Mahadevappa Shivappa Somanakatti vs Shankarappa Shivappa Nalavadi

B.V. Nagarathna, J.—This Regular Second Appeal is filed by the plaintiff in O.S. 209/2002 assailing the judgment and decree passed in R.A. 79/2003 dated 30.6.2008 by the Principal Civil Judge (Sr. Dn.) at Gadag, reversing the judgment and decree passed in O.S. 209/2002 dated 19.4.2003 passed by the Principal Civil Judge (Jr. Dn.), Gadag.

For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.

The appellant who is the plaintiff, filed a suit seeking permanent injunction against the defendant restraining the defendant from obstructing the plaintiff in his enjoyment and possession of Plot No. 42 in R.S. No. 24/3 of Adavisomapura village, (hereinafter referred to as the suit schedule property). According to the plaintiff, the suit property measuring 35'' x 40'' is bounded on the East by Plot No. 43, West by: Road, North by Plot No. 41 and South by Road. According to the plaintiff, the said plot was allotted to him by the Government of Karnataka under the ''Ashraya Scheme'' on 20.9.1994 and that he had taken possession of the said property having become the owner of the same, that his name has been entered in the panchayat records. Thereafter, he has put up a temporary shed and has been residing therein since the year 2002 and he intended to put up a permanent construction by demolishing the temporary shed. He applied for permission to construct on the said property in April 2002 by paying the requisite fee and was granted permission on 10.4.2002. When the plaintiff made preparations for digging the foundation, the defendant started interfering with the plaintiffs possession. Therefore, the plaintiff filed the suit seeking a decree of permanent injunction against the defendant.

On receipt of suit summons and notice, the defendant appeared and filed his written statement denying the averments made by the plaintiff. He denied the description of the property given by the plaintiff. According to him, he was allotted Plot No. 37 and that he has been living with his family in the said plot and Plot No. 37 is bounded on the East by: Plot No. 48, on the West by: Road, on the North by: Plot No. 38 and on the South by Road. That the said plot has also been allotted to him under the ''Ashraya Scheme'' on 20.9.1994 and he has been in possession of the said plot since then. He, therefore, submitted that the plaintiff has no cause of action against the defendant and sought dismissal of the suit.

On the basis of the rival pleadings, the trial Court framed the following issues for its consideration:

(1) Whether plaintiff proves that he is in lawful possession of the suit property on the date of filing of this suit?

(2) Whether the plaintiff proves the alleged interference of the defendant?

(3) Whether the plaintiff is entitled for relief as prayed for?

In support of his case, the plaintiff examined himself as P.W. 1 and another witness as P.W. 2 and produced four documents which were marked as Ex. P.1 to P.4. While the defendant examined himself as D.W. 1 and two other witnesses as D.W. 2 and D.W. 3 and produced seven documents which were marked as Ex. D.1 to Ex. D7.

On the basis of the said evidence, the trial Court decreed the suit of the plaintiff and restrained the defendant from interfering with the suit schedule property.

Being aggrieved by the said judgment and decree, the defendant preferred R.A. 79/2003. The I Appellate Court framed the following points for its consideration:

(1) Whether plaintiff has proved that he is in lawful and actual possession of the suit property?

(2) Whether plaintiff has proved the alleged interference and obstruction?

(3) Whether I.A. No. 2 and 3 filed under Order 26 Rule 9 of CPC and Order 41 Rule 27 of CPC deserved to be allowed?

(4) Whether the impugned judgment requires to be interfered with?

On hearing both sides, the I Appellate Court answered Point No. 1 partly in the affirmative and negative, Point Nos. 2 and 3 in the negative and Point No. 4 in the affirmative and allowed the appeal of the defendant and dismissed the suit of the plaintiff.

Being aggrieved by the said judgment and decree the plaintiff has preferred this Regular Second Appeal.

I have heard the learned Counsel for the appellant and the learned Counsel for the respondent and perused the original records.

It is contended on behalf of the plaintiff appellant that, the appellant is a beneficiary under the ''Ashraya Scheme''. As per Ex. P. 3 Plot No. 42 was allotted to him in R.S. No. 24/3 on 20.9.1994 and that since then he has been in possession of the said plot and Ex. P.1 is the title deed given to him with regard to Plot No. 42. Ex. P.2 to Ex. P.4 are other documents showing that he has been allotted the said plot. That the respondent is no way concerned with Plot No. 42 as the claim of the respondent is with regard to Plot No. 37 which has been allotted to him under the ''Ashraya Scheme''. However, the respondent has not produced any ''Hakku Patra'' similar to the one produced by the appellant. That the trial Court rightly decreed the suit filed by the appellant, but the I-Appellate Court has dismissed the suit filed by the appellant by ignoring the documentary evidence produced by the appellant.

It is also brought to my notice that,, in fact the respondent herein had filed two applications-one under Order XXVI Rule 9 of CPC and the other under Order XLI Rule 21 of CPC seeking, one, for appointment of a Commissioner and another for additional evidence. The said applications filed by the respondent were also dismissed by the I Appellate Court. However, without taking into consideration the documentary evidence on record, the First Appellate Court has reversed the findings of the trial Court. He, therefore, submitted that the substantial questions of law arise in this appeal.

Per contra, learned Counsel for the defendant-respondent supporting the judgment and decree of the I Appellate Court has stated, that the appellant was unable to state the boundaries of the plot allotted to him. On the other hand, Plot No. 37 was allotted to the respondent and that the boundaries of Plot No. 37 are the same as the boundaries of Plot No. 42 and that in Ex. P.1 there is an over-writing and therefore, the I Appellate Court was right in reversing the findings of the trial Court. He, therefore, submitted that no substantial question of law would arise in this appeal which may be dismissed.

