Aajambi and Others vs Mumtaz Begum

S.N. Satyanarayana, J.—Defendants in O.S. No. 461/1999 on the file of the Civil Judge, (Jr.Dn.), Dharwad have come up in this second appeal impugning the divergent finding rendered by the lower appellate Court in R.A. No. 142/2004 by judgment and decree dated 20.10.2008 and consequently setting aside the dismissal of the suit of the plaintiff by the trial Court by judgment and decree dated 14.08.2004.

The brief facts leading to this second appeal are as under:

"The suit in O.S. No. 461/1999 is filed for the relief of declaration that the plaintiff is the owner of suit schedule property namely, property bearing CTS No. 29/M of Bara Imam Galli, Dharwad, which measures in all 240 sq.yards; for possession of the same, which is encroached by the defendants; and also for permanent injunction. Admittedly, the defendants in the said suit, who are appellants herein are owners of property bearing CTS No. 30 situated adjacent to the property of the plaintiff, which property of defendants measures in all 120 sq.yards. The undisputed facts are that, defendants purchased CTS No. 30 in the year 1968 from its erstwhile owner, whereas, the suit schedule property bearing CTS No. 29/M was the absolute property of plaintiff''s family belonging to her parents, brother and sisters, which was gifted by them in her favour on 01.07.1983 under registered gift deed and she was put in possession of the property. The gift deed dated 01.07.1983 would disclose that, at the time of gift, suit property was site with old black tiled roof house thereon. The pleadings and evidence available on record would disclose that subsequently the said house was removed and the property remained vacant space. When the matter stood thus, in the year 1999, a suit for permanent injunction was filed by the plaintiff in O.S. No. 158/1999 seeking to restrain the defendants from making any attempt to encroach into the property bearing CTS No. 29/M belonging to her. It is seen that subsequently, the said suit was withdrawn and more comprehensive suit in O.S. No. 461/1999 was filed by the plaintiff for the aforesaid relief."

In the said suit, after service of summons, defendants entered appearance and took up a contention that the suit is not maintainable for more than one reason. First of all, the plaintiff who had earlier filed a suit for bare injunction should have secured permission from the Court for filing the present suit; the present suit in O.S. No. 461/1999 is not maintainable for non-joinder of necessary parties, because the persons who gifted the suit property to her are not arraigned as parties to the proceedings; the cause of action which is shown in the suit schedule is incorrect; she has got gift deed executed in her favour in the year 1983, therefore, the suit is barred by limitation and also on various other grounds. In addition to that, they also raised counter claim that, since they have been in possession and enjoyment of the suit property adverse to plaintiff''s title and to the knowledge of the plaintiff for more than 12 years, as such, they have perfected their title to the suit property, hence they should be declared as owners of the suit property.

Based on the pleadings, the Court below proceeded to frame the following issues.

"i) Whether the plaintiff proves the gift dated 01.07.1983? and her lawful title over the suit schedule property?

ii) Whether the plaintiff proves the cause of action?

iii) Whether the plaintiff proves that the defendant has encroached in suit schedule property?

iv) Whether the plaintiff is entitled for the relief of possession and permanent injunction?

v) Whether the defendant No. 2 proves that the suit of the plaintiff is hit under XXIII Rule 1 and 2 of CPC?

vi) Whether the defendant No. 2 proves that the suit is barred by limitation?

vii) Whether the defendant No. 2 proves that suit for bare injunction without declaration is not maintainable?

viii) Whether the defendant No. 2 proves that this Court has no pecuniary jurisdiction to try the suit?

ix) Whether the defendant No. 2 is entitled for the relief of declaration as prayed in his counter claim?

x) What order or decree?

Additional issues:

i) Whether the plaintiff proves that she is the owner of suit property and also description of suit property?

ii) Whether the defendant No. 2 is entitled for exemplary cost of Rs. 5,000/-?"

