Andaneppa and Others vs Irappa and Others

B. Veerappa, J.—This is an unsuccessful defendant''s Regular Second Appeal against the judgment and decree dated 29.10.2013 made in R.A. No. 140/2006 on the file of the II Additional Senior Civil Judge, Hubli, confirming the judgment and decree dated 29.9.2006 made in O.S. No. 12/2000 on the file of the Civil Judge (Jr.Dn), Kundagol, decreeing the suit of the plaintiff and restraining defendant from encroaching and constructing ''KD'' wall on the eastern side boundary of the suit schedule property by way of permanent injunction.

The respondents/plaintiffs filed suit in O.S. No. 12/2000 on the file of the Civil Judge (Jr.Dn) and JMFC, Kundagol, seeking for permanent injunction against the defendant, contending that the plaintiffs have purchased the suit schedule property on 24.8.1963 and they are in possession and enjoyment of the same. The defendant has no manner of right, title or interest over the suit schedule property. On 3.2.2000 the defendant tried to dig foundation towards Eastern side of the said property. Therefore, the plaintiff resisted the defendant, but the defendant threatened the plaintiffs and proceeded to construct wall towards Eastern side of the suit schedule property. Therefore, the plaintiffs approached the Kundagol Town Panchayat in this regard but the panchayat did not take any action against the defendant. It is averred that the plaintiffs was paying tax in respect of the said property since 1963 to 1988. After demolition of the shed, the plaintiffs have not paid the tax to the Town Panchayat, Kundagol. The defendant is trying to encroach the Eastern side ''KD'' wall of the suit schedule property and constructed the wall without the permission from the concerned panchayat. Therefore, the plaintiffs filed the present suit.

Defendant filed written statement denying the entire plaint averments and contended that the suit filed by the plaintiffs is not maintainable and plaintiffs have not purchased the suit schedule property in the year 1963 as alleged and plaintiffs are not in actual possession and enjoyment. The defendant further contended that the defendant is in exclusive possession and enjoyment of the suit property and the documents produced by the plaintiffs are not pertaining to the suit schedule property. In fact, the defendant has given the suit schedule property to the plaintiffs'' father on rental basis and thereafter, the defendant has filed a suit before the Civil Judge (Jr.Dn), Kundgol, in O.S. No. 103/65 against the father of the plaintiffs. The said suit came to be decreed in-part and father of the plaintiffs was directed to pay the rents to the defendant. The suit in respect of possession of the suit schedule property was dismissed. In the said suit, the trial court has observed that the present defendant is the owner of the suit schedule property and in the year 1974 the father of the plaintiffs has handed over the suit schedule property in favor of the defendant and defendant is in exclusive possession and enjoyment of the suit schedule property as owner. The name of the plaintiffs have been mutated to the property extract illegally and the defendant has not tried to dig foundation towards the Eastern side wall of the suit schedule property as alleged by the plaintiffs. The wall towards eastern side of the property is situated even prior to the filing of the suit. Therefore, question of construction of compound wall towards eastern side does not arise, etc. Accordingly, prayed for dismissal of the suit.

Based on the pleadings the trial court framed the following issues:

Whether the plaintiffs prove their lawful possession over the suit property?

Whether the plaintiffs prove the alleged interference by the defendant?

Whether suit is maintainable?

Whether plaintiffs entitled for the relief of permanent injunction?

What decree or order?

In order to establish their case, plaintiff No. 1 examined himself as PW.1 and on their behalf examined a witness as PW.2 and marked documents Ex.P.1 to P.19. The defendant examined himself as D.W.1 and also examined two witnesses as D.W.2 and D.W.3 on his behalf and marked documents Ex.D.1 to D.4.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs have proved their lawful possession as on the date of the suit and also the interference by the defendant, and the suit filed by the plaintiffs is maintainable. Therefore, granted injunction as prayed for.

Against the said judgment and decree of the trial court, the appellant/defendant filed the appeal in R.A. No. 140/2006 on the file of the II Addl. Senior Civil Judge, Hubli, who after hearing both the parties by his impugned judgment and decree dismissed the appeal and confirmed the judgment and decree of the trial court.

I have heard the learned Counsel for the appellant.

Sri. Jagadish Patil, learned Counsel for the appellant, has contended that the impugned judgment and decree of the courts below is contrary to law and documentary evidence on record. He also contended that in an earlier suit LC (long cause suit) No. 103/1965 as per Ex.D.1, the defendant was conferred right over the suit property. The said material has not been considered by both the courts below. Therefore, he has sought to set aside the impugned judgment and decree of the courts below.

I have given my thoughtful consideration to the arguments advanced by learned Counsel for the appellant and perused the entire material on record.

