K.S. Annegowda and Others vs B.H. Ramesh

A.S. Bopanna, J.—The appellants herein are the defendants No. 1 and 2 in O.S. No. 157/2004. The plaintiff filed the suit seeking for the relief of permanent injunction to restrain the defendants No. 1 and 2 and persons claiming under them from dispossessing the plaintiff in colluding with defendant No. 3 by changing the survey number of the schedule properties to old survey number as 292 and to restrain from changing the survey number during the pendency of the appeal before the Karnataka Appellate Tribunal in Appeal No. 332/2004.

The case of the plaintiff is that the suit schedule properties which are presently indicated as Sy. Nos. 559 and 556 measuring 3 acres and 2 acres respectively were earlier bearing Sy. Nos. 292/36 and 292/35. The plaintiff had purchased the property bearing Sy. No. 559 under a registered sale deed dated 19.03.2002. On purchase, the Khatha was mutated in his favour under M.R. No. 4/02-03. The property bearing Sy. No. 556 is claimed to have been acquired by the plaintiff in a public auction held by the Assistant Registrar of Co-operative Societies on 22.11.1995. Subsequently the khatha was mutated in favour of the plaintiff in M.R. No. 43/95-96. The plaintiff claims to be in possession and cultivation of the same. When the pakka-podi proceedings in respect of these lands was done by the Assistant Director of Land Records, the defendants No. 1 and 2 objected to the same.

Despite such objection, the same has been held in favour of the plaintiff, against which defendants No. 1 and 2 have preferred an appeal before the Joint Director of Land Records in Appeal No. 10/2003-2004. The matter has therefore been remanded to the ADLR, Chickmagalur to reconsider after affording opportunity to the interested parties, by the order dated 23.02.2004. The plaintiff therefore preferred an appeal before the KAT, Bangalore in Appeal No. 332/2004 which is pending. The plaintiff contends that inspite of the pendency of the appeal, the defendants No. 1 and 2 are trying to enter the survey number as 292. It is alleged that such change is sought to be made so as to thereafter interfere with the possession of the plaintiff. In that view, on contending that the defendants No. 1 and 2 have no right over the suit schedule property, the relief as prayed in the suit is sought.

The defendant No. 3 has been subsequently deleted in the suit. The defendant No. 1 has filed the written statement. The case as put forth by the plaintiff claiming right to the suit schedule property is disputed. The proceedings before the ADLR, JDLR and the KAT are not disputed. The defendants contend that they are the absolute owners of land bearing Sy. No. 292/P10 and Sy. No. 292/P16 of Aralaguppe village Chickmagalur Taluk. The said lands are measuring 2 and 3 acres respectively which are coffee cultivated lands and has silver oak trees. The defendant No. 1 and his brother late Gangadharegowda executed an agreement during the year 1998 in order to get permanent saguvali chit and on the said agreement, possession of the lands bearing Sy. No. 292/P10 and Sy. No. 292/P16 were handed over to the plaintiff. Though no further action was taken, the plaintiff continued in possession of the said land. On 25.12.2002 the defendant No. 1 and 2 demanded that the possession of the land be returned, to which the plaintiff had agreed. However, instead of keeping up the promise, the plaintiff colluded with ADLR Chickmagalur and Deputy Conservator of Forests, Chickmagalur and prepared fraudulent sketch in the guise of pakka-podi of new Sy. Nos. 559 and 556 of Aralaguppa village. The plaintiff also cut the entire silver oak trees which belonged to the defendants No. 1 and 2. The defendants accordingly filed three suits against the plaintiff which was stated to be pending at that stage.

In the light of the pleadings, the trial Court framed the following:

Issues

"1. Does the plaintiff prove that he is in possession of the schedule property as on the date of filing of this suit?

Does the plaintiff prove that, the defendants have tried to dispossess the plaintiff from the suit schedule property as alleged in the plaint?

Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

What order or decree?"

In order to discharge the burden cast on the parties, the plaintiff examined himself as P.W. 1, a witness as P.W. 2 and relied upon the documents at Exhs. P1 to P26. The defendant No. 1 examined himself as D.W. 1, a witness as D.W. 2 and relied upon the documents at Exhs. D1 to D7. The trial Court on analyzing the evidence has held the issue Nos. 1 to 3 in the negative against the plaintiff and dismissed the suit. The plaintiff was therefore before the Lower Appellate Court in R.A. No. 122/2008. The Lower Appellate Court on re-appreciation of the evidence has allowed the appeal in part and set aside the judgment passed by the trial Court. The suit was accordingly decreed in part restraining the defendants from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property till he is evicted under due process of law. The defendants No. 1 and 2 therefore claiming to be aggrieved are before this Court in this second appeal filed under Section 100 of CPC.

This Court by the order dated 09.08.2011 while admitting the appeal has framed the following substantial question of law:

"Whether the First Appellate Court is legally correct in decreeing the suit of plaintiff when the schedule furnished in the sale deeds Ex. D1 and D2 are different from the schedule furnished in the plaint"?

