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2023 DIGILAW 415 (KAR)

Govindappa v. N. H. Rehman

2023-03-10

H.P.SANDESH

body2023
JUDGMENT/ORDER 1. Heard the learned counsel for the appellant and the learned counsel for respondent Nos.1 and 2. 2. This appeal is filed challenging the judgment and decree dtd. 13/11/2017, passed in R.A.No.84/2015, on the file of the Additional Senior Civil Judge and JMFC, KGF. 3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of permanent injunction in respect of item Nos.1 and 2 of the suit schedule property is that one Venkataswamy Bhovi was the absolute owner of item No.1 of the suit schedule property and he was in physical possession and enjoyment of item No.1 of suit schedule property. The said Venkataswamy Bhovi for his legal necessity sold the said property by way of sale deed dtd. 12/3/2008 and plaintiff No.1 had become the absolute owner of the suit schedule property. It is further contended that plaintiff No.1 was the absolute owner of item No.2 of the suit schedule property and the plaintiff No.1 for his legal necessity had sold the property to one A.M.Lakshmi Narayana (defendant No.7). Later, plaintiff No.1 and defendant No.7 for their legal necessities sold item No.2 of the suit property to plaintiff No.2 by way of registered sale deed dtd. 12/11/2009 and by virtue of the absolute sale deed dtd. 12/11/2009, plaintiff No.2 had become the absolute owner of the suit schedule property. By virtue of the absolute sale deeds dtd. 12/3/2008 and 12/11/2009, all the relevant documents are changed into the name of plaintiffs in respect of the suit schedule property item Nos.1 and 2 and the names of the plaintiffs finds a place in respect of suit schedule property item Nos.1 and 2 and the revenue authorities have recognized the right, title, interest and possession of the plaintiffs over the suit schedule property item Nos.1 and 2 and the mutation proceedings in M.R.No.9/2009-10 and 4/2009-10 clearly proves that the sale deeds have been already acted upon and the RTC pahanis for the year 2009-10 standing in the name of the plaintiffs. It is further contended that subsequent to the sale deeds dtd. It is further contended that subsequent to the sale deeds dtd. 12/3/2008 and 12/11/2009, the plaintiffs have been in possession and enjoyment of the suit schedule property item Nos.1 and 2 and are raising seasonal crops thereon like ragi, avare, thogare and other crops in the suit schedule property item No.1 and 2 and the said aspect is also well within the knowledge of the defendants and the defendants are estopped from contending otherwise. 4. The defendant No.6 had filed an objection not to effect khatha in the name of plaintiff No.1 in respect of suit schedule property item No.1 and the said objection was converted into a proceedings and the said proceedings in RRT Dis.CR.12/2009-10 had ended in favour of plaintiff No.1 on 22/12/2009. It is further contended that the defendants have absolutely no right, title, interest or possession over the suit schedule property item Nos.1 and 2 and the defendants were never in possession of suit schedule property at any point of time in any manner subsequent to the sale deeds dtd. 12/3/2008 and 12/11/2009. The defendants and their family members illegally made attempts to trespass and interfere over the peaceful possession and enjoyment of the suit schedule property item Nos.1 and 2 and hence without any other alternative, the plaintiffs filed the suit. 5. In pursuance of the suit summons, defendant Nos.2 to 7 were placed exparte and defendant No.1 filed a detailed written statement denying the entire averments of the plaint. The defendant No.1 contended that the description of the suit property is false and incorrect. It is contended that the plaintiffs have filed this suit in order to claim the property in possession of defendant No.1. By showing the northern boundary as property of Chickabodappa have included the property in possession of defendant No.1. The land described as item No.2 is not measuring 2 acres 20 guntas, but measuring 4 acres. Further, it is contended that he has been under Bagurhukum Saguvali in the land measuring 1 acre in Sy.No.28 from number of years. The land in possession of defendant No.1 is bounded on the east by road and Kothamuniyappa, Beerappa and others, west by plaintiffs' land, north by Chickbodanna @ Venkataswamy and south by Chikkaboddanna land now sold to the plaintiffs (now claimed by plaintiff as item No.2 land). The land in possession of defendant No.1 is bounded on the east by road and Kothamuniyappa, Beerappa and others, west by plaintiffs' land, north by Chickbodanna @ Venkataswamy and south by Chikkaboddanna land now sold to the plaintiffs (now claimed by plaintiff as item No.2 land). The said land is in possession of defendant No.1 and his family from number of years. The defendant No.1 had applied to the Tahsildlar for regularization of the unauthorized occupancy during the year 1999 and the proceedings were initiated in this regard and mahazar was drawn, sketch was made showing the possession of defendant No.1. The defendant No.1 has been in possession of the said land from number of years growing crops and eking out his livelihood. The plaintiffs have been illegally interfering with defendant No.1's possession over the said land and now in order to illegally knock off the said 1 acre of land, the plaintiffs have engineered the above suit. 6. Based on the pleadings of the parties, the Trial Court framed the issues and the plaintiffs in order to prove their case examined plaintiff No.1 as P.W.1 and one witness as P.W.2 and got marked the documents at Exs.P.1 to 9. The defendant No.1 has been examined as D.W.1 and two witnesses have been examined as D.W.2 and D.W.3 and got marked the documents at Exs.D.1 to 18. The Trial Court after considering both oral and documentary evidence placed on record answered all the issues partly in the affirmative and granted the decree in favour of the plaintiffs in respect of item No.1 of the suit schedule property and dismissed the suit in respect of item No.2 of the suit schedule property. 7. Being aggrieved by the judgment and decree of the Trial Court, the plaintiffs filed an appeal in R.A.No.84/2015 before the Appellate Court. The plaintiffs/appellants contended that the judgment and decree of the Trial Court is perverse in respect of item No.2 of the schedule property. Though there is existence of 22 guntas of kharab land in item No.2 of the suit schedule property, the Trial Court without appreciating the material on record, has erred in holding that the plaintiffs have failed to establish the said extent of 22 guntas of the land in item No.2 of the suit schedule property. Though there is existence of 22 guntas of kharab land in item No.2 of the suit schedule property, the Trial Court without appreciating the material on record, has erred in holding that the plaintiffs have failed to establish the said extent of 22 guntas of the land in item No.2 of the suit schedule property. The Trial Court has not considered the material available on record and comes to the wrong conclusion in partly decreeing the suit. The finding of the Trial Court is perverse and capricious and hence prayed the Court to allow the suit in its entirety. The learned counsel for the plaintiffs also filed an application under Order 41 Rule 27 read with Sec. 151 of CPC seeking permission to produce the certified copy of tippani copy and Karnataka Revision Settlement Akar Bundh. It is contended that those documents are obtained recently from the concerned authority and hence could not produce the same before the Trial Court and the said documents throw much light into the actual situation of the case on hand and those documents are just and necessary to resolve the controversy between the parties. 8. The defendant No.1 filed statement of objections to the said I.A. and contended that the documents produced was within the knowledge of the plaintiffs and the documents do not have any bearing on the appeal. The First Appellate Court having perused the grounds urged in the appeal memo and also the application formulated five points for consideration. On appreciation of both oral and documentary evidence placed on record, answered point Nos.1 and 2 in the affirmative in coming to the conclusion that the plaintiffs have proved the existence of 22 guntas of kharab land in item No.2 of the schedule property and the materials on record also prove the actual possession and enjoyment of plaintiff No.2 over item No.2 of the suit schedule property as on the date of suit and illegal interference of the defendants. Point No.3 was answered in the negative. Point No.3 was answered in the negative. The Appellate Court comes to the conclusion that it requires interference of this Court and also with regard to filing of the application under Order 41 Rule 27 of CPC comes to the conclusion that the documents which have been produced are not necessary and already the plaintiffs have proved the case and allowed the appeal and granted the relief of injunction in respect of item No.2 of the schedule property and directed the defendants and their family members not to interfere with the plaintiffs' peaceful possession and enjoyment over the item No.2 of the suit schedule property. Hence, the present appeal is filed by defendant No.1 assailing the judgment of the First Appellate Court. 