Manchamma vs Eramma

Budihal R.B, J.—This appeal is preferred by the appellants-defendants being aggrieved by the judgment and decree dated 1.7.2005 passed in R.A. No. 35/2001 by the Civil Judge (Sr. Dn.) Maddur, confirming the judgment and decree dated 7.9.2004 of the Civil Judge (Jr. Dn.) Malavalli, in O.S. No. 154/1985.

The facts leading to the filing of this case are that, originally, the predecessor of the plaintiffs-respondents, one Girigowda filed a suit against the original three defendants for the relief of declaration that he was the true owner in possession and enjoyment of the suit schedule property and also for the relief of permanent injunction to restrain the defendants, their agents, servants or anybody on their behalf from interfering with his possession and enjoyment of the suit schedule property. During the pendency of the suit, the original plaintiff and defendant No. 1 expired and their legal representatives were brought on record. The original plaintiff in the plaint pleaded that he was the absolute owner in possession and enjoyment of the vacant site bearing No. 170 measuring East-West 45 feet and North-South 42 feet situated at Koregala village in Malavalli Taluk as prescribed in schedule to the plaint. The said site was the ancestral property of the original plaintiff. In the family partition between plaintiff and his brothers, it had fallen to the share of the plaintiff. The plaintiff pleaded that he had been paying tax and the tax paid receipts were produced to show that he was in possession and enjoyment of the suit schedule property. Defendant No. 1 is the father of defendant Nos. 2 and 3, whose property is situated on the east of the suit schedule property. The defendants were unnecessarily causing hardship and disturbing the peaceful possession and enjoyment of the suit schedule property, though they had no right, title or interest over the said property. On 29.7.1985, the defendants, without any regard for law and taking law into their hands, tried to enter upon the suit schedule property. However with the help of neighbours, the original plaintiff resisted such illegal act of the defendants and lodged a complaint before the rural police at Malavalli. It was further pleaded by the original plaintiff that unless the defendants were restrained by an order of permanent injunction, they would not stop the illegal act of interference. With mala fide intention, defendants were denying the title of the plaintiff over suit property. Plaintiff had got valid licence from the village panchayat to put up dwelling house in the suit property.

The defendants, in their written statement, denied the case of the original plaintiff. At para No. 4 of the written statement, they pleaded that the property bearing katha No. 156 of Koregala village bounded on East-the property of Kempaiah, West by road, North by Shettaiah @ Venkataiah''s house and Puttuboregowda''s vacant site and South by Narasegowda and Honnagirigowda''s site, measuring East-West 100 feet and North-South 42 feet, originally, belonged to Kunda Eregowda. After the death of Kunda Eregowda, his sons divided the family properties including the above said property under the palu parikathu deed dated 10.1.1951. In the said partition, the property bearing katha No. 156 and other properties fallen to the share of defendant No. 1 and since then, defendant No. 1 was in possession and enjoyment of the said properties, which includes the suit schedule property, till he sold the entire property in favour of his wife Manchamma and his minor children defendant Nos. 2 and 3 under the registered sale deed dated 12.7.1969 for valuable consideration. Accordingly, from the date of purchase, the said Manchamma and her children became absolute owners of the entire property including the suit schedule property by virtue of the said sale deed and they were put in possession of the same. With an intention to put up a residential house on the suit property, defendant Nos. 2 and 3 and their mother, applied for grant of licence with the village group panchayat. After verification, panchayat granted licence in their favour. Defendant Nos. 2 and 3 and their mother learnt that with mala fide intention and to harass them, the original plaintiff had also made similar application for grant of licence giving the boundaries of the suit property mentioning the property number as No. 170 instead of No. 156. After verification, the panchayat rejected the application. It is learnt by defendant Nos. 2 and 3 that in property bearing No. 170, there existed a residential house in the name of plaintiff''s son by name Shettaiah @ Venkataiah and a foundation was laid by him and no portion of the property bearing No. 170 was vacant. Hence, it was contended by the defendants that plaintiffs had no manner of right or interest whatsoever in any portion of the suit schedule property. Accordingly, the defendants sought to dismiss the suit.

On the basis of the above pleadings, the trial Court framed the following four issues:

"1. Whether the plaintiff proves that he is the owner of suit schedule property?

Whether the plaintiff proves that he was in lawful possession of suit property on the date of suit?

Whether the plaintiff proves the alleged interference over suit property by defendants?

What order what decree?"

After considering the merits of the case, the trial court, ultimately, decreed the suit of the plaintiffs and declared them as absolute owners in possession and enjoyment of the property and the defendants were restrained by permanent injunction from interfering with peaceful possession and enjoyment of the property by the plaintiffs.

Aggrieved by the judgment and decree passed by the trial court, the defendants preferred R.A. No. 35/2001 before the first appellate court. After considering the merits of the appeal, the first appellate court, ultimately, dismissed the appeal confirming the judgment and decree of the trial court. Against the said judgment and decree of the first appellate court, the appellants-defendants have preferred the present regular second appeal.

While admitting the appeal, this Court has framed the following substantial question of law:

"Whether the Courts below were justified in granting a declaration in favour of the plaintiff when the documents produced by him did not disclose the boundaries of the properties in respect of which he was claiming title ?"

Heard the arguments of the learned counsel appearing for the appellants and also the learned counsel appearing for the respondents.

