Lakshmi Janardhana vs Venkataramana Devakari

Ravi V. Malimath, J.—The case of the plaintiff is that she is the widow of Late Ramaraya. That her husband and her ancestors had been in peaceful possession and enjoyment of the suit schedule properties along with other lands for many years. After his death, the first plaintiff has been in peaceful and lawful possession and enjoyment of the same. The occupancy rights was granted in her favour by the order of the Land Tribunal dated 14.08.1981.

The present Managing Trustee of the defendant-temple who has been in inimical terms with her and her children, on making attempts to dispossess her, had sent people to disturb her and to dig the land in ''A'' schedule property in the paddy field for laying a foundation for a building. When her son objected, the defendants being powerful persons continued with their acts. Hence, the instant suit was filed seeking for a decree of perpetual injunction to restrain the defendant-temple and all its people from making any construction, putting up any structure or interfering in any manner with the peaceful possession and enjoyment of plaint ''A'' schedule properties and for recovery of possession of the entire survey No. 11/34A, measuring 32 cents from out of ''A'' schedule properties.

On service of summons, the defendant-temple entered appearance, and resisted the suit. They admitted the confirmation of the occupancy rights with respect to the suit schedule property in the name of the husband of the first plaintiff. The rest of the averments were denied. It was pleaded that the plaint schedule property has been in actual and lawful possession of the defendant. That the plaintiff has no right, title or interest over the same. That the plaintiff intended to take away the ''A'' schedule property by making a false claim before the Land Tribunal. That the Land Tribunal without conducting a proper enquiry has erroneously granted the occupancy rights. That the landlord questioned the same, in a writ petition No. 4723/1995, which was pending as on the date of filing of the written statement. Hence, it was pleaded that the suit be dismissed.

Based on the pleadings, the trial court framed the following issues for consideration:

"i. Whether the plaintiff proves that she is in lawful possession of the plaint A'' schedule property as on the date of suit?

ii. Whether the plaintiff proves the interference as alleged?

ii. Whether the plaintiff is entitled for permanent injunction?

iv. What order and decree?

Additional Issues:

i. Whether the suit is barred under the provisions of Hindu Religious and Charitable Endowment Act?

ii. Whether this court has pecuniary jurisdiction to grant the amended relief of recovery of possession?

iii. Whether the suit is bad for nonjoinder of parties?

iv. Whether the relief of recovery of possession is barred by limitation?

v. Whether the plaintiff proves that the defendant unauthorisedly constructed the building in the suit schedule property subsequent to institution of the suit?"

The second plaintiff, who was the legal representative of the first plaintiff was examined as PW-1 and produced 16 documents. The defendant examined its alleged Managing Trustee and another witness as D.W.-1 and D.W.-2. No documents were produced. Issue No. 1 was held in the affirmative, except property measuring 0.32 acre in survey No. 11/34A. Issue No. 3 was held in the affirmative, except to the property measuring 0.32 acre comprised in survey No. 11/34A. Issue No. 2 and additional issue No. 2 were held in the affirmative. Additional issue Nos. 1, 3 and 4 were held in the negative. The suit for permanent injunction and recovery of possession was decreed. The defendant and its people were restrained from making any construction, etc. and the defendant was directed to surrender vacant possession of the entire survey No. 11/34A, measuring 32 cents from out of the ''A'' schedule properties, free from any buildings within two months. Aggrieved by the same, the defendant preferred an appeal which was dismissed. Hence, the present second appeal.

By the order dated 19.07.2013, the appeal was admitted to consider the following substantial question of law:

"Whether both the courts below have rightly considered the prayer of the plaintiffs seeking possession of 32 cents of land which forms part of the temple construction even earlier to filing of the suit?" 7. The learned counsel for the respondents contends that the substantial question of law framed is incorrect. That the question framed is not substantiated by records. The substantial question of law was framed based on the submission made by the appellant. On this front, he has taken me through the plaint averments at para-3(c), which was amended on 17.01.2003 as per the orders of the trial court. Para-3(c) therein was inculcated to the effect that the defendant has forcibly occupied survey No. 11/34A, measuring 32 cents and put up three buildings during the pendency of the suit and hence the plaintiff is entitled to vacant possession of the said plaint, free from all unauthorized construction. Therefore, the plaint averments, would clearly indicate that the defendant has put up a construction in the plaint schedule property subsequent to the filing of the suit.

Further, a reference is also made to paragraph Nos. 9 and 10 in the cross-examination of the evidence of PW-1. Wherein he has stated that there was an attempt by the defendant in the year 1994 to put up a construction which was resisted. Thereafter a construction was put up by the defendant. Based on the pleadings and evidence, it is apparent that the substantial question of law was incorrectly framed. Hence, the same is reframed as follows:

"Whether the judgment and decree of both the courts below are perverse in misreading the material and evidence on record with regard to the possession of the plaintiff over the suit schedule property? 9. Heard learned counsels on the reframed substantial question of law.

The undisputed fact it is that the suit schedule property was granted to the plaintiff in terms of the order of the Land Tribunal dated 14.08.1981 in terms of Exhibit-P15. Therefore, the possession of the plaintiff over the suit schedule property prior to the 14.08.1981 has since been established. Occupancy rights has been ostensibly granted favour of the plaintiff in view of the uninterrupted occupancy as tenant namely as on 01.03.1974. The landlord therein, is the defendant herein. He questioned the same by filing a writ petition No. 4723/1995. The same was dismissed. The writ appeal filed against the said order was also dismissed on 02.11.2001. A review petition was filed seeking to review the said judgment the same was rejected. The order has become final and the plaintiff has been declared to be in occupancy in terms of the order dated 14.08.1981.

The plaint averments would indicate that the defendant sent his people and attempted to dig the land in plaint ''A'' schedule property and to lay a foundation on 21.12.1994. The same was objected by his son. That after the filing of the suit, the defendant has forcibly entered the premises and occupied 32 cents of land. Thereafter, he has put up certain buildings on the property. The material on record would clearly show that the plaintiff has established his case. The defendants have failed to show their right, title or interest over the suit schedule property. The trial court therefore on considering the material on record was justified in decreeing the suit for permanent injunction, recovery of possession and so also the defendant was directed to surrender vacant possession of entire survey No. 11/34A, measuring 32 cents from out of the ''A'' schedule properties free from any buildings within two months.

On considering the contentions, I am of the considered view that the judgment and decree of both the courts below are appropriate and in accordance with law and does not call for interference. The plaintiffs having established their lawful possession of the suit schedule property are entitled for protection under Law. They have also established before the courts below that the defendant have trespassed into the suit schedule property and wrongly occupied 32 cents in survey No. 11/24A. Under these circumstances, the defendant has taken law in its own hand and has invaded into the properties of the plaintiff and has to be rightly evicted.

Consequently, the substantial question of law is answered by holding that the judgment and decree of both the courts below are just and appropriate. Consequently, I do not find any error that calls for interference. On answering the substantial question of law the appeal is dismissed.