Kolagal Shekappa and Others vs S. Chennanagouda

B.V. Nagarathna, J.—1. The defendants in O.S. No. 738/2010 have preferred this Second Appeal, assailing judgment and decree of the Principal Senior Civil Judge & CJM, Bellary, passed in R.A. No. 37/2012 dated 30.06.2014 by which, judgment and decree passed by the I Addl. Civil Judge (Jr.Dn.), Bellary, dated 5.4.2012 passed in O.S. No. 738/2010 is confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

It is the case of the plaintiff that the suit property originally belonged to one Megalageri Dyavaiah of Kolagallu village. After his death his sons, Thimmaiah, Marenna and Eranna inherited the same and they sold the property to the plaintiff and his brothers under registered sale deed dated 18.10.1963 for a valuable consideration and put the plaintiff and his brothers in actual possession and enjoyment of the same. Thereafter, khata in respect of the suit property was changed in the name of the plaintiff and his brothers. Later they developed the suit property. The suit property is agricultural land bearing Sy. No. 459/D measuring 9.76 acres situated in Kolagal village, Bellary Taluk and District, more fully described in the schedule to the plaint. The defendants being third parties without having any right, title or interest unnecessarily started interfering with the peaceful possession and enjoyment of the suit property. They made hectic efforts to dispossess the plaintiff from the suit property. Therefore, plaintiff filed the suit seeking a decree of permanent injunction against defendants.

On receipt of suit summons and court notices from the trial court, defendants 1 to 4 appeared and filed their written statement denying averments made by the plaintiff. They contended that the sale deed dated 18.10.1963 was concocted and plaintiff had not got any title or possession of the suit property under any such instrument. They further contended that the suit property was mortgaged under registered mortgage deed dated 14.08.1949 registered in the Office of the Sub-Registrar, Bellary, as document No. 2138/1949. Hence, execution of the sale deed in favour of plaintiff did not arise at all and if such a sale has taken place on 18.10.1963 it is null and void. They also contended that the suit for bare injunction without seeking the relief of declaration of title is not maintainable. That the suit property is agricultural land granted by the State Government and that the sale has been made in violation of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (herein after referred to as ''the Act'' for the same of brevity). That Sections 4 and 5 of the said Act have been infracted and therefore, the sale deed dated 18.10.1963 has no legal sanctity. Therefore, they sought for dismissal of the suit.

On the basis of the rival pleadings the trial court framed the following issues and additional issues:

"1. Whether plaintiff proves that he is in actual possession and enjoyment of suit property as on the date of suit, within given boundaries?

Whether plaintiff further proves the alleged interference to his possession by defendants?

Whether the plaintiff is entitled for the relief as prayed for?

What decree or order?

Additional Issues:

Whether the defendant proves that suit property is mortgaged property under registered mortgage deed dated 4.8.1949. Hence the subsequent sale of the same by registered sale deed dated 18.10.1963 is illegal and null and void?

What order or decree?"

In support of his case, plaintiff let-in his evidence as PW.1 and he produced 25 documents which were marked as Ex. P.1 to P.25. The defendants let-in the evidence of two witnesses. They relied upon seven documents, which were marked as Ex. D.1 to D.7. On the basis of the said evidence, the trial court answered issue Nos. 1 and 2 in the affirmative and issue No. 3 in the negative and additional issue No. 1 as "does not survive for consideration" and decreed the suit of the plaintiff by restraining the defendants, their agents, servants or anybody acting on their behalf from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff without due process of law.

Being aggrieved by the judgment and decree of the trial court dated 5.4.2012 the defendants preferred R.A.37/2012 before the I Appellate Court which, on hearing the parties, framed the following points for its consideration:

"1. Whether the judgment and decree passed by the trial court needs interference?

What order?"

It answered point No. 1 in the affirmative and by its judgment dated 27.3.2013 allowed the appeal and remanded the matter to the trial court to dispose of the suit within six months by framing issue regarding plaintiff having title over the suit land.

Being aggrieved by the remand of the matter by the I Appellate Court to the Trial Court, the plaintiff preferred MSA.574/2013 before this Court. By judgment dated 9.1.2014, this Court allowed the MSA and remanded the matter to the I Appellate Court and directed to dispose of R.A. No. 37/2012 afresh in light of the observations made by this Court. Consequently, the matter was taken up by the I Appellate Court. On hearing the learned Counsel for the parties it framed points for its consideration:

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

Whether the plaintiff proves the alleged interference caused by the defendants?

Whether the order passed in O.S. No. 738/2010 dated 05.04.2012 by the learned lower court I Addl. Civil Judge & JMFC, Bellary, is erroneous, illegal and requires to be interfered by this court?

What order?"

It answered point Nos. 1 and 2 in the affirmative and point in No. 3 in the negative and dismissed the appeal by confirming the judgment and decree of the trial court dated 05.04.2012.

Being aggrieved by the judgment of the I Appellate Court the defendants have preferred this second appeal.

I have heard learned Counsel for the appellants, Sri. A.S. Patil, and perused the lower court records as well as original records.

