Cheluvegowda and Others vs Siddanayaka and Others

Ravi V. Malimath, J.

Plaintiffs in O.S. No. 230/1992 filed a suit against the defendants for the relief of permanent injunction restraining the defendants, their agents from interfering with the peaceful possession and enjoyment of the plaint schedule properties.

Their case is that the first defendant and one Cheluvegowda @ Thammaiah have sold the plaint schedule property in favour of the plaintiffs'' father Sri Chikkaputtanayaka through a registered Sale Deed dated 10.11.1965 and put the plaintiffs'' father in possession. The Revenue records were also transferred to the name of the father of the plaintiffs. Thereafter, the plaintiffs'' father died in the year 1977, leaving behind the plaintiffs and his eldest son Puttamadanayaka as his legal representatives. The plaintiffs, wife and children of Puttamadanayaka are now in absolute possession and enjoyment of the plaint schedule property. Though the defendants have no right, title and interest over the plaint schedule property, the defendants started to interfere with the plaintiffs'' peaceful possession and enjoyment of the plaint schedule property and on 10.09.1992 attempted to interfere with his possession. Hence, he filed the instant suit for permanent injunction. After issuance of notice, the defendants entered appearance. They denied the relationship between the plaintiffs and Chikkaputtanayaka and the missing of Puttamadanayaka. That even if the said Puttamadanayaka was missing, his wife and children could have been impleaded as parties. Hence, the suit is bad for non-joinder of necessary parties. It is further contended that the plaintiffs are not in possession and enjoyment of the suit schedule property. The alleged sale transaction was also denied. That Cheluvegowda did not have any right, title or interest over the suit schedule property to sell the property and that he could not have executed the alleged sale deed. The revenue records relied on by the plaintiffs are all concocted. That the suit schedule property is an ancestral property of the defendants and they have never parted with the suit schedule property at any time. On the basis of these pleadings, the Trial Court framed the following issues in O.S. No. 230/1992 for consideration:

Whether the plaintiffs prove their lawful possession over the suit schedule property on the date of filing this suit?

Whether the plaintiffs prove the alleged interference and obstruction of the defendants?

Whether the defendants prove that the suit for bare injunction is not maintainable as alleged in para 9 of the written statement?

Whether the defendants prove that the suit is bad for non-joinder of Chaluvegowda @ Thammaiah as a party to the present suit as alleged in para 8 of the Written Statement?

Whether the plaintiffs are entitled for the reliefs sought for?

What order or decree?

Thereafter, O.S. No. 179/1994 was filed by the defendants for the relief of declaration that they are the owner in possession and enjoyment of the suit schedule property and for declaration that the sale deed dated 10.11.1965 in favour of Chikkaputtanayaka is not binding on them and the same is null and void along with the consequent relief of permanent injunction. It is their case that survey No. 194/5 measuring one acre and two guntas is the ancestral property as the original plaintiff is the first defendant. Then they effected partition of the joint Hindu family properties and ''palupatti'' came into existence in the presence of the panchayatdars on 31.8.1983. Out of one acre and two guntas of land in survey No. 194/5, an extent of 0.5 1/2 fell to the share of the first defendant and the remaining 0.36 1/2 guntas fell to the share of the plaintiff. Thereafter, the first defendant and the original plaintiff are enjoying their properties separately. That the properties mentioned in the injunction suit i.e., O.S. No. 230/1992 does not pertain to survey No. 194/5 of Hebbal village. That the defendants 2 to 4 have never been in possession of any bit of land in survey No. 194/5. After issuance of notice, the defendants entered appearance and denied the plaint averments. Their contention is that the suit is not maintainable either in law or on facts. That the defendants 2 to 4 having filed O.S. No. 230/1992 in respect of property bearing survey No. 194/5 measuring 10 guntas, the defendants 2 to 4 in order to defeat the said proceeding, the present suit has been filed by them with untenable allegations. That Dasegowda, first defendant and one Cheluvegowda @ Thammaiah has sold the above said property in favour of father of defendant Nos. 2 to 4 through a registered sale deed dated 10.11.1965 and on the date of the execution of the sale deed, the first defendant and Cheluvegowda @ Thammaiah have put the father of the defendants in possession of the property mentioned in the sale deed measuring 10 guntas of land. Thereafter, revenue entries pertaining to the said land was also transferred to the name of Chikkaputtanayaka. The said Chikkaputtanayaka died in the year 1977 leaving behind defendant Nos. 2 to 4 and eldest son Puttamadanayaka as his legal heirs.

That from the year 1965, subsequent to the death of Chikkaputtanayaka, defendant Nos. 2 to 4 have been in open, continuous, hostile and adverse possession of the suit schedule property. On the basis of the pleadings, the Trial Court has framed the following issues in O.S. No. 179/1994 for consideration:

Whether the plaintiff proves that he is the owner of the suit schedule property?

Whether the plaintiff proves his lawful possession over the suit schedule property on the date of the suit?

Whether the plaintiff proves alleged interference and obstruction of the defendants

Whether the defendants prove that they have perfected their title to the suit schedule property by way of adverse possession?

Whether the defendants prove that the suit is not valued properly and the Court fee paid is insufficient?

Whether the plaintiff is entitled for the reliefs sought for?

What order or decree?

ADDITIONAL ISSUES:

Whether the plaintiffs prove that the sale deed executed by first defendant and one Cheluvegowda in favour of Chikkaputtanayaka is not binding on the plaintiffs and it is null and void?

Whether the relief claimed by the plaintiff''s is barred by law of limitation?

Whether this Court has got pecuniary jurisdiction to try this suit?

Both the suits were heard together. Common evidence was recorded. The word ''plaintiffs'' hereinafter referred to as plaintiffs in O.S. No. 179/19194 and the ''defendants'' in O.S. No. 230/1992. The word ''defendants'' hereinafter referred to as plaintiffs and defendant No. 1 in O.S. No. 230/1992 and defendants in O.S. No. 179/19914. The plaintiffs in order to prove their case, examined five witnesses and got marked 23 exhibits. Two witnesses were examined on behalf of defendants and eight exhibits were got marked.

In O.S. No. 230/1992, the suit filed for permanent injunction issue Nos. 1 and 2 were held in the ''Affirmative'', and issue Nos. 3 and 4 were held in the negative. In O.S. No. 179/1994, the suit filed for declaration, issue Nos. 1 to 3, 6 and additional issue No. 1 were held in the ''Negative'' and issue Nos. 4 and 5 were held in the ''Affirmative'', and additional issue No. 2 was answered that ''suit was filed within time''.

On contest, O.S. No. 179/1994 filed for the relief of declaration and consequential relief of permanent injunction, was dismissed and O.S. No. 230/1992 namely the suit for bare injunction was decreed. Aggrieved by the same, RA No. 484/2009 and RA No. 727/2009 were filed before the first Appellate Court. The first Appellate Court heard both the appeals together and dismissed them by confirming the judgments and decrees of the Trial Court. Aggrieved by the judgment and decree passed in O.S. No. 230/1992 as affirmed in RA No. 484/2009, defendants 2 (A), (B) and (C) have filed RSA No. 235/2011. Aggrieved by the judgment and decree passed in O.S. No. 179/1994 as affirmed in RA No. 727/2009, plaintiffs 1 (A), (B) and (C) have filed RSA No. 236/2011.

Heard Sri Manu, N.P. and Sri R.S. Ravi, learned counsel appearing for the appellants and Sri B.S. Nagaraj, learned counsel appearing for the contesting respondents.

The Trial Court considered in depth the evidence and material on record. The Trial Court was of the view that the plaintiff has substantially established that he is in possession of the suit schedule property and hence, the injunction requires to be granted. Interference by the defendant was also held to be proved.

The evidence and material on record would show that even according to the plaintiffs, the deceased original plaintiff acquired the suit schedule property through partition and the plaintiffs have not produced the partition deed. According to the oral evidence of PW1, the defendants 2 to 4 are in possession of 10 guntas of land three years prior to 3.6.1999. In fact, PW1 in his evidence has deposed to the effect that defendants 2 to 4 are in possession of 5 y2 guntas of land in suit schedule property. That even according to the plaintiffs, the suit schedule property mentioned in O.S. No. 230/1992 is entirely different from the property mentioned in O.S. No. 179/1994 and they are entitled to a share.

Even according to the oral evidence of PW1, to the south of the property of 5 1/2 guntas, the property of Kempegowda is situated and the same shows that the plaintiffs have included the alleged property of defendant No. 1 also. Therefore, the plaintiffs have filed the suit in respect of the property, which is not their property. Even according to the evidence of PW3, defendant Nos. 2 to 4 are in possession of the suit schedule property of O.S. No. 179/1994. That in the said property, even houses have been constructed. Therefore, the evidence of the plaintiffs themselves would clearly show that the plaintiffs are in possession of the property.

That some of the revenue records show that 10 guntas of property stood in the name of defendants 2 to 4 and those entries have attained finality since the same have not been challenged before the concerned authorities. That even though the challenge is to the sale deed by the defendants, the defendant No. 1 was the elder member of the family had a right to sell the property and therefore, it would bind the other members of the family. Ex. D1 sale deed would also show that the plaintiffs were also signatories to the said sale deed. They themselves are parties to the sale deed being executed by the elder member of the family and that they are parties to the sale deed, and after the sale deed has been executed, the revenue entries pertaining to the property were mutated in favour of the father of the defendant and after his death, the same were mutated in the name of the defendants. Therefore, the material on record coupled with the evidence of plaintiffs themselves would show that plaintiffs have failed to show that the sale deed Ex. D1 executed is not binding on the plaintiff. Therefore, he is not entitled for a declaration that the sale deed is null and void. So far as the question of possession is concerned, as held hereinabove, the plaintiffs have failed to show that they are in possession of the suit schedule property.

The Trial Court while considering the suit for permanent injunction, rightly came to the conclusion that the plaintiffs having established their case regarding possession over the suit schedule property. There is no cogent material produced by the defendant to overcome the evidence of the plaintiffs in O.S. No. 230/1992 which is a suit for bare injunction. In the circumstances, the findings recorded by the Trial Court are just and appropriate and does not call for interference.

Having considered all the material and evidence on record, I am of the considered view that the judgment and decree of both the courts below are just and appropriate. The evidence of the plaintiffs itself dis-entitle them for any relief so far as O.S. No. 179/1994 is concerned. With regard to O.S. No. 230/1992, the plaintiffs having established their case of continued possession over the suit schedule property, the Trial Court has rightly decreed the suit. Hence, I do not find any error which calls for any interference in the judgment and decree of both the courts below nor do I find that any substantial question of law that arises for consideration in this appeal. The entire case revolves around facts. No substantial question of law arises for consideration.

Consequently, the appeals being devoid of merits, are dismissed.