In the said suit plaintiff adduced evidence as P.W.1 and in support of her case, her brother who is one of the executant of Ex. P3-original gift deed of suit property adduced evidence as P.W.2. In support of her claim, she produced in all 12 documents, which are marked as Exs. P1 to P12. Plaintiff''s evidence is in support of her pleadings in the suit. On behalf of the defendants, defendant No. 2 examined himself as D.W.1 and he also examined a neighbour as D.W.2 and another neighbour as D.W.3 and D.W.4 who is an official witness, who was summoned to give evidence regarding value of the suit property. In support of the defence and counter claim, defendants produced and marked in all 22 documents as Exs. D1 to D22.

It is necessary to mention at this juncture that, in the written statement, initially the defendants had taken up contention regarding adverse possession. Subsequently, in the modified written statement, the defendants had taken further defence that, when they purchased CTS No. 30 in the year 1968, they were put in possession of the entire property including CTS No. 29/M, which is the vacant property. Since the defendants were illiterate and ignorant, they believed that the entire property belongs to them and they have been in possession and enjoyment of the same. Though several defences were taken in the written statement as stated above, the same were not substantiated either by producing documentary evidence or by oral evidence tendered by the defendants through D.Ws.1 to 4.

The Court below on appreciation of pleadings and evidence proceeded to answer issue Nos. 1 and 2 regarding execution of the gift deed and lawful title of the plaintiff over the suit schedule property and also cause of action for filing of the suit in favour of the plaintiff. When it comes to issue Nos. 3, 4 and 5 which are dealing with alleged encroachment by the defendants and also right of the plaintiff to seek possession of the same and as well as the legal issue under Order 23 Rule 1 and 2 were answered in the negative against the plaintiff and consequently, suit of the plaintiff is dismissed. While doing so, the counter claim of the defendants in the original suit was upheld. Being aggrieved by the said judgment and decree dated 19.08.2004, the plaintiff preferred an appeal in R.A. No. 142/2004 on the file of the II Additional Civil Judge (Sr.Dn.), Dharwad, wherein, the lower appellate Court after going through the grounds in the appeal framed following points for consideration.

"i) Whether the findings of the trial court that the defendant has proved that they have perfected their title over the suit property by way of adverse possession and partly decreed the suit is proper and correct?

ii) Whether the impugned judgment and decree calls for interference by this court?

iii) Whether the application filed by Hussainsab Rajesab Holi u/o 6 Rule 17 r/w Section 151 of CPC for amendment of written statement is deserves to be allowed?

iv) What order?"

The lower appellate Court after re-appreciating the pleadings, oral and documentary evidence available on record proceeded to answer point Nos. 1 and 2 in favour of the appellant and point No. 3, which was to consider the amendment to the written statement at lower appellate stage was answered in the negative against the defendants in the original suit and allowed the appeal by setting aside the judgment and decree passed in O.S.461/1999 and directed the defendants to deliver vacant possession of the suit property to the plaintiff and consequently set aside the declaration of title of the defendants by adverse possession. Being aggrieved by the divergent findings, the defendants in the original suit who are respondents in regular appeal have come up in this second appeal.

Heard the learned counsel for the appellants regarding admission, perused the judgments of both the Courts below and as well as pleadings, oral and documentary evidence available on record. On going through the same, it is seen that the appellants herein are owners of CTS No. 30 of Bara Imam Galli measuring in all 120 sq.yards, which is not disputed by them either in the pleadings or in the evidence. However, it is seen that though in the original suit while filing written statement, they have taken a defence that they have been in possession of the suit property even prior to the filing of the suit, they do not state exactly from which date they have been in possession of the suit property. On the contrary, they contend that the suit of the plaintiff is not maintainable for the reason that, gift deed was executed in her favour in the year 1983, therefore, the limitation will have to be calculated from that day. While saying so, they contend that, they have been in possession of the property earlier to the gift deed in favour of plaintiff. Though such stand is taken, there is no document available on record to substantiate the same. However, there is a vain attempt to demonstrate through Ex. D14 that temporary sheds, which are constructed on the suit property are accepted as unauthorized construction and subsequently it is regularized. On going through Ex. D14, it does not refer to unauthorized construction on suit property by the defendants and their possession over the suit schedule property. The said document is in respect of CTS No. 30, which is the property of the defendants. The said document also does not establish there are three sheds as contended by them in the suit property. With all this, it is clearly seen that vain attempt is made by the defendants to establish their possession and title to the suit property, which admittedly does not belong to them.

