Puttamma vs Basavaiah and Others

A.V. Chandrashekara, J.—Present appeal is filed under Section 100 of CPC challenging the dismissal of original suit bearing O.S. No. 744/1992 which was pending on the file of Addl. Civil Judge and JMFC (Jr. Dn.), Mandya and confirmed by the Court of the District Judge, Mandya in R.A.299/2004 (old No. 38/2000). Respondents are the defendants and appellant herein is the plaintiff in the said suit. Concurrent findings of the Courts below are called in question in this appeal.

Parties will be referred to plaintiff and defendants as per their ranking in the Trial Court.

Facts leading to filing of the suit by plaintiff K. Lingaiah are as follows:

"Land in erstwhile Sy. No. 181 of Hulikere measured more than 600 acres out of which 6.40 acres of land i.e., 1 hectare 64 ares of land had been granted in favour of the deceased plaintiff by the then Tahsildar, Mandya vide GDR.30/35-36 dated 14.4.1937. Plaintiff is stated to have deposited the upset price and obtained saguvali chit from the Tahsildar, Mandya. It is averred that plaintiff was put in possession of the property and same was conferred by issuing saguvali chit. Since then, deceased plaintiff was in lawful possession and enjoyment of the same. Since defendants Basavaiah and Chikkanna were trying to interfere with the peaceful possession and enjoyment of the suit schedule property, the deceased plaintiff-Lingaiah filed suit for relief of permanent injunction only. During the pendency of the suit, Lingaiah died and his two wives were brought on record in his place."

Defendants chose to file a detailed written statement denying all the material averments in regard to grant made by the Tahsildar Mandya in favour of deceased plaintiff and issuing saguvali chit. Plaintiff had been called upon to strictly prove the contents of the plaint. According to the defendants, plaintiff-Lingaiah had never been in possession of the suit schedule property at any point of time. It is further averred that even if the plaintiff were to prove that portion of land in Sy. No. 181 belonged to him, it could be Sy. No. 181/B or Sy. No. 181/1B measuring 0.81 ares and not 1 hectare 64 ares. It is further averred that the said 81 ares of land has been settled in favour of Honnappa and Indramma through a registered settlement deed and therefore plaintiff is not in possession of the same. According to the defendants, boundaries mentioned in the plaint schedule are incorrect and false. According to them, documents relied upon by them is fabricated and concocted with the help of the revenue officials.

According to them, suit schedule property was granted in favour of their father by way of ''Hangami saguvali'' (Darkasth) and their father was in possession till his death. Later on they are in continuous possession and enjoyment of the same. According to them, they have been paying tax and defendant No. 2 has been cultivating the entire suit schedule property for the past 5-6 years of filing of the suit. It is their case that defendant No. 2 is also in possession of 5 acres 20 guntas of land in Sy. No. 464 and same is situated to the east of the suit schedule property. Towards northern side, land of Sadashivaswamy is situated and not land of Patel Chikkaiah is the averment. It is averred that boundaries furnished by the plaintiff in the schedule are incorrect and false. On the other hand, plaintiff is trying to interfere with their possession of the suit schedule property. It is further averred that even if the saguvali chit is issued on the basis of the grant, the same has not been acted upon at any point of time. After the death of plaintiff and bringing his legal representatives, defendants have chosen to file additional written statement reiterating the contents of the written statement filed earlier and that legal representatives of K. Lingaiah cannot continue the suit and there is no cause of action to continue the suit.

On the basis of the above pleadings of the parties, following issues came to be framed by the Trial Court:

"1. Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit property as on the date of suit?

Whether the plaintiffs prove the alleged interference?

Whether the plaintiffs prove the alleged interference?

What Order or decree?"

Additional Issue:

Whether plaintiffs prove that they have Locus-standi to continue the present case on the same cause of action?

Whether suit is not maintainable as alleged in the WS?"

On behalf of the plaintiff, Puttamma is examined as PW-1 and Patel Basavaiah is examined as PW-2, and 7 documents have been marked as Exs. P-1 to 7. On behalf of the defendants, 7 witnesses have been examined as DW-1 to 7 and has produced and got marked 20 documents as Exs. D-1 to 20.

Ultimately, the learned Judge of the Trial Court has chosen to answer issues 1 to 3 in the negative and additional issue No. 1 in the affirmative and additional issue No. 2 in the negative and consequently dismissed the suit vide order dated 22.2.2000, as against which, an appeal was filed under Section 96 of CPC in R.A.38/2000 before the Addl Civil Judge, Mandya and the said appeal was withdrawn and transferred to Court of District Judge, Mandya and renumbered as R.A.299/2004. On the basis of the arguments advanced by the learned counsel for the parties, the learned Judge of the First Appellate Court has chosen to confirm the trial court judgment by dismissing the appeal.

