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2020 DIGILAW 1923 (KAR)

Ebrath Beig v. Naseem Khatum

2020-09-30

PRADEEP SINGH YERUR

body2020
JUDGMENT Pradeep Singh Yerur, J. - This Regular Second Appeal is filed by the appellant/plaintiff against the Judgment and Decree dated 30.09.2015 in RA No.130/2012 on the file of the Senior Civil Judge And JMFC, Chintamani, dismissing the appeal and confirming the Judgment and Decree dated 31.10.2012 passed in OS No.411/2008 on the file of the Principal Civil Judge And JMFC, Chintamani. 2. The parties shall be referred to as per their rank before the trial Court for the sake of convenience. 3. The brief facts of the case are as follows: (a) The plaintiff had filed a suit against the defendant for the relief of declaration and for consequential relief of permanent injunction restraining the defendant from obstructing plaintiff s peaceful possession and enjoyment of the property bearing Sy. No. 3, measuring 0.30 guntas situated at Kurutihalli Village, Kasaba Hobli, Chintamani Taluk. (b) It is the case of the plaintiff that originally the suit schedule property belonged to Government and as the plaintiff s father was in possession and enjoyment of the suit schedule property, his father applied for grant of the suit schedule property. Accordingly, suit schedule property was granted in favour of the father of plaintiff and consequently, Government issued grant certificate on 16.12.1981. Thereafter, the khata and other documents were mutated to the name of plaintiff s father Thavakal Beig and till today they are standing in his name. The land was granted under grant order No.LND CR 182/1981- 82. According to the plaintiff after the death of his father he inherited the suit schedule property and thereafter he has invested huge sum over the suit schedule property and through his hard work he made the land fertile. He is raising crops in the suit schedule property. He is also paying taxes to the Government and he has been in peaceful possession and enjoyment of the suit schedule property. (c) It is the case of the plaintiff that the defendant, who has no manner of right, title or interest over the suit schedule property was trying to interfere with the plaintiff s peaceful possession and enjoyment of the suit schedule property and claiming title, due to which the plaintiff filed original suit seeking for the relief of declaration and consequential relief of injunction. 4. The defendant represented through his counsel filed his written statement and denied entire averments made by the plaintiff. 4. The defendant represented through his counsel filed his written statement and denied entire averments made by the plaintiff. The defendant has categorically denied the existence of the suit schedule property and so also, the boundaries stated in the plaint and that existing boundaries do not tally each other and they are different. The documents produced by the plaintiff are concocted and created documents. The defendant has pleaded that father of the plaintiff was not in possession of the suit schedule property at any point of time. According to the defendant, when there is no existence of the suit schedule property then the question of any obstruction created by the defendant does not arise at any stretch of imagination. According to the defendant one person by name Irshad s/o Musar Fayaz had acquired the land bearing Sy. No. 161 situated at Kuruthahalli Village of Chinthamani Taluk, which was acquired through Darkasth proceedings vide order No.LND RUO Cr 12/1998-99 dated 20.06.1998. Said Mohammed Irshad was in possession and enjoyment of the suit schedule property. It is further stated that plaintiff is claiming an illegal right over the suit schedule property. Even the defendant had also filed a suit against the plaintiff, which came to be decreed against the plaintiff. The plaintiff has filed the present suit only with a malafide intention to make wrongful gain and illegal benefits. Hence, he requests to dismiss the suit. 5. On the basis of the pleadings the trial court framed the following issues: 1. Whether plaintiff proves that he is owner of the suit schedule property? 2. Whether the plaintiff further proves that he is in possession of the suit schedule property as on the date of the suit? 3. Whether plaintiff further proves that defendant is interfering with plaintiff s peaceful possession and enjoyment of the suit schedule property? 4. Whether plaintiff proves that the property described in the plaint schedule is true and correct? 5. Whether plaintiff is entitled for the relief sought for? 6. What decree or order? 6. In order to prove his case, the plaintiff examined himself as PW1 and examined two witness on his behalf and got marked four documents at Ex.P1 to P4 and closed his side. Whereas, the defendant has got marked his PA holder as DW1 and got marked one document as Ex.D1 Special Power of Attorney. 6. What decree or order? 