B.N. Surendra vs Shivaswamy

A.V. Chandrashekara, J.—The concurrent findings given by the courts below are called in question before this Court by the sole plaintiff in O.S. No. 142/98 which was on the file of Civil Judge (Jr. Dn.) & JMFC, Srirangapatna, Mandya District. The respondent herein was defendant No. 2 in the said suit which was filed for the reliefs of declaration of title and for permanent injunction in respect of a vacant site. As the said suit has been dismissed after contest on 13.7.2006, appeal filed under Section 96 of Code of Civil Procedure in R.A. No. 49/06 by the plaintiff before the Court of Prl. Civil Judge (Sr. Dn.) & JMFC, Srirangapatna was also dismissed after contest by order dated 13.8.2007. It is these concurrent findings which are called in question before this Court by filing an appeal memo under Section 106 of Code of Civil Procedure. The parties will be referred to as plaintiff and defendant as per their rankings before the trial Court.

The facts leading to the filing of the suit in O.S. No. 142/98 are as follows:

According to the plaintiff suit property is two vacant sites as described in the schedule appended to the appeal memo and were ancestral properties. After partition amongst father of plaintiff and his uncles, the schedule property fell to the share of father of the plaintiff and he was stated to be in lawful possession and enjoyment of the same and after his death, plaintiff is stated to be in possession of the same. The dimension of schedule site in property No. 269/152 measures East to West 40 feet South to North 69 feet and property No. 270/153 measures East to West 35 feet and South to North 69 feet bounded by property of the defendant on the southern side and another site of the plaintiff on the northern side. When the defendants who had no manner of title or interest over the schedule property unnecessarily tried to interfere with the schedule property, the plaintiff felt necessitated to file the suit.

Defendants had appeared before the trial Court and chose to oppose the suit by filing detailed written statement. According to them northern side of their house there is gully measuring about 6 (six) feet in width and in order to knock off the said gully, the plaintiff has filed the present suit. With these pleadings they requested to dismiss the suit.

On the basis of the above pleadings, following issues came to be framed:

(1) Whether plaintiff proves that he is the absolute owner in possession of the schedule property?

(2) Whether plaintiff proves the interference of the defendant?

(3) Whether defendant proves that this Court has no jurisdiction to try this suit as the plaint is not properly valued?

(4) To what relief the plaintiff is entitled for

(5) To what order?

The plaintiff has examined himself as PW. 1 and two witnesses have been examined on his behalf. Defendant No. 2 was examined as DW. 1 and 3 documents have been got marked on behalf of the plaintiff. During the pendency of the suit, a practicing Advocate Sri. Lakshmana had been appointed as Commissioner to visit the spot and submit a report. He chose to submit a report dated 23.1.2006 which has been considered by the trial Court. After appreciating the oral and documentary evidence on record and after hearing the arguments of both the parties, the trial Court chose to dismiss the suit by answering issue Nos. 1 and 4 in the negative.

The appeal filed under Section 96 of Code of Civil Procedure in R.A. No. 49/06 has also been dismissed by framing the following points for consideration:

Whether the trial Court grossly erred in not framing proper issues?

Whether the trial Court erred in deleting issue No. 3?

Whether the trial Court erred in not relying on the report of the court Commissioner?

Whether the judgment and decree; of the trial Court are not in accordance with settled principles of law, facts and probabilities of the case?

are there any grounds to interfere in the reasoning and findings of the trial court?

After hearing learned counsel for the appellant, this court has framed the following substantial question of law on 19.9.2014:

"whether the courts below have misread the evidence both oral and documentary?"

Learned counsel for the appellant has vehemently argued that the trial Court has adopted wrong approach to the real state of affairs and that the Commissioner report has been misread by the trial Court. The trial Court has not properly analysed the oral and documentary evidence in its right perspective. The very Ex. P15 disbelieves the theory of existing of a gully measuring 6 feet on the northern side of the defendants'' house. Hence sought for dismissal of the suit in its entity and to decree the suit as prayed for.

The respondents have supported the judgment of the courts below contending that the courts below have adopted proper approach to the real state of affairs and The oral and documentary evidence has been assessed on the touchstone of intrinsic probabilities.

In a suit filed for the relief of declaration of title and permanent injunction in respect of vacant site/sites, the parties are expected to make out a clear case of acquisition of title with reference to the boundaries as well as extent. What is argued before this Court by the learned counsel for the appellant is that the extent of the sites over which the reliefs of declaration of title and permanent injunction have been sought, the same is specifically mentioned in the schedule and the same has been incorporated after due amendment. On going through the schedule, it is clear that according to the plaintiff the schedule property in No. 269/152 measures East to West 40 feet South to North 69 feet and property No. 270/153 measures East to West 35 feet and South to North 69. In a case of this nature, report of the Commissioner would be very relevant.

Shri. Lakshmana, a practicing lawyer of Srinrangapatna had been appointed as the Commissioner to visit the spot and elucidate the matter in dispute. He submitted the report and the same is a part of the record. Objection is not filed to the Commissioner''s report and therefore, it is part of evidence under Order 26 Rule 10(2) of Code of Civil Procedure.

As could be seen from the Commissioner''s report submitted on 23.1.2006 on the extreme North side of the schedule property, village mud road is situated; to the south of the said road, a vacant site measuring 55 feet is situated which belongs to the plaintiff. To the Southern side of the said site, two sites belonging to the plaintiff is the suit schedule property. The plaintiff has mentioned the extent of these two sites as 69 feet North to South in the plaint. The total dimension of the two sites over which the plaintiff has sought two reliefs of title and permanent injunction are indicated in letters ABCD. The distance between B and C is shown as 76 1/2 feet and A to D is 68 1/2 feet. If the plaintiff is seeking the relief of declaration and permanent injunction in respect of 76 1/2 North to South, he must unequivocally establish as to how he acquired title in respect of 69 feet as shown in the schedule.

Learned judge of the trial Court as well as First Appellate Court have considered this aspect of the matter while evaluating evidence. If 69 feet is taken into consideration from point B towards south and still 7 1/2 feet would be left in between the house of the defendants and the two vacant sites claimed by the plaintiff. This 7 1/2 feet, according to the trial Court as well as the First Appellate Court, is not the property belonging to the plaintiff. This Court does not find any reason to interfere with the said factual finding of the trial Court which has been confirmed by the First Appellate Court. Apart from these, the plaintiff who is expected to discharge his initial burden has not discharged the same. Unless it is effectively discharged, the onus does not shift on the other side. Weakness if any, of the defendants cannot be taken advantage by the plaintiff. It is in this regard, northern boundary found in Ex. P.15-partition deed entered into between defendants and family members, cannot be blown out of proportion. Suffice to state that both the courts have adopted right approach to the real state of affairs. Both the courts have tested the evidence on the touchstone of intrinsic probability. There is no reason to interfere with the concurrent factual finding with regard to the actual extent of vacant site held by the plaintiff as a lawful owner.

Thus the defendants have been able to probabilise the existence about 7 1/2 guntas on the Northern side of their house and that the same is part and parcel of the house or vacant site attached to their house for their better enjoyment. In this view of the matter, this Court is of the opinion that both the courts below have not misread the evidence both oral or documentary. There is no illegality or perversity in reaching at the approach adopted by both the courts. Therefore, the appeal is liable to be dismissed. Hence the following:

ORDER

The appeal is dismissed upholding the judgments of the courts below. There is no order as to costs.