Muniswamappa vs Shankarappa

Aravind Kumar, J.—This is plaintiffs second appeal challenging the correctness and legality of Judgment and decree passed by Fast Track Court, K.G.F dated 06.08.2010 passed in R.A. 114/2007 whereunder Judgment and decree passed by the Principal Civil Judge (Jr. Dn) dated 04.10.2007 in O.S. 13/2000 came to be set aside and matter came to be remanded back to trial court for fresh disposal with a direction to the plaintiff to file an application before trial court for appointment of commissioner as indicated in the Judgment of lower appellate court at paragraph 14 in order to know the exact situation of Sy. No. 8/8 to an extent of 16 guntas of land which was said to be belonging to one Sri. Ramappa.

I have heard the arguments of Sri. R.R. Devendra Gowda, learned counsel appearing for appellant-plaintiff and Sri. Hanumantharaju, learned counsel appearing for respondent No. 2. Notice to R-1 & R-9 has been held sufficient vide order dated 17.08.2011, Respondents 3 to 8, 12 and 13 are served and unrepresented. Appeal against respondents 10 and 11 had been dismissed vide order dated 22.07.2013. By consent of learned advocates appearing for the parties, this second appeal is taken up for final disposal since the only issue which has arisen for consideration in this appeal is whether the order of remand passed by the lower appellate court is to be affirmed or matter requires to be examined after being admitted or not.

Plaintiff initially filed a suit for perpetual injunction and subsequently amended the plaint by seeking relief of declaration of his title to suit property contending inter alia that one Sri. Ramappa, S/o Muniyappa was the owner of land bearing Sy. No. 8/8 to an extent of 16 guntas situated at Kallikuppa Village, Bethamangala Hobli, Bangarapet Taluk and an extent of 8 guntas came to be acquired by Government for construction of huts under the Rural Housing Scheme way back in the year 1946 and as such he remained in possession and enjoyment of 8 guntas of land in said Sy. No. 8/8 and an extent of 5 guntas was sold by said Sri. Ramappa and his sons in favour of plaintiff under a registered sale deed dated 30.10.1998. It was also contended that out of said 5 guntas of land sold to plaintiff, Government had acquired 0.01 gunta of land for formation of Nallur-Mulbagal road and as such plaintiff has continued to be in possession and enjoyment of 4 guntas of land and plaintiff is cultivating the same. It was also contended that he has put up a farm house and also constructed wall on the southern and northern side to a height of 5 ft. and stored agricultural implements and to depict the land in his possession plaintiff produced a sketch before trial court. It was contended that defendant in order to trouble the plaintiff had approached plaintiffs vendor namely Sri. Ramappa for purchasing the land in Sy. No. 8/8 and said Sri. Ramappa had once again sold 8 guntas of land to 3rd defendant under sale deed dated 25.11.1998 and by virtue of said sale deed defendant is attempting to encroach upon plaintiffs property on the ground that he has purchased 8 guntas of land from Sri. Ramappa. Plaintiff contended that on account of alleged threat of dispossession suit in question is filed. Defendant after service of suit summons had appeared and filed his written statement and admitted that the land in question was in possession of Sri. Ramappa namely Sy. No. 8/8 but denied the acquisition of 0.08 gunta of land in 1946 and also denied the title of plaintiff. It was further contended that survey sketch which was relied upon by plaintiff indicated that land purchased by plaintiff is situated in the land acquired by Government and as such he sought for dismissal of the suit. On the basis of pleadings of the parties trial court formulated following issues for its adjudication:

"1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit?

Whether the plaintiff proves the alleged interference by the defendants?

Whether the plaintiff is entitled for the relief of permanent injunction as sought?

To what decree or order?"

Plaintiff got himself examined as PW-1 and also examined three witnesses as PW-2 to PW-4 and in all got marked 12 documents as Exhibits P-1 to P-12. Second defendant got examined himself as D.W.-1, third defendant got examined himself as D.W. -2 and in all they got marked 5 documents as Exhibits D-1 to D-5. After considering the pleadings of the parties and hearing respective learned advocates appearing for the parties and on evaluation of entire evidence available on record, trial court by its Judgment and decree dated 04.10.2007 decreed the suit as prayed for. Being aggrieved by said Judgment and decree defendants filed an appeal in R.A. 1 14/2007 contending that very identity of the suit property was in dispute and trial court has not properly analysed the evidence in this regard and it has not considered the fact that plaintiff had utterly failed to prove the exact extent of land that has been purchased from Sri. Ramappa under sale deed dated 30.10.1998. Respondent-plaintiff before lower appellate court appeared and contested the appeal and supported the judgment and decree passed by trial court. After considering the rival contentions raised by respective learned advocates lower appellate court formulated following points for its consideration:

"1. Whether Judgment and decree passed by the trial court under appeal is perverse, capricious and arbitrary and it calls for interference by this Court?

