Lingappa Vs Mark D'Lima

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.03.2024 PASSED IN R.A. NO.24/2019 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.11.2018 PASSED IN O.S. NO.820/2012 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND C/C OF I ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K.

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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

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counsel for the appellants and learned counsel for respondent.

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This second appeal is filed against concurrent finding of the Trial Court and the First Appellate Court.

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NC: 2025:KHC:54300 RSA No. 1394 of 2024

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The factual matrix of case of the plaintiff before the Trial Court is that plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and defendants are interfering with possession of the plaintiff’s property. It is also the specific case of the plaintiff that Site No.294 belongs to the plaintiff and also contend that other children of Smt. Lucy D'Souza have released their undivided 4/5^th right, title and interest in the suit schedule property to their brother Mark D’lima, who is the plaintiff. It is the further case that house Site bearing No.295 which is situated on the west of the schedule property was allotted to one Smt. Ajjanu Hengsu, who appears to be none other than the mother of the defendants herein as per the proceedings of Additional Special Land Acquisition Officer, Mangaluru. It is also contended that after acquiring House Property No.295 by Smt. Ajjanu Hengsu, she constructed the residential house in it and she and her family members, including the defendants have been residing in the said house. The said Smt. Ajjanu Hengsu died intestate leaving behind the defendants. The western boundary of the schedule property itself is the eastern boundary of the property in the possession of the defendants of Site No.295 and as such, same

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is the common boundary to both the property. Apart from that, there is a laterite stone compound wall in the aforesaid common boundary, so as to divide both the property and defendants have no right in respect of the suit schedule property is concerned.

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The defendants appeared and filed written statement denying the averments of plaint and contend that house site which is situated on the west of the schedule property was allotted to one Smt. Ajjanu Hengsu, who is the mother of the defendants and after acquiring the site, she also constructed the residential house and she and her family members, including the defendants have been residing therein and defendants are in possession and enjoyment of Site No.295. It is further contended that plaintiff was never in possession and enjoyment of any of the site, much less the alleged Site No.294. Admittedly, the plaintiff is residing near Thokkottu, Mangaluru which is very far from the plaint schedule property. As there was nobody to question the possession, some third party had acquired Site No.294 and was in possession and enjoyment of the same from many years. But,

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the plaintiff has deliberately suppressed regarding the existence of drain in between the two properties which can be borne out from the surveyors sketch. It is further contended that to the eastern side of the plaint schedule property i.e., Site No.294, there exists Site No.293 and to the western side of Site No.294, there exists drain channel. The plaintiff has either deliberately does not know about actual location of Site No.294 and its boundaries. Hence, prayed the Court to dismiss the suit.

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The Trial Court having considered pleadings of the parties, framed issues and allowed the parties to lead evidence. The Trial Court, having considered both oral and documentary evidence, answered issue Nos.1 to 3 as ‘Affirmative’ and while answering the issues, discussed in paragraph No.13 with regard to very contention of defendants in the written statement and so also, even evidence of P.W.1 was taken note of and also taken note of evidence of D.W.1, wherein he has deposed that he did not know, who are in possession of schedule property and he did not know anything whether the property has been sold to others. Further, the evidence of D.W.1 in page No.10 is also extracted and taken note of his evidence, wherein D.W.1

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has clearly deposed that they have no right over the suit schedule property i.e., Site No.294 and also taken note that in the written statement, the plaintiff has clearly contended that the plaintiff was never in possession of the suit schedule property, but in the evidence, D.W.1 has deposed that they did not know anything about who are in possession of the schedule property. Having taken note of the same, answered issue No.1 as ‘Affirmative’. Even while answering issue No.2 also, in detail taken note with regard to interference is concerned and particularly taken note of admission on the part of D.W.1 and extracted the same in paragraph No.15 and having extracted the same, in paragraph No.16 made an observation with regard to very location of Site Nos.294 and 295 and particularly, considered Ex.P19-sketch which clearly indicates existence of Site Nos.294 and 294 and comes to the conclusion that there exists no ‘thodu’ between both the properties as contended by the defendants and answered issue No.2 also as ‘Affirmative’ considering the admission on the part of D.W.1 that there is an interference in the property of the plaintiff's peaceful possession and enjoyment, since the very defendants in the

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written statement have denied possession of the plaintiff and granted the relief of permanent injunction.

