Kadaraiah Vs Sannachithaiah

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 10.12.2024 PASSED IN RA NO.35/2017 BY THE SENIOR CIVIL JUDGE AND JMFC, SIRA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.08.2017 PASSED IN O.S.NO.100/2008 BY THE ADDITIONAL CIVIL JUDGE AND JMFC, SIRA.

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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 preferred by the defendant challenging the judgment and decree dated 10.12.2024 passed in RA.No.35/2017 by the Senior Civil Judge and JMFC, Sira, confirming the judgment and decree dated 10.08.2017 passed in O.S.No.100/2008 by the Additional Civil Judge

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and JMFC, Sira, where the suit for permanent injunction came to be decreed in favour of the respondents-plaintiffs.

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Though this Court has not yet issued notice to the respondents, Sri Vivek S., learned counsel has filed vakalath on behalf of respondent Nos.2 to 5. The same is accepted.

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

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Brief facts of the case are as under:

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It is the case of the plaintiffs that they are the

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absolute owners in possession and enjoyment of the suit schedule property bearing No.242/1 measuring 1 acre,

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Taroor Village, Kallambella Hobli, Sira Taluk. It is the further case of the plaintiffs that the property belonged to one Siddaiah, S/o.Kadaraiah and the said Siddaiah sold

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the property in favour of the plaintiffs' father by name, Karichittaiah, S/o.Emmigaiah through a registered sale deed dated 25.06.1963.

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4.1 Based on the said sale deed, mutation was

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effected in favour of the plaintiffs' father in MR No.6/196364. It is also the case of the plaintiffs that pursuant to the sale deed, mutation entries are changed in the name of the father of the plaintiffs. It is also pleaded that the plaintiffs are in actual possession and enjoyment of the suit schedule property. Pursuant to the death of the father of the plaintiffs, the plaintiffs are in peaceful possession and enjoyment of the said property and the names of the plaintiffs are mutated in MR.No.5/1992-93. The plaintiffs have been paying tax to the concerned authorities and they are growing crops every year without any interference. It is the case of the plaintiffs that the defendant, who has no right, title or interest over the suit schedule property is interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Hence, they filed a suit for permanent injunction against the defendants.

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4.2 Upon summons being issued in the suit to the defendant, the defendant appeared and filed written statement denying the averments made by the plaintiffs.

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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 plaintiffs prove that they are in peaceful possession and enjoyment of the suit property?

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2. Whether the plaintiffs prove that the defendants are causing interference to the peaceful possession and enjoyment of the suit scheduled property?

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3. Whether the plaintiffs are entitled for the relief as sought for?

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4. 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, plaintiff No.1 examined himself as PW.1

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and three other witnesses as PWs.2 to 4 and got marked

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29 documents as per Exs.P1 to P29 on their behalf. Whereas, the defendant examined himself as DW.1 and

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also another witness as DW.2 and got marked 26

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documents as per Exs.D1 to D26.

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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, did not find favour with the submissions made and the contentions taken by the defendant. However, the trial Court accepted the version of the plaintiffs with regard to the possession and decreed the suit in favour of the plaintiffs and restrained the defendant from interfering with peaceful possession and enjoyment of the plaintiffs over the suit schedule properties.

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4.6 Being aggrieved by the impugned judgment and

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decree of the trial Court, the defendant preferred an appeal before the first Appellate Court in R.A.No.35/2017.

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4.7 The respondents therein i.e. the plaintiffs appeared before the Court and contested the matter and the first Appellate Court, after reconsideration of the entire

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materials, both oral and documentary and re-analysing all

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the gamut of materials placed including the impugned judgment and decree passed by the trial Court, formulated the following points for consideration:

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"1. Whether the Appellants proves the alleged interference as set out in the appeal memorandum?

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2. Whether the judgment and decree passed by the trial Court is capricious, perverse and illegal?

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3. Whether the judgment and decree of the trial Court needs interference?

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4. To what relief and decree the parties are entitled to?"

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4.8 Upon re-analysation and re-consideration of the entire materials on record, the first Appellate Court did not find favour with the appellant-defendant and thereby dismissed the appeal and confirmed the judgment and decree passed by the trial Court in O.S.No.100/2008.

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4.9 Aggrieved by the concurrent finding of both the trial Court as well as the first Appellate Court, the defendant is before this Court in this second appeal.

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It is the vehement contention of learned counsel

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for the appellant-defendant that the judgment and decree rendered by the trial Court as well as the confirmation of the same by the first Appellate Court is perverse, illegal, arbitrary and contrary to the materials placed on record. It is contended by learned counsel that the respondentsplaintiffs are not at all in possession and enjoyment of the suit schedule property. He contends that in fact, they are in possession and enjoyment of Sy.No.241 and not in Sy.No.242/1. Learned counsel for appellant contends that the trial Court and the first Appellate Court have conveniently ignored Ex.D26-survey report submitted and

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placed before both the Courts, wherein it was admitted that the plaintiffs are in possession of Sy.No.241 and not in Sy.No.242/1. He contends that the respondentsplaintiffs have not challenged Ex.D26-survey report and in

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the guise of the sale deed, they have now encroached the property bearing Sy.No.241.

