Nagarathnamma vs C.R. Nagendra

B.V. Nagarathna, J.—The defendant in O.S. No. 442/2008 has preferred this second appeal, assailing the judgment and decree in R.A. No. 65/2012 by the Principal Senior Civil Judge of Chikamagalur dated 11.03.2014, confirming the judgment and decree of the First Additional Civil Judge and JMFC, Chikamagalur dated 03.04.2012 in O.S. No. 442/2008.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.

The respondent herein filed O.S. No. 442/2008, seeking a decree of permanent injunction in respect of suit schedule property. The suit property is a two floor RCC building, totally measuring 573.77 sq.ft., and measurement of the entire property is East to West - 50 feet and North to South - 26 feet, situated at Basvanahalli Extension, Chikmagalur town.

It is the case of the plaintiff that the said property was purchased by him from the husband of the defendant under a registered sale deed dated 13.05.1994, and since then the plaintiff was in possession and occupation of the building measuring 573.77 sq.ft., constructed after obtaining licence from the City Municipal Council, Chikmagalur and Chikmagalur Development Authority, Chikmagalur. Towards Western side of the building, the plaintiff had left vacant space. Beyond the western side of the suit property, defendant''s property is situated. Beyond southern boundary of the suit property, there is a ''oni'' (a narrow lane) wherein, the plaintiff had right to make use of it and he had right to lay pipes to connect to underground drainage and he also had right to keep open the windows of the building for free flow of light and air from the portion left as oni. That the defendant or her children had no right, title or interest in the suit property after it was sold to the plaintiff under a registered sale deed dated 13.05.1994. But inspite of that defendant, her children and relatives tried to interfere with the hind portion of the property measuring 11 x 26 feet and tried to encroach on that portion. That on 27.11.2008, defendant tried to interfere with plaintiffs possession and caused acts of waste and damage, but the plaintiff was able to prevent the same. In the circumstances, plaintiff filed a suit claiming decree of permanent injunction restraining the defendant and others from trespassing into the suit property and causing any acts of waste and damage.

On receipt of suit summons and notices from the trial court, defendant appeared and filed her written statement denying the plaint averments. She stated that without her knowledge, the sale deed dated 13.05.1994 was executed by her husband and as he was an alcoholic and addicted to other vices, the defendant was constrained to put her signature and thumb impression on the sale deed before the Sub-Registrar thereby consenting to the sale. According to the defendant, on the Western portion of the property, permissive possession was given to the plaintiff and there is a ''Oni'' measuring 1 1/2 feet by 2 feet, by which plaintiff made an entry through the door fixed to the compound wall and remaining area of the property belongs to defendant''s brother. That after the passage and compound wall, the property is in exclusive possession and enjoyment of the defendant. That the total area is in permissive possession of the plaintiff is East to West - 35 feet and North to South - 22 feet. The property on the northern and southern side of the passage is in exclusive possession and enjoyment of the defendant and her family members. On the basis of the aforesaid pleadings defendant sought for dismissal of the suit.

On the basis of the rival pleadings, the trial Court framed following issues for its consideration:

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

Whether plaintiff proves the alleged interference by the defendants?

Whether plaintiff is entitled for the relief of permanent injunction?

What order or decree?"

The plaintiff let in evidence as PW.1 and he produced four documents which were marked as Exs. P1 to P4. Defendant let in her evidence as DW.1 and one Lakshminarayana let in evidence as DW.2, they produced three documents which were marked as Exs. D1 to D3. On the basis of the said evidence, the trial Court held issue Nos. 1 to 3 in affirmative and decreed the suit by granting the relief of permanent injunction to the plaintiff.

Being aggrieved by the judgment and decree, the defendant filed R.A. No. 65/2012 before the First Appellate Court. That court after hearing the parties raised the following points for its consideration:

"1. Whether the plaintiff has proved his actual possession and enjoyment of the suit property, as per the measurement and boundary shown in the plaint schedule, as on the date of filing the suit?