9. The learned counsel for the appellant would vehemently contend that the application filed under Order 41 Rule 27 of CPC seeking permission to adduce the additional evidence before the First Appellate Court was not considered properly. The proviso specifically contemplates that the parties to the appeal shall not be entitled to produce additional evidence unless they satisfy the requirement of Order 41 Rule 27 of CPC. The Appellate Court disposed of I.A.No.4 mechanically and without application of mind and without being satisfied whether the said application has satisfied the ingredients of Order 41 Rule 27 of CPC and disposal of the said I.A. is illegal and the same is not in accordance with Order 41 Rule 27 of CPC. The learned counsel submits that Order 41 Rule 28 of CPC specifically contemplates the mode of taking additional evidence. The First Appellate Court has not taken the additional evidence as required under Order 41 Rule 28 of CPC. It has neither taken evidence on such additional documents nor has directed the Trial Court to take evidence on these documents. Without taking evidence on these additional documents produced by respondent Nos.1 and 2, the First Appellate Court has adjudicated the matter. Therefore, the adjudication made by the First Appellate Court is contrary to Order 41 Rule 28 of CPC and therefore the judgment of the First Appellate Court is unsustainable in law. The Trial Court has considered the admission of P.W.1 elaborately and has recorded reasons for dismissal of the suit in respect of item No.2 of the suit schedule property. Therefore, the adjudication made by the First Appellate Court is contrary to Order 41 Rule 28 of CPC and therefore the judgment of the First Appellate Court is unsustainable in law. The Trial Court has considered the admission of P.W.1 elaborately and has recorded reasons for dismissal of the suit in respect of item No.2 of the suit schedule property. The First Appellate after considering the reasons of the Trial Court has to record its own reasons and the same has not been done and hence the very approach of the First Appellate Court is erroneous. 10. This Court while admitting the appeal framed the following substantial questions of law: 1. Whether the First Appellate Court was justified in allowing the application filed by the plaintiffs under Order 41 Rule 27 of CPC without following the procedure laid down under Order 41 Rule 27 and Rule 28 of CPC? 2. Whether the First Appellate Court was justified in accepting the contention of the plaintiff that the kharab purportedly attached to the main property could be deemed to have been validly transferred, without even examining whether the kharab was 'A' or 'B' kharab and whether it was transferable? 3. Whether the First Appellate Court erred in reversing the judgment of the Trial Court while admittedly the plaintiffs sought to make out a new case by producing additional documents and therefore the plaintiffs were permitted to make out a new case which was neither pleaded nor proved before the Trial Court? 4. Whether the First Appellate Court was justified in granting injunctive relief in respect of part of item of No.2 of the suit schedule property (22 guntas of kharab land) even though plaintiffs failed to produce any evidence to prove possession over the disputed portion of item No.2? 11. The learned counsel for the appellant in her arguments has reiterated the grounds urged in the appeal memo and contended that there is no dispute with regard to granting of injunction in respect of item No.1 and only dispute is in respect of item No.2 of the suit schedule property. The learned counsel would contend that in terms of the sale deed Ex.P.3 dtd. 12/11/2009, the plaintiff No.1 had purchased the property to the extent of 2 acres 20 guntas and not included the kharab to the extent of 22 guntas. The learned counsel would contend that in terms of the sale deed Ex.P.3 dtd. 12/11/2009, the plaintiff No.1 had purchased the property to the extent of 2 acres 20 guntas and not included the kharab to the extent of 22 guntas. The learned counsel contend that the First Appellate Court committed an error in reversing the finding of the Trial Court in respect of item No.2 and fails to give proper reasons by re-assessing the material on record. 