6. In order to prove his case, the plaintiff examined himself as PW1 and examined two witness on his behalf and got marked four documents at Ex.P1 to P4 and closed his side. Whereas, the defendant has got marked his PA holder as DW1 and got marked one document as Ex.D1 Special Power of Attorney. As the defendant witness did not appear before the Court to tender himself for cross examination despite giving sufficient opportunity by the trial court, the examination in Chief of DW1 came to be discarded and defendant s evidence came to be closed. 7. After going through the oral and documentary evidence produced by the parties, the trial court came to the conclusion that as per Ex.P1, which is the grant certificate issued in favour of the father of the plaintiff on 16.12.1981 the boundaries of the suit schedule property are not mentioned and the same is left blank. The trial court has held that Sy. No. 3 of Kuruthahalli Village is of a large extent of land and unless the boundaries are mentioned in the grant certificate it cannot be ascertained where the land is granted to the plaintiff s father is located. On the basis of the said grant the saguvali chit is issued to the father of the plaintiff and mutation is also effected and even in the mutation the extent and the boundaries are not mentioned. Though the plaintiff has produced the Genealogical tree as per Ex.P3, whereas the father and mother of the plaintiff are shown as dead leaving behind two sons and three daughters. 8. The trial court came to the conclusion that on perusal of the oral and documentary evidence placed by the plaintiff, no clinching evidence is produced or clinching material is produced to prove that he is in possession of the suit schedule property. The plaintiff has also not produced any document to show that his father is in possession of the suit schedule property. The plaintiff has also not produced any piece of document to prove and establish that he is in possession of the suit schedule property as on the date of filing of the suit. The trial court has further held that plaintiff has not produced any cogent evidence about his possession and also about interference and disturbance made by the defendant. The plaintiff has also not produced any piece of document to prove and establish that he is in possession of the suit schedule property as on the date of filing of the suit. The trial court has further held that plaintiff has not produced any cogent evidence about his possession and also about interference and disturbance made by the defendant. The trial court has come to a conclusion that even according to the plaintiff pursuant to the death of his father five children have inherited to the estate of his father, but the plaintiff has stated that he has alone inherited the suit schedule property. Therefore, the question of plaintiff alone claiming the declaration as owner of the suit schedule property when his brothers and sisters are also entitled to a share in the property goes contrary to his own claim. Accordingly, the trial court denied the grant of relief of declaration to the plaintiff and suit came to be dismissed. 9. Aggrieved by the Judgment and award passed by the trial court, the plaintiff preferred an appeal before the Appellate Court in RA No.130/2012, wherein similar contentions were raised and argued by the plaintiff. On hearing the parties, the appellate court framed following points for consideration: 1. Whether the plaintiff proves that he is owner of the suit schedule property? 2. Whether plaintiff further proves that he is in possession of the suit schedule property as on the date of the suit? 3. Whether plaintiff further proves that defendant is interfering with plaintiff s peaceful possession and enjoyment of the suit schedule property? 4. Whether plaintiff proves that the property described in the plaint schedule is true and correct? 5. Whether the plaintiff is entitled for the relief sought for? 6. What decree or order? 10. After hearing the learned counsel, the appellate Court came to the conclusion that the plaintiff has not made out a case to interfere with the Judgment and decree of the trial court and confirmed the reasoning and findings of the trial court held that there was no necessity to interfere with the discretionary powers exercised by the trial court in a judicious manner. Accordingly, the appeal came to be dismissed. 11. Aggrieved by the order of the first appellate court, the plaintiff is before this Court in Second Appeal. 12. Heard the learned counsel for appellant and perused the materials on record. 13. Accordingly, the appeal came to be dismissed. 11. Aggrieved by the order of the first appellate court, the plaintiff is before this Court in Second Appeal. 12. Heard the learned counsel for appellant and perused the materials on record. 