Smt Dulcin Cecelia Mathias Vs Smt Irene D Souza

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 22.9.2012 PASSED IN R.A.NO.71/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & ACJM, KARKALA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 8.7.2008 PASSED IN OS.NO.77/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) KARKALA.

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NC: 2025:KHC:41060 RSA No. 107 of 2013

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 22.09.2012 passed in R.A.No.71 of 2008 by the learned Senior Civil Judge and A.C.J.M., Karkala.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiffs filed a suit against the defendants seeking for relief of a permanent injunction restraining the defendants from committing trespass into plaint 'A' schedule property from digging, and

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removing mud from the said property and from removing the compound wall situated in the said property. Also, for a mandatory injunction directing the defendants to restore plaint A schedule property to their original position, and for damages. It is the

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case of the plaintiffs that the plaintiffs are the absolute owners of the suit schedule properties. The road passes through plaint 'A' schedule properties, and through adjacent lands. The plaintiffs and others

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have been using the said road peacefully, continuously and without any interruption. The defendants have no manner of right over plaint 'A' schedule properties. The defendant No.2 is a member of Sooda Grama Panchayath. The defendants on 19.07.2005 started to dig the portion of plaint 'A' schedule properties by using JCB with the help of the labourers, and removed several loads of mud cashew nut trees and the other variety of trees from plaint 'A' schedule properties. The

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plaintiffs requested the defendants not to remove the

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mud from the plaint 'A' schedule properties. The defendants did not give any heed to the request made by the plaintiffs. The plaintiffs have suffered damages of ₹30,000/- and they restrict their claim to ₹10,000/-. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual, mandatory injunction and damages. Accordingly, prays to decree the suit.

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Defendant No.3 filed a written statement and the same was adopted by defendant Nos.1 and 2. It is contented that the plaintiffs are not in possession of the properties outside their compound and enclosures already existing, that the description of plaint 'A' schedule properties is incorrect. The road in question is a village road used by the public by custom since time immemorial, and all the public have got right over the same. It is broad and its width varying from 14 to 20 feet, it is being black

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topped after repair under various public schemes through the village Panchayath. The contractor has already carried out the repair of road and spreading the stones over the existing road. Thus the suit filed by the plaintiffs for the relief of a perpetual injunction is not maintainable. Hence, prays to dismiss the suit against the defendants.

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The trial Court, based on the pleadings of the parties, framed the following issues:

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(1) �ಾ�ಾ ಎ ಅನುಸೂ� ಜ�ೕನುಗಳ� ತಮ� �ಾ��ೕನ ಮತು� ಹ��ೆ ಒಳಪ� ರುತ � ೆಂದು �ಾ$ಯರು ಸು�ಾ&'ಸು(ಾ�)ೆ*ೕ?

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+ವ--.ೆಳ/ಣು1 ಮುಖ3 ರ�ೆ�4ಂದ 5ಾ6ರಂಭ�ೊಂಡು ಕ:ೊ;<ೆ ನ$�ೆ �ಾ�ಾ ಆ>�ಗಳ ಮತು� ಇತರ ಆ>�ಗಳ ಮೂಲಕ Aಾದು Aೋಗುವ ಸುBಾರು 8 Cಂದ 10 ಅD ಅಗಲದ ಪE Fೋಟದ ನHಾIೆಯJ; �K6>ರುವ ಮಣು1 ರ�ೆ�ಯನುL 2Fೇ ಪ6K�ಾ$, 3Fೇ ಪ6K�ಾ$ಯ ಸದಸ3FಾM ಆ*�Nಾದ Oೕ:ೆ (ಾವPಗಳ� ಆತQ�ೆ ಶರSಾಗJಲ; ಅಂತ �ೆ�ೕಷ$ಂದ $:419-7-2005ರಂದು 3Fೇ ಪ6K�ಾ$ಯ AೆಸCನJ; Vೆ .>.W.ಯ ಮೂಲಕ �ಾ�ಾ ಎ ಅನುಸೂ� �ೊತು�ಗಳ XಾಗವನುL ಅ�ೆದು �ಾಕಷು :ಾCಯಷು ಮಣ1ನುL (ೆ�ೆದು .ೆYೆ$ದZ ಮರಗಳನುL ಕೂ[ಾ (ೆ�ೆದ Hಾರಣ ತಮ�ೆ 30,000-00 ರೂ. ನಷ �ಾMರುತ � ೆ , ಅದನುL ಪ6K�ಾ$ಯರು ಕುಂದು BಾDರುವPದCಂದ

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ಅವರು ನಷ ಭCಸಲು ಭದ)ಾM�ಾZ)ೆಂದು �ಾ$ಯರು ಸು�ಾ&'ಸು(ಾ�)ೆ*ೕ?

