Basappa vs Basappa and Others

Aravind Kumar, J.

Heard Sri. P. Nataraju, learned counsel appearing for appellant and Sri. P. Mahesha, learned counsel appearing for respondent Nos. 3 (a) and 3(c). Other respondents are served and unrepresented. Records of trial Court has been secured. By consent of learned Advocates appearing for parties, appeal is examined on merits. Parties are referred to as per their rank in the trial Court.

Plaintiff claiming ownership of 30 guntas of land in Sy. No. 113 situated at Hemmaragala Village, Nanjangud Taluk, Mysore District, which is morefully described in plaint schedule, sought for a perpetual injunction against defendants contending inter alia that his father had filed an application for regrant of occupancy rights in respect of two (2) items of land namely, 30 guntas in Sy. No. 113 and 15 guntas in Sy. No. 104, which application came to be registered as LRF Nos. 175 and 173, respectively and pursuant to said claim made, 30 guntas of land in Sy. No. 113 came to be allotted in his favour. It was also contended by the plaintiff that his father had also filed one more application claiming occupancy rights in respect of 35 guntas in Sy. No. 113 and said application filed by his father came to be registered as LRF No. 161, 185/81-82 and contended that Tribunal by common order dated 24.02.1982 regranted land to 34 members, whereunder name of plaintiffs father in respect of land being Sy. No. 113 measuring 35 gutnas also came to be granted in addition to 30 guntas in same land. As such, plaintiff contended that he is in possession and enjoyment of suit property described in the plaint schedule. Hence, he sought for an order of perpetual injunction against defendants contending that they are attempting to interfere with his peaceful possession and enjoyment of suit schedule property.

On service of suit summons, defendants appeared and 3rd defendant filed written statement. It was contended specifically that he had filed an application for regrant of land to an extent of 1 acre in Sy. No. 113 to an extent of 35 guntas and Land Tribunal while considering other applications had also considered the application filed by 3rd defendant and said application filed by 3rd defendant came to be registered as LRF No. 161/81-82 and by common order dated 24.02.1982 granted 35 guntas of land in Sy. No. 113 in favour of 3rd defendant and an extent of 30 guntas of land in favour of plaintiff in same survey number and there was no application filed by plaintiffs father claiming grant of land to an extent of 35 guntas except to the extent of 30 guntas and claim of plaintiff was to an extent of 30 guntas only in Sy. No. 113. It was also contended that plaintiffs father had claimed grant of land in respect of 0.30 guntas in Sy. No. 113 in respect of western portion of land in said survey number and 3rd defendant had claimed grant in respect of central portion of South to North to an extent of 0.35 guntas of land.

On the basis of pleadings of parties, trial Court formulated following issues for its adjudication:

"(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property?

(ii) Whether the plaintiff proves the alleged interference by the defendants?

(iii) Whether the plaintiff is entitled for the relief of permanent injunction?

(iv) What order?"

Both parties got themselves examined, tendered their oral as well as documentary evidence. On appreciation of said evidence, trial Court decreed the suit by judgment and decree dated 28.11.2003.

Defendants being aggrieved by said judgment and decree filed an appeal in R.A. No. 70/2003 before Civil Judge (Sr. Dn.), JMFC, Nanjangud before Lower Appellate Court. An application for tendering additional evidence also came to be filed by appellants seeking for production of application filed by 3rd defendant for regrant of land in respect of Sy. No. 113, which application had been numbered before Land Tribunal as INA/LRF/LT/NI-III/161/81-82. By consent, said document came to be marked as Ex. D-3. Lower Appellate Court on reappreciation of entire evidence and after considering contentions raised by respective learned Advocates appearing for parties, formulated following points for its determination:

"(i) Whether the plaintiff/respondent proves that he is in lawful possession and enjoyment of the suit schedule property on the date of filing the suit and the defendants are interfering in his possession and enjoyment of the same?

(ii) Whether the respondent/plaintiff proves that he is entitled for the relief of permanent injunction?

(iii) Whether appellant/defendant-3 is to be permitted to adduce additional evidence under Or.41 rule 27 CPC and he is to be permitted to produce the certified copy of the application submitted before the Land Tribunal?

(iv) Whether the appellant/defendant-3 proves that the judgment and decree of the trial court are illegal, perverse, unsustainable and interference of this Court is required?"

On reappreciation of entire evidence available on record, Lower Appellate Court found that plaintiff had sought for regrant of land only to an extent of 30 guntas and nothing beyond it and suit property, which he is now claiming to be additional land i.e., 35 guntas (in disguise), was not the property which was granted to him. But on the other hand, evidence tendered by defendant namely, appellant therein, which was the application filed by him before land Tribunal seeking for regrant of land indicated that he had sought for grant of 1 acre of land which is middle portion of entire Sy. No. 113 and as such, having been found on facts that plaintiff was not in possession and enjoyment of said property and land which was granted to him had been acquired by authorities, rejected plaintiffs claim and thereby reversed the finding recorded by trial Court and allowed the appeal filed by 3rd defendant by judgment and decree dated 10.11.2008. Assailing this judgment and decree, plaintiff is contending that there are Substantial Questions of Law involved in this appeal, which requires to be formulated, adjudicated and answered in favour of plaintiff.

