AI Structured Summary
Not yet generated for this judgment
Judgment
A.V. Chandrashekara, J.—Plaintiff is before this Court challenging the concurrent findings by filing an appeal u/s 100 of C.P.C.
Plaintiff chose to file a suit in O.S. No. 52/1998 before the Court of the Prl. Civil Judge (Jr. Dn.) at Ranebennur for the relief of declaration of title and permanent injunction and for recovery of possession of the encroached area as shown in the rough sketch appended to the plaint. Defendant is a Society represented by its Secretary and President.
Defendant had chosen to file a detailed written statement denying all the material averments. The case of the plaintiff, as could be seen from the judgment of the trial Court is that plaintiff is stated to be the absolute owner of the suit schedule property having purchased the same from the lawful owner through registered sale deed dated 21.07.1986. Defendant is stated to have put up the house construction encroaching an area measuring 21/2 feet in width and 140 feet in length. It is in this regard, the relief of mandatory injunction in respect of an encroached area had been sought.
The case of the defendants is that, they have put up a building after having purchased an open site through a registered sale deed on 02.06.1997 from its lawful owner and that they have put up the building without encroaching any area of the plaintiff. They had called upon the plaintiff to prove the title relied upon by him as also alleged encroachment. Hence, they have prayed for dismissal of the appeal.
On the basis of the above pleadings, following issues came to be framed by the trial Court.
ISSUES
Whether the plaintiff proves that he is owner of suit property marked with letters ABGH and that it is part and parcel of VPC No. 744?
Whether the plaintiff proves that defendants and their predecessor in title have illegally encroached upon the suit property and constructed a building thereon?
Whether valuation made and court fee paid is correct?
Whether suit is bad for non-joinder of necessary parties?
Whether suit is barred by limitation?
Whether defendants are entitled for the compensatory costs?
Whether plaintiff is entitled for the declaratory relief and relief of possession?
What order or decree?
Addl. Issue No. 1:
Whether there is a bar for the present suit under the principles of Res-Judicate and Estoppel?
Plaintiff was examined as PW. 1 and one witness Sri. Shrikanth Rudrappa Mysore was examined as PW. 2. He had been appointed as a Commissioner to visit the suit property and to submit a report. On behalf of defendants three witnesses have been examined. 8 exhibits have been got marked on behalf of plaintiff and 10 exhibits have been got marked on behalf of the defendants. Ultimately, issue Nos. 1, 2, 4, 6 and 7 have been answered in the negative and issue Nos. 3 and 5 have been answered in the Affirmative. Additional issue has been answered partly in the affirmative. Ultimately, suit came to be dismissed by a considered judgment dated 10.01.2006.
Against the said judgment and decree an appeal came to be filed u/s 96 of C.P.C. in R.A. No. 17/2006 before the Court of Additional Civil Judge (Sr. Dn.), Ranebennur. Appeal has also been dismissed after contest. It is these concurrent findings which are'' called in question before this Court by filing an appeal u/s 100 of CPC.
Perused the judgment of both the Courts.
The party who approaches the Court for the relief of declaration of title and for the consequential relief of mandatory injunction or prohibitory injunction is required to discharge the initial burden effectively. Unless and until the initial burden is discharged the onus does not shift on the other side. It is true that, plaintiff had got an Engineer appointed as a Court Commissioner to visit the spot and submit a report along with a sketch. The Court Commissioner chose to submit a report after visiting the spot in the presence of the parties. In the rough sketch appended to the plaint, plaintiff has shown the encroaching area in letters ''ABGH''.
Defendants have their property on the western side of the plaintiffs property. Though the Commissioner has submitted a report, the alleged encroached portion is shown as only 9 inches. What is submitted before this Court is that, in the earlier sale deed executed in favour of the father of the plaintiff the width of the property is mentioned as 191/2 feet. It is further submitted that in the sale deed dated 02.06.1997, the width is mentioned as 22 feet. The Court Commissioner has shown the alleged encroachment to an extent of 9 inches only. In a case like this plaintiff is expected not only to prove the execution of sale deed relied upon by him, but also the title that his vendor had while executing the sale deed in relation to the extent of land. No such attempt has been made. What is submitted before this Court that the sale deed relied upon by the plaintiff marked as Exhibit P.7 that clinches the issue.
It is in this regard, the learned Counsel for the appellant has relied upon the decision of judgment in the case of Smt. Hans Raji Vs. Yosodanand, . As per Section 68 of the Evidence Act, the sale deed of an immovable property is not necessarily to be attested and therefore proving the same by examining one of the attesting witnesses is not essential. There is no second opinion about the law reiterated by the Hans Raji''s case. But what exactly was the title that the father of the plaintiff had in relation to the property in question is relevant. How the father of the plaintiff secured the property in question and what exactly was the extent of the property held legally by the plaintiffs father is relevant and such exercise is not made in the trial Court. Even otherwise, defendant had chosen to put up a building earlier to the filing of the suit and a reference is made about the earlier suit filed by the plaintiffs father in O.S. No. 570/1997. Nothing is mentioned about this suit O.S. No. 570/1997 in the suit filed in O.S. No. 52/1998. In fact plaintiff therein had obtained an order of temporary injunction and that appeal had been filed in M.A. No. 12/1997 by the plaintiff and the same was dismissed. In the C.R.P. filed in 979/1998 both the parties had been directed to maintain the same set of things.
Defendants have already put up construction by obtaining a valid permission from the panchayat that too by spending huge amount. The defendants'' Society is interested in helping poor weavers. To the eastern side of plaintiffs building was an open space and therefore, the plaintiff was expected to specifically to prove that the said space was a part and parcel of property purchased by him.
The report of the Court Commissioner will not help to prove the title of the parties and it has to be considered as one of the evidence. The same will have to be considered in the light of the oral and other documentary evidence adduced by the parties.
Learned judge of the trial Court has held that just because the Court Commissioner has pointed out the encroachment to an extent of 9 inches, the same cannot be considered as an encroachment. It is evident from the sale deed produced and relied upon by the plaintiff, that when the plaintiffs father purchased the property, there was an open space on the eastern side and the earlier suit filed in O.S. No. 170/1997 was for declaration to the effect that wall of the plaintiffs property was a common wall. Even otherwise plaintiff has not been able to prove the property in question has fallen to his share on a partition between himself and his brothers.
Taking over all circumstances of the case, the trial Court has rightly refused to grant the relief of declaration or the consequential relief of mandatory injunction. The trial Court has assessed the entire oral and documentary evidence on the touch stone of intrinsic probabilities. The First Appellate Court, being the final Court of facts, has rightly reassessed the entire evidence on the touchstone intrinsic probabilities and has assigned cogent reasons to concur with the trial Court judgment. It has adopted right approach to the real state of affairs and no infirmity or illegality is found in the judgment of the trial Court or the First Appellate Court. No grounds are made out to interfere with the findings on facts given by the trial Court, which is affirmed by the 1st Appellate Court. No substantial question of law arises in the present case for consideration before this Court. Substantial questions of law proposed in the appeal memo are not substantial questions of law in essence as contemplated u/s 100 of C.P.C. Hence, appeal is liable to be dismissed as unfit for admission.
ORDER
Appeal is dismissed as unfit for admission by upholding the judgments of the trial Court as well as the First Appellate Court.
There is no order as to costs.