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(3) ಪ6K�ಾ$ಯರ ಆ)ೋ'ತ ಹಸ�]ೇಪವನುL ತಮ� �ಾ�ಾ ಆ>�ಗಳ ಜ�ೕನುಗಳ Oೕ:ೆ �ಾ$ಯರು ಸು�ಾ&'ಸು(ಾ�)ೆ*ೕ?

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(4) �ಾ�ಾ ರ�ೆ� ^Iಾಲ�ಾMದುZ, ಅದರ ಅಗಲ 14 Cಂದ 20 ಅDಯಂ(ೆ ವ3(ಾ3ಸ�ಾಗು(ಾ� ಅದನುL ಪP)ಾತನ Hಾಲ$ಂದಲೂ �ಾವ-ಜQಕರು ಉಪೕMಸುK�ದುZ ಅದನುL 3Fೇ ಪ6K�ಾ$ ತನL ಅ�Hಾರ �ಾ3'�ಯJ; C5ೇC Bಾಡುವ ಅ�Hಾರ Aೊಂ$ರುವPದCಂದ ಗುK **�** ೆ�ಾರರವರ ಸದC ಅ�HಾರವನುL ಉಪೕM> C5ೇC Bಾಡ:ಾMರುತ � ೆ ಅಂತ 3Fೇ ಪ6K�ಾ$ ಸು�ಾ&'ಸು(ಾ�Fೆ*ೕ?

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(5) ಈ �ಾ�ೆಯJ; BಾDರುವ ಹHೊ�(ಾ�ಯHೆ� �ಾ$ಯರು ಅಹ-)ೇ?

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(6) ಪ6K�ಾ$ಯರು �ಾ�ಾ ಎ ಅನುಸೂ� ಜ�ೕನುಗಳನುL (ೆ�ೆ$ರುವ ಮಣ1ನುL ಪPನಃ �ೇC> ಮೂಲ >&K�ೆ ಪPನg �ಾ&'ಸಲು ಬದ)ಾMರು(ಾ�)ೆಂದು �ಾ$ಯರು ಸು�ಾ&'ಸು(ಾ�)ೆ*ೕ?

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(7) Nಾವ ಆ�ೇಶ ಅಥ�ಾ D�6?

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The plaintiffs, to substantiate their case, plaintiff

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No.4 was examined as PW.1, examined one witness as PW.2 and marked 56 documents marked as Exs.P1 to Ex.P56.

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In rebuttal, 2 witnesses were examined as DW.1 and

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DW.2 and marked three documents as Exs.D1 to D3.

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The Court Commissioner was examined as CW.1, and marked two documents as Exs.C1 and C2. The trial Court, after recording the evidence, hearing the learned counsel for the parties, and after reassessing verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative, issue No. 4 in the negative, Issue No.5 partly in the affirmative, issue Nos.6 and 7 as per the final order and consequently decreed the suit of the plaintiffs in part as prayed for vide judgment dated 08.07.2008.

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The defendants, aggrieved by the judgment and decree passed in O.S.No.77 of 2005, preferred an appeal in R.A.No.71 of 2008 on the file of the learned Senior Civil Judge and ACJM, Karkala.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1) Whether the Plaintiffs prove their possession and enjoyment of entire Plaint 'A' Schedule

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Properties with correctness of description of properties?

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2) Whether the alleged tortitous acts of the defendants amounts to interference in the enjoyment of plaint 'A' Schedule Properties by the Plaintiffs?

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3) Whether the Plaintiffs prove that the defendants caused damages to Plaint 'A' Schedule Properties to the extent of Rs.30,000/-, that the finding of Trial Court that the Plaintiffs are entitled for Rs.10,000/towards damages from Defendants No. 1 and 2 is proper and correct?

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4) Whether 1.A.No.III is liable to be allowed?

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5) Whether I.A.Nos.IV and V filed under Order XLI Rule 27 and Section 151 of CPC., seeking production of documents are necessary to decide the Appeal?

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6) Whether the impugned Judgment and Decree of Trial Court call for interference of this Court in the instant Appeal?

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7) What Order?

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The learned First Appellate Court, after

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re-appreciating the entire evidence on record, answered point Nos.1 to 5 in the negative, point No.6 in the affirmative, and point No.7 as per the final order. The appeal was allowed vide judgment dated 22.09.2012. The judgment and decree passed

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in O.S. No.77 of 2005 dated 08.07.2008, by the

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learned Principal Civil Judge (Jr. Dn.), Karkala, was set aside. Consequently, the suit of the plaintiffs was dismissed.

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The plaintiffs, aggrieved by the impugned judgment, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the plaintiffs and learned counsel for the defendants.

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Learned counsel for the plaintiffs submits that the first appellate court committed an error in dismissing the suit. He submits that after the compound wall, the plaintiffs have left open space, and the said open space is a part and parcel of the plaintiffs' plaint 'A' schedule properties. He submits that the first Appellate court has recorded a finding that, beyond the compound wall the open space is not part and parcel of 'A' schedule properties. He submits that the defendants have removed the mud from the

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properties owned, and from the portion of 'A' schedule properties. Thus, the defendants have caused loss to the plaintiffs to the tune of ₹30,000/-. However, the plaintiffs have restricted their claim to the extent of ₹10,000/-. The first appellate court, without re-appreciating the entire evidence on record, has committed an error in passing the impugned judgment. Hence, on these grounds, prays to allow the appeal.

