Sri N Lingappa Vs Sri Sikandar

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED: 09.06.2009 PASSED IN R.A.NO.93/2007 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.) & JMFC, CHINTHAMANI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 25.09.2007 PASSED IN OS.NO.165/03 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, CHINTAMANI.

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THIS RSA, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The plaintiff in O.S.No.165/2003 on the file of the learned Civil Judge (Jr.Dvn) and JMFC, Chintamani (hereinafter referred to as 'the Trial Court', for short), is impugning the judgment and

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decree dated 09.06.2009 passed in RA.No.93/2007 on the file of the learned Civil Judge (Sr.Dvn) and JMFC, Chintamani (hereinafter referred to as 'the First Appellate Court', for short), where under the appeal was allowed, and the judgment and decree passed by the Trial Court was set aside, consequently, the suit of the plaintiff for permanent injunction was dismissed.

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For the sake of convenience, the rank of the parties shall be referred to as per their status before the Trial Court.

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Facts of the case in brief are that, the plaintiff filed the suit O.S.No.165/2003 before the Trial Court initially against defendants No.1 to 5, seeking permanent injunction, restraining them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties and from dispossessing him from the same. Schedule A property attached to the plaint describes the site bearing No.1366/1/1274 measuring 41x11 1/2 feet with the boundaries mentioned therein. Schedule B property describes site bearing No.1402/1309 measuring 45 1/2 x 21 feet with the boundaries mentioned therein. It is stated that both schedule A and B properties are situated in Second Division, Post Office Road,

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Diamond Talkies road, Chintamani Town. It is the contention of the plaintiff that, he is the absolute owner in possession and enjoyment of the schedule properties. He purchased schedule A property under the registered Sale Deed dated 17.05.2001 from the earlier owner Ashwathaiah and purchased schedule B property which is a vacant site, under the registered Sale Deed dated 15.07.2002 from its earlier owners K.S.Nagarjun and K.S.Nagesh. Plaintiff obtained the building license and approved plan for construction of commercial building over schedule B property and started to put up construction. The defendants being the strangers started interfering with his possession and enjoyment over the suit schedule properties. Therefore, the plaintiff filed the suit for permanent injunction against defendants No.1 to 5.

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It is contended that defendant No.2 is the husband of the President of Town Municipal Council (TMC) and at his instance, the TMC, Chintamani started interfering with the possession of the plaintiff and therefore, TMC, Chintamani is impleaded as defendant No.6.

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Defendant No.3 appeared before the Trial Court and

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filed the written statement, denying the contentions taken by the plaintiff. It is contended that the schedule properties are not at all in existence in Chintamani Town. It is contended that, defendant No.2 is the Public Representative and is the husband of the President of TMC. Defendant No.3 is the locallite and was ex-councilor of TMC. Defendant No.4 is the resident of Kumbarpete in property No.1404/1311, which is abutting to the southern side of the municipal property bearing No.1403/1310 and defendant No.5 is also resident of Kumbarpete. It is contended that the property of the plaintiff is situated towards north of municipal property, and the plaintiff made attempts to encroach over the same. Therefore, defendant No.3 approached defendant No.6 and submitted a representation to protect the municipal property. The TMC issued endorsements, which clearly establish that the TMC is sailing with the plaintiff and not interested in protecting the municipal properties. Therefore, it is contended that, the plaintiff has no manner of right, title or interest over the schedule properties and he is not entitled for any relief.

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Defendant Nos.1, 2, 4 and 5 have filed the memo

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adopting the written statement filed by defendant No.3.

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Defendant No.6 has filed the written statement contending that, the suit of the plaintiff is not maintainable and it is to be dismissed in limine. All the allegations made in the plaint are denied. It is contended that property bearing katha No.1366/1/1274 is not situated either in Post Office road or in Diamond Talkies road as per the description of the properties and boundaries shown by the plaintiff. However, defendant No.6 admits that the plaintiff purchased site bearing No.1402/1309 measuring 45 1/2 and 21 feet under the registered Sale Deed dated 15.07.2002. But contended that, the boundaries of the property purchased by him is wrongly shown. Defendant No.6 admits that katha in respect of the schedule properties stand in the name of plaintiff.

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Defendant No.6 took up a contention that as per records, property katha No.1402/1309 was belonging to the vendor of the plaintiff. But the property described in the schedule does not belong to the plaintiff. It is stated that plaint

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A and B schedule properties are adjacent to one another. But

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the boundaries do not match with the actual boundaries.

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It is contended that, the plaintiff is encroaching upon the municipal properties situated on the southern side of the plaintiff's property and trying to make a construction in between the property bearing katha No.1402 and 1403 . Therefore, defendant No.6 prayed for dismissal of the suit.

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On the basis of these pleadings, the Trial Court framed the following issues:

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ISSUES

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i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit?

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ii) Whether the plaintiff proves the alleged interference of the defendants?

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iii) Whether the plaintiff is entitled for the relief sought in this suit?

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iv) What order or decree?

