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2023 DIGILAW 584 (KAR)

T. M. Krishnappa v. Chikkamuniyappa

2023-04-12

ASHOK S.KINAGI

body2023
JUDGMENT 1. The appellants have filed this regular second appeal challenging the judgment and decree dtd. 20/7/2011 passed in O.S.No.119/2006 on the file of the Prl. Civil Judge at Chickballapur and also the judgment and decree passed in R.A.No.144/2011 dtd. 14/7/2014 on the file of the Additional Senior Civil and JMFC at Chickballapur. 2. The parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and the respondents are the defendants. 3. Brief facts of the case are as under: The plaintiffs filed a suit for permanent injunction in respect of the suit schedule property. It is the case of the plaintiffs that the plaintiffs are in peaceful possession and enjoyment of the plaint schedule property. Plaintiff No.1 is in possession of item No.1 of the suit schedule property and plaintiff No.2 is in possession of item No.2 of the suit schedule property. Item No.1 of the plaint schedule property was granted in favour of 1st plaintiff's father and he died on 13/5/2005 leaving behind plaintiff No.1 and plaintiff No.1 continued to be in possession of the suit schedule property. Plaintiff No.1 made an application before respondent No.4 to accept the katha and mutation through inheritance. The 1st plaintiff's father filed a suit in O.S.No.150/1981 against the father of defendant Nos.1 to 3 and also against defendant Nos.2 and 3 with regard to house and vacant site comprised in Sy.No.236 (Old Sy.No.128) of Kanithahalli for an extent of 20 guntas . The suit was compromised and the defendants agreed that the aforesaid property belongs to G.Munisonnappa. In the said proceedings it was ascertained that there was gramatana on the northern side of Sy.No.236. Out of gramatana property an extent of 60 feet X 30 feet was granted in the name of 1st plaintiff's father which is item No.1 of the plaint schedule property. Defendant Nos.1 to 3 and others have challenged the validity of issuance of the house lists in favour of 1st plaintiff's father and defendant No.2. The defendant Nos.1 to 3 and others filed a suit against the plaintiffs for mandatory injunction to withdraw the house lists entries issued in the name of 1st plaintiff's father and plaintiff No.2 in O.S.No.17/2001 on the file of Civil Judge (Jr.Dn.), Chickballapur and ultimately, the suit was dismissed by holding that the defendants therein are not in possession of the suit schedule property. After dismissal of the suit, the defendants have tried to remove the compound wall on the eastern side of the plaint schedule property and trying to occupy the plaint schedule properties by force. Hence, the plaintiffs requested the defendants not to cause any interference. Inspite of it, the defendants did not gave any heed to the request made by the plaintiffs. Hence, the cause of action for the plaintiffs to file the suit for permanent injunction. Defendant Nos.1 to 3 filed the written statement denying the plaint averments and also denied that the plaintiff are the owners of the suit schedule property and it is contended that the defendants have challenged the validity of the issuance of house lists issued in favour of the plaintiffs by filing a petition before the Executive Officer in G.P.A.3/2000-01 and the said appeal was dismissed. The defendants admitted about the filing of suit in O.S.No.17/2001 and also the dismissal of the said suit. It is denied that the defendants are trying to remove the compound wall erected on the eastern side of the suit schedule property. It is denied that the defendants are trying to tress pass and by using the force get the physical possession from the plaintiff and removing of standing trees. There is no cause of action for filing a suit. The cause of action shown in the plaint is false and imaginary. It is contended that the 1st plaintiff's father by name Sri G. Munisonnappa filed a suit in O.S.No.239/1973 on the file of Munsiff, Chickaballapur and the said suit was ended in a compromise between one of these defendants and their father that the defendants granted sites by the Government in gramatana which was far away from the plaint schedule properties and survey numbers. The said Sri G. Munisonnappa has agreed to live 5 feet of space to make road for their ingress and egress of the defendants to enter their huts. The said Sri G. Munisonnappa has agreed to live 5 feet of space to make road for their ingress and egress of the defendants to enter their huts. Again in the year 1981, the said G. Munisonnappa unnecessarily brought another suit in O.S.No.150/1981 and later on, the advise of the villagers that suit was also compromised