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Per contra , the learned counsel for the defendants submits that the plaintiffs have already constructed a compound wall covering the plaint 'A' schedule properties. He submits that beyond the compound wall, the open space is a village road and the defendants have already repaired the said road. The defendants have not removed any mud from the alleged plaint 'A' schedule properties. He also submits that a court commissioner was appointed by the trial Court, and he has submitted a report and he

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was examined as CW.1. The report submitted by the court commissioner is in favour of the defendants. He submits that the first appellate court considering the evidence of CW.1, and the report submitted by the court commissioner, has rightly passed the impugned

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judgment. He submits that the impugned judgment passed by the first appellate court is just and proper and do not call for any interference at the hands of this court. Hence, on these grounds, he prays to dismiss the appeal.

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This court, vide order dated 01.06.2016, framed the following substantial questions of law:

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1. Whether the first appellate court is justified in reversing the judgment and decree passed by the trial Court in the absence of pleading and material documents produced in respect of 'A' schedule property?

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1. Whether the first appellate court is justified in reversing the judgment and decree passed by the trial Court without considering oral and documentary evidence on record?

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1. Whether the first Appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case?

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Reg. Substantial questions of law Nos.1 to 3:

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The substantial questions are interrelated with each other, hence, they are taken together for common discussion to avoid repetition of facts.

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The plaintiffs to substantiate their case, plaintiff No. 4 was examined as PW.1, and he reiterated the plaint averments in the examination-in-chief and to prove that the plaintiffs are the owners of 'A' schedule properties, the plaintiffs have produced the documents Exs.P1 to 23 are the RTC extracts of the suit schedule properties standing in the name of the plaintiffs. Ex.P24 is the attested copy of the registered partition deed entered into between Peter D'sa and another, Ex.P25 and 26 are the copies of complaints lodged by Joaseph D'Sa and another before SHO, Karkala Rural P.S, Ex.P27 to 44 are the

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photos, Ex.P27(a) to 44(a) are the negatives, Ex.P45 is the bill issued by Crystal Studio, Shirva, Ex.P46 is the RTC extract of Sy.No.82/1BP2 of Sooda village, Exs.P47 to 49 are the attested copy of sketches prepared by ADLR, Karkala, Ex.P50 is the rgistered partition deed entered into between Peter D'Sa and Baptist D'Sa, Ex.P51 is the registered gift deed executed by the plaintiff No.4- PW.1 in favour of Cecilia D'Sa, Ex.P52 is the registered gift deed executed by plaintiff No.4-PW.1 in favour of Alice D'Sa, Ex.P53 is the registered gift deed executed by Jerald Mendonca in favour of Thereza D'Sa and Ex.P54 is the registered sale deed executed by Severin D'Sa in favour of plaintiff No.4- PW.1. Exs.P55 and 56 are the photos.

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The First Appellate Court, considering the entire evidence on record has recorded its finding in para Nos.26 to para No.29. The First Appellate Court, considering the entire evidence on record has held

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that the plaintiffs are not the absolute owners of the properties outside the compound wall, and further the plaintiff Nos.1 to 3 have authorized the defendant No.3 to maintain the road by executing Ex.D1 i.e., consent letter. The plaintiff Nos.1 to 3

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have not entered the witness box and denied the execution of Ex.D1. For non-examination of plaintiff Nos.1 to 3, an adverse inference has to be drawn as per Section 114(g) of the Indian Evidence Act, 1872.

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The First Appellate Court has rightly drawn an adverse inference against the plaintiff Nos.1 to 3, who have not entered the witness box, and has rightly held that the plaintiffs have failed to establish that the plaintiffs are in possession and enjoyment of 'A' properties outside the compound wall. The plaintiffs have failed to prove that they are the owners of the properties outside the compound wall. The first appellate court has re-appreciated the entire evidence on record, and has rightly passed the

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impugned judgment. The First Appellate Court, considering the evidence of CW.1, and the commissioner's report has rightly passed the judgment. In view of the same, substantial questions of law Nos.1 to 3 are answered in the affirmative.

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In view of the above discussion, I proceed to pass the following order:

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ORDER

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i. The Regular Second Appeal is dismissed.

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ii. The judgment and decree passed by the first appellate court in R.A.No.71/2008 dated 22.09.2012 by the learned Senior Civil Judge and ACJM, Karkala, is hereby confirmed.

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iii. No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

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List No.: 2 Sl No.: 6

Smt Dulcin Cecelia Mathias v. Smt Irene D Souza

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Smt Dulcin Cecelia Mathias v. Smt Irene D Souza

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