Chelur Grama Panchayath Vs Sri Doddaiah

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.06.2019 PASSED IN RA.No.16/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, GUBBI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.12.2016 PASSED IN O.S.No.161/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, GUBBI.

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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 V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri M.B. Chandrachooda, learned counsel for the appellant. Respondent and counsel for respondent are absent.

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Present appeal came to be admitted on the following substantial question of law:

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“Whether the Courts below were justified in decreeing the suit for perpetual injunction in the absence of declaration relief regarding title when the material evidence available on record raises a cloud of suspicion with regard to title and possession of plaintiff over the suit schedule property?”

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Facts in brief which are utmost necessary for disposal of the present second appeal are as under.

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3.1. A suit came to be filed by the respondent in O.S.No.161/2010 for the relief of permanent injunction in respect of vacant site bearing Khatha No.534/8, old No.480/165, situated at Chelur, Gubbi Taluk, bounded on East by vacant site, West by House of Siddanaik, North by Thippegundi, South by PWD road.

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3.2 Plaintiff claimed ownership over the suit property on the basis of the registered sale deed executed by Smt. Nirmala on 20.01.1997. As on the date of sale of the suit property, Nirmala was the registered khatha holder in respect of the said property.

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3.3. Plaintiff filed number of applications before the Gram Panchayat for transfer of khatha into his name. But, the Gram Panchayat did not care to transfer the khatha in the name of the plaintiff.

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3.4. It is also the allegation of the plaintiff that after the sale deed, plaintiff was put into possession and enjoyment of the suit property. Defendant developed hatredness towards the plaintiff on account of political pressure and refused to change the khatha by contending that suit property site is belonging to the Gram Panchayat, Chelur and attempted to trespass into the suit property and also obstructed the construction of the building in the suit property.

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3.5. The defendant even went to the extent of dispossessing the plaintiff from the suit property. Therefore,

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the plaintiff approached the Court for the relief of permanent injunction restraining the defendant or their henchmen from interfering with the peaceful possession and enjoyment of the suit property.

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Pursuant to the suit summons issued, defendant appeared before the Trial Court and filed detailed written statement denying the claim of the plaintiff including the ownership and possession over the suit property.

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Defendant specifically contended that there is district major road proceeding from Tumakuru to Hagalavadi which passes through Chelur Gramatana limits and towards the west of the said road, vacant place belonging to Chelur Gram Panchayat is situated and towards the northern side there is a vacant place or ‘Kandakapit’. In the said ‘Kandakapit’ the defendant intends to construct ‘Samudhaya Bhavana’ under Suvarna Grama Yojana scheme.

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It is also contended by defendant that vacant place situated towards the south of the said building is under construction and vendor of the plaintiff namely Nirmalamma did not possess the title to the property and in order to grab the

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property belonging to the Gram Panchayat, she created false registered sale deed in favour of the plaintiff and thus the suit is to be dismissed.

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Based on rival controversies of the parties, learned Trial Judge raised following issues:

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Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit?

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Whether the plaintiff further proves that alleged interference by the defendant?

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Whether the plaintiff is entitled for the relief/s as prayed in the suit?

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What order or decree?

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Learned Trial Judge after recording of the evidence

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of the parties took into consideration the oral and documentary evidence on record, decreed the suit of the plaintiff. While so decreeing the suit of the plaintiff, the Trial Court has taken into consideration the letter issued by the defendant - Gram Panchayat which is marked at Ex.P.4.

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Being aggrieved by decreeing the suit by the Trial Court, defendant filed an appeal before the First Appellate Court in R.A.No.16/2017.

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Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and on re-appreciation of the oral and documentary evidence on record, considered the effect of the judgment of the Hon'ble Apex Court in the case of Anathullah Sudhakar vs. P. Buchi Reddy (Dead) by LRs and others , reported in AIR 2008 SC 2033 , dismissed the appeal of the Gram Panchayat - defendant and confirmed the decree of injunction granted in favour of the plaintiff.

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Being further aggrieved by the same, the present second appeal is filed on the following grounds:

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The Courts below have failed to consider that, the plaintiff is not the owner of the suit schedule property and he is not in possession and hence, since, the title of the plaintiff has been denied, there is a cloud upon the title of the plaintiff and hence, the suit for injunction without seeking declaration of title is not maintainable.

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The Courts below have failed to consider that, the vendor of the plaintiff is none other than his brother's wife. She is the permanent resident of Bengaluru, she doesn't own the suit schedule property in her name prior to execution of the sale deed. The sale deed dated 20.01.1997 has been created by the plaintiff in collusion with the Smt.Nirmalamma who happens to be his brother's wife.

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The Courts below have failed to consider that, the plaintiff has spoken to about the title of the vendor through her husband who had purchased the said property under the registered sale deed, however, no such document was placed before the Hon'ble Court to establish the title of the husband of Smt.Nirmalamma.

