Sri M v Ganesh Prasad Vs Sri M v Chandrashekar

SRI M V GANESH PRASAD S/O LATE M L VASUDEVA MURTHY AGD ABOUT 56 YEARS RESIDING AT SRI SHIVASHAKTHI NILAYA THILAK PARK ROAD, VIJAYPURA EXTENSION CHIKAMAGALORE-577 101

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… APPELLANT

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(BY SRI.NAVEED AHMED.,ADVOCATE)

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AND:

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Digitally signed by B LAVANYA

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Location: HIGH COURT OF KARNATAKA

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SRI M V CHANDRASHEKAR AGED ABOUT 72 YEARS S/O M L VASUDEVAMURTHY R/AT SMILEY GREENS M M INDUSTRIAL ESTATE K R ROAD, BANGALORE-56001

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(BY SRI. AJIT KUMAR A S .,ADVOCATE)

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…RESPONDENT

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`THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 8.3.2012 PASSED IN R.A.NO.10/2010 ON THE FILE OF SENIOR CIVIL JUDGE & JMFC, CHIKMAGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 25.11.2009 PASSED IN

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OS.NO.217/1999 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN.), CHIKMAGALURU.

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IN RSA NO. 1746/2012

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BETWEEN:

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SRI M V GANESH PRASAD S/O LATE M L VASUDEVA MURTHY AGED ABOUT 56 YEARS R/AT SRI SHIVASHAKTHI NILAYA THILAK PARK ROAD, VIJAYPURA EXTENSION CHIKAMAGALORE-577 101

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... APPELLANT

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(BY SRI. NAVEED AHMED.,ADVOCATE)

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AND:

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SRI K REKESHKUMAR S/O K P KUSHKUMAR AGED ABOUT 40 YEARS COFFEE PLANTER, R/AT NAIDU STREET CHIKAMAGALURU-577101

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... RESPONDENT

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(BY SRI. K M BASAVARAJ.,ADVOCATE)

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THIS RSA IS FILED U/S. 100 OF CPC TO ALLOW THE APPEAL AND REVERSE THE JUGEMENT AND DECREE PASSED IN O.S.NO.134/2006 DATED 25.11.2009 ON THE FILE OF THE I ADDL CIVI JUDGE CHIKKAMANGALURU AND RA NO.8/2010 DATED 08.03.2012 ON THE FILE OF THE I ADDL SENIOR CIVIL AND CONSEQUENTLY THE DISMISS THE SUIT IN O.S.NO.134/2006.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGEMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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These two appeals are filed by one Sri.M.V.Ganesh Prasad who was the plaintiff in O.S.No.217/1999 and the defendant in O.S.No.134/2006.

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O.S.No.217/1999 was filed by the plaintiff – Sri.M.V. Ganesh Prasad against his brother Sri. M.V. Chandrashekar for the relief of permanent injunction. O.S.No.134/2006 was filed by one Sri.K. Rakesh Kumar, who is the purchaser of the suit schedule property from Sri.M.V.Chandrashekar, against Sri.M.V.Ganesh Prasad as the defendant.

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Both the suits were filed for the relief of permanent injunction. In both the suits the suit schedule property measurements are different. The original suit filed by the plaintiff in O.S.No.217/1999 came to be dismissed, aggrieved by which the plaintiff preferred an

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appeal in R.A.No.10/2010 which also came to be dismissed. Aggrieved by the concurrent finding the plaintiff in O.S.No.217/1999 is before this Court in

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RSA.No.1747/2012.

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O.S.No.134/2006 filed by Sri.K.Rakesh Kumar against Sri.M.V.Ganesh Prasad for the relief of permanent injunction, came to be decreed in favour of the plaintiff therein i.e., K.Rakesh Kumar. Aggrieved by the same the defendant therein i.e, M.V.Ganesh Prasad preferred an appeal in R.A.No.8/2010 which on re-consideration came

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to be dismissed, confirming the judgment and decree passed by the trial Court in O.S.No.134/2006. Aggrieved by the concurrent finding of both the Courts in decreeing the suit of Sri.K.Rakesh Kumar, Sri.M.V.Ganesh Prasad is before this Court in RSA.No.1746/2012.