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The plaintiff examined himself as PW.1, and examined

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PW.2 and got marked Exs.P1 to 15 in support of his contention. Defendant examined himself as DW.1, defendant No.6 as DW.2

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and got marked Exs.D1 to 29 in support of their defence. The Trial Court, after taking into consideration all these materials on record, answered issues No.1 to 3 in the affirmative and decreed the suit of the plaintiff, restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the schedule properties.

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Being aggrieved by the same, defendant No.6 has preferred RA.No.93/2007. The First Appellate Court, on reappreciation of the materials on record, held that the Trial Court has committed an error in decreeing the suit of the plaintiff and therefore, passed the impugned judgment and decree by allowing the appeal and setting aside the impugned judgment and decree passed by the Trial Court. Being aggrieved by the same, the plaintiff is before this Court.

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Heard Sri. N. Hariprasad, learned counsel for the appellant, Sri. Ashok S. Mensinkai, learned counsel for respondent No.6. Perused the materials including the Trial Court records.

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Learned counsel for the appellant contended that Ex.P1 is the sale deed dated 17.05.2001, where-under the

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plaintiff purchased schedule A property. Ex.P2 is the sale deed dated 15.07.2002 under which the plaintiff purchased schedule B property from its earlier owner. Neither Ex.P1 or Ex.P2 are in dispute. On the other hand, the defendants have relied on both these documents. Admittedly, katha in respect of schedule properties stands in the name of the plaintiff. Even till date, katha stands in the name of the plaintiff in respect of the schedule properties. Under such circumstances, the defendants could not have denied the claim of the plaintiff.

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It is contended that Ex.P14 is the building license issued by defendant No.6 and Ex.P15 is the plan approved by defendant No.6 for construction of the commercial building in schedule B property. These documents are also not in dispute. Pursuant to Exs.P14 and 15, plaintiff started to put up a construction over schedule B property, which was objected to by defendants No.1 to 5. Taking advantage of the situation that defendant No.2 being the husband of the president of the TMC and at his instance, the TMC started interfering with the schedule properties, and therefore, even TMC is impleaded as defendant No.6.

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Learned counsel contended that pursuant to the instigation by defendants No.1 to 5, defendant No.6 filed the suit O.S.No.43/2005 against the plaintiff, seeking declaration and mandatory injunction to remove the construction made by the plaintiff. In the said suit, it is alleged that the plaintiff herein has encroached upon the site bearing No.1403/1310 which belongs to defendant No.6. The said suit was never prosecuted by defendant No.6 herein, but allowed it to be dismissed for default i.e. for non-prosecution. Since the suit O.S.No.43/2005 was in respect of site katha No.1413, it does not relate either to suit schedule A or B properties.

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Learned counsel submits that both suit schedule A and B properties are adjacent to one another. Schedule A falls on the northern side, and schedule B falls on the southern side having common boundaries. As per the license and approved plan-Exs.P14 and 15, the plaintiff is constructing the building. Title Deeds as per Exs.P1 and 2 are not in dispute. Under these circumstances, the Trial Court rightly decreed the suit of the plaintiff placing reliance on Exs.P1 and 2-sale deeds, Exs.P4 and 16 the katha extracts standing in the name of the plaintiff, Exs.P14 and 15 - the license and approved plan. But the First

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Appellate Court committed an error in allowing the appeal and setting aside the judgment and decree passed by the Trial Court on the misconception that defendant No.6 has proved that the plaintiff has made an encroachment over the schedule properties. There is absolutely no basis for the same.

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Learned counsel submitted that even the First Appellate Court held that the Sale Deeds Exs.P1 and 2 pertain to schedule A and B properties. The license and plan were approved by TMC as per Exs.P14 and 15. But only on the basis of the contention raised by defendant No.6 that the plaintiff has made encroachment and since defendant No.6 has filed the suit O.S.No.43/2005 proceeded to allow the appeal and dismissed the suit. Learned counsel submitted that O.S.No.43/2005 was never prosecuted by defendant No.6, but it came to be dismissed for default i.e. for non-prosecution on 16.06.2008. Therefore, the First Appellate Court was never justified in allowing the appeal and dismissing the suit of the plaintiff. The impugned judgment and decree passed by the First Appellant Court is against the oral and documentary evidence placed before it. Hence, the same is liable to be dismissed. Accordingly, he prayed for allowing the appeal.

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Learned counsel for respondent No.6 has not addressed his arguments in-spite of giving sufficient opportunity. Hence, his argument is taken as nil.

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The following substantial questions of law is framed as per order dated 02.08.2012:

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a) Whether the Appellate Court is justified in setting aside the judgment of the Trial Court inspite of the fact that admittedly the appellant being the purchaser of the suit schedule properties after obtaining the license and plan has constructed the building and pursuant to that respondent No.6 itself has filed suit for declaration and mandatory injunction for removal of the structure put up by the appellant?