The present appeal has been admitted on 6.6.2008 by framing following substantial question of law for consideration:

"Whether the courts below were justified in not relying upon the documents Ex. P4, P5, P6 and P7 produced by the plaintiffs as well as the admissions made by the defendants in the course of their evidence and thus committed error in not appreciating the evidence in proper, perspective while dismissing the suit of the plaintiff?"

During the pendency of this appeal, application came to be filed under Order 41 Rule 27 of CPC by the appellant furnishing certain documents requesting this Court to record additional evidence. The said application came to be allowed on 3.7.2013 and the Trial Court was directed to record additional evidence and to send the recorded additional evidence. Accordingly additional evidence was recorded by the Trial Court. Honappa, POA of plaintiff No. 2 is examined as PW-3. He has produced documents marked as Ex. P-8 to 23. In the light of additional evidence being adduced and same being sent, one more substantial question of law is framed on 30.4.2015 and the same is as follows:

"Whether the additional evidence placed on record is sufficient to grant the equitable relief of permanent injunction apart from the evidence already placed on record?

Heard the learned counsel for the parties at length and perused the records.

Substantial Question of Law No.(1)

In an appeal filed under Section 100 of CPC challenging the concurrent findings, normally the second appellate court will be very slow in interfering with such finding. The second appellate court will interfere with the concurrent finding only if the oral and documentary evidence has been either thoroughly misappreciated or material evidence is ignored or proper law has not been applied to the proved facts. A civil case will have to be decided on the basis of averments made by the parties in their respective pleadings. In civil cases, pleadings are the foundation and the evidence adduced by the parties will have to be analysed in the light of the stand taken up by the parties in their respective pleadings.

The case of the deceased plaintiff is that erstwhile Sy. No. 181 of Hulikere measuring 600 Acres belonged to Government, out of which 1 Hectare 64 ares of land was granted in his favour by the Tahsildar, Mandya vide order No. GDR 30/35-36 dated 14.4.1937. He is stated to be in lawful possession of the same. It is his case that extent of land granted in his favour out of 600 acres was subjected to Phodi work and was assigned separate survey number as Sy. No. 446.

It is relevant to note as to what exactly are the contents of the written statement filed by the defendants. Defendants have emphatically denied the contents of the plaint and called upon the plaintiff to strictly prove the contents of the plaint. As rightly argued by the learned counsel for the appellant, initial burden will be on the plaintiff who seeks the equitable relief of permanent injunction. Unless initial burden is effectively discharged, the onus does not shift on the other side. Burden of proof pales into insignificance as the parties lead evidence, knowing exactly the full lis pending between them. Legal burden remains static and onus goes on shifting on the basis of the evidence adduced by the parties. In this regard, decision reported in the case of Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, AIR 1960 SC 100 : (1960) 1 SCR 773 is relevant and aptly applicable to the facts of the present case. The relevant paragraph is extracted hereinbelow:

"10................The expression "burden of proof really means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favour; it also means that on a contested issue one the two contending parties has to introduce evidence. Whichever way one looks, the question is really academic in the present case,, because both parties have introduced their evidence on the question of the nature of the deity and the properties and have sought to establish their own part of the case. The two Courts below have not decided the case on the abstract question of burden of proof; nor could the suit be decided in such a way. The burden of proof is of importance only where by reason of not discharging the burden which was put upon it, a party must eventually fail. Where, however, parties have joined issue and have led evidence and the conflicting evidence can be weighed to determine which way the issue can be decided, the abstract question of burden of proof becomes academic."

Defendants have specifically averred in the written statement that suit schedule property originally was a part and parcel of Sy. No. 181 of Hulikere measuring 600 acres and was granted in favour of their favour through Darkasth. According to them, the said Darkasth was a Hangami saguvali i.e., temporary Darkasth. It is specifically averred that their father was in possession of the suit schedule property for a very long time till his death and later on they have continued to be in possession of the suit schedule property by paying necessary assessment to the Government at 50% each. Defendant No. 2 is stated to be in possession of the suit schedule property 5 to 6 years prior to filing of the suit. It is their case that defendant No. 2 has raised about 200 eucalyptus tress in the portion of the land. It is averred that the concerned authorities have given new survey number as Sy. No. 446 to the said land. It is their specific stand that defendant No. 2 is also in possession of 5.20 acres of land and new survey number assigned to 5.20 acres is Sy. No. 464 and the said land in Sy. No. 464 is situated on the east of the suit schedule property. On a plain reading of the stand taken up by the parties in their respective pleadings, it is very much evident that both the parties are claiming title to the suit schedule property.

