K. Marulasiddappa vs Shivamurthayya and Others

A.V. Chandrashekara, J.—Heard the learned counsel appearing for the parties.

The matter is disposed by dictating the judgment in the open Court hall.

Concurrent findings are called in question before this Court by the lone plaintiff of Original Suit bearing No. 332/1998, which was pending on the file of the Court of Prl. Civil Judge (Jr. Dn.), Davanagere. Respondents herein are defendants 1 and 2 of the said suit.

Parties will be referred to as plaintiff and defendant Nos. 1 and 2 as per their ranking before the trial Court.

Facts leading to the filing of the suit in O.S. No. 332/1998 by the plaintiff - appellant are as follows:--

"(a) Plaintiff is stated to have purchased a vacant site measuring 30 feet East to West and 27 feet North to South on the eastern side and 5 feet on the western side (southern side) bearing khaneshumari Nos. 205 and 206 of Avaragere Village at Davanagere, from a lady by name, Smt. Papamma, through a registered sale deed dated 24.10.1983 for a consideration of Rs. 2,000/-. The said Papamma is said to have delivered possession of the said site in his favour. Plaintiff is stated to be in lawful possession and enjoyment of the suit schedule property. The property in question is stated to have come within the limits of Davanagere City Municipality.

(b) Defendant No. 1 is stated to be in possession of the property situated on the eastern side of the suit schedule property and he is stated to have made all efforts to dispossess the plaintiff by force. Defendant No. 1 is stated to have put up a construction by encroaching the suit property on the eastern side of the suit property. Since defendant No. 1 tried to add further construction to the existing building, plaintiff was constrained to file a suit for declaration to the effect that the act of defendant to put up construction by encroaching portion of the suit schedule property is illegal and for mandatory injunction so as to direct the 1st defendant to demolish the compound wall put up by him and to vacate and hand over the encroached portion.

(c) During the pendency of the suit, 2nd defendant was brought on record by the plaintiff under Order I Rule 10(2) of the Civil Procedure Code.

(d) Defendant No. 1 has filed detailed written statement denying all the material averments and called upon the plaintiff to prove the contents of the plaint strictly. According to him, one A.H. Thippaiah, is stated to have sold a vacant site bounded on: East by property of A.H. Thippaiah; West by Avaragere road; North by Itagi Siddappa''s house and South by property of A.H. Thippaiah in the month of February 1975 to one Bheemappa and the said Bheemappa was in lawful possession and enjoyment of the same. Bheemappa is said to have sold the said site on 16.06.1998 to defendant No. 1 under a registered sale deed and is stated to have handed over possession of the same. Though the measurement mentioned in the said sale deed is 15 feet x 30 feet, the actual measurement available at the spot on the eastern side from South to North was 15 feet and towards western side from South to North was 15 feet. The remaining property has gone to the formation of Pune Bengaluru road inclusive of the road margin. By oversight and due to old age, Bheemappa is said to have sold the same property to Smt. Papamma on 16.05.1975 and Smt. Papamma had no right whatsoever on the said property. The very suit of the plaintiff is stated to be not maintainable without seeking the relief of declaration. The suit is stated to be specifically barred by time. A rough sketch is also appended to the said written statement for better clarification of the facts of the case.

(e) Defendant No. 1 has chosen to file detailed written statement.

(f) Defendant No. 2 has also filed detailed written statement denying all the material averments. Thippaiah, who was owner of the site formed in khaneshumari Nos. 205 and 206 of Avaregere had sold two sites bearing Nos. 5 and 6 measuring 15 feet x 30 feet each on 26.11.1977 for consideration in favour of Jayanna and Jayanna is stated to have purchased a site measuring 30 feet x 30 feet from the said Thippaiah. The said Jayanna is stated to have sold the two properties, which he had purchased under two sale deeds to the 2nd defendant on 16.04.1999 for a sum of Rs. 40,000/-. Thus, 2nd defendant was in possession of an area measuring East to West 60 feet and North to South 30 feet. Defendant No. 1 is stated to have sold a portion measuring 60 feet East to West and 4 feet North to South, which is situated to the south of the above site for consideration of Rs. 5,500/- and delivered possession. Defendant No. 2 is stated to have constructed a house over the said property and has been residing therein. With these pleadings, she has requested the Court to dismiss the suit.

