Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 1486 (KAR)

Ningappa v. B. K. Mahadevswamy

2022-11-18

M.G.UMA

body2022
JUDGMENT 1. The defendants are before this Court impugning the judgment and decree dtd. 30/6/2011 passed in RA No.60 of 2007 on the file of the learned Senior Civil Judge and CJM, Chamarajanagar (hereinafter referred to as 'the First Appellate Court' for brevity), whereunder, the appeal preferred by the plaintiff was allowed by setting aside the judgment and decree dtd. 28/5/2007 passed in OS No.86 of 2004 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Gundlupet (hereinafter referred to as 'the Trial Court' for brevity) and the suit of the plaintiff for permanent injunction was decreed restraining the defendants permanently from causing interference in the possession and enjoyment of the suit schedule property. 2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court. 3. Brief facts of the case are that, the plaintiff filed the suit OS No.86 of 2004 for permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. It is contended by the plaintiff that the suit schedule property was originally belonging to late Malledevaru of Belavadi village, as he purchased it under the registered sale deed dtd. 31/8/1945. The plaintiff is the grand son of the said Malledevaru who about 40 years back. After his death, the property came in possession and enjoyment of his son B M Kendagannaswamy i.e., the father of the plaintiff. He also died about 20 years back and thereafter, the plaintiff is in possession and enjoyment of the property. The khata stands in his name and he is paying the revenue. 4. The plaintiff contended that with an intention to construct the residential house over the schedule property, he obtained licence from Hundipura Gram Panchayath, which is dtd. 19/6/2004. The grandfather of the plaintiff purchased the vacant site measuring East to West 22 yards and North to South 14 yards, out of which, 2 yards on the Western side and 8 yards on the Eastern side and 2 yards on the Southern side were given to Gram Panchayat for public purposes. The Gram Panchayat formed a galli both on the southern and western side. A public well was also sunk about 5 years back. Therefore, the site is called as 'Bavi Niveshana'. The Gram Panchayat formed a galli both on the southern and western side. A public well was also sunk about 5 years back. Therefore, the site is called as 'Bavi Niveshana'. After giving the right over the piece of land, the schedule property measures 12 x 12 yards, which is in possession of the plaintiff. 5. It is contended that the father of the plaintiff had constructed temporary shed over the schedule property which is still in existence, but is in dilapidated condition. The defendants who were not having any right, title or interest over the schedule property and even though they are not the adjacent owners, came near the schedule property on 10/11/2004 and started interfering with the construction work undertaken by the plaintiff. The defendants have threatened to assault the plaintiff and asked him to stop the construction work. Since the plaintiff could not resist the high handed acts of the defendants has filed the suit for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the schedule property. 6. The schedule appended to the plaint describes the vacant site with temporary shed measuring East to West 12 yards and North to South 12 yards in assessment No.314 of Hundipura Gram Panchayath, Belavadi village, Gundlupet Taluk, as per the boundaries mentioned therein. 7. The defendants have appeared before the Trial Court and filed their written statement contending that the suit of the plaintiff is not maintainable. The averments made in the plaint regarding the title of the plaintiff and his forefathers are denied. It is contended that the defendants are the villagers of Belavadi and they are the members of Gram Panchayath. It is also contended that the suit schedule property originally belonging to Gavirudreshwara temple of Belavadi village, Gundlupet taluk which is having history of morethan 100 years. In the year 1992, the villagers of Belavadi invested morethan Rs.15.00 lakhs and the temple was re-built. It is contended that by the side of the temple a well was situated which was dug in the year 1946. It was closed in the year 2003, but the property was known as 'Bavi Niveshana' and it measures 4 x 11 yards (12 x 33 feet), bearing assessment No.311. 8. It is contended that by the side of the temple a well was situated which was dug in the year 1946. It was closed in the year 2003, but the property was known as 'Bavi Niveshana' and it measures 4 x 11 yards (12 x 33 feet), bearing assessment No.311. 8. It is also contended that about 15 years back, the villagers constructed a Manglore tiled house measuring East to West 5 feet, North to South 12 feet on the western side of Bavi Niveshana for the purpose of storing the materials belonging to the temple. Several cattle were reared and food materials were stored in the premises. Thus, the temple was in possession and enjoyment of the said property. It is contended that the plaintiff was the priest of the temple, but he was removed by the villagers as his work was not satisfactory. To knock off the property belonging to the temple, a false suit came to be filed. Plaintiff or his father or his grand father were not the owners nor they were in possession of the schedule property. The registered sale deed dtd. 31/8/1945 referred to in the plaint does not pertain to the suit schedule property and boundaries do not tally with the schedule property. The schedule property cannot be identified, as the boundaries are not correct. Therefore, they pray for dismissal of the suit with costs. 