Sri Kalamanda P Nanaiah Vs Smt. M R Lolakshi

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 16.10.2024 PASSED IN R.A.NO.11/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.06.2019 PASSED IN O.S.NO.75/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, VIRAJPET.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. I have heard learned counsel for the appellants.

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The Trial Court granted the relief of declaration and possession in respect of the suit schedule property which was encroached by the defendants and the same is confirmed by the First Appellate Court. The appellants challenged the concurrent findings of the Trial Court before the First Appellate Court.

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The factual matrix of the case of the plaintiffs before the Trial Court is that though at the first instance, the plaintiffs filed the suit for the relief of permanent injunction that defendants are interfering with the possession of the property, subsequently, on account of encroachment made by the defendants, suit is amended for the relief of declaration and possession.

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Hence, the Trial Court framed additional issues whether the plaintiffs prove that they are the absolute owners

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of the suit schedule property, whether the plaintiffs prove that defendants have encroached the suit schedule property during the pendency of the suit and whether the plaintiffs are entitled for the relief of declaration and possession as claimed in the suit. The defendants also took a specific contention in the written statement that they are in lawful possession of the counter claim property.

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Since the plaintiffs made the counter claim, the Trial Court given an opportunity to both the parties to lead evidence and substantiate their contentions. The Trial Court having given an opportunity to both parties, considered the document of Ex.P1-sale deed under which the plaintiffs claimed declaration and possession over the suit schedule property. Apart from that, when an attempt is made by the defendants to mutate the property which belongs to the plaintiffs by placing on Exs.D10 and D11 i.e., General Power of Attorney and sale deed which are not registered documents, the Trial Court comes to the conclusion in paragraph No.22 that an attempt was made by the defendants by relying upon the documents Exs.D11 and D10 and they are only the unregistered

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documents. The defendants were never in lawful possession as per the issue framed by this Court and only based on Exs.D10 and D11. The revenue documents clearly disclose that property was got mutated in collusion with the revenue officials and the documents are not registered and an observation is made that the said documents are hit by Section 17 of the Registration Act. It is also observed that only on the basis of said documents of Exs.D10 and D11, the revenue officers mutated the names of defendants and the same is not valid. Hence, answered issue Nos.3 and 4 as ‘negative’ and answered the issue Nos.2 to 5 as ‘affirmative’ in coming to the conclusion that plaintiffs have established their ownership based on the said sale deed of the year 1979, Ex.P1.

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Aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.11/2019 & R.A.No12/2019 challenging the rejection of counter claim made by the plaintiffs and defendants as well as granting the relief in favour of the plaintiffs in both the appeals. The First Appellate Court considering the grounds which have been urged in both the appeals, formulated the points whether

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the plaintiffs have proved that they are the absolute owners of the suit schedule property and whether the defendants have encroached the suit schedule property during the pendency of the suit and these two points are answered as ‘affirmative’ and defendants' contention that they are in actual possession and interference by the plaintiffs is answered by the Trial Court in coming to the conclusion that defendants have not proved the fact that they are in actual possession of the property and the First Appellate Court considering the material available on record, particularly in paragraph Nos.27, 28 and so also in paragraph No.30, discussed with regard to ownership of the plaintiffs and also possession and comes to the conclusion that defendants have not disputed the ownership of plaintiffs over the suit schedule property as well as its extent in paragraph No.38, but only dispute is in respect of identity of the property, since the defendants are seriously disputing the identity of the suit schedule property and defendants are claiming that their counter claim schedule property situates within the boundaries of plaint schedule boundaries.

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The First Appellate Court also taken note of the fact that burden is on the plaintiffs to prove the identity of the property and also considered the document of Ex.P1, particularly the boundaries mentioned in Ex.P1 and the said boundaries tallies with the plaint schedule property which have been mentioned in the plaint and the evidence of P.W.1 is also very clear with regard to the boundaries which he has claimed in the plaint averments as well as the sale deed and defendant No.1 also in his written statement has clearly pleaded that his wife purchased 3 acres, 69 cents in Sy.No.431/1 from Kalamanda Sheelavathi, who is the daughter of Kalamanda Achamma through agreement of sale dated 03.07.1989 as well as Sarvathrika Adikara Pathra. In order to prove the same, D.W.3 has produced G.P.A and agreement of sale i.e., Exs.D10 and D11. The First Appellate Court also, in detail discussed the case of the defendants, since the defendants claim right based on Exs.D10 and D11 and those documents do not confer any right in favour of the defendants, since the documents are not registered documents. The First Appellate Court also taken note of the fact that documents i.e., Exs.D10 and D11 do not confer any right in favour of the defendants. Having taken note of the

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same, the First Appellate Court on re-appreciation of both oral and documentary evidence comes to the conclusion that Trial Court has not committed any error. Being aggrieved by the same, present second appeal is filed before this Court.

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The main contention of learned counsel appearing

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for the appellants before this Court is that both the Courts failed to take note of the evidence of plaintiffs as well as defendants. The counsel would vehemently contend that even though there are 7 original issues and 4 additional issues, in total 11 issues framed before the trial Court, 7 points were under consideration before the First Appellate Court. But, both the Courts committed an error in not relying upon oral and documentary evidence and counsel would vehemently contend that the First Appellate Court and the Trial Court not considered the evidence of D.W.2 and also Ex.D9 and contend that both the Courts were not justified in dismissing the counter claim and it requires interference to admit the second appeal and frame substantial question of law.

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Having considered the material available on record,

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the plaintiffs, particularly claimed the relief of declaration based

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on Ex.P1-sale deed of the year 1979 and seek for the relief of possession on account of encroachment made by the defendants during the course of pendency of the suit which is also pleaded and deposed before the Court. When an attempt is made by the defendants by creating the documents of Exs.D9, D10 and D11 and the said documents are also not registered documents, the same were taken note of by the Trial Court, while considering the claim of the defendants, since the defendants claims counter claim and in order to substantiate the counter claim, nothing is placed on record and the Trial Court comes to the conclusion that documents at Exs.D10 and D11 are created in collusion with the revenue officials, since they are not registered documents and when the property is claimed by the defendants, the same ought to have been registered and the defendant only rely upon the unregistered document which requires registration under Section 17 of the Registration Act and definite reason was given that plaintiffs are the owners of the suit schedule property and defendants made an attempt to encroach upon the property and during the pendency of the suit also encroached the property of the plaintiffs. Hence, answered issues and contention of the

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appellants/defendants making counter claim based on Exs.D10 and D11 and since the said documents are also not admissible documents under the evidence, rightly comes to the conclusion that defendants have not proved their case. Hence, comes to the conclusion that the defendants have not made out any case. Having reassessed the material available on record, this Court also is of the view that unless perversity is found in the reasoning of the Trial Court as well as the First Appellate Court, question of admitting the second appeal does not arise and both the Courts have taken note of question of fact and question of law and no substantial question of law arises to invoke Section 100 of CPC.

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