A. Papanna vs Usha Suresh

A.S. Bopanna, J.—The appellant is before this court assailing the judgment passed in R.A. No. 493/2010. The appellant was the first defendant in O.S. No. 758/206.

For the purpose of convenience and clarity, the parties are referred to in the same rank in which they were arraigned before the Trial Court.

The plaintiff filed the suit in O.S. No. 758/2006 seeking for a judgment and decree of permanent injunction to restraint he defendants from interfering with the peaceful possession and enjoyment of the sun; schedule property by the plaintiff. The defendant on appearance had disputed the very title of the plaintiff and it was contended that the vendor of the plaintiffs vendor did not have right in respect of the property bearing Sy. No. 74/1, a part of which was purchased by the plaintiff. The Trial Court after taking note of the rival contentions had decreed the suit. The defendants were before the Lower Appellate court by filing two separate appeals. Presently, the appellant in R.A. No. 493/2010 alone has assailed the conclusion of the Lower Appellate Court before this court. The Lower Appellate Court on re-appreciating the evidence available, has dismissed the appeal. Against the concurrent judgments rendered by the courts below the first appellant-defendant is before this court.

This court while admitting the appeal on 11.09.2012, has formulated the following substantial question of law:-

"Whether the Courts below are justified in granting an order of injunction in favour of the respondent-plaintiff without appreciating the documents at Exs. D. 2 to D. 8 in its proper perspective?" A perusal of the question as raised by this court would indicate that the consideration that is required to be made by this court is as to whether the courts below had not properly appreciated the documents at Exs. D2 to D8?

The subsequent documents relied on by the defendant i.e., Exs. D2 to D8 would stem from the document at Ex. D1, but it is contended that the entry in Ex. D2 is contrary to the content of Ex. D1. In that light, a perusal of the document at Ex. D2, would indicate that an extent of 1 acre in Sy. No. 74/1 has been indicated against the name of Smt. Puttachennamma who is the vendor of the plaintiffs vendor. The contention as put forth by the defendants is that the extern of 1 acre as shown in Ex. D2 is not justified since the same is not supported by the mutation entry bearing MR No. 10/1993-94 as at Ex. D1. It is in that view the defendants had contended that when under Ex. D1, no share had been assigned to Smt. Puttachennamma in Sy. No. 74/1, she could not have alienated any portion of the property in Sy. No. 74/1.

In so far as the assignment of shares to the family members of Smt. Puttachennamma, the said document at Ex. D1 was the only document that had been relied upon by the defendants to dispute the title of Smt. Puttachennamma. Hence in that circumstance this court while formulating the question of law has referred to the appreciation of documents at Exs. D2 to D8. The consideration of the said documents as contended by the defendants would arise only in the background of the contention that had been put forth by the defendants by placing reliance on the mutation extract bearing MR No. 10/1993-94 at Ex. D1. In so far as that aspect of the matter there is no serious dispute to the fact that as at present the mutation extract in MR. No. 10/1993-94 has been set aside in RRTA No. 86/2006-07 and the matter has been remitted back for reconsideration. Therefore the defence as put forth by the defendants would not be available to them at this juncture.

It is no doubt true that the defendants had disputed the title of the plaintiff and it is in that context, the learned counsel for the appellant has relied on the judgment of the Hon''ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, to contend that when the title is disputed a composite suit for declaration would have to be filed. Having noticed the position that MR. No. 10/1993-94 has been set aside and that being the basis by which the defendants had disputed the title of the plaintiff and as noticed since such contention is not available, at this juncture, it would not be appropriate to hold that the plaintiff was required to file a suit for declaration.

In that light, if the claim as made by the plaintiff to seek injunction against the defendant is taken note, all that was required to be taken into consideration by the Trial Court was, as to who was in possession of the property as on the date of the filing of the suit. In that regard the said issue need not be adverted to in further detail since as noticed from the written statement filed by the first defendant the lawful possession of the plaintiff is not seriously in dispute. The dispute as had been raised therein was with regard to the entitlement of the vendor of the plaintiffs vendor to alienate any portion of Sy. No. 74/1.

As noticed, the said question would not arise for consideration at this juncture and in so far as the aspect relating to possession not only the defendant has admitted that aspect of the matter, the courts below have also referred to the evidence available on record and have thereafter arrived at a conclusion that the injunction as prayed is to be granted. The consideration of the documents at Exs. D2 to D8 would not have altered the situation in any manner in view of the observation made above.

In so far as the shares as has been granted to the parties in the different properties and as to whether Smt. Puttachennamma was entitled to a share in the property bearing Sy. No. 74/1 would not arise for consideration in the instant suit when the document relied on at Ex. D1 is not available in support of the case of the defendants. In that view of the matter the question of law framed by this court is answered against the appellant.

The appeal therefore, being devoid of the merit stands dismissed. No costs.