9. On the basis of these pleadings, the Trial Court framed the following issues for consideration: "1. Whether the plaintiff proves that he is in possession of the suit schedule property? 2. Whether the plaintiff further proves that the defendants are interfering with is peaceful possession and enjoyment of the suit schedule property? 3. Whether the plaintiff further proves that the cause of action arose for the suit as alleged in para 6 of the plaint? 4. Whether the plaintiff proves that he is entitled for the relief as sought for? 5. For what order or decree?" 10. The plaintiff got examined himself as PW1 and got examined the witnesses PWs.2 to 5 and got marked Exs.P1 to 31 in support of his contention. The defendants examined DWs.1 to 5 and got marked Exs.D1 to 31 in support of their defence. The Trial Court on considering all these materials on record, answered issue Nos.1 to 4 in Negative and dismissed the suit of the plaintiff. The defendants examined DWs.1 to 5 and got marked Exs.D1 to 31 in support of their defence. The Trial Court on considering all these materials on record, answered issue Nos.1 to 4 in Negative and dismissed the suit of the plaintiff. Being aggrieved by the same, the defendants have preferred RA No.60 of 2007 before the First Appellate Court. The First Appellate Court on re -appreciation of the materials on record, allowed the appeal and the defendants were restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff. Being aggrieved by the same, the defendants have preferred this appeal. 11. Heard Sri D C Deepak and Miss D L Lathashree, learned counsel for the appellants and Sri S Venkatesh Babu and Sri A Shivarama, learned counsel for the respondent. Perused the materials on record including the Trial Court records. 12. Learned counsel for the appellants submitted that the Trial Court has properly appreciated the oral and documentary evidence placed before it and dismissed the suit of the plaintiff. The First Appellate Court committed an error in decreeing the suit of the plaintiff for permanent injunction. The schedule property never belonged to the plaintiff or his father or his grand father. The defendants who are the villagers have filed detailed written statement. Ex.P1 - sale deed does not pertain to the schedule property nor there is recital that the possession of the property was handed over in favour of the purchaser. The property mentioned in Ex.P1 measures 22 x 14 yards, but the schedule property measures 12 x 12 yards. DWs.1 to 5 have categorically stated that the plaintiff was the archaka in the temple and he was removed from the temple and therefore, a false suit came to be filed. The First Appellate Court could not have decreed the suit of the plaintiff ignoring these materials on record. Therefore, he prays for allowing the appeal and to set aside the impugned judgment and decree passed by the First Appellate Court and restore the judgment and decree passed by the Trial Court. 13. Per contra, learned counsel for the respondent submitted that Ex.P1 is the registered sale deed dtd. 31/8/1945. Even though the description of the property of Ex.P1 is 22 x 14 yards a portion of the property was given in favour of Gram Panchayat. 13. Per contra, learned counsel for the respondent submitted that Ex.P1 is the registered sale deed dtd. 31/8/1945. Even though the description of the property of Ex.P1 is 22 x 14 yards a portion of the property was given in favour of Gram Panchayat. Therefore, now the property measures 12 x 12 yards. It is evidenced by Ex.P3 - the demand register extract. Ex.P4 is the demand register for the 10 year 2004-05 which also stands in the name of the plaintiff. The Gram Panchayah issued licence in favour of the plaintiff as per Ex.P8. There is absolutely no reason as to why Exs.P1, 3, 4 and 8 are to be disbelieved. None of these documents were controverted by the defendants. There is absolutely no documents to prove that the schedule property belongs to the temple. Ex.P13 is the mahazar which was drawn before filing the suit in the presence of defendants and other villagers. All these documents support the contention of the plaintiff. Even the evidence of DWs.1 to 5 supports the contention of the plaintiff. Therefore, the First Appellate Court was right in decreeing the suit of the plaintiff. Therefore, he prays for dismissal of the appeal with costs. 14. The appeal was admitted vide order dtd. 9/12/2011 to consider the following substantial questions of law: "1. In the sale deed Ex.P.2 relied upon by the respondent / plaintiff, when there is no mention of any serial number or survey number of the property conveyed, whether the Lower Appellate Court is justified in holding that the property conveyed under Ex.P.2 is referable to the suit schedule property and the plaintiff is in possession of the same? 2. In the absence of any recital in Ex.P.2 about delivery of possession and the purchaser having been placed in possession of the property conveyed, whether the Lower Appellate Court is justified in holding that the plaintiff has proved his possession of the suit schedule property? 3. Whether the judgment of the Lower Appellate Court reversing the judgment of the trial court is perverse being contrary to the evidence on record." 