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The trial Court took up both the original suits - O.S.No.217/1999 and O.S.No.134/2006 for consideration

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together, common trial was conducted, evidence was adduced by both the parties and common judgment was

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passed. While doing so, the plaintiff in O.S.No.217/1999 was treated as plaintiff in both the suits and Sri.K Rakesh Kumar and M.V.Chandrashekar were treated as the defendants in both the suits, whereby the trial Court recorded the evidence of the plaintiff as PW1 and M.V.Chandrashekar adduced the evidence as DW1 and K.Rakesh Kumar adduced the evidence as DW2.

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The plaintiff examined one more witness as PW2 and got marked the documents as Ex.P1 to Ex.P194 whereas the defendants, got examined M.V.Chandrashekar as DW1 and K.Rakesh Kumar as DW2 and got marked the documents as Ex.D1 to Ex.D15. On the basis of the pleadings adduced by the plaintiff and the defendants in the respective suits, the trial Court framed the following issues.

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ISSUES FRAMED IN O.S.NO.134/2006

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1. Whether plaintiff proves that he is in possession of the suit schedule property

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2. Whether plaintiff proves the alleged interference by the defendant in the suit schedule property?

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3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed?

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4. What order or decree?

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ISSUES FRAMED IN O.S.NO.217/1999

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1. Whether plaintiff proves that he is in possession of the suit schedule property as on the date of suit?

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2. Whether plaintiff proves the alleged interference by the defendant?

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3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed?

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4. What order or decree?

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Upon consideration of all the issues, the trial Court negated three issues in O.S.217/1999 and answered issue No.4 as per the final order and affirmed three issues framed in O.S.No.134/2006 and answered issue No.4 as per the final order and accordingly dismissed the suit of the plaintiff/appellant and decreed the suit of the defendant namely, Sri. K.Rakesh Kumar. Aggrieved by the

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same, the plaintiff/appellant preferred an appeal before the first appellate Court, in R.A.No.10/2010 and R.A.No.8/2010 respectively. The first appellate Court upon reconsideration and reanalyzing the entire materials placed on record both oral and documentary, and upon hearing the arguments of learned counsel for both the parties, formulated the following points for consideration.

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1. Whether the plaintiff in O.S.No.134/2006 has proved his actual possession and enjoyment of the suit property, as per the measurement and boundary shown in the plaint schedule, as on the date of filing of the said suit?

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2. Whether the plaintiff in O.S.No.217/1999 has proved his actual possession and enjoyment of the suit property, as per the measurement and boundary shown in the plaint schedule, as on the date of filing the said suit?

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3. Whether the impugned judgment and decree passed by the trial court in decreeing the suit in O.S.No.134/2006 is opposed to law, facts, evidence and probabilities of the case and it is liable to be interfered by this Court?

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4. Whether the impugned judgment and decree passed by the trial court in dismissing the suit in O.S.No.217/1999 is opposed to law, facts, evidence and probabilities of the case and it is liable to be interfered by this Court?

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5. What order or decree?

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The first appellate Court answered the points

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for consideration in the following manner.

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POINT NO.1: IN THE AFFIRMATIVE

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POINT NO.2: IN THE NEGATIVE POINT NO.3: IN THE NEGATIVE POINT NO.4: IN THE NEGATIVE POINT NO.5: AS PER THE FINAL ORDERS.

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Upon consideration of the first appeal, based on

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the materials before the Court, both oral and documentary and also the arguments put forth by the learned counsels for both the parties, the first appellate Court did not find favour with the appellant/plaintiff namely, the Sri.M.V.Ganesh Prasad and accordingly dismissed both the appeals. Thereby, confirmed the judgment and decree passed by the trial Court in O.S.No.217/1999 and

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O.S.No.134/2006. It is these judgments that are

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challenged before this Court by way of these two appeals by Sri.M.V.Ganesh Prasad - the appellant.

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It is vehement contention of the learned counsel Sri. Naveed Ahmed appearing for the appellant that the judgments rendered by the trial Court as well as the first appellate Court are perverse, arbitrary, illegal and contrary to the materials placed on record and hence the same requires to be set aside and consequently, the suit filed by the appellant/plaintiff requires to be decreed.

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It is also the contention of learned counsel for the appellant that the trial Court and the first appellate Court have failed to take into consideration, the Ex.P1 the partition deed dated 28.03.1975 between the plaintiff, defendant-M.V.Chandrashekar and their father. It is also the contention of the learned counsel for the appellant that the trial Court as well as the first appellate Court have ignored the municipal records which in fact depicted that the appellant was in possession of the suit schedule

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property, and the same was not appreciated which is an

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error occurring on the face of the records.