Heard Sri N.C. Jayakirthi, learned counsel for the appellants, Sri D.C. Jagadeesh, learned counsel for the respondent and perused the appeal papers including the records received from the Courts below.

The very nature of the substantial question of law which has been raised for consideration would indicate that the schedule of the suit subject properties as indicated in the plaint and that which is indicated in the sale deeds at Exhs. D1 and D2 are not similar to one other insofar as stating the boundaries of the property. Though the trial Court had dismissed the suit in that view of the matter, the Lower Appellate Court has granted the limited injunction despite having noticed the same. In that light, it is required to be considered as to whether the Lower Appellate Court was justified in that regard.

It is not in dispute that the plaintiff claims entitlement to the suit schedule properties as having acquired right to the same under the documents at Exhs. D1 and D2, but had not produced the same either along with the plaint or during the course of the examination-in-chief as P.W. 1 though having referred to it in the plaint averments. The defendants had on the other hand confronted the said documents during the cross-examination of P.W. 1 and had secured marking of the same as Exhs. D1 and D2. The case as put forth by the learned counsel for the appellants is that the said sale deeds were deliberately withheld by the respondent as the description of the property in the said documents was not similar to the schedule indicated in the plaint. It is therefore contended that by suppressing the correct position, the respondent had attempted to secure the order though the injunction sought for was not in respect of the very same property to which the respondent claims right.

Learned counsel for the appellants has relied on the decision in the case of Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 , wherein it is held that the pleadings with regard to possession should contain details on what basis he is claiming a right to continue in possession and until the pleadings raise a sufficient case, they will not constitute sufficient claim. Hence, the Court must ensure that pleadings of a case must contain sufficient particulars since in dealing with the civil case, pleadings, title documents and relevant records play a vital role and would ordinarily decide the fate of the case. The decision 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 relied on to contend that the plaintiff ought to have sought for declaration and a suit for bare injunction was not sufficient.

In that light, it is to be noticed as to whether the pleadings herein are sufficient to understand the case of the plaintiff. Though in the instant case the sale deeds under which the plaintiff had claimed right in respect of the suit schedule property were not produced, the pleadings would disclose that the plaintiff in para 3 of the plaint has referred to both the documents dated 19.03.2002 and 22.11.1995 to claim right in respect of the suit schedule property. Further, with regard to the pakka-phodi proceedings in respect of the said land and in that regard, there being dispute between the plaintiff and the defendants and the matter pending before the Karnataka Appellate Tribunal in Appeal No. 332/2004 has been pleaded. It is in that view, the plaintiff has contended that the defendant is making attempts to secure change of revenue entries in collusion and thereby is attempting to dispossess the plaintiff. The injunction sought is against apprehended dispossession by changing the survey number. Therefore, the pleading read as a whole would indicate the nature of the dispute where the plaintiff claims right to the total extent of 5 acres in portions of Sy. No. 292/P and the same having been assigned new Sy. Nos. 559 and 556 for 3 acres and 2 acres respectively have been put forth. Though one may have expected it to be more explicit about the boundaries stated therein, it cannot be considered as suppression. Hence, the above cited decisions cannot be made applicable to arrive at a conclusion that the pleadings were insufficient or that there is suppression of facts, keeping in view the nature of the relief that has been sought. While arriving at such conclusion, I have also taken note of the decision of the Hon''ble Supreme Court in the case of Narain Prasad Aggarwal (D) by LRs. Vs. State of M.P., AIR 2007 SC 2349 : (2007) 8 JT 389 : (2007) 8 SCALE 250 : (2007) 11 SCC 736 : (2007) 7 SCR 414 : (2007) AIRSCW 4165 : (2007) 5 Supreme 524 wherein it is held ordinarily, moffusil pleadings are not to be strictly construed.

Further, the nature of consideration that was made by the Lower Appellate Court was based on the contention that was also put forth by the defendants in their written statement and on taking note of the effect of the admission made therein. In that regard, a perusal of the written statement would disclose that the defendants though has disputed the claim as made by the plaintiff with regard to the purchase under the two documents and has sought to contend with regard to the defendants being owners of Sy. No. 292/P10 and Sy. No. 292/P16 of Aralaguppe village, the execution of the agreement in the year 1988 is referred and the possession of the land being handed over to the plaintiff has been averred and it has been contended that the plaintiff without honouring the said agreement had continued in possession of the said land which has not been returned to them despite having demanded the return of possession as promised by them.

Having noticed the nature of contention put forth in the written statement, the decision in the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, (2012) 6 JT 466 : (2012) 4 RCR(Civil) 727 : (2012) 6 SCALE 476 : (2012) 8 SCC 148 : (2013) AIRSCW 2752 : (2012) 4 Supreme 585 and in the case of Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha (Huf) and Another, AIR 2010 SC 1890 : (2010) 4 JT 574 : (2010) 5 SCALE 367 : (2010) 6 SCC 601 : (2010) AIRSCW 2937 : (2010) 4 Supreme 143 relied upon by the learned counsel for the appellants relating to the manner in which admission is to be construed would not be of assistance keeping in view the unequivocal averments made with regard to the possession remaining with the plaintiff.

