K.H. Ramachandrappa vs Thammaiah and Others

Ravi V. Malimath, J.—It is the case of the plaintiff that the katha bearing No. 743 measuring 46'' x 55'' originally belongs to one Basappa and his sons. It was sold to the plaintiff under a registered sale deed dated 18.12.1973. Since then the plaintiff is in possession and enjoyment of the property as absolute owner. He filed O.S. No. 124/1975 against his vendors for declaration. It was dismissed. He filed R.A. No. 65/1978 which was allowed. The suit was decreed. Execution No. 46/1982 was taken up and he was granted possession of the suit schedule property measuring 46'' x 55''. Thereafter he constructed a building to an extent of 46'' x 40'' retaining the vacant space measuring 46'' x 15'', which is the suit schedule property. He has put up a thatched hut over the same. The defendant having no manner of right, title or interest muchless possession started interfering with his possession. He filed O.S. No. 571/1996, which was dismissed as not pressed. Even then the defendant continued the interference. Hence the plaintiff had filed the instant suit.

The defendant on service of notice denied the suit averments. He denied the litigation pleaded by the plaintiff. He pleaded he is in possession and enjoyment of the written statement schedule property since 40 to 50 years. That he is running a petty shop in it. Originally it belongs to Kyatasandra Grama Panchayat and he is paying taxes of it. He has obtained electric connection and he is paying the charges. That the plaintiff has put up the construction in the entire extent of his property and there is no vacant space as claimed. Hence he plead for dismissal of the suit. On the basis of the pleadings the trial court framed the following issues:

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

Whether the plaintiff proves that the defendant has interfered with the peaceful possession and enjoyment of the suit schedule property?

What order or decree?"

In respect of his case the plaintiff examined one witness and marked 23 documents. Two witnesses were examined on behalf of the defendant and 29 documents were marked. Both the issues were held in the affirmative.

The suit was decreed restraining the defendants from disturbing the plaintiffs possession over the suit schedule property. Aggrieved by the same the defendants preferred an appeal. The appeal was allowed. The judgment and decree passed by the trial court was set aside. The suit was dismissed. Hence the present second appeal by the plaintiff.

By the order dated 07.02.2013 the appeal was admitted to consider the following two substantial questions of law:

"1. Whether the lower appellate court was right and justified in reversing the judgment and decree passed by the trial court having held that the sale deed produced and the various documents showing the khata and payment of tax were found to support the case of the plaintiff?

Whether the lower appellate court was justified in ignoring the judgment and decree passed in the previous suit filed by the plaintiff in O.S. No. 121/1975 against his vendors and the judgment in R.A. No. 65/1978 which arose out of the same wherein it is declared that the appellant-plaintiff was the absolute owner in possession of the property in question?"

Learned counsel for the appellant/plaintiff contends that the first appellate court committed an error in misreading the material evidence on record. That there is substantial material to show that the plaintiff is in possession as owner of the suit schedule property. The earlier suit filed by him in O.S. No. 124/1975 ended in the execution proceedings through which a mahazar was drawn and the property in question measuring 46'' x 55'' in all was handed over to him. The present suit is restricted to a portion of the said property measuring 46'' x 15''. Therefore, the southern boundary is shown as the property of Krishnappa, who is none other than his brother and beyond the southernmost schedule of the property in terms of the sale deed as well as the original decree passed in O.S. No. 124/1975 is the road. The appellate court having failed to consider the same has reversed the order. Hence he prays for decreeing the suit.

On the other hand, learned counsel for the respondents contend that there is no error committed by the appellate court and it does not calls for interference. He further contends that the plaint schedule mentioned in the plaint does not match the schedule as mentioned in O.S. No. 124/1975. Therefore, no decree could be granted.

In support of his case he relies on the judgment of the Hon''ble Supreme Court in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, with reference to para 10 to contend that a rightful owner who has been wrongfully dispossessed may take possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession.

Reliance is also placed on the order of the Hon''ble Supreme Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Limited and others reported in 2005 (1) KCCR 227 with reference to para 8 to contend that the power of attorney holder cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge.

Reliance is also placed on the order of the learned Single Judge of this Court in the case of Smt. Nirmala Murthy Vs. Sri Naveen Chhaggar and Bangalore City Chamarajpet Art Silk Handloom Weavers and Exporters Association, to contend that a suit is not maintainable until and unless a declaration is made in favour of the plaintiff. The continued possession of the plaintiff particularly in the light of denial by the first defendant cannot be recognized in law, more so when the first defendant has also claimed title in the property and had denied the title of the plaintiff. Hence he pleads that the substantial question of law be answered in his favour and the judgment and decree of the first appellate court in dismissing the suit be affirmed.

