Aralappa and Others vs J. Rajappa

B.V. Nagarathna, J—The defendant in O.S. No. 91/2004, has preferred this second appeal, assailing judgment and decree dated 26/06/2013, passed in R.A. No. 22/2012, by the Addl. Senior Civil Judge, Srirangapatna, confirming the judgment and decree passed in O.S. No. 91/2004 by the Prl. Civil Judge (Jr. Dn.) and JMFC at Srirangpatna.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

The respondents herein filed a suit seeking a decree of permanent injunction in respect of the suit schedule property.

The case of the plaintiff in a nut shell is that he is the absolute owner in possession of the suit schedule property, which was granted to him by Palahally Group Panchayat, pursuant to resolution dated 02/05/1962 and Grant Certificate dated 02/03/1968. At the time of grant, the suit schedule property measured 39'' x 51'', which has been shown in the rough sketch attached to the plaint as "ABCD". The plaintiff thereafter, constructed a residential house having Mangaluru tiled roof to an extent of 21 feet East to West and 51 feet North to South and he kept vacant space measuring East to West 10 feet and North to South 51 feet towards western side of his house, which has been shown in the rough sketch as "AECF", which is the disputed property. It is further averred that Palahally Group Panchayat in the year 1973, once again granted suit property towards Southern side of the property, which measured 30'' x 51'' and Grant Certificate was also issued to that effect.

It is the case of the plaintiff that the defendants had no right, title or interest in respect of the property granted to the plaintiff and more specifically to the portion marked as "AECF" i.e., the vacant space, which is the disputed property. That the defendants were trying to interfere with that property by trying to dig a foundation therein. Plaintiff gave a complaint to the Srirangapatna Police Station and also a petition to the Grama Panchayat. But the said authorities did not take any step and therefore, he was constrained to file a suit, seeking a decree of permanent injunction restraining defendants from interfering with his peaceful possession and enjoyment of the suit schedule property shown as "AECF" in the rough sketch of the plaint.

On receipt of the suit summons and Court notices, the defendants appeared through their respective counsel and filed their written statement denying the plaint allegations. They contended that the first defendant - Aralappa had applied for grant of a vacant site and that Palahally Group Panchayat had granted an extent of 30'' x 24'' under a Grant Certificate dated 18/05/1968. That he had put up Mangaluru tiled roof house and Vapparu (projection) measuring East to West 30 feet and North to South 14 feet towards Northern side of his constructed house, which was shown by letters "WXYZ" in the rough sketch, annexed to the written statement. That the plaintiff, who is the neighbour, in order to knock off the vacant site of the defendant had described his property as the suit schedule property i.e., the disputed property as "AECF" and he had made a false claim by filing the said suit. Therefore, they contended that the plaintiff was not entitled to any relief and sought for dismissal of the suit.

On the basis of the above pleadings, trial Court framed the following points for its consideration:--

"1. Whether the plaintiff proves lawful possession over the suit schedule property?

Whether the plaintiff proves his lawful possession over vacant site measuring East to West 10 feet and North to South 51 feet marked in rough sketch as A.E.C.F. furnished along with plaint?

Whether the plaintiff proves threatened interference of the defendants?

Whether the plaintiff is entitled to Permanent Injunction as sought for?

What order or decree?"

In support of his case, the plaintiff examined himself as P.W. 1 and two other witnesses as P.Ws. 2 and 3. Seven documents were marked as Exs. P.1 to 7. Defendants examined two witnesses and produced five documents, which were marked as Exs. D.1 to 5.

On the basis of the said evidence, suit was dismissed. Plaintiff filed R.A. No. 26/2006 before the Additional Civil Judge (Sr. Dn.), Srirangapatna and on 20/07/2007, the first appellate Court remanded the matter to the trial Court and subsequent to remand, the Court had appointed the Junior Engineer, Public Works Department (P.W. D.) Srirangapatna, as the Court Commissioner and obtained his report. The said report was rejected as "insufficient" by order dated 24/02/2010. Later, by consent of both the counsel, Assistant Executive Engineer, P.W. D. - Sanna Marigowda, was appointed as Court Commissioner, and he was examined as C.W. 1 and his report and other documents were marked as Exs. C.1 to C.8. On considering the said evidence on record, the trial Court answered Issue Nos. 1 to 4 in the affirmative, decreed the suit and directed the defendants to restrain themselves and not to interfere with the peaceful possession and enjoyment of the suit schedule property of the plaintiff.

Being aggrieved by the judgment and decree dated 29/02/2012, the defendants filed R.A. No. 22/2012 before the first appellate Court. On hearing the parties, the first appellate Court formulated the following points for its consideration:--

"(a) Whether the appellants proves that the judgment and decree passed in O.S. 91/2004 on the file of Principal Civil Judge (Jr. Dn.) & JMFC, Srirangapatna, dated 29-02-2012 is perverse, capricious and is not sustainable in law?

