Sri. Venkatesh, Vs Smt. Siddagangamma

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 13.03.2023 PASSED IN R.A.NO.18/2020 BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA AND THE JUDGMENT AND DECREE DATED 28.01.2020 PASSED IN O.S.NO.299/2006 BY II ADDITIONAL CIVIL JUDGE AND JMFC, NELAMANGALA.

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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 PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is filed by defendant Nos.1 and 2 challenging the judgment and decree dated 13.03.2023

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passed in R.A.No.18/2020 by the Additional Senior Civil

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Judge and JMFC, Nelamangala (for short, 'the first Appellate Court'), which has affirmed the judgment and decree dated 28.01.2020 passed in O.S.No.299/2006 by II Additional Civil Judge and JMFC, Nelamangala (for short, 'the trial Court').

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Parties to the proceedings shall be referred to as per their status before the trial Court.

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Appellant Nos.1 and 2 are defendant Nos.1 and 2

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before the trial Court; respondent No.1 is the plaintiff; respondent No.2 is defendant No.3 and respondent No.3 is impleaded in the present appeal, who is none other than the subsequent purchaser from respondent No.1-plaintiff.

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Brief facts of the case are as under:

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The plaintiff is the absolute owner of item Nos.1 and

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2 of the suit schedule property bearing Sy.Nos.132/1 and 132/1, totally measuring 1-00 acre situated at Hale Nijagal Village, Sompura Hobli, Nelamangala Taluk. The plaintiff

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stated that the property bearing Sy.No.132/1 totally measuring 7 acres of Hale Nijagal Village originally belongs to one Gangamma, W/o.Late Huchappa. After the death of her husband, Marithimmaiah, who is the brother of Late Huchappa was looking after Gangamma as she was issueless. When such being the case, the said Gangamma bequeathed all her properties including Sy.No.132 to Marithimmaiah under a registered Will dated 03.01.1989. After the death of the said Gangamma, Marithimmaiah became the absolute owner of the said property bearing Sy.No.132/1 measuring total extent of 7-00 acres of Hale Nijagal Village. When things stood thus, the said Marithimmaiah gifted 20-00 guntas of land in Sy.No.132/1

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to his daughter, who is defendant No.3 by way of a gift deed dated 09.08.1995. Thereafter, defendant No.3 sold the property, which she got under the gift deed from her father, to the plaintiff by way of a registered sale deed dated 27.08.1996. The said Marithimmaiah had sold another portion of 0-20 guntas of land in Sy.No.132/1 in

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favour of the plaintiff by way of a registered sale deed dated 17.07.1997.

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4.1 It is stated that after purchase of the land, the said survey number in item Nos.1 and 2 of the suit schedule property was re-numbered as Sy.Nos.132/21 and 132/22 respectively and the RTC extracts in respect of the said item Nos.1 and 2 of the suit schedule property have been changed in the name of the plaintiff. When such being the case, the defendants, who have no manner of right, title or interest over the suit schedule property, started unnecessarily interfering with the peaceful possession and enjoyment of the plaintiff over item Nos.1 and 2 of the suit schedule property. Hence, left with no alternative, the plaintiff filed a suit for permanent injunction against the defendants.

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4.2 Upon summons being served, the defendants

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appeared before the trial Court. Defendant No.1 filed his written statement. However, the other defendants did not

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prefer to file the written statement. Several contentions were taken by defendant No.1 in his written statement including denial of the ownership of the plaintiff over the suit schedule property and that the plaintiff did not get any right, title or interest over the suit schedule property and that Sy.No.132/1 does not exist to the extent mentioned by the plaintiff in the schedule. It is also stated that the plaintiff has filed a false and frivolous suit, despite the fact that Sy.Nos.132/21 and 132/22 are not the property mentioned in the schedule. Accordingly, sought for dismissal of the suit.

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4.3 On the basis of the pleadings and rival

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contentions made by both the parties, the trial Court framed the following issues for consideration:

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"1. Whether the plaintiff proves that she is in peaceful possession and enjoyment of the suit schedule of the suit schedule property?

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2. Whether the plaintiff proves that the interference made by the defendants?

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3. What order or decree?"

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4.4 In order to substantiate the issues and to

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establish the case, the plaintiff examined her Special Power of Attorney Holder as PW.1 and got marked 11 documents as per Exs.P1 to P11 on her behalf. Whereas,

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defendant No.1 examined himself as DW.1 and got marked 07 documents as per Exs.D1 to D7.

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4.5 Based on the materials placed on record, both oral and documentary, the trial Court, after considering all the documents which were placed on record and the arguments put forth by learned counsels for parties, did not find favour with the contentions put forth by learned counsel for defendants with regard to there being no proper description of the suit schedule property and agreed with the contentions put forth by learned counsel

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for plaintiff, so also, the registered sale deeds executed in favour of the plaintiff by the father of defendant Nos.1 and

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3, decreed the suit of the plaintiff with costs, thereby restraining the defendants from interfering with the

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peaceful possession and enjoyment of the plaintiff over the

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suit schedule property.