Heard learned counsels.

The admitted facts are that the plaintiff purchased the property in terms of a registered sale deed dated 18.12.1973. He filed O.S. No. 124/1975 seeking for a declaration and possession which was dismissed and in R.A. No. 65/1978 the suit was decreed. He was declared as the owner and entitled for possession. He took out execution in 46/1982 in terms whereof a mahazar was drawn out vide EX. P5. I have examined the same. EX. P5 would narrate that the suit schedule property measures East to West 46 feet and North to South 55 feet. The suit schedule property herein and the suit schedule property in O.S. No. 124/75 and as evidenced by the mahazar EX. P7 are identical in so far as the east, west and northern boundaries are concerned. The plaintiff was put in possession of the property measuring East to West 46 feet and North to South 55 feet. The present suit schedule property is East to West 46 feet and North to South 15 feet.

The contention of the plaintiff is that beyond 15 feet there is 40 feet of the said property which stands in the name of Krishnappa, who is none other than his brother, who has put up the shops at the end of the Krishnappa''s property namely at a total distance of 55 feet which is the southernmost property which is the Bangalore-Tumkur National Highway Road. This boundary is identical to the boundary in terms of EX. P5. Therefore, the suit schedule property is not the entire extent in terms of EX. P5, but only a part of it. Therefore, the finding recorded by the first appellate court is contrary and is erroneous. The first appellate court fell in error in misreading the material evidence on record to hold that the plaintiff has failed to establish his case. In view of the admitted documents with regard to the earlier suit, the execution and the mahazar, the first appellate court has committed an error in dismissing the suit.

The contention of the defendant is that he has been in possession of the written statement schedule property and that there was a disturbance to the same. Hence he has filed O.S. No. 390/96 against the City Municipal Council wherein an order of injunction was granted against them. Therefore, the City Municipal Council were restrained from interfering with his peaceful possession. Admittedly he has no title to the property. Admittedly a decree has been passed in his favour. Therefore, the decree would operate only so far as the defendants therein is concerned. The plaintiff herein was not a party to the said suit. Therefore, such a decree would not be binding on him. Even otherwise there is no claim set up by the defendants so far as the suit schedule properties are concerned. There cannot be such a claim in the face of the judgment and decree in O.S. No. 124/75 which is based on the registered sale deed. Therefore, I''am of the considered view that the first appellate court misdirected itself in reversing the judgment of the trial court.

The judgment reported in Smt. Nirmala Murthy Vs. Sri Naveen Chhaggar and Bangalore City Chamarajpet Art Silk Handloom Weavers and Exporters Association, would not come to the aid of the defendant. What has been held therein is with regard to the maintainability of the suit, when the title has been denied by the defendants. Here too the title has been denied. But mere denial of the title would be of no avail. Admittedly, the plaintiff has no title to the suit schedule property. What he claims is based on the decree he has been obtained, an injunction, that too operative only against the City Municipal Council. In fact the material on record would show that the katha that has been entered in his name has been cancelled in terms of EX. P. 16. Therefore, the only thread that he could hold on to is the decree for injunction. Therefore, the said judgment would not be of any assistance to him.

So far as the judgment reported in 2005 (1) KCCR 227 is concerned, there is no dispute with regard to the principles of law laid down therein, that an agent cannot depose on behalf of the principal requires to be accepted. Even on applying the said principle, I''am of the considered view that the same would not come to the aid of the defendants.

The other judgment relied upon in ILR 2006 Kar 1042 is with reference to obtaining possession in accordance with law. That the party cannot take law into his own hands. Here too, there is no question of the plaintiff taking law into his own hands. He has approached an appropriate Civil Court to get his remedy. Therefore, the judgment would not help the appellant.

For the aforesaid reasons, the first substantial question of law is answered by holding that the lower appellate court was not right nor justified in reversing the judgment and decree of the trial court.

The second substantial question of law is answered by holding that the lower appellate court was not justified in ignoring the judgment and decree passed in the previous suit filed by the plaintiff in O.S. No. 124/1975.

On answering the substantial questions of law, the judgment and decree passed by the II Additional District and Session Judge, Tumkur, in R.A. No. 519/2009 dated 27.06.2011 is set aside. The judgment and decree dated 14.7.2008 passed in O.S. No. 182/1998 by the Court of The III Additional Civil Judge (Jr. Dn.) and JMFC, Tumkur, is affirmed.

Parties to bear their own costs.

The registry to return the original documents to the parties in accordance with law.