M. Susheelamma vs M. Kanthamani

A S Bopanna, J.—The appellant herein is the plaintiff in O.S. No. 8457/2002. The suit in question was filed seeking for judgment and decree of permanent injunction. The Court below after considering the rival contentions has dismissed the suit on 08.12.2009. The plaintiff is therefore before this Court assailing the said judgment and decree passed by the Court below. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.

The brief facts of the plaintiff''s case is that the land measuring 5 guntas in Sy. No. 146/6 of Nagavara village, Bangalore North Taluk, fell to the share of the plaintiff and her sisters in the compromise decree dated 22.06.1988 passed in RFA No. 237/1980 c/w RFA No. 98/1981. It is her case that pursuant to the said compromise, the plaintiff remained in possession of the said extent of 5 guntas. In the said compromise, an extent of 8 guntas in the same survey number was allotted to the share of brother of the plaintiff viz., Sri M. Manohar. Insofar as the extent of the property which had been allotted to the share of the plaintiff, the mutation orders have been obtained and the revenue entries have been retained in that regard. The case of the plaintiff is that though certain extents of the property was sold by the plaintiff, she had retained the extent of the schedule property in her possession. The contention of the plaintiff is also that the properties which fell to the share of her brother-Sri M. Manohar had been sold by him. It is in that context, contended by the plaintiff that when the plaintiff had retained the suit schedule property, the said Sri M. Manohar could not have sold that property to the defendant under the sale deed dated 23.09.2002. It is therefore contended that the sale deed executed in favour of the defendant is invalid and the plaintiff being in possession of the suit schedule property is entitled to retain the same. As such, the defendant should be injuncted from interfering with her peaceful possession and enjoyment of the property.

The defendant on being notified with the suit summons appeared and filed the written statement. The case put forth by the plaintiff that she is in possession of the suit schedule property was denied. However, with regard to apportionment of the shares in the property bearing Sy. No. 146/6 of Nagavara village, was admitted by the defendant and it was contended that the property purchased by the defendant under the sale deed dated 23.09.2002 is a portion of the property which has been allotted to the share of Sri M. Manohar. It is therefore contended that the Vendor of the defendant having title to the property in view of the compromise entered into in the said appeals under a partition suit was entitled to sell the property to the defendant. Therefore, the defendant having purchased the property is in peaceful possession and enjoyment of the same as she had been put in possession of the property by the Vendor. The manner in which the defendant is exercising ownership over the property is also stated by contending that there are certain structures existing on the land and a shop is also being operated from the said property. It is therefore contended that the plaintiff is attempting to lay claim to the property which was in fact granted to the share of her brother and the plaintiff has no manner of right in respect of the suit schedule property. Hence, the defendant had sought for dismissal of the suit.

The Court below on noticing the rival contentions has framed as many as four issues for its consideration, which read as hereunder:

Whether the plaintiff proves that she is in lawful possession of suit property?

Whether the plaintiff proves that defendant is unlawfully interfering with her possession and enjoyment of the suit property?

Is the plaintiff entitled to the reliefs sought for?

What Order or Decree?

In order to discharge the burden cast on the parties, the plaintiff examined herself as P.W.1 and relied upon the documents at Exhs.P1 to P8. The husband of the defendant was examined as D.W.1 and the documents at Exhs.D1 to D11 were relied upon. The Court below on noticing the evidence has dismissed the suit. The plaintiff therefore is before this Court in this appeal.

Learned counsel for the plaintiff while assailing the judgment of the Court below would contend that the Court below has proceeded on a wrong assumption. It is her case that the entire case pleaded by the plaintiff is that though major portion of the property to an extent of 5 guntas in Sy. No. 146/6 of Nagavara village, which was allotted to her share had been sold, it had been throughout contended that the property indicated in the suit schedule has been retained by her and she was in peaceful possession. Hence, it is contended by the learned counsel that the Court below has wrongly arrived at the conclusion that the plaintiff has admitted that an extent of 5 guntas had been sold. In that context, the learned counsel would contend that it cannot also be in dispute that Sri M. Manohar, the brother of the plaintiff had sold the entire extent. Therefore, the said Sri M. Manohar could not have sold the extent of the property to which the defendant is laying claim. Hence, it is her case that when the document at Exhs.P7 and P8 indicate that the name of the plaintiff is shown to be the owner of the extent of 5 guntas and merely because she has sold certain portion of the property, the Court below could not have assumed that the entire extent had been sold. It is therefore contended that the Court below without appreciating the evidence on record in its correct perspective has dismissed the suit and the plaintiff being in possession was entitled to the grant of injunction. It is therefore contended by the learned counsel that the judgment and decree passed by the Court below is not sustainable and the same calls for interference.

