K Ravi Thammaiah Vs Neelamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 09.07.2018 PASSED IN R.A.NO.20/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 22.02.2011 PASSED IN O.S.NO.130/2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, MADIKERI.

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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 MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This Regular Second Appeal is directed against the judgment and decree dated 09.07.2018 passed in R.A. No.20/2011 on the file of the Senior Civil Judge, Madikeri, (‘First Appellate Court’) confirming the judgment and decree dated 22.02.2011 passed in O.S. No.130/2008, on the file of the Additional Civil Judge, Madikeri (‘Trial Court’). By the said judgment and decree, the Trial Court decreed the suit and granted permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property, bearing Survey No.54/3, measuring 1.25 acres out of 1.56 acres situated at K. Badaga Village, Madikeri Taluk, Kodagu District (herein after referred to as ‘suit schedule property’).

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Brief facts:

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The original plaintiff-late M. B. Aiyappa, instituted

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suit O.S. No.130/2008, seeking permanent injunction against

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the defendants, restraining them from interfering with his peaceful possession over the suit schedule property. The case of the plaintiff is that he purchased 1.56 acres of land in Survey No.54/3 under a registered sale deed dated 23.12.1981 executed by Dr. B. T. Premnath Punja. After purchase, the revenue entries were mutated in his name and he had been paying the land revenue regularly. According to the plaintiff, the said vendor had encroached 31 cents of land and therefore, the plaintiff had filed O.S. No.19/2007 for recovery of possession, which came to be dismissed. Against the said judgment, the plaintiff preferred R.A. No.76/2007, which was pending at the relevant point of time.

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It is further stated that the present defendants, who were strangers to the property, attempted to interfere with the possession of the plaintiff on 16.08.2008 and 17.08.2008, by attempting to remove the barbed wire fence around the suit schedule property and by threatening the plaintiff. Hence, the plaintiff filed the present suit for permanent injunction.

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Upon service of notice, the defendants appeared

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and filed their written statement, inter alia denying the plaint averments. The defendants admitted that the plaintiff had purchased 1.56 acres of land in Survey No.54/3 from Dr. B.T. Premnath Punja under a registered sale deed dated 23.12.1981, but contended that the said property is situated at Hebbattageri Village and not in K. Badaga Village as alleged in the plaint. It is contended that the boundaries described in the suit schedule property do not correspond with the boundaries mentioned in the sale deed and therefore, the plaintiff has wrongly described the suit schedule property. The defendants asserted that the plaintiff has no right, title or lawful possession over the suit schedule property and the revenue records relied upon by the plaintiff do not confer title or possession. According to the defendants, the plaintiff had earlier filed O.S. No.19/2007 against the vendor Dr. B.T. Premnath Punja for recovery of possession of 31 cents of land and that the said suit came to be dismissed. Therefore, the defendants contended that the issue regarding the plaintiff's title and possession had

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already been adjudicated and the present suit is barred by principles of res judicata under Section 11 of CPC. The defendants denied allegation of interference and contended that the plaintiff has suppressed material facts and sought for dismissal of the suit.

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The Trial Court, based on the pleadings of the

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parties, framed issues regarding possession of the plaintiff and interference by the defendants.

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In order to establish their case, the plaintiff examined himself as PW.1, examined two witnesses as PW.2 and PW.3 and documents were marked at Exs.P1 to P23. On the other hand, the defendants examined defendant No.3 as DW.1, however did not choose to produce any documentary evidence.

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The Trial Court considering the oral and documentary evidence, decreed the suit and granted permanent injunction restraining the defendants from interfering with the possession of the plaintiff. Aggrieved by

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the judgment of the Trial Court, the defendants preferred the appeal.

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The First Appellate Court being the last factfinding Court re-appreciated the entire oral and documentary evidence and concurred with the judgment and decree of the Trial Court.