The fact that Sy. No. 181 belonged to Government and it measured 600 acres is not in dispute. Defendants have averred that suit schedule property was granted to their father by means of temporary grant and he was in lawful possession and enjoyment of the same till his death and survey number assigned was Sy. No. 446. Therefore, it is relevant to scan the evidence placed on record. The Trial Court has come to the conclusion that plaintiff has not produced any documents in regard to the title acquired and identification of the land granted in his favour by the Tahsildar Mandya.

Ex. P-4 is the saguvali chit issued by Tahsildar Mandya on 2.8.1937. In saguvali chit there is a reference about Darkasth order dated 14.4.1937 passed in GDR No. 30/35-36 and extent of land granted in his favour is mentioned as 4 acres in Block I of erstwhile Sy. No. 181 of Hulikere. Ex. P-5 is the RTC of Sy. No. 446 measuring 1 Hectare 64 ares inclusive of 2 ares of Phut Kharab land and the name of K Lingaiah is not only mentioned in column 9 but is also mentioned in column 12(2) which is earmarked for mentioning the name of the person in possession and RTC is issued for the year 1988-89 and 1999-90. Similar is the incorporation found in Ex. P-6 RTC extract for the period 1990-91 and 19991-92. These two RTC extracts are relevant in the sense that they are dated prior to filing of the suit. Ofcourse in Ex. P-7, the Phatta book, the name of Honnappa and Indramma finds a place in respect to Sy. No. 446.

What is argued by the learned counsel for the respondents is that plaintiff has settled all the immovable properties he had possessed in favour of Honnappa and Indramma through registered settlement deed dated 17.10.1986 and he did not retain any property after settling his immovable properties. Therefore, it is argued that by no stretch of imagination he could be in possession of land in Sy. No. 446. Reliance is placed on Ex. D-16 original settlement deed stated to be executed by deceased plaintiff in favour of Honnappa and Indramma. On plain reading of Ex. D-16, it is evident that Sy. No. 446 does not find a place.

The learned counsel for the respondent has argued that boundaries mentioned in schedule appended to the plaint are incorrect and false and equitable relief of injunction cannot be granted. Schedule appended to the plaint relating to Sy. No. 446 measuring 1 hectare 64 ares is as follows:

"The property bearing new Sy. No. 446 (old Sy. No. 181) situated at Hulikere Village, Dodda Hobli, Mandya Taluk, measuring 1 hectare 64 acres of land bounded on the east government land, west land of Javaregowda, north land of Patel chikkaiah, and sound lands of Chikkahyda and Kalaiah."

The 2nd defendant-Chikkanna is examined as DW-1. He has asserted in his examination-in-chief that the Shanbhog and Patel of the village had given the schedule land to his grandfather on Hangami grant and that documents show such temporary grant. He has further deposed that he does not have any difficulty to produce documents to that effect. According to him, his grandfather had paid not only taxes, but also TT fine for being in unlawful possession of Government land. According to him, his grandfather had paid TT fine for 10-15 years. He has feigned ignorance as to whether his grandfather had mad an application to seek regular grant. It is his case that revenue authorities had surveyed the land so granted on temporary basis to his grandfather and had even prepared a sketch after drawing mahazar. The said sketch prepared by the revenue authorities has not been furnished. Hence an adverse inference will have to be drawn under Section 114(g) of the Evidence Act.

Per contra, reliance has been placed on the mahazar drawn by the Deputy Tahsildar, Nada Kacheri, in the presence of village accountant and a few villagers. It is marked as Ex. D-15 and does not bear any date, and the basis on which such mahazar was drawn. Therefore much credence cannot be attached to it, though it is marked in evidence. Mere marking of a document does not dispense with proof, as reiterated by the Hon''ble apex court in the case of L.I.C. of India and Another Vs. Ram Pal Singh Bisen, (2010) 125 FLR 325 : (2010) 3 JT 53 : (2010) 2 SCALE 121 : (2010) 4 SCC 491 : (2010) 1 SCC(L&S) 1072 : (2010) 3 SCR 438 : (2011) 1 SLJ 201 : (2011) 2 SLR 792 : (2010) 3 UJ 1354

The receipt patta produced and marked as Exs. D-10 and D-11 do not state anything about the land in Survey No. 446. If the said land was in their possession and had been entered in the revenue records, it would have found place in the receipt patta. Therefore, these documents are of no help to the defendant. According to DW-1, the boundaries of the schedule property are:

"East by: land belonging to him

West by: land of Javarappa

North by: land of Sadashivaswamy

South by: halla."

According to him, the land abutting the eastern side of the schedule property is his land bearing Survey No. 464. No document is forthcoming in regard to possession of land in Survey No. 464 by DW-1.

Exs. D-6 and D-7 are RTCs of land in Survey No. 181/B measuring 81 ares and the names of Honnappa and Indiramma are found as Khatedars. According to him, Survey No. 464 measuring 5 acres is in his possession and the same is not yet granted to him. Therefore mentioning of Government land as eastern boundary in the schedule appended to the plaint relating to 1 hectare 64 Ares of land in the plaint is justified.

