P. Gopala Krishna Rao vs Smt. Chandravathi and Others

K.N. Phaneendra, J.—Heard the learned counsel for the appellant. The suit of the plaintiff before the Trial Court is for permanent injunction restraining the defendants Nos. 2 to 8 and their men from interfering with the peaceful possession and enjoyment of the suit ''A'' schedule property. The suit ''A'' schedule property is described as follows:

Immovable property situated in Padupanamboor village of Mangalore district.

The brief factual matrix on which the plaintiff claims permanent injunction is that the plaint ''A'' schedule property belongs to the plaintiff and in the said property there are several fruit bearing, timber yielding trees. It is specifically contended that on the western ridge of the property there are nearly 12 palmyra trees and the plaintiff has been removing the leaves and branches of said palm trees for fire wood. The defendants property is situated to the western and northern side of the ''A'' schedule property. The properties of the defendants situated to the western side of the property is at lower gradient by about four feet from the plaintiffs land of ''A'' Schedule property. Though the defendant has no right, title or interest over the ''A'' schedule property situated at the higher gradient belonging to the plaintiff they attempted to interfere with the plaintiffs possession over the trees situated on the western boundary of the plaintiffs property by preventing the plaintiff from collecting the usufructs from the said palm trees.

It is contended that when the plaintiff in the year 1981 went to the plaint ''A'' Schedule property, the defendants obstructed the plaintiff by cutting and removing the branches and leaves of the palm trees belonged to the plaintiff, thereby committed obstruction to the plaintiffs peaceful enjoyment of the trees.

The defendants, in fact contested the matter by taking up the plea that the plaintiff is neither in the possession of the alleged trees nor he has any title over the same. It is the specific contention of the defendant that the palm trees are planted and reared by the defendants and their predecessors and that the predecessors of the defendants have been collecting the usufructs of the said trees exclusively. The defendants have also been collecting through licensed tappers, by exercising their right over the said trees in their property. The defendants have not denied the possession and title of ''A'' schedule property by the plaintiffs, but the dispute between the parties is narrowed down by the defense of the defendants to the extent of the trees which are according to the plaintiff alleged to be situated on the western boundary of the plaint ''A'' schedule property, but according to the defendants they are situated in the defendants lands and not in the A'' schedule property.

On the basis of the above stated rival claims of the above parties, the Trial Court formulated the following issues:

(1) Does the plaintiff prove that he is in possession of ''A'' Schedule property?

(2) Does the plaintiff further prove that ''A'' schedule property is on higher level than that of the Defendants'' property?

(3) Does the plaintiff prove the tortuous acts?

(4) Does the plaintiff prove that he is entitled for injunction?

And ultimately the Trial Court after appreciating the oral and documentary evidence produced by the parties to the suit came to the conclusion that the suit pertaining to the ''A'' schedule property is to be decreed, except the palm trees which are not situated on the western side of the plaint ''A'' schedule property but actually situated in the defendants lands. Therefore, so far as the palm trees are concerned, the Trial Court has refused to grant any remedy. The Trial Court based its decision on Exhibits-C1 and C2 which are the Commissioner''s report and sketch submitted before the Trial court.

Being aggrieved by the said judgment of the Trial Court the plaintiff filed an appeal before the First Appellate Court in R.A. No. 381/2005, the First Appellate Court also formulate the following points for consideration:

(1) Whether the plaintiff proves that the impugned judgment and decree of the learned trial judge is perverse, illegal and capricious?

(2) What order?

Considering the oral and documentary evidence and also the findings given by the Trial Court, the first Appellate Court has come to the conclusion on facts that the Trial Court has not committed any error in appreciating the oral and documentary evidence on record. Hence, the First Appellate Court has dismissed the appeal confirming the judgment and decree passed by the trial court.

The learned counsel for the appellant herein vehemently contended that the trees which are not under challenge as claimed by the plaintiff has come to the plaintiffs through some documents i.e., Exhibit-P1, the registered settlement deed dated 13.02.1934 executed by one Laxmipathaya and Exhibit-P2 is another document registered mortgage deed dated 02.08.1951 executed by the father of plaintiff in favour of Prabhakara Ghate and in these documents there is a reference about the existence of palm trees in the suit ''A'' schedule property. The Trial Court in fact appreciated these documents with reference to the Commissioner''s report also.

