K. Ramaiah and Others vs Khaji Imam Khan and Others

Budihal R.B., J.

This is the appeal preferred by appellants-defendant Nos. 1 to 4 against the respondent plaintiff being aggrieved by the judgment and decree dated 4.9.2006 passed by the learned Civil Judge (Sr. Dn.) Chickballapura in R.A. No. 164/2004 dismissing the appeal in part and confirming the judgment and decree dated 28.9.2004 passed in O.S. No. 148/2000 by the learned Civil Judge (Jr. Dn.) and JMFC at Gowribidanur.

The brief facts leading to the filing of the suit before the trial court are that the respondent plaintiff filed the suit for permanent injunction against the appellants-defendants in respect of the suit schedule properties i.e., two landed properties as shown in the schedule to the plaint. It is further averred that the plaintiff is in lawful possession and enjoyment of the suit schedule properties being absolute owner of the same purchased under the registered sale deed dated 10.5.1962 executed in his favour by Sri. Esturi Subbaiah Shetty of Gowribidanur. The defendants are totally strangers to the suit schedule properties and they have no manner of right, interest or title over the same. The defendants in collusion with each other and with the deceitful intention to knock off the schedule properties, in the first week of June 2000, have been attempting to interfere with the lawful possession and enjoyment of the respondent plaintiff by attempting to trespass thereupon and creating obstacles to the agricultural operations of the plaintiff and tried to dispossess the plaintiff from his lawful possession and enjoyment of the schedule properties with the help of their supporters illegally and highhandedly. Hence, the suit.

The defendants appeared in the suit and all the defendants filed the common written statement. They have denied all the allegations made by the plaintiff in the plaint and further averred that plaint schedule properties were belonged to the father of the husband of the 3rd defendant by name one Ganganna, who mortgaged the schedule properties along with other items of the properties to one Sri Lakshminarayana Swamy Cooperative Society, Saganahalli on 22.1.1927. The said society got a decree against Ganganna in respect of plaint schedule properties and also other properties. Hence Kariyanna S/o Ganganna, had filed O.S. No. 367/1935-36 for partition of the properties including the schedule properties and the said suit was decreed before the Munsiff Court at Doddaballapur. Late Kariyanna filed execution No. 170/1978 to execute the decree grated in O.S. NO.367/1935-36 and requested the Munsiff Court to appoint the Tahsildar of Gowribidanur Taluk as official receiver who had already been appointed as receiver in Ex. Case No. 314/1946-47. The properties including the plaint schedule properties remained in the hands of official receiver since 1946. The execution proceedings was numbered as Ex. P. No. 20/1989 and pending before said court. The legal representatives of the decree holder filed an interim application in Ex. P. No. 20/1989 to hand over possession of schedule properties from the official receiver to their hands. The court was pleased to pass an order directing the Tahsildar, the official receiver to put the legal representatives of the decree holder, who are the defendants in the said suit, in possession of the property including the plaint schedule properties. In pursuance of the said direction of the court, the official receiver delivered the plaint schedule properties item No. 2 to the defendants on 7.9.1998 and since then, the defendants are in peaceful possession and enjoyment of the plaint schedule properties. The vendor of the plaintiff had challenged the order of the said court in C.R.P. Nos. 3219 and 3220/1997 directing the official receiver to hand over possession of the schedule properties, which were in possession of the legal representatives of the defendants, in his favour and this Court upheld the order of the trial court and dismissed the C.R. Ps. The defendants are in the possession and enjoyment of the plaint schedule properties on the date of the suit. The plaintiff filed the frivolous suit by creating the documents colluded with his vendor who was the judgment debtor in Ex. P. No. 20/1989. There is no cause of action. The suit is bad for non-joinder and mis-joinder of the necessary parties and it is not properly valued for both jurisdiction and court fee and hence, sought to dismiss the suit.

On the basis of the said pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves that, he is in the lawful possession of the suit property as on the date of the suit?

Whether the plaintiff proves that, the defendant has caused attempting to interfere in his possession?

Whether the plaintiff is entitled for the reliefs claimed?

What order or decree?"

The parties led their evidence before the trial court and after considering the oral and documentary evidence, ultimately, the trial court decreed the suit and granted injunction order as prayed in the suit.

Being aggrieved by the judgment and decree of the trial court, the defendants preferred an appeal before the first appellate court in R.A No. 164/2004 and the first appellate court, after considering the merits of the case, ultimately, dismissed the appeal by judgment and decree dated 4.9.2006. Being aggrieved by the judgment and decrees of the courts below, the appellants-defendants have preferred the present appeal on the grounds as mentioned at (a) to (m) of the appeal memorandum.

