Pundalik vs The Executive Officer, Saudatti Renuka Yallammadevi Trust

B. Veerappa, J.

This is a plaintiffs regular second appeal against the judgment and decree dated 6.9.2010 made in R.A. No. 3/2008 on the file of the Principal Senior Civil Judge, Saundatti, confirming the judgment and decree dated 16.01.2008 made in O.S. No. 36/2006 on the file of the Civil Judge (Jr. Dn), Saundatti, dismissing the suit for permanent injunction.

It is the case of the appellant/plaintiff before the trial court, that the suit property situated in Ugargol Gram Panchayat No. 40 is situated in Yellammanagudda hill of Saundatti taluk and it is a Janata House constructed by the Government and is within the boundaries mentioned in the plaint. The suit property was allotted to one Roopaleppa Lamani in the year 1978-79 as per the allotment letter dated 12.10.2014 by the Executive Officer of the Taluk Panchayat. In the suit property, the Government had constructed Janata house and has distributed the same under Ashraya Scheme. The plaintiff got the suit property as legal heir of Roopaleppa. The name of the plaintiff came to be entered in the suit property as owner and plaintiff is in actual possession and enjoyment of the same. In Ugargol Grama Panchayat extract the name of the plaintiff is shown as owner of suit property and the plaintiff is paying tax to the Government. The defendant is not at all concerned to the suit property. On the ground of development of Yellammanagudda, the defendant without giving notice to the plaintiff has illegally and high-handedly demolished the suit house and other houses allotted to the beneficiaries and caused loss to the plaintiff The plaintiff requested the defendant not to demolish, but the defendant and its workers have not cared to his request.

After demolition of the house, the plaintiff approached the defendant seeking compensation. But the defendant has turned down the request. The plaintiff has now put up a temporary shed in the suit property and is residing there with his family members. The Plaintiff is a poor person and with great difficulty has put up the temporary shed and now the defendant is intending to oust the plaintiff from the suit property illegally and forcibly. Therefore, the plaintiff after complying with statutory requirements, filed the suit seeing permanent injunction against the defendant.

The sole defendant filed written statement denying the plaint averments and denied the existence of the suit property and also denied the contention of the plaintiff that the Janata House was granted to his father and it was existed in the suit property. He also the denied the alleged demolition of the Janata House and specifically contended that the suit property is not within the village limits of Uargol. It is stated that the panchayat or the Government have not at all erected the Janata House in the suit property. It is stated that the suit property is situated in Sy. No. 993 of Ugargol village and it is under the ownership of Sri. Renuka Yellamma Devasthan. It is stated that this property is no where concerned to the plaintiff or the Government. It is further contended that the plaintiff colluding with his well-wishers created documents and hatched a plan to dupe valuable property of the temple. It is further contended, that as on the date of filing suit there is existence of Sri Renuka Yellamma Devasthan Trust. Therefore, suit is not maintainable. It is further stated that the plaintiff has suppressed all the material facts and not come to the court with clean hands. Therefore, sought for dismissal of the suit.

Based on the pleadings, the trial court framed the following issues:

Whether the plaintiff proves his possession and enjoyment of the suit property?

Whether the plaintiff proves the alleged interference by defendant in plaintiffs possession of the suit property?

Whether the plaintiff is entitled for the relief of permanent injunction?

What decree or order?

In order to establish his case, plaintiff examined himself as PW.1 and examined witnesses as PW.2 and P.W.3 and got marked documents Ex. P.1 to P.15. The defendant examined himself as D.W.1.

After considering the entire material on record, the Trial Court recorded a finding that, the plaintiff has failed to prove his possession and enjoyment of the suit property as on the date of suit and also failed to prove the alleged interference by the defendant in the plaintiffs possession of the suit property and plaintiff is not entitled to equitable order of permanent injunction. Accordingly, the suit came to be dismissed on 16.01.2008.

Against the said judgment and decree of the trial court, the plaintiff filed appeal in R.A. No. 3/2008 before the Principal Senior Civil Judge, Saundatti, who after hearing both the parties by the impugned judgment and decree dated 06.09.2010, dismissed the appeal and confirmed the judgment and decree of the trial court.

Being aggrieved by the concurrent findings of fact of both the courts below, the present regular second appeal is filed.

I have heard the learned Counsel for the appellant.

Sri. Shnkant T. Patil, learned Counsel for the appellant, vehemently contended that the documents produced by the plaintiff at Ex. P.1 to Ex. P.15 are not properly appreciated by the courts below, which has resulted in miscarriage of justice while passing the impugned judgment. He further contended that evidence of D.W.1 cannot be appreciated nor accepted since he has no personal knowledge about the suit property. In fact, the plaintiff before filing the suit has issued notice to the defendant but no reply was sent by the defendant. Therefore, he contended that the impugned judgment and decree passed by the courts below are erroneous and contrary to the records and sought to set aside the impugned judgment and decree of the courts below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the appellant and perused the entire material on record.

The Plaintiff filed the suit for permanent injunction mainly on the basis of the Ex. P.3-"Pramana Patra", said to have been issued by Executive Officer of the Taluk Panchayat, Saundatti, to show that the suit schedule property was granted to his father Rupaalappa under Ashraya Scheme and he is in possession of the same. On the contrary, the defendant denied the plaint averments and specifically contended that the schedule property i.e. Janata House, is not at all existing as on the date of filing the suit and the property belongs to the defendant and the suit schedule property does not tally with Ex. P.3 Pramana Patra since there is no proper description. Accordingly, he sought to dismiss the suit as not maintainable.

