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2024 DIGILAW 278 (KAR)

U. I. Ibrahim v. B. R. Byrappa Gowda

2024-04-15

H.P.SANDESH

body2024
JUDGMENT : Mr. H.P.Sandesh, J. - Heard the learned counsel for the appellant. The respondent was served and entered appearance through Sri. Vigneshwar S. Shastri, learned counsel and he was designated as Senior counsel and thereafter, his colleague undertaken to file vakalath for respondent and inspite of several opportunity, not filed vakalath. Now, the counsel submits that the respondent is not responding to the letter and it shows that the respondent is not interested in pursuing the matter. 2. The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule property measuring 2 acres of land in Sy.No.174 of Byduvalli Village of Mudigere Taluk is granted in his favour and he is in lawful possession, occupation and enjoyment of the same by cultivating cardamom. The plaintiff has fenced the above said property and the defendant, who is having no manner of title or interest over the suit schedule property, that on 13.08.1994 tried to interfere with the peaceful possession and enjoyment of the same. The illegal acts of the defendant was resisted by the plaintiff, who made an attempt to dispossess him. Hence, filed the suit for the relief of permanent injunction. 3. In pursuance of the suit summons, the defendant appeared and filed the written statement contending that the defendant is in possession of the suit schedule property from the last 35 years continuously, uninterruptedly, peacefully and openly to the knowledge of the whole world including the plaintiff and he is paying the kandayam and he is in possession of the suit schedule property and contend that the plaintiff is not in possession of the suit schedule property. 4. The Trial Court, having considered the grounds urged in the plaint as well as the written statement, framed the following issues: "1) Whether the plaintiff proves that he is the lawful owner in possession and enjoyment of the suit schedule property i.e., 2 acres of land in Sy.No.174 of Byduvalli Village, as on the date of suit? 2) Whether the plaintiff further proves the interference of the defendant as alleged in the plaint? 3) Whether the plaintiff is entitled for the relief of permanent injunction? 4) What order or decree?". 5. The plaintiff, in order to prove his case, examined Special Power of Attorney holder as P.W.1 and got marked the documents as Exs.P1 to P5. 2) Whether the plaintiff further proves the interference of the defendant as alleged in the plaint? 3) Whether the plaintiff is entitled for the relief of permanent injunction? 4) What order or decree?". 5. The plaintiff, in order to prove his case, examined Special Power of Attorney holder as P.W.1 and got marked the documents as Exs.P1 to P5. On the other hand, the defendant examined himself as D.W.1 and examined two witnesses as D.Ws.2 and 3 and not marked any evidence. 6. The Trial Court, taken note of the material available on record, particularly the documents of Exs.P1 to P5 i.e., the certified copy of the grant order, memorandum together with mahazar as well as the list of grantees issued by the Deputy Commissioner, accepted the case of the plaintiff that he is in lawful possession and enjoyment of the suit schedule property and also proved that defendant tried to interfere with the possession and answered issue Nos.1 to 3 as 'affirmative' and granted the judgment and decree of permanent injunction in favour of the plaintiff. 7. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.82/2004. The First Appellate Court reversed the findings of the Trial Court, in coming to the conclusion that the evidence of P.W.1 cannot be accepted and the documents which have been produced not substantiates the case of the plaintiff and set aside the judgment and decree of the Trial Court. Being aggrieved by the said judgment and decree of reversal by the First Appellate Court, the present second appeal is filed before this Court. 8. Having considered the grounds urged in the appeal, this Court vide order dated 03.11.2010 framed the following substantial question of law for consideration before this Court: "(1) Whether the lower appellate Court was justified in reversing the findings of fact of the trial Court with reference to the material documents that were produced while the lower appellate Court has thought it fit to question the bona fides of the power of attorney holder of the plaintiff to negate the case of the plaintiff?". 9. 9. Learned counsel appearing for the appellant would vehemently contend that the lower appellate Court was not justified in reversing the findings of the fact of the Trial Court with reference to the material documents that were produced while the lower appellate Court has thought it fit to question the bona fides of the power of attorney holder of the plaintiff to negate the case of the plaintiff. Learned counsel also would vehemently contend that when the document is produced before the Court that land has been granted in favour of the plaintiff, the same evidences the fact of grant and saguvali chit was yet to be issued. Hence, the plaintiff could not pay the tax, though the defendant contend that he is in possession from the last 35 years openly with the knowledge of the plaintiff. It is contended that the defendant has not placed any document, except cross-examining D.Ws.1 to 3 and even though the defendant made the claim that tax has been paid, no tax paid receipt is produced and only oral evidence of D.Ws.1 to 3 has been believed by the First Appellate Court. Hence, it requires interference of this Court. 