Even according to the written statement, the property bearing CTS No. 29/M is not their property. However, they claim that they were in possession of the same under the belief that property bearing CTS No. 30 includes this vacant space as part of their property, which cannot be believed. Though such defence is taken, no oral or documentary evidence is produced to substantiate the same. The entire pleadings, evidence and material available on record would clearly disclose that there is an attempt on the part of the defendants to illegally encroach into the property of the plaintiff and trying to deprive her title and possession to the suit property and subsequently seek title of the same by way of adverse possession, which is not properly demonstrated before the trial Court. In spite of there being no material on record to substantiate their claim, it is seen that the trial Court has erroneously answered issue Nos. 3 to 5. When the trial Court admitted that the plaintiff is absolute owner of the suit property and that the gift deed which was executed in her favour is admitted while answering issue Nos. 1 and 2 and also additional issue No. 1, nothing prevented the Court from declaring the plaintiff as owner of the suit property. Instead it has committed a serious error in accepting the adverse claim of the defendants in spite of there being no material on record to show that they were in undisturbed possession of the suit property for continuous period of 12 years prior to the filing of the suit.

In the light of the aforesaid discussion it is clearly seen that the lower appellate Court on re-appreciation of pleadings and evidence on record has rightly answered points 1 to 3. The points 1 and 2 which were framed to consider whether the finding of the trial Court regarding adverse possession and whether the judgment and decree of the trial Court calls for interference are rightly answered in favour of the plaintiff by rejecting the counter claim. So far as 3rd point for consideration which was framed pursuant to an application filed seeking amendment to the written statement is concerned, the same is also rightly rejected on the ground that the said application cannot be considered at the stage of appeal before the lower appellate Court. With this it is clearly seen that the lower appellate Court has rectified the error committed by the trial Court while erroneously answering issues 3 to 5. In that view of the matter this Court is of the opinion that the finding of the lower appellate Court on point Nos. 1 and 2 in reversing the erroneous judgement passed by the trial Court in O.S. No. 461/1999 appears to be just and proper in the facts and circumstances of the case. In that view of the matter, this Court find no justifiable grounds are made out to admit this second appeal, inasmuch as no substantial question of law arises for consideration in this second appeal. Accordingly, this second appeal is dismissed at the stage of admission itself.

However, while dismissing this appeal, this Court feel that, mere dismissal of this second appeal would not be an answer for an illegal attempt by the appellants herein in to assert their title to property of its neighbour on the false pretext of seeking declaration of their alleged adverse possession. Therefore, while dismissing this second appeal, this Court feel heavy cost is required to be imposed on the defendants in the original suit, who are appellants herein for depriving the plaintiff of her legitimate right to enjoy the suit schedule property for a period of 15 years and also to undergo ordeal of filing a suit and trying to recover her lawful property from unscrupulous neighbours, who are appellants herein. Accordingly this Court impose a cost of Rs. 60,000/- on the appellants who are defendants in the original suit which they shall pay to the respondent herein who is plaintiff in the original suit. In fact in the original suit there is a prayer for mesne profits. Assuming for a minute, if enquiry is held and mesne profit is ordered, the minimum mesne profit that may be awarded would be anywhere in the range of 5,000/- to 6,000/- rupees per annum. If the same is taken up for past 15 years, it will come to nearly one lakh rupees. Considering the poor status of the appellants this Court has taken a lenient view in imposing cost of Rs. 60,000/- which the respondent herein is entitled to receive the cost by levying execution and also by seeking a charge over the property bearing CTS No. 30 which is situated adjacent to the plaintiff''s property and belonging to the defendants in the original suit, if the same is not paid within 12 weeks from the date of this judgment.