In the above backdrop, considering the nature of the case as put forth by the parties, the issue is as to whether the Lower Appellate Court had committed any error in granting the injunction despite noticing that the schedule indicated in the plaint is not exactly similar to what has been indicated in the documents at Exhs. D1 and D2. The decision in the case of Smt. Siriyala and Others Vs. B.N. Ramesh, (2010) ILR (Kar) 2996 : (2010) 2 KCCR 1233 is relied upon by the learned counsel for the appellant to contend with regard to the manner in which the re-appreciation ought to be done by the First Appellate Court when it is taking a different view from the one taken by the trial Court. It is no doubt true that the re-appreciation ought to be done by the First Appellate Court in the manner as indicated, which is to be examined herein.

The trial Court while noticing the rival contentions, has indicated that a mere admission with regard to possession is not sufficient. It has also taken note of the earlier litigation between the parties and in that view, has expressed the opinion that it therefore cannot be considered that the plaintiff is in settled possession. The Lower Appellate Court on the other hand has referred to all aspects including the earlier suits filed by the defendants herein and the same being withdrawn after the order of temporary injunction was refused, has arrived at the conclusion that in any event, the possession which remains with the plaintiff cannot be interfered without due process of law which infact is the more appropriate view for the following reasons.

The sale deeds at Exhs. D1 and D2 no doubt were confronted to the plaintiff in his cross-examination and marked. Whether that in itself take away the entire case of the plaintiff merely because the minor difference in stating the boundaries is what requires consideration. It is to be noticed that in that light when it was further put to P.W. 1 in the cross examination that there is a variation in the schedule as described in the plaint and the one found in Exhs. D1 and D2, he has explained that the said difference is due to the pakka-phodi which has been done. This no doubt could have been more explicitly stated in the plaint itself, but this is what should not be made much of a moffusil pleading. In that regard, it is to be noticed that the suit Item No. 1 property is lesser than the extent indicated in the sale deed which will cause a change to the boundary. Further with regard to the discrepancy in the survey number which is sought to be made out, the documents marked at Exhs. P1 to P17 would indicate that the property bearing Sy. No. 292/P is presently assigned the Sy. Nos. 559 and 556. In any event, those are issues which are pending in the appropriate forum as the parties are litigating with regard to the same. The Lower Appellate Court has not expressed its opinion with regard to the same and it is in that view, the second part of the prayer has not been granted. All that the Lower Appellate Court has done is to protect the possession till the due process of law is followed.

Therefore, if the defendants ultimately establish their right, they still have the option to proceed in accordance with law and recover possession. Hence, at this juncture, even if the plaintiff has not filed a suit seeking for declaration in respect of the suit schedule property, what is necessary to be noticed is as to whether the Lower Appellate Court was justified in its conclusion that the plaintiff is in possession of the suit schedule property. To the said extent, though a discrepancy is pointed out with regard to the boundaries as stated in the plaint as against what is indicated in Exhs. D1 and D2, the extent to which the plaintiff is claiming right is 3 acres and 2 acres respectively in the two survey numbers. Even in respect of the old Sy. No. 292/P, the defendants no doubt have contended that they have right in respect of the property in Sy. No. 299/P16 and Sy. No. 299/P10 as against what has been stated in the plaint as Sy. Nos. 292/P36 and 292/P35. However, what cannot be lost sight is that it is with respect to the very lands that has been indicated in the plaint schedule, the defendants have put forth their contention in the written statement and the admission relating to handing over of the possession has been made and also the fact that the plaintiff did not give back possession is referred. When there is such clear admission with regard to the possession and further when the defendants herein had filed the suits in O.S. Nos. 66/2003 and 67/2003 wherein I.A. No. 2 filed under Order 39 Rule 1 and 2 to grant temporary injunction was rejected, the defendants herein got the suit dismissed without inviting a decision on merits, it is relevant for the instant purpose. Therefore, not just the admission in the written statement, but the filing of the suit and there being a prima facie finding that the defendants herein are not in possession would indicate that it is in respect of the very lands which are described in the plaint schedule the parties are litigating. In that circumstance, the Lower Appellate Court was also justified in taking note of the decision of the Hon''ble Supreme Court in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, (2003) 10 SCALE 950 : (2004) 1 SCC 769 : (2003) 6 SCR 850 Supp : (2004) AIRSCW 4205 : (2003) 8 Supreme 928 in protecting the possession.

Hence, the documents available on record in addition to the documents at Exhs. D1 and D2 have all been noticed by the Lower Appellate Court before arriving at a conclusion that the plaintiff though is not entitled to the absolute relief of permanent injunction as prayed for, would be entitled to the relief of injunction till he is evicted under due process of law which in my opinion is legally correct. The substantial question of law is therefore answered accordingly, against the appellant.

In the result, the appeal is dismissed. Parties to bear their own costs.