Noorahamad Shashasaheb vs Gangubai

A.V. Chandrashekara, J.—Heard learned counsel for the appellant. Concurrent findings are called in question before this Court by filing appeal u/S. 100 of CPC. Plaintiff is before this Court challenging the dismissal of his suit filed for the relief of possession and mandatory injunction in O.S. No. 193/2002 which was pending on the file of the Court of II Addl. Civil Judge (Jr. Dn.), Belgaum. Suit filed for the above reliefs has been dismissed after contest on 16.10.2004. The said judgment and decree has been affirmed in R.A. No. 245/2009 by the Fast Track Court-II at Belgaum.

The case of the plaintiff is that he is in lawful possession and enjoyment of an open space measuring 33 feet x 33 feet bearing property no. 1393/A out of R. Sy. No. 1393/A/2A in M.M. Extension, Belgaum City.

According to the plaintiff, the property in question is bounded on the East by public road, West-Ramu Ajarekar''s property, South- road and North-road and remaining property of the suit property situated in between the boundaries. Further case of the plaintiff is that the defendant has encroached a space measuring 5 feet East-West and 15 feet North-South and therefore the defendant is liable to hand over the encroached portion. It is in this regard mandatory injunction had been sought. Plaintiff''s case is that suit property was purchased through a registered sale deed dated 19.05.1995 and it was sold by one Sri Laxman Hanamanth Kagalkar. The original owners have executed power of attorney on 29.05.1995 so as to enable the plaintiff to get necessary permission from the statutory authorities. Defendants had appeared before the Court and had filed detailed written statement stating that they are the lawful owners of an area measuring 13 guntas in R.S. No. 1393/A/1 and that it originally belonged to Government. The said land was given to the members of Vaddar community and they have put up pakka houses long back. They have denied the title set up by the plaintiff.

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

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

2) Whether the plaintiff further proves that the defendant No. 1 and 2 have encroached an area towards east-west 5'' and north-south 15'' as contended in para 6 of the plaint?

3) Whether the plaintiff proves that the defendant Nos. 1 &2 have illegally constructed a wall measuring 5''x15'' as contended in para 9 of the plaint?

4) Whether the plaintiff further proves that he is entitled for possession of the property measuring 5''x15'' as contended in plaint?

5) Whether the plaintiff is entitled for the relief of mandatory injunction?

6) What order or decree?

Plaintiff is examined as P.W. 1 and defendant is examined as D.W. 1. 10 exhibits have been got marked on behalf of the plaintiff. No exhibits have been got marked on behalf of the defendants. Ultimately issue nos. 1 to 5 have been answered in the negative. Consequently suit came to be dismissed on 16.10.2004. Appeal filed u/s 96 of CPC in R.A. No. 245/2009 has also been dismissed by the learned Judge of the Fast Track Court-II, Belgaum on 17.04.2010. Thus, dismissal of the suit has been upheld.

As could be seen from the judgments of both the Courts, plaintiff has not taken any steps to seek the main relief of declaration of title to seek the consequential relief of mandatory injunction. Plaintiff did not make any attempt to get a commissioner appointed so as to get the schedule property measured in order to effectively prove the aspect of encroachment. The oral evidence would disclose that the properties of the plaintiff and defendant are bifurcated by drainage. When the defendants have specifically denied the title set up by the plaintiff in respect of an open space it was incumbent upon the plaintiff to have got the suit amended for the relief of declaration of title. No such attempt has been made.

Though an application was filed under Order 26 Rule 9 CPC and was dismissed by the trial Court, no serious efforts was made in the appellate Court to get a Commissioner appointed to measure the suit property measured. Even otherwise, nothing came in the way of the plaintiff to examine his vendor not only to prove tide of the property measuring 33 ft. x 33 ft. but also Ex. P. 4 the power of attorney stated to have been executed by the vendor of the plaintiff vide Ex. P. 4.

The decisions relied upon by the learned counsel for the appellant before the first appellate Court have been specifically referred to and discussed at page nos. 14 and 15 of the judgment of the first appellate Court. In fact the learned Judge has come to the conclusion that the decisions are helpful to the case of the defendants. The alleged encroachment itself has not been proved specifically and therefore the suit filed for the main relief of mandatory injunction has been dismissed.

The Hon''ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, has specifically laid down that, in a suit for injunction relating to an open site, the relief of declaration must be sought whenever the very title is specifically denied. In the light of the principles laid down in Anatullah Sudhakar''s case and the facts and circumstances of the case, the trial Court and the first appellate Court have rightly held that the plaintiff has failed to discharge the initial burden cast upon him. There is no reason to interfere with the findings of facts given by the trial Court which are affirmed by the first appellate Court. The first appellate Court has reassessed the entire evidence in right perspective and has given cogent reasons to concur with the trial Court judgment. Viewed from any angle no good grounds are made out to interfere with well considered judgment of the trial Court which is affirmed by the first appellate Court.

Even otherwise, questions of law proposed in the appeal memorandum, are not the substantial questions of law in essence u/S. 100 of CPC. Even otherwise, no substantial question of law arises for consideration before this Court to admit the appeal. Hence the appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission. There is no order as to costs.