Sri Kunthanath Jain Swetambara Vs H R Prasad

THIS RSA IS FILED U/S 100 R/W 42 RULE 1 OF THE CPC AGAINST THE JUDGEMENT & DECREE DTD 8.7.2013 PASSED IN R.A.NO.6/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., SAKALESHPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 18.1.2013 PASSED IN O.S.NO.95/2009 ON THE FILE OF THE CIVIL JUDGE, SAKALESHPURA.

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THIS APPEAL, COMING ON FOR 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 appeal is filed by the appellant challenging the judgment and decree dated 08.07.2013 passed in R.A.No.6/2013 by the Senior Civil Judge and J.M.F.C., Sakaleshpura.

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was the plaintiff and the respondent was the defendant.

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The brief facts leading to the filing of this appeal are as follows:

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The plaintiff filed a suit against the defendant for a permanent injunction, restraining the defendant from trespassing on the eastern side of the suit schedule property and damaging the wall fixed compound wall on the eastern side. It is the case of the plaintiff that the

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plaintiff-Sangha is a trust registered on 01.04.1995. The suit property totally measures 50x350 feet. The suit property measuring 25x350 feet was purchased by the plaintiff under a registered sale deed dated 09.03.1971. Based on the registered sale deed, the khatha was transferred in the name of the plaintiff and he is in peaceful possession of the suit schedule property. The plaintiff constructed the compound and there is a public drainage constructed by the town municipality. The plaintiff also fixed a door for the purpose of cleaning and painting the temple in the eastern side of the compound. The defendant is trying to damage the door fixed to the compound on the eastern side. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction.

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The defendant filed a written statement denying the averments made in the plaint and contended that the plaintiff constructed the compound wall by encroaching on the property of the defendant on the eastern side. It is

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contended that the plaintiff has no right, title or interest over the suit schedule property. It is contended that the defendant closed the said door when the plaintiff kept the door on the eastern side and started using it. The defendant also complained to the Town MunicipalitySakaleshapura. The Town Municipality has not taken any action and the defendant has caused a notice to the plaintiff. There is no cause of action to file a suit. Hence, he prays to dismiss the suit.

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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1) Whether the plaintiff proves their possession over the suit schedule property as on the date of suit?

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

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3) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as sought for?

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4) What order or decree?

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To establish the case of the plaintiff, the secretary

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of the Sangha was examined as P.W.1 and marked 8 documents as per Exs.P.1 to 8.

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In rebuttal, the GPA holder of the defendant was examined as D.W.1 and 4 documents were marked as per Exs.D.1 to 4.

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The Trial Court, after recording the evidence and hearing both sides and assessing the verbal and documentary evidence, answered issue Nos. 1 to 3 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff was decreed with costs vide judgment dated 18.01.2013 and granted a decree for permanent injunction restraining the defendant from trespassing into the suit schedule property and damaging the door fixed to the compound on the eastern side of the suit schedule property.

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The defendant, aggrieved by the judgment and decree passed in O.S.No.95/2009, preferred an appeal in

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R.A.No.6/2013 on the file of the Senior Civil Judge and JMFC, Shakleshpura. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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1) Whether the trial Court judgment is not based on evidence, facts and law?

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2) Whether the appellants prove that the judgement and decree passed by the Trial Court is capricious?

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3) Whether the judgement and decree of the trial Court requires for interference?

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1. What order?

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 to 3 in the affirmative and point No.4 as per the final order. The appeal was allowed and the judgment and decree passed in O.S.No.95/2009 was set aside and consequently, the suit of the plaintiff was dismissed. The plaintiff, aggrieved by the dismissal of the suit, filed this regular second appeal.

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Heard the learned counsel for the plaintiff and learned counsel for the defendant. The learned counsel for the defendant appeared through video conference.

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Learned counsel for the plaintiff submits that the plaintiff-Sangha had purchased the suit schedule property under a registered sale deed dated 09.03.1971 and the plaintiff has constructed a compound wall and fixed a door in the eastern side of the compound wall. He further submits that the defendant, in his written statement, has admitted that the plaintiff had encroached on the property of the defendant. He also submits that D.W.1, in his crossexamination, has clearly admitted the plaintiff's possession over the suit schedule property. The First Appellate Court, without considering the admission of D.W.1 in his crossexamination, has reversed the judgment and decree passed by the Trial Court only on the ground that the description of the suit schedule property shown in the plaint is incorrect and there is a dispute regarding the boundaries of the suit properties. He submits that the First

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Appellate Court committed an error in reversing the judgment and decree passed by the Trial Court. Hence, on these grounds, he prays to allow the appeal.