It is the contention of Sri. Nataraju, learned counsel appearing for plaintiff that Lower Appellate Court committed a serious error in reversing the finding of fact recorded by trial Court and it ought not to have allowed the interlocutory application filed by 3rd defendant for additional evidence without giving opportunity to the appellant to tender evidence in rebuttal and as such it could not have been marked as Ex. D-3 by Lower Appellate Court and thereby opportunity has been lost to plaintiff and hence, judgment and decree passed by Lower Appellate Court based on appreciation of Ex. D-3 requires to be set aside and judgment and decree passed by trial Court requires to be affirmed. In the alternate, he would submit that matter be remitted back to Lower Appellate Court for reconsideration and appellant herein may be afforded opportunity to file objections to said application filed under Order 41 Rule 27 CPC and also permission be granted to tender evidence in rebuttal.

Per contra, Sri. P. Mahesha, learned counsel appearing for respondent Nos. 3(a) and 3(c) would support the judgment and decree passed by Lower Appellate Court and seeks for dismissal of the appeal contending that finding of fact recorded by Lower Appellate Court is on re-appreciation of facts and there is no infirmity committed by appellate Court and contends even otherwise, this Court at the time of hearing this appeal had ordered for appointment of Court Commissioner to ascertain as to which is the portion, which is said to be in possession of plaintiff and report filed by the Court Commissioner would clearly indicate that plaintiff is not in possession of suit schedule property and as such, when there is a serious dispute with regard to identity of suit schedule property, plaintiff cannot maintain a suit for bare injunction and he ought to have filed suit for declaration of his title also. As such, he contends that there is no infirmity in judgment and decree passed by Lower Appellate Court in reversing the finding of trial Court by dismissing the suit. Hence, he prays for dismissal of this appeal contending there is no question of law involved in this appeal.

At the outset, let me examine as to whether Lower Appellate Court was justified in allowing the application filed by 3rd defendant which was filed by him under Order 41 Rule 27 CPC and whether lower appellate Court was justified in marking said document appended to application, as Ex. D-3.

Records of Lower Appellate Court when perused would clearly indicate that said document which was produced by way of additional evidence by 3rd defendant before Lower Appellate Court, is the certified copy of application filed by 3rd defendant before Deputy Commissioner for Mysore (Religious and Charitable) Inams Abolition Act, 1955 and Rules, 1956. It is a public document. The contention of plaintiff through out as could be seen from the averments made in the plaint is that, apart from plaintiffs father claiming 30 guntas of land in Sy. No. 113, had also filed an application seeking additional 35 guntas of land in said Sy. No. 113. In other words, plaintiffs claim is his father had in all claim 65 guntas of land in Sy. No. 113. Averment made in the plaint in this regard is to the following effect:

"3. Accordingly, the father of the plaintiff xxxxxxxxxxxx 0.15 guntas. Like that the plaintiffs father also gave an application claiming occupancy right in respect of another 0.35 guntas in survey No. 113 and the Land tribunal, Nanjangud registered a case in LRF. No. 161, 185/81-82. After enquiry xxxxxxxxxxxx possession and enjoyment of the above said lands."

(emphasis supplied)

A perusal of said plea put forth by the plaintiff in the plaint would clearly indicate that apart from asserting his ownership as well as possession in respect of 30 guntas of land in Sy. No. 113, plaintiff has also asserted his claim contending that additional 35 guntas of land was also sought by his father for regrant. Trial Court while decreeing the suit noticed that as per Ex. P-1 at Sl. No. 4, 30 guntas of land in Sy. No. 113 was regranted in favour of father of plaintiff. It was also noticed by trial Court that at Sl. No. 12 of said order i.e., Ex. P.1-application No. 161, 185/81-82 had been indicated which was also in respect of Sy. No. 113 and same had been granted in favour of one Sri. Devappa S/o. Javarappa to an extent of 0.35 guntas. It was the specific case of 3rd defendant that land which came to be regranted at Sl. No. 12 was in his favour based on an application filed by him and plaintiffs father had not filed any application at all for grant of 0.35 guntas of land in said survey number and application No. 161, 185/81-82 referred to in Ex. P.1 at Sl. No. 12 relates to application filed by him and on the basis of application filed by 3rd defendant before the Land Tribunal it came to be registered as LRF No. 161/81-82. Application filed by 3rd defendant before the Land Tribunal for grant of land in Sy. No. 113 was not produced. Hence, he produced said document by way of additional evidence to clear the doubt with regard to exact claim made by plaintiffs father before Tribunal. Said application came to be allowed and document appended to same was marked as Ex. D-3 by the Lower Appellate Court. A perusal of said document would clearly indicate that said application had been filed by 3rd defendant himself seeking grant of land in Sy. No. 113 to an extent of 1 acre. However, 35 guntas came to be granted. To demonstrate as to what extent was claimed by plaintiffs father, defendant had produced application filed by plaintiffs father as well as endorsement issued to plaintiffs father which came to be marked as Exs. D.1 and D.2 and same indicates that plaintiffs father had claimed 30 guntas only in Sy. No. 113 which was situated on western side and same had been granted. As such, Lower Appellate Court in order to further dig the truth, has proceeded to receive document produced by way of additional evidence and has marked said document as Ex. D-3. This exercise undertaken by Lower Appellate Court is just and proper and there is no infirmity whatsoever committed by it in this regard calling for interference. Hence, contention raised by Sri. Nataraju, learned counsel appearing for plaintiff, in this regard stands rejected.

