B C Bheema Naika S/O Balya Naika (Late) Vs Nagya Naika S/O Pathya Naika

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.1.2012 PASSED IN R.A.NO.114/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC., AT ARSIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.10.2008 PASSED IN O.S.NO.235/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) AT ARSIKERE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the defendant

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against the judgment and decree dated 30^th January 2012,

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passed in R.A.No.114/2008, on the file of Senior Civil Judge & JMFC, Arasikere, (for short, `first Appellate

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HC-KAR

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Court'), confirming the judgment and decree dated 03.10.2008, passed by the Prl.Civil Judge (Jr.Dn.),

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Arasikere, in O.S.No.235/2005.

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

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The brief facts of the case are that, the plaintiffs have filed the suit in O.S.No.235/2005, for the relief of permanent injunction restraining the defendant from interfering with their peaceful possession and enjoyment of the suit schedule property. It was contended that suit schedule property was part of Survey No.125/12, measuring 1 acre. The plaintiffs confirmed their title to the said suit schedule property by registered Sale Deed dated 02.11.1942, which was totally measuring 4 acres and out of the same, 1 acre 20 guntas was the subject matter of the Will dated 19.03.1998 and 1 acre 20 guntas

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was given to the wife of brother of 1^st plaintiff for maintenance and remaining 1 acre is in possession and enjoyment of the plaintiffs. It is the contention of the

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plaintiffs that the defendant has no right, title or interest

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over the suit property to interfere in their possession. With these reasons, they prayed to grant the relief of permanent injunction, restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property.

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The defendant in the written statement denied the

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plaint averments and also claimed right in respect of Survey No.125/9, which is not the subject matter of the present suit. The allegations in respect of the plaint averments are stated in para-9 and 10 of the written statement. According to the defendant, Survey No.125/12, measuring 1 acre, which is the subject matter of the suit, was given to him by plaintiff No.1 along with another property. It is further stated that defendant had filed suit in O.S.No.143/2005, for the relief of partition and separate possession and that suit was pending as on the date of filing of written statement.

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It is further contended by the defendant that

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plaintiff No.1 had given him the suit schedule property along with 2 acre 10 guntas in Survey No.125/9. The plaintiffs are not at all in possession and enjoyment of the

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said property. With these reasons, defendant prayed to dismiss the suit.

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The trial Court framed the following issues :

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(1) Whether the plaintiffs prove that they are in lawful possession of the suit schedule property as on the date of suit?

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(2) Whether the plaintiffs prove the alleged interference of the defendant?

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(3) Whether the plaintiff is entitled for the relief claimed?

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(4) What order or decree?

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Plaintiffs to prove their case, examined two

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witnesses as PW-1 and PW-2 and got marked documents

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as per Exs.P-1 to P-7. The defendant examined two witnesses as DW-1 and DW-2 and got marked documents as per Exs.D-1 to D-25.

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The learned trial Judge after hearing both parties

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and appreciating the evidence on record, answered issue Nos.1 to 3 in the affirmative and by the judgment and decree dated 03.10.2008, decreed the suit in-part, restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. The trial Court, on appreciating the evidence on record, held that the plaintiffs, through oral and documentary evidence, proved their possession over the suit schedule property. The trial Court further held that the defendant had contended that the 1 acre of land, i.e., the suit-schedule property, had been given to him for his maintenance; however, he was unable to substantiate this contention, and even the suit property was not the subject matter of O.S.No.235/2005. With these reasons, the trial Court decreed the suit.

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The defendant preferred an appeal before the Senior Civil Judge and JMFC, in R.A.No.114/2008. The

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first Appellate Court heard the arguments. While passing

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the judgment, raised the following points for

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determination:

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(1) Whether the trial Court has erred in come to the conclusion that plaintiffs are in possession and enjoyment over the schedule property and there is an interference by the defendant into the possession and enjoyment of plaintiff over the schedule property?

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(2) Whether the impugned judgment and decree is illegal, perverse and not in accordance with law? If so, this court has to interfere into the impugned judgment and decree?

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(3) What Decree or Order?

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The first Appellate Court on re-appreciation of

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the evidence on record, answered above points 1 and 2 in the negative and dismissed the appeal by the judgment and decree dated 30.01.2012. The same is challenged in the present appeal.

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Heard the arguments of learned counsel

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appearing for both side.

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During the pendency of the appeal, the appellant

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has filed application - IA.No.2/2012 under Order LXI Rule 27 read with Section 151 of CPC, seeking permission to lead additional evidence.