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5.1 It is also the contention of learned counsel for

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appellant-defendant that the respondents-plaintiffs have not produced any documents to show that they are in possession of Sy.No.241. No revenue records are placed. Therefore, the suit having been decreed in favour of the plaintiffs and the same confirmed by the first Appellate Court is contrary to the statement and the document produced by the defendant at Ex.D26. Learned counsel further contends that the trial Court and the first Appellate Court have not considered these aspects as to how the plaintiffs are now squatting in two properties when it is not the case of the plaintiffs that they are the owners of both

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the properties by any lawful means. Therefore, learned counsel seeks interference of this Court and contends that there is substantial question of law that requires to be framed for consideration in this appeal. Hence, he seeks to

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allow this appeal. Consequently, to frame the substantial questions of law urged in the appeal memo.

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Though this Court is not inclined to issue notice to

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the respondents, Sri Vivek S., learned counsel has voluntarily appeared on behalf of respondent Nos.2 to 5. However, his contentions are taken on record, whereby learned counsel for respondent Nos.2 to 5 contends that the suit is filed for permanent injunction in respect of the property bearing Sy.No.242/1 measuring to an extent of 1 acre and the defendant is unnecessarily interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property, which is lawfully acquired by the father of the plaintiffs from the father of the defendant by a registered sale deed. It is also not in dispute with regard to the sale deed executed by the father of the defendant in favour of the father of the plaintiffs.

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6.1 Learned counsel further contends that he has produced sufficient documents to establish the ownership and possession of the plaintiffs, so also, the revenue records in respect of Sy.No.242/1. Therefore, he contends

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that there is no illegality or perversity in the judgments

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and decree rendered by the trial Court and affirmed by the first Appellate Court. Hence, he seeks dismissal of the appeal.

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Having heard learned counsel for appellant and

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learned counsel for respondent Nos.2 to 5, the points that

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arise for consideration in this appeal are -

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"i) Whether the appellant has made out any ground for interference?

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ii) Whether any substantial questions of law are required to be framed to further delve into the matter?

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iii) What order?"

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It is not in dispute that the father of the defendant sold the suit schedule property in favour of the father of the plaintiffs by way of a registered sale deed dated 25.06.1963, which is produced and marked as Ex.P1. The mutation has been changed thereafter in favour of the father of the plaintiffs and subsequently, after the death of the father of the plaintiffs, it is reflected in the names of

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the plaintiffs, so also, taxes are being paid by the plaintiffs. It is the claim of the plaintiffs that they are growing crops in the suit schedule property and they are in peaceful possession and enjoyment of the same.

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In view of the interference by the defendant in the suit schedule property, the suit came to be filed by the plaintiffs restraining the defendant from interfering with their possession and enjoyment of the property. The trial Court appreciating the materials placed on record and taking into consideration the evidence of PWs.1 to 4 and the documents at Exs.P1 to P29 and there being no dispute with regard to the sale deed executed by the father of defendant in favour of father of plaintiffs and possession of the plaintiffs in the suit schedule property, the suit came to be decreed, which is affirmed by the first Appellate Court.

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Upon re-appreciation and re-analysation of the entire materials once again, the contention of the

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appellant now before this Court that the plaintiffs in the guise of being owners of Sy.No.241 have illegally occupied Sy.No.242/1 and are squatting in the said property which does not belong to the plaintiffs, is not the subject matter neither in the suit nor in the appeal.

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It is open for the appellant-defendant to take appropriate action, if he is the owner of the subject matter of the suit pertaining to Sy.No.242/1, measuring to an extent of 1 acres. The same has been dealt with by the trial Court as well as the first Appellate Court. Upon being satisfied with the materials and documents placed, the suit is decreed by the trial Court in favour of plaintiffs and affirmed by the first Appellate Court, which in my opinion, does not call for interference.

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Section 100 of CPC deals with the scope and

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powers of the Appellate Court. It is no more res integra to state that the powers as contemplated under Section 100 CPC are very narrow and limited. This Court, in several

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catena of judgments, has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is perversity shown in the judgments rendered by the trial Court as well as the

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first Appellate Court. Even if this Court were to take a different opinion other than what is already stated by the trial Court and the first Appellate Court, such opinion should generally not been taken or imposed when already two Courts have dealt with the question of fact and question of law that would arise for consideration. However, in the present case on hand, the trial Court and

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the first Appellate Court have dealt with all the questions elaborately and did not find favour with the defendant, who is in appeal before this Court. Therefore, the question of framing of substantial questions of law would depend upon whether there is any illegality or perversity in the judgments rendered by the trial Court as well as the first Appellate Court.

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In view of the aforesaid discussions, when the

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trial Court and the first Appellate Court have elaborately dealt with the factual situation and the legal point based on both oral and documentary evidence and a satisfactory conclusion that the plaintiffs have made out a valid case for grant of permanent injunction. In my opinion, there is no illegality or perversity or arbitrariness in the said judgment and decree passed by the trial Court and affirmation of the same by the first Appellate Court. Accordingly, the appellant herein has not made out any good ground or cogent reason for interference. The appellant herein has also not made out any good ground for this Court to frame any substantial questions of law, as no such questions of law, in my opinion, exist to be framed to decide the case on hand. Nevertheless, it is open for the appellant to initiate appropriate action with

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regard to property bearing Sy.No.242/1, if he is so advised, subject to all limitations.

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