Mariyappa vs K.V. Naidu

P.D. Waingankar, J.—By judgment and decree dated 3.1.2011, the suit filed by the plaintiff for a decree of permanent injunction against the defendants in O.S. No. 7141/2004 on the file of XVII Addl. City Civil Judge, Bangalore came to be dismissed. Hence, this appeal.

The facts which gave rise to this appeal are stated as under:-

The plaintiff claims to be owner of the suit schedule property bearing Sy. No. 109 of Singapura village measuring 2 acres, which was granted to him by the Deputy Commissioner, Bangalore on 17.10.1977. It is an agricultural land. The plaintiff put up a shed measuring 15'' x 30'' in THE suit survey number, wherein he is residing alongwith his family for cultivation of the land. The defendants have no right title or interest over the schedule property. Though the defendants have no right, title or interest on 7.9.2004, defendants made an attempt to trespass into the schedule property and on 10.9.2004, the defendants came with some rowdy elements and made an attempt to dig trenches for the formation of the road in the schedule property, which made the plaintiff to file a suit for a decree of permanent injunction against the defendants.

In response to the suit summons, all the defendants appeared, but defendant No. 1 is the only person who filed written statement contending therein that the plaintiff sold the schedule property to the 2nd defendant for valuable consideration of Rs. 14.00 lakhs in pursuance of the sale agreement dated 1.3.2004, wherein the plaintiff handed over possession of suit schedule property in favour of defendant No. 2. It is also contended that apart from the sale agreement, the plaintiff also executed a General Power of Attorney in favour of the defendants apart from swearing an affidavit for having handed over possession in favour of 2nd defendant; that the 2nd defendant paid a sum of Rs. 8.00 lakhs in favour of the plaintiff by way of cheque and remaining amount of Rs. 6.00 lakhs in cash. Thus, defendant No. 2 has paid entire sale consideration of Rs. 14.00 lakhs. The plaintiff having received entire sale consideration and having handed over vacant possession of the schedule property in favour of defendant No. 2, has got no cause of action to file a suit for decree of injunction against the defendants. Hence, the defendants have sought for dismissal of the suit.

Based on the pleadings and the documents placed on record, the Trial Court framed the following issues:-

After framing of the issues, the plaintiff in order to prove his case got himself examined as PW-1, marked Exs.-P1 to P5. On behalf of the defendants, defendant No. 1 K.V. Naidu has been examined as DW-1. Exs.-D1 to D8 came to be marked. The Trial Court upon hearing the arguments and upon appreciation of the evidence placed on record, recorded a finding that the plaintiff is in possession and enjoyment of the schedule property. But at the same time, the Trial Court came to the conclusion that the plaintiff failed to prove the interference by the defendants, which ultimately resulted in dismissal of the suit by judgment and decree dated 3.1.2011.

Aggrieved by the dismissal of the suit, this appeal is preferred on the ground that the Trial Court though recorded a finding that the plaintiff is in actual possession and enjoyment of the schedule property, the Trial Court erred in coming the conclusion that there is no interference by the defendants. It is also urged that from the very fact that defendants are claiming right over'' the schedule property amounts to interference by the defendants and under such circumstances, the Trial Court ought to have decreed the suit in favour of the plaintiff.

I have heard the arguments addressed by both the learned counsel for the appellant and the respondents. Perused the records.

Learned counsel for the appellant would submit that the Trial Court having recorded a finding that the plaintiff is in possession and enjoyment of the schedule property as on the date of the suit has committed an error in holding that the plaintiff failed to prove interference by the defendants. It is also submitted that the very fact that defendants are claiming right, title and interest over the schedule property itself amounts to interference or obstruction by the defendants in the peaceful enjoyment of the schedule property by the plaintiff and hence learned counsel has sought to set-aside the judgment and decree, whereby the suit came to be dismissed and granted a decree of permanent injunction against the defendants.

Per-contra, learned counsel appearing for the defendants would contend that the Trial Court on proper appreciation of evidence on record rightly came to be conclusion that the plaintiff failed to prove interference by the defendants, which resulted in dismissal of the suit. There is no merit in the appeal filed by the appellant and hence learned counsel sought for dismissal of the appeal.

Having heard the submissions of both the learned counsel for the appellant and the respondents and upon perusal of the entire records, the point that arise for my consideration is as under:-

a. Whether the Trial Court is justified in coming to the conclusion that the plaintiff failed to prove interference by the defendants?

b. Whether the judgment and decree passed by the Court below calls for my interference?

Point No. 1:-

The case of the plaintiff is that he is owner of the schedule property bearing Sy. No. 109 of Singapura village measuring 2 acres of agricultural land, which was granted to him by the Deputy Commissioner on 17.10.1977. It is his further case that he put up a shed measuring 15'' x 30'' in the schedule land, wherein he is residing for the purpose of better cultivation of the land. The plaintiff who is examined as PW-1 has reiterated the same in his evidence. Apart from oral evidence, he has produced documents in support of his case. Ex-P2 an extract of property register issued by Doddabettahalli Panchayath in Bangalore North Taluk, wherein, it is stated that by order LND (3) SR 27/77-78 dated 17.10.1977, the schedule Sy. No. 109 was granted to the plaintiff Mariyappa by the Deputy Commissioner, Bangalore District. Ex-P1 is the record of right extract of Suit Sy. No. 109 of Singapura village measuring 2 acres for the year 2003-2004, which shows the name of the plaintiff both in ''cultivators'' column and the ''ownership'' column. The plaintiff has also produced record of right extract of the said survey number for the year 2000-2001 as per Ex-P4, the tax paid receipt as per Ex-P5, which are all in the name of the plaintiff. Thus from all these documents marked as Exs.-P1 to P5 coupled with the oral evidence of the plaintiff,-, who is examined as PW-1, one can come to the conclusion that the plaintiff has proved his possession over the schedule Sy. No. 109 as on the date of the filing of the suit.

