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2023 DIGILAW 185 (KAR)

R B Balakrishna v. Secretary Grama Panchayath

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by the unsuccessful plaintiff wherein plaintiff's suit for injunction simplicitor is dismissed by both the Courts having recorded a finding that plaintiff has succeeded in proving his lawful possession over the suit land. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The plaintiff instituted a suit for injunction apprehending that defendants are highhandedly trying to form a road in his land bearing Sy.No.135/2P3 measuring 30 guntas and Sy.No.135/2 measuring 14 guntas. 4. The defendants tendered appearance and filed written statement and stoutly denied the entire averments made in the plaint. The defendants, however, denied the formation of any road in plaintiff's property and therefore, contended that plaintiff has come up with a frivolous suit and that defendant No.2 is unnecessarily dragging into litigation. 5. The plaintiff to substantiate his claim led oral and documentary evidence while defendants have not chosen to produce any documentary evidence. Further, the official of respondent No.1/Grama Panchayath though tendered examination-in-chief, however, did not come forward to offer for cross-examination. 6. The trial Court on examining the pleadings and oral and documentary evidence proceeded to dismiss the suit by recording a finding that plaintiff has failed to prove his possession. 7. Feeling aggrieved by the judgment and decree of the trial Court, plaintiff preferred appeal before the Appellate Court. 8. The Appellate Court on independent assessment of evidence on record has come to conclusion that plaintiff has succeeded in proving his lawful possession over the suit land. At para 16 of the judgment, Appellate Court was of the view that defendants have not disputed the fact that plaintiff is in possession and enjoyment over the suit lands. The Appellate Court, however, was of the view that plaintiff has failed to substantiate that defendants are highhandedly trying to remove the fence and are attempting to form a road in the suit lands. Therefore, Appellate Court was of the view that plaintiff has failed to prove that defendants are trying to highhandedly form a road in the plaintiff's property. Consequently, appeal is dismissed. 9. This Court vide order dtd. Therefore, Appellate Court was of the view that plaintiff has failed to prove that defendants are trying to highhandedly form a road in the plaintiff's property. Consequently, appeal is dismissed. 9. This Court vide order dtd. 16/1/2023 was pleased to admit the appeal on the following substantial questions of law: "1) Whether both the Courts erred in dismissing plaintiff's suit filed for injunction simplictor on the premise that plaintiff has failed to substantiate the allegations in the plaint that defendants are trying to form a road on the ground that there is no evidence indicating that defendants are trying to form a road but the pleadings in the written statement filed by the defendants clearly indicate that defendants are asserting that they have already formed road in the plaintiff's property? 2) Whether both the Courts erred in holding that the interference is not substantiated by plaintiff, which is contrary to the stand taken in the written statement wherein defendants are asserting the alleged formation of road in plaintiff's property and having taken such a contention, the same is not substantiated by leading evidence by the defendants?" 10. Heard learned counsel appearing for the plaintiff. The defendants are served and are unrepresented. 11. This is a peculiar case where plaintiff though has succeeded in proving that he is the owner and in possession of the land in question, Appellate Court has proceeded to dismiss the appeal on the ground that alleged interference is not substantiated by the plaintiff. Though this Court would find that there is a slender evidence from which this Court has to gather as to whether there is interference or not, this Court is of the view that para 5 of the written statement would assist this Court in assessing the action of defendants and also their intent and interference over the suit lands. Para 5 of the written statement reads as under: "5. This defendant respectfully submit that, the defendant No.1 is the Gram Panchayath Secretary and on the guideline of Government of Karnataka he formed the Road and the said work done by 2nd defendant. The said work is done under Udyoga Khatri Yojana. There is no road work formed in the land of plaintiff. The plaintiff with false and baseless averments has filed this suit against this defendant and also unnecessarily made the 2nd defendant as one of the party. The said work is done under Udyoga Khatri Yojana. There is no road work formed in the land of plaintiff. The plaintiff with false and baseless averments has filed this suit against this defendant and also unnecessarily made the 2nd defendant as one of the party. Hence, the suit filed against the defendants for permanent injunction is not maintainable both under law and facts. It is submitted that, the road improved by the defendants is already shown in the Village Map. These are the true facts." 