12. The learned counsel for the appellant in support of her arguments relied upon the judgment of this Court in the case of SRI DODDASHAMANNA @ SHAMANNA v. VENKATESHAPPA G. AND ANOTHER reported in 2013 (2) KCCR 1410 and relied upon paragraph No.13 of the judgment wherein an observation is made with regard to the dispute is only regarding 36 guntas of kharab land. It is also not in dispute that this 36 guntas of kharab land is a part of Sy.No.9. Merely because it becomes part of Sy.No.9, when what is granted is 3 acres 18 guntas, title to 36 guntas is not conveyed to the plaintiffs. Therefore, Venkatarayappa acquired only 3 acres 18 guntas, he was not the owner of 36 guntas of kharab land which is not the subject matter of grant. To that extent, the judgment of the Trial Court is vitiated and is hereby set aside. 13. The learned counsel also relied upon the judgment of the Apex Court in the case of AKHILESH SINGH ALIAS AKHILESHWAR SINGH v. LAL BABU SINGH AND OTHERS reported in (2018) 4 SCC 659 and brought to the notice of this Court paragraph Nos.12 to 14 wherein, the Appellate Court discussed with regard to the scope of Order 41 Rule 27 of CPC. In paragraph No.12 it is held that Order 41 Rule 27 of CPC is silent as to the procedure to be adopted by the High Court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the Appellate Court to grant opportunity to other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 2 of CPC. Whether after admission of additional evidence, it is necessary for the Appellate Court to grant opportunity to other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 2 of CPC. In paragraph No.13, extracted Order 41 Rule 2 of CPC and in paragraph No.14 held that Order 41 Rule 2 provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order 41 Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence under Order 41 Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. 14. The learned counsel relying upon this judgment would contend that the First Appellate Court has committed an error in entertaining the application filed under Order 41 Rule 27 of CPC and also granting the relief of permanent injunction in respect of even kharab land. 15. The learned counsel also relied upon the judgment of this Court in the case of SADASHIVAIAH AND OTHERS v. STATE OF KARNATAKA AND OTHERS reported in ILR 2003 KAR 5088, wherein in paragraph No.30 discussed with regard to kharab land is concerned. Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption. Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. Every pot kharab land does not belong to government. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number. In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined as a piece of pieces of land classed as unarable and included in a survey number. The description has no relevance to ownership. The expression put kharab is explained in Gupte's book on the Bombay Land Revenue Code as 'barren or uncultivable land included in an assessed survey number' and includes any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation." 16. The learned counsel referring this judgment would contend that nature of kharab is also not decided by the First Appellate Court and hence, it requires interference of this Court. 17. Per contra, the learned counsel for respondent Nos.1 and 2 would contend that the claim of defendant No.1 is that he is in possession of Sy.No.28 and it is not his contention that he is in possession of Sy.No.39 and kharab land is also in existence in Sy.No.39. The learned counsel submits that in the cross- examination he has categorically admitted that he is not claiming any right in Sy.No.38 or Sy.No.39 and also it is his claim that he is in unauthorized occupation of Sy.No.28 and made an application for grant and no grant has been made and the same is pending consideration according to him. The learned counsel submits that in the cross- examination he has categorically admitted that he is not claiming any right in Sy.No.38 or Sy.No.39 and also it is his claim that he is in unauthorized occupation of Sy.No.28 and made an application for grant and no grant has been made and the same is pending consideration according to him. The learned counsel would contend that the relief sought is in respect of item No.2 is also as mentioned in the earlier sale deed and no difference in the boundaries mentioned in the suit schedule property and the very contention of defendant No.1 that the plaintiff is making an attempt to obtain the decree in respect of property of defendant No.1 also has not been established. The First Appellate Court in detail discussed the material on record and answered the points, which have been formulated and granted the relief of permanent injunction in respect of item No.2 of the suit schedule property. Hence, no ground is made out to interfere with the judgment of the First Appellate Court. 