Chikkathayamma vs Jayamma and Others

B.S. Patil, J.—This Regular Second Appeal is filed by the unsuccessful plaintiff whose suit for declaration of her title over suit schedule ''A'' property and for mandatory injunction to demolish the building constructed in ''B'' schedule property and for consequential relief of permanent injunction to restrain the defendants from interfering with ''A'' schedule property has been dismissed.

Both the Courts below have concurrently found that plaintiff has failed to establish his title over ''A'' schedule property and his claim for demolition of ''B'' schedule property.

Plaintiff claimed that she was the owner of site No. 200 which was allotted by defendant No. 2 - Town Municipal Council in favour of one M. Lakshminarayana Rao during the year 1951-52 and the said M. Lakshminarayana Rao sold it to the plaintiff as per sale deed dated 4-1-1962. According to the plaintiff, there was a space reserved for road on the western side of the suit property, but the same was later on shifted by the Town Municipal Council to the eastern side of site No. 197. Hence, automatically the space left was made use for the benefit of the owners of site Nos. 200, 199, 198 and 197. It was alleged by the plaintiff that defendants No. 1 and 2 illegally interfered with the portion of the suit site which was earlier earmarked for road.

Plaintiff earlier filed O.S. No. 153/1989 and failed to get an order of injunction. Appeal filed against the said order was also dismissed. Therefore, she withdrew the said suit and filed this suit for permanent and mandatory injunction.

Defendant No. 1 filed written statement resisting the plaint averments. She contends that the space reserved for formation of road measuring 21 x 80 feet lying to the western side of the suit schedule property and the eastern side of site Nos. 13 and 14 was granted in her favour by the Town Municipal Council during the year 1968 and since then, she has been in possession and enjoyment of the suit property by getting the khatha changed in her name. She further contended that she obtained licence from the Town Municipal Council and constructed a structure in her property spending Rs. 80,000/-. Defendant No. 1 relied on the written statement filed by the Town Municipal Council in the earlier suit wherein, the Municipality had admitted the grant made in favour of defendant No. 1.

The Trial Court after appreciating the pleadings and the documents of both the parties found that the plaintiff had failed to produce the sale deed or the order of grant made in the name of her vendor Sri Lakshminarayana Rao to prove that western boundary was site No. 200, but referred to Ex. D8 the certified copy of the licence issued by defendant No. 2 to the plaintiff on 28-5-1984 regarding construction of house in the suit property wherein, western boundary was mentioned as the space reserved for road.

Similarly, reference was made to Ex. D22 copy of the licence dated 5-4-1989 issued by defendant No. 2 -Town Municipal Council to defendant No. 1 for construction of house in the property belonging to defendant No. 1 in the disputed area wherein, eastern boundary was shown as suit site of the plaintiff.

The main contention of the plaintiff is that the place reserved for road was shifted by the Town Municipal Council and thereby, site Nos. 13 and 14 became the western boundary of the suit site. But, the same was not established by the plaintiff. Neither the layout plan -Ex. P5 nor any document in that regard supported the case of the plaintiff regarding shifting of the road. Therefore, on appreciation of oral and documentary evidence, the Trial Court dismissed the suit.

The Appellate Court on re-appreciation of the evidence on record has concurred with the finding recorded by the Trial Court.

Learned counsel for the appellant submits that if only application filed for appointment of Court Commissioner was allowed, it would have been made clear as the dispute essentially pertained to location of the property of the plaintiff and shifting of the road. He, therefore, contends that it is a fit case for remanding the matter for Trial Court with a direction to appoint a Court Commissioner. He further submits that evidence on record has not been properly appreciated by the Courts below.

Having heard the learned counsel for both parties and on careful perusal of the judgments under challenge, it is seen that both the Courts have recorded concurrent findings holding that plaintiff has failed to establish his case that the road in existence towards the western side of the suit schedule property had been shifted to the eastern side whereby, the existing portion of the road had been made part of the suit schedule property and the defendants did not have any right over the said portion. These findings are recorded on the basis of Ex. P5 - approved layout plan and the stand taken by the Town Municipal Council in its written statement filed in the earlier suit and also the report of the Court Commissioner which had been obtained in the previous case for which both plaintiff and defendant No. 1 were parties. Both the Courts have recorded concurrent findings holding that the portion earmarked in the layout plan vested with defendant No. 2 - Town Municipality and when the said portion was not utilised as road, it was open for defendant No. 2 - Town Municipal Council to put the said portion to the best use for its advantage. The Courts below have also found that it was the specific case of Municipality that the road was converted to site measuring 21 x 80 feet and was allotted to defendant No. 1 in the year 1968 which was supported by the documents produced at Ex. D22 -Licence and the Khatha extract.

The Courts below have come to a right conclusion in holding that weakness of the defendant''s case cannot be made basis for granting relief to the plaintiff because it is for the plaintiff to establish his case. Plaintiff has failed to establish her case that the road portion shown in the layout map was permitted to be made use of by the plaintiff by shifting the road to the opposite site. This specific case pleaded by the plaintiff has not been established. Therefore, both the Courts below were justified in dismissing the suit. No substantial question of law arises for consideration. Hence, this appeal is dismissed.

In view of the dismissal of the main appeal, Misc. Cvl. No. 11012 of 2009 does not survive for consideration. Accordingly, Misc. Cvl. No. 11012 of 2009 is also dismissed.