(g) On the basis of the above pleadings, following issues were framed:

"1. Whether plaintiff proves that the acts of the defendant is illegal?

Whether plaintiff proves that he is in actual possession of the entire suit schedule property?

Whether defendant proves that he purchased the property from Bheemappa and measuring 15 feet x 30 feet?

Whether defendant proves that the suit is barred by non-joinder of Sri Siddalingeshwara Educational Trust?

Whether defendant proves that suit for bare injunction without declaration is not maintainable?

Whether defendant proves that the suit is barred by limitation and concept of acquiescence and latches?

Whether defendant proves that the plaintiff is estopped from urging his rights over property?

Whether defendant proves that suit is not properly valued and this court has no jurisdiction to try the suit?

Whether plaintiff is entitle for the reliefs as sought for?

What order or decree?"

During the pendency of the suit, Assistant Director of Land Records, Davanagere sub-division, had been appointed as Commissioner and he has submitted report, which is marked as Ex. C1. Defendant No. 1 has filed objections to the said Commissioner''s report. Plaintiff''s son is examined as P.W. 1 and one Siddaraju is examined as P.W. 2. Forty two exhibits have been got marked on behalf of the plaintiff. Shivamurthy swamy is examined as D.W. 1 and three exhibits have been got marked on his behalf. Mr. Somasundar is examined as C.W. 1 and Ex. C1 is the sketch. After analyzing the oral and documentary evidence, learned Judge of the trial Court has chosen to answer issue Nos. 1, 2, 4, 6 and 7 to 9 in the negative and issue Nos. 3 and 5 in the affirmative. Ultimately, suit came to be dismissed. Against the said judgment and decree, appeal under Section 92 of CPC, was filed by the plaintiff before the Civil Judge (Sr. Dn.), Davanagere, and same was withdrawn and transferred to the Court of Prl. Civil Judge (Sr. Dn.) at Davanagere, which was numbered as R.A. No. 197/2003. The learned Judge has chosen to dismiss the said appeal by framing the following points for consideration as found in paragraph No. 10 of the judgment:

"1. Whether the judgment and decree passed by the lower Court is perverse, capricious and arbitrary and it calls for any interference?

What order?"

Point No. 1 has been answered in the negative and ultimately, appeal has been dismissed. The concurrent findings are called in question.

The present appeal has been admitted to consider the following two substantial questions of law framed on 29.08.2006:

"(a) Whether, the lower Appellate Court was justified in non-suiting the plaintiff by ignoring the Commissioner''s report?

(b) Whether, the judgments and decrees of the Courts below are in conformity with Order 41 Rule 31 of Code of Civil Procedure?"

After hearing arguments, this Court has thought it fit to frame one more substantial question of law relating to the maintainability of the suit filed for the relief of mandatory injunction seeking declaration of title. Third substantial question of law is as follows:--

"(c) Whether the suit filed by the plaintiff for the relief of mandatory injunction without seeking the relief of declaration of title in respect of the entire site purchased by him is not maintainable in law?"

After framing of the third substantial question of law mentioned above, learned counsel for the parties have submitted their further arguments.

What is argued before this Court is that the first appellate Court has ignored the report of the Commissioner and it has mechanically dismissed the appeal. The report of the Commissioner has to be considered as any other evidence and the same has not been considered by the first appellate Court. The report of the Commissioner will have to be assessed in the light of other oral and documentary evidence placed on record. The report of the Commissioner discloses that the property stated to have been purchased by the plaintiff on 24.10.1983 is indicated in letters ''ABCD''. The property purchased by 1st defendant under registered sale deed dated 16.06.1998 measuring 15 feet x 30 feet is indicated in letters ''AEFD''. The total measurement of the vacant area purchased by Jayanna on 16.04.1999 measuring 30 feet x 60 feet is indicated as ''HIDG''. The area measuring 4 feet x 60 feet purchased by the 2nd defendant from the 1st defendant on 16.04.1999 is indicated as ''IJKD''. The area measuring 4 feet x 30 feet stated to have been encroached by the 1st defendant is shown in letters ''ALKD'' and it is shown in brick colour. It is also mentioned that the Sajja put up by the 2nd defendant to her house protrudes on this area indicated in letters ''ALCD''.