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It is also the contention of the learned counsel for the appellant that the trial Court as well as the first appellate Court have committed a gross error in not appreciating that the appellant was in possession of the suit schedule property as on the date of filing of the suit and, in fact, had obtained an interim order in his favour initially and in contravention to the interim order and in violation of the breach of the said order, the defendant namely K.Rakesh Kumar, has purchased the property from one Sri.M.V.Chandrashekar, the brother of appellant.

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It is also the contention of the appellant that the defendants have taken inconsistent plea regarding the measurement and locations of the property and so also the possession of the conservancy lane so stated as regards the suit schedule property. Learned counsel for the appellant also contends that the suit preferred by K.Rakesh Kumar is barred by principles of Lis-pendence

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and so also no material is placed by the defendant- Sri. K.Rakesh Kumar to show that he was in lawful possession

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of the suit schedule property as on the date of filing of the suit.

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Learned counsel for the appellant also contends that the trial Court as well as the first appellate Court have ignored the principles of Section 52 of the Transfer of property Act as the defendant K.Rakesh Kumar purchased the suit schedule property during the pendency of the original suit in O.S.No.217/1999 which is conveniently being ignored by the trial Court.

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It is also the contention of the learned counsel for the appellant that he has filed a suit on 28.07.1999 on which date neither his brother M.V.Chandrashekar nor the defendant K.Rakesh Kumar were in possession of the suit schedule property so also neither of them had put up any fence or compound in the suit schedule property. On the contrary, it is contended that the appellant -M.V.Ganesh Prasad had put up a fence and compound that was illegally

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removed with the intent to encroach upon the property belonging to the appellant. Therefore, it is contended by the learned counsel for the appellant that as on the date of filing of the suit by the plaintiff- M.V.Ganesh Prasad and as on the date of filing of the suit by K. Rakesh Kumar, the defendants i.e, neither M.V.Chandrashekar nor K.Rakesh Kumar were in possession of the suit schedule property. Under the circumstances, it is contended that when these defendants were not at all in possession of the suit schedule properties, the question of decreeing the suit by granting permanent injunction in their favour is absolutely illegal, perverse, arbitrary and the same requires to be set aside, so also affirmation of the same by the first appellate Court.

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Learned counsel for the appellant further contends that the trial Court as well as the first appellate Court has misread, misconstrued the pleadings, evidence and the documents produced before the Court and committed a gross error in decreeing the suit of K.Rakesh

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Kumar and dismissing the suit of M.V.Ganesh Prasad who is the appellant herein.

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Therefore, learned counsel for the appellant contends that the judgment and decree passed by the trial Court confirmed by the first appellate Court is contrary to the material evidence, pleadings and documents placed before the Court and the same requires to be set aside and the suit filed by the appellant herein requires to be decreed. Consequently, the suit preferred by the respondent - K.Rakesh Kumar deserves to be dismissed.

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Learned counsel for the appellant contends that there are substantial questions of law that arise for consideration. He has raised five substantial questions of law and pleads to admit the appeals to consider the said substantial questions of law, which are as under:

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SUBSTANTIAL QUESTIONS OF LAW RAISED BY THE APPELLANT.

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1. Whether in a Civil Suit, in the face of admissions by the contesting party or/and in the backdrop of clear and specific findings by the Court that under the

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Partition deed, the contesting parties were allottees of specific, adjoining portions of property, but with lesser dimensions than set out in the plaint schedule, and the admitted Municipal entries and tax payment by both parties is also on that basis, can the Plaintiff be denied relief in entirety on technical grounds such as he had not pleaded these circumstances or on the ground of insufficiency of pleadings?

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2. Whether the transfer of the suit property pendente lite by the Defendant in violation of the interim orders passed by the Court and whether the claim of the Defendant's successor-in-title pendente lite could be given credence by the Court, ignoring the applicability of S. 52 of the Transfer of Property Act?

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3. Whether a purchaser pendente lite has a valid right to file a separate suit in respect of the same subject matter, even during the pendency of the earlier suit, disregarding the bar of Ss. 10 to 12 of CPC., and whether the doctrine of lis pendens is inapplicable to a suit for mere Permanent Injunction ?

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4. Whether the principle that every suit must be decided in relation to facts prevailing at the time of institution of the suit does not govern such a case?

