Moodalappa vs G.P. Jagadish and Others

A.S. Pachhapure, J.—The appellant has challenged the judgment and decree in RA No. 54/2008 setting aside the dismissal of suit filed by the respondents and granting a decree of injunction in their favour restraining him from causing obstruction to the peaceful possession and enjoyment of the suit property. The facts relevant for the purpose of this appeal are as under:

Parties will be referred as per their rank before the Trial Court for the sake of convenience.

The appellant herein is the defendant whereas the respondents are plaintiffs who instituted the suit for injunction to restrain the defendant from causing obstruction to the peaceful possession and enjoyment of the suit property bearing Sy. No. 117 measuring 2 acres 8 guntas of Agasavali village in Shimoga Taluk described in the schedule to the plaint. It is averred in the plaint that there was an oral partition between the parties in the year 1985-86 and the father of plaintiffs died on 22.02.2003. So far as the house property is concerned, there was registered partition deed dated 27.02.1986 and in the oral partition, the suit property fell to the share of plaintiff''s father whereas the land bearing Sy. No. 122 fell to the share of defendant. So since from the year 1985-86 onwards, the plaintiffs are said to be in absolute possession and enjoyment of the suit property. As there was obstruction to the peaceful possession, present suit came to be instituted seeking injunction.

The defendant appeared before the Trial Court and filed his written statement admitting the relationship but denied the oral partition. So far as registered partition deed dated 27.02.1986 in respect of house property, there was no dispute. The defendant contended that the suit property and Sy. No. 122 measuring 2 acres 3 guntas were owned by one Mallamma who is his grand mother and he was taking care of her during her life time and he had spent huge amount for her medical expenses and as such, she voluntarily gave the suit property and also Sy. No. 122 to him and the plaintiff''s father being educated person said to have obtained several signatures on blank documents and misused them in getting his name entered in the suit property. It was his contention that unless the relief of declaration is sought, the present suit for injunction is not maintainable.

On the basis of these pleadings, the Trial Court framed the following issues:

Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property?

Whether the plaintiffs further prove the alleged act of interference by the defendant?

Whether the plaintiffs prove that they are entitled for relief of permanent injunction as sought?

What order or decree?

Accordingly, the plaintiffs examined PW1 and got marked documents Exs. P1 to P5. The defendant examined himself as DW1 and documents Exs. D1 to D3 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, dismissed the suit. Aggrieved by the judgment and decree, the plaintiffs preferred an appeal before the First Appellate Court in RA No. 54/2008. The First Appellate Court has allowed the appeal and decreed the suit of respondents. Aggrieved by the judgment and decree of the First Appellate Court, the present appeal is filed.

At the time of admission, the following substantial question of law has been raised for consideration:

Whether the First Appellate Court was justified in reversing the finding of the Trial Court, when there was a dispute as regards title in a suit for bare injunction ignoring the principle, as laid down in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, and in such a circumstance, the parties should be relegated to a suit for declaration of title and consequential reliefs?

During the pendency of this appeal, this Court had issued a notice to the Tahsildar concerned directing him to produce the certified extract of record of rights of Sy. No. 122 and before the service of summons, counsel for the respondent has made available the record of rights of Sy. No. 122.

I have heard learned Counsel for both the parties.

It is contention of learned Counsel for the appellant that to evidence the oral partition, no documents have been produced and except the interested testimony of PW1 and a wrong mutation entry there are no other records to prove the oral partition. Hence, he contends that there is a complicated question relating to the title of parties to the suit property in pursuance of the decision of Apex Court reported in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , the parties should be relegated to a comprehensive suit for declaration of title and consequential relief. Hence, he submits that the judgment of First Appellate Court is both erroneous and illegal.

On the other hand, learned Counsel for the respondents supporting the judgment and decree of the First Appellate Court having produced the record of rights in respect of Sy. No. 122 the property which is said to have fallen to the share of appellant contends that the material placed on record itself is sufficient to prove the title of plaintiffs and hence, he would submit that the principle laid down in the decision referred to supra is not applicable to the facts in this case.

As could be seen from the material placed on record, the plaintiffs have produced the death extract of Puttappa, the brother of defendant at Ex. P1, Ex. P2 is the survey sketch in respect of Sy. No. 117 i.e., the suit property. Ex. P3 is the record of rights of the suit property since from the year 1994-95 and onwards till the year 1999-2000 and it reveals the name of the plaintiffs in the owner''s column as well in the cultivators column all along for the aforesaid years. Ex. P4 is the property extract of the suit property for the year 2001-02 and the name of deceased Puttappa, the father of plaintiff appears both in the owner''s column and cultivator''s column. Ex. P5 is the receipt for payment of land revenue of the suit property.