While admitting the appeal, this Court has framed the following substantial question of law by order dated 30.7.2010:

"Whether in the facts and circumstances of the case, the Courts below were justified in granting injunction in favour of the respondent ignoring the documents produced by the appellants to show that possession was delivered to them in execution proceedings in Ex. No. 20/1989?"

Heard the arguments of the learned counsel appearing for the appellants-defendants. Since the respondent-plaintiff expired during the pendency of this appeal, his legal representatives were brought on record as respondent Nos. 1 to 14. Though the respondents were served, they remained absent and unrepresented.

Learned counsel appearing for the appellants/defendants, during the course of the arguments, made the submission that in respect of the suit schedule properties, one Kariyanna filed the suit O.S. No. 367/1935-36 for partition and separate possession. The said suit was decreed and Kariyanna filed Ex. P. No. 314/46-47 and sought for appointment of receiver to take possession of all those properties and the same was allowed and the official receiver took the possession of the properties. He also made the submission that Kariyanna filed another Ex. P. No. 170/78 and later, it was renumbered as E.P No. 20/1989. The learned counsel made the submission that the appointment of the receiver and delivering the possession to the official receiver was challenged in C.R.P. No. 3219/1997 by the vendor of the plaintiff and the same was dismissed. In the year 1997, the suit schedule properties were handed over to the appellants defendants and from that date till today, the appellants defendants continued the possession and enjoyment of the properties. It is also his submission that the claim of the appellants defendants is only against item No. 2 of the schedule property. The learned counsel drew the attention of this Court to the decree passed in O.S. No. 367/1935-36 which is marked as per Ex. D.1 and the copy of the order in C.R.P. Nos. 3219 and 3220/1997 is marked as per Ex. D.2. It is also his further submission that the mahazar drawn by the Tahsildar is not at all considered by the courts below. The judgment and decrees passed by the courts below are one sided and the oral and documentary evidence produced by the defendants are not properly considered and appreciated by the courts below. Hence, he submitted that the judgment and decrees of the courts below are not in accordance with the materials placed on record and they are not sustainable in law. Hence, he submitted to allow the appeal and to set aside the judgment and decrees passed by the courts below by dismissing the suit of the respondents plaintiffs.

I have perused the pleadings of both sides presented before the trial court, oral evidence of P.Ws.1 to 3, D.W.1, the documents at Exs.P.1 to P. 14 and D.1 to D.7, judgment and decrees passed by the trial court as also the first appellate court, the grounds urged in the appeal memorandum and also considered the argument advanced by the learned counsel appearing for the appellants defendants.

The suit schedule properties are the two agricultural lands bearing Sy. No. 120/2 measuring 1 acre 14 guntas and the land bearing Sy. No. 120/3 measuring 2 acres 24 guntas situated at Gangasandra, Kasaba Hobli, Gowribidanur Taluk. The original respondent plaintiff filed the suit before the trial court for permanent injunction against the appellant defendants to restrain them from causing obstruction to the possession and enjoyment of the suit schedule properties. The trial court decreed the suit of the respondent plaintiff and granted permanent injunction against the appellant defendants, against which the defendants preferred regular appeal and the first appellate court by dismissing the appeal confirmed the judgment and decree passed by the trial court. Hence, the defendants preferred the present appeal. During the pendency of this appeal, the original respondent-plaintiff expired and his legal representatives were brought on record.

Looking to the judgment and decrees passed by the courts below, the courts below have mainly relied upon the sale deed under which the original respondent plaintiff purchased the suit schedule properties from one Esturi Subbaiah Shetty, s/o. Sampangiramaiah of Gowridibuanu dated 10.5.1962. The trial court has also referred to the oral evidence of the parties and it was of the opinion that the plaintiff who was examined as P.W.3 deposed in his evidence regarding the possession of the suit schedule properties and his evidence is also supported by the oral evidence of P.W.1 and 2. The court also refers to the contents of the sale deed said to have been executed from Esturi Subbaiah Shetty in favour of the respondent plaintiff. Therefore, the trial court held that respondent plaintiff established his possession over the suit schedule properties.

