A.S Veeraiah vs B. Ninganna

Ram Mohan Reddy

Defendant''s second appeal calling in question concurrent findings of fact over defendant''s interference with the plaintiff''s possession of the suit schedule property and consequential permanent injunction. Respondent instituted O.S. No. 4/2006 before the Civil Judge (Jr. Dn) and JMFC, Yelandur, for permanent injunction arraigning the appellant, as defendant, in respect of land bearing Sy. No. 101 measuring 30.5 guntas in Amble Village, Kasaba Hobli, Yelandur Taluk, on the premise of having purchased the same from one Nanjappa S/o Chikkamadaiahna Mandevaaru on 29.5.1986 under a sale deed duly registered, none other than his grand father, following which is in peaceful possession and enjoyment of the said property. In addition, it was asserted that Nanjappa the vendor having had no male issues took in adoption the plaintiff on 13.1.1997 whereafterwards a partition was effected between them on 15.1.1997 under a registered partition deed, whence the suit schedule property fell to the share of the plaintiff. It was alleged that when the adoptive father interfered with the plaintiff''s peaceful possession and enjoyment of the suit schedule property, due to some misunderstanding, having attempted to cut and remove the standing sugarcane crop, O.S. No. 18/2001 was instituted, whence the plaintiff cut and removed the standing sugarcane crop. That suit was renumbered as O.S. No. 46/2003 and decreed on 18.11.2003. It is further alleged that the defendant, a close relative of the plaintiff''s family filed an application before the Assistant Commissioner, Kollegal, for grant of the suit schedule lands, registered as L.R.F. No. 265/1998-99, under the Karnataka Land Reforms Act claiming to be a tenant under the previous owner, leading to the order dated 19.4.2003 in his favour, which when questioned before the Karnataka Appellate Tribunal, Bangalore, in Appeal No. 777/2003 was set aside. During the interregnum i.e., pendency of the appeal, despite the interim order of status-quo, the Tahsildar is said to have changed the katha of the suit property in the revenue records, on 21.7.2003.

Defendant entered appearance and resisted the suit by filing a written statement denying the allegations and assertions and that O.S. No. 46/2003 was a collusive suit between the plaintiff and his grand father and not being a party therein the decree is not binding on him. Defendant asserted that the suit schedule property was granted by the Assistant Commissioner in a proceeding under the Karnataka Land Reforms Act, which was questioned by the plaintiff, in an appeal, said to be pending. According to the defendant, the suit schedule land belonged to one Jayamma W/o Nanjundaswamy of Nanjanagud and the defendant was cultivating the land ever since 1960 as a tenant on vaara basis and raising paddy crop and paid the landlady''s share upto 1990. Thereafterwards, it is the assertion of the defendant that he raised sugarcane crop and harvested the first crop whence with a malafide intention, the suit was instituted.

The trial Court in the premise of pleadings of parties framed 3 issues, whereafterwards, the plaintiff was examined as P.W.1 and another witness as P.W.2 and marked documents as Exs.P.1 to P.15, while the defendant was examined as D.W.1 and two other witnesses as D.W.2 and D.W.3 and marked documents Exs.D.1 to D.12.

The trial Court having regard to the material on record, the pleadings and the evidence, both oral and documentary, pointedly observed that the defendant had made a statement before the Assistant Commissioner, Kollegal, that the plaintiff was in possession of the suit schedule property and though, the records of rights from 2003 onwards disclose the name of the defendant to be in possession of the suit schedule property pursuant to an entry in the Mutation Register No. 7/2003, nevertheless, in the absence of testimony of the Tahsildar, said to have recorded a spot mahazar and that of the mahazar witnesses, and further that defendant did not establish taking possession of the lands from the plaintiff in a manner known to law, declined to accept the revenue records as evidence of a fact that the defendant was in possession of the suit property as on the date of the suit. The trial Court further observed that the defendant''s claim that the property belonged to one Jayamma W/o Nanjundaswamy of Nanjanagud and was cultivating the land ever since 1960 as a tenant on vaara basis was not established, since there was no material on record. The trial Court having appreciated the evidence declined to accept the plea of the defendant, while it found that the plaintiff''s case to be probable and accordingly, returned findings in the affirmative over the issues to allow the suit by judgment and decree dated 16.6.2009.

The unsuccessful defendant having carried the judgment and decree in R.A. No. 58/2009 before the Senior Civil Judge and CJM, Chamarajanagar, on a reappreciation of the material on record and the evidence, both oral and documentary concurred with the reasons, findings and conclusions arrived at by the trial Court to dismiss the appeal by judgment and decree dated 24.2.2012. Although, learned counsel for the appellant submits that the record of rights from the year 2003 onwards disclose that the appellant is in possession of the suit schedule property and the courts below were not justified in decreeing the suit, I am afraid, is unacceptable. In the teeth of the appellant''s statement before the Assistant Commissioner, Kollegal, that the plaintiff was in possession of the suit schedule property, while the defendant failed to establish having taken possession of the said property from the plaintiff in a manner known to law, the entries in the revenue records for the first time pursuant to the Tahsildar''s order and the mutation entry in M.R. No. 7/2003, in the absence of testimony of the Tahsildar or the attesting witnesses to the mahazar is not proof of the defendant being in possession of the suit schedule property on the date of institution of the suit. The courts below having applied their mind and appreciating the evidence, both oral and documentary, more appropriately the elaborate discussion over the material on record, at paragraph 14 of the judgment of the trial Court, as confirmed by the lower Appellate Court, no substantial question of law arises for decision making. Appeal is accordingly dismissed.