M.Y. Kantharaj vs Kempammanni

A.V. Chandrashekara, J.—The concurrent factual findings are called in question before this Court by filing an appeal under Section 100 of Cr. P.C. The appellants were plaintiffs in O.S. No. 343/1994. The plaint had been filed by one M.Y. Kantharaja Urs. He died during the pendency of this suit before the Court of Additional Civil Judge (Jr. Dn.) & JMFC, Mandya. After his death, his wife and son have come on record. The respondents herein are defendants in the said suit. The suit came to be filed for mandatory injunction against the defendants on the ground that the defendants have encroached a portion of the suit schedule property belonging to the plaintiffs.

The facts leading to the fling of the suit in O.S. No. 343/1994 are as following:

According to the plaintiffs, the suit schedule property was granted in favour of the deceased-plaintiff-M.Y. Kantharaja Urs on 10-01-1980 by the City Municipality, Mandya. Defendants who are the neighbours have encroached a portion of the suit schedule property of the plaintiffs is the averment. Hence, he had requested to declare him as the owners of the suit schedule property and sought for mandatory injunction to hand over the encroached portion of the property.

The defendants had appeared before the trial Court and chose to oppose the suit by filing detailed written statement. According to the defendants, the suit filed by the plaintiffs is not maintainable for the relief of permanent injunction, since the plaintiffs are not in peaceful possession and enjoyment of the suit schedule property. It is further contended that the title of the plaintiffs had been specifically and expressly denied by the defendants in a suit filed by the defendants against one Rajanna in O.S. No. 295/88. It is further averred that the defendants are in actual possession and enjoyment of the whole property. With these pleadings they have requested the Court-to-dismiss the suit.

On the basis of the above pleadings, following issues came to be framed:

Whether the plaintiff proves ids lawful and actual possession of suit schedule property as on date of suit?

Wither the plaintiff proves the alleged attempt of defendants to trespass into suit property?

Whether plaintiff is entitled to the relief sought for?

Whether suit is not maintainable as alleged in para 2 of the written statement?

Whether Court fee paid is sufficient?

What order or relief?

Additional Issues:-

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

Whether the plaintiffs prove that the Ist defendant has encroached the suit schedule property and has put up the compound wall in it on 11-08-1995?

Whether the plaintiffs prove that they and the 2nd defendant are the joint owners of the suit schedule property?

Whether the plaintiffs are entitled for possession of the suit property from the Ist defendant?

Whether the Ist defendant proves that the suit for declaration of title and for possession is hopelessly barred by time?

Whether the Ist defendant proves that this Court has no pecuniary jurisdiction to entertain this suit?

The plaintiff has examined two witnesses on their behalf apart from getting 2 exhibits marked. Defendant No. 1 is examined as DW-1 apart from getting 23 exhibits marked.

After analyzing the materials placed on record and after hearing the arguments, learned Civil Judge has answered issue Nos. 1 to 3 in the negative and Issue Nos. 4 & 5 in the affirmative and suit came to be dismissed vide considered judgment dated 15-04-2002. Against the said judgment, appeal came to be filed under Section 96 of Civil Procedure Code in R.A. No. 60/2002 before the Additional Civil Judge (Sr. Dn) & CJM, Mandya. The learned First Appellate Judge framed the following 3 points for consideration:

Whether the trial Court erred in holding that the relief of declaration and possession is barred by limitation?

Whether the trial Court erred in holding that plaintiff failed to prove his ownership over suit schedule property and other facts?

What order?

The learned First Appellate Judge answered point No. 1 in the affirmative and point No. 2 in the negative. It is these findings which are called in question in this appeal amongst various other grounds.

Learned counsel for the appellants has vehemently argued that the trial Court has adopted a wrong approach to the real state of affairs and has not properly analysed the oral and documentary evidence in right perspective. It is argued that the trial Court should have appointed a Commissioner to elucidate the matter in dispute. Hence, he has sought for allowing the appeal in its entity and to decree the suit as prayed for.

The respondents have supported the judgment of the courts below contending that the courts below have adopted proper approach to the real state of affairs and that oral and documentary evidence has been assessed on the touchstone of intrinsic probabilities.

After perusing the records, this Court is of the opinion that the present appeal is filed against the concurrent findings. In a suit filed for the relief of declaration or mandatory injunction more particularly when the property is vacant site, appointment of Commissioner is absolutely required to resolve the matter in dispute. It is the case of the plaintiffs that they are absolute owners and they are in lawful possession and enjoyment of the suit schedule property bearing site No. 148 measuring 30X 40 feet bounded on the East-by road, West-by site No. 149 of Pothegowda @ Rajanna, North-by site of Nazeemunnisa and South-road. The plaintiffs have not shown the existence of the site of the defendants. Even if the defendants have vacant site to the South of the road, they cannot encroach the property of the plaintiffs, unless they encroach the road portion also. On the other hand, no attempt is made to get a Commissioner appointed to elicit the matter in dispute. If the Commissioner had been appointed, it would have helped the Court in knowing the exact measurement of the site and the alleged encroachment.

The Appellate Court has assessed the evidence in its right perspective by framing proper points for consideration. Even otherwise, the suit so filed for the relief of possession is barred by time, since 12 years had already elapsed by the time this suit was filed. This aspect has also been taker: into consideration by the Appellate Court by framing proper points for consideration.

It is submitted before this Court that the defendants have encroached a portion of the plaintiffs property. It is not made clear that as to what steps were taken to regain the alleged unlawful possession. In the light of their being no explanation to that effect, both the Courts have held that the suit is not maintainable.

The Courts below have adopted right approach to the real state of affairs. There is no illegality or perversity in the approach adopted by both the Courts. Therefore, the appeal is liable to be dismissed. Hence the following:

ORDER

The appeal is dismissed upholding the judgment of the courts below at the stage of admission.