Parashuramappa S/O Ningappa Vs Ningappa S/O Halappa

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.9.2014 PASSED IN R.A.NO.33/2013 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 21.3.2013 PASSED IN OS.NO.205/2008 ON THE FILE OF CIVIL JUDGE, HONNALI.

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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 appellant challenging the judgment and decree dated 26.09.2014, passed in R.A.No.33/2013 by the learned Senior Civil Judge, Harihar.

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For convenience, parties are referred to based on

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their ranking before the trial Court. The appellant was the defendant, and the respondents were the plaintiffs.

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HC-KAR

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

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Plaintiffs filed a suit against the defendant for perpetual injunction restraining the defendant from interfering with the peaceful possession of the suit properties. It is the case of the plaintiffs that the suit schedule properties belonged to the plaintiffs’ father i.e., Halappa S/o Ningappa. The plaintiffs’ father was expired, and after his death, the plaintiffs have succeeded to the suit schedule properties as the legal heirs of the deceased Halappa. The defendant has no right, title or interest in the suit schedule properties. It is contended that the plaintiffs are in possession and enjoyment of the suit schedule properties. The defendant threatened the plaintiffs to dispossess them from the suit schedule properties. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual injunction. Accordingly, prays to decree the suit.

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3.1. The defendant filed a written statement denying

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the averments made in the plaint. It is denied that the plaintiffs are in possession of the suit schedule properties. It is contended that the suit properties are the joint family properties of the plaintiffs and the defendant and in 1969, there was a partition in the joint family properties between the plaintiffs’ father and the defendants. The defendant had purchased suit schedule item No.1(A) under the agreement of sale. In part-performance of the contract, possession of suit item No.1(A) was delivered in favour of the defendant. He has constructed the house shown in ‘B’ schedule annexed to the plaint, after converting the land to non-agricultural purpose. The plaintiffs are not in possession of the said suit schedule properties. The plaintiffs have filed a false suit against the defendant. There is no cause of action to file a suit. Hence, prays to dismiss the suit.

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3.2. The Trial Court, based on the pleadings of the

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parties, framed the following issues:

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1) Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property?

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2) Whether the plaintiffs prove the alleged interference of the defendant over the suit schedule property?

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3) What order or decree?

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3.3. The plaintiffs, to substantiate their case, plaintiff

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No.1 was examined as PW-1, examined one witness as PW.2 and marked 35 documents as Exs.P1 and P35. In rebuttal, the defendant examined himself as DW.1 and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing both sides, and on assessing the verbal and documentary evidence of the parties, answered issues Nos.1 and 2 in the negative and issue No.3 as per the final order. The suit was dismissed vide judgment dated 21.03.2013. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.205/2008, by the learned Civil Judge, Honnali, preferred an appeal in R.A.No.33/2013 on the file of the learned Senior Civil Judge, Harihar.

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3.4. The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1) Whether the judgment and decree passed by the learned trial Court in O.S.No.205/2008 dated 21.03.2013 is contrary to the evidence placed on record by the parties to the suit and it need interference?

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2) What order?

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3.5. The First Appellate Court, on re-assessing the

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verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order. The appeal was allowed. The judgment and decree passed in O.S.No.205/2008 was set aside. It is ordered that the plaintiffs are in possession and enjoyment of the suit schedule properties. Thus, the defendant or any persons or any agents on his behalf were permanently restrained by an order of permanent injunction not to obstruct the plaintiffs’ peaceful possession and enjoyment over the suit schedule properties bearing RS No.105/1P3 measuring 8 guntas, Sy.No.111/5P2 measuring 21 ½ guntas, Sy.No.

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194/P2 measuring 18 guntas, Sy.No. 177 measuring 37 guntas and a house bearing No.279, its property No.163/2A measuring 39 X 15 feet, which are situated within the village limits at Govinakovi, Honnali Taluk, Davanagere District.

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3.6. The defendant, aggrieved by the judgment and

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decree passed in R.A.No.33/2013, has filed this regular second appeal.