10. Having considered the grounds urged in the appeal memo as well as the substantial question of law framed by this Court, this Court has to take note of the material available on record whether the First Appellate Court has committed an error in reversing the fact finding of the Trial Court. The Trial Court, while answering issue No.1 in Para No.4, taken note of the documents of Exs.P1 to P5, particularly the list of grantees issued by the Deputy Commissioner and also the fact that grant made in favour of 11 persons, including the appellant herein. Apart from that, even memorandum together with mahazar is marked as Ex.P4 and documents Exs.P2 and P3 are grant certificates granting lands in favour of the appellant and so also in respect of other grantees i.e., 43 in number and the First Appellate Court committed an error in reversing the said finding of the Trial Court, when the Trial Court has given anxious consideration to oral evidence of P.W.1 and documentary evidence. The First Appellate Court, while reversing the findings of the Trial Court, taken note of the fact that no reason has been assigned in the power of attorney. The First Appellate Court, while reversing the findings of the Trial Court, taken note of the fact that no reason has been assigned in the power of attorney. On perusal of the power of attorney, no doubt, no reasons are assigned for executing the same, but specific averments are made that since suit is filed by the plaintiff for permanent injunction, power of attorney is executed. No doubt, the defendant has taken the contention that he is in possession, occupation, cultivation and enjoyment of the property since more than 35 years continuously, uninterruptedly, peacefully and openly to the knowledge of the whole world and he is paying the kandayam. In order to substantiate the same though contend that he is paying the tax, no such document is placed before the Court except oral evidence of PW1 to PW3 to show that the defendant is in possession of the suit schedule property. 11. It is also important to note that the First Appellate Court while reversing the judgment and decree of the Trial Court made an observation in paragraph 14 that the learned Judge lost sight of one fact that the plaintiff's case shall not stand on the weakness of the defendant's case. It has to be noted that suit is not filed for the relief of declaration and the question of weakness of the defendant does not arise. The First Appellate Court also observed that the plaintiff has not entered into the witness box. Non-appearance of the plaintiff will not take away the case of the plaintiff when the plaintiff has produced the documents particularly, the document at Ex.P2 which is the order under which total 25-03 acres of land in Sy.No.174 has been granted in favour of the grantees by the Deputy Commissioner in No.BDS:LND/SR:219/84-85 dated 30.09.1984 which shows that the name of the grantee is annexed to the order, but an observation is made that such list of grantee is not annexed to this document. The Ex.P3 is another order of the Deputy Commissioner dated 30.09.1984 in BDS:LND:SR:149/84-85 in respect of 93 acres of land in Sy.No.174 had been granted in favour of 43 persons, but the names of the grantees is not mentioned. The Ex.P3 is another order of the Deputy Commissioner dated 30.09.1984 in BDS:LND:SR:149/84-85 in respect of 93 acres of land in Sy.No.174 had been granted in favour of 43 persons, but the names of the grantees is not mentioned. The First Appellate Court failed to take note of the document at Ex.P5 and same is list of 12 persons in respect of the grantees under order No.BDS:LND:SR:219/84-85 and the same is in respect of the grant made in favour of the plaintiff and the name of plaintiff is also found in Sl.No.4. Even though noticed the said fact, the First Appellate Court made an observation that the plaintiff has established his case only to the extent that he is granted land in Sy.No.174 to the extent of 2 acres but where is the document establishing the identification of the granted land in Sy.No.174. Such an observation is made and with regard to the identity of the property is concerned and there is no any dispute. 12. The only contention of the defendant is that he has been in possession of the suit schedule property openly with the knowledge of the plaintiff. But in order to prove the fact that the defendant is in possession from last 30 to 35 years, no such documents are produced and the same has not been considered by the First Appellate Court and only taken note of documents which have been relied upon by the plaintiff. When the defendant took the specific defence in the written statement that he has been in possession and he has perfected the title by adverse possession but not produced any document to that effect. Even though the defendant claims that he has been paying the kandayam, no such tax paid receipt is also produced and nothing has been discussed in the judgment of the First Appellate Court with regard to the reasoning given by the Trial Court. The Trial Court while passing an order, in detail discussed with regard to lawful possession is concerned but while reversing the finding of the Trial Court, the First Appellate Court has to take note of over all evidence in detail. The Trial Court while passing an order, in detail discussed with regard to lawful possession is concerned but while reversing the finding of the Trial Court, the First Appellate Court has to take note of over all evidence in detail. The Trial Court discussed considering the evidence of DW1 to DW3 wherein they claims that they are in possession and enjoyment of the suit schedule property but no material is placed before the Trial Court to show that they are in possession of the suit schedule property openly to the knowledge of the whole world including the plaintiff as contended by the defendant. 13. The Trial Court in detail passed the order in granting the relief of permanent injunction and the same has been reversed by the First Appellate Court. Hence, the First Appellate Court fails to take note of the document at Ex.P1 to P5 in a proper perspective and committed an error in coming to the conclusion that the plaintiff has not established the grant when the document at Ex.P2 and P3 are the grant certificates issued by the Deputy commissioner and so also in Ex.P5, the name of grantee/plaintiff is found in Sl.No.4 of the order passed by the Deputy Commissioner in No.BDS:LND/SR:219/84-85 dated 30.09.1984 and as against the said grant order and Ex.P5, no such material is placed by the defendant and inspite of it, the First Appellate Court committed an error in reversing the finding of the Trial Court not assigning the sound reason. Hence, it requires interference. Thus, substantial question of law is answered accordingly. The First Appellate Court given more credence to the not mentioning the name of Power of Attorney holder in the said Power of Attorney when the Power of Attorney is given in favour of specific person mentioning the case number which also ratifies the act of the Power of Attorney holder in the very document itself which is marked as Ex.P1. Hence, the very approach of the First Appellate Court is erroneous. 14. In view of the discussions made above, I pass the following: ORDER The second appeal is allowed. The impugned judgment and decree dated 12.02.2009 passed in R.A.No.82/2004 is set aside. Consequently, the judgment and decree dated 19.01.1998 passed in O.S.No.256/1994 is restored granting the relief of permanent injunction in favour of the plaintiff.