What order?"

After considering the arguments of learned advocates and on reappreciation of evidence tendered before trial court, lower appellate court found that trial court itself had recorded a finding at paragraph 15 (internal page 11) to the following effect:

"It cannot be ascertained from where exactly the Government has acquired land in Sy. No. 8/8".

In view of this finding lower appellate court found that trial court had erroneously decreed the suit by holding that title of the plaintiff over the suit property cannot be held to be proved and found that parties have raised a doubt as to which portion of land in Sy. No. 8/8 was acquired by the Government. Lower appellate court has also found that none of the parties had made any attempt to file application for appointment of commissioner to know the exact situation of three bits of land namely land purchased by plaintiff, land purchased by defendant and land acquired by Government before decreeing the suit. Lower appellate court has also found that report dated 20.12.2003 of land surveyor in respect of Sy. No. 8/8 reveals that acquisition of land is on the southern end, whereas plaintiff property is to the north to an extent of 4 guntas which included constructed portion and same is not acquired and acquired land is towards south. However it also found from the records of trial court that sketch dated 05.04.2003 issued by Taluk Surveyor which was at page 125 of trial court records revealed that Sy. No. 8/8 entire extent was measuring 1 acre 9 guntas and on the east by 1 to 13 hissas and west by constructed portion of Sri. Muniswamy, son of Sri. Muniswamy and same is the acquired land and it measures 3 1/2 guntas. In the light of two reports itself revealing encroachment of 3 1/2 guntas of land by plaintiff and so also plaintiff land included 3 1/2 guntas of acquired land. It held that these two documents did not tally with rough sketch, Exhibit P-4 produced by plaintiff which undisputedly was prepared by plaintiff himself for purpose of suit in question and as such it found to be ambiguous. It did not stop at it and also re-appreciated the entire oral evidence tendered by parties and found that PW-1 had himself admitted that he had documents to show that land acquired by Government in 1946 for purpose of formation of huts under Rural Housing Scheme was on the southern side and despite having such document he had failed to produce the same. It also found that plaintiff was unable to state the boundaries of land acquired by Government. Infact PW-2 who was examined on behalf of plaintiff is none other than grandson of Sri.Ramappa who supported the case of plaintiff was unable to state as to the exact location of land acquired by Government. In the light of admission of PW-3 that he has not seen the suit land and he did not know the extent of land acquired by Government which was also the evidence tendered by PW-4 and there being a serious dispute with regard to identity of the property and despite plaintiff PW-1 himself admitting that he had documents to show the exact location of the land acquired by Government, Lower appellate court was of the considered view that an order of remand has to be made and as such by setting aside the Judgment and decree passed by the trial court it has remanded the matter to the trial court in exercise of power under Order XLI Rule 23A of C.P.C. Said finding arrived at by lower appellate court does not suffer from any infirmity or illegality calling for interference at the hands of this court.

It is not in dispute that plaintiff had an order of temporary injunction in his favour during pendency of the suit and order passed on 04.10.2007 culminated in a Judgment and decree of perpetual injunction being passed in his favour by trial court. Judgment and decree passed by trial court in O.S. 13/2000 is stated to have been not stayed by lower appellate court namely it was not stayed in R.A. 114/2007. However, after the Judgment and decree came to be passed by the lower appellate court on 06.08.2010 by setting aside the Judgment and decree passed by trial court in O.S. 13/2000 it was assailed by plaintiff before this court in the present appeal and an order of stay of lower appellate court Judgment and decree came to be passed initially on 18.11.2010 which was extended from time to time by this court and by order dated 21.04.2011 it was extended until further orders. This would only indicate order of injunction operating against plaintiff had not been stayed as such. In the light of said factual aspect this court is of the considered view order of injunction that has been passed by trial court and continued till date has to be continued till disposal of the suit by trial court. With this observation appeal deserves to be dismissed. Parties are litigating in respect of suit schedule property from past 14 years and as such trial court is directed to expeditiously dispose of the suit and at any rate within 10 months from the date of receipt of copy of this order and subject to parties co-operating with the trial court.

Hence, I proceed to pass the following:

JUDGMENT

Appeal is hereby dismissed.

Judgment and decree dated 06.08.2010 passed in R.A. 114/2007 by Fast Track Court, K.G.F is hereby affirmed subject to observations made herein above at paragraph No. 5.

No order as to costs.

Trial court shall expeditiously dispose of the suit at any rate within 10 months from the date of receipt of copy of this order subject to parties co-operating with the trial court. It is made clear if any of the parties were to seek for adjournment without satisfaction of trial court, it would be at liberty to impose costs on such parties who seek for adjournment.

It is needless to state that trial court shall not be influenced by any observations made in its Judgment and decree or observations made by lower appellate court in its Judgment. Trial court shall dispose off the suit on merits and in accordance with law.

All contentions of both parties kept open.