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The Courts below have failed to consider that, Smt.Nirmalamma owns house property at Chelur. The plaintiff taking advantage of the said katha extract and tax paid receipts, in collusion with Smt. Nirmalamma, had created a sale deed in respect of the property belongs to the defendant with the boundaries in the sale deed. In fact, no document of title except Ex.P1 were placed before the Court to substantiate the title of the plaintiff.

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The Courts below have proceeded on the basis that, there is an admission on the part of DW-1 with regard to the sale deed and possession. In fact, there is no admission whatsoever as relied upon by the Hon'ble Court. In fact, an answer to a question by the counsel to the DW-1 with reference to the sale deed and an answer has been elicited. In fact, the said answer has read into with regard to the entire evidence of DW-1.

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The Courts below have proceeded on the basis the stray admission of DW-1 is helpful to the plaintiff and the admitted facts need not be proved. In fact, throughout in the pleadings and in the evidence, the cross examination of PW-1, the defence set up by the defendant more particularly the title of the plaintiff has 'been denied. And

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hence, the stray admission of DW-1 should not be read as admission in favour of the plaintiff.

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The Courts below have failed to consider that when the title is under cloud, the plaintiff has to establish his title to the suit schedule property without proving his title, mere suit for injunction is not maintainable. However, the Courts below proceeded on the basis the defendant has not set up the title and no document of title has been produced.

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The approach of the Courts below in appreciating the oral and documentary evidence and the finding recorded is perverse and hence, the Judgment and Decree of the Courts below are liable to be set aside.”

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Retreating the grounds urged in the appeal memorandum, Sri M.B. Chandrachooda, learned counsel for the appellant, would contend that the learned Trial judge has not taken into consideration that the alleged possession over the suit property by the plaintiff is without valid title to suit property inasmuch as his vendor namely Nirmalamma herself did not possess any right, title or interest over the suit property to convey the same in favour of the plaintiff and therefore, sought for allowing the appeal.

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He would also contend that admittedly no scrap of paper is placed on record to show that the suit property was earlier to sale was the ancestral property of the husband of

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Nirmalamma. In the absence of any such document and any evidence being placed on record, the Trial Judge concluding that the plaintiff is in lawful possession of the suit property by virtue of Ex.P.1 sale deed alone has resulted in miscarriage of justice and thus sought for allowing the appeal.

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He would also contend that when there is a specific denial as to the title to the suit property, it was bounden duty of the plaintiff to seek for relief of declaration that he is the owner of the suit property and thereafter was entitled to get an order of injunction. Without seeking the relief of declaration, grant of injunction simpliciter has resulted in miscarriage of justice and sought for allowing the appeal.

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Respondent and counsel have remained absent.

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In the light of the arguments put forth on behalf of

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the appellant, this Court perused the material on record meticulously.

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On such perusal of the material on record, especially the substantial question of law raised by this Court at the time of admitting the appeal, what is to be considered by this Court was there a necessity for the plaintiff to seek relief of

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declaration of title to the suit property as is contended on behalf of appellant.

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To answer the said aspect of the matter this Court has considered the probative value of Exs.P1, P2 and P4.

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At an undisputed point of time, especially in the year 1993 the appellant Gram Panchayat has collected taxes from Nirmalamma. There is also an entry that before entering the name of Nirmalamma in respect of the suit property an enquiry has been conducted and based on receipt No.325003 dated 18.03.1993, first time the name of Nirmalamma came to be entered in the revenue records of the Gram Panchayat.

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When they have collected the taxes from Nirmalamma in the year 1993, the Gram Panchayat has made necessary enquiry especially the Revenue Inspector Report as to whether the khatha to be transferred/entered in the name of Nirmalamma. Appellant cannot deny the title of Nirmalamma. From 1993 onwards the taxes are being collected and in the year 1997 Nirmalamma has conveyed the suit property in favour of the plaintiff.

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Therefore, it should not now lie in the mouth of the appellant which has collected the taxes from Nirmalamma that

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suit property is belonging to Gram Panchayat, why they entered her name in their records and collected the taxes thereof is not explained by appellant.

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Crowning all these aspects of the matter a letter was also issued by Gram Panchayat to Upalokayukta–2, Karnataka vide Ex.P.4, based on a complaint received by them, wherein it has been specifically mentioned that in the year 1995-96, the suit property measuring 60 feet X 50 feet was in the name of Nirmalamma, W/o Annayyaswamy who is none other than the vendor of the plaintiff. Ex.P.4 is not denied by appellant.

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It is also found from the record, after due enquiry, in the Gram Panchayat Sabha it has been decided that the suit property is abutting the residential house of Nirmalamma and it is a waste property. Therefore, it should not lie in the mouth of the appellant that the plaintiff should pray for the declaratory relief when he has been put into possession of the suit property by virtue of the registered sale deed.

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