Chandrashekar Vs Sureshachari

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 31.01.2024 PASSED IN R.A.NO.29/2022 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 07.09.2022 PASSED IN O.S.NO.64/2010 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, HUNSUR.

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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. Heard the learned

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counsel for the appellants.

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This second appeal is filed against the concurrent

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finding of the Trial Court and the First Appellate Court.

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The factual matrix of the case of the plaintiff before

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the Trial Court while seeking the relief of permanent injunction against the defendants is that he had purchased the suit schedule property on 29.12.2001 for valuable consideration of Rs.35,000/-. Since from the date of purchase, he is enjoying the suit schedule property. The documents at Exs.P.4 and 5 to 8 clearly discloses that he is in possession of the property. The defendant is making effort to interfere with the possession of

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the property and hence without any other alternative filed the suit and sought for the relief of permanent injunction.

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The defendant appeared and filed the written statement contending that the suit schedule property measuring 359 x 509 along with a country tiled house measuring 289 x 209 was mortgaged in favour of one Madaiah on 17.05.1954 and then the successors in interest of the said owners mortgaged the suit schedule property and the country tiled house in favour of the defendant on 01.11.1966 with a direction to discharge the earlier mortgage. This defendant discharged the mortgage on 16.01.1971 and obtained possession of the entire property from the mortgagee including the suit schedule property. The owners of the suit property have created consequent mortgage in favour of the plaintiff on 27.03.1972, wherein they recognized the possession of the defendant of the entire mortgaged property including the suit schedule property. Thereafter, under registered sale deeds dated 16.05.1973 and 12.05.1975, executed by previous owners by names Singachari and Puttasomachari, this defendant acquired title. This defendant is having a smith

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workshop in the suit schedule property and all the municipal records were entered in the name of this defendant since 1977.

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He had also obtained licence and approved plan for construction of a building in the suit schedule property, at which point of time, this plaintiff along with the alleged vendor Sannasomachari won over the municipal authorities and got withdrew the licence issued to this defendant and also threatened of dispossessing this defendant of the suit property and as such this defendant had filed the suit in O.S.No.97/1997, which was partly decreed. Hence, an appeal in R.A.No.19/2000 was filed which was also dismissed and hence filed R.S.A.No.8/2010 before the Hon9ble High Court of Karnataka, which matter is pending adjudication. It is contended that when the house as well as the suit schedule property was given in possession in favour of the defendant, the question of granting any relief in favour of the plaintiff does not arise.

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The Trial Court having considered the pleadings of

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the parties, framed the issues with regard to possession as well as interference and allowed the parties to lead evidence. The

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plaintiff in order to prove his case examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents at Exs.P.1 to 8. On the other hand, the defendant examined himself as D.W.1 and got marked the documents at Exs.D.1 to 3. The Trial Court having considered both oral and documentary evidence placed on record, particularly considering the documents at Exs.P.1 to 3 i.e., tax on property register, tax paid receipt and certified copy of the sale deed and also the documents at Exs.P.4 to 8 i.e., Form No.3 and tax paid receipts, comes to the conclusion that the plaintiff has established the possession in respect of the suit schedule property. The Trial Court also taken note of the defence of the defendant in paragraph No.13 with regard to unregistered documents are concerned. In paragraph No.14 taken note of the documents at Exs.P.5 to 7 i.e., tax paid receipts in respect of the suit schedule property and also taken note of oral evidence of D.W.1. Though D.W.1 denies the plaintiff9s possession over the suit schedule property, when the document of Ex.P.4 was confronted, D.W.1 deposed that his father has obtained licence from the concerned authority to run Smith Workshop in the suit schedule property, but no documentary

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evidence is produced to substantiate the said contention. The Trial Court in detail discussed particularly the contention of the defendant and also the case of the plaintiff and comes to the conclusion that that plaintiff has proved the possession and granted the relief.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.29/2022. The First Appellate Court having considered the grounds urged in the appeal memo, framed the points for consideration whether the Trial Court committed an error in coming to the conclusion that the plaintiff has established his possession and whether the said finding is erroneous as against the material on record. The First Appellate Court having re-assessed the material available on record, particularly taking note of the boundaries mentioned as 359 x 509 = 1750 sq.ft. situated at III Division, Lalbundh Street, Hunsur Town in respect of which the suit is filed for the relief of permanent injunction and having considered both oral and documentary evidence placed on record, taken note of the contentions of the plaintiff and also the defendants. In paragraph No.33, it is observed that it is true as appreciated by