Having heard the learned Counsel on both sides and on perusal of the original records, I am of the view that the appeal is one which needs to be admitted on the following substantial questions of law:

i. Whether the lower appellate Court was justified in dismissing the suit filed by the plaintiff by ignoring the documentary evidence produced by the plaintiff, particularly, Ex. P.1?

ii. Whether the lower appellate Court was right in reversing the findings of the Trial Court based only on the oral evidence of respondent in the absence of there being any documentary evidence to show the allotment of the suit schedule property to the respondent?

Since I have heard the learned Counsel at length, with their consent the appeal is heard finally.

From the material on record, it is established that both the appellant as well as the respondent claim to be the beneficiaries under the ''Ashraya Scheme''. In support of his case, the appellant has produced Ex. P.1 which is "Niveshana Hakku Patra". In the said document it is categorically stated that in Sy. No. 24/3, Plot No. 42 measuring 35'' x 40'' has been allotted to the plaintiff. The boundaries to the said plot are, to the East by Plot No. 43, to the West by Road, to the North by Plot No. 41 and to the South by Road. In support of the said allotment Ex. P.2 has been produced which is the assessment made with regard to the said plot. Ex. P.3 is the fee paid receipt issued by the panchayat in connection with seeking permission to put up construction and Ex. P.4 is the diagram showing the location of the Plot No. 42 and also Plot No. 37, which is said to have been allotted to the defendant. On the basis of the said evidence, it can safely be concluded that Plot No. 42 was allotted to the appellant herein.

However, the controversy does not end here. It is the claim of the respondent that what has been allotted to the respondent is in fact Plot No. 37 which is in fact the very plot which has been allotted to the appellant. The claim is that there has been an over-writing of the boundaries in the ''Hakku Patra'' granted to the appellant. If the defendant-respondent contends that he is also an allottee under the ''Ashraya Scheme'', there are no reasons forthcoming as to why the respondent has not produced a ''Hakku Patra'' granting Plot No. 37 to him. In the absence of any documentary evidence with regard to the grant of a plot by the Government to the respondent, he cannot at all be considered to be an allottee under the ''Ashraya Scheme''.

Be that as it may, the appellant states that he is not at all concerned with the Plot No. 37 which has been allotted to the respondent and that he is only concerned with the Plot No. 42. When there is documentary evidence produced by the appellant in the form of Ex. P.1 i.e. "Niveshana Hakku Patra" showing the boundaries of Plot No. 42, nothing prevented the defendant from producing a similar document with regard to the allotment of Plot No. 37 under the very same ''Ashraya Scheme''. On the other hand, the defendant has produced tax assessment and tax paid receipts and other receipts, voters list and photo. The said documents neither prove the possession of the defendant nor the title of the defendant to the suit schedule property. The documents in the form of tax paid receipts particularly are of no assistance since the authorities who received the tax would not go into the question as to whether the tax payer is a title holder or in possession of any immovable property as such. Therefore, in the absence of any documents of title produced by the defendant and in the face of Ex. P.1, the I Appellate Court ought to have placed reliance on the documentary evidence produced by the appellant while weighing the comparative evidence on both sides rather than on giving importance to the oral evidence of respondent.

In this regard, reliance may also be placed on Section 91 of the Indian Evidence Act, 1872, which stipulates that when the terms of the contract or of a grant or of any other disposition of property, have been reduced to the form of a document, then no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself. Therefore, when Ex. P.1 was produced by the appellant herein to prove that the allotment of Plot No. 42 in favour of the appellant and in the absence of there being any similar grant or ''Hakku Patra'' produced by the defendant, the I Appellate Court had to rely only on Ex. P.1 and not the oral evidence of defendant.

Therefore, the substantial questions of law are answered in favour of the appellant. The appeal is allowed. The judgment and decree of the I Appellate Court is set aside. The decree of the trial Court is restored. Parties to bear their own costs.

[In view of the dismissal of the appeal, the application for stay would not survive for consideration.]

ORDER ON I.A. 1/2013

Appellant has filed this application praying to correct the typographical mistake crept in the last paragraph of the judgment dated 26.7.12. The last paragraph of the judgment reads as under:

In view of the dismissal of the appeal, the application for stay would not survive for consideration.

The learned Counsel for the appellant submits, this Court has allowed the appeal by answering the substantial questions of law in favour of the appellant and set aside the judgment and decree of the 1st appellate court and restored the decree of the trial Court, as is evident from paragraph-18 of the judgment. Therefore, in view of the allowing of the appeal the last two lines of paragraph-18 are required to be suitably corrected/deleted.

By perusal of paragraph 18 of the judgment passed in the above appeal, it is found that substantial questions of law are answered in favour of the appellant and the judgment and decree of the 1st appellate court is set aside and the decree of the trial Court is restored. If that is so, the last two lines of paragraph-18 of the judgment reading as "In view of the dismissal of the appeal, the application for stay would not survive for consideration" is certainly a typographical error, as contended by the learned Counsel for appellant and as fairly conceded by the learned Counsel for respondent. Further, on perusal of the appeal papers it is found that there is no stay application. Thus, the last two lines of paragraph-18 are required to be deleted. Accordingly, the Registry is directed to delete last two lines of paragraph-18 which reads as "in view of the dismissal of the appeal, the application for stay would not survive for consideration" and issue corrected copy of the judgment.