Substantial question of law (a): Learned Judge of the first appellate Court has not taken this aspect into consideration because the suit of the plaintiff is not brought for the relief of declaration of title. Admittedly, the relief No. 1 sought in the prayer column is intelligently drafted so as to depict that it is the relief of declaration of title. On going through the same, this Court is of the considered opinion that it is only a clever drafting of the prayer column and does not disclose the relief of declaration being sought. In the light of emphatic denial of the title of the plaintiff by the defendants, the plaintiff was expected to seek the main relief of declaration. As could be seen from the contents of the Commissioner''s report and the pleadings of the parties, there is rival claim to the said area indicated in ''ALCD''. This portion is a part and parcel of an area measuring 4 feet x 60 feet purchased by 2nd defendant from Jayanna through sale deed dated 16.04.1999. In fact, the sale deed relied upon by the 1st defendant is earlier in point of time and he had purchased the same from Bheemappa, who in turn, had purchased it from Thippaiah way back in February 1975. In the light of serious rival claim to the disputed space, first appellate Court is justified in not attaching much significance to the Commissioner''s report and accordingly, substantial question of law (a) is answered in the affirmative.

Substantial question of law (b): What is argued before this Court is that the first appellate Court is expected to reassess the oral and documentary evidence in the right perspective since the first appellate Court is the final Court on facts and law in terms of Section 96 of CPC. It is further argued that first appellate Court has not framed proper points for consideration as per the mandate of Rule 31(a) of CPC of Order 41 of CPC. He has argued that unless proper points for consideration are formulated by the first appellate Court, it will not be in an advantageous position to focus its attention on the oral and documentary evidence. It is true that the first appellate Court is expected to frame proper points for consideration strictly in terms of Rule 31(a) of Order XLI of CPC. On going through the judgment of the first appellate Court, it is seen that the point formulated is an omnibus points and does not relate to the specific grounds urged in the appeal memo. Nevertheless, first appellate Court has adverted to the oral and documentary evidence placed on record and has reassessed the entire evidence. It is not as though the first appellate Court has adopted a callous approach towards the judgment of the trial Court. Even in the absence of proper points for consideration, the first appellate Court has reassessed the oral and documentary evidence in the right perspective. Therefore, substantial question of law (b) is also answered in the affirmative.

Substantial question of law (c): Admittedly, suit of the plaintiff is basically one for mandatory injunction based on a sale deed stated to have been executed in his favour by Smt. Papamma. The site purchased by the 1st defendant from Bheemappa was in the year 1998, but the vendor of the 1st defendant chose to purchase the same from Thippaiah in the year 1975 i.e., long prior to the sale deed obtained by the plaintiff from Smt. Papamma. The evidence placed on record and more particularly the Commissioner''s report discloses that 2nd defendant has purchased only a space measuring 4 feet x 60 feet from Jayanna, who in turn, had purchased it through registered sale deeds from Thippaiah. The total extent of land purchased by Jayanna is indicated by letters ''HIDG'' and the area sold by Jayanna measuring 4 feet x 60 feet is indicated by letters ''IJKDI''. As rightly pointed out by Mr. Gopal, learned counsel appearing for the 1st defendant, there is rival claim with regard to the disputed portion.

What is held by the Hon''ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, AIR 2008 SC 2033 : (2008) 3 CLT 23 : (2008) 4 SCALE 718 : (2008) 4 SCC 594 : (2008) AIRSCW 4959 is that where the defendant asserts his own title in respect of a vacant site in the suit for the relief of injunction by the plaintiff, the plaintiff is expected to seek the comprehensive relief of declaration of title and the consequential relief of injunction or possession, as the case may be. Para 11.3 at page No. 2037 reads as under:

"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

In the light of the aforesaid judgment, substantial question of law(c) is to be held in the affirmative. Accordingly, appeal is liable to be dismissed.

ORDER

Appeal is dismissed. Notwithstanding dismissal of the appeal, plaintiff would be at liberty to file a comprehensive suit seeking the relief of declaration of title and such other consequential reliefs deemed fit in the circumstances of the case in accordance with law. In such an event, the defendants are at liberty to take suitable stand as available to them as per law.

Parties to bear their own costs.