The plaintiffs in order to establish their case, has examined plaintiff No. 1 as PW.1 and a witness as PW.2 and marked documents as Ex.P.1 to P.19. In order to disprove the case of the plaintiffs, the defendant examined himself as D.W.1 and examined two witnesses as D.W.2 and D.W.3, and marked documents as Ex.D.1 to D.4. The trial court after considering the entire material on record has recorded a finding that, Ex.P.1 is the sale deed produced by the plaintiffs which has not been challenged by the defendant. Mere denial of title of the plaintiffs itself is not sufficient for the defendant to challenge the title. When the title of the plaintiffs in respect of suit schedule property is not challenged by the defendant, the question of deciding defendant''s title do not arise for consideration. Mere denial by the defendant itself is not a ground to hold that the suit is not maintainable under the law.

The trial court also relied upon the decision in the case of I.N. Mahabaleswara Madyasta Vs. Karnataka Electricity Board, Bangalore and another, , wherein it is held that the suit filed by the plaintiff was one for decree for permanent injunction alone restraining the defendants from disconnecting the electric power supply based on the letter dated 28.09.1986 issued by the KEB. The plaintiffs did not seek the relief of declaration that the defendants have no power to disconnect the power supply and sought to interfere with the enjoyment of the power supply based on the said letter of KEB or for declaration that the defendants have no power either under the Act or regulations to effect disconnection of power supply in respect of the claim made in the said letter. In the absence of seeking declaration depending on facts of the case the plaintiff cannot seek relief of permanent injunction so as to restraining statutory body from performing its functions and duties. In the said decision the plaintiffs sought permanent injunction against the statutory body. Therefore, the rights of the plaintiffs against the statutory body is to be declared and a letter was also issued by the statutory body claiming the due, but in this case defendant is not a statutory body. Therefore, the declaratory relief is not necessary under the facts and circumstances of the case. The trial court also further observed that, if the defendant is claiming the ownership over the suit schedule property, he is at liberty to take action in due course of law. The order of injunction passed against the defendant will not come in the way of claiming ownership over the suit schedule property. The defendant has also taken up a contention in his written statement that the possession of the suit schedule property has been handed over by the father of the plaintiffs in the year 1974, but the said contention has not been supported by any documentary evidence on behalf of the defendant. Therefore, the statement made by the defendant regarding the possession of the suit schedule property is not proved.

P.W.2 who is resident of Kundagol Taluk has deposed in his evidence regarding the possession of the plaintiffs in respect of the suit schedule property. Nothing has been elicited during the course of cross-examination from the mouth of PWs.1 and 2 to disbelieve the case of the plaintiffs. The documentary evidence is sufficient to hold that the plaintiffs are in possession of the suit schedule property. The trial court has further observed that, according to the defendant he is the owner of the suit schedule property in O.S. No. 103/1965. In the year 1974, the father of the plaintiffs has handed over the possession of the suit schedule property to the defendant and since 1974 he is in exclusive possession and enjoyment of the suit schedule property. If the suit schedule property is really handed over to the defendant, the Khatha pertaining to the suit schedule property should have been in the name of the defendant only. But the defendant failed to establish his case by producing the documentary evidence on his behalf. The copy of the plaint in O.S. No. 103/1965 as well as written statement produced and marked as Ex.D.3 and 4, but the said property extracts do not tally with the suit schedule property of this case. Therefore, the trial court opined that in a suit for injunction, the title of the parties in respect of the land and declined to give any findings about the title and also observed that defendant has failed to prove the unlawful conduct of the plaintiffs, which disentitle him to the assistance of the court and strengthen his contention. However, the order of this court do not disentitle the defendant to construct the wall within his property, which is adjacent to the suit schedule property. Therefore, the plaintiffs are entitled for the injunctive relief so far as the suit schedule property is concerned and the suit of the plaintiffs is maintainable. The alleged interference by the defendant is also proved by the plaintiffs. Accordingly, the trial court decreed the suit.

On re-consideration of entire material on record, the lower appellate court held that the finding of fact recorded by the trial court that the plaintiffs have proved their possession as on the date of the suit and defendant has not produced any material to disprove the case of the plaintiffs. Therefore, the lower appellate court dismissed the appeal and confirmed the judgment and decree of the trial court.

Both the courts below based on the evidence of PWs.1 and 2 and DWs.1 and 2 and based on the material documents Ex.P.1 to P.19 and Ex.D.1 to D.4 have categorically recorded a finding of fact that the plaintiffs have proved their lawful possession and the alleged interference by the defendant and the suit filed by the plaintiffs for bare injunction based on the registered document is maintainable and the plaintiffs are entitled for permanent injunction. Accordingly, the suit is decreed.

Such a finding of fact recorded by the courts below is based on the legal cogent evidence recorded by the courts below. Defendant has not made out any prima facie case to interfere with the impugned judgment and decree of the courts below by this Court in exercise of its power under Section 100 of the Code of Civil Procedure. No substantial question of fact involved in the present appeal.

Accordingly, the appeal is dismissed.