Basattappa vs Sushila Malleshappa Anthravalli

B. Veerappa, J.—The unsuccessful 1st defendant is before this Court against the judgment and decree dated 30.06.2012 made in RA No. 60/2007 on the file of the District Judge, Fast Track Court-1, Uttara Kannada, Karwar, confirming the judgment and decree dated 13.07.2007, made in O.S. No. 114/2006, on the file of the Civil Jude (Sr. Dn.), Yellapur, decreeing the suit of the plaintiff against the defendant Nos. 1 and 2, declaring that the plaintiff is the owner of the suit schedule property and granted perpetual injunction against defendants 1 and 2 permanently from interfering or trespassing into the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

Respondent No. 1, who is the plaintiff in the trial court, had filed suit for declaration and perpetual injunction, (originally in O.S. No. 44/1994, subsequently, on transfer to Yellapur, it was renumbered as OS No. 114/2006), contending that defendant No. 1 is the junior uncle of 2nd defendant and they are residing separately. Defendant No. 3 is residing in the house situated towards south of the suit property. The plaintiff has purchased the suit property from one Laxman Fakirapopa Hulgur of Mundgod on 27.10.1984 through registered sale deed and also the rectification deed dated 13.04.1988 and she is in possession of the suit property. Defendants have no manner of right, title and interest or possession over the suit property and the plaintiff has constructed a shop building in the suit property, mentioned in the hand-sketch as ''EFGH'' measuring 16''.3" x 13''.3". ''ABCD'' property mentioned in the sketch is the suit property measuring 50'' X 38''. At a distance of 9? towards west from the shop building, the plaintiff has constructed 33'' long south-north wall having width of 9" in order to protect the western space. The then Mandal Panchayat of Mundgod have assessed the House Nos. 25 and 27 belonging to the plaintiff situated in the suit property. The then Mandal Panchayat, Mundgod have given licence to the plaintiff to construct building on 14.10.1993. In respect of the said building, plan has been prepared and also approved. The plaintiff has paid house tax to the Municipality on 14.10.1993. The matter stood thus, the defendants claimed that they are also having right in the suit property. They are claiming the space situated towards western side of the protection wall after the space mentioned as ''EFGH'' towards south. Claiming the same, defendants, on 20.03.1994 at about 10.00 a.m., came near the suit property and attempted to demolish the protection wall shown in hand-sketch map and also threatened to construct a building in the suit property. Defendants are of peculiar nature persons and it cannot be expected or to say that what are the illegal acts that would be done by the defendants. When the plaintiff questioned about the illegal act of the defendants, they said that they are also having right over the suit property and they asked the plaintiff to approach the Court of law, etc. Therefore, he has filed the suit.

Defendant Nos. 1 and 3 contested the suit and they filed their written statement. Defendant No. 2 was placed ex parte. On 17.01.2006, the plaintiff and defendant No. 3 entered into comprise and they have filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 and subsequently, defendant No. 1 also filed objection to the compromise petition. The trial court, after hearing both parties, passed the order dated 24.06.2006. The objections filed by defendant No. 1 was over-ruled and the compromise between the plaintiff and defendant No. 3 was allowed on 06.07.2007, etc.

Defendant No. 1 filed written statement denied all the plaint averments and contended that the suit filed by the plaintiff is not maintainable. The description of the suit schedule property is not correct and defendant No. 1 further contended that his father had purchased 6 guntas of land in Gavtana Plot No. 55 through the registered document in the year 1953 and the said property is in the possession and enjoyment of defendant No. 1. Out of the property in Plot No. 55 of defendant No. 1, plaintiff has encroached some area and in order to encroach the area in the Gavtana plot belonging to defendant No. 1, she has filed a false suit, etc. Therefore, he prayed for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues and additional issues:

(i) Whether the plaintiff proves the correctness of the plaint hand sketch map and identity of the suit property?

(ii) Whether the plaintiff proves her exclusive title and actual possession over the suit property?

(iii) Whether the plaintiff proves the alleged interference and obstruction caused by defendants in her use and enjoyment of EFGH area out of suit property?

(iv) Whether the defendants 1 and 3 prove that suit disputed area is worth less than Rs. 50,000/- and hence, this Court has no pecuniary jurisdiction to entertain the plaint and to grant reliefs?

(v) Whether the defendants 1 and 3 prove that Court fee paid is not proper and sufficient as no court-fee has been paid on the market value of the suit property?

