Sri Dinesh Poojary Vs Sri Venkappa Gowda

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.08.2016 PASSED IN RA NO.6/2013 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND A.C.J.M., PUTTUR, ALLOWING THE APPEAL AND REVERSING THE JUDGMENT AND DECREE DATED 10.12.2012 PASSED IN OS NO.20/2007 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, PUTTUR.

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NC: 2025:KHC:8949 RSA No. 2011 of 2016

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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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 31.08.2016 passed in R.A.No.6/2013 by the learned Principal Senior Civil Judge and ACJM, Puttur.

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

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

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The plaintiff filed a suit against the defendant for permanent injunction. It is the case of the plaintiff that, the plaintiff is the absolute owner in possession and enjoyment of the ‘A’ schedule property, and the Government vide proceedings dated 15.05.1997, granted

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the said land to him. The plaintiff enjoyed the plot even before the Government granted. The defendant owns land in a nearby locality but not adjacent to the suit schedule ‘A’ property. The defendant initially urged the plaintiff to sell the suit schedule property in his favour. The plaintiff refused to sell the said suit schedule property in favour of the defendant. The defendant attempted to cut the trees standing on the suit property. The defendant, to increase the pressure, started unnecessary quarrel and caused several threats. The plaintiff requested the defendant not

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to harass the plaintiff. Despite the request made by the plaintiff, the defendant did not heed the request made by the plaintiff. On 09.02.2007, at about 4.00 p.m., the defendant entered the suit schedule property, forcibly and cut the trees standing in the said suit schedule property, to take forcible possession. The plaintiff protected his possession. 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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NC: 2025:KHC:8949 RSA No. 2011 of 2016

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3.1. The defendant filed a written statement denying

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the averments made in the plaint, contending that the plaintiff has not shown the boundaries of the suit schedule ‘A’ property. It is contended that the plaintiff is neither the owner nor in possession and enjoyment of the suit schedule property. It is contended that the land bearing Sy.No.93 measuring 2 acres situated at Kudipady village of Puttur taluk was in possession and enjoyment of the defendant’s father, and he had encroached the Government land and planted 200 cashew trees and 5 jack fruit trees. To protect against cattle trespass, the defendant’s father had put agalu on all the four sides. To enter the said property, the defendant’s father, made 4

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feet wooden gate. The defendant’s father was in possession of the suit schedule ‘A’ property, till his death. After his demise, the defendant came into possession of the suit schedule property which is shown in the ‘X’ schedule written statement property. It is contended that the plaintiff is residing 1 km away from the ‘X’ schedule written statement property. The plaintiff has not filed

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Form No.50. In fact, one Dharnappa Gowda S/o Sankappa Gowda filed Form No.50 regarding the property bearing Sy.No.31. In the said application, plaintiffs name has been written after erasing the name of said Dharnappa. The plaintiff has played fraud before the Darkasth committee. The defendant is in possession and enjoyment of ‘X’ schedule property of the written statement. Further,

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the defendant sought for a counter claim, to restrain the plaintiff from interfering over the ‘X’ schedule of the written statement and prays to dismiss the suit of the plaintiff and decree the counterclaim of the defendant with costs.

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3.2. The plaintiff filed a written statement to the

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counter claim of the defendant. The claim made by the defendant in the counter claim is denied, and prays to dismiss the counter claim of the defendant.

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3.3. The trial Court, based on the aforesaid pleadings, framed the following issues:

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NC: 2025:KHC:8949 RSA No. 2011 of 2016

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�ಾ�ಯು �ಾನು �ಾ�ಾ ಸ��ನ �ಾಂ� �ಾ��ೕ�ಾನುಭವದ�� ಇ�ಾ � ೆ ಎನು�ವ�ದನು� �ಾ�ೕತುಪ"ಸುವ�ೇ ?

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ಪ#��ಾ�ಯು �ಾ�ಯ �ಾ�ಾ ಎ �ೆಡೂ&' ಸ��ನ �ಾಂ� �ಾ��ೕ�ಾನುಭವ(ೆ) ತಂ*ೆ ತಕ�ಾರು -ಾಡು� � ಾ � ೆ ಎನು�ವ�ದನು� �ಾ�ಯು �ಾ�ೕತುಪ"ಸುವ�ೇ?

