Sri Shivamurtheppa Vs Mallappa @ Malleshappa

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 27.8.2012 PASSED IN R.A.NO.42/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, SORAB, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 8.7.2010 PASSED IN OS.NO.66/2002 ON THE FILE OF CIVIL JUDGE (JR.DN.), SORAB.

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THIS APPEAL, COMING ON FOR FINAL 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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NC: 2025:KHC:42494 RSA No. 192 of 2013

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HC-KAR

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ORAL JUDGMENT

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This regular second appeal is filed by the appellant challenging the judgment and decree dated 27.08.2012 passed in R.A. No.42 of 2010 on the file of the learned Senior Civil Judge and JMFC, Sorab.

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For the sake of convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were the defendants and the respondent was the plaintiff.

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Brief facts leading rise to filing of this appeal are as follows:

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The plaintiff filed a suit for permanent injunction. It is the case of the plaintiff that, the plaintiff is the owner of suit schedule property bearing Survey No.35, Khata No.4 measuring 350 X 60 sq.ft. situated at Kotekoppa Village, Sorab taluk, and he was using the same since the time of his great grandfather, and that in the said land there is a

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Mangalore tiled house, cattle shed, manure pit, and there are fruit bearing trees, and that the defendants being the owners of the adjacent lands are trying to trespass into the suit land by removing the fence. The plaintiff requested the defendants not to remove the fence. The defendants did not give any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit.

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Defendant No.1 filed a written statement and the same was adopted by defendant Nos.2 and 3 by filing a memo. Defendant No.1 denied the plaint averments and contended that the land bearing Survey No.35, measuring 32 acres 37 guntas, was originally belonged to one Badramma and her adopted son Shivalingegowda, and that, they have sold the said land in favour of eight persons jointly under the registered sale deed dated 27.11.1916,

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and that, one Lingappa was one of the said eight persons and after his demise, his portion of land measuring 4 acres 20 guntas fell to the share of his son Erappa, and after the demise of Erappa, defendant No.1 inherited the same and he is in possession and enjoyment of the same, and defendant’s father-Erappa had constructed two houses in the said portion of land and he allowed the father of the plaintiff, namely Giriappa, to occupy the house and that the plaintiff has no right, title and interest in the suit land.

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Defendant No.1 has withdrawn the said permission given to the plaintiff's father and requested the plaintiff to vacate and hand over the vacant possession of the suit schedule property and sought for a counter-claim of possession of the suit schedule property.

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

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"1. �ಾ�ಾ �ೆಡೂ�� ಆ��ಯ ತನ� �ಾ��ೕ�ಾನುಭವವನು� �ಾ� ಪ��ಾ�ೆ �ಾ��ಾ � ೆ ೕ?

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�ಾ�ೆಯ!" #ೇ$ರುವಂ'ೆ �ಾ�ಾ �ೆಡೂ�� ಆ��ಯ �ಾ�ಯ �ಾ��ೕ�ಾನುಭವ(ೆ) ಪ*+�ಾ�ಗಳ. ಅ�0-ಆತಂಕ ಪ�ಸು+�ರುವ��ಾ3 �ಾ� ಪ��ಾ�ೆ �ಾ��ಾ � ೆ ೕ?

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!4ತ #ೇ$(ೆಯ �ೆಡೂ��ನ!" 'ೋ5�ರುವ ಆ��6ೆ 1�ೇ ಪ*+�ಾ� �ಾ!ೕಕ�ಾ3ದು� �ಾ� ಈ ಆ��ಯ!" �ೇ ಪ*+�ಾ�ಯ ಅನುಮ+ಯ :ೕ�ೆ6ೆ �ಾಸ;�ಾ � ೆಂದು 1�ೇ ಪ*+�ಾ� ಪ��ಾ�ೆ �ಾ��ಾ � ೆ ೕ?

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!4ತ #ೇ$(ೆಯ!"ಯ �ೆಡೂ�� ಆ��ಯ!" �ಾ�6ೆ (ೊ<=ರುವ ಅನುಮ+ಯನು� ಪ*+�ಾ� >ಂ�ೆ ಪ?ೆ�ದು� !4ತ #ೇ$(ೆಯ �ೆಡೂ��ನ!" 'ೋ5�ರುವ ಆ��ಯ �ಾ��ೕ�ಾನುಭವವನು� ಪ*+�ಾ�6ೆ (ೊಡುವ�ದ(ೆ) �ಾ� ಬದ � ೇ?