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4.6 Being aggrieved by the judgment and decree rendered by the trial Court, defendant Nos.1 and 2 by making the plaintiff as respondent No.1 and defendant No.3 as respondent No.2, preferred an appeal before the first Appellate Court in R.A.No.18/2020.

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4.7 The summons were served. It is seen that before the first Appellate Court, respondent No.1-plaintiff contested the matter. However, respondent No.2 though represented did not contest the matter. The first Appellate Court, upon going through the materials placed before the trial Court, both oral and documentary, the judgment and decree rendered by the trial Court and the contentions put forth by learned counsels for parties, framed the following points for consideration:

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"1. Whether the Learned Trial Court was right in holding that plaintiff is in peaceful possession enjoyment over suit schedule property and the defendants are interfering with possession and

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enjoyment of plaintiff over suit schedule properties and decreeing the suit of plaintiff for relief of permanent injunction?

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2. Whether the appellants have made out grounds for additional evidence as provided under order 41 Rule 27 of CPC to mark documents produced along with IA No.II?

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3. Whether the judgment and decree of learned trial court calls interference of this court?

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4. What order or decree?"

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4.8 The first Appellate Court, after reconsideration and re-analysing the entire gamut of materials placed before the trial Court including oral and documentary, the application filed by the appellants before the first Appellate Court with regard to production of additional documents and upon hearing the arguments of learned counsels for parties, re-examination of the whole issue once again, did not find favour with the appellants-defendant Nos.1 and 2, so also, the consideration for production of additional documents before the first Appellate Court and

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accordingly, dismissed the appeal and thereby, confirmed the judgment and decree rendered by the trial Court.

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4.9 Being aggrieved by the said concurrent finding of

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the trial Court as well as the first Appellate Court, defendant Nos.1 and 2 are before this Court questioning the same.

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Learned counsel for appellants has vehemently contended that the judgments and decree rendered by the trial Court and the first Appellate Court are perverse, illegal, arbitrary and contrary to the materials placed on record, both oral and documentary and the first Appellate Court has ignored the application filed for production of additional documents and the materials placed on record. Therefore, the judgments and decree require to be set aside and reversed. He further contended that the trial Court as well as the first Appellate Court have fundamentally committed an error in decreeing the suit without taking into consideration that it was for the plaintiff to establish and prove the case when she has come before the Court rather than relying upon the weakness of the defendants. He further contends that both

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the Courts ought to have dismissed the suit, as there was no proper identification of the suit schedule property. It was pleaded before the trial Court and the first Appellate Court that the plaintiff has not furnished the proper boundaries to the suit schedule, which was not admitted by the defendants and hence, on these grounds itself, the trial Court ought to have dismissed the suit for not furnishing the proper boundaries and measurements, which does not tally with the schedule in the sale deeds relied upon by the plaintiff.

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5.1 It is also vehemently contended by learned counsel for appellants that the plaintiff has not produced any cogent material to show her possession over the suit schedule property. Neither the plaintiff placed any sketch nor identification to prove her possession over the suit schedule property, which she claims to be in possession. Therefore, there is a total lack of materials by the plaintiff to establish her case for grant of relief of permanent injunction and the trial Court and the first Appellate Court

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have mechanically passed the judgment and decree in favour of the plaintiff without there being any proper identification of the suit schedule property.

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5.2 It is also contended by learned counsel for appellants that the appellants have produced the survey records before the first Appellate Court by filing an application under Order XLI Rule 27 and it showed that there existed a pathway in the alleged survey number relied upon by the plaintiff, which itself would bar grant of an order of permanent injunction in favour of the plaintiff. This existence of the pathway has been deliberately suppressed by the plaintiff. Though it is pointed out by the appellants, the same has not been taken note of by both the Courts and the first Appellate Court has rejected the application thereby without taking those documents on record for proper consideration and rendering justice to the appellants-defendants. It is further contended that the

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first Appellate Court also committed an error in not appreciating and allowing the application, taking on record

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the documents placed i.e. the survey records, which

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pointed out the boundaries and the same could have helped the first Appellate Court from deciding the matter, which was erroneously decided by the trial Court.

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5.3 It is further contended that onus is upon the plaintiff to have placed all these materials before the Court to establish and prove to secure an order of permanent injunction with proper identification of the suit schedule property and proper survey records. The trial Court as well as the first Appellate Court have decreed the suit, which is illegal and perverse and the same requires to be reversed and set aside. On these grounds, he seeks to frame substantial questions of law as urged in the appeal memo, contending that the matter requires further consideration to delve upon by framing substantial questions of law, firstly, on the ground that the plaintiff has withheld vital documents and suppressed material facts before the Court; secondly, both the Courts have committed a serious illegality in passing judgment and decree on the

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agricultural land including road/pathway, which was ingress and egress for the villagers of the area and thirdly, the first Appellate Court ought to have allowed the application for production of additional documents i.e. survey records rather than dismissing the same without taking it on record.