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the Trial Court with regard to the documents and also document of mortgage deed Exs.D.2 and 3 there was a further transaction took place through unregistered sale deeds in his favour and despite the specific defence, no such deeds are produced before the Court and hence did not accept the case of the defendants. The First Appellate Court taken note of the discussion made in O.S.No.97/1997, wherein also the defendant earlier suffered and no injunction was granted in respect of the suit schedule property which was claimed in the earlier suit and hence in paragraph No.43, having re-assessed the material on record Exs.P.1 to 8 and Exs.D.2 and 3, comes to the conclusion that it is settled principle of law that when the factum of possession is proved by the plaintiff and when the material discloses that the defendant is making effort to interfere with the possession of the plaintiff based on the unregistered document of sale deed, the Trial Court has not committed any error.

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The main contention of the learned counsel for the

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appellants in the second appeal is that both the Courts have committed an error in considering the material on record and

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the fact that the suit property being a vacant site is not in dispute and the title of the vendor of the plaintiff having been disputed by the defendant even earlier to filing of the suit. The learned counsel contend that out of 5 co-sharers, only 2 cosharers have executed the document and they are not having any absolute right to execute the sale deed in favour of the plaintiff. When the registered mortgage deed Ex.D.2 dated 17.05.1954 and Ex.D.3 dated 01.11.1964 is produced before the Court, ought to have taken note of the same and committed an error and hence this Court has to admit the appeal and frame substantial question of law and the matter requires reconsideration.

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Having heard the learned counsel for the appellants

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and considering the reasons assigned by the Trial Court and considering the factual aspects of the case, the suit is filed for the relief of permanent injunction in respect of vacant site property bearing assessment No.784/1, measuring 359 x 509 i.e., 1750 sq.ft. No doubt, on the west, house of Rajachari (defendant) is shown and hence it is very clear that the suit schedule property is on the east of the property of the

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defendant. Earlier the defendant had filed a suit in respect of the suit schedule property and no injunction was granted in respect of vacant land and only injunction was granted in respect of the house in which the defendant is residing. In the case on hand, it has to be noted that the plaintiff relies upon the sale deed Ex.P.3 before the Trial Court and also produced Form No.3 as well as tax paid receipts as Exs.P.5 to 8. The fact that the original owners have executed the sale deed is not in dispute, but the only contention of the appellants is that other co-sharers of the vendors of the plaintiff have not joined in execution of the sale deed. The same cannot be a ground and it is left open to the other co-sharers to dispute the sale deed of the plaintiff.

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The defendant claims that Exs.D.2 and 3 are the mortgage deeds of the year 1954 and 1966 and on the strength of those two documents earlier also claimed right, but was unsuccessful in the earlier suit. It is the contention of the learned counsel for the appellants that earlier the defendant was unsuccessful cannot be a ground and there is a force in the contention of the learned counsel for the appellants. But the

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fact is that the sale deed was executed by the original owners in favour of the plaintiff and subsequent to the sale deed also, the documents stand in the name of the plaintiff as per Exs.P.3, 4 and 5 to 8 tax paid receipts. The Trial Court at the time of considering the relief of permanent injunction, looked into the documents as on the date of filing of the suit whether the plaintiff is in possession of the property. Having considered the documents of Exs.P.1 to 8, the Trial Court comes to the conclusion that the plaintiff is in possession of the property. The First Appellate Court also re-assessed the material in detail and having discussed in detail in paragraph No.33 comes to the conclusion that the plaintiff9s case is rightly considered by the Trial Court considering the documents of Ex.Ps.1 to 8 and the same is discussed in paragraph Nos.44 and 45. When such finding is given by both the Courts with regard to possession is concerned, the very contention of the learned counsel for the appellants that both the Courts have committed an error and this Court has to admit the second appeal and frame substantial question of law cannot be accepted. Both the Courts have taken note of the factual aspects as well as question of law. When such being the case, I do not find any

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