(vi) Whether the defendants 1 and 3 prove that plaintiff by misrepresentation has obtained permission for construction, showing their area as belonging to her?

(vii) Whether defendant No. 3 proves that suit for the relief of declaration is not maintainable?

(viii) To what reliefs the plaintiff is entitled for?

(ix) What order and decree?

Additional Issues

(i) Whether the plaintiff proves that on 2.3.96 III Defendant encroached the area measuring 1 foot north-south and 10 feet east-west on the northern portion in front of suit property and put up construction illegally?

(ii) Whether plaintiff is entitled to the possession of the portion, as claimed in the plaint?

To establish the plaintiff''s case, she got examined her husband--the power attorney holder, as PW-1 and produced documents as Exs. P-1 to 9. On behalf of defendant Nos. 1 and 2, none is examined and no documents are got marked. Defendant No. 3 was examined as DW-1 and got marked documents as Exs. D-1 to 9. DW-1/Defendant No. 3 was not cross-examined, but on 06.07.2007, defendant No. 3 compromised the matter with plaintiff.

After considering the entire material on record, the trial court recorded a finding that the plaintiff proved the correctness of the plaint hand-sketch map and identity of the suit property. She also proved her exclusive title and actual possession over the suit property and also proved the alleged interference and obstruction caused by defendants in her use and enjoyment of ''EFGH'' area out of suit property. The defendants 1 and 3 failed to prove that suit disputed area is worth less than Rs. 50,000/- and hence, this Court has no pecuniary jurisdiction to entertain the plaint and to grant reliefs. Defendant Nos. 1 and 3 failed to prove that Court fee paid is not proper and sufficient, as no court-fee has been paid on the market value of the suit property and they also failed to prove that plaintiff by misrepresentation has obtained permission for construction, showing their area as belonging to her. The trial court further held that in view of the compromise entered into between the plaintiff and defendant No. 3, issue No. 7 and additional Issue Nos. 1 and 2 do not require any finding. Accordingly, the trial court decreed the suit, declaring the plaintiff as the owner and in possession of the suit schedule property and granted perpetual injunction.

Against the said judgment and decree, defendant No. 1 alone filed appeal in R.A. No. 60/2007 before the District Judge, Fast Track Court-1, Uttara Kannada, Karwar, who after hearing both parties by his impugned judgment and decree dated 30.06.2012, dismissed the appeal and confirmed the judgment and decree of the trial court.

Against the concurrent findings of fact recorded by the Courts below, defendant No. 1 did not deter in preferring the second appeal as a last ditch attempt.

I have heard learned counsel for the parties to the lis.

Sri Sanjay S. Katageri, learned counsel for the appellant, contended that there was no opportunity given to the appellant before both the Courts below to produce material documents, thereby, both the Courts below have decreed the suit erroneously in favour of the plaintiff, which has resulted in grave injustice to the appellant.

He also contended that both the Courts below have not considered the oral and documentary evidence while decreeing the suit, which has resulted in non-consideration of the material documents on record. Therefore, he sought to set aside the judgment and decree of both the courts below to provide an opportunity to the appellant to produce material documents to prove his case.

Per contra, Sri Suresh S. Bhat, learned counsel for the respondent No. 1/caveator, sought to justify the impugned judgment and decree of the courts below and contended that there was ample opportunity before the trial court as well as the lower appellate court to produce the documents, but the opportunity was not availed and after failing to succeed before both the courts below, now, this Court cannot remand the matter to the trial court without any basis. Therefore, he sought for dismissal of the appeal.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record.

The substance of the plaintiff''s case is that she is claiming ownership and possession based on the registered sale deed dated 27.10.1984 and rectification sale deed dated 13.04.1988 and other contemporary documents at Exs. P-5 to 9.