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Learned counsel for the appellant during the course of arguments submits that the said application - IA.No.2/2012 filed under Order LXI Rule 27 read with Section 151 of CPC, dated 20.07.2012, is not pressed. His submissions are placed on record. The said application is dismissed as not pressed.

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On going through the impugned judgments passed by the Courts below, both the Courts have held that plaintiffs by oral and documentary evidence proved that they are in lawful possession and enjoyment of the property. It is also observed by the Courts below that even the documents produced by the defendant supports the contention of the plaintiffs, that plaintiffs are in possession and enjoyment of the suit property.

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In Para-9 and 10 of the written statement filed by the defendant, he contends that suit property belonged to plaintiffs and plaintiff No.1 had given the said property to the defendant for his maintenance and thereafter, about 10 years prior to filing of the suit, he has been in possession and enjoyment of the said land. The defendant does not dispute the title of the plaintiffs over the suit property in the written statement. Both the Courts below have considered the evidence and held that although the defendant contended that he had been in possession of the property and that plaintiff No. 1 had put him in possession of the suit property, he failed to produce any material to substantiate his claim, except his self-serving statement. Under these circumstances, there is no substantial question of law involved in this case.

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Learned counsel for the appellant vehemently contended that, plaintiff No.1 had purchased this property on 02.11.1942 and thereafter, he sold 2 acres in favour of one Rudraiah, son of Madenuru Rachappa, as per Sale

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Deed dated 10.06.1943, and thereafter he sold 2 acres 20 guntas in favour of father of the defendant under registered Sale Deed dated 04.01.1947; These facts were suppressed by the plaintiffs; Defendant was unaware of these facts, therefore, he could not plead these facts in the written statement.

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Learned counsel for the defendant further contended that, in so far as pleadings are concerned, this Court, as well as Supreme Court, have time and again held that the mofussil pleadings which are not strictly drafted following formal legal drafting standard. Therefore, it should be read liberally; The documents sought to be produced by the defendant clearly indicates that plaintiffs have no right over the suit property and therefore, prayed to allow the application and permit the appellant to prove his contentions.

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The said contentions of the defendant cannot be considered in a second appeal. Moreover, the facts

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pleaded in the written statement are contrary to the case made out in the arguments before this Court. No where it is mentioned regarding the Sale Deeds executed by the plaintiffs in favour of father of the defendant, as well as Rudraiah in respect of total 4 acres 20 guntas of land in Survey No.125/12. On the contrary, the defendant specifically contended that he has been put in possession of the suit property by plaintiff No.1 for his maintenance, which indicates that he was under the mercy of plaintiff No.1 and all of a sudden, the defendant intended to completely change his pleadings and contend that he is the absolute owner of the suit property by virtue of the Sale deed executed in favour of his father by the plaintiffs. Without any pleading in the written statement, any amount of evidence placed on record will not help to substantiate their contentions.

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In the second Appeal filed under Section 100 of CPC, facts cannot be re-appreciated. Only substantial question of law has to be considered. To what extent a

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pleading has to be considered liberally depends upon the facts and circumstances of each case. The pleadings of the appellant before the trial Court and the argument advanced before this Court are totally different and contradictory. The points which were not raised before the trial Court cannot be raised for the first time during second appeal. Moreover, in a suit for the relief of permanent injunction, the only question to be considered by the Courts is whether the plaintiff is in lawful possession or settled possession of the suit property. In the present case, both the Courts below after appreciating the materials on record, concurrently held that plaintiffs are in lawful possession of the property. Therefore, there is no substantial question of law arises in the present appeal to admit it and consider new facts raised in the second appeal for the first time.

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Learned counsel for the appellant relied on the judgment of Hon'ble Apex Court in the case of Anathula Sudhakar -vs- P.Buchi Reddy (Dead) by L.Rs.

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and others,¹ wherein at Para-17, the Hon'ble Apex Court held that, in case of relief of injunction, there is no need to go into the title of the property. In a suit for injunction, plaintiff has to prove his possession over the property and in this case, plaintiffs were able to prove it. Therefore, the law laid down in the aforesaid judgment is applicable to the present facts of the case.

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In the present case, the Courts below have considered the materials available on record and held that plaintiffs were in possession of the suit property. As already stated above, in the written statement, defendant has not opposed the title of the plaintiffs over the suit schedule property. On the contrary, he says that plaintiff No.1 has given the said property to the defendant for his maintenance.

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In view of the above said discussions, there is no substantial question of law involved in this matter to admit the appeal. Accordingly, I proceed to pass the following:

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1 2008 AIR SCW 2692

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