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b) Whether the appellate Court is justified in rejecting the suit for permanent injunction filed by the appellant/plaintiff inspite of the fact that the appellant was and is in lawful possession as on the date of filing of the suit?

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It is the contention of the appellant/plaintiff that, he purchased schedule A and B properties under the registered Sale Deeds-Exs.P1 and 2. These documents are not in dispute. Plaintiff produced Exs.P4 and 16, according to which, the katha in respect of the schedule properties stands in the name of the

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plaintiff. It is pertinent to note that, Ex.D23 is the Assessment list of buildings and lands for the year 1999-2000, produced by defendant No.6, according to which, Assessment No.1402/1309 measuring 45 1/2 / 21 feet initially stood in the names of K.S.Nagarjun, K.S.Nagesh and K.V.Sathyanarayana Shetty, who are the vendors to the plaintiff. After striking out their names, the name of N.Ningappa-the plaintiff before the Trial Court is mentioned in Ex.D23 as the owner of B schedule property. Moreover, Ex.P14 is the building license and Ex.P15 is the approved plan issued by defendant No.6 itself, permitting the plaintiff to construct the commercial building in B schedule property. Exs.P14 and 15 makes it clear that possession in respect of B schedule is the site bearing No.1402/1309 measuring 45 1/2 / 21 feet. Ex.P15-the approved plan discloses that the northern boundaries mentioned therein refers to the site owned by the plaintiff which is obviously refer to schedule A property. Defendant No.6 even though contested the suit by filing written statement and by examining DW.1, has no answer whatsoever to any of these undisputed documents i.e. Exs.P1 and 2-the registered Sale Dees. Exs.P4 to 6 being the revenue records, according to which, katha in respect of schedule

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properties stands in the name of the plaintiff. Exs.P14 and 15 being the building license and the approved plan again issued by defendant No.6 itself to the plaintiff. If at all the defence taken by defendant No.6 that, the plaintiff has encroached upon a portion of the land or that the plaintiff is not the owner of the schedule properties and not entitled to put up any construction, it should have offered a reasonable explanation for these clinching documents, which prove the case of the plaintiff.

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It appears that before the First Appellate Court, an attempt was made to contend that Exs.P14 and 15-the builiding license and the approved plan do not pertain to schedule B property, but it pertains to schedule A property and by violating the same, the plaintiff constructed schedule A and B properties. On going through the said documents, it is clear that these documents refer to schedule B property and not to schedule A property as contended before the First Appellate Court. But unfortunately, the First Appellate Court proceeded to allow the appeal by accepting such contention, which is not supported by any documents.

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It is the contention of defendant No.6 that, it has filed the suit O.S.No.43/2005 against the plaintiff, seeking declaration and mandatory injunction to remove the construction made by the plaintiff. It is alleged that, the plaintiff had encroached upon the site bearing No.1403/1310, which belongs to defendant No.6. With such a specific contention, suit for declaration and mandatory injunction was filed in respect of site bearing 1403/1310. But the fact remains that, even the said suit came to be dismissed for default i.e. for nonprosecution.

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The First Appellate Court appears to have allowed the appeal on the ground that, defendant No.6 has filed the suit for declaration of its title and permanent injunction against the plaintiff in respect of the schedule properties. It has ignored the fact that the suit OS.No.43/2005 was dismissed for default on 13.06.2008 itself, whereas the appeal was allowed by the First Appellate Court on 09.06.2009. Therefore, the findings recorded by the First Appellate Court with regard to Exs.P14 and 15 and also in respect of the suit OS.No.43/2005 are perverse and illegal and they are against the oral and documentary evidence that are placed before the Court.

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When the plaintiff is successful in proving his title, peaceful possession and enjoyment of the schedule A and B properties by producing various documents referred to above, the burden shifts on defendant No.6 who has taken specific defence alleging that, the plaintiff has encroached upon a portion of site bearing No.1403/1310, but defendant No.6 except taking such defence, has not even probalized such defence. On the other hand, admittedly the suit OS.No.43/2005 filed against the plaintiff came to be dismissed for default i.e. for non-prosecution. Under such circumstances, I am of the opinion that the Trial Court was right in decreeing the suit of the plaintiff as prayed for. The First Appellate Court was not justified in interfering with such judgment and decree passed by the Trial Court and dismissing the suit of the plaintiff. Therefore, the substantial questions of law are answered in favour of the appellant/plaintiff and against defendants/respondents. Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal is allowed with costs .

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(ii) The judgment and decree dated 09.06.2009 passed in

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RA.No.93/2007 on the file of the Civil Judge (Sr.Dvn) and JMFC, Chintamani, is hereby set aside.

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(iii) Consequently, the judgment and decree dated 25.09.2007 passed in OS.No.165/2003 by the Civil Judge (Jr.Dvn) and JMFC, Chintamani, is hereby restored.

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Registry to send back the Trial Court records along with copy of this judgment.

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Sd/(M G UMA) JUDGE

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MKM CT:VS

Sri N Lingappa v. Sri Sikandar

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Sri N Lingappa v. Sri Sikandar

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