The plaintiff who is examined as PW.1, in the cross-examination, has admitted that in the notice issued to the defendant he has stated that the suit property was granted to his name. He has admitted that in the present suit he has stated that suit property was granted to his father in the year 1978-79. He has stated that the Panchayat has given him Hakku Patra. He has stated he has produced Hakku Patra before the Court and it was given in his name. He has stated that the suit property is measuring 55 x 55 feet which is mentioned in Hakku Patra. He also admitted that land in which new Inspection Bungalow is constructed belong to the Government. He has further admitted that to a distance of one furlong from Inspection Bungalow there are no Janata Houses. He has further admitted that earlier this land was belonging to Municipality and the Municipality has given the said property to the temple and he has further admitted that Sy. No. 993 which is in enjoyment of the temple.

PW.2 in his chief examination has stated, that the suit property was allotted to the father of the plaintiff and plaintiff is in peaceful possession and enjoyment of said property. But in the cross-examination he has admitted the procedures to be followed while granting Janata house to the beneficiaries. The witness has stated that he has seen the Hakku Patra given to the father of the plaintiff He has stated that panchayat No. 40 has granted to the father of the plaintiff He has admitted that the land near the present LB. in Yellammanagudda belongs to Municipality. He has stated that he does not know the survey number of the property in which this area is situated.

PW.3 is another witness who has also stated that the suit property was allotted to the father of the plaintiff and plaintiff was in possession and defendant has demolished the house existing on the suit property. In the cross-examination he has stated that he has not seen any documents of Taluk Panchayat showing that the property was allotted to the father of the plaintiff He has stated that the property us measuring 55 x 55 feet. He has admitted that the property near L.B. of Yellammanagudda belongs to Municipality and it was given to Yellammanagudda temple by the Municipality. He has further admitted that on the side of Yellammanagudda temple there is no property belonging to Ugargol Panchayat.

The defendant who is examined as D.W.1 has stated on oath, that suit property is property of defendant and it does not belong to Ugargol Grama Panchayat, which is situated in Sy. No. 993 belonging to the defendant-trust. In the cross-examination, the witnesses has denied that near Yellammanagudda temple there was property belonging to the Ugargol panchayat.

As can be seen from Ex. P.3 produced before this Court by the learned Counsel for the appellant at the time of arguments, that it is a allotment letter issued by the Executive Officer of the Taluk Panchayat, on 12.10.2004 stating that Rupalappa S. Lamani has been sanctioned Janata house by the Government in 1978-79. Ex. P.3 does not mentioned any number or boundaries or measurement of the suit property. The said details mentioned in the letter does not tally with the Schedule to the plaint. Even the said document does not bear the seal of the office or reference number and also it does not appear to be certified copy of the document issued by the office. The person who has signed the document is not examined before the Court. The document does not show VPC No. 40 of Ugargol Gram Panchayat was granted to plaintiffs father. The document does not show that Janata house was granted to Rupaleppa which belongs to Village Panchayath of Ugargol Village and Ex. P-3 the grant of Janata house to the plaintiffs father does not establish that it is a suit schedule property. The boundaries of the suit schedule property also does not tally with Ex. P-3.

Though the burden is on the plaintiff, the plaintiff has not ventured to produce any material document to show that he has constructed a shed in the suit schedule property and he is residing therein. If really he is residing, there is no impediment for the plaintiff to produce material documents like ration card, identity card and other related cards to show that he is in possession of the suit schedule property as on the date of the suit. The photographs relied upon by the plaintiff has been considered by the Trial Court and stated that on what date these photographs are taken and building admiring the photographs, if the Janata house or present shed constructed by the plaintiff, now it is not stated by the plaintiff Moreover, the boundaries of the suit schedule property on West is shown as circuit house and South as road, and East as old Janata house. These boundaries are not found in the photographs in any direction. According to the plaintiff, Janata house was granted to him was already demolished by the plaintiff even prior to the filing of the suit in the year 2004. The plaintiff cannot be said to be in possession of Janata house, which is not at all in existence at present. The plaintiff has stated that he has constructed temporary shed, but he has not stated that from what date he is in possession of the temporary shed and what is the material to prove before the Court.

P.Ws. 2 and 3 have only stated about demolish of the house, but not stated anything about the construction of temporary shed and the plaintiff is residing in the said shed at present. The Trial Court recorded a finding that the plaintiff failed to prove the existence of suit property within the boundaries mentioned in the plaint and plaintiff himself has admitted Janata house is not existing at present and has failed to prove his possession and enjoyment of the suit schedule property as on the date of the suit. Accordingly, the suit came to be dismissed. The lower Appellate Court to re-appreciate the entire material on record and also on considering the application I.A. No. 2 under Order 41 Rule 27 read with Section 151 of CPC has come to the conclusion that the plaintiff has not produced any material document to prove his lawful possession and enjoyment of the suit property as on the date of the suit and the document now sought along with the application in the Appellate Court, a copy of the letter given by the Taluk Panchayath to issue certified copy of "Hakku Patra". By producing the copy of the letter, the plaintiff cannot prove his possession over the suit property and even the appellant is permitted, the case of the plaintiff will not be improved and no material documents are produced to prove his possession as on the date of suit. Accordingly, the lower appellate court dismissed the appeal.

Both the courts concurrently held that the plaintiff has failed to establish his possession as on the date of the suit and the alleged interference by the defendant is based on the legal evidence on record and appellant has not made out any ground to admit this appeal. No substantial questions of law involved in the present case. Accordingly, the Regular Second Appeal is dismissed.