The substance of the case of defendant No. 1 is that he is the owner of the suit property to an extent of 6 guntas and same was purchased by his father in the year 1953. Considering the entire material on record, the trial court recorded a finding that, the suggestion made by the learned counsel for the defendant No. 1 to the plaintiff, the plaintiff denied the entire suggestions and re-iterated her claim based on the registered document. Except in the cross-examination, there is nothing on the side of defendant No. 1. Defendant No. 3 was subjected to lengthy cross-examination of PW-1. But, in view of the compromise between the plaintiff and defendant No. 3, there is no need to discuss about the cross-examination of counsel for the defendant No. 3. The defence of the defendant No. 1 is that the plaintiff has encroached some area belonging to him in Plot No. 55 of gavatana of Mundgod and with an intention to encroach the same, the present false suit is filed. Defendant No. 1 denied the title, ownership and possession of the plaintiff over the suit property and also denied about the title of the vendor of the plaintiff and also denied all the allegations or averments of the plaint. But the defendant No. 1 never made any attempt to get appoint the Court Commissioner to prove his allegation that plaintiff has encroached some area of the defendant No. 1 in plot No. 55 of the gavatana. The conduct of defendant No. 1 shows that he is keeping silent. Nobody will keep silent if their property has been encroached by others. Defendant No. 1 is not sure about the extent of alleged encroachment by the plaintiff and also not sure about as to which part of his area has been encroached by the plaintiff. The defendant No. 1 failed to demonstrate the oral and documentary evidence of the plaintiff. The documentary evidence coupled with the oral evidence of PW-1 supports the case of the plaintiff. The plaintiff proved the correctness of the plaint hand-sketch map and also identity of the suit property including her exclusive title and actual possession over the same. Plaintiff also proved interference by the defendants. Defendant No. 1 failed to disprove the strong oral and documentary evidence on the side of the plaintiff in respect of issue Nos. 1 to 3. There is no other go, except to accept the oral and documentary evidence of the plaintiff. Defendant No. 1 has not produced any material document to prove that the property belongs to him, nor any encroachment is made by the plaintiff. Accordingly, the trial court decreed the suit declaring that the plaintiff is the owner of the suit schedule property and granted perpetual injunction.

On re-appreciation of the entire material on record, the lower appellate court, concurring with the finding of fact recorded by the trial court and specifically recorded a finding that PW-1 has emphatically stated in his evidence that the suit property was purchased by them through a registered sale deed dated 27.10.1984 and the rectification deed dated 13.04.1988 from one Laxman Fakirappa Hulgur. Exs. P-3 and 4 are the copies of the sale deeds and it has come in the evidence of PW-1 that earlier the suit property was owned and enjoyed by one Smt. Yashirabi W/o. Abdulwahab Grandbidi R/o. Mundgod. She had purchased the said property through the sale deed dated 04.09.1978. The vendor''s sale deed is produced in Ex. P-2. PW-1 has further spoken in his evidence that after obtaining necessary permission to construct building, as per Ex. P-8, they have put some construction over the suit property. Ex. P-9 is the proposed plan and Ex. P-7 is the receipt produced by the plaintiff issued by the Municipality.

PW-1 has stated in his evidence that the defendants are unconcerned to the suit property. He states that defendant No. 1 is unnecessarily interfering and obstructing with their possession over the suit property. The plaintiff has produced copy of the Tax Assessment Register in Ex. P-6 and a notice issued by Municipality in Ex. P-5. On behalf of defendant No. 1, PW-1 is cross-examined. Existence of some property towards the western side of the suit property is admitted by PW-1. PW-1 speaks ignorance as to from whom the 1st defendant claims that his late father had purchased 6 guntas of land in Gavtana plot No. 55 through a deed in the year 1953. But, to substantiate this aspect the 1st defendant has not produced any iota of evidence before the Court. While assessing the evidence on record, the trial court has rightly held that the 1st defendant has failed to prove that he had purchased some property in the suit land and the same, which is alleged to be belonging to the 1st defendant that the vendor of Laxman Hugur (Smt. Yasharabi) was not having any right to alienate the suit property has not been proved and established, and the contention that they were not in possession of the suit property measuring 38'' X 50'' has also not been proved. That the defendant No. 1 contends that in the year 1953, his father had purchased 6 guntas of land in gavtana plot No. 55 through a registered sale deed. The said deed is not produced before the Court. No material evidence is produced to prove the said fact. The said aspect has been rightly considered by the trial court while decreeing the suit of the plaintiff. The contention of the learned counsel for the appellant that proper opportunity has not been afforded to the appellant to adduce evidence is also not correct as the lower court has afforded sufficient opportunity to the parties to lead their evidence. The counsel for defendant No. 3 has cross-examined PW-1 at length, but the trial court observing that, in view of the compromise between the plaintiff and defendant No. 3, there is no need to discuss the evidence regarding cross-examination of PW-1 on behalf of defendant No. 3 and ultimately, dismissed the appeal confirming the judgment and decree of the trial court.

