) Whether the valuation of the plaint "B" schedule property for the purpose of payment of court fee, and the court fee paid thereon is proper and correct? (viii) What relief or reliefs the plaintiff is entitled to? (ix) What order and what decree? 7. The parties adduced evidence. The trial court after hearing the parties, held that under Ex.P.1-the Grant order, the Land Tribunal has granted land to the plaintiffs. The trial court relying on the evidence of C.W.1 the court commissioner and his report and sketch at Ex.P.1 and Ex.C.2, rejected the contention of the defendants that schedule "B" house situates in Govt. The parties adduced evidence. The trial court after hearing the parties, held that under Ex.P.1-the Grant order, the Land Tribunal has granted land to the plaintiffs. The trial court relying on the evidence of C.W.1 the court commissioner and his report and sketch at Ex.P.1 and Ex.C.2, rejected the contention of the defendants that schedule "B" house situates in Govt. land, but accepted the commissioner's finding that the said property situates in Survey No. 328/1B2. The trial court further held that the possession of the defendant is permissive and defendants have failed to prove their case of adverse possession and decreed the suit. 8. Pending the suit, plaintiffs and first defendant died. Plaintiffs' heirs were impleaded as Plaintiff Nos. 1(a) to 1(f) and it was reported that first defendant was survived by Defendant Nos. 2 to 4. Aggrieved by the Judgment and Decree of the trial court, defendants filed R.A.No.504/2016 before the District Court, Puttur, D.K. The first appellate court on hearing the parties, concurred with the reasonings and findings of the trial court and dismissed the appeal. 9. Learned counsel for the appellants submits that plaintiffs sought declaration of title based on the order of Land Tribunal-Ex.P.1, but this Court set aside that order and the matter is still pending before the land tribunal, therefore, the declaration granted was unsustainable. He submits that the Courts below granted declaration based on the revenue entries in the record of rights, however, subsequently, those entries have been set aside by the Assistant Commissioner, Puttur sub-division and the matter is remanded to the Tahsildar. 10. The appellants have filed I.A.Nos.4 and 5 of 2019 to produce the proceedings in RRTSR-55/12-13, RTC and mutation entries and the proceedings before the Deputy Commissioner, D.K in CDS.RAP.210/2011-12. Relying on those documents, learned counsel for the appellant submits that the Deputy Commissioner, Mangaluru, D.K in the proceedings initiated by the first appellant against the sixth respondent has directed the Tahsildar to consider the representation of the first appellant for regularization of her occupation and the proceedings before the Assistant Commissioner in RRTSR55/12-13 and the record of rights produced along with I.A.No.5/2019 show that the revenue entries in favour of the plaintiffs were cancelled and the matter is still pending before the Tahsildar. 11. 11. This being the second appeal under Section 100 of the Code of Civil Procedure , the appellant has to make out that there is a substantial question to admit the appeal for hearing. Only thereafter, the question of receiving the additional evidence arises. Even otherwise, the documents produced along with I.A.No.4/2019 relate to the property bearing Survey No. 338/2P. Whereas the subject matter of this litigation is the house situated on the property bearing Survey No. 328/1B2. Therefore, the documents produced along with I.A.No.4/2019 are irrelevant. 12. So far as the cancellation of mutation entries sought to be substantiated by the documents produced under I.A.No.5/2019, first whether the appellants have a case for admission to be considered. 13. Hon'ble Supreme Court in Santosh Hazari v. Purushottam Tiwari (Dead) by L.Rs, (2001) AIR SC 965, has laid down the ratio regarding substantial question of law. It was held in the said judgment that on questions of fact, the first appellate court is the final court unless it is shown that the findings of the courts below are perverse. It was further held that to be a substantial question of law in the case, there must be first foundation for it laid in the pleadings and the question should emerge from the sustainable findings of the fact arrived at by the courts of fact. It was further held that an entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. 14. In paragraph 14 of the written statement, it is contended that the declaration or any relief in respect of "A" schedule property is unnecessary as the defendants are not disputing the right of the plaintiffs over it. So far as "B" schedule property, their defence was two-fold. First one is that "B" schedule property does not form part of "A" schedule property. Secondly, it was contended that "B" schedule property is a Govt. land and that does not belong to the plaintiff. Quite contrary to that, now in this case, the documents are sought to be produced under I.A.No.5/2019 to contend that on contest by one Vittal Rai, the occupancy rights granted to the plaintiffs were set aside and the matter is still pending before the Land Tribunal. 15. First of all, no such case was made out before Courts below. Quite contrary to that, now in this case, the documents are sought to be produced under I.A.No.5/2019 to contend that on contest by one Vittal Rai, the occupancy rights granted to the plaintiffs were set aside and the matter is still pending before the Land Tribunal. 15. First of all, no such case was made out before Courts below. Secondly, the declaration granted binds parties to the suit and not Vittal Rai or others who are not parties to these proceedings. So far as the identity of the property, the Courts below relying on the evidence of court commissioner-C.W.1 and Exs.C.1 and C.2, report and sketch, have held that the evidence on record consistently and cogently proves that "B" schedule property is the part of "A" schedule property. This court does not find any perversity in such finding of the court below with regard to the identity of the property. 16. To claim adverse possession, defendants have to admit the title of the plaintiffs over "B" schedule property which they did not do. Therefore, it does not lie in their mouth to say that they have perfected their title by adverse possession. Even otherwise, the courts below relying on the evidence of the witnesses and the documents produced in the suit, held that the defendants failed to prove that they enjoyed the property to the knowledge of the plaintiff openly, continuously, hostile to the title of the plaintiff. This Court does not find any perversity in such finding of the courts below. 17. Under such circumstances, this court does not find any substantial question of law to admit the appeal. Therefore, the appeal and I.A.Nos.3/2019 to 5/2019 are dismissed.