M. Gowramma and Others vs D.B.M. Basavarajaiah and Others

B. Veerappa, J.—The unsuccessful plaintiffs are before this Court against the judgment and decree dated 17.7.2014 made in R.A. No. 6/2012 on the file of the Senior Civil Judge and JMFC, Kudligi confirming the judgment and decree dated 15.11.2011 made in O.S. No. 109/2005 on the file of the Civil Judge and JMFC, Sandur dismissing the suit for permanent injunction in respect of the ''B'' schedule property.

It is the case of the plaintiffs that they are agriculturists and permanent residents of Bannihatti village, Sandur Taluk. The suit schedule ''A'' property is their ancestral property and since then they have been in peaceful possession and enjoyment of the same till today; That their ancestors had left some open space to their suit schedule house to its western side and to its southern side for tethering their cattle and for keeping their agricultural implements and fodder, etc. It was further contended that towards the southern side of the plaintiffs suit schedule house, there is a sink pit existing since from the time of their ancestors. Their house and the aforesaid open space wherein they are tethering their cattle and keeping their agricultural implements and fodder, etc., is clearly shown by the letters ''ABCDEF'' in red colour in the plaint ''B'' schedule rough sketch annexed to the plaint which is part and parcel of plaint ''A'' schedule property. They are also paying taxes to the grama panchayath office regularly and have also produced the photos to that effect.

It was also further contended in the suit that the plaintiffs had been in peaceful and exclusive possession and enjoyment of the plaint ''A'' schedule property and the aforementioned open space since their ancestors. Further the house of the defendant is situated after the aforesaid open space of the plaintiffs towards its southern side which is clearly shown in the plaint ''B'' schedule rough sketch. That earlier the house of the defendant''s was a old house having only one door towards its southern side and also a path way through which, the defendant has to reach his house. That at any point of time, either towards the northern side or towards the western side and also towards the northern side of the defendants house, there was a way leading to the defendants house but the aforesaid open space of the plaintiffs where they were tethering their cattle was existing since the time of their ancestors which open space exclusively belonged to the plaintiffs only and the defendants had no right or title in the said open space of them. The northern side walls of the defendant''s house is the back sides which has only one window and two water spouts and had no doors at all. When such being the case, the defendant demolished his old house and without obtaining a valid license from the competent authority, constructed a new house in the place where the old house was demolished leaving some open space on the northern side and western side of his house and opened two doors on the northern side and one door on the western side and deliberately closed the earlier door which was existing on the southern side of his old house. It was further contended that though the defendant is having a way from his newly opened western door to reach the way which was existing on the southern side, deliberately without having any right or title whatsoever started claiming his right over the plaintiffs'' aforesaid open space. It is their further case that the defendant started harassing and threatening the plaintiffs for using the said open space for tethering their cattle, keeping agricultural implements, fodder, etc. Hence, under these circumstances, the village elders assembled and decided the matter in dispute and gave their decision on 17.10.2005 at Bannihatti village and accordingly, advised the plaintiffs as well as the defendant to continue their possession and enjoyment over their respective properties which were existing earlier to the construction of the new house built by the defendant and also to make use of the way which existed earlier to their house but not to claim any new right after the construction of the new house by the defendant in place of the old demolished building. It is their further case that apprehending danger to their property at any moment from illegal acts of the defendant. Hence, the plaintiffs filed the suit for permanent injunction.