The main contention of the learned counsel for the appellant is that there is no sufficient opportunity given to the appellant before both the courts below to put forth is case. The said contention cannot be accepted for the simple reason that the present plaintiff filed the suit in OS No. 44/1994 and subsequently, it was transferred to Yellapur and renumbered as OS No. 114/2006. Though the suit was filed in the year 1994, even after a lapse of 21 years, the appellant/defendant No. 1 has not taken any steps either before the appellate court or before this Court by filing any application, as contemplated under order XLI Rule 27 of the Code of Civil Procedure, for production of additional documents, if any. In the absence of production of any material documents, having fought the litigation for more than 21 years, now, it is not open for the appellant for seeking remand of the matter, without any basis. Therefore, the contention of the learned counsel for the appellant for remand of the matter cannot be accepted.

While considering the Scope of Section 100 of the Civil Procedure Code, 1908, the Hon''ble Supreme Court, in the case of STATE OF KERALA AND ANOTHER Vs. MOHD.KUNHI (DEAD) BY LRs. AND OTHERS, reported in (2005) 10 SCC 139, held that the concurrent findings of fact recorded by the Courts below would not be interfered under Section 100 of the Code of Civil Procedure. The relevant portion reads as under:-

"2. From the perusal of the impugned judgment, it is clear that the High Court in a way has re-appreciated the evidence on record and reversed the concurrent findings recorded by the two courts below going beyond the scope of Section 100 of the Code of Civil Procedure.

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Having considered the submissions made by the learned counsel for the parties and looking to the reasons recorded by the trial court as well as the first appellate court, we have no hesitation in holding that the High Court committed an error in reversing the concurrent findings of fact recorded by the two courts below by re-appreciating the evidence placed on record. In fact, no substantial question of law did arise for consideration before the High Court. The substantial question of law formulated by the High Court at the time of admitting the appeal, in our view, again touches the appreciation of evidence in relation to Exhibits A-2 to A-4. We do not think it necessary to record detailed reasons again as we agree with the reasons recorded by the first appellate court in rejecting the case of the plaintiff having regard to Exhibits A-2 to A-4 and the other documentary and oral evidence. Hence, the appeal is allowed. The impugned judgment is set aside. No costs."

The Hon''ble Supreme Court in a latest decision, in the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, , while considering the Scope of Section 100 of the Civil Procedure Code, 1908, has held as under:-

"59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a Second Appeal does not lie on question of facts or of law. In State Bank of India and Others Vs. S.N. Goyal, , this Court explained the terms "substantial question of law" and observed as under:

"13. ....The word ''substantial'' prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. ..... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law. ......... There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case."

(Emphasis added)

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There may be a question, which may be a "question of fact", "question of law", "mixed question of fact and law" and "substantial question of law." Question means anything inquired; an issue to be decided. The "question of fact" is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:-

"A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong."

(Vide: Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & others SCC p.705, para 34)."

So also, the contention raised by the learned counsel for the appellant that both the courts below have not considered any material documents before passing the impugned judgment and decree, cannot be accepted, for the simple reason that the trial court considering the oral and documentary evidence of PW-1 and DW-1, material documents at Exs. P-1 to 9 and Exs. D-1 to 9, decreed the suit. Though an opportunity was given before the trial court. The defendant No. 1 has not adduced any evidence nor produced any material documents to prove the contentions taken in the written statement. Both the courts below considering the entire material on record, concurrently recorded a finding that the plaintiff has proved the correctness of the plaint hand-sketch map and identity of the property and exclusive title and actual possession over the suit schedule property, which is based on the cogent and legal evidence on record. No material document is produced by the defendant No. 1 to disprove the case of the plaintiff and such a finding is based on sound legal evidence on record, cannot be interfered with by this Court in exercise of power under Section 100 of the Code of Civil Procedure. No substantial question of law is involved in the present case. Accordingly, the Regular Second Appeal is dismissed.

The oral request made by the learned counsel for the appellant to stay the operation of the judgment and decree of the courts below, till the appeal period is over, has to be rejected, since this Court has recorded a finding that defendant No. 1 has not proved his case and both the Courts below have concurrently held that defendant No. 1 has not produced any material in order to disprove the case of the plaintiff. Hence, it is not a case to grant interim prayer. Accordingly, the oral request for interim prayer sought is rejected.