Now turning my attention back to the merits of the case, it would not detain this Court too long to reject the contention of Sri. Nataraju, learned counsel appearing for plaintiff that plaintiffs father had been granted additional 35 guntas of land in Sy. No. 113. Though burden was on the plaintiff to establish his possession and enjoyment of additional 35 guntas of land which had been granted and it is part of suit schedule property, he did not establish this fact. There being identity crisis with regard to suit schedule property and particularly when 3rd defendant has also put forth his claim in respect of very same survey number i.e., Sy. No. 113 by contending inter alia that he was granted said land by the Land Tribunal by relying very heavily on the order of land Tribunal dated 24.04.1982 Ex. P-1, this Court had appointed a Court Commissioner to visit the suit schedule property and file a report with regard to factual matrix insofar as Sy. No. 113 is concerned.

Taluka Surveyor, who came to be appointed by this Court, has submitted a report which is available on record. Contents of said report is not seriously disputed by the learned counsel appearing for both the parties. There is no objection filed to Court Commissioner''s report. In that view of the matter, said report has been examined by this Court and it is found that in the sketch appended to the Court Commissioner''s report would indicate that entire Sy. No. 113 has been identified by 5 blocks; in the first block, which has been indicated in yellow colour is referred to as suit schedule property i.e., 30 guntas of land which had been claimed by plaintiff''s father and granted by the Land Tribunal by order dated 24.04.1982- Ex. P.1. Disputed land has been indicated in the said sketch in green colour and it has been reported by the Court Commissioner that both parties have been putting forth their claim in respect of said property.

In this background, when respective applications filed by plaintiff''s father and 3rd defendant before the Land Tribunal for regrant of land are examined, it would clearly indicate that what was sought for grant by plaintiffs father in Sy. No. 113 was western portion and portion which was sought for regrant by 3rd defendant was middle portion. In fact, applicants thereunder have stated so in their respective application which have been marked as Exs. D.1 and D.3 respectively. Contents of these documents i.e., Exs. D.1 and D.3 is not disputed by plaintiffs. Sketch which has been appended to the Commissioner''s report would clearly indicate that land which is indicated in green ink is the middle portion of Sy. No. 113 or in other words, it has been noticed that this portion which 3rd defendant is claiming to be in his possession is the one which has also been claimed by plaintiff. It is a vacant land consisting of hut said to be situated partly in the said land. When plaintiff is claiming that apart from claim 30 guntas of land for regrant in Sy. No. 113 by his father, he had also claimed 35 guntas, burden is on him. He has not produced iota of material to show his father had made any other claim apart from claiming 30 guntas. Hence, without going further deep into the matter, it would suffice for this Court to arrive at a conclusion that plaintiff has utterly failed to prove that land indicated in green ink by Court Commissioner in the sketch is the land which has been granted to him by Land Tribunal by order dated 24.04.1982. On the other hand, 3rd defendant has been successful before the Lower Appellate Court to demonstrate as to what was the extent of land which was sought for regrant by him and what was the portion which is sought for regrant by plaintiffs father and having raised said plea in his written statement, he has been able to demonstrate successfully that he is in possession of 0.35 guntas of land in Sy. No. 113 pursuant to land Tribunal''s order Ex. P.1 by producing not only application filed by plaintiff Ex. D.1 but also by producing application filed by himself Ex. D.3 which came to be produced before the Lower Appellate Court by way of additional evidence. In that view of the matter, I am of the considered view that there is no Substantial Question of Law involved in this appeal, which requires to be formulated, adjudicated or answered since all these aspects are questions of fact. Hence, I proceed to pass the following:

JUDGMENT

"(i) Second appeal is hereby dismissed.

(ii) Judgment and decree dated 10.11.2008 passed by Civil Judge (Sr.Dn.) and JMFC, Nanjangud, in R.A. No. 70/2003 reversing the judgment and decree dated 28.11.2003 passed by Prl. Civil Judge (Jr. Dn.), Nanjangud, in O.S. No. 147/2002, stands affirmed.

(iii) Registry to retransmit the records to the jurisdictional Court forthwith.

(iv) No order as to costs."