On the other hand, the learned counsel for the defendant would seek to sustain the judgment passed by the Court below. It is contended that though the plaintiff claims to be in possession of the extent indicated in the suit schedule, but in the cross-examination she has categorically admitted that the entire extent of 5 guntas which had fallen to her share had been sold to one Smt. Girijamma, who in turn formed sites and sold the sites to different people. This in fact would indicate that the plaintiff did not have any manner of right. Further, the document on record would clearly disclose that in addition to the plaintiff, the Vendor of the defendant was also allotted 8 guntas of land in the same survey number in the compromise entered into between the parties and out of the said extent, one site has been purchased by the defendant and on purchase of the property, the defendant has been exercising her ownership rights. In that regard, relevant documents had been produced before the Court below and therefore even on the aspect with regard to the possession, the defendant is in physical possession of the property and the suit being for bare injunction, the Court below in any event was justified in arriving at its conclusion. Therefore, the judgment and decree does not call for interference.

In the light of contentions put forth by the learned counsel for the parties, the questions that arise for consideration in the instant case are,

i) Whether the materials on record disclose that the plaintiff has retained any extent of the property in Sy. No. 146/6, Nagavara village, which she acquired under the compromise decree.

ii) Whether the plaintiff has proved her possession over the suit schedule property so as to entitle her for the judgment and decree of injunction?

In order to appreciate this aspect of the matter, though the plaintiff has examined herself as P.W.1 and has reiterated the averments made in the plaint by way of evidence which was tendered in the form of affidavit and has relied upon the documents, it is to be noticed that insofar as the documents relied on by the plaintiff at Exhs.P1, P7 and P8, there can be no dispute whatsoever that an extent of 5 guntas of land was granted to the share of the plaintiff in the compromise entered into between the parties in RFA No. 237/1980 c/w RFA No. 9/81 on 22.06.1988. It is pursuant to such compromise decree, the mutation entries have been made as per Ex.P7 and the ownership right is indicated in Ex.P8. The said documents indicate that the plaintiff had right in respect of 5 guntas of the property. The document at Ex.P1 would also indicate that the Vendor of the defendant was also granted 8 guntas of land in the same survey number. Therefore, insofar as the ownership of the property between the plaintiff and her brother to different extent, there can be no dispute. The only question is, after the plaintiff acquired right in the said manner, whether the entire extent of 5 guntas or any portion thereof is in possession of the plaintiff even as on the date of filing the suit.

In that regard, no document whatsoever is placed on record to indicate that only a lesser extent than 5 guntas has been sold by the plaintiff and a portion has been retained by her. Therefore, in that context, the pleading and the evidence tendered and the cross-examination would become relevant for consideration in the instant facts of the case.

No doubt, the plaintiff having acquired the right over 5 guntas has pleaded that she has retained the suit schedule property and the same has been reiterated in the evidence. However, a perusal of the cross-examination would indicate that the credibility of such statement has eroded inasmuch as the plaintiff has admitted that she had sold an extent of 5 guntas to one Smt. Girijamma and thereafter the said Girijamma has sold the sites formed in the said property. If this aspect of the matter is kept in view, prima facie, the plaintiff has failed to prove that she has retained any portion of the property which had fallen to her share. On the other hand, the very case pleaded by the plaintiff would indicate that the Vendor of the defendant viz., Sri M. Manohar, brother of the plaintiff was also given 8 guntas in the same survey number. The sale deed dated 23.09.2002 (Ex.P3) under which the property was sold in favour of the defendant would indicate that an extent carved out of the same property has been sold to the defendant. Furthermore, the documents relied on by the defendant would indicate that after the purchase, the defendant had exercised ownership over the property by seeking for change of revenue entries and has also entered into an agreement for utilisation of the property by running shops in the said premises.

Therefore, this aspect of the matter in addition to purchase of the property by the defendant would indicate that the defendant is also in possession of the property which she has purchased under the said sale deed. Hence, if these aspects of the matter are kept in view, the plaintiff had not only failed to prove that she is still in possession of any extent of the land in the said survey number which had fallen to her share but, had also failed to further prove that she is in possession of the suit schedule property to which she claims right. Therefore, taking an overall view of the matter, I am of the considered opinion that the Court below was justified in the manner of considering the evidence which was available on record and on reappreciation of the said evidence, I do not find any error. In that view of the matter, the points raised herein for consideration are held against the plaintiff/appellant.

In the result, the appeal being devoid of merit stands dismissed. No order as to costs.