Whether the impugned judgment of the trial court is against law, fact, evidence and probabilities of the case and liable to be intervened by this court?

What order or decree?"

It answered point No. 1 in affirmative and point No. 2 in negative and dismissed the appeal by confirming the judgment and decree dated 03.04.2012, passed in O.S. No. 442/2008 by the First Additional Civil Judge and JMFC, Chikmagalur. Being aggrieved by the judgment and decree of the First Appellate Court, the defendant has preferred the second appeal.

I have heard learned counsel for the appellant.

He submitted that the courts below have erred in granting relief of permanent injunction to the respondent herein without considering the evidence on record. In this regard, he placed reliance on the judgment of the Hon''ble Supreme Court in the case of Madhukar and Others Vs. Sangram and Others, , to contend that the First Appellate Court being a Court of facts as well as law, ought to have gone into the evidence in detail and after discussing the evidence in detail come to the conclusion with regard to the correctness of the judgment and decree of the trial court. But in the instant case, there is no such consideration which was made by the First Appellate Court and therefore, he contended that the said judgment and decree of the First Appellate Court is not in accordance with law. He also contended that as far the disputed property being in the possession of the plaintiff is concerned, the same had to be appreciated by means of appointing a Commissioner to measure the suit schedule property. In this regard, an application was filed by the defendant under Order XXVI Rule 9 of Code of Civil Procedure (CPC), but that application was rejected by the trial court and the same was not considered by the First Appellate Court. He therefore, submitted that the judgments of the trial Court as well as the First Appellate Court are erroneous as the relief of permanent injunction granted to the respondent was without considering the evidence on record and without appreciating the case of the appellant herein. He therefore, submitted substantial questions of law would arise in this appeal which would require admission of the appeal for a detailed hearing.

Having heard learned counsel for the appellant and on perusal of the material on record, it is noted that the case of the respondent/plaintiff is based on the fact that the suit schedule property was sold by the defendant''s husband under a registered sale deed dated 13.05.1994 and pursuant to the said sale deed, the plaintiff was put in exclusive possession of the suit property. The grievance of the plaintiff was that the defendant and her sons claiming a right through her were interfering with the suit schedule property, despite the same having been sold by defendant''s husband and in this regard, Ex. P1 was produced by the plaintiff to prove his title as well as his possession in respect of the suit schedule property. On the basis of the said document, both the courts below held that the plaintiff is the owner in respect of the suit schedule property and by virtue of the ownership, he was in exclusive possession of the same. Thus, both the courts below held that the plaintiff had proved his possession to the suit schedule property on the basis of Ex. P1 -documentary evidence. When documentary evidence was let in by the plaintiff to prove his ownership and possession of the suit schedule property, it was not necessary for the courts below to consider any other oral evidence in this regard as documents speak for themselves and in the instant case it is Ex. P1 produced by the plaintiff.

As far as interference by the defendant is concerned, evidence of the plaintiff in this regard was considered as well as the evidence of the defendant also. The trial court as well as the First Appellate Court came to the conclusion that the plaintiff had established interference by the defendant and other persons claiming through defendant in respect of the suit schedule property and thus granted the relief of permanent injunction to the plaintiff.

The contention of the learned counsel for the appellant is that the First Appellate Court has not gone into detail with regard to pleadings and evidence in the matter while adjudicating the appeal. I have perused the judgment of the First Appellate Court in detail. In paragraph -7 of the judgment, the grounds of appeal have been extracted by the learned Judge. Thereafter, on hearing the parties, the points for consideration have been raised. Paragraph -12 and paragraph-13 deal with pleadings of the respective parties. Paragraph-14 is with regard to the evidence that was let in by the parties. Paragraph-15 speaks about the burden of proof that was cast on the plaintiff in order to seek the relief of permanent injunction. In this regard, First Appellate Court has considered Ex. P1 - original sale deed dated 13.05.1994 which had been executed by the husband of the defendant and on the basis of Ex. P1 - sale deed, Municipal Khata extract - Ex. P2 and the commencement certificate obtained from Urban Development Authority, Chikmagalur, as evident from Ex. P3 and the building licence obtained by the plaintiff from the City Municipality, Chikmagalur as evident from Ex. P4 and came to the conclusion that the plaintiff had proved his title and possession over the suit schedule property and also the fact that he had constructed the building in the said property. The fact that Ex. P1 was executed by the husband of the defendant in favour of the plaintiff on 13.05.1994 had been proved as the defendant had admitted her signature and thumb impression on the said sale deed.

