M. Marularadhya vs Eshwarappa

The appellants have challenged the judgment and decree of injunction granted by First Appellate Court in RA No. 295/2002 reversing the decree of the trial Court by dismissing the suit instituted by the respondents for the relief of declaration and injunction, is challenged in this second appeal.

The facts reveal that the suit property is the land bearing Sy. No. 28 measuring 41 acres out of which 10 acres and 14 guntas of land situated on the north western portion of the suit survey number is the land in dispute. The description has been provided in the schedule to the plaint. The appellants herein are the legal representatives of first defendant, whereas respondents 1 and 2 are the plaintiffs and third respondent is the second defendant. The plaintiffs contended that they are the owners of suit survey number and that there was a partition and they have been in continuous possession of the suit property since its acquisition. They claim that the defendants do not have any right, title or interest in the suit property. In the circumstances, they sought for declaration that they are the absolute owners and for injunction to restrain the defendants from causing obstruction to their peaceful possession and enjoyment of the suit property.

The first defendant has filed the written statement denying the averments made and it is contended that out of the suit survey measures 41 acres, 6 acres and 20 guntas was purchased by the second defendant under the registered sale deed dated 16.05.1967 under Ex. D7, in turn the second defendant sold it to the first defendant under the registered sale deed dated 05.09.1988. So as per their contention, the second defendant is in possession of the suit property since from 1967 till 1988 and thereafter, the first defendant is in possession of the suit property. In the circumstances, they sought for the dismissal of suit.

The Trial Court framed the issues and permitted the parties to produce their evidence and accordingly, the plaintiffs examined PWs. 1 to 5 and in their evidence, Exs. P1 to P28 were marked. The defendants examined as DWs. 1 to 6 and Exs. D1 to D17 were marked in their evidence. The Trial Court heard the counsel and on appreciation of the material on record, dismissed the suit. Aggrieved by the judgment and decree of dismissal, the plaintiffs preferred an appeal in RA 295/2002 and the First Appellate Court has allowed the appeal in part by affirming the decree of dismissal so far as the relief of declaration and granted a decree of injunction by setting aside the dismissal of the suit. Aggrieved by the judgment and decree of the First Appellate Court, the present appeal is filed.

At the time of admission, the following substantial questions of law raised in this appeal:

Whether the lower Appellate Court is justified in passing the decree of permanent injunction having dismissed the suit seeking declaration of title?

Whether the lower Appellate Court is justified in holding that the plaintiffs are in possession and enjoyment of the suit property, despite the recitals in Exs. D7 and D8 as well as Exs. D1 to D5?

Heard the learned Counsel for both the parties.

Learned Counsel for the appellants submit that 6 acres and 20 guntas of land which is the portion of suit property was purchased by the second defendant under the sale deed dated 16.05.1967 (Ex. D7) and in turn, the second defendant sold the suit property to the first defendant on 05.09.1988 (Ex. D8). He submits that the first Appellate Court having accepted the decree of Trial Court rejected the relief of declaration, has wrongly granted a decree of injunction despite the fact that the appellants are in possession of the suit property.

On the other hand, learned Counsel for the respondents supporting the judgment and decree of the First Appellate Court submit that the Court below having taken into consideration the name of plaintiffs in the record of rights since from the beginning till the date of institution of suit, there is presumption in law about the entries made in the records and the First Appellate Court has rightly granted the decree of injunction.

Having heard the submissions made by the learned Counsel for both the parties, if the documents produced by the parties are looked into in addition to the oral evidence led, the plaintiffs have produced the record of rights in Sy. No. 28 which totally measure''s 41 acre''s. As could be seen from the RTC extracts (Exs. P3 to P6), it appears that the names of plaintiffs are shown as the owner in possession of 41 acres of land. In facts, the plaintiffs have produced the certified copy of sale deeds at Exs. P1 and P2, the documents which are the title deeds of defendants 1 and 2.