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5. Whether the principles relating to interpretation of documents, and ambiguities, latent or otherwise, and the legal principles set out in Chapter VI of the

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Evidence Act have been ignored by the Courts below?

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Per contra, learned counsels appearing for the

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respondents in these two cases, i.e., the brother of the appellant namely, M.V. Chandrashekar and the subsequent purchaser from the brother of the appellant namely Sri.K.Rakesh Kumar contend that these two appeals filed by the appellant do not call for interference, for the reasons that the trial Court as well as the first appellate Court have considered in detail the materials placed on record both oral and documentary evidence of the parties and based on certain admitted documents with regard to Ex.P1 and Ex.P70 so also the Ex.P12 have arrived at proper conclusion that the suit filed by the appellant is rightfully dismissed and the suit filed by the respondent namely K.Rakesh Kumar is rightly decreed. Therefore, there does not arise any anomaly, discrepancy, illegality or perversity in the judgments rendered by the trial Court as well as the first appellate Court which would call for

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interference at the hands of this Court for either considering the substantial questions of law so formulated by the appellant herein or the present appeals, and they do not call for admission, much less considering the substantial questions of law.

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Learned counsel for the respondents further contends that there is no dispute with regard to the partition having been effected by the appellant and the respondent Sri.M.V.Chandrashekar along with their father Sri.Vasudev Murthy and the fact that property was partitioned and a portion of it was given to the appellant Sri.S.V.Ganesh Prasad and another portion was given to the respondent - Sri.M.V.Chandrashekar.

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There is absolutely no dispute with regard to the partition deed and the portions allotted to each of them. It is also not in dispute according to the learned counsel for the respondents that the appellant/M.V.Ganesh Prasad executed Ex.P70, a declaration that he would not have any objections in permission being given to his

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brother M.V.Chandrashekar in alienating the portion of the

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suit schedule property which has fallen to his share. Therefore, it is contended by the learned counsel for the respondents that the property that has fallen to the share of the respondent - M.V.Chandrashekar is totally different from the property that has been allotted to the share of the appellant M.V.Ganesh Prasad.

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It is also contended by the learned counsel for the respondents that the property that has fallen to the share of respondent - M.V.Chandrashekar has been sold by him as an absolute owner in favour of the respondent K.Rakesh Kumar who is none other than the plaintiff in original suit O.S.No.134/2006.

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It is further contention of learned counsel for respondents that the appellant has not disputed the partition deed/Ex.P1, declaration document - Ex.P70 and so also the earlier partition deed/Ex.D12 dated 6.1.1968. It is also contended by learned counsel for respondents that the properties that are partitioned by virtue of the

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partition deed at Ex.P1 clearly depict the measurements of the 'D' schedule property allotted to the appellant's elder brother i.e., respondent/M.V. Chandrashekar and so also 'C' schedule property allotted to the appellant/M.V. Ganesh Prasad. The description of the properties in the partition deed is very clear and specific, which is admittedly not the same property and infact, two different properties are allotted to the appellant and respondent/M.V. Chandrashekar. The boundaries are also clearly defined in the partition deed, which is admitted.

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Learned counsel for respondents further contends that pursuant to the partition deed, the parties have taken possession of their properties and declaration deed/Ex.P70 has been executed by the appellant, wherein he has clearly stated that he renounces and gives up all his right of pre-emption and further unequivocally and voluntarily and out of free will declare that he would not enforce his rights under Clause-18 against respondent/M.V. Chandrashekar and that he has no

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objection for alienation of the properties allotted to the share of respondent in the said deed to any other person. The said declaration deed/Ex.P70 is not in dispute.

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Learned counsel for respondents further

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contends that when there is a clear description of the property, measurement of the property and boundaries,

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the appellant cannot now take up the plea that the property sold by the respondent/M.V. Chandrashekar belongs to him and raise a dispute. It is also contended that the suit for bare injunction would not have been maintainable. Learned counsel further contends that if

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the appellant is aggrieved by the measurement of the property or description and boundary or any portion that is allotted to his elder brother i.e., the respondent/M.V. Chandrashekar, he could have filed the suit for rectification to rectify the same, which has not been done. Therefore, he contends that suit for bare injunction is certainly not maintainable and the trial Court has rightly dismissed the suit preferred by the appellant in O.S.