12. On examination of para 5 of the written statement, this Court is bound to take cognizance of the conduct of defendants in the present case on hand. The defendant No.1 is a local authority. At para 5 of the written statement, defendants have admitted that they have commenced construction of work under Udyoga Khatri Yojana. The defendants have also stated that in terms of guidelines issued by the Government of Karnataka, the road is formed and the said work is executed by the defendant No.2. 13. One stray statement in para 5 is also made indicating that no road is formed in plaintiff's land. Coupled with this stand taken at para 5 of the written statement, the Secretary who has tendered examinationin-chief, for reasons best known to him, has not mounted the witness box to offer for cross-examination. His evidence is rightly discarded by both the Courts. Therefore, the cumulative effect of the fact that Secretary has not come forward to offer for cross-examination coupled with statement at para 5 of the written statement that under the guidelines of Government of Karnataka, road is being formed, it was incumbent on the part of the defendant No.1 to demonstrate as to where exactly the road is being formed and therefore, they were required to furnish the details. Mere statement that they are not forming road in the plaintiff's land will not suffice. 14. In most of the cases, interference may not be tangible, but the Courts are bound to be sensitive enough in gathering it from the pleadings, oral and documentary evidence while examining the conduct of the parties. Why a poor farmer would approach a Civil Court and litigate a case for almost 15 years, if defendants are not intending to form a road. Why a poor farmer would approach a Civil Court and litigate a case for almost 15 years, if defendants are not intending to form a road. Therefore, the fact that plaintiff without respite has been persistently knocking the doors of the Court since 2007 in itself gives an indication that there is an apprehension and this apprehension is based on the highhandedness on the part of defendant No.1. Even though the actual interference is not tangible, the same can be gathered from para 5 of the written statement coupled with the fact that defendant No.1 has consciously not chosen to offer for cross-examination after having tendered examination-in-chief by the Secretary of the defendant No.1. 15. Therefore, this Court is of the view that defendant No.1 being a local authority and a statutory body cannot utilize private property without having recourse to provisions of Land Acquisition Act. The material on record clearly indicates that plaintiff is in lawful possession over the suit land and the fact that defendants have conveniently withheld vital information in regard to formation of road in itself amounts to interference. The fact that statement is made that road is formed and details are not furnished in itself amounts to interference. 16. Both the Courts erred in not granting perpetual injunction, more particularly having held that plaintiff is in lawful possession. Relief of perpetual injunction is a discretionary relief. Wherever a litigant approaches the Court alleging threat or injury to his property, Courts are bound to be bit sensitive while examining the plaintiff's case in a suit for injunction. The fact that plaintiff immediately approached the Court and was able to get an interim order at the hands of the Court has probably protected his property. The cause of action reflected in the plaint indicating that there was threat of dispossession on 13/1/2007 and 15/1/2007 appears to be reasonable and true. The fact that plaintiff succeeded in getting an interim order on 17/1/2007 indicates that there was actual threat and interference at the hands of defendants. 17. In that view of the matter, substantial questions of law formulated by this Court is answered in affirmative. 18. For the foregoing reasons, I pass the following: ORDER (i) The second appeal is allowed; (ii) The judgment and decree dtd. 10/10/2014 passed in R.A.No.32/2013 confirming the judgment and decree dtd. 18/3/2013 passed in O.S.No.14/2007 is set aside. 17. In that view of the matter, substantial questions of law formulated by this Court is answered in affirmative. 18. For the foregoing reasons, I pass the following: ORDER (i) The second appeal is allowed; (ii) The judgment and decree dtd. 10/10/2014 passed in R.A.No.32/2013 confirming the judgment and decree dtd. 18/3/2013 passed in O.S.No.14/2007 is set aside. Consequently, suit is decreed; (iii) The defendants are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment over the suit land; (iv) The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.