Ex. P10 is the partition deed amongst the plaintiffs affecting division and taking possession of the respective shares in suit survey number. Anyhow, the defendants are not parties to this partition deed. Exs. P12 and 13 are the certified copy of sale deed relating to the adjoining lands and have no relevance. The plaintiffs have produced the tax paid receipts, encumbrance certificate in respect of Sy. No. 41 and it appears that the plaintiffs have paid tax for the whole land.

The encumbrance certificate produced at Ex. P19 does not reveal the reference of sale deed executed in favour of the second defendant and also in favour of the first defendant. Therefore, relying upon these documents, it is the contention of counsel that the plaintiffs are in possession of the suit property and this contention was accepted by the first Appellate Court.

Anyhow, it is relevant to note that the second defendant has purchased the suit property under the sale deed at Ex. D7 dated 16.05.1967 and suit has been dismissed by the Trial Court so far as the relief of declaration and injunction is concerned. The First Appellate Court even for the relief of declaration has accepted the decree of the Trial Court and that relief has not been granted to the respondents. To mean the sale deed at Exs. D7 and D8 has been accepted in law and they were not set aside by any of the Courts below under the sale deed Exs. D7 and D8.

There is a specific reference that 6 acres and 20 guntas out of 41 acres in Sy. No. 28 has been sold to defendant No. 2 in the year 1967 under Ex. D7. and in turn defendant No. 2 handed over the possession of given property to the first defendant under the sale deed Ex. D8 dated 05.09.1988. When these two documents have been accepted by the Courts below, the contents will have to be taken into consideration.

That apart, the defendants have produced the record of rights under Exs. D1 to D5. They are for the years 1970-71 to 1997-98. Perusal of the record reveals that an extent of 6 acre 20 guntas of land was purchased by defendant No. 2 out of 41 acres in Sy. No. 28. The name of second defendant appears both in the owner''s column and cultivator''s column. That apart, after the sale deed at Ex. D8 in favour of the first defendant, the mutation entry has been certified on 12.12.1988 and the certified copy of the mutation entry has been produced at Ex. D15. So in pursuance of this entry, the name of first defendant came to be entered in the record of rights of the land measuring 6 acres and 20 guntas in the suit survey number and this property which is claimed by the defendants is their absolute property under the sale transactions. The name of first defendant has been continuously entered till the date of suit on the basis of sale deed Ex. D8.

So the contents of record of rights and also the sale deed clearly indicate that the area measuring 6 acres 20 guntas purchased by the second defendant under Ex. D7 and in turn by the first defendant under Ex. D8 has been continued in possession of defendants. Merely that in respect of Sy. No. 28 measuring 41 acres, the name of plaintiffs have been continuously appear in the record of rights is inconsistent with Ex. D1 to D5 that it has been subsequently prepared by the revenue authority on the basis of Exs. D7 and D8, the contents of Ex. D3 L-P-6 cannot be accepted. It shows that the sale deeds have been acted upon by the parties.

The presumption cannot be raised on the basis of record of rights produced by the plaintiffs, when there is ample material on record that the defendants purchased 6 acres and 20 guntas out of the suit property under the sale deed and their names appear in the cultivator''s column and also in the owner''s column all along. The case put forth by the defendants is acceptable and these are the reasons which have been assigned by the Trial Court in dismissing the suit. Ignoring all this material on record, the First Appellate Court has only looked into the record of rights produced by the plaintiffs who are the appellants before the First Appellate Court with reference to their names in respect of 41 acres of land in Sy. No. 28, wherein there is no reference of these two sale deeds.

Merely because the Sub Registrar has issued ''Nil'' encumbrance certificate without referring to the sale deeds, it does not mean that sale deeds have not been executed. The sale deeds have been accepted by the Court as well and there are records which show that the defendants are in possession of the suit property. So granting injunction also does not arise. In the circumstances, I am of the opinion that the First Appellate Court has committed error and illegality in reversing the finding of the Trial Court so far as relief of injunction is concerned. In the circumstances, the substantial questions of law Nos. 1 and 2 are answered in Negative.

Consequently, the appeal is allowed. The judgment and decree of the First Appellate Court is set aside and that of the Trial Court is restored.