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ಪ#��ಾ�ಯು �ಾನು �.ತ /ೇ0(ೆಯ ಎ12 �ೆಡೂ&' ಸ��ನ �ಾಂ� �ಾ��ೕ�ಾನುಭವದ�� ಇ�ಾ � ೆ ಎನು�ವ�ದನು� �ಾ�ೕತು ಪ"ಸುವ�ೇ?

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�ಾ�ಯು ಎದುರು �ಾ�ೆಯ�� (ೇ0ದಂತಹ ಪ4/ಾರವನು� /ೊಂದಲು ಅಹ7�ೇ?

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ಏನು "9# ಅಥ�ಾ ಆ�ೇಶ?

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3.4. The plaintiff, to substantiate his case, examined

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himself as PW.1 and marked 3 documents as Exs.P1 to 3.

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On the other hand, the defendant examined himself as DW.1 and marked 19 documents as Exs.D1 to 19. After

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recording the evidence, hearing on both sides and assessing the oral and documentary evidence, the trial

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Court answered issue Nos.1 and 2 in the negative, issue Nos.3 and 4 in the affirmative, issue No.5 answered

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accordingly and issue No.6 as per the final order. The suit of the plaintiff was dismissed with costs, and the counter

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claim of the defendant was allowed with costs. By way of the permanent injunction, the plaintiff was restrained from trespassing into the ‘X’ schedule property.

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3.5. The plaintiff, aggrieved by the judgment and decree dated 10.12.2012 passed in O.S.No.20/2007, preferred an appeal in R.A.No.6/2013 on the file of learned Principal Senior Civil Judge and ACJM, Puttur.

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3.6. The first Appellate Court after hearing the

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learned counsel for the parties, framed the following points for consideration.

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1) Whether the judgment and decree passed by the trial Court is unjust, illegal and calls for any interference by this Appellate Court?

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2) What Order / Decree?

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3.7. The first Appellate Court on re-assessment of

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oral and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order. The

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appeal was allowed, and the judgment and decree passed by the trial Court was set aside and the suit of the plaintiff

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was decreed, and the counterclaim of the defendant

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claimed in the written statement was rejected.

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3.8. The defendant, aggrieved by the judgment and decree passed in R.A.No.6/2013 dated 31.08.2016, filed this regular second appeal.

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Despite the service of notice, the

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respondent/plaintiff remained absent.

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Heard the arguments of the learned counsel for the appellant/defendant.

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Learned counsel for the defendant submits that

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the first Appellate Court has failed to consider the admissions of the PW.1. He admitted in the crossexamination that the defendant is in possession of the ‘X’ schedule of the written statement. He also submits that the plaintiff did not challenge the decree passed, by the trial Court, the counterclaim filed by the defendant was set aside. He also submits that the plaintiff has not disclosed the boundaries of the suit schedule property. Hence, the

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suit property is unidentifiable. The first Appellate Court ought to have confirmed the judgment and decree passed by the trial Court; on the contrary, it has allowed the appeal and set aside the judgment and decree passed by the trial Court. In order to buttress his arguments, he has relied on the judgment of the Co-ordinate bench of this Court in the case of MALLANNA ALIAS APPAIAH VS. SMT.

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MUNINANJAMMA ALIAS NANJAMMA REPORTED IN 2001 (5)

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KAR.L.J. 159 . Hence, on these grounds, prays to allow the appeal.

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This court on 28.01.2020, has admitted the appeal on the following substantial question of law :

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1. Whether the Appellate Court was right in setting aside the counter claim which had been allowed by the trial Court when it was even not subject matter of the appeal and the appeal was only in relation to dismissal of the suit?

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2. Whether the Appellate Court could have decreed the suit in the absence of any boundaries being mentioned in respect of the suit schedule property, more so when the suit was only for injunction?

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8. Substantial question of law No.1 : It is not

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in dispute that the plaintiff filed a suit for permanent injunction against the defendant, claiming that the suit land was granted in favour of the plaintiff by the Government. It is contended that he is in possession of the suit schedule property, and the defendant tried to interfere with the peaceful possession and enjoyment of the suit schedule property. The plaintiff requested the defendant not to interfere with the peaceful possession and enjoyment of the suit schedule property. The plaintiff,

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to substantiate his case, examined himself as PW.1, and reiterated the plaint averments in the examination-inchief. During the cross-examination, PW.1 admits that 20 cents of ‘A’ schedule property is within agalu and also admits that there is agalu to the entire property of the defendant. Further, the plaintiff, in order to prove his case, produced documents, where, Ex.P1 is the Form No.7, Ex.P2 is the RTC extract, and Ex.P3 is the certified copy of the sketch.