as the defendants have not encroached any of the suit schedule properties and they are within the limits of gramatana, which was granted to them and also contended that the defendants aggrieved by the judgment and decree passed in O.S.No.17/2001 preferred an appeal in R.A.No.103/2006 on the file of Civil Judge (Sr.Dvn.) Chickballapur and both the appeals are pending for adjudication. On these grounds, sought for dismissal of the suit. 4. The Trial Court, on the basis of the above said pleadings, framed the following issues: 1. Does the plaintiffs prove their lawful possession and enjoyment over the suit schedule property as on the date of suit? 2. Does the plaintiffs prove the alleged interference by the defendants with the possession of defendants? 3. What relief the parties are entitled to? The plaintiffs in support of their case, petitioner No.1 was examined as PW-1 and got marked documents as Exs.P1 to P29. Defendant No.3 was examined as DW.1 and got marked documents as Exs.D1 to D12. The trial Court after recording the evidence and considering the oral as well as the documentary evidence held that the plaintiffs proved that they are in possession of the suit schedule property as on the date of suit and further held that the plaintiffs proved that the alleged interference by the defendants with the possession of plaintiffs and consequently, decreed the suit of the plaintiffs. The defendants aggrieved by the judgment and decree passed by the Courts below, preferred an appeal in R.A.No.144/2011. 5. The Appellate Court, after hearing the parties, has framed the following points for consideration: 1. Whether the plaintiffs 1 and 2 proves that they are in lawful possession of the suit schedule properties as on the date of filing of the suit? 2. Whether the judgment and decree of the trial Court calls for interference by this Court? 3. What order or decree? Whether the plaintiffs 1 and 2 proves that they are in lawful possession of the suit schedule properties as on the date of filing of the suit? 2. Whether the judgment and decree of the trial Court calls for interference by this Court? 3. What order or decree? The appellate Court, after re-appreciating the material on record, allowed the appeal and set aside the judgment and decree passed by the trial Court and consequently, dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the judgment and decree passed by the appellate Court, filed this second appeal. 6. Heard learned counsel for the plaintiffs and the defendants. 7. Learned counsel for the plaintiffs submits that the plaintiffs are in possession of the suit schedule property. The plaintiffs have produced the tax paid receipts and katha extract. He submits that the appellate Court has over looked the said documents and further submits that the trial Court was justified in passing the impugned judgment and decree. Hence, on these grounds, he prays to allow the appeal. 8. Per contra, learned counsel for the respondents submits that the plaintiffs are not in possession of the suit schedule property. Further, the allotment of sites granted in favour of the plaintiffs was challenged in the writ petition. In the said writ petition, the list was set aside. The writ appeal was preferred and writ appeal was also came to be dismissed for default. In view of the cancellation of allotment of list, the plaintiff has no right, title or interest. Hence, the plaintiff is not in possession of the suit schedule property. Hence, on these grounds he submits that the appellate court was justified in passing the impugned judgment and decree. Hence, prayed to dismiss the appeal. 9. This court vide order dtd. 18/12/2014 admitted the appeal to consider the following substantial questions of law: 1. Whether the findings of the Lower Appellate Court in reversing the judgment of the trial Court on the ground that the plaintiffs have no title is perverse? 2. Whether the Lower Appellate Court was justified in entering into the issue on the point of title while dealing with the suit for bare injunction? 10. Perused the records and considered the submissions of learned counsel for the parties. 11. 2. Whether the Lower Appellate Court was justified in entering into the issue on the point of title while dealing with the suit for bare injunction? 10. Perused the records and considered the submissions of learned counsel for the parties. 