The defendant appeared before the trial Court and filed his written statement contending that the plaintiffs are not the absolute owners of ''A'' and ''B'' schedule properties and they are not in possession and enjoyment of the suit properties. That the rough sketch furnished by the plaintiffs is not at all correct and so also the measurements mentioned in the ''A'' schedule property. He also contended that when the plaintiffs are not all the owners of the ''B'' schedule property, claiming of injunction by them does not arise at all. Though the plaintiffs have filed the suit for bare injunction, the suit itself is not maintainable under the law. That since he has denied the title of ''B'' schedule property by the plaintiffs, they must file a suit for declaration of title and for permanent injunction and not a suit for bare injunction, which is liable to be dismissed. The ''B'' schedule property is 10 feet way (oni) which is a Gramathana property. This way is used by the defendant, since immemorial and the plaintiffs are not at all using this schedule property as a cattle shed and fodder. He denied that the plaintiffs are in peaceful possession and enjoyment of this property. He contended that he is the owner of the house bearing door No. 67 bounded by a house of Kurubara Hanumanthappa to the East; a house of Ayyamma to the West; a Oni - way towards North; and road and then a house of Mudenur Veeranna Gouda towards South. He also contended that he is the absolute owner of the above property without obstruction over his right, title or claim over the said property. He has further submitted that he obtained the licence from the panchayat authority and constructed a house by opening two door towards the northern side of the plaintiffs'' house, an open space in front of the doors measuring about 10 feet, a way in the said open space and he is using the said way since the ancestors, which is beginning from northern side and western side and then turning to Maszeed road and reaching the well. Thus it clearly goes to show that the ''B'' schedule property is a public way. That one Ayyamma had purchased the property from one Doddappa son of Angadi Basappa as on 21.4.1941 for an amount of Rs. 250/- in which sale deed the boundaries towards the western side and northern side ways are clearly mentioned. That this also clearly goes to show that it is a way and Talayara Gowda son of Siddana Gouda of Bannihatti village had sold the same to one Malla Gouda son of Doddana Gouda as on 2.4.1929 for an amount of Rs. 200/- and thus as per the sale deed, existing of a way towards the western and northern side is clearly mentioned. He also denied that the plaintiffs are the absolute owners of the suit schedule properties. Therefore, on all these grounds contending that the plaintiffs have not to the Court with clean hands, he prayed for dismissal of the suit.

Based on the pleadings, the trial Court framed the following issues:

Whether the Plaintiff proves that he has been in lawful possession and enjoyment of schedule B property shown in ABCDEF in rough sketch?

Whether the plaintiff proves the alleged interference by the defendants?

Whether the plaintiff is entitled for the relief claimed?

What order or Decree?

In order to establish their case, the plaintiffs examined their power of attorney as P.W. 1 and the other witnesses as P.Ws. 2 to 5 and marked Exs. P. 1 to 16. The defendant examined himself as D.W. 1 and two witnesses as D.Ws. 2 and 3 and marked Exs. D. 1 to 8.

After considering both oral and documentary evidence on record, the trial Court held that in view of the fact that the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the ''B'' schedule property shown in the rough sketch by letters ''ABCDEF'' and also the alleged interference by the defendant, the plaintiffs are not entitled for any relief and accordingly, dismissed the suit.

Aggrieved by the said judgment and decree, the plaintiffs preferred R.A. No. 6/2012 before the Senior Civil Judge and JMFC, Kudligi, who after hearing both the parties, by the impugned judgment and decree dated 17.7.2014 dismissed the appeal confirming the judgment and decree passed by the trial Court.

Against the concurrent findings of fact recorded by the courts below in respect of the suit for injunction, the present appeal is filed.

I have heard the learned Counsel for the appellants.

Sri Gode Nagaraja, learned Counsel for the appellants contended that both the Courts below have failed to notice the ''B'' schedule property is a property which belongs to the plaintiffs and the documents produced by them clearly indicate that they are the owners in possession and enjoyment of the same and presumptory value under Section 114 of the Indian Evidence Act ought to have been taken into consideration by both the Courts below. He further contended that the Courts below have failed to notice that the appellants are using the open space for the purpose of tethering the cattle and for keeping the agricultural implements and therefore, he sought for setting aside the impugned judgment and decree passed by the Courts below.

I have given my thoughtful consideration to the arguments advanced and perused the entire material on records.