18. Now this Court keeping in view the contentions urged in the appeal and also the oral arguments of the learned counsel for the appellant and the learned counsel for respondent Nos.1 and 2 has to consider the material on record. The first substantial question of law framed by this Court is whether the First Appellate Court was justified in allowing the application filed by the plaintiffs under Order 41 Rule 27 of CPC without following the procedure laid down under Order 41 Rule 27 and 28 of CPC. Having considered this substantial question of law, this Court would like to make it clear that application filed by the appellants before the First Appellate Court has not been allowed and it is disposed of by giving the reasoning in paragraph No.39 that under such application, only sought permission to produce the certified copy of Tippany and Karnataka Revision Settlement Akar Bundh. By considering the material on record, the First Appellate Court was of the opinion that when the said 22 guntas of kharab land is part and parcel of item No.2 of the suit schedule property and the same is in existence since 21/12/1966 in Sy.No.39, hence even in the absence of the said documents, the plaintiffs have proved their case. By considering the material on record, the First Appellate Court was of the opinion that when the said 22 guntas of kharab land is part and parcel of item No.2 of the suit schedule property and the same is in existence since 21/12/1966 in Sy.No.39, hence even in the absence of the said documents, the plaintiffs have proved their case. The First Appellate Court has not relied upon those documents and only disposed of the application in coming to the conclusion that in the absence of the said documents, the plaintiffs have proved their case and if such documents are relied upon by the First Appellate Court, then there is a force in the contention of the learned counsel for the appellant that without giving an opportunity those documents ought not to have been considered as contended by the learned counsel for the appellant in relying upon the judgment referred supra. These documents have not been relied by the First Appellate Court and comes to the conclusion that in the absence of the said documents the plaintiffs have already proved the case by considering the material on record and not relied upon the said documents. Hence, I answer substantial question of law with regard to Order 41 Rule 27 of CPC that the application is not allowed and also not relied upon the documents and the question of following Rule 28 does not arise. 19. The second substantial question of law framed by this Court is Whether the First Appellate Court was justified in accepting the contention of the plaintiffs that the kharab purportedly attached to the main property could be deemed to have been validly transferred, without even examining whether the kharab was 'A' or 'B' kharab and whether it was transferable? The First Appellate Court while considering the material on record, considered the said aspect in paragraph No.29 with regard to the property was phoded in the year 1966 and re-numbered as Sy.No.39 in respect of Sy.No.28/P6. The First Appellate Court while considering the material on record, considered the said aspect in paragraph No.29 with regard to the property was phoded in the year 1966 and re-numbered as Sy.No.39 in respect of Sy.No.28/P6. In paragraph No.30 it is observed with regard to the negligence on the part of the revenue authorities, though 22 guntas of kharab land was shown in Sy.No.39 in the year 1966 itself, but after selling item No.2 of the suit schedule property by plaintiff No.1 and defendant No.7 in favour of plaintiff No.2, the revenue officials correctly mentioned the cultivable land as 2 acres 20 guntas and 22 guntas of kharab in the name of plaintiff No.2 in Sy.No.39. The contention of defendant No.1 also answered that in view of the said phodi document standing in the name of Bodappa in Sy.No.39 as on 29/12/1966, the contention of defendant No.1 that recently the revenue officials have included 22 guntas of kharab in Sy.No.39 does not hold water. 