Lurdhamma vs Joseph

K.N. Phaneendra, J.—The respondent herein has filed a suit in OS No. 176/2010 before the Civil Judge, H.D. Kote, for the relief of permanent injunction against the appellant herein who is the defendant before the Trial Court.

For the purpose of convenience and to avoid confusion, the ranks of the parties before the court below are retained.

The plaintiff claiming to be the owner in possession and enjoyment of suit schedule property bearing Survey No. 79 measuring 1 acre 5 guntas situated at Hirehalli village, Kasaba Hobli, H.D. Kote having specific boundary i.e., to say towards East by -land of defendant/Joseph, West by - road, temple and land of Vykuntaiah, North by - land of Philomin Raj and South - by Canal (Nala). It is contended that all revenue records are standing in her since the date of acquisition of the said property. It is contended that the defendant started troubling the plaintiff prior to the suit, attempted to construct a house in the property of the plaintiff. Therefore, there was a panchayath convened to advice the defendant as the defendant did not heed to the advice, started interfering with the possession and enjoyment of the suit schedule property of the plaintiff, the plaintiff was forced to file the suit.

The defendant appeared before the court and taken up the contention that he has purchased the property in the year 2003 precisely on 21.4.2003 under a registered sale deed from its vendor. It is stated that survey No. 79 in which the plaintiff claims portion of the property, her ownership and possession, the said survey number totally measures 4 acres 2 guntas, which originally belongs to Mathews son of late P. Mariyappa and his brother Anthonymuthu and they divided the property by allotting 2 acres 37 guntas to Mathews and 1 acres 5 guntas to Anthonymuthu. Thereafter, katha was changed in the revenue records. Mathews and his family members sold the said 2 acres 37 guntas in favour of the defendant as per the registered sale deed dated 21.4.2003 showing the specific boundaries to the East by - land of defendant, west by - lands of Vykuntaiah and Chowrappa, North by - land of plaintiff and South by - old nala. Since the date of purchase, the defendant is in possession and enjoyment of the property. It is contended that by showing wrong boundaries to the property, the plaintiff has been claiming ownership and possession over the defendants property. Therefore, he contended that there was no interference to the property of the plaintiff because the defendant has been enjoying his property as lawful owner. Based on the above pleadings, the Trial Court has framed two issues which are as follows:

(1) Whether the plaintiff proves that she is lawful possession of the extent property existing within the boundaries shown in the schedule of the plaint?

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

(3) What order or Decree?

Considering the oral and documentary evidence on record, the Trial Court has come to the conclusion that the plaintiff has made out a case, and the suit of the plaintiff was decreed accordingly and permanent injunction was granted.

Being aggrieved by the said judgment and decree, the defendant has preferred an appeal before the First Appellate Court taking up the contention that the Trial Court has not properly appreciated the oral and documentary evidence on record. Therefore, the judgment and decree passed by the Trial Court is erroneous and deserves to be set aside.

The First Appellate Court has also framed the following points for consideration:

(1) Whether the judgment and decree passed by the Trial Court is illegal, erroneous, perverse and not sustainable in law and called for interference?

(2) What order?

Answering the point for consideration in the ''Affirmative'', the First Appellate Court has interfered with the judgment and decree passed by the Trial Court and consequently set aside the judgment and decree of the Trial Court and dismissed the suit of the plaintiff. Against which, the present second appeal is preferred.

The First Appellate Court has considered the sale deed of the plaintiff as well as the defendant and also appreciated the oral and documentary evidence on record and after re-appreciating the materials on record came to the conclusion that the plaintiff has given wrong boundaries to his property which if accepted includes the property of the defendant. Therefore, such things should not be allowed to be done. Hence, discussing the evidence and facts involved in the case, dismissed the suit of the plaintiff by allowing the appeal.

After perusal of the entire materials on record, the pleadings of the parties themselves disclose that plaintiff has purchased the property measuring 1 acre 5 guntas from its previous vendor by name Anthony Muttu under sale deed dated 21/04/2003 Ex.D1. It is not disputed that the total property measures 4 acres 2 guntas out of that the plaintiff has only purchased 1 acre 5 guntas. Therefore, the boundaries of the property should have been put to 1 acre 5 guntas. Subsequently, in the sale deed dated 21.4.2003, 2 acres 37 guntas was purchased by the defendant as per Ex.D1. The boundaries clearly discloses towards north of the property sold to the defendant and there lies the property of the plaintiff. Therefore, the remaining property on the southern side was allocated in favour of Anthony muttu to the extent of 2 acres 37 guntas which was sold in favour of the defendant. The property sold to the defendant shows that after his property towards south, there lies Nala, that shows that to the entire property 4 acres 2 guntas towards South, there lies Nala. Instead of putting the remaining property in the same survey Number to the South in the sale deed of the plaintiff, it was shown as Nala. If it is accepted, it amounts to giving boundary to the entire property towards South. Considering this particular aspect in detail and also considering the sale deeds of the plaintiff and defendant and also the oral evidence, the appellate court has come to the conclusion that the plaintiff has not properly described the description of the suit schedule property and virtually he claims the property inclusive of the defendant also. Therefore, it dismissed the suit of the plaintiff by allowing the appeal.

What can be seen from the above said facts are that - None of the courts have framed any question of law involved in this case nor the parties have raised any question of law before the court. The courts have rendered the judgment on appreciation of facts both oral and documentary evidence adduced and produced by the parties. The appellant also before this Court has not shown any substantial question of law involved in this case. The substantial questions of law proposed by the appellant in the appeal memorandum are as follows:

(1) Whether the First Appellate Court was wrong in holding that the reasons and findings assigned by the Trial Court by answering Issue Nos. 1 & 2 in the affirmative are not suitable in law or on facts.

(2) Whether the First Appellate Court was wrong in holding that the judgment and decree of the Trial Court is against law, facts and probabilities of the case.

None of the above are said to be substantial questions of law. The learned counsel for the appellant failed to point out what is the legal error committed by both the courts below.

As I have already narrated, it is only the appreciation of both documentary and oral evidence and drawing inference on the basis of just facts. On the basis of the above said facts, I do not find any substantial question of law to be framed and decided by this court. Hence, at the stage of admission itself, this appeal deserves to be dismissed.

Accordingly, the Regular Second Appeal is dismissed. In view of the dismissal of the main appeal, pending consideration of IA Nos. 2 & 3 does not survive for consideration and the same are also dismissed.