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Heard the arguments of the learned counsel

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Sri. Manjunatha V Rayappa, appearing for the defendant and Sri. Hareesh Bhandary, the learned counsel appearing for the plaintiffs.

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Learned counsel for the defendant submits that

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the plaintiffs have not produced any records to establish their possession over the suit schedule properties. On the other hand, the defendant has produced a record to show that the defendant is in possession and enjoyment of the suit schedule properties. The first Appellate Court has not

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properly re-appreciated the entire evidence on record and committed an error in reversing the judgment and decree passed by the trial Court. He further submits that though the plaintiffs examined PW.2 to establish their possession over the suit schedule properties, PW.2 does not know the boundaries, survey number and extent. Hence, the evidence of PW.2 does not support the plaintiffs’ case. Hence, the first Appellate Court committed an error in passing the impugned judgment. Therefore, prays to allow the appeal.

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Per contra , learned counsel for the plaintiffs

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submits that the suit schedule properties were held in the name of the plaintiffs’ father, and after the death of the plaintiffs’ father, the plaintiffs succeeded to the suit schedule properties and came in possession of the suit schedule properties. The plaintiffs have produced the records to establish their possession over the suit schedule properties. The first Appellate Court was justified in passing the impugned judgment. The judgment passed by

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the first Appellate Court is just and proper and does not call for any interference. Hence, prays to dismiss the appeal.

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This Court, on 16.11.2015, admitted the appeal

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on the following substantial question of law :

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1. Whether the judgment and decree passed by the lower appellate Court in allowing the appeal of the plaintiff and setting aside the judgment and decree of the trial Court and decreeing the suit granting permanent injunction restraining the defendant from interfering with the possession of the suit property is sustainable in law?

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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9. Reg. SUBSTANTIAL QUESTIONS OF LAW :

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The plaintiffs, to prove their case, plaintiff No.1 was examined as PW.1. He has reiterated the plaint averments in the examination-in-chief, and to prove the possession over the suit schedule properties, the plaintiffs have produced the documents, revenue records Ex.P1 is

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the record of rights of land bearing Sy.No.105/1P3 stands

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in the name of Halappa and Manjappa, Ex.P2 is the RTC extract of land bearing Sy.No.111/5P2 stands in the name of Halappa, Ex.P3 is the RTC extract of land bearing Sy.No.194/P2 stands in the name of Halappa, Ex.P4 is the RTC extract of land bearing Sy.No.177. Exs.P2 to 4 stands in the name of Halappa, who is the father of the plaintiffs. Ex.P5 is the RTC extract of land bearing Sy.No.83/3, Ex.P6 is the RTC extract of land bearing Sy.No.70/1, Ex.P7 is the RTC extract of Sy.No.55/P1, Ex.P8 is the RTC extract of land bearing Sy.No.55/P9, Ex.P9 is the RTC extract of land bearing Sy.No.55/P4, Ex.P10 is the RTC extract of land bearing Sy.No.111/5P1-P2, Ex.P11 is the RTC extract of land bearing Sy.No.176, Ex.P12 is the RTC extract of land bearing Sy.No.193/P3, Ex.P13 is the RTC extract of land bearing Sy.No.105/1P2, Ex.P14 is the RTC extract of land bearing Sy.No. 94/2P6, Ex.P15 is the RTC extract of land bearing Sy.No.94/2P2, Ex.P16 is the RTC extract of land bearing Sy.No.94/1P-5 stands in the name of the

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defendant, Ex.P17 is the RTC extract of land bearing Sy.No.133/2P5 stands in the name of Basappa and defendant, Ex.P18 is the RTC extract of land bearing Sy.No.111/5P2 stands in the name of the father of the plaintiffs, Ex.P19 is the RTC extract of land bearing Sy.No.194/P2, Ex.P20 are the RTC extracts of land bearing Sy.No.177, Ex.P21 is the RTC extract of land bearing Sy.No.105/1P3 stands in the name of father of the plaintiffs, Ex.P22 is the land revenue receipt, Ex.P23 is the

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DCB register extract, which discloses the name of Ningappa S/o Halappa i.e., plaintiff No.1. Ex.P24 is the certified copy of the registered partition deed entered between the plaintiffs’ father and his brother. Ex.P25 is the land revenue receipt, Ex.P26 is the endorsement issued by Gram Panchayat, Ex.P27 is the death certificate of Halappa, who passed away on 15.08.2007, Ex.P28 is the election I.D card, Exs.P29 to 30 are the photographs, Ex.P31 is the CD, Exs.P32 to 34 are electricity bills, Ex.P35

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is the DCB register, which stands in the name of plaintiff

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No.1.

