D.L. Thibbegouda and Others vs Ramanna D.G. and Others

Budihal R.B., J.

This is the regular second appeal preferred by the appellants/defendants being aggrieved by the judgment and decree dated 18.9.2013 passed by the Court of Senior Civil Judge and JMFC at Kunigal in RA No. 10/2012 confirming the judgment and decree dated 27.2.2012 passed by the Court of Principal Civil Judge and JMFC, Kunigal, decreeing the suit in O.S. No. 247/2008.

Heard the arguments of the learned counsel appearing for the appellants/defendants on admission.

Learned counsel for the appellants during the course of his arguments made the submission that, so far as the land of the respondent is concerned, they are not disputing the same. But it is the contention of the learned counsel for the appellants herein that the respondent in the process of straitening the boundary tried to encroach upon the land of the defendants and in that regard the defendants/appellants have also lodged the complaint. It is also his submission that the Courts below have not at all taken this aspect into consideration and wrongly comes to the conclusion that the appellants/defendants causing obstruction and interference to the possession and enjoyment of the respondent and hence, the Courts below have wrongly decreed the suit against the appellants/defendants. Hence, he made submission that even the Court Commissioner''s report also goes to show that the bund of the land of the respondent is slanting towards the land of the defendants/appellants and hence he made submission that this record also supports the case of the appellants and also their defence which they have taken before the trial Court. Hence, he submitted that the judgment and decree of the Courts below are not in accordance with oral and documentary evidence produced in the case. Hence, he submitted that these aspects will have to be reconsidered by this Appellate Court and hence the appeal may be admitted.

I have perused the grounds urged in the appeal memorandum and also perused the judgment and decrees passed by the Courts below. Looking to the materials placed on record, the respondent filed the suit seeking permanent injunction against the appellants herein stating that he is the owner of the property bearing Sy. No. 24/3 measuring 0.17 gunta and 0.1 gunta kharab. He is also in possession of the said area. Originally the said property belonging to one Veerabhadra Shetty and said Veerabhadra Shetty mortgaged the property with the respondent/plaintiff on 30.6.1988 and deliver the possession to him and when the mortgage transaction was still in existence, the respondent/plaintiff purchased the said property on 21.3.1989 under the registered sale deed from the owner and his name was mutated and plaintiff was growing the crops like Ragi, Paddy and other crops. The defendants were not having any right, title or interest over the suit schedule property and earlier to filing of the suit, the defendants trespassed into the property of the plaintiff and cut the trees in the said land of the plaintiff and when the plaintiff lodged the complaint before the police, the police have instructed him that since the matter is civil in nature, he can approach the Civil Court and even the panchayath was also held in the village and the panchayathdars also told the defendants that plaintiff has already got his land measured and fixed the boundaries and directed the defendants also to get the land surveyed like the plaintiff. It is also offered in the plaint that in spite of that the defendants having not taken any steps for getting their land surveyed, but they trespassed into the land of the plaintiff and they have damaged the bund on the eastern side and they were also making the attempt to cut the other trees in the land of the plaintiff. Hence, as there is interference into his possession he has filed the suit.

The appellants/defendants who appeared in the said suit filed their written statement denying the allegations made in the complaint. The defendants given the items of the properties along with their written statement mentioning that item No. 1 property belongs to the defendant No. 1 and he is in possession and enjoyment of the same and the property of the first defendant is on the eastern side of the plaintiffs property and the eastern bund of the suit property is straitened towards the property of the defendant and in the guise of straitening the said bund, the plaintiff was making the attempt to encroach the property of the first defendant and only with that intention he has filed the suit also. The plaintiff has created the survey documents along with the survey authorities. It is also mentioned that item No. 2 mentioned in the written statement is the property belonging to defendant No. 2 which is the ancestral property of the defendant No. 2. The defendant No. 2 is also raising the ragi and other crops and he has also planted the trees in his land. The plaintiff is not having any sort of right, title or interest over the properties of the defendants and only with an intention to encroach the properties of the defendants, the plaintiff has filed the suit and hence they have sought to dismiss the suit with costs.

On the basis of the said pleadings, the trial Court framed as many as four issues for consideration:

"i) Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of suit?

ii) Whether the plaintiff proves that the alleged interference?

iii) Whether the plaintiff is entitled to the relief?

iv) To what order or decree?"

After considering oral and documentary evidence, the trial Court ultimately decreed the suit.

Being aggrieved by the judgment and decree of the trial Court, the appellants preferred the appeal before the First Appellate Court and the First Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. Perusing the material placed on record and looking to the oral and documentary evidence produced in the case, both the Courts have concurrently held that the plaintiff is the owner of 18 guntas of the land including 1 gunta kharab. Looking to the discussion made by the trial Court in para 10 of its judgment it is observed by the trial Court that even the Court Commissioner who filed his report before the Court also mentioning about the possession and also the suit land in possession of the plaintiff. Looking to para 13 of the judgment of the trial Court it is also observed by looking to the documentary evidence Exs. P3 to Ex. P7 that including the kharab land of 1 gunta, the total extent of suit schedule property is 18 guntas and even the document Ex. D4 produced by the defendants also goes to show the total extent of land 18 guntas including 1 gunta kharab and the Court Commissioner in his cross-examination is also admitted that when he measured the extent of land including the kharab land of 1 gunta it is totally 18 guntas.

Considering the oral and documentary evidence, the trial Court comes to the conclusion that plaintiff is in possession and enjoyment of totally 18 guntas of land and also looking to the lodging of the complaint before the police, so also the oral evidence, witnesses on the plaintiffs side, the trial Court held that all the material goes to show that there was obstruction and interference to the peaceful possession and enjoyment of the suit property by the defendants. Hence, the trial Court ultimately held that the plaintiff has established his case for the issue of injunction order against the defendants in the said suit. Perusing the judgment of the First Appellate Court also, the First Appellate Court re-appreciated the evidence of the parties and it also comes to the conclusion that the plaintiff established his case that he was the owner in possession of totally 18 guntas of the land and the Appellate Court also confirmed the observation made by the trial Court regarding the interference made by the defendants to the possession and enjoyment of the suit schedule property of the plaintiff. Ultimately, the First Appellate Court also dismissed the appeal confirming the judgment and decree passed by the trial Court. Therefore, looking to these aspects of the matter, regarding the factual aspect of possession of the plaintiff and with regard to the interference said to have been caused by the defendants, there is a concurrent finding of both the Courts below, and looking to the appeal memorandum the appellants herein have not at all made out a case what is the illegality committed by the Courts below. Therefore, no substantial question of law involved in this appeal. There is no merit in the present appeal and accordingly, the appeal is dismissed.

Since the main appeal itself is disposed of, the question of considering I.A. No. 1/2013 does not survive. Hence, it is also disposed of accordingly.