Basavaraj vs Sindhubai

A.V. Chandrashekara, J.—Concurrent findings are called in question by the plaintiff of an original suit bearing O.S. No. 156/2003 before this Court by filing an appeal u/s 100 of CPC. Respondents herein are the defendants in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

Suit had been filed for the relief of declaration of title and permanent injunction in respect of an open space existing on the southern side of plaintiffs house indicated in letters ''ABCD'' and suit has been dismissed after contest. The disputed open space is indicated in letters ''CDEF'' of the rough sketch described in the schedule. The defendant has his house to the south of the said open space. Since the defendants started interfering with his title and possession, plaintiff chose to file a suit for the reliefs of declaration of title and permanent injunction.

According to the plaintiff, the property in question is his absolute property having been purchased through a registered sale deed dated 05.03.1992 for a consideration of Rs. 31,000/- with specific boundaries. The open space is stated to be the part and parcel of the property purchased, vide registered sale deed dated 05.03.1992. The defendants are the owners of the property bearing CTS No. 3291 of Jamkhandi to the south of the open space and since they started interfering with his title, he chose to file a suit.

Defendants have denied all the material averments found in the plaint and have called upon the plaintiff to strictly prove the contents of the plaint. It is specifically averred by them that the open space indicated in letters ''CDEF'' is part and parcel of the property bearing CTS No. 3290/A held by them and that plaintiff in no way connected with the schedule property. Alternatively, it is contended that they have perfected their title by way of adverse possession and that the suit is bad for non-joinder of necessary parties. With these pleadings, they had requested for dismissal of the suit. On the basis of the above pleadings, following issues came to be framed by the trial Court.

i) Whether the plaintiff proves that he is the absolute owner of the suit property?

ii) Whether the plaintiff further proves that he is in peaceful possession and enjoyment of their suit property?

iii) Whether the plaintiff further proves that the defendants have attempted to alienate the suit property?

iv) Whether the defendant No. 2 and 3 prove that they have perfected their rights and title over the suit property by way of adverse possession?

v) Whether the suit of the plaintiff is barred by limitation?

vi) Whether the suit is valued properly and court fee paid is correct?

vii) Whether this court has pecuniary jurisdiction to entertain and try the suit?

viii) Whether the suit suffers from non-joinder of necessary parties?

ix) Whether the plaintiff is entitle for the relief of declaration as sought for in the plaint?

x) Whether the plaintiff is further entitle for the relief of permanent injunction as sought for in the plaint?

xi) Whether the plaintiff is further entitle for the reliefs as sought for in the plaintiff?

xii) To what order or decree?

Plaintiff is examined as P.W. 1 and one Doulatappa is examined as P.W. 2. 5 exhibits have been got marked on his behalf. Defendant No. 3 is examined as D.W. 1 and six exhibits have been got marked on their behalf. After hearing the arguments and analyzing the evidence placed on record, the learned Civil Judge (Jr. Dn.), has answered issue Nos. 1 to 4 and issue Nos. 8 to 11 in the negative and remaining issues in the affirmative. Consequently, suit came to be dismissed vide considered judgment dated 28.03.2007

As against the said judgment and decree, an appeal came to be filed in R.A. No. 29/2007 before the Court of Senior Civil Judge, Jamkhandi. The same was withdrawn and transferred to the Court of the Fast Track Court at Jamkhandi and was numbered as R.A. No. 29/2007. Several grounds had been raised in the said appeal challenging the judgment and decree of the trial Court. After perusing the lower Court records and hearing the arguments, the said appeal has also been dismissed. Hence, the plaintiff is before this Court challenging the concurrent findings of both the Courts.

The learned counsel for the appellant has argued at length about the admission of the matter with a request to admit the matter and to consider the substantial questions of law proposed in the appeal memo as substantial questions of law.

Basically, the suit had been filed for the relief of declaration of title and permanent injunction. Plaintiffs case is that the open space is part and parcel of the property purchased by him on 05.03.1992 for a consideration of Rs. 31,000/- from one Vasant N. Mannur. Of course, the boundaries are also mentioned in the said sale deed dated 05.03.1992. The case of the defendants is that the open space indicated in letters ''CDEF.'' is a part and parcel of their property in CTS No. 3291/A. A rough sketch is mentioned in paragraph 3 of the plaint, but the rough sketch does not disclose the measurements of the house or the open space or the measurements of the house of the defendants. Unless the schedule property is properly identified with reference to the boundaries and the measurements, neither the relief of injunction nor the relief of declaration could be granted. These facts have been taken into consideration by the trial Court.

The best option open for the plaintiff to have a Commissioner appointed to visit the spot and measure the property of both the parties and thereafter to submit a report. If such exercise had been made, the Courts would have been in advantageous position to effectively deal with the matter. In the light of the plaintiff not taking such steps, the trial Court has chosen to dismiss the suit, more particularly, when the defendants have specifically denied the title set up by the plaintiff in respect of this open space.

Even otherwise, the evidence placed on record would disclose that defendants have already constructed a house and left some space on the northern side of their house. Even otherwise, the evidence of P.W. 2 is more helpful to the defendants. P.W. 2 has stated that door is in existence for past 30 years without any alteration of the said door is in CTS No. 3291/A. According to the map produced by the plaintiff to the East of suit property is the public road which runs North-South. P.Ws. 1 and 2 have not given correct identification of the suit property and in fact their evidence is contrary to the contents of the map produced along with the plaint. To the North of the property bearing CTS No. 3291/A is a small road and thereafter the suit property. In fact the said road is an access to the properties in CTS No. 3291/A also. Whenever identity of a property is seriously disputed by the defendants, it is incumbent upon the plaintiff to establish clear and proper identity. On reassessing the entire evidence, the first appellate Court has come to the conclusion that the evidence of P.Ws. 1 and 2 indicate that suit property is not situated to the south of CTS No. 3291/A, but it is a part and parcel of CTS No. 3291/A belonging to the defendants. Plaintiff should have examined his vendor and has not chosen to do so, even though the vendor is available. P.Ws. 1 and 2 have admitted that the main door of house bearing CGS No. 3291/A is abutting the public road and thereafter towards East is the public road, which runs North-South. According to the map produced by the plaintiff, towards East of the suit property is the public road, which runs North-South. Mere production of sale deed would be insufficient to prove the title. Taking all this into consideration, the trial Court has dismissed the suit and the first appellate Court has rightly dismissed the appeal also. No infirmity or illegality is found in the approach adopted by the trial Court and the first appellate Court. There are no good grounds to interfere with the well considered judgments, more particularly, the concurrent findings of facts. Hence, the appeal is liable to be dismissed as unfit for admission.

ORDER

The appeal is dismissed as unfit for admission. The judgments of the trial Court and the first appellate Court are upheld. There is no order as to costs.