Learned Counsel for appellants submitted that the I Appellate Court has not complied with the directions issued by this Court in MSA.574/2013 and also the judgment and decree of the I Appellate Court dated 27.3.2013. In the circumstances, no issue with regard to the plaintiff having title over the suit schedule property was raised nor was it answered. He contended that the defendants who are appellants herein being aggrieved by the judgment and decree of the trial court dated 5.4.2012 had preferred R.A.37/12 before the I Appellate Court which had remanded the matter to the trial court so that an issue regarding plaintiff''s title to the suit schedule property could be framed and on recording evidence on the said issue the suit could have been disposed. For that purpose the matter was remanded. This Court in MSA.574/13 did not fault the judgment of the I Appellate Court dated 27.3.2013 with regard to the framing an issue regarding right, title and interest of the plaintiff vis-�-vis the suit property. This court only frowned upon the First Appellate Court remanding the matter to the Trial Court for that purpose. This court observed that the First Appellate Court itself could have answered that issue and thereafter adjudicated upon the appeal. He further contended that the First Appellate Court by its impugned judgment dated 30.6.2014 has not given any finding with regard to the right, title and interest of the plaintiff vis-�-vis the suit property. As a result, there is infraction of the directions of this court as well as the earlier judgment of the First Appellate Court dated 27.3.2013 and hence, the judgment and decree of the First Appellate Court has severe infirmities. Therefore, substantial questions of law would arise in this appeal which would call for admission of the matter for a detailed hearing.

Having heard the learned Counsel for the appellant and on perusal of the material on record it is noted that the trial court considered the suit to be one for bare injunction i.e. the plaintiff had sought for a decree of permanent injunction against defendants vis-�-vis suit property. The trial court had come to the conclusion that the plaintiff was in possession of the suit property pursuant to a registered sale deed executed in favour of the plaintiff and his brothers on 18.10.1963 which was marked as Ex. P.1. The trial court had also noted that the possession of the plaintiff vis-�-vis suit property was under that document. On considering the evidence on record, it concluded that there was interference with the possession of the plaintiff vis-�-vis the suit property by the defendants and consequently concluded that the plaintiff was entitled to the relief of permanent injunction. In the suit, at the instance of the defendants, one of the issues raised was as to whether the suit property was mortgaged under a registered mortgage deed dated 4.8.1949 and if so, whether the sale deed 18.10.1963 was illegal and null and void. On this issue, the defendants did not produce any mortgage deed in evidence if in fact the mortgage deed dated 04.08.1949 was in existence. Even a certified copy of the said mortgage deed was not produced in case it was a registered one. In the absence of such evidence, the trial court felt that additional issue No. 1 did not survive for consideration, particularly, when the plaintiff had proved that under a registered sale deed dated 18.10.1963 he was in possession of the suit property and he had proved interference by the defendants vis-�-vis his possession of the suit property and he had also proved that he was entitled to relief of permanent injunction. Further, the defendants did not state as to who had mortgaged the suit property and to whom. There was no evidence let in as to whether the said mortgage had been redeemed or not. Even assuming for a moment that there was registered mortgage deed dated 4.8.1949 in respect of the suit property, there is no bar in law for a mortgaged property being sold. Therefore, the contention of defendants that suit schedule property which was mortgaged could not be sold subsequently on 18.10.1963 to the plaintiff and his brothers and that the sale deed was null and void, has no legal force. Therefore, trial court decreed the suit of the plaintiff.

Being aggrieved by the judgment and decree of the trial court, defendants preferred R.A. No. 37/12 before the First Appellate Court. The First Appellate Court, in fact, took note of the contentions of the defendants and held that an issue regarding title to the suit property had to be framed by the trial court and on account of such an issue not being framed, set aside the judgment and decree of the trial court and remanded the matter for a fresh adjudication after framing an issue with regard to the plaintiff proving his title over the suit land. The order of remand of the First Appellate Court was questioned before this Court in MSA.574/2013. By judgment dated 9.1.2014 this Court allowed the appeal and set aside the judgment and decree of the First Appellate Court dated 27.3.2013 and directed the First Appellate Court to consider the appeal afresh. While doing so, the First Appellate Court reiterated the issues which arose in the suit for permanent injunction and as raised by the trial court and re-appreciated the evidence on record by framing points for consideration extracted supra. While re-appreciating the evidence, the First Appellate Court has come to the conclusion that the plaintiff had purchased suit property along with his brothers under a registered sale deed dated 18.10.1963 from the sons of Megalageri Dyavya for valuable consideration of Rs. 2000/-. In fact the vendor of the plaintiff and his brothers was Dyavanaika. He had purchased the suit property from one Ayyanna son of Basappa under a registered sale deed dated 29.7.1925 vide Ex. P.2(a). The plaintiff as PW.1 had deposed that the suit property had fallen to his share at a family partition between himself and his brothers. On a reading of Ex. P.1, the I Appellate Court came to the conclusion that the plaintiff was in possession and enjoyment of the suit property pursuant to the registered sale deed dated 18.10.1963 made in his favour. That the plaintiff had produced Ex. P.2 to 25 to prove his possession vis-�-vis the suit land, pursuant to sale deed dated 18.10.1963. In the circumstances, the First Appellate Court concluded that under registered sale deed dated 18.10.1963 the plaintiff was in possession of the suit property. His possession was lawful and that the sale deed dated 18.10.1963 in the name of the plaintiff was a document of title in his name.

The First Appellate Court further reasoned that there was no challenge to the sale deed dated 18.10.1963 which had been made by the defendants by filing counter claim or by filing separate suit in that regard. In fact, the defendants had not proved as to in what way they had right, title and interest in the suit property so as to justify their interference. Having regard to these aspects of the matter, the First Appellate Court concluded that the interference caused by defendants with regard to the plaintiff''s possession was illegal and further concluded that the plaintiff was entitled to the decree of permanent injunction. The said conclusions of the First Appellate Court are based on oral and documentary evidence on record. The said conclusions are based on legal evidence and are in consonance with what the trial court had concluded. The concurrent findings of courts below, in my opinion, do not call for any interference in this second appeal.

I do not find any infirmity in the judgment and decree of the First Appellate Court. No substantial question of law would arise in this appeal. The appeal is dismissed.

In view of dismissal of appeal, I.A.1/14 for stay also stands dismissed.