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Learned counsel for the appellants contends that the judgment passed by the Courts below are contrary to the material on record and liable to be set aside. It is contended that the property purchased by the plaintiff under the sale deed is situated in Hebbattageri Village, whereas the suit schedule property is described as being situated in K. Badaga Village, thereby creating a serious discrepancy in the identity of the property. It is contended that the plaintiff had earlier filed O.S. No.19/2007 for possession against the true owner, Dr. B. T. Premnath Punja, which came to be dismissed and that the appeal filed there against was also dismissed. Therefore, according to the appellants, the plaintiff cannot

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indirectly seek protection or possession through a suit for injunction.

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This Court has carefully considered the contentions urged and perused the material on record.

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The Trial Court, on appreciation of the evidence on record, found that the plaintiff had established his possession over the suit schedule property. The Court relied upon the RTC extracts standing in the name of the plaintiff and his sons and the registered sale deed-Ex.P3 executed in favour of the plaintiff. The Trial Court further considered the survey sketch (Ex.P10) and village map (Ex.P24), which indicated that the suit schedule property is situated at K. Badaga Village and noted that the defendants have failed to produce any documentary evidence to substantiate their contention that the property is situated at Hebbattageri Village.

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With regard to the interference, the Trial Court held that the oral evidence of PW.2 coupled with the admissions made by DW.1 in cross-examination, established

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that the defendants had attempted to interfere with the possession of the plaintiff. The Trial Court further held that the plea of res judicata was not applicable, since earlier suit O.S. No.19/2007 was between the plaintiff and his vendor and the present suit and present defendants were not parties to the said proceedings and by the judgment and decree decreed the suit.

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The First Appellate Court, being the last factfinding Court, reconsidered and re-appreciated the entire oral and documentary evidence and found that the plaintiff had established his possession through Ex.P1-RTC extracts and Ex.P3-the registered sale deed, which clearly indicated that the property bearing Survey No.54/3 was situated in K. Badaga Village. The First Appellate Court further held that under Section 133 of the Karnataka Land Revenue Act, 1964 the entries in the revenue records carry a presumption of correctness with respect to possession unless rebutted by contrary evidence. The defendants failed to produce any such evidence. Insofar as the plea of res judicata is concerned, the First Appellate Court held that the earlier

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litigation was between the plaintiff and his vendor and therefore, the principle embodied in Section 11 of CPC does not apply.

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In a bare suit for injunction, the primary consideration for the Court is whether the plaintiff has established his lawful possession as on the date of the suit and whether there was interference by the defendants. It is also relevant to note that the plaintiff had earlier instituted O.S. No.19/2007 against his vendor Dr. B. T. Premnath Punja seeking recovery of possession of an alleged encroached portion measuring 31 cents out of Survey No.54/3. The said suit came to be dismissed on the ground that the plaintiff had failed to clearly establish the identity of the encroached portion and its exact location. However, the dismissal of the said suit does not operate against the plaintiff in the present proceedings. The earlier suit was confined to the question of encroachment by the vendor over the portion of land, whereas the present suit is a bare suit for injunction against the defendants, who are third parties interfering with the plaintiff’s possession and moreover,

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importantly, the dismissal of the earlier suit was not on the ground that the plaintiff was not in possession of the suit schedule property, but on the account of failure to establish the specific identity of the encroached extent.

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The documentary evidence produced in the present case, particularly Ex.P1-RTC extracts, Ex.P3registered sale deed dated 23.12.1981, Ex.P10-survey sketch, clearly indicate that the plaintiff is in possession of 1.25 acres out of 1.56 acres in Survey No.54/3 situated at K. Badaga Village. Therefore, the earlier litigation does not defeat the claim of the plaintiff for protection of possession in the present suit. The manner in which the Courts below have assessed the entire oral and documentary evidence, this Court is of the considered view that the concurrent findings of facts recorded based on appreciation of evidence does not suffer from any perversity or illegality warranting any interference by this Court in exercise of jurisdiction under Section 100 CPC. No substantial question of law arises for consideration in the present regular second appeal.

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