Learned counsel for the appellants-defendants, during the course of the arguments, submitted that the courts below have not properly appreciated the oral and documentary evidence produced by the parties. The very identity of the property is not at all established by the plaintiffs. The partition deed is not produced before the courts below and that, katha number in respect of the suit property should have been katha No. 156, which aspect is not considered by both the courts below. Hence, the learned counsel submitted that both the courts below have committed an error in passing the judgment and decrees in favour of Respondents. In support of his arguments, the learned Counsel has relied upon the decision in case of Jagdish Singh Vs. Natthu Singh, .

As against this, learned counsel appearing for the respondents-plaintiffs, during the course of the arguments, submitted that the identity of the plaintiffs'' property is not at all in dispute and therefore, the argument of the learned counsel for the appellants does not hold good. The oral and documentary evidence produced in the case would indicate that the plaintiffs are the owners in possession of the suit schedule property and the appellants-defendants have not proved their case as pleaded in the written statement. The courts below have properly appreciated the materials on record and have rightly come to the conclusion in decreeing the case of the plaintiffs. There is no illegality nor there is any perverse approach taken by the courts below. The concurrent findings arrived at by the courts below are on the material factual aspects. Hence, the learned Counsel submitted that there is no merit in the appeal and the same may be dismissed.

Perused the pleadings of both the parties submitted before the trial court, oral and documentary evidence as also the judgment and decrees passed by both the courts below.

The main contention of the respondents plaintiffs in the suit was that the property vacant site bearing No. 170 was the ancestral property of the plaintiffs and in the partition between original plaintiff and his brothers, it was fallen to share of original plaintiff. It was also their contention that the defendants caused obstruction to their possession and enjoyment of the suit schedule property. The defendants in the written statement have completely denied the case of the plaintiffs. It was the contention of the defendants that the suit schedule property is the part of the property which was sold by defendant No. 1 in favour of his wife Manchamma and his minor children. According to the defendants'' contention, there was no property in existence bearing property No. 170 and the said property claimed under the plaint was part of property bearing No. 156. Therefore, by taking such contention, the defendants challenged the very identity of property of the plaintiffs.

Ex. P1 is village site extract produced by the plaintiffs respondents, under which the suit schedule property was said to have been given to Venkategowda, who was the father of original plaintiff Girigowda. Perused the document Ex. P1, which is of the year 1894-95 given in the name of one Venkategowda.

D.W.2 - G.M. Shivaram is said to be Secretary of the Panchayat. In the examination in chief, D.W.2 has stated that property bearing No. 170 is situated in Koregal and property No. 156 is also situated at Koregal and he has seen those two properties. Property No. 170 is having basement and No. 156 is having thatched house and there is dung pit also. He has also stated that the distance between property Nos. 170 and 156 is 30 ft. The property bearing No. 170 is in the name of original plaintiff and property No. 156 is in the name of defendant. This evidence of D.W.2 demonstrates that property Nos. 170 and 156 are different properties and they are not similar as contended by the appellants defendants.

Looking to the oral evidence of D.W. 1 Channegowda, in the cross examination, he has deposed that the parties divided their properties about nine years back and they have the document for the said division. One kagepura chikkanna wrote the partition deed. They held panchayat nearby their house at the time of partition. Talks took place about the partition in their house. At that time, his mother was present and she signed on the deed. As per the partition deed, the parties got their names entered in all the landed properties. As there was a dispute in connection with gramatana site, they were not allowed to change katha. He has further deposed in the cross examination that in the partition deed (Parikath), there is mention about the disputed site. He is having the said parikath document with him and he is not having any difficulty to produce the said document before the court. He has further deposed that there is distance of 150 ft. in between the suit property and their residential house. The evidence of D.W.1 establishes that the suit schedule property is not the part and parcel of property No. 156 as contended by the appellants defendants.

The witnesses examined on the side of the plaintiffs i.e., P.Ws.1 and 3 have stated that the plaintiffs were in possession and enjoyment of the suit schedule property. P.W. 1 has deposed that the suit property was given to father of the original plaintiff Girigowda about 95 years back. He has produced the same as per Ex. P. 1. He has also stated about the possession of the plaintiffs in respect of the suit schedule property. In the cross examination of P.W.1, nothing has been elicited to establish that the suit schedule property is a part and parcel of property No. 156, as contended by the appellants defendants.

Regarding possession of the property by the plaintiffs, P.W.3 has deposed in his evidence, which is supporting the case of the plaintiffs, that the original plaintiff Girigowda was in possession and enjoyment of the suit schedule property and after is death, his legal representative were in possession and enjoyment of the suit schedule property.

Perusal of the judgment and decrees of courts below clearly disclose that after considering the oral and documentary evidence produced by the parties in the case, they have concurrently held that the plaintiffs have established title to the suit schedule property and also possession over the suit schedule property. The courts below have also recorded the finding that the defendants have caused interference to the plaintiffs'' peaceful possession and enjoyment of the suit schedule property. When such concurrent findings were recorded by the courts below with regard to the factual possession of the plaintiffs over the suit schedule property, the appellants-defendants have no right to interfere with the property and to canvas saying that judgment and decrees are illegal, perverse and capricious.

In the document at Ex. P. 1, not only the measurement but the boundaries of the suit schedule property are also mentioned. Therefore, it cannot be said that the suit schedule property claimed by the respondents plaintiffs is part and parcel of the property No. 156, as claimed by the defendants. There are no valid and justifiable grounds for this Court to interfere with the judgment and decrees passed by the courts below. Accordingly, the appeal is dismissed.