According to DW-1, land in Survey No. 446 measuring 4 acres was being cultivated by his grandfather and later on his father was in possession of the same. His grandfather died when he (DW-1) was quit young. He has deposed that the land of Javarappa is to the west, and of Sadashivswamy to the north and halla to the south of the suit schedule property. The western boundary is shown as land of Javaregowda and southern boundary is shown as land of Chikkahaida and Kalaiah in the schedule.

DW-1 has further deposed in page 9 of his cross-examination about the boundaries of Survey No. 464 and 446. According to DW-1, land measuring 1 hectare 64 Ares in Survey No. 446 is bounded on the east by: Government land, west by: land of Javaregowda, north by: land of Chikkaiah and south by: land of Chikkahaida and Kalaiah. The boundaries so elicited from the mouth of DW-1 perfectly tally with the schedule appended to the plaint by the plaintiff. Therefore the averment made by the defendants that the schedule mentioned in the plaint is incorrect, is absolutely false. DW-1 has deposed that he has objection over this land mentioned above.

On the other hand, he has admitted that land in Survey No. 446 was part of earlier Survey No. 181 and has feigned ignorance about assigning new No. 446 after effecting Durasthi on the basis of grant. He has further feigned ignorance about the year in which Phodi work was done and the land records were subjected to Durasthi in order to assign new No. 446. He has feigned ignorance about the suggestion put to him that the survey authorities have effected pucca Phodi work on the basis of grant made in favour of the plaintiff.

In paragraph 12 of his deposition, DW-1 has specifically admitted that he has not appealed against the grant made in favour of the plaintiff and did not know whose name has found place relating to land in Survey No. 446. He has further admitted that he has not filed any appeal about the name of the plaintiff being incorporated relating to land in Survey No. 446. Such statutory presumption is available under Section 133 of the Karnataka Land Revenue Act, 1964, relating to the person whose name finds place in the revenue records.

Ex. P4 is a very important document issued by the Tahsildar based on the grant made in favour of the plaintiff. On the basis of the same, the name of Kempodeyara Lingaiah is found in Exs. P5, P6-RTCs. As already discussed, these two documents are prior to the filing of the suit.

The learned judge of the trial court as well as the appellate court have made a serious remark about the plaintiff not producing RTC or any records from 1937 up to the filing of the suit and hence no credence has been attached to Exs. P5 and P6-RTCs issued for the years 1988-89 to 1991-92. It is in this regard the decision rendered by a Bench consisting of three Hon''ble Judges of the apex court in the case of Ambika Prasad Thakur and Others Vs. Maharaj Kumar Kamal Singh and Others, (1966) 1 SCR 758 becomes relevant. Illustration (d) to Section 114 of the Evidence Act has been discussed at length relating to presumption of continuous entries in revenue records, both forward and backward. Paragraph 15 of the said decision is relevant and it is extracted below:

"15..................If a thing or state of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in illus. (d) to S. 114. In appropriate cases, an inference of the continuity of a thing or state of things backwards may be drawn under this Section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognized both in India. This is rule of evidence by which one can presume the continuity of things backwards. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.............."

If the name of the plaintiff had been entered in the revenue records without the basic document like Ex. P-4, saguvali chit, much credence could not have been attached. Both the courts below have lost sight of this document which is issued on the basis of grant. The order of grant also finds place in Ex. P-4. He has admitted that deceased plaintiff and his wife were living together. In fact Ex. D2 is the RTC relating to Survey No. 181/A2 measuring 81 ares. The name of Lingaiah finds place in this record. What is sought to be argued before this court is that if at all the plaintiff was in possession of the land in Survey No. 181, it must relate to Ex. D2 and nothing beyond. This court is unable to accept the same, particularly in the light of RTCs at Exs. P5 and P6 produced by the plaintiff supported by saguvali chit.

The first appellate court is the final court of facts. It has to re-assess the evidence in right perspective, that too, after framing proper points for consideration in terms of Rule 31(a) of Order XLI, C.P.C. In fact no points have been framed by the first appellate court. Heavy reliance is placed on Ex. D-16, original settlement deed under which deceased plaintiff chose to settle certain properties amongst his daughters and son-in-law. The trial court has failed to note that Survey No. 446 does not find place in Ex. D-16. Non-mentioning of the name of the plaintiff in the patta book has been blown out of proportion. On the other hand, the learned judge of the trial court as well as the appellate court have failed to draw statutory presumption available under Section 133 of the Land Revenue Act and the credibility to be attached to Ex. P4-saguvali chit issued by the Tahsildar which is an important document evidencing title.

In column No. 10 of Ex. P5 and P6, the nature of