Papa vs Narayana Reddy and Others

Ravi V. Malimath, J.—The case of the plaintiff is that his father and the grandfather of the defendants are brothers. That after their death, their sons Chinnappa and Papanna divided the properties and were in possession and enjoyment of their respective shares. After the death of Chinnappa and Papanna, the plaintiff and defendants are in possession. The plaintiff is paying the taxes ever since then. That there is a residential house in item No. 1 of the suit schedule properties, which was built by the plaintiff''s father, where the plaintiff resides alongwith his family and there is a car shed in front of the said house and by the side of the house to the entire length there is a cattle shed. There is a hay stock in item No. 2 of the suit schedule property, which is fenced by plants.

As such, the plaintiff has been in possession and enjoyment of the suit schedule property for more than 60 years. The defendants having no manner, right, title or interest in the suit schedule property have attempted to trespass over the property. Hence, the instant suit was filed seeking injunction to restrain the defendants from interfering with the suit schedule property.

On suit summons being served, the defendants entered appearance. Defendant No. 1 filed his written statement, which was adopted by defendant No. 2. They denied the plaint averments. They also denied that Chinnappa and Papanna were enjoying their respective shares and also paying tax on the suit schedule properties. They admitted the existence of a residential house in item No. 1. They denied the existence of the car shed in item No. 1 and cattle shed in item No. 2. They contended that there was a partition between the plaintiff and defendants more than 60 years ago. Ever since then, they have been enjoying the share of their father separately. That in the said partition a site measuring 46 x 22 feet in property No. 26/2 and land measuring 16 x 23 feet in property No. 27/2 fell to the share of the defendant''s father. Similarly, land measuring 16 x 25 feet property in property No. 483 had fallen to the share of the defendants'' father. The defendants also produced documents in support of the same. That they have been paying taxes in respect of the property bearing No. 26/2, 27/2 and 483. Hence, the entire plea of the plaintiff is frivolous and they sought for dismissal of the suit.

On the basis of the pleadings, the trial court framed the following issues:

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

ii. Whether the plaintiff proves the alleged interference caused by the defendants?

iii. What order or decree?"

In order to prove their case, the power of attorney holder of the plaintiff was examined as PW-1 and got examined two more witnesses as PW-2 and PW-3 and 45 documents were marked. The first defendant was examined as D.W.-1, defendant No. 2 was examined as D.W.-2 and three more witnesses were examined as D.W.-3 to D.W.-5 and 26 documents were marked. Both the issues were held in the affirmative. The suit of the plaintiff was decreed with costs. Aggrieved by the same, the defendants filed an appeal.

The first appellate court allowed the appeal and set-aside the judgment and decree passed by the trial court. The suit of the plaintiff was dismissed. Hence, the present second appeal by the plaintiff.

By the order dated 06.07.2011, the appeal was admitted to consider the following substantial question of law:

"Whether the first appellate court is legally correct in dismissing the entire suit of the plaintiff on the ground that plaintiff has claimed more area than what they have acquired in a partition instead of granting a decree to the extent of admitted possession?" 8. Heard the learned counsel.

On hearing the learned counsel, I''am of the considered view that the substantial question of law requires to be reframed. Hence, the substantial question of law is reframed as follows:

"Whether the suit for injunction can be decreed when the defendants disputed the title as well as the possession of the plaintiff with adequate material to support their case and in the absence of the plaintiff seeking relief for declaration of the title?" 10. The learned counsel for the appellants -plaintiffs contends that the first appellate court committed an error in misreading the evidence and material on record. That a Commissioner was appointed and he having partly supported the case of the plaintiff, the suit requires to be decreed atleast to that extent. That sufficient material are produced to show that the plaintiffs have inherited the property and are entitled for injunction.

The learned counsel for the respondent is absent. Heard the learned counsel for the appellants and examined the records.

The case of the plaintiff is that the property was inherited by him as pleaded by him in the plaint and ever since then, he has been in possession of the suit schedule property. The defendants disputed the same. They contended that they have inherited the property from their ancestors and they received the scheduled property. The identity of the property was seriously disputed before the court. Exhibit-D7 relied upon by defendants would show that the Kodathi Grama Panchayat granted licence to the first defendant to construct a house in the suit schedule item No. 1. Exhibit-D12 is the mutation effected in the name of the first defendant with regard to item No. 1 and 2 suit schedule portion. In item Nos. 1 and 2 properties portion was also mutated in the name of the first defendant with specific boundaries. The said boundaries are being claimed by the defendants by relying on the katha extracts. The plaintiff also claims the very same extent of the land. Both are claiming their right over the suit schedule property.

The suit is not one for declaration of the title, it is for bare injunction. Based on the material on record when the defendant has shown that he is claiming the very same property in question and when there is no material produced by the plaintiff to prove his possession, necessarily no injunction can be granted to him. The appellate court was therefore justified in reversing the finding and dismissing the suit of the plaintiff.

Further, the contention is that the marked portion by the Commissioner atleast should have be decreed. I''am of the considered view that such a contention cannot be accepted. The Commissioner in his report has clearly narrated that even the boundaries that has been marked by the plaintiff does not tally with his report. That the boundaries marked are different. Therefore, relying on the Commissioner''s report is inappropriate. When the plaintiff himself is unable to mark the boundaries to the Commissioner, the question of seeking an injunction purely based on the Commissioner''s report would therefore be unacceptable.

The material on record would show that the plaintiff has failed to make out a case. The property claimed by the plaintiff is claimed by the defendants also. When there is a dispute with regard to the title and possession, the plaintiff is required to file a suit seeking for declaration on title. He has failed to do so. The suit is only for bare injunction. Hence, the substantial question of law is answered by holding that the suit for injunction could not have been decreed when the defendants disputed the title as well as the possession and when the suit is only for bare injunction without a relief of declaration of title. Consequent to answering the substantial question of law, the appeal is dismissed.