The First Appellate Court has also considered the contention of the defendant that the sale deed was obtained by fraud and misrepresentation, by holding that if it was so, the defendant had not taken any steps in getting the sale deed nullified and therefore, the contention of the defendant that the sale deed was a document obtained as a result of fraud and undue influence on the defendant''s husband has been negatived.

As far as boundaries with regard to suit schedule property are concerned, the First Appellate Court has compared the boundaries as given in the plaint with the boundaries in Ex. P1 and has given the finding that they tallied. In the circumstances, it was held that the defendant''s dispute with regard to the boundaries was without any substance.

The First Appellate Court has also considered the plea that the plaintiff had only permissive possession of portion of the suit property and has come to the conclusion that in view of Exs. P1 to P4 such a contention was incorrect.

As far as the ''oni'' or passage is concerned, the First Appellate Court has held that the said passage was in existence in the southern side of the property and plaintiff had right to lay pipelines in the said oni and therefore, the First Appellate Court held that there was no substance in the contention of the defendant that plaintiff had obstructed the user of the ''oni'' beyond the southern side of the suit schedule property. This finding was based on the recital of Ex. P1 - sale deed.

The First Appellate Court considered application (I.A. No. 5) filed by defendant under Order XXVI Rule 9 of Code of Civil Procedure, (CPC) for appointment of court commissioner for local inspection of the suit property. The plaintiff had objected to the application and the same was rejected on 07.12.2011. There was no challenge to that order. But the legality of the order passed by the trial court has also been considered and the First Appellate Court has held that the said application was rightly rejected.

In fact one of the contentions raised by the learned counsel for the appellant herein was also voiced before the first appellate court to the effect that the defendant apprehended that the plaintiff would mis-utilise the judgment and decree passed in suit and misuse the oni or the passage. In paragraph-24 that has been answered by holding that when once the defendant''s husband had sold the property, whether permission was given to the plaintiff to utilize the said passage in terms of Ex. P1, the apprehension of the defendant was only illusory.

After considering the judgment and decree of the trial court on all aspects the first appellate court found that the reasoning of the trial court was sound, logical and well-founded and the trial court had exercised its discretion in granting relief of permanent injunction to the plaintiff which is an equitable relief and when discretion was exercised in accordance with law, the First Appellate Court did not find any reason to interfere with the discretion exercised by the trial court. The detailed consideration of the case by the First Appellate Court has been referred to above to allay any apprehension in the mind of the defendant that first appellate court had not considered her case in accordance with law as the first appellate court is the final court both in law as well as on facts.

The judgment of the Hon''ble supreme court on the manner in which the first appellate court has to deal with and consider an appeal filed under Section 96 of CPC, is squarely applicable for the present case. In the present case the first appellate court has applied the principles which are applicable for adjudicating a first appeal as has been enunciated by the Hon''ble Supreme Court and as has been narrated supra, to come to the conclusion that trial court had rightly granted the relief of decree of permanent injunction to the plaintiff. Therefore, the judgment of the trial court and that the judgment of the First Appellate Court, confirming the judgment and decree of trial Court cannot be found fault with. There is no substance in this appeal as the relief granted to the plaintiff is based on concurrent findings of fact. No substantial question of law arises in this appeal.

In the result, the appeal is dismissed.