Sri. K S Ramashastry Vs Sri Narayana

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 04.06.2024 PASSED IN R.A.NO.5/2022 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, C/C II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND DECREE DATED 16.11.2021 PASSED IN O.S.NO.419/1993 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, DEVANAHALLI.

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HC-KAR

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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 and the learned counsel for the caveator/respondent Nos.1 to 3.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of permanent injunction, it is stated that the plaintiff is the absolute owner of the suit property, which is consisting of vacant land together with shed and he has been in peaceful possession and enjoyment of the suit property. The property originally belonged to M. Seetharamaiah, who was jodidhar. He sold the suit property in favour of Seetharam Bhat, who is the father of the plaintiff on 15.07.1949. The plaintiff executed the release deed in favour of his brothers releasing his rights over the joint family properties except the suit property and

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the properties mentioned therein. Thus, the plaintiff has been in possession of suit property since 1972 by paying tax to the concerned authority. The defendants have no right over the suit property and are making an attempt to interfere with possession of the plaintiff and hence filed a suit for the relief of permanent injunction.

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The defendants appeared and filed the written statement contending that the plaintiff is not entitled for any relief. The property No.204 and other property is Government kharab land measuring 4 guntas of vacant land and there is another kharab voni measuring 11 guntas. They are situated adjacent to each other in the said land. It is in exclusive possession of the defendants and other villagers of Aradeshanahalli village. They have put up thatched huts and they are keeping their stock and storing fuel in the said Government kharab property. Veeraiah and other villagers have made application to the Tahasildar for grant of suit land to them. Other villagers also filed applications for grant of sites and the same are pending. The defendants and other villagers are in possession of the said property and making

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use of the same. The plaintiff and his vendors are not in possession of the said property and the plaintiff has filed a false suit.

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The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence available on record, compared the schedule mentioned in Ex.P.1 sale deed under which the plaintiff claims that he is in possession and also taken note of the description of the property given in the suit and comes to the conclusion that the schedule mentioned in the sale deed as well as the schedule mentioned in the plaint does not tally with each other. It is also observed that in the sale deed the definite area is not mentioned. The Trial Court also taken note of photographs at Exs.D.1 to 6, which have been produced by the defendants that there are huts in the said land. Apart from that, the Trial Court also taken note of the evidence of the witnesses in paragraph Nos.13, 14 and 15 and particularly in paragraph Nos.26 and 27 comes to the

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conclusion that identity of the property is not proved and also possession is not established and dismissed the suit.

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Being aggrieved by the said order, an appeal is filed in R.A.No.5/2022. The First Appellate Court considering both oral and documentary evidence available on record, taken note of admission on the part of P.W.1 in the crossexamination that he has no documents with him to show the suit schedule measurement and also admitted that in the year 1956, the Government has taken possession of inamti land. The First Appellate Court also taken note of photographs in paragraph No.15, which discloses that the plaintiffs are not in possession of the property and also taken note of that P.W.4 has admitted about the huts put up by the defendants and there are various people in the village who have put up huts in the disputed property and hence comes to the conclusion that the persons who are in possession were not arrayed as defendants and also taken note of the document of Ex.P.1 and boundaries and comes to the conclusion that the vendor was not having any title over the property in order to convey the same. Exs.P.4 to 7 are the

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tax paid receipts, which does not disclose the number and measurement of the property. All these factors were reappreciated by the First Appellate Court and dismissed the appeal and confirmed the judgment of the Trial Court.

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The main contention of the learned counsel for the appellants before this Court is that the sale deed is produced to show that the property was purchased in the year 1949 i.e., on 15.07.1949 and other documents are also produced before the Court. The plaintiff has been in possession of the property and demand register extract is produced as Ex.P.16 and inspite of materials are placed before the Court, the same has not been properly considered by both the Courts. The learned counsel also vehemently contend that this Court has to frame the substantial question of law and exercise its jurisdiction under Order 41 Rule 31 of CPC. It empowers the Appellate Court to discuss the point for consideration and the very finding of the Trial Court and the First Appellate Court is illegal. Hence, the reasoning given by both the Courts requires interference and to admit the appeal and frame substantial question of law.

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HC-KAR

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Per contra, the counsel for the

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caveator/respondent Nos.1 to 3 would vehemently contend that the Trial Court has taken note of the factual aspects of the case, particularly when the suit is filed for the relief of permanent injunction, relying upon the document of sale deed which does not disclose the extent of land and apart from that, measurement also does not tally. The boundary descriptions given in the sale deed and in the plaint are not consistent and these aspects were considered by both the Courts.

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Having heard the learned counsel for the appellants and the learned counsel for the caveator/respondent No.1 to 3 and particularly taking note of the pleadings of the plaintiff, the plaintiff pleaded that the property was acquired as per the sale deed of Ex.P.1. The issue is not in respect of the title is concerned and issue is with regard to the identity of the property. The defendants have also produced the documents of Exs.D.1 to 6 to show that other people have put up the huts and the plaintiff is not in possession of the property. It is important to note that the

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Trial Court while dismissing the suit, made an observation considering the boundary description mentioned in Ex.P.1 as well as the schedule given in the plaint that the same does not tally with each other. Both the Courts taken note of both oral and documentary evidence placed on record and comes to the conclusion that Exs.P.4 to 7 tax paid receipts also not discloses the property number and property description. The document of Ex.P.1 and boundary description mentioned in the plaint as well as the tax paid receipts Exs.P.4 to 7, does not disclose the property number and measurement and with regard to the measurement is concerned, no proof is placed on record. When such reasoning is given by the Trial Court as well as the First Appellate Court with regard to the identity of the property is concerned and when the actual measurement of the property is also not established by the plaintiff, the question of granting the relief of permanent injunction does not arise. Hence, I do not find any error committed by the Trial Court and the First Appellate Court in dismissing the suit in a case of bare injunction when the appellant/plaintiff fails to prove the very identity of the

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