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Per contra , learned counsel for the defendant submits that the boundaries shown in the plaint are incorrect and the plaintiff has not shown the correct description of the suit schedule property. The First Appellate Court, on re-appreciating the entire evidence on record, has rightly dismissed the suit of the plaintiff. Hence, on these grounds, he prays to dismiss the appeal.

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This Court, vide order dated 16.06.2016, admitted the appeal to consider the following substantial questions of law:

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1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court without considering the material document Exs.P1 to P8 which discloses that the plaintiff is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit?

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2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court, when plaintiff-PW.1 has admitted that the plaintiff had put up door on the compound when the compound wall was constructed and admittedly there is open space in between the said properties?

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3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court without considering the admission made by PW.1 that the plaintiff is in possession of the suit schedule property?

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4. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in the facts and circumstance of the present case?

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Reg. Substantial question of law Nos.1 to 4:

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Substantial questions No.1 to 4 are interlinked and hence are taken together for common discussion to avoid the repetition of facts. The plaintiff filed a suit for permanent injunction contending that the plaintiff- sangha had purchased the suit schedule property under a register sale deed dated 09.03.1971. On the basis of the registered

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sale deed, name of the plaintiff is entered in the records. The plaintiff, after purchasing the said property, constructed a compound wall and fixed a door in the eastern compound wall. There is a drainage attached to the compound wall. The plaintiff- Sangha fixed one door for the purpose of cleaning and painting of the temple. It is contended that the defendant has no right, title or interest over the suit schedule property and is trying to interfere with the plaintiff's peaceful possession of the suit schedule property. The Secretary of the Plaintiff- Sangha was examined as PW1. He reiterated the plaint averments in the examination-in-chief and produced the documents marked as Ex.P1 to Ex.P8. There is no dispute that the plaintiff had purchased the suit schedule property. In the cross-examination, it is suggested to PW1 that the plaintiff encroached the property of the defendant. By suggesting to PW1, the defendant admitted the possession of the plaintiff over the suit schedule property. In rebuttal, the defendant examined himself as DW1 and he reiterated the

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written statement averments in the examination-in-chief

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and produced documents, Ex.D1 to D4.

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During cross examination, DW1 has clearly admitted that the plaintiff is in the absolute possession over the suit schedule property and it has constructed the compound wall and door was fixed to the said compound wall. The trial Court has reproduced the portion of deposition of DW.1 in paragraph 17 of the judgment of the trial Court. It is well established principles of law that a fact admitted need not be proved as per Section 58 of the Indian Evidence Act.

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The defendant, during the cross examination admitted the possession of the plaintiff over the suit schedule property. In a suit for permanent injunction, the court is required to consider the possession and alleged interference as of the date of filing the suit. Admittedly the plaintiff is in possession and enjoyment of the suit

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schedule property shown in the plaint as of the date of filing the suit.

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The first Appellate Court reversed the judgment and decree passed by the trial Court only on the ground that the plaintiff has not shown the correct boundaries of the suit schedule property. The defendant has not denied the description of the suit schedule property shown in the plaint in the written statement. Further, the trial Court has not properly appreciated the entire evidence on record and further the first appellate court has not considered the recital of Exs.P5 and P6, i.e., the sale deeds, which disclose that the vendor of the plaintiff- Sangha delivered the possession of the suit schedule property in favour of the plaintiff- Sangha and the plaintiff-Sangha produced the documents Ex. P1 to Ex.P8 to establish its possession over the suit schedule property.

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The defendant contended that the plaintiff had encroached upon the land of the defendant. The said

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suggestion itself is sufficient to hold that the plaintiff is in possession of the suit schedule property. The first appellate court, without considering the said aspect, reversed the judgment and decree passed by the trial Court. The defendant has also admitted regarding the construction of a compound wall and fixing of a door in the eastern wall of the compound by the plaintiff - Sangha. The judgment and decree passed by the first appellate court is arbitrary, perverse and contrary to the records. In

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view of the above discussion, I answer substantial question of law Nos.1 to 4 in the negative.

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