B. Dyavalingaiah vs Shivarudramma

A.S. Bopanna, J.—The appellant is before this Court assailing the concurrent judgments rendered by the Courts below. The respondent herein instituted the suit in O.S. No. 228/1994 seeking for the relief of permanent injunction.

The case of the plaintiff is that she is the absolute owner in possession and enjoyment of the suit schedule property. Reference is made in the plaint with regard to manner in which such right has been claimed and to indicate that the properties stood in the name of the husband of the plaintiff in the revenue records. The plaintiff therefore contended that she is in possession of the said properties, but the defendant without any manner of right is seeking to interfere with her possession.

The defendant had appeared in the suit, filed the written statement and denied the plaint averments wherein the plaintiff was claiming to be the owner in possession and enjoyment of the suit schedule property. The defendant however contended that he is entitled to the property under the gift deed and also the mortgage deed wherein the defendant had exercised right over the property.

The trial Court on taking note of the rival contentions framed as many as four issues for its consideration. The suit being one for bare injunction, the burden was cast on the plaintiff to prove that she was in possession and enjoyment of the suit properties as on the date of filing the suit and as to whether the defendant was interfering with her possession.

The plaintiff examined her son as P.W. 1 and two witnesses as P.W. 2 and P.W. 3. The documents at Exhs. P1 to P32 were relied upon. The defendant examined three witnesses as D.W. 1 to D.W. 3 and relied upon the documents at Exhs. D1 to D4. The trial Court on analyzing the evidence available on record has arrived at conclusion that the plaintiff is in possession of the property and therefore, on taking note that the defendant is seeking to interfere with the possession, has granted the judgment and decree of injunction on 22.12.2007.

The defendant claiming to be aggrieved was before the Lower Appellate Court. The Lower Appellate Court on re-appreciating the evidence available on record has concurred with the findings rendered by the trial Court. It is against such concurrent findings, the defendant is before this Court in this second appeal.

Learned counsel for the appellant while assailing the judgments rendered by the Courts below would contend that both the Courts below have erred in relying upon the entries in the RTC, more particularly in a circumstance when the Lower Appellate Court has taken note of the manner in which a larger extent of the property has been subsequently indicated in the name of the plaintiff though the documents till 1991 indicated that only an extent of 1 acre 5 guntas was standing in the name of the plaintiff. It is further contended that the Courts below have ignored the documents relied on by the defendant and have wrongly taken note of the documents produced by the plaintiff and therefore such wrong appreciation of the documentary evidence can be considered as the substantial question and the same calls for interference.

The records have been received from the Courts below and as such in the background of the contentions put forth, I have perused the judgment passed by the Lower Appellate Court and the records of the trial Court. At the outset, it is necessary to be noticed that the suit in question is one for bare injunction. The plaintiff, apart from the evidence of P.W. 1 to P.W. 3 has relied on the documents which are essentially the revenue documents which also includes the Krishi Passbook and the notice issued by a Co-operative Bank with regard to the loan that had been advanced. Therefore, if the said documents are kept in view, it would indicate the extent that has been shown against the name of the plaintiff in the RTC and the fact that the plaintiff is in possession and cultivation is established by the documents at Exhs. P31 to P32. Though the defendant relies upon the document at Exhs. D2 and D3 being the Gift Deed and the Mortgage Deed, as rightly observed by the Courts below, in a matter where the possession was to be established, no other document not even the revenue records were produced in that regard by the defendant.

Learned counsel for the appellant would however refer to the document at Ex. D4. A perusal of the same would indicate that the defendant herein had assailed the revenue proceedings and the Assistant Commissioner has remitted the matter to the Tahsildar for reconsideration and to make appropriate entries after verifying all the documents. Therefore, that aspect is yet to receive consideration.

For the present, considering the fact that the suit is one for bare injunction, the documents as relied on by the plaintiff if weighed in the background of the documents produced by the defendant, the Courts below would be justified in coming to the conclusion that the possession is with the plaintiff and the injunction granted is justified.

Certainly if the appellant/defendant has right to any portion of the property which is in the possession of the plaintiff, appropriate relief in accordance with law would have to be sought and any interference cannot be accepted and therefore, the injunction granted is justified.

In that light, when both the Courts below have referred to the documents available on record and a finding of fact is recorded with regard to the possession and injunction is granted, the same would not raise any substantial question of law for consideration.

Accordingly, the appeal being devoid of merit stands disposed of.