20. It is also important to note that the First Appellate Court having considered the material available on record and also considering the judgment of this Court in the case of Sadashivaiah (supra), which has been relied upon by the learned counsel for the appellant, taken note of the ratio laid down in the said judgment and comes to the conclusion that the said kharab land of 22 guntas is not 'B' kharab and the same is 'A' kharab. Hence, it is very clear that the First Appellate Court having considered the principles laid down in the judgment discussed in detail the nature of kharab whether it is 'A' or 'B' kharab and concluded that 'B' kharab land does not belong to the owner and it is reserved for public purpose, but it comes to the conclusion that in the instant case, the said kharab of 22 guntas is not 'B' and the same is 'A' kharab. The First Appellate Court examined the nature of kharab and comes to the conclusion that it attaches the property of the suit schedule property and hence comes to the conclusion that the plaintiff can maintain the suit for permanent injunction with respect to item No.2 of the suit schedule property. 21. The First Appellate Court examined the nature of kharab and comes to the conclusion that it attaches the property of the suit schedule property and hence comes to the conclusion that the plaintiff can maintain the suit for permanent injunction with respect to item No.2 of the suit schedule property. 21. The First Appellate Court also taken note of the principles laid down in the judgment of this Court in the case of Doddashamanna @ Shamanna (supra), which is also relied upon by the learned counsel for the appellant before this Court with regard to the granting of the specific relief of injunction and comes to the conclusion that plaintiff No.2 is entitled for equitable relief of permanent injunction with respect to item No.2 of the suit schedule property including 22 guntas of kharab land. In the said judgment it is held that the dispute is with regard to 36 guntas of kharab land and it is also in dispute that this 36 guntas of kharab land is a part of Sy.No.9 and also observed that merely because it becomes part of Sy.No.9, when what is granted is 3 acres 18 guntas, title to 36 guntas is not conveyed to the plaintiffs. It has to be noted that the suit is filed for the relief of injunction and not claimed any relief of declaration in respect of kharab land. In this judgment it is also observed that the defendant is neither the owner of Sy.No.10 nor in possession of this 36 guntas of land in Sy.No.9 and therefore his plea that he has perfected his title by adverse possession has remained only as a plea. 22. In the case on hand, it has to be noted that it is the claim of the plaintiff that he has been in possession of the suit schedule property bearing Sy.No.39 and the Appellate Court taken note of the admission given by D.W.1 in the cross- examination that he claims right in respect of Sy.No.28 on the ground that he has been in unauthorized occupation and till date, the same is not granted and the same is under pending consideration. When the plaintiff has given specific admission that he is no way concerned with Sy.Nos.38 or 39 and also it is the specific case of the plaintiff that kharab land is attached to Sy.No.39 in which he is in possession and the kharab land also cannot be separated and the same is part of Sy.No.39. It is not the claim of defendant No.1 that the said kharab land is part of Sy.No.28 and only contention that considering kharab land of 22 guntas, the plaintiff is making an attempt to knock off the property of defendant No.1 in respect of Sy.No.28. But the relief is sought in respect of Sy.No.39 and not in respect of Sy.No.28. When defendant No.1 admitted in the cross-examination that he is nowhere concerned with Sy.No.39, the very contention of the learned counsel for the appellant cannot be accepted. In the cross-examination, his answer is specific that he has no right over Sy.No.38, which is item No.1 of the suit schedule property or Sy.No.39, which is item No.2 of the suit schedule property and no relationship between himself and Sy.No.39 measuring 3 acres 2 guntas. It is important to note that in the cross- examination he admits that he does not know what is in existence towards eastern, western, northern and southern side of Sy.No.39. He categorically admits that he is not in possession and enjoyment over item No.1 of Sy.No.38 and item No.2 of Sy.No.39. But only he claims that Sy.No.38 and Sy.No.39 are adjacent to each other and the said properties are adjacent to Sy.No.28. This fact is also taken note of by the First Appellate Court in paragraph No.34 and in detail discussed while allowing the appeal. 23. Having taken note of the said admission it is clear that his contention is that the plaintiff has included 1 acre of his land in item No.2 of the suit schedule property and the same cannot be accepted. 