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The defendant filed a written statement denying the averments made in the plaint and contended that the ‘X’ schedule of the written statement was granted in favour of the defendant’s father. The defendant’s father was in unauthorized possession of ‘X’ schedule property before the land was granted, and thereafter, the grant was made in favour of the defendant’s father. After his demise, the defendant came in possession of the said suit schedule property, and it is contended that the plaintiff is trying to encroach upon the ‘X’ schedule property, and the defendant has sought the counterclaim for the relief of permanent injunction against the plaintiff.

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The defendant examined himself as DW.1 and, in support of his defense, produced the documents, where Ex.D1 is the certified copy of Form No.50; Ex.D2 is the certified copy of the Form No.50 filed by the plaintiff; Ex.D3 is a certified copy of the order passed in NCRSR49/91-92; Ex.D4 is the certified copy of the sketch

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in NCRSR49/91-92; Exs.D5 to 12 are the assessment receipts; and Exs.D13 to 19 are the tax paid receipts.

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The trial Court, considering the material on record, held that the plaintiff has failed to prove his possession over ‘A’ schedule property and the defendant has proved that the defendant is in possession of the ‘X’ schedule of the written statement. The trial Court dismissed the plaintiff’s suit and allowed the defendant’s counterclaim. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.20/2007, filed an appeal in R.A.No.6/2013, challenging the dismissal of the suit. The first Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court. The defendant, aggrieved by the judgment of the first Appellate Court in R.A.No.6/2013, filed this regular second appeal.

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From the perusal of the judgment and decree passed by the trial Court, in the suit and the counter claim between the same parties, the result of the appeal preferred before the first appellate Court, may conflict with

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the other decree which was not challenged. The plaintiff should have preferred two appeals since the plaintiff has not done that; the judgment and decree passed by the first Appellate Court, in R.A.No.6/2013, is liable to be set aside. The first Appellate Court has committed an error in entertaining a single appeal. The first Appellate Court was not justified in doing so. In view of the law laid down by the Division Bench of the High Court of Himachal Pradesh in the case of RAMESH CHAND VS. OM RAJ AND OTHERS REPORTED IN 2022 SCC ONLINE HP 2094: [(2022) 2 HLJ 1506 IN RSA NO.57/2017] , wherein the Divisional Bench of High Court of Himachal Pradesh held that a single appeal is not maintainable against the decree passed in the suit and a counterclaim. The first Appellate Court committed an error in entertaining a single appeal.

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Admittedly, the plaintiff has filed a suit for the relief of permanent injunction. It is a well-established principle of law that in a suit for bare injunction, the plaintiff is required to prove possession of the suit

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schedule property on the date of the institution of the suit and interference. Admittedly, in the instant case, the plaintiff has failed to prove his possession over the suit schedule property. The trial Court was justified in recording the finding that the plaintiff is not in possession of the ‘A’ schedule property and rightly dismissed the suit filed by the plaintiff. In view of the law laid by the Division Bench of High Court of Himachal Pradesh, in the case of Ramesh Chand (referred supra), I answer the substantial question of law No.1 in the negative.

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Substantial question of law No.2 : The

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plaintiff has contended that the suit schedule property was granted in favour of the plaintiff. However, from the perusal of ‘A’ schedule property, discloses that the plaintiff has mentioned only the survey number and did not mentioned the boundaries of the ‘A’ schedule property. As per Order VII Rule 3 of CPC, the property has to be identified with the boundaries, reads as follows:

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‘Rule 3 of Order VII provides that the subject matter of the suit is an immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by the boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.’

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Admittedly, the plaintiff has not disclosed the boundaries of ‘A’ schedule property in the plaint. The defendant has seriously disputed the boundaries of ‘A’ schedule property. Without considering Order 7 Rule 3 of CPC, the first Appellate Court has committed an error in passing the impugned judgment. Even if the suit is decreed, the suit schedule property is unidentifiable, the judgment and decree passed by the first Appellate Court is only a paper decree and the same cannot be executed. In view of the above discussion, I answer the substantial question of law No.2 in the negative.

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