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Judgment
A.V. Chandrashekara, J.—Being aggrieved by the divergent judgment passed in R.A. 8/03 which was pending on the file of Senior Civil Judge, Challakere, plaintiffs of an original suit bearing O.S. 241/97 have filed this appeal under Section 100, C.P.C.
The respondents herein are defendants 1 to 4 in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking before the trial court.
The facts leading to the filing of O.S. 241/97 are as follows:
a) Plaintiffs are permanent residents of Chikkamadure village, Chikkamadure, Challakere Taluk af Chitradurga District. According to them, land bearing Survey No. 94/1P is an agricultural land belonging to the Government of Kamataka represented by its Chief Secretary, Bengaluru, and Tahsildar, Challakere Taluk. It measures in all 16.38 acres inclusive of Kharab land, out of which 4 acres has been granted to a lady by name Thipamma and she is in possession of the same.
b) Plaintiffs chose to file the said suit in a representative capacity under Order I Rule 8, C.P.C. on the ground that the schedule property measuring 2.38 acres in Survey No. 94/1P as described in the schedule to the plaint has had been enjoyed by them for thrashing agricultural produce grown by them, for stocking manure by digging pits and to attend to nature call. According to them, villagers have been using 2.30 acres in Survey No. 94/1P since several decades.
c) The 1st defendant has no manner of right, title and interest of possession of 2.30 acres of land as described in the schedule to the plaint. Since the 1st defendant tried to clean the area measuring 100 x 120 yards out of the suit schedule property to put up a building, the plaintiffs were forced to file the suit for the relief of permanent injunction. The reliefs sought for by the plaintiffs in their suit as found in the prayer column are as follows:
a) The plaintiffs pray for Judgment and decree in favour by granting permanent injunction restraining the defendant No. 1 from making any work and making any construction in the suit schedule property.
b) And Court cost and such other reliefs as the Hon''ble Court deems fir to grant under the circumstances of the case.
d) The 1st defendant has chosen to contest the suit denying all material averments and called upon the plaintiffs to prove the contents of the plaint strictly. Counter-claim is also filed by the 1st defendant in paragraph 15 and 16 of the written statement filed by the 1st defendant. According to it, land in Survey No. 94 measures 16.38 acres of agricultural land out of which 4 acres has been granted to one Thipamma. Out of the remaining land measuring 12.38 acres, 31 guntas is stated to be Kharab land and out of the remaining 12.07 acres, 3 acres is stated to have been earmarked for burial ground. An old well is stated to be situated in the same survey number as shown in the rough sketch appended to the plaint.
e) According to the 1st defendant, the chairman of Gunjigunte Gram Panchayat is stated to have granted an area measuring 100 x 120 yards to the President of Chikkamadure Mylaralingeshwara Co-operative Society on 10.5.1983 and since then, the 1st defendant is stated to have become the absolute owner in possession of the area measuring 100 x 120 yards and this is a part of suit property.
f) He has further stated that the 1st defendant has paid taxes up to date to the Panchayat. The suit is stated to be not maintainable either in law or on facts. It is further stated that the Deputy Director of Woollen Handloom Weavers Produce Co-operative Society has granted a loan of Rs. 50,000/- for constructing houses and out of the subsidy granted, Rs. 12,500/- is stated to have been realised. Since the plaintiffs have interfered to stop construction proposed to be put up by the 1st defendant by filing a suit, the 1st defendant was constrained to file a counter-claim. Hence it is requested to allow the counter-claim and grant the relief as sought for in respect of land measuring 100 x 120 yards as shown in the sketch.
g) Defendants 2 and 3, namely Chief Secretary and Tahsildar have chosen to file separate written statement supporting the stand of the plaintiff. Defendants 2 and 3 have virtually sailed with the plaintiff. The 4th defendant has also filed written statement sailing with the 1st defendant.
h) On the basis of the above pleadings, the following issues came to be framed by the trial court:
1) Whether the plaintiff prove that villagers of Chikkamadhure in possession of suit schedule property by using it for calls of nature, and forms thrashing floor, cow dung pit since 40 years?
2) Whether the plaintiffs prove the alleged interference by the defendant?
3) Whether the defendants prove that suit of plaintiff is not maintainable in view of Sec. 80 of CPC?