Perusal of column 10 relates to the manner of acquisition is by the partition deed. So as mentioned in this column the name of Puttappa, the father of plaintiffs who is also the brother of defendant came to be entered in the record of rights pursuance to this entry in the year 1985-86. So since from this date onwards till the date of institution of suit it was the name of Puttappa, the father of plaintiffs which appears in the owner''s column and also in the cultivator''s column. Despite the fact that defendant was aware of this mutation entry, he never filed any appeal challenging this entry.

Though it is averred in the plaint that there was oral partition in respect of suit property, the mutation entry referred to supra would indicate that there was a partition deed. But it is submitted before the Court that the mention of partition deed in the mutation entry is a mistake committed and it has to be ignored. It is relevant to note that though the plaintiffs averred that the property fell to the share of plaintiffs and Sy. No. 122 fell to the share of defendant, to endorse the said facts, the property extract of Sy. No. 122 was not produced. It was either for the plaintiffs or the defendant to produce the record of rights of the said Sy. No. 122 to support the version of parties in respect of oral partition that took place in the year 1985-86. But none of the parties initially were ready to produce the property extract of Sy. No. 122. Ultimately, the Court has to issue summons to the Tahsildar to produce the property extract and after issuance of the summons, counsel for the respondent made available the record of rights of Sy. No. 122.

Admittedly, the suit property and Sy. No. 122 were not the family properties of the parties but they belong to one Mallamma who is the grand mother of the parties. As per the version of defendant, both the suit properties were given to him by his grand mother as he looked after her by spending huge expenses towards treatment. In fact, the defendant has not produced any records to show that he ever treated her during her life time. That apart, if both these properties were given to the defendant, atleast she could have made a Will or some documents in favour of the defendant, but no such documents are produced. Atleast the defendant ought to have got his name entered in the records of both properties soon after the death of Mallamma, but he did not do so. Atleast to show that on the death of Mallamma, the property was entered in his name in the records of Sy. No. 122, he could have produced the record of rights, but he does not do so. So this inaction on the part of defendant in not producing the record of rights of land bearing Sy. No. 122 leads to an adverse inference. If this conduct of the defendant in not producing the record of rights in Sy. No. 122 is concerned, it appears to be not natural conduct on his part.

Anyhow, the said record of rights is made available before this Court by the counsel for respondent and perusal of this extract for the years 2012-1 3 would reveal that there is a mutation entry in MR 4/1985-86 to enter the name of the defendant in pursuance of the partition. As per this mutation entry, the name of defendant is appearing in the owner''s column and also on cultivator''s column. This document which has been now produced is an important piece of evidence to show that one property i.e., Sy. No. 117 fell to the share of plaintiffs whereas other property in Sy. No. 122 fell to the share of defendant. But anyhow, as this material has been placed for the first time before this Court and as this Court cannot take into consideration the question of fact again, it appears just and proper. to remit back this matter to the First Appellate Court and permit the parties to produce the record of rights by giving an opportunity to both the parties to lead additional evidence. This could be done in exercise of the discretion vested with this Court under Order 41 Rule 27(b) CPC as this document is necessary to do substantial justice to the parties instead of relegating them to the Court for the relief of declaration and asking them to go for fresh litigation over the suit property.

Perusal of the judgment of Apex Court reported in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, would reveal that there was complicated question relating to the title as both the parties were claiming title on the basis of registered documents. There appears to be no such serious complicated question, but anyhow this aspect of the matter will have to be considered by the First Appellate Court after permitting the parties to lead additional evidence and permitting to produce property extract of Sy. No. 122 produced by the respondent for the first time in this appeal. Consequently, without expressing any opinion on the merits, the judgment and decree of the First Appellate Court will be have to be set aside and the matter will have to be remitted back to the First Appellate Court. In the result, the appeal is allowed. The judgment and decree of the First Appellate court is set aside. The matter is remitted back to the First Appellate Court with a direction to afford an opportunity to the parties to lead additional evidence and to consider the property extract of Sy. No. 122 and thereafter to dispose of the appeal in accordance with law.

To avoid the delay, both the parties are directed to appear before the First Appellate Court on 15.01.2014 without waiting for any notice.