Narayanappa vs Eramma and Others

A.V. Chandrashekara, J.—1. This is an appeal under Section 100 C.P.C. filed by the plaintiffs in an original suit in O.S. No. 160/83 which was pending on the file of Additional Civil Judge (Jr. Dn.), Kolar. Plaintiffs are aggrieved by the divergent judgment passed in R.A. No. 33/99 which was pending on the file of FTC-II, Kolar.

The respondents are defendants in the said suit. The plaintiff No. 1 died during the pendency of the original suit and his LR''s were brought on record in the trial Court. Parties will be referred to plaintiffs and defendants as per their ranking before the Trial Court.

The facts leading to the case is as under:

Plaintiff No. 1 is stated to have purchased the suit schedule property from Thimmakka and Munivenkatappa under a registered deed dated 21.03.1968 and he is stated to have been in the lawful possession and enjoyment of the property. Since the defendants tried to enter into the peaceful possession and enjoyment of the suit schedule property as described in the schedule appended to the suit, the plaintiffs filed the suit for the relief of permanent injunction.

The said suit was contested by the defendants by filing written statement denying all the material averments contending that the suit schedule property was the joint family property and not exclusive property of Thimmakka and Munivenkatappa, so as to execute the sale deed in favour of the plaintiffs. With these pleadings, they requested the court to dismiss the suit.

On the basis of the above pleadings of the parties, following issues came to be framed by the Trial Court:

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

Does the plaintiff proves the interference of the defendants?

What order or decree?"

The plaintiff is examined as PW-1 and one Channappa is examined as PW-2 and has got marked Ex. P1, the registered sale deed dated 21.06.1968 and also got marked Exs. P2 to P4. The defendant No. 1 is examined as DW-1 and Sri C.V. Ramaiah is examined as DW-2 and has produced and got marked 4 documents as Exs. D-1 to 4. Ultimately, the learned Judge of the Trial Court decreed the suit by answering issues 1 & 2 in the affirmative vide order dated 04.12.1998, as against which, an appeal was filed under Section 96 of CPC before the Court of learned Additional Civil Judge (Sr. Dn.) Kolar and the same was withdrawn and transferred to FTC-II at Kolar. Ultimately, the First Appellate Court has allowed the appeal and upturned the judgment of the trial Court vide judgment dated 18.08.2005. It is this divergent findings, which is called in question on various grounds as set out in the appeal memo.

This Court has admitted the present appeal to consider the following substantial question of law framed on 23.09.2005:

"Whether the first Appellate Court having held that the plaintiff is in possession of the house was justified in reversing the judgment and decree passed by the trial Court and dismissing the suit of the plaintiff contrary to the contents of the document, Ex. P1 extracted in the judgment and the evidence of DW-1?"

Heard the learned counsel for the parties.

Learned counsel for the appellant has vehemently argued that the defendants have already admitted the partition that had taken place between the sons of Sonappa and therefore they cannot question the sale deed executed in regard to the schedule property. It is further argued that though no measurement is forthcoming in regard to the schedule property, First Appellate Court could not have dismissed the suit. It is argued that the First Appellate Court has not reassessed the entire materials placed on record in right perspective and the same is opposed to the real state of affairs. What is further argued on behalf of the appellant is that DW-1 has admitted about the possession of the suit schedule property by the plaintiffs.

That admission cannot be considered as admission in its entirety. Even with regard to the vacant space abutting the house described in Item No. 2 of the schedule property, the boundaries to the vacant space abutting the house are not forthcoming. Therefore, that admission cannot be blown out of proportion to hold that the plaintiffs are in possession of the entire extent of vacant space abutting the house in which plaintiffs are residing.

Per contra, learned counsel for the respondents have argued that there cannot be injunction against unspecific and uncertain property and that Thimmakka and Munivenkatappa had no absolute sale deed to execute sale deed in respect of the entire property abutting on the eastern side of the house. He has further argued that the First Appellate Court has rightly reassessed the entire materials placed on record in its right perspective and no good ground is made out to interfere with the well considered judgment of the First Appellate Court.

The property over which the relief of equitability of injunction is sought in the plaint is described and appended to the suit. The same is extracted below:

SCHEDULE

"Vacant space and house situated at Vanarasi village, Kolar Taluk, bearing Khaneshumari No. 140/1, bounded on East by vacant place of Munivenkatappa, West By Government land, North by land of Nukkanahalli Erappa and South by Government land."

The defendants have not seriously disputed the fact that the plaintiffs are in possession of the house property indicated in the schedule. The dispute is with regard to the vacant space abutting the house on the eastern side. The plaintiffs are stated to have purchased the property by a registered sale deed dated 21.03.1968 and the said sale deed is at Ex. P1. Even in Ex. P1 there is no specific reference about the exact measurement of the vacant site as well as the exact measurement of the house put up.

Whenever an equitable relief of injunction is to be granted, it has to be granted only in respect of the specific and certain property, otherwise it would create lot of confusion. In the very sale deed marked as Ex. P1, the vendors namely, Thimmakka and Munivenkatappa have stated that 2/5th share out of the property mentioned in Item No. 2 of Ex. P1 is sold, what exactly is the extent of 2/5th share in the suit property with reference to dimension is not forthcoming either in Ex. P1 or in the schedule appended to the plaint. In this view of the matter, the First appellate Court has refused to confirm the equitable relief of permanent injunction.

One person Sonnappa had six sons namely, Eerappa, Doddamuniyappa, Hullappa, Channappa, Murthappa, Kuvanna. Thimmakka is the daughter of Eerappa - the first son of Sonappa. Munivenkatappa is the son of Hullappa - the third son of Sonappa. Admittedly, in Ex. P1 there is a reference about 2/5th of the property convened. Even if one were to accept that plaintiffs are in possession, the house described in Item No. 2 of Ex. P1, the specific identification is required in order to identify the vacant site abutting on the eastern side of the house, either in meters or in yards. That is lacking both in Ex. P1, as well as schedule appended to the plaint.

The defendants have averred that there was a partition. Perusal of Ex. P1 - partition deed makes it clear that the site is situated adjacent to Janthi Malige House. There is no document to evidence that this Janthi Malige House abutting the vacate space was partitioned and therefore such a recital was found in the sale deed. What is observed by the First Appellate Court is that Ex. P1 does not support the contention of the plaintiffs that they are in exclusive possession of the vacant site abutting the house towards east. Unless 2/5th share in the vacant space for which the vendors are entitled to, is identified and bifurcated, the plaintiffs cannot claim exclusive possession of that vacant space. In this view of the matter, the First Appellate Court has rightly upturned the judgment of the trial Court.

The approach adopted by the First Appellate Court is quite proper and correct. It has properly reassessed the entire evidence on the basis of broad preponderance of probabilities and has properly moulded the relief. Accordingly, the substantial question of law framed on 23.09.2005 is answered in the affirmative.

No illegality or perversity is found in the approach adopted by the First Appellate Court. Infact, the First Appellate Court has right approach to the real state of affairs. Consequently, appeal have to be dismissed.

In the result the following order is passed:

ORDER

Appeal filed under Section 100, C.P.C. challenging the judgment passed in R.A. 33/99 (arising out of O.S. No. 160/1993 which was pending on the file of Additional Civil Judge (Jr. Dn.), Kolar is dismissed. Consequently the judgments of both the courts are upheld.

Nothing comes in the way of the plaintiffs to avail any remedy available to him in the light of the decision of the Hon''ble Supreme Court in the case of Anathula Sudhakar vs. P. Buchi Reddy - , AIR 2008 SC 2033.

Parties to bear their own costs.