15. It is the specific contention of the plaintiff that his grand father purchased the schedule property which was a larger extent of land under Ex.P1 and Ex.P2 is the copy of Ex.P1. Ex.P1 is dtd. 31/8/1945. It is the specific contention of the plaintiff that his grand father purchased the schedule property which was a larger extent of land under Ex.P1 and Ex.P2 is the copy of Ex.P1. Ex.P1 is dtd. 31/8/1945. Ex.P3 is the demand register extract pertaining to an undisputed point of time i.e., year 1969-70 and it pertains to the schedule property measuring 12 x 12 yards. Ex.P4 is also the demand register extract standing in the name of the plaintiff for the year 2004- 05. Ex.P8 is the licence dtd. 19/6/2004 issued by Hundipura Gram Panchayath for construction of the building over 12 x 12 yards in Sy.No.314. The boundaries mentioned therein tallies with the schedule property. Ex.P12 is the confirmation certificate issued by the Secretary of Hundipura Gram Panchayath confirming the boundaries of the schedule property. The documents relied on by the plaintiff substantiate his contention that the schedule property with its boundaries belong to the plaintiff and he is in possession of the same. 16. Admittedly, the defendants are not claiming any right over the schedule property. They claim that they are the villagers and contend that the schedule property belongs to the temple. There is absolutely no document in support of such contention. Even though the defendants examined DW1, his affidavit filed in lieu of examination-in-chief discloses that there is complete non application of mind in preparing the same, as it is the verbatim of written statement of the defendants. DW1 pleads his ignorance that building licence was issued in favour of the plaintiff by the Gram Panchayat. He admits that as per the boundaries mentioned, the northern boundary is mentioned as temple. He confirms that on the northern side of the property belonging to defendant No.1, the property belonging to the temple is situated. DW2 during cross examination categorically admits that the plaintiff is in possession of the schedule property. He pleads his ignorance about the khatedar of the said property. He never seen any document to say that the schedule property belongs to the temple. Therefore, the oral and documentary evidence relied on by the defendants would not substantiate their contention. 17. If at all the property was belonging to the temple, the village panchayath would not have granted building licence in favour of the plaintiff and the plaintiff's name would not have appeared in the demand register extract. Therefore, the oral and documentary evidence relied on by the defendants would not substantiate their contention. 17. If at all the property was belonging to the temple, the village panchayath would not have granted building licence in favour of the plaintiff and the plaintiff's name would not have appeared in the demand register extract. Moreover, the temple would not have kept quite when the plaintiff is fighting the litigation in respect of the property belonging to it. When the defendants contend that the property belonging to the temple, there must be some scrap of paper to substantiate the same. The plaintiff has produced Ex.P1 the original sale deed which is of the year 1945. It is not the stray document relied on by the plaintiff. It is followed by the demand register extract for the year 1969-70, which is as per Ex.P3 and subsequent documents also stands in the name of the plaintiff. 18. Even though it is contended that in Exs.P1 and 2, the description of the schedule property is not found and that there is no recital for having handed over the possession of the property, the sale deed is of the year 1945 and the recitals found therein discloses that it is the absolute sale deed and the right over the property is conveyed by the seller in favour of the purchaser. The description of the property sold is described in the schedule where the boundaries are mentioned. Naturally, the boundaries mentioned during 1945 would be different from the boundary that is prevailing at the time of filing the suit. Therefore, it cannot be said that Exs.P1 and 2 are not pertaining to the schedule property. Ex.P3 and other documents including Ex.P8 supports the contention of the plaintiff. 19. There is absolutely no explanation for any of these documents by the defendants. The defendants have not placed any cogent materials in support of their defence. But are denying the right of the plaintiff. In the absence of any materials in support of such defence, it has to be concluded that the plaintiff is in possession and enjoyment of the schedule property and the defendants are trying to interfere with the same. Thus, the plaintiff is entitled for permanent injunction. Therefore, I answer the substantial questions of law in favour of the plaintiff and against the defendants. 20. Thus, the plaintiff is entitled for permanent injunction. Therefore, I answer the substantial questions of law in favour of the plaintiff and against the defendants. 20. In the result, I proceed to pass the following: ORDER (i) The appeal is dismissed with costs. (ii) The judgment and decree dtd. 30/6/2011 passed in RA No.60 of 2007 on the file of the learned Senior Civil Judge and CJM, Chamarajanagar, is hereby confirmed. (iii) Consequently, the judgment and decree dtd. 28/5/2007 passed in OS No.86 of 2004 on the file of the learned Civil Judge (Jr.Dn.) and JMFC, Gundlupet, is set aside and the suit of the plaintiff is dismissed. Registry to send back the Trial Court records along with copy of this judgment.