But the case of the defendants is that the plaintiff sold the schedule property in favour of defendant No. 2 for total a consideration of Rs. 14.00 lakhs on 1.3.2004, which has been fully paid by defendant No. 2 to the plaintiff in pursuance of the sale agreement executed by the plaintiff in favour of defendant No. 2, whereunder the possession has also been handed over by the plaintiff in favour of defendant No. 2. But it appears from the records that the original sale agreement was produced before the trial Court. Since the agreement was not properly stamped, it was impounded by the Trial Court and has been sent to Deputy Commissioner for levy of the stamp duty together with penalty. From the deposition of defendant No. 1, who is examined as DW-1, it is evident as observed by the Trial Court that under the said agreement, possession has been handed over in favour of defendant No. 2 by the plaintiff. The plaintiff has also executed General Power of Attorney in favour of defendant No. 2, which is marked as Ex-D3 on 1.3.2004, whereunder defendant No. 2 has been authorized to develop the schedule property, obtain loan from the financial institutions, to sell the schedule property to third person and to execute the sale deed on the strength of Power of Attorney. Be that as it may, since the original sale agreement said to have been entered into between the plaintiff and defendant No. 2, whereunder possession of the schedule property said to have been given to defendant No. 2 is not forthcoming and in the absence of necessary documents for having handed over possession by the plaintiff in favour of defendant No. 2, the Trial Court based on RTC extract marked as Ex-P4 and P1 for the year 2000-2001 and 2003-2004, wherein the name of plaintiff is shown both in the ''ownership'' column and ''cultivators'' column, has rightly come to the conclusion that the plaintiff has proved his possession over the schedule property as on the date of filing of the suit. Even other-wise., the said finding recorded by the Trial Court is not challenged by the defendants.

The main reason for the Trial Court to dismiss the suit filed by the plaintiff is that the plaintiff failed to prove interference by the defendants. Defendant No. 1 who has been examined as DW-1 went on record to depose that the plaintiff sold the schedule property to defendant No. 2 for consideration of Rs. 14.00 lakhs on 1.3.2004. A sale agreement said to have been entered into between the plaintiff and defendant No. 2, whereunder the possession said to have been handed over to defendant No. 2 by the plaintiff has been impounded for want of stamp duty. The plaintiff also executed a General power of attorney in favour of defendant No. 2 authorising him to deal with the schedule property such as to raise loan, sell the schedule property to third person etc., The defendant No. 2 has also produced his pass book in respect of his bank account in State Bank of India, Jalahalli Branch. It is seen from the entries made in the pass book that on 10.3.2004, defendant No. 2 issued a cheque for Rs. 4.00 lakhs in favour of the plaintiff. Similarly on 5.4.2004, he issued a cheque for Rs. 4.00 lakhs in favour of the plaintiff. The copies of the cheques issued by defendant No. 2 on 10.3.2004 and 5.4.2004 have been secured from the bank and marked as Ex-D7 and D8, which confirms that an amount of Rs. 8.00 lakhs under both the cheques has been paid to the plaintiff. So far as remaining amount of Rs. 6.00 lakhs is concerned, defendant No. 1 went on record to depose that it has been paid in cash. When such being the case, the plaint is totally silent regarding the sale agreement entered into between the plaintiff and defendant No. 2 for consideration of Rs. 14.00 lakhs, the General Power of attorney executed by the plaintiff in favour of defendant No. 2 and the payment received by the plaintiff from defendant No. 2. When the plaintiff has approached the Court seeking equitable relief of injunction, he ought to have stated all these facts in his plaint. He is guilty suppressio veri and suggestio false. From the very fact that he has suppressed all these material facts which are germane for the decision in the suit, it has to be held that the plaintiff has not approached the Court with clean hands. When there is documentary evidence for having received Rs. 8.00 lakhs by the plaintiff from defendant No. 2 by way of a cheque, it was obligatory on the part of the plaintiff to explain under what circumstances he received the said amount from defendant No. 2. He has also not explained what made him to execute General Power of Attorney in favour of defendant No. 2 marked as Ex-D3. Prima-facie on comparison of the signature of the plaintiff in Ex-D2 postal acknowledgment due, his signature on the plaint, the verifying affidavit and his signature found in Ex-D3-Power of Attorney, one can easily come to the conclusion that Ex-D3 is the Power of Attorney executed by the plaintiff in favour of defendant No. 2, whereunder defendant No. 2 has been authorized to look after, develop, to raise loan and sell the schedule property to third person. When such being the intention of the plaintiff in executing the Power of Attorney, merely because defendant No. 2 came to the schedule property, it cannot be said that he caused interference into peaceful enjoyment of the schedule property of the plaintiff. It is not the case of the plaintiff that he has revoked the power of attorney executed in favour of defendant No. 2. So long as the power of attorney is not revoked, the plaintiff is bound by the acts of the defendant No. 2 done in pursuance of power granted to him under the Power of Attorney. When such being the case, the Trial Court is justified in coming to the conclusion that the plaintiff failed to prove interference by the defendants. I do not find any illegality committed by the Trial Court in dismissing the suit. There is no merit in the appeal.

Hence, I pass the following order:-

Appeal is dismissed. The judgment and decree passed by the Court below is hereby confirmed.