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No.217/1999 and the first appellate Court rightly affirmed

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the same by dismissing the appeal. Consequently, learned counsel for respondent contends that the trial Court rightly decreed the suit filed by K. Rakesh Kumar in O.S. No.134/2006 and the first appellate Court rightly dismissed the appeal filed by the appellant before the first appellate Court, which does not call for any interference and therefore, these appeals are liable to be dismissed without admitting the appeals for consideration of substantial questions of law.

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Learned counsel for respondent further contends that pursuant to the sale by Sri M.V. Chandrashekar and purchase by Sri Rakesh Kumar, there was no difficulty or impediment for the appellant to have filed a suit of comprehensive nature seeking the necessary reliefs, which also has not been done. Therefore, he contends that the judgment of the Hon'ble Apex Court in the case of

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Anathula Sudhakar -vs- P. Buchi Reddy (dead) by

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LRs. and others reported in (2008)4 SCC 594 would be

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squarely applicable to the case on hand, where the appellant has remained silent and has not filed a comprehensive suit seeking for declaratory relief.

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Learned counsel for respondent in the connected

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appeal i.e., RSA No.1746/2012 contends that the respondent in the said appeal i.e., K. Rakesh Kumar is none other than purchaser of the property from M.V. Chandrashekar and that the property purchased by Sri K. Rakesh Kumar is totally different from that of the appellant.

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Learned counsel further contends that in view of admission of the partition deed and the declaration made by the appellant in Ex.P70, appellant cannot have any right or grievance on the property sold by Sri M.V. Chandrashekar to the respondent/Rakesh Kumar. Therefore, learned counsel contends that the judgment rendered by the trial Court in his case in O.S. No.134/2006 is factually and legally justified, which does not call for interference.

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Having heard the learned counsel for the

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appellant and the learned for the respondents and considering the material that was placed before the trial Court appreciated by the first appellate Court and the trial Court having decreed the suit of the respondent -K. Rakesh Kumar and having dismissed the suit of the appellant - M.V.Ganesh Prasad, the same on challenge before the first appellate Court, came to be dismissed. Hence, the present appeals.

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At this stage, it is to be stated that Section 100 of the Code of Civil Procedure has got limited and narrow scope for consideration. This Court sitting in the second appeal to consider the substantial questions of law under Section 100 of the CPC, will have to be very circumspect and careful in not venturing into re-analyzing or reappreciating the question of fact which has already been decided by the first appellate Court, which is the last Court for appreciation of question of facts and analysation of the evidence and unless there is a grave error

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committed by the first appellate Court in not appreciating any evidentiary matter which is placed on record causing miscarriage of justice, this Court would not interfere in the judgments passed by the Courts below on the question of fact.

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On perusal of the impugned judgments passed by the trial Court and the first appellate Court, this Court is of the opinion that both the Courts have extensively considered the oral and documentary evidence and the trial Court rightly dismissed the suit in O.S. No.217/99 filed by the present appellant and decreed the suit in O.S. No.134/2006 filed by Mr. Rakesh Kumar, who is purchaser of the suit schedule property from Mr. M.V. Chandrashekar. On re-appreciation and re-analyzation of the entire material evidence, both oral and documentary, the first appellate Court rightly come to the conclusion that the judgment and decree passed by the trial Court is

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just and proper and there being no flaw would not call for interference and dismissed the appeals and confirmed the

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judgment and decree passed by the trial Court in both the suits.

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When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record as regards substantial questions of law.

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Having considered the submissions of learned counsels for the parties and having perused the impugned judgments of the trial Court and the first appellate Court and having gone through the records, I do not find any good ground or cogent reason to interfere with the concurrent finding of facts of both the Courts so also I do not find any good ground or cogent reason to accept or formulate the substantial questions so raised by the appellant in these appeals as this is a mere suit for bare

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injunction preferred by the appellant M.V.Ganesh Prasad

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on one side and the respondent K.Rakesh Kumar on the other side. So also the first appellate Court while disposing of the appeals has granted liberty to the appellant herein

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to prefer an independent comprehensive suit for declaration of his title over the disputed property and for seeking an appropriate consequential relief. The reasons assigned and conclusion arrived at by both the Courts are just and proper. Under the circumstances, I do not find cogent reasons to interfere with the well reasoned judgments passed by both the Courts. Consequently, I pass the following:

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O R D E R

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These appeals are dismissed at the stage of

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'Admission' itself.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK/GSS

Sri M v. Ganesh Prasad v Sri M v Chandrashekar

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Sri M v. Ganesh Prasad v Sri M v Chandrashekar

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