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�ಾ�ೆಯ!" (ೋ5ರುವ Aಾಯಂ ಪ*+ಬಂಧ(ಾCೆ ಆ�ೇಶ(ೆ) �ಾ� ಆಹG�ೇ?

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ಪ*+�ಾ� (ೌಂಟJ KೇL ಮೂಲಕ (ೇ$ರುವ ಪ5#ಾರಗಳನು� #ೊಂದಲು ಆಹG�ೇ?

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ಎನು �O* ಅಥ�ಾ ಆ�ೇಶ?"

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The plaintiff to substantiate his case examined

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himself as PW1, examined two witnesses as PW2 and PW3 and marked 24 documents as Exhibits P1 and

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P24.

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In rebuttal, the defendant examined his power of

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attorney holder as DW1 and marked 32 documents as Exhibits D1 to D32.

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The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2 and 5 in the negative; issue Nos.3, 4 and 6 in the affirmative; issue No.7, as per the final order. The suit of the plaintiff was dismissed and the counterclaim by the defendant was decreed and directed the plaintiff to vacate and hand over the possession of the suit schedule property within two months.

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The plaintiff, aggrieved by the dismissal of suit in O.S. No.66 of 2002 for injunction, filed an appeal in R.A. No.42 of 2010 on the file of the learned Senior Civil Judge and JMFC, Sorab.

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The First Appellate Court after hearing the learned

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counsel for the parties, framed the following points

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for consideration:

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"1. 1�ೇ ಪ*+�ಾ� ಅವನು �ಾ�ಾ ಅನುಸೂQ ಸ�+�ನ �ಾ!ೕಕ ಎಂದು �ಾRೕತು �ಾ��ಾ � ೆ ೕ?

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1�ೇ ಪ*+�ಾ�ಯ ಅನುಮ+ :ೕ�ೆ6ೆ �ಾ�ಾ ಅನುಸೂQ ಸ�+�ನ SೈO 60 ಇಂಟು 60 ಅ�ಯನು� ಪ*+�ಾದ ಪತ*ದ!" #ೇ$ದಂ'ೆ �ಾ�6ೆ (ೊ<=ರುವ��ಾ3 �ಾRೕತು �ಾ��ಾ � ೆ ೕ?

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�ಾ� �ಾ�ೆ ಹೂ��ಾ6ೆ �ಾ�ಾ ಅನುಸೂQ ಸ�+�ನ!" ಅವನು #ೇ$ರುವ 350 ಇಂಟು 60 ಅ� ;��ೕಣGದ �ಾ��ೕನದ!" ಇದ� ಎಂದು �ಾRೕತು �ಾ��ಾ � ೆ ೕ?

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ಅ� ;WಾರXೆ �ಾ�ಯಲಯದ +ೕಪ�G ಮತುG ಆCಾY�ಯನು� ರದು� ಪ�ಸುವ ಅಥ�ಾ �ಾಪG�ಸುವ ಆವಶ�ಕ'ೆ ಇ�ೆ ೕ?

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Zಾವ ಆ�ೇಶ?"

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The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and

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2 in the negative; point No.3, partly in the affirmative; point No.4 in the affirmative; and point No.5 as per the final order; the appeal was allowed

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and the judgment and decree dated 08.07.2010 passed in O.S. No.66 of 2002 was set aside and the suit of the plaintiff was decreed vide the judgment dated 27.08.2012.

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Heard the learned counsel for the defendants and learned counsel for the plaintiff.

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Learned counsel for the defendants admits that the plaintiff has filed a suit for perpetual injunction and the defendants have sought for a counter-claim of possession. The Trial Court dismissed the suit for perpetual injunction and decreed the counter-claim of the defendants. The plaintiff did not challenge the decree of counter claim for possession. He has only challenged the dismissal of suit for perpetual injunction.

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Admittedly, the plaintiff has no right, title or interest to continue in the possession of the suit schedule property and the defendants have tried to recover

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the possession of the suit schedule property by due

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process of law. The said aspect was not properly considered by the First Appellate Court and committed an error in passing the impugned judgment. He has placed a reliance on the judgment of this Court in the case of Mallanna Alias Appaiah vs Smt. Muninanjamma Alias Nanjamma

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reported in (2001) 5 Kant LJ 159. He submits that the impugned judgment passed by the First Appellate Court is perverse and arbitrary. Accordingly, he prays to allow the appeal.