11. Substantial Question No.1: It is the case of the plaintiff that the suit schedule property was allotted in favour of father of plaintiff No.1. Item No.1 and item No.2 was allotted to plaintiff No.2 granddaughter. And further the plaintiffs are in possession of the suit schedule property by virtue of grant made in favour of plaintiff No.1-father and plaintiff No.2 and name of plaintiffs are appearing in the khatha extract and also the plaintiffs are paying the tax of suit item Nos.1 and 2 of the suit schedule property. It is contended that the defendants have no right, title or interest. It is also further contended that the plaintiffs are paying the tax of the site. Hence, in order to establish the case of the plaintiffs, plaintiff No.1 was examined as PW.1 and he has reiterated the plaint averments in the examination-in-chief and produced the documents marked as Ex.P.1 to 29. 12. In the course of cross examination he has admitted about challenging the list of sites granted in favour of the grantees and said list was set aside in W.P No.16235/2007 and produced the copy of the order sheet and also copy of writ petition in W.P No.16235/2007 which is marked as Ex.P.28. and further the plaintiff has admitted that khata of item No.1 has not been changed to his name. On the other hand, further the plaintiff has failed to prove that he was in lawful possession of the schedule property as on the date of filing the suit. Further, he has produced the Hakku patra in respect of item Nos.1 and 2 granted to his father and plaintiff No.2. When the list of grantees was set aside by this Court in W.P.No.16235/2007, hence the Hakku Patra has no relevance. It is not the case of the plaintiffs that after setting aside the list of grantees, the plaintiffs have been granted suit sites. When the list of grantees was set aside by this Court in W.P.No.16235/2007, hence the Hakku Patra has no relevance. It is not the case of the plaintiffs that after setting aside the list of grantees, the plaintiffs have been granted suit sites. When the said list set aside by this Court, the plaintiffs have not acquired any right, title or interest over the suit schedule property and further in order to demonstrate that the plaintiffs are in possession of the suit schedule property, the plaintiffs have not produced any records in support of their contention except producing the copy of the decree passed in O.S No.150/1981 and resolution passed by the kondenahalli grama panchayat and tax paid receipt. Merely on the basis of tax paid receipt, it cannot be held that the plaintiffs are in possession of the suit schedule property. Further, as observed above, the plaintiffs have failed to prove the possession as on the date of filing of the suit. In the instant case, the suit is only for bare injunction, while considering in a suit for bare injunction, the Court is required to consider only possession, the plaintiff has failed to establish the possession as on the date of filing the suit. 13. In view of the above discussion, the lower appellate Court was justified in reversing the judgment of the trial Court on the ground that the plaintiff is not in possession of the suit schedule property. In view of the above discussion, I answer substantial question No.1 in the negative. 14. Substantial Question No.2:From the perusal of the judgment passed by the lower appellate Court, the lower appellate Court in para 21, held that except oral testimony of PW.1 in whose name khatha has not been entered, there is no other oral and documentary evidence to substantiate the case of the plaintiffs and they are not in possession of the suit schedule property as on the date of filing the suit. Further, the suit is for permanent injunction, the title and possession of the defendants over the suit schedule property is not relevant fact to be considered or proved before the Court. The lower appellate Court has not entered into the issue of title while deciding a suit for bare injunction. 15. Further, the suit is for permanent injunction, the title and possession of the defendants over the suit schedule property is not relevant fact to be considered or proved before the Court. The lower appellate Court has not entered into the issue of title while deciding a suit for bare injunction. 15. The appellate Court merely considering the possession of the parties, have rightly held that the plaintiffs are not in possession of the suit schedule property and the judgment and decree passed by the appellate Court is just and proper. In view of the above discussion, the substantial question of law No.2 is answered in the negative holding that the appellate Court has not entered into wanting of the title while deciding a suit for bare injunction. In view of the above discussion, I do not find any grounds to interfere with the judgment and decree passed by the appellate Court. 16. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER The appeal is dismissed. In view of the disposal of the main appeal, pending I.A does not survive for consideration.