(b) What order?"

It answered Point No. 1 in the negative and dismissed the appeal. It is against those judgments and decrees that the defendants have preferred this second appeal.

I have heard learned counsel for the appellant and perused the material on record.

It is contended by the learned counsel for the appellants that the trial Court on remand of the matter, appointed the Court Commissioner to examine the disputed property and also to take into consideration the extent of land granted to the respective parties and submitted a report. But the judgment of the trial Court is solely on the basis of the Commissioner''s Report. The evidence let in by the respective parties have not been taken into consideration. The Commissioner''s Report cannot be considered to be equivalent to evidence let in by the respective parties. At best, it is only an aid to come to a clear conclusion with regard to the controversy involved in the case. The trial Court was therefore, not right in placing strong reliance on the Commissioner''s Report as evidence to hold that the defendants had tried to interfere with the suit schedule property, which belongs to the plaintiff. He also contended that the plaintiff did not prove title to the disputed property and therefore, in the absence of seeking a decree of declaration, the mere relief of injunction sought by the plaintiff was of no avail. Referring to the judgment of the first appellate Court, learned counsel contended that the said judgment was cryptic; that only in Para 16, the first appellate Court has noted the relevant aspects of the case. There is no reasoning given for confirming the judgment of the trial Court and therefore, there has been no proper consideration of the matter by the first appellate Court. He therefore, contended that substantial questions of law would arise in this matter, which would merit a detailed consideration of the same.

I have considered the submissions of the learned counsel for appellant in light of the material on record.

It is noted that plaintiff was granted two parcels of land on 02/03/1968 and subsequently, on 29/01/1973, which fact has not been disputed by the defendants. The plaintiff has stated that by Grant Certificate dated 02/03/1968, he was granted 39'' x 51'' and subsequently, by Grant Certificate of the year 1973, he was once again granted property towards Southern side of the above grant to an extent of 30'' x 51''. It is the case of the plaintiff that the defendants had no right, title or interest in respect of the granted lands and that the disputed property, which is, 10'' x 51'' is within the granted portion. It is also not in dispute that by a Grant Certificate dated 18/05/1968, the first defendant was granted 30'' x 24'' only on which he had also put up a house. Those grants i.e., made to the plaintiff and defendants are adjacent to each other. The contention of the plaintiff is that he did not build his house on the entire extent of land that was granted to him, he had kept an extent of 10'' x 51'' shown as "AECF" in the rough sketch attached to the plaintiff as vacant land and the defendants were trying to dig a foundation on that piece of land, which was on the Western side of his property and Eastern side of the property belonging to the defendants. The trial Court has noted the admissions made by defendant No. 1 in his cross-examination, which can be usefully extracted as follows:--

He further specifically admitted that:

On the basis of the admissions made by defendant No. 1 and what has been stated by the Commissioner in his report, trial Court came to a conclusion that what has been granted to the defendant was only 24'' x 30'', but he had erected a hut beyond those measurements. The trial Court has also noted that the defendants had not disputed the measurements of the granted sites to plaintiff either in their objections or in their cross-examination of C.W. 1 i.e., Commissioner.

It is under these circumstances that the trial Court by placing reliance on the Commissioner''s report, held that there was indeed a vacant portion of site measuring 10 feet East to West and 51 feet North to South on the Western side of the plaintiff''s property, which was shown as "AECF" in the rough sketch, attached to the plaint. That P.Ws. 2 and 3 had also stated that this disputed portion of the property was in the possession of the plaintiff. Exs. P.5 and 6 were the photographs, which were noted by the trial Court to come to the conclusion that the defendant was trying to dig a foundation on the disputed portion. Therefore, trial Court held that the plaintiff had made out a case that he was in possession of the disputed property and that the defendant was trying to interfere with the lawful possession and granted a decree of permanent injunction.

The first appellate Court while re-appreciating the matter at Paragraph 16, has categorically held that D.W. 1 in his cross-examination had admitted that he had constructed a house in East to West 30 feet and North to South 10 feet of his property and that this was exactly, the extent of land that was granted by Palahally Group Panchayat and therefore, there was no other open space or vacant land that was available for the defendants. Further, D.W. 1 had admitted that Palahally Group Panchayat had not issued any separate Katha in respect of his house and vacant space. He had also admitted that towards Eastern side of the house, there was a house of the plaintiff based on the above admissions of D.W. 1, who is none other than defendant No. 1., first appellate Court affirmed the findings of the trial Court and confirmed the judgment and decree of the trial Court. I do not find that there is any infirmity in the judgment of the first appellate Court. In my considered view, no substantial question of law arises in this appeal. Hence, appeal is dismissed.