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The judgment and decree of the Trial Court is challenged before the First Appellate Court in R.A.No.24/2019. The First Appellate Court also having reassessed both oral and documentary evidence, keeping in view the grounds urged in the appeal memo formulated the points and taken note of evidence of both the plaintiff as well as defendants and comes to the conclusion that there is no dispute with regard to title in respect of Site Nos.294 and 295 and also taken note that, on perusal of sketch annexed with the release deed dated 20.10.2011, there is no mention pertaining to the drain water channel in Ex.P7. As per Ex.P7, the boundaries to the schedule property or the property of plaintiff shown as House Site No.290 towards North, House Site No.293 towards East, Road towards South and House Site No.295 towards West of schedule property. The First Appellate Court also taken note of Ex.P7 in terms of which the plaintiff entered his name as per Ex.P8-khatha extract in respect the property. There is no specific boundary shown as channel as contended by the

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defendants. Hence, the burden is on the defendants to prove the same and the same is not proved and also taken note of admission on the part of D.W.1 in paragraph No.20, wherein it is observed that, on perusal of cross-examination of D.W.1, it is ascertained that there is a compound wall situated on the western side of the plaintiff's property and eastern side of the defendants’ property. Oral evidence is the best piece of evidence to rely upon. Having considered both oral and documentary evidence comes to the conclusion that there was no ‘thodu’ as contended by learned counsel for the appellants/defendants and even particularly, taken note of document, Ex.P19 and observed that the document furnished by the appellants without filing necessary application appears to be fake or not a genuine document and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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Learned counsel for the appellants would vehemently contend that both the Courts have committed an error in considering the material available on record particularly, even though there was no dispute with regard to

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the title of the properties is concerned. But, the First Appellate Court erred in not providing an opportunity to the appellants to lead additional evidence as sought for in I.A.No.III filed under Order XLI Rule 27 CPC and rejected the same without assigning proper reasons and committed an error in confirming the judgment of the Trial Court. The counsel would vehemently contend that even documents which have been relied upon Ex.P1 clearly discloses that there exists ‘thodu‘ and the same is not considered and particularly, relied upon document Ex.D1 and referring the same, the counsel would contend that there exists ‘thodu’ and the same is not considered and mainly relied upon the documents Exs.D1 to D6. Hence, matter requires admission.

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Per contra, learned counsel for the respondent would vehemently contend that the Trial Court in detail considered both oral and documentary evidence and assigned reasons and also taken note of Ex.P7 and Ex.P19 and it is also not in dispute that property is allotted and the defendants’ property is House Property No.295 and already construction was made and they are residing therein. The counsel brought

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the notice of this Court the averments made in the written statement, wherein they have categorically denied that plaintiff is not in possession of the property. But, both the Courts have taken note that House Property No.294 i.e., suit schedule property belongs to the plaintiff and even taken note of boundaries i.e., Northern, Eastern, Southern and Western boundaries. On the western side of plaintiff’s property, property of defendants’ is located and the plaintiff is not claiming any right in respect of the property bearing Site No.294. The counsel would contend that when there is no perversity in the finding of Trial Court and both the Courts have taken note of oral and documentary evidence with regard to existence and identification of the property and even Trial Court extracted admission on the part of D.W.1 and even document, Ex.P19 was also taken note of that there was no ‘thodu’ as contended by the defendants and the same was considered, no ground is made out to admit the second appeal and frame any substantial question of law.

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Having heard learned counsel for the appellants and

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learned counsel for the respondent, the suit is filed only for the

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relief of permanent injunction in respect of Site No.294 which is morefully described in the suit. The appellants are also not claiming any right in respect of property bearing Site No.294 and the specific contention is that plaintiff is not in possession of the said property and it is not the claim of the plaintiff also that he is residing in Site No.294. But having considered both Oral and documentary evidence, particularly Ex.P7 and Ex.P19 marked before the Trial Court, it clearly depicts the very existence of the properties. It is also an admitted fact that appellants/defendants are residing in the property bearing Site No.295 and Ex.P19 clearly discloses very existence and boundaries which have been shown in Ex.P19-sketch as well as Ex.P7-release deed. When such being the case, the very contention of learned counsel for the appellants that no identification of property is proved cannot be accepted. Ex.P7 original release deed dated 20.10.2011 along with sketch issued by the Assistant Commissioner of Mangaluru clearly discloses Site Nos.294 and 295. When such identification of property is proved and also very contention of the defendants in the written statement is that plaintiff is not in possession, but the Trial Court having taken note of evidence on record,

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particularly the evidence of P.Ws.1 and 2, answered issue Nos.1 and 2 as ‘Affirmative’, extracted the admission on the part of D.W.1. When such detailed discussion was made by the Trial Court considering the same in paragraph Nos.15 and 16 with regard to identity of the property and the claim is also in respect of the property which the appellants are not claiming and the very contention that there existed ‘thodu’ in between Site Nos.294 and 295 is not proved by substantiating any material and particularly, Ex.P19-sketch is very clear and document of Ex.P7 is also very clear and respective boundaries are shown in respect of both the sites are concerned and Exs.P7 and P19 were taken note of by the Trial Court while considering the case of the plaintiff. The suit is also filed only for the relief of bare injunction and while considering the suit for injunction, the Court has to take note of identity of the property and also whether documents stand in the name of the plaintiff and particularly, Exs.P1, P3, P5, P6, P7, P8 and P9 disclose the very possession of the plaintiff. When such being the case and when the possession has been established and Ex.P19-sketch issued by the Office of Assistant Commissioner of Mangaluru depicts with regard to the boundary and identity

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of the property, I do not find any ground to admit the second appeal and frame any substantial question of law as contended by learned counsel for the appellants invoking Section 100 of CPC.

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