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It is the vehement contention of learned counsel for respondent No.3, who is the sole contesting respondent before this Court, that there is no error or illegality committed by the trial Court or the first Appellate Court. He contends that the trial Court has considered all the materials placed on record and on being satisfied with the material including the registered sale deed, mutation register, RTC extract and other documents produced, came to the conclusion that the plaintiff is the absolute owner, in possession and enjoyment of the suit schedule property and accordingly, has rightly decreed the suit in favour of the plaintiff.

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6.1 It is also contended by learned counsel that upon re-appreciation and reconsideration and after re-looking the matter once again, the first Appellate Court did not find favour with the defendants and has rightly held in favour of the plaintiff with regard to the possession of the property and accordingly, confirmed the judgment and decree rendered by the trial Court, which does not call for interference as there is no illegality or perversity committed by both the Courts.

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6.2 It is further contention of learned counsel for respondent No.3 that she has subsequently purchased the property from the plaintiff. Therefore, the judgments and decree rendered by both the Courts do not call for interference, much less, framing any substantial questions of law for further consideration in the matter.

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I have heard learned counsel for appellants and learned counsel for respondent No.3. Respondent Nos.1 and 2 though served, have remained unrepresented.

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It is relevant to mention that respondent No.3 is

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none other than subsequent purchaser of the suit schedule property from the original plaintiff. It is not in dispute that the suit schedule property bearing Sy.No.132/1 measuring an extent of 0-20 guntas was purchased by the plaintiff from defendant No.3 by way of a registered sale deed dated 27.08.1996 and another parcel of land to the same extent of 0-20 in the very same survey number from the father of defendant No.1, Marithimmaiah vide registered sale deed dated 17.07.1997. The revenue records stands in the name of the plaintiff. This aspect of the matter has not been controverted rather accepted by the defendants in their statement and in the evidence adduced. However, what is questioned by the defendants herein is non production of survey sketch and non production of revenue records to prove the possession and title of the plaintiff

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and that the survey number mentioned in the schedule differs from new survey numbers i.e., Sy.Nos.132/21 and 132/22, whereas upon careful perusal of the plaint which

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is read out by the parties, the properties purchased by the plaintiff is clearly described in para-5 of the plaint to the extent mentioned in the suit schedule property and the same is said to be re-numbered as Sy.Nos.132/21 and 132/22.

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In a suit for permanent injunction, what is required to be established by the plaintiff is the ownership or possession over the suit schedule property. It is not in dispute that the suit schedule properties are the vacant sites/vacant lands. The registered sale deeds are produced and marked, so also, the Record of Rights. The other gift deed, which was secured by the vendor of the plaintiff is also produced and marked in the evidence as an exhibit. In a suit for permanent injunction, where it is a vacant land, it is a fundamental principle that possession follows the title. The trial Court and the first Appellate Court have gone on the basic fundamental principles of possession following the title and the same having not been controverted or disputed, have agreed with the

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contentions put forth by learned counsel for plaintiff and

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have decreed the suit in favour of the plaintiff. The contentions which are now taken before this Court with regard to the suit schedule property bearing Sy.No.132/1 measuring 0-20 guntas in two item numbers are not mentioned in Sy.Nos.132/21 and 132/22 has also been delved and deliberated by the first Appellate Court elaborately, as the same was contended by the appellants to be different, which the trial Court has not considered for setting aside the judgment and decree.

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When these aspects which are canvassed herein, have been urged, accepted and adjudicated by the first Appellate Court, the question of further going into those aspects would not arise in this second appeal, as this Court is not sitting in the armchair of an appellate Court. The first Appellate Court has considered the materials that were placed before it including the application filed under Order XLI Rule 27 of CPC for production of additional documents and come to the conclusion as to whether it

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would be relevant to consider those documents for

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deciding the lis on hand.

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As stated by me earlier, in the present suit filed

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for permanent injunction, what is required to be seen is whether the plaintiff has made out and established her possession over the suit schedule property physically or if it is a vacant site, by way of a title to the property. Admittedly, the title of the property is not disputed. What is disputed are only the boundaries and the plaintiff has not furnished certain survey records or the sketch. It is relevant to see that the defendants have not bothered to file a counter claim or dispute the title of the plaintiff or the vendor's title on the suit schedule property. It would not be open for the appellants to insist upon the first Appellate Court to deal with the suit for permanent injunction, as if it were a suit for title. If at all, the defendants were aggrieved by the title that was derived or no proper boundaries furnished or the plaintiff was not the owner, nothing prevented the appellants from filing the

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counter claim or any suit against the plaintiff for relief of declaration. A simple suit for permanent injunction filed by the plaintiff has been explained and elaborated and sufficient documents are placed on record to that effect.

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Both the Courts have agreed and come to the conclusion that the plaintiff has made out a good ground with the registered sale deeds and decreed the suit in favour of the plaintiff.

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Under the circumstances, I do not find any good

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ground or cogent reason to interfere with the well reasoned judgments and decree rendered by both the Courts and the question of framing substantial questions of law would not arise as none exist for framing substantial questions of law, more specifically, the ones urged by the appellants for consideration in the appeal memo, as these aspects have been dealt with by the trial Court and the first Appellate Court in its finding and reasoning.

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