The plaintiffs had filed a suit for permanent injunction contending that they are the owners of the ''A'' and ''B'' schedule properties and they are using the ''B'' schedule property for tethering the cattle, keeping the agricultural implements, fodder, etc. To substantiate their case, the plaintiffs have examined P.W. 1, and 4 witnesses as P.Ws. 2 to 5 by producing Exs. P. 1 to 16. To disprove the case of the plaintiffs, the defendant examined himself as D.W. 1 and two witnesses as D.Ws. 2 and 3 by producing documents Exs. D. 1 to 5.

The trial Court considering both oral and documentary evidence has recorded a finding that the power of attorney holder of the plaintiffs, who is examined as P.W. 1, has admitted in his cross-examination that, there is no document produced with respect to ''B'' schedule property and also no measurement is shown in Exs. P. 2 - the DCB register extract and in the cross-examination, he has specifically admitted that a panchayat was held in between the plaintiffs and defendant and in the presence of President and the members of the grama panchayat, Tarangara village, they decided that they i.e., plaintiffs and defendant will use jointly the ''B'' schedule properties and the relevant portion of the cross-examination of P.W. 1 reads as under:

On going the evidence of P.W. 2, 3 and 5, it has noticed that they have admitted that there is a dispute between the plaintiffs and defendant with respect to the ''B'' schedule properties and that they do not know the measurements of the same and also not produced any documents with respect to the same. They also admit that there is a open space in front of the doors of defendant''s house. Further P.W. 4, who is the Secretary of Grama Panchayat, Tharanagara village in his cross-examination has specifically admitted that there is no record in favour of the plaintiffs or defendant in respect of ''B'' schedule property and Ex. P. 2 does not disclose any measurement. It has also noticed that Ex. D. 1 shows that there is a Gramathana property on the northern side and that P.W. 3 specifically deposes in his chief-examination that the door of the defendant''s house is opened at the northern side and since this being the fact, the defendant in order to go to his house is using the ''B'' schedule property. Accordingly, on all these facts and circumstances, the trial Court dismissed the suit.

On re-appreciation of the entire material on record, the Lower Appellate Court recorded a finding that P.W. 1 in his cross-examination has admitted that he has not produced any document to show the measurements; that he has filed the suit for an open space for which he has not produced any documents. He has also admitted that Ex. P. 2 does not show the measurement of the suit property. Further he has admitted that in the open space there is a house of the defendant measuring East to West 9 feet and North to South 46 feet; that a panchayath was convened in which it was held that both the plaintiffs and the defendant have got the right to use the said disputed way and they should not object each other. Though P.W. 2 and 3 supported that case of the plaintiffs, in the cross-examination have admitted that a panchayat was convened, Exs. P. 1 to 4, 13 and 14 - the house extract and tax paid receipts were produced, Exs. P. 4 to 12 which are the photographs showing that the cattle were tied in the said property, but the same do no convey any title over the suit property; Exs. P. 15 is the letter given by the panchayat to both the parties; and Ex. P. 16 is also an application by all the members of the village, but the said revenue records are not the documents of title and hence, they cannot claim their ownership title based on the said revenue records.

The Hon''ble Supreme Court in the case of Corporation of the City of Bangalore Vs. M. Papaiah and Another, has held that the revenue records are not the documents of title. The interpretation of revenue records is not the question of law. The finding of fact is recorded by the Lower Courts on the basis of the interpretation of revenue record and the interference with that finding by the High Court is illegal.

Both the Courts on considering all the oral and documentary evidence on record have recorded a specific finding that the plaintiffs have failed to prove their lawful possession over the suit property and since the same is not proved, interference by the defendant does not arise. Such a finding of fact recorded by the Courts below that too in the injunction suit, cannot be re-assessed by this Court under the provisions of Section 100 of the Code of Civil Procedure, 1908 and hence, no prima facie case is made out so as to interfere with the same.

Consequently, no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed.