G. Ponnuswamy vs V. Narayanaswamy

Ravi V. Malimath, J.—It is the case of the plaintiff that he had purchased the suit schedule property from Nagasheshamma on 14.06.2004 by virtue of a registered sale deed who in turn had purchased the property from Venkatappa, Muniyappa and Narayanappa on 28.05.1992. Eversince the date of purchase, he is in possession of the property. The defendant tried to interfere with his peaceful possession of the suit schedule property. Hence, he filed the instant suit for permanent injunction to restraint the defendant from interfering with the suit schedule property.

On service of notice, the defendant entered appearance and denied the plaint averments. He set up a counter claim. He pleaded ignorance of the purchase of the property of the plaintiff. He stated that originally, the property bearing Sy. No. 38 measuring 20 guntas was owned by Muniyappa, Venkataramappa, Venkatamuni and Venkateshlu of Deshihalli Village, it was alienated under the orders of Tahsildar dated 24.12.1981. The have executed registered General Power of Attorney in favour of M. Jagannath on 13.02.1984 to safeguard the property of executants. On 21.07.1984, he sold the property to B.A. Seetharamaiah Setty. The khatha was changed and approved plan was obtained to put up construction. The property bearing No. 11 and 12 as in the plan comprising land bearing Sy. No. 38 of Deshihalli Village which is alienated for residential purpose and two sites are adjacent to one another measuring east to west 40 feet, north to south 60 feet. The sites are vacant, even though B.A. Seetharamaiah had obtained necessary documents and approved plan for putting up construction. He has sold the property under registered sale deed to Shankarappa, Mahanthappa, Thottada and handed over relevant documents pertaining to the property and put possession of the same. After purchase of the property, he made an application to the Town Municipal Corporation, Bangarpet and changed the khatha to his name. Hence, the documents show that he is in enjoyment and possession of the property. On 01.09.2004, Nagasheshamma attempted to trespass his property and attempted to remove the stone slabs since he is residing far away. Therefore, he filed a police complaint. The plaintiff is not entitled for any manner of right over the property and interfering with his possession over the property. Therefore, the defendant sought for dismissal of the suit and to allow his counter claim.

In order to prove his case, the plaintiff examined himself as PW-1 and examined three more witnesses and got marked documents Exs. P1 to P24. The defendant examined himself as D.W. -1 and got marked documents Exs. D1 to D24.

On the basis of the pleadings, the Trial Court framed the following issues:

"i) Whether the plaintiff proves that he is the owner in possession of the suit schedule property?

ii) Whether the plaintiff proves the interference by the defendant?

iii) Whether the defendant proves that he is the owner in possession and enjoyment of the WS schedule property?

iv) Whether the defendant proves the interference by the plaintiff?

v) Whether the plaintiff is entitled for the relief as sought for?

vi) Whether the defendant is entitled for the relief of counter claim?

vii) What order or decree?"

The Trial Court answered Issue Nos. 1, 2 and 5 in the negative and Issue Nos. 3, 4 and 6 in affirmative.

The suit of the plaintiff was dismissed and the counter claim of the defendant was allowed. The plaintiff was restrained from interfering with the defendant''s possession and enjoyment over WS schedule property by granting permanent injunction. Aggrieved by the same, the plaintiff preferred an appeal.

The Appellate Court allowed the appeal and set aside the judgment and decree passed in O.S. No. 145/2005 dated 10.02.2010 by the Prl. Civil Judge (Sr. Dn.), KGF. The suit of the plaintiff was decreed holding him to be the absolute owner in possession and enjoyment of the suit property. The defendant and his supporters were restrained by an order of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment of the suit property. Ostensibly, the counter claim of the defendant was also rejected. Aggrieved by the said order, the defendant is in appeal.

The appeal was admitted on 20.09.2011 to consider the following substantial questions of law:

"i) Whether the Appellate Court is justified in granting a decree in favour of the Respondent/Plaintiff inspite of the fact that the incorrect boundaries stated in the plaintiff vendor''s sale deed (Ex. P1) and plaintiff sale deed (Ex. P2)?

ii) Whether the Appellate Court is justified in rejecting the counter claim made in written statement by the defendant on the ground that the defendant has not filed the counter claim as required under Order VIII Rule 8(A) of the Code of Civil Procedure?

iii) Whether the Appellate Court is justified in granting a declaratory relief in favour of the respondent/plaintiff inspite of non- examination of the vendor of the plaintiff (Ex. P2)?"

Learned counsel for the appellant contends that the Appellate Court committed an error in misreading the material evidence on record. That no material has been produced by the plaintiff, in order to establish his case. That the vendor of the plaintiff has not been examined. That there is a difference of the schedule of the property as mentioned in Ex. 1 and P2 vis-�-vis the plaint schedule property. That the property claimed by him is quite different from the one that is sought for by the plaintiff. Hence, he pleads that the suit be dismissed by granting him the counter claim against the plaintiff.

On the other hand, learned counsel for the respondent defends the impugned order.

Heard learned counsels and examined the records.

The Trial Court was of the view that the plaintiff has failed to establish his title and possession of the suit schedule property. It was of the view that on the failure of the plaintiff to examine his vendor, the title of the plaintiff could not be established. Since the defendant produced the documents from the year 1984, the documents produced by the plaintiff are for a much lesser period. That the claim is based on the re-grant order with respect to the said Sy. No. 38. Any dispute with regard to any granted land should be before the concerned Authorities. Hence, the suit was dismissed.

The First Appellate Court on considering the reasons assigned by the Trial Court reversed the same. It reconsidered the material evidence on record Ex. P1, which is the sale deed of the vendor of the plaintiff. Ex. P2 is the sale deed by which he acquired title. Ex. P3 is the mutation registered extract. Ex. P4 is the Encumbrance Certificate for the year 1981-1990. Ex. P4 would indicate that the vendors of Nagasheshamma are the owners of the said property and they executed the sale deed in favour of Nagasheshamma. Ex. P5 is the mutation register extract, which reveals the name of Narayanaswamy, and the said document is of the year 2004. The RTC in terms of Ex. P6 discloses that Sy. No. 38 to an extent of 2 1/2 guntas stands in the name of Nagasheshamma and the subsequent RTC, in terms of Ex. P7 would show the name of the plaintiff to the said extent. The plaintiff has also produced Exs. P8 and P9 and so also the receipt patta book as per Ex. P10. All these documents stands in the name of the plaintiff. The mutation register in terms of Ex. P13 and so also patta receipt in respect of the suit property is at Ex. P14 and the said documents also stand in the name of the plaintiff. The RTC extracts for the year 2005-06 are at Ex. P16 and for the year 2006-07 are at EX. P18, for the year 2007-08 are at Ex. P19 and for the year 2008-09 are at Ex. p20. All these documents also stand in the name of the plaintiff. PW-1 has also produced RTC extract in respect of the possession of his vendor as per Ex. P21 and Ex. P22 and so also mutation register extract as per Ex. P23 in respect of the suit property and another RTC extract as per Ex. P24. All these materials would lead to the only conclusion that the plaintiff is in exclusive possession and enjoyment of the suit schedule property. The evidence of PW-1 and all the materials on record clearly shows the possession of the plaintiff and so also his title over the suit property. The Trial Court was of the view that the lands being granted lands, within 15 years of the re-grant, the owner could not sell the property. Even though there is an imposed condition not to sell the property from the date of re-grant, land was sold within 15 years and the sale deed is not valid. The grant is not a subject matter of the dispute that has been raised by the defendants. What is sought by the plaintiff is for declaration of title and for possession. The question is, whether the granted land is forthcoming in Exs. P1 and P2? The Appellate Court on re-appreciation of the evidence, has rightly reversed the findings of the Trial Court.

The further contention of the appellant is that the schedule of the properties in terms of Ex. P1, namely, title deeds of the vendor of the plaintiff and Ex. P2, the title deeds of the plaintiff differ with that of the plaint schedule properties. I have considered in detail, the said contention. The suit schedule property as mentioned in Exs. P1 and P2 are one and the same. They are not different. What is sought to be contended is that the schedule that has been shown in the east of the property is by road in Exs. P1 and P2. However, in the plaint schedule, it has been shown as road (previously land of nagasheshamma). The west of the property by Jejappa''s land and road, north by land of Perumal and road (previously remaining land of Sy. No. 38). These two aspects in the schedule are in dispute. It is contended that there is difference in the schedule lands mentioned in Ex. P1 and P2.

That the schedule properties are agricultural lands in Sy. No. 38, measuring 2 1/2 guntas and bounded by the schedule mentioned therein. Since it is not the case of the appellant that the schedule properties are not one and the same, the appellant cannot have any grievance of the plaintiffs case in the lower Court.

I''am unable to accept such a contention. The boundaries of the east is ''road'' itself. There is only an added identification mentioned in the schedule. Hence, it cannot be said to be a different schedule. The contention of the appellant is not supported by any material evidence. Ex. P1 and P2 are one and the same. The Appellate Court is justified in granting the decree in favour of the respondent/plaintiff in terms of the vendor''s title vide Ex. P1 and P2. Hence the first substantial question of law is answered by holding that the First Appellate Court was justified in deciding the suit notwithstanding Exs. P1 and P2. The second substantial question of law is answered by holding that the Appellate Court was justified in rejecting the counter claim/written statement. The third substantial question of law is answered by holding that the Appellate Court is justified in granting a declaratory relief in favour of the respondent/plaintiff.

On answering the substantial questions of law, the appeal is dismissed.