Bhupal and Others vs Udayakumar Rayappa Akki

S.N. Satyanarayana, J.—Defendant Nos. 1 to 3 in O.S. No. 82/1996 on the file of the Principal Civil Judge (Jr.Dn.) Bailhongal have come up in this second appeal impugning the concurrent findings of both the Courts below in decreeing the suit of the plaintiff for the relief of declaration and permanent injunction in respect of GPC No. 998 said to be measuring 104 feet North-South and 15 feet East-West of Sampgaon village of Bailhongal Taluk, Belgaum District.

The brief facts leading to this second appeal are as under:

The plaintiff Udaykumar is adopted son of Rayappa Akki. The adoption has taken place after the death of Rayappa Akki by his widow Smt. Padmavva under registered adoption deed, which is at Ex. P5. At the time of adoption, a relinquishment deed which is at Ex. P6 also executed by her relinquishing her right, title and interest in the family property in favour of the plaintiff who is the adopted son. In this proceeding, adoption is not in dispute, so also execution of Exs. P5 and P6. After adoption, plaintiff is said to be in possession and enjoyment of all the properties belonging to the family, which includes suit schedule land, which is one of the item referred to in the relinquishment deed vide Ex. P6. The suit property is referred to as "property situated in Wali Oni, Sampgaon village", which is subsequently given "GPC No. 998". The location of the suit schedule property, its boundaries and extent are not in dispute between the plaintiff and defendants.

The case of the plaintiff is that, defendants without having any manner of right, title and interest in the suit property are trying to interfere with his possession. Hence, he filed suit for declaration and permanent injunction. In the said suit, defendant Nos. 1 to 3 entered appearance, filed written statement in the year 1997, wherein, they admit that suit schedule property as stated in the plaint is correct and that the said property was the property of the plaintiff. However, initially they took up the defence that they were put in possession of southern half portion of the suit property, where they have put up gobargas plant and toilet and also using the remaining portion for storing agricultural implements. However, in the year 1998, they have amended the written statement by taking up a divergent stand that they have been in possession of the suit property adverse to the title of the plaintiff openly and adversely to his knowledge, consequently they have perfected their title to the suit property. With this rival pleadings, suit went for trial and four issues were framed to consider the title of the plaintiff over the suit property and another issue with reference to the adverse possession, which was the alternate defence taken by the defendants by amending the original written statement.

In the said proceeding, Court Commissioner was appointed to conduct spot inspection of the suit schedule land, its location and also measurement. It is for the first time in the Commissioner''s report, the measurement of the suit property as 104 feet North-South and 15 feet East-West is identified, which is not there originally in the schedule to the plaint. In the said Commissioner''s report, it is also stated that on southern portion, gobargas plant was put up and also toilet and remaining portion for storing agricultural implements. The said Commissioner''s report is at Ex. D11 and hand sketch at Ex. D12. The trial Court on appreciation of the pleadings, oral and documentary evidence proceeded to answer issues Nos. 1 to 3 in the affirmative and consequently, decreed the suit of the plaintiff by accepting issue No. 4. While doing so, answered additional issue No. 1, which was framed to consider the alleged adverse possession of the defendants in negative.

As against the said judgment and decree dated 12.01.2004, appeal in R.A. No. 8/2004 is filed by the defendants on the file of the Civil Judge (Sr. Dn.) Bailhongal, wherein, the lower appellate Court on re-appreciation of the pleadings, oral and documentary evidence framed two points for consideration and held that the judgment and decree passed by the trial Court is just and proper and also held that the findings does not warrant interference and consequently, dismissed the appeal filed by defendant Nos. 1 to 3.

As against the concurrent findings of both the Courts below, the present second appeal is filed on the ground that, the Court below has failed to appreciate the relationship between the parties and that while answering issue regarding Commissioner''s report has not properly appreciated and the sketch which is filed by the Commissioner, which clearly indicate the possession of the property with the defendants prior to the filing of the suit, as seen in other documents which are produced in support of their case, namely the loan papers and other documents which establishes that defendants borrowed the loan in the year 1984 for the purpose of putting up of gobarbas plant on the southern portion of the suit schedule property. Therefore, they contended that, granting of permanent injunction is erroneous.

After hearing the counsel for the appellants and on going through the judgments of both the Courts below, this Court framed following substantial question of law as arising for consideration:

"Whether the Court below was justified in granting the relief of permanent injunction in the face of documents at Exs. D6, D7, D8, D9 and other documents?"

Thereafter, heard the learned counsel for appellants and respondents, perused the grounds of appeal with reference to pleadings, oral and documentary evidence and also findings of both the Courts below. On careful consideration, it is clearly seen that, plaintiff has clearly established his title to GPC No. 998 measuring 104 feet North-South and 15 feet East-West of sampgaon village of Bailhongal Taluk, Belgaum District as adopted son of Rayappa Akki and his widow Smt.Padmavva. It is further established by him that, by virtue of adoption deed Ex. P5 and relinquishment deed Ex. P6, he has become their adopted son and has inherited their property. Therefore, both the Courts below are justified in decreeing his suit for declaration and permanent injunction against the defendants.

On the contrary, though defendants have relied upon several documents in the form of correspondence and communication with the Gram Panchayat and bank to claim their title to suit property by adverse possession and also persons in possession of the same for long time and as such they have put up gobergas plant, toilet and also using the remaining portion for storing agricultural implements are not properly explained by them, but the documents which were produced and relied upon by them vide exhibits ''D'' series does not relate to suit property. The defendants do not establish any transaction said to have done by them as owners/occupants of the suit property, which would entitle them to oppose the prayer of the plaintiff for the relief of declaration and injunction. Hence, this Court find that the concurrent findings of both the Courts below in decreeing the suit of the plaintiff appears to be just and proper. In the light of the aforesaid discussions, the substantial question of law which is framed as above is required to be answered in the affirmative in favour of the plaintiff who is respondent in this proceeding against the appellants who are defendants in the original suit.

In that view of the matter, this Court find that this second appeal filed by the defendant Nos. 1 to 3 in the original suit challenging the concurrent findings of both the Courts below in decreeing the suit of the plaintiff does not merit consideration and accordingly, the same is required to be dismissed.

Accordingly, this second appeal is hereby dismissed.