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Per contra , learned counsel for the plaintiff supported

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the impugned judgment and he submitted that the plaintiff is in peaceful possession and enjoyment over the suit schedule property and the defendants tried to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The First Appellate Court has rightly decreed the suit of the plaintiff. The impugned

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judgment passed by the First Appellate Court is just

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and proper and do not call for any interference at the hands of this Court. Accordingly, prays to dismiss the appeal.

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This Court, vide order dated, 27.01.2020 framed the following substantial question of law:

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"Whether the First Appellate Court was justified in reversing the judgment and decree of the Trial Court, which was filed for perpetual injunction, unmindful of the cloud on title of the plaintiff in respect of the suit schedule property."

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Regarding the Substantial Question of law:

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It is the case of the plaintiff that, the plaintiff is the owner of suit schedule property and he and his predecessors were/are in possession and using the same since the time of his great-grandfather, and that in the said land, there is a Mangalore tiled house, cattle shed, manure pit, and there are fruit bearing trees, and that the defendants being the

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owners of the adjacent lands are trying to trespass into the suit land by removing the fence.

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The plaintiff, to substantiate his case, examined himself as PW1 and he reiterated the plaint averments in the examination-in-chief.

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During cross examination of PW1, it was suggested that the plaintiff is in permissive possession of the suit schedule property, but the said suggestion was denied. It is further denied that he has no share in the property bearing suit survey Nos.35/2A and 35/2B. However, he admitted that he has not produced any records to establish his title over the said properties. Further, he admits that the plaintiff has not produced any registered documents to prove his and his father's ownership over the suit schedule property.

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Further, to establish his ownership, the plaintiff examined two more witnesses as PW2 and PW3, who

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have deposed that the suit property is the ancestral

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property of the plaintiff.

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The plaintiff, to prove his case, produced the documents:

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Exhibits P1, P2 and Ex.P18 are the certified copies of the demand register extracts, which disclose the name of the plaintiff's mother as the owner of the suit property.

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Exhibits P3 to P9 and P19 are the Tax receipts.

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Exhibits P10 to 13 are the postal acknowledgements.

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Exhibits P14 to P16 are the RTC extracts;

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Exhibit P17 is the Map;

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Exhibits P20 to 21 and P23 to P24 are the police acknowledgements;

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Exhibit P22 is the complaint copy, lodged by the plaintiff.

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In rebuttal, the defendants examined the general

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power of attorney holder of defendant No.1 as DW1, who has reiterated the written statement averments, denying the plaint averments, in his examination-inchief.

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Further, the defendants to prove their case, produced the documents:

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Exhibit D1 is the power of attorney, dated 05.10.2009 by defendant No.1 in favour of DW1;

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Exhibit D2 to D10 are nine RTC extracts of Sy.No.35;

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Exhibit D11 is the certified copy of the registered sale deed dated 27.11.1916;

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Exhibit D12 is the certified copy of the gift deed dated 27.07.1940;

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Exhibit D13 is the sale deed dated 16.11.1942;

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Exhibit D14 is the certified copy of the sale deed dated 25.02.1944;

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Exhibit D15 is the certified copy of the sale deed dated 01.05.1944;

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Exhibit D16 the transfer deed dated 28.10.1953;

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Exhibit D17 is the sale deed dated 16-051977;

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Exhibit D18 is the mutation register extract;

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Exhibits D19 and D20 are Form No.5;

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Exhibits D21 andD22 are Form No.6;

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Exhibits D23 to D29 are the genealogical trees;

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Exhibit D30 is the demand register copy;

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Exhibit D31 is the Aakaarband;

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Exhibits D32 and D33 are the copies of the pakka books.

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A perusal of the entire evidence on record disclose that the plaintiff has not produced any documents to

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establish the nature of possession over the suit schedule property and how his ancestors came in

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possession of the same as owners. Though the suit is for injunction simplicitor, it is concerned only with possession, normally, the issue of title will not be directly and substantially in issue. However, in the present matter, the defendants have raised a serious dispute against the ownership of the plaintiff over the suit schedule property.

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Further, the plaintiff, during the cross examination, has clearly admitted that he has not produced any title deeds to prove how he has become the owner of the suit property. Though the plaintiff has produced Exhibits P1 and P2, they are mere revenue records. It is the well established principle of law that the revenue records will not confer the title of an immoveable property.