(4) Whether the plaintiff are entitled for reliefs sought?
5) What order and Decree?
ADDITIONAL ISSUES:
1) Whether the defendant No. 1 proves that the counter claim schedule property has been granted to 1st defendant association on 10.5.1983 by the Ganjigunte Panchayat and they are in possession of the same as on the date of suit?
2) Whether the defendant No. 1 proves the alleged interference by the plaintiffs to the possession of counter claim schedule property?
3) Whether the defendant No. 1 is entitled to the reliefs sought?
On behalf of the plaintiffs, 4 witnesses have been examined and 6 exhibits have been marked. On behalf of the 1st defendant, one Mallikarjun has been examined as DW 1. Chandrappa, the then president of the Gram Panchayat has been examined as DW 2. Six exhibits have been marked on behalf of the 4th defendant.
i) After hearing arguments, the learned judge of the trial court chose to answer point Nos. 1 and 2 in the affirmative and point No. 3 and additional issues 1 and....in the negative, and consequently the suit came to be decreed and the counter claim was dismissed.
Against the said judgment and decree, the 1st defendant chose to file a regular appeal under Section 96, C.P.C. before the Civil Judge (Senior Divn.), Challakere, in R.A. 8/03. After hearing arguments and perusing the records of the trial court and the grounds raised in the appeal memo, the learned judge of the first appellate court has chosen to allow the appeal and granted the relief as sought for by the 1st defendant in the counter-claim by framing 5 points for consideration as found in paragraph 10 of the judgment. Point No. 1 is answered in the negative and point Nos. 2 and 4 were answered in the negative. Consequently the appeal has been allowed.
Being aggrieved by the said judgment and decree of the first appellate court, plaintiffs have chosen to file this appeal under Section 100, C.P.C.
The matter has been admitted to consider the following substantial question of law framed on 16.9.2010:
"Whether in the facts and circumstances of the case, the Appellate Court is justified in reversing the judgment and decree passed by the Trial Court holding that the 1st defendant is in constructive possession of the vacant site, measuring 100 X 120 feet in the suit schedule property"?
Heard the learned counsel for the appellant. The respondents have been duly served, but unrepresented.
What exactly should be the approach of the first appellate court while reversing the well considered judgment of the trial court has been well dealt at length by the Hon''ble apex court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 . If the appellate court intends to upturn a considered judgment, it has to assign valid and cogent reasons indicating as to where the trial court has gone wrong and what should have been the proper approach. While upturning a considered judgment of the trial court, the first appellate court, according to the decision in the said case, should come to close quarters while re-appreciating the evidence on record.
The undisputed facts of the present case are that the land in Survey No. 94/1P of Chikkamadure village measures in all 16.38 acres of agricultural land, out of which 4 acres have been granted to Thipamma. This fact is not seriously disputed by the plaintiffs or defendants. Out of the remaining 12.38 acres, 31 guntas is Kharab land and that is not in dispute. 3 acres in Survey No. 94/1P has been earmarked for burial ground.
Defendants 2 and 3 represent the Government of Karnataka. They have specifically averred in the written statement that the plaintiffs and villagers of Chikkamadure village have had been enjoying the suit schedule property measuring 2.30 acres in Survey No. 94/1P as described in the schedule to the plaint for storing manure by digging pits and for thrashing agricultural produce and also to attend nature call. The claim of the 1st defendant is based on a grant stated to have been made by the erstwhile chairman of Gram Panchayat in its favour. It is averred that the then Panchayat chairman has granted an area measuring 100 x 120 yards.
Ex. P5 is the RTC of Survey No. 94/1P which discloses that the total extent of the remaining land is 12.8 acres inclusive of 31 guntas Kharab land. Records also disclose a total extent of 16.38 acres inclusive of Pot Kharab of 0.16 acres. This was in 1931-32, a copy of which is issued by the Tahsildar. Ex. P3 is stated to be a copy of tax assessment register issued by the secretary of Gram Panchayat for the year 1997-98 in which the name of Mylaralingeshwara Woolen Co-operative Society is mentioned. The extent of land granted in its favour is not forthcoming.