The learned counsel appearing for the appellants-defendants during the course of his arguments drew the attention of this court that one Kariyanna, who is the father of defendant Nos. 1 and 4 and husband of defendant No. 3 filed the suit O.S NO.367/1935-36 for partition and separate possession arraying the Saganahalli (Lakshminarayana Swamy) Cooperative Society as defendant No. 1 and Gangappa, son of Kariyanna as defendant No. 2. The said suit was decreed. It is also the submission of the learned counsel that the said Kariyanna filed the Execution Petition firstly numbered as ExP.314/46-47 subsequently, he filed another Ex. P. No. 170/1978 which was subsequently numbered as Ex. P. No. 20/1989. Perusing the documents produced in the case, in the said Ex. P., I.A. No. 18 was filed by the legal representatives of Kariayanna as decree holders requesting the court to direct the official receiver to deliver the possession of the suit schedule properties into their possession. The said application was allowed and the official receiver was directed to hand over the possession of the suit schedule properties retained by him to the legal representatives of the decree holder. The materials would further show that Esturi Subbaiah Shetty i.e., the vendor of respondent plaintiff also filed application LA No. 21 in the said E.P. No. 20/1989 requesting the court to recall the order dated 14.7.1997 passed in favour of the legal representatives of the decree holder. But the application I.A No. 21 filed by the vendor of the respondent plaintiff was dismissed by the executing court. Therefore, two civil revision petitions were preferred before this Court in C.R.P. Nos. 3219 and 3220/1997. This court disposed of both the revision petitions by common order dated 30.11.1998. So the order of the executing court directing the official receiver to hand over the possession of the suit schedule properties to the legal representatives of the decree holder becomes final and the documents produced on behalf of the appellants defendants goes to show that as per the order of the executing court, the possession of the suit schedule properties was handed over to the legal representatives of the decree holders. In that connection, the document Ex. D.4 mahazar has been produced wherein it is clearly stated that in the presence of the revenue inspector and village accountant, the possession of the properties were handed over to the legal representatives of Kariyanna and in the said proceeding, the suit schedule item No. 2 in the present suit i.e., Sy. No. 120/3 has been shown as item No. 7. In the document at Ex. D.6 produced by the appellant defendants it is stated that regarding the delivery of the possession to the legal representatives of Kariyanna, the L.R.s have stated that they have received the possession of the said property. So these documents would clearly show that the possession in respect of Sy. No. 120/3 has been handed over to the legal representatives of Kariyanna. But the courts below have wrongly observed that it is only the paper decree showing the possession and there is no evidence to show that the appellants defendants were actually put into the possession of the said property. But this observation made by the courts below is totally incorrect and it is not in accordance with the oral and documentary evidence produced in the case. It is no doubt true the claim of the appellant defendants in respect of the property bearing No. 120/3 with regard to the half share in the said property said to have been fallen to the share of Kariyanna. Looking to the order passed by this Court in C.R.P. Nos. 3219 and 3220/1997 by order dated 30.11.1998, it goes to show that the revision petitioner therein contended before this court that the decree holders are in possession of the area more than what they are entitled for and the said order is illegal. So this observation made by this court in the said order of the revision petitions clearly goes to show that Esturi Subbaiah Shetty, the vendor of the respondent plaintiff himself submitted before this Court that the decree holders are in possession of the area more than they are entitled. This order also goes to show that the legal representatives of the decree holder Kariyanna were having actual possession of the property No. 120/3. Even on this ground also, the observations made by the courts below that respondent plaintiff proved his possession in respect of Sy. No. 120/3 and even though there are documents that receiver handed over the property to the possession of the legal representatives of the decree holder in respect of Sy. No. 120/3, is only a paper decree not showing the actual possession of the appellant defendants, is totally incorrect. When the materials on record both oral and documentary would clearly establish that the appellants defendants are in possession of the property bearing Sy. No. 120/3, when the possession was again handed over to the plaintiff, the burden is on the plaintiff to establish. In this regard, the plaintiff has not produced any documentary evidence to show that from the legal representatives of the decree holder Kariyanna, again the possession of the property bearing Sy. NO. 120/3 was handed over the plaintiff, absolutely there is no evidence on the side of the plaintiff. This aspect of the matter has been not at all properly considered by the courts below and on the contrary both the courts below have wrongly read the oral evidence as well as the documentary evidence produced in the case. Therefore, the finding of the courts below so far as Sy. No. 120/3 is concerned is perverse and capricious and it is not sustainable in law.

Hence, I pass the following order:

"The appeal in respect of Sy. NO.120/2 i.e., first item of the suit schedule properties dismissed and the judgment and decrees passed by the courts below is hereby confirmed. So far as the suit schedule item No. 2 i.e., Sy No. 120/3 is concerned, this appeal is allowed and the judgment and decrees passed by the courts below are hereby set aside and the so far as the said property is concerned, the suit of the respondent plaintiff is dismissed."