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The Hon'ble Apex Court in the case of Anathula

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Sudhakar v. P.Buchi Reddy (D) By LRS. and others, reported in AIR 2008 SC 2033 in paragraph 17(b) has held as follows:

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“17. x x x

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(b) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.”

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Though the plaintiff filed the suit for the permanent injunction, the title of the plaintiff is in serious dispute. Further, the plaintiff except producing the revenue records did not produce any title deeds to establish his ownership over the suit schedule property. When the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is

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also a threat of dispossession, the plaintiff will have

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to sue for declaration of title and the consequential relief of injunction, as laid down by the Hon’ble Apex Court in the case of Anathula Sudhakar v. P.Buchi

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Reddy (D) By LRS. and others (supra). The action for declaration of title is the remedy to remove the cloud on the title to the property and thus, when there is cloud on the title of the plaintiff regarding the suit schedule property, mere suit for injunction is not maintainable.

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Admittedly, the plaintiff is in the possession of the suit property. However, it is the contention of the defendants that the plaintiff and his father were in permissive possession of the suit property, and defendant No.1 is the owner of the suit property. Defendant No.1 has withdrawn the said permission given to the plaintiff and sought for a counter-claim of the possession of the suit schedule property. The plaintiff did not produce any document to show that

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he is the owner in possession of the suit schedule

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property.

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The Trial Court, after the perusal of the entire evidence on record, has dismissed the plaintiff's suit on the ground that the plaintiff did not seek for the relief of declaration of title and decreed the counterclaim of the defendants by recording its finding that the defendants have proved their title over the suit schedule property. Aggrieved by the same, the plaintiff filed an appeal only against the judgment of dismissal of the plaintiff's suit and he did not challenge the decree of the defendants’ counterclaim before the First Appellate Court. The First Appellate Court without considering the said fact, has allowed the appeal.

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The Co-ordinate Bench of this Court in the case of Mallanna Alias Appaiah vs Smt. Muninanjamma

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Alias Nanjamma reported in (2001) 5 KANT LJ 159 held in paragraph 4 as follows:

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“4. It is not in dispute that two cases were filed in the Trial Court and a common judgment was passed with two separate decrees. Since the judgment was common, the aggrieved party was required to file two regular appeals. But, in the instant case, only one appeal was filed before the lower Appellate Court challenging the judgment and decree passed in O.S. No. 130 of 1989. Further, the judgment and decree of the Trial Court in two suits pertain to the same property and between the same parties, the result of the appeal preferred before the lower Appellate Court may conflict with the other decree which was not challenged. Therefore, the appellant should have preferred two appeals. Since that has not been done, by the defendant/respondent the judgment and decree of the lower Appellate Court passed in respect of O.S. No. 542 of 1989 is liable to be set aside.”

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The judgment passed in the above mentioned case is squarely applicable to the case on hand. The First Appellate Court without considering the fact that the plaintiff has not filed an appeal against the decree of

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the counter-claim filed by the defendants, proceeded to pass the impugned judgment, by setting aside the

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judgment and decree of the Trial Court.

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Order VIII Rule 6-A(2) and (4) of the Code of Civil Procedure (CPC) explicitly state that a counter-claim has the same effect as a cross-suit and shall be treated as a plaint.

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Thus, the impugned judgment of the First Appellate Court is against the proposition of law laid down by this Court in the above mentioned case.

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Hence, the judgment passed by the First Appellate Court is liable to be set aside.

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In view of the above discussion, I answer the substantial question of law in the negative.

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In the result, I proceed to pass the following:

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ORDER

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(i) The Regular Second Appeal is allowed ;

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(ii) The impugned judgment and decree dated 27.08.2012 passed in R.A. No.42 of 2010 by the learned Senior Civil Judge and JMFC, Sorab is hereby set aside .

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(iii) The judgment and decree dated 08.07.2010 passed in O.S. No.66 of 2002 by the learned Civil Judge (Jr.Dn.) Sorab is restored .

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(iv) Liberty is reserved to the plaintiff to seek for appropriate relief(s) before the appropriate forum, if law permits.

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(v) Pending interlocutory applications, if any, are disposed of accordingly.

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Sd/(ASHOK S.KINAGI) JUDGE

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Sri Shivamurtheppa v. Mallappa @ Malleshappa

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Sri Shivamurtheppa v. Mallappa @ Malleshappa

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