It is seen from the judgment of the Trial Court that earlier a Commissioner was appointed by name Mr. Hegde. The said Commissioner''s report was rejected by the Trial Court and none of the parties have challenged the said rejection or rejecting the first Commissioner''s report. Subsequently, the Trial Court has appointed another Commissioner and the Commissioner taking the help of ADLR in the presence of the parties and Advocates has measured the lands of the plaintiff and defendants and came to the conclusion that those disputed palm trees are situated in the defendants property and not in plaint ''A'' schedule property. It was specifically mentioned that the said palm trees are situated in survey No. 14/10A1 and 14/10A2. The report and sketch are marked at Exhibits-C1 and C2 and has been appreciated and relied upon by both the Trial Court as well as the First Appellate Court. It is also observed by the Trial Court that the Commissioner has been examined before the court and cross-examined by the defendants also. On perusing Exhibits-C1 and C2 and appreciating the evidence of the plaintiff and defendants, the trial court came to the conclusion that nothing has been elucidated disproving the report and sketch at Exhibits-C1 and C2. Therefore, relying upon the said documents, the Trial Court has come to the conclusion that the disputed palm trees are situated in the lands of the defendants.

Further added, the Trial Court has also given its findings that the plaint ''A'' schedule property also consists of some palm trees. The only contention of the plaintiff is that the palm trees which are situated on the western ridge of his land belongs to him only. But according to the Commissioner''s report, the said palm trees are situated in the defendants property. Perhaps that may be the reason that the Trial Court has come to the conclusion that the palm trees which are mentioned in Exhibit-P1 and P2, i.e., registered settlement deed and the registered mortgage deed are situated in ''A'' schedule properties. Therefore, the trial court has come to the conclusion that the dispute by the plaintiff is only with regard to the palm trees situated in the defendants property. Therefore, the said claim of the plaintiff has been rejected by the trial court.

The Appellate Court while discussing the said factual matrix of the case and also that of the evidence of plaintiff and defendants on record has also come to the conclusion that the Trial Court has not committed any error in drawing such an inference on the basis of the documentary and oral evidence. At para-16 of the judgment of the trial court it has specifically stated that the evidence of DW-1 to DW-4 are in consonance with the defense taken by the defendants as the palm trees belong to the defendants including the field ridge situated in the western side of the plaint ''A'' schedule property. The disputed palm trees are held to be in the defendants lands even by the Appellate Court also.

In a suit for permanent injunction, the plaintiff has to specifically prove and establish the possession over the said, palm trees exclusively to counter to the claim of the defendants. Infact the Commissioner report as observed by the First Appellate Court is drawn with the help of ADLR therefore, sanctity has been attached to the said Commissioner report by both the Trial Court as well as the Appellate Court.

The finding of the fact of possession either by the plaintiff or the defendants in my opinion cannot constitute as legal substantial question of law''. It is only based on the factual matrix of the case based on both the documentary and oral evidence. When such assessment of evidence has been made by the Trial Court as well as the Appellate Court it is not proper and correct to interfere with such finding of fact by the Trial Court as well as the Appellate Court. Even considering that the First Appellate Court has committed any error in appreciating the factual matrix that itself is not sufficient to interfere with the judgment of the trial court.

It is worth to note a decision of the Hon''ble Apex Court in the case of Madhavan Nair v. Bhaskar Pillai reported in 2005 (10) SCC 553, wherein it was held that - the High Court was not at all justified in interfering with the concurrent findings of fact. It is well settled that even if the first appellate court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.

In view of the above said ruling and the factual matrix of the case, I'' am of the opinion that there arises no substantial question of law to be formulated by this Court. Hence, this appeal deserves to be dismissed at the threshold. Hence, I proceed to pass the following order: ORDER

The Regular Second Appeal is dismissed.