13. It is the contention of the learned counsel for appellant that the father of the plaintiff was a grantee of the lands in question under the grant certificate dated 16.12.1981. Pursuant to which he got katha and mutation changed in his name and he is in possession and enjoyment of the suit schedule property. Pursuant to the death of his father, plaintiff inherited the suit schedule property and there after he has been cultivating the land being in peaceful possession and enjoyment of the same. The learned counsel for the plaintiff contends that the defendant who is the owner of the adjacent land is trying to claim and encroach over his property, which was granted to his father, upon which he is at present cultivating the crops. To substantiate his case, he has examined PW2 and 3, who have stated before the trial court that the said land belongs to Government and was granted in favour of the father of the plaintiff. Though PW2 and 3 have stated that land was granted in favour of the father of the plaintiff, the trial court has not considered the said evidence. Therefore, according to him, the order of the trial court is arbitrary for non-consideration of evidence of PW2 and 3. The learned counsel for appellant further contends that despite production of grant certificate and sketch of the suit schedule property as per Ex.P4, the trial court has fialed to appreciate the oral and documentary evidence and has dismissed the suit erroneously. As the trial court and the first appellate court have not considered the material evidence placed before the Court, the oral evidence adduced by PW1 to 3 and illegal interference by the defendant, he has sought for interference at the hands of this Court for framing substantial questions of law. 14. As the trial court and the first appellate court have not considered the material evidence placed before the Court, the oral evidence adduced by PW1 to 3 and illegal interference by the defendant, he has sought for interference at the hands of this Court for framing substantial questions of law. 14. Having gone through the materials placed before the Court, the Judgment and decree of the trial court and first appellate Court, I am of the opinion that in order to come within the purview of Section 100 of CPC for framing of substantial questions of law, the plaintiff will have to make out a case to establish before this Court that pleadings, evidence and material placed before the trial court as well as the first appellate court, has not been considered and the Courts below have failed to appreciate the points of law involved in the matter and the same requires re-consideration, alteration, modification or clarification in order to resolve an apparent conflict between the parties. Further, the plaintiff will have to satisfy this Court that while arriving at a finding and conclusion the trial court as well as appellate Court have seriously erred in not considering the evidence on record, which if considered would have reversed the finding in favour of the plaintiff. 15. On careful perusal of the evidence and documents produced and the conclusion arrived at by the trial court as well as first appellate court and the submissions of the learned counsel for appellant, it is seen that plaintiff has failed to prove that he is the owner of suit schedule property and has failed to establish that his father had secured grant from the Government and was in peaceful possession and enjoyment of the suit schedule property, despite producing Ex.P1 - grant certificate, which by itself would not confer right on the property as the boundaries are not mentioned in the grant certificate. So also in the mutation extract no boundaries are forthcoming. The oral evidence of PWs.1 and 3 does not support the case of plaintiff with regard to the grant certificate and his possession over the suit schedule property. The plaintiff has not produced any other piece of evidence to show that as on the date of filing of the suit he was in possession of the suit schedule property. The oral evidence of PWs.1 and 3 does not support the case of plaintiff with regard to the grant certificate and his possession over the suit schedule property. The plaintiff has not produced any other piece of evidence to show that as on the date of filing of the suit he was in possession of the suit schedule property. Therefore, the trial court and the first appellate court after providing sufficient opportunity and after examining the oral and documentary evidence and the material placed before the Court, have rightly come to the conclusion that the plaintiff has not made out a case or good ground to grant the relief sought for in the suit as well as in the appeal. 16. This Court in exercise of powers under Section 100 of the Code of Civil Procedure, does not find any substantial question of law to be framed, which warrants interference to either reconsider, alter, modify or clarify the Judgment and decree passed by the trial court as well as the first appellate court. This court does not find any perversity in the Judgment and decree of both the Courts below. Therefore, the appellant has not made out any ground to frame substantial question of law in this appeal. Accordingly, appeal is dismissed.