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During the cross-examination, PW.1 was unable to depose when partition was effected, and it is elicited that the partition was effected between the plaintiffs and defendant about 20 years back. It is also elicited that the plaintiffs are entitled to share in Sy.No.111, and the said land was standing in the name of the defendant’s father, and he admits that revenue records about Sy.No.111 do not stand in the name of the plaintiffs and plaintiffs’ father passed away about 5-6 years back before the filing of the suit. It is elicited that during the lifetime of his brother, no agreement was executed. He admits that the revenue records are not standing in the name of the plaintiffs. Further, to prove possession of the suit schedule properties, the plaintiffs examined one witness, PW.2, who deposed that the plaintiffs are in possession of the suit schedule properties. During the cross-examination, the PW.2 pleaded ignorance about the extent, boundaries and

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survey numbers of the suit properties. The evidence of PW.2 does not support the case of the plaintiffs’ to prove the possession of the suit schedule properties.

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On the other hand, the defendant examined himself as DW.1. He reiterated the written statement averments in the examination-in-chief, and he has deposed that the plaintiffs are not in possession and enjoyment of the suit schedule properties. He submits that the defendant is in possession and enjoyment of the suit schedule properties. Further, the defendant to prove the defence, has produced the documents; Ex.D.1 is the agreement of sale dated 09.10.2000, executed in favour of the defendant by one Basappa, regarding Sy.No.133/2. Ex.D.2 is the original rectification deed dated 20.11.2008. Ex.D.3 is the sale deed dated 28.11.1967. Exs.D.4 and D.5 are the agreements of sale. Exs.D6 and D8 are the record of rights which discloses the name of the plaintiffs’ father and Ex.D7 is the record of rights in the name of the defendant. Ex.D.9 is the mutation register, regarding the

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transfer of Ex.D1 schedule property in favour of the defendant.

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From the perusal of the entire evidence on record, it is clear that none of the records produced by the plaintiffs stands in the name of the plaintiffs. Though it is the case of the plaintiffs that the suit properties stood in the name of the plaintiffs’ father, subsequently, after the demise of the plaintiffs’ father, the plaintiffs have not made any attempt to get the properties transferred in their names. The plaintiffs, except the oral evidence, have not produced any records to establish that the plaintiffs are in possession of the agricultural lands. However, the plaintiffs have produced the records i.e., Ex.P.23 to P.35 which discloses that the house property i.e., schedule ‘B’ property, stands in the name of plaintiff No.1 and further the plaintiffs have also produced the electricity bills marked as Ex.P.32 to P.34 which discloses that plaintiff No.1 is residing in schedule ‘B’ property and consuming the electricity and paying the electricity bill. The plaintiffs

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establish that they are in possession of the house property bearing No.163/28 as shown in schedule ‘B’. The plaintiffs have failed to establish that the plaintiffs are in possession of schedule ‘A’ properties.

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The first appellate Court, without considering the documents produced by the parties, has come to the wrong conclusion that the plaintiffs are in possession of schedule ‘A’ properties and passed the impugned judgment. The plaintiffs have produced the DCB register regarding schedule ‘B’ property and electricity bills, which discloses that the plaintiffs are in possession of ‘B’ schedule property. The first appellate Court committed an error in decreeing the suit in its entirety. Thus the judgments and decree passed by the first Appellate Court insofar as schedule ‘A’ properties is concerned is arbitrary and erroneous. Hence, in view of the above discussion, I answer the substantial question of law partly in the affirmative.

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