23. Having taken note of the said admission it is clear that his contention is that the plaintiff has included 1 acre of his land in item No.2 of the suit schedule property and the same cannot be accepted. Hence, I do not find any force in the contention of the learned counsel for the appellant that without examining whether the kharab was 'A' or 'B' kharab, the Appellate Court committed an error and the suit is filed for the relief of permanent injunction and the second substantial question of law is with regard to whether the First Appellate Court was justified in accepting the contention of the plaintiff that the Kharab purportedly attached to the main property could be deemed to have been validly transferred, without even examining whether the Kharab was 'A' or 'B' Kharab and whether it was transferable does not arise and the scope of injunction suit is limited and the Appellate Court also not comes to the conclusion that the same has been transferred. 24. The third substantial question of law is whether the First Appellate Court erred in reversing the judgment of the Trial Court while admittedly the plaintiffs sought to make out a new case by producing additional documents and the plaintiffs were permitted to make out a new case which was neither pleaded nor proved before the Trial Court? Though an application was filed under Order 41 Rule 27 of CPC, the same was not considered and only disposed of observing that in the absence of those documents, the plaintiff has proved his case and hence I do not find any substance in the contention that new case has been set out and the First Appellate Court committed an error in allowing the plaintiff to make out a new case and no such new case has been made out, only by considering the material on record, the First Appellate Court re-appreciated the material on record. 25. The fourth substantial question of law is whether the First Appellate Court was justified in granting injunctive relief in respect of part of item of No.2 of the suit schedule property (22 guntas of kharab land) even though plaintiffs failed to produce any evidence to prove possession over the disputed portion of item No.2? 25. The fourth substantial question of law is whether the First Appellate Court was justified in granting injunctive relief in respect of part of item of No.2 of the suit schedule property (22 guntas of kharab land) even though plaintiffs failed to produce any evidence to prove possession over the disputed portion of item No.2? Having considered the material available on record, the relief sought in the suit is in respect of two items of the properties and in respect of item No.1, no dispute and item No.2 is in respect of 2 acres 20 guntas and inclusive of 22 guntas of kharab land. No doubt, in terms of the sale deed, only 2 acres 20 guntas of land was included, but not included kharab land. But, the fact is that in the year 1966, phodi was done in respect of the suit schedule property and earlier it was numbered as Sy.No.28/P6 and after the phodi, the same is re-numbered as Sy.No.39. The defendant No.1 is also not claming any right in respect of Sy.No.39 and only claim is in respect of Sy.No.28 and the same is not yet granted and only claims that defendant No.1 is in unauthorized occupation of Sy.No.28. The only contention of defendant No.1 is that the plaintiff is making efforts to possess the property of Sy.No.28. But the suit is filed only in respect of Sy.No.39, which is re-numbered and relief sought is in respect of Sy.No.39 and not Sy.No.28. The defendant No.1 also categorically admitted that he is not having any relation to Sy.No.39 and even Sy.No.38 also. When such admission is given and when the suit is filed for the relief of permanent injunction in respect of 2 acres 20 guntas inclusive of 22 guntas of kharab land and the First Appellate Court also comes to the conclusion that the kharab land is 'B' kharab land and categorically the same is 'B' kharab land and the same is part of Sy.No.39. When the same is part of Sy.No.39, the same cannot be separated from 2 acres 20 guntas of land and the same is inclusive of kharab land and it comes to 3 acres 2 guntas. When the same is part of Sy.No.39, the same cannot be separated from 2 acres 20 guntas of land and the same is inclusive of kharab land and it comes to 3 acres 2 guntas. When such being the material on record and when defendant No.1 does not claim any right in respect of Sy.No.39 and the relief is sought for permanent injunction and not declaration in respect of kharab land of 22 guntas and hence the First Appellate Court has not committed any error in granting injunctive relief in respect of item No.2 of the schedule property which includes the kharab land. Hence, I do not find any force in the contention of the learned counsel for the appellant to set aside the order of the First Appellate Court as contended in the appeal. 26. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.