The 1st defendant has relied on the grant certificate issued by the then chairman of Gunjigunte Gram Panchayat, Challakere Taluk, in the year 1983 in favour of the president of Chikkamadure Woolen Co-operative Society Limited in respect of an area measuring 100 x 120 yards. When the entire land belongs to the Government, it is understandable how the Chairman could grant this extent of agricultural land in Survey No. 94/1P. If the area in question had been Gram Thana, it would have been something different.
It is not the case of the 1st defendant that the area measuring 100 x 120 yards is Gramthana land in the same village. As rightly pointed out by the learned counsel for the appellants, the document marked as Ex. D1 issued by the chairman of Gram Panchayat does not have any credence or legal sanctity. The learned judge of the first appellate court has placed heavy reliance on Ex. D1 to hold that this is a document of title relied on by the 1st defendant and therefore the plaintiffs should have sought the relief of declaration of title. The said approach is inconsistent and improper.
The plaintiffs have not sought any relief of declaration of title insofar as the owners, i.e. defendants 2 and 3 are concerned. Their entire case is that the schedule property is a part and parcel of Survey No. 94/1P and that they have been using it for community purposes like thrashing agricultural produce, storing manure in pits and using a part of it to attend nature''s call. This fact is not dispute by defendants 2 and 3. It is ununderstandable how the chairman could grant a part of the agricultural land belonging to the Government without any authority.
The limited relief sought for by the plaintiffs is one of permanent injunction to restrain the 1st defendant from putting up construction. They have not sought for any relief against defendants 2 and 3 who are the owners of the suit schedule property. They have been made as formal parties and defendants 2 and 3 have supported the case of the plaintiffs. This important aspect has been lost sight of by the first appellate court. Just because the 1st defendant has been denied the right of enjoyment of the schedule property by the plaintiffs, it does not clothe him with any legal right. The observation made in paragraph 13 of the impugned judgment of the first appellate court that the relief of declaration should have been sought for by the plaintiffs, is incorrect and improper.
What is observed by the learned judge of the first appellate court is that PW1 has admitted that plaintiffs have no right of possession of the property granted to the 1st defendant and that the property is a land. It is not the case of the plaintiffs that they have acquired right or title over the suit schedule property. A suit for injunction is maintainable against the whole world except the true owner. Admittedly the 1st defendant has no manner of right, title and interest over 100 x 120 yards which is a part and parcel of the suit schedule property belonging to defendants 2 and 3. The plaintiffs claim a limited right for using the same as thrashing yard and to store manure. It is for the Government to earmark the property for community use of the villagers or it can even deny it.
The learned judge of the first appellate court has lost sight of the very scope of the suit and inability of the 1st defendant to make out a case of title or at least being in settled possession of the same. The learned judge has made an observation in paragraph 15 that the site measuring 100 x 120 yards is a vacant site and the same has been granted in favour of the 1st defendant by the Panchayat in they car 1983. The learned judge has come to the conclusion that the 1st defendant is in ''constructive possession'' of the vacant site. This court does not understand how the first appellate court could have come to such a conclusion. Though the plaintiffs have not been in actual possession of the suit property, they have been enjoying the property to the limited extent of using the same as thrashing yard and manure pit. The concept of constructive possession will be applicable when a member of the Joint Hindu family is not in actual possession.
The first appellate court has adopted a wrong approach to the real state of affairs and has not analyzed and re-assessed the oral and documentary evidence in right perspective. It has committed a serious illegality and perversity in coming to the conclusion that the 1st defendant is in ''constructive possession'' of land measuring 100 x 120 yards in the suit schedule property. This is absolutely without any basis whatsoever. The learned judge has not properly focused its attention on the crux of the dispute. In the light of the facts and circumstances of the case, the very approach adopted by the first appellate court is improper and incorrect and opposed to facts and law of probabilities.
The appellate court has not tested the evidence on the touchstone of intrinsic probabilities and hence the substantial question of law is answered in the negative. Consequently the appeal will have to be allowed and the suit will have to be decreed as prayed for by dismissing the counter-claim.
In the result, the following order is passed:
ORDER
The appeal filed under Section 100, C.P.C. is allowed. The suit filed by the plaintiffs in O.S. 241/97 on the file of Additional Civil Judge (Junior Divn.), Challakere, is decreed as prayed for and the counterclaim filed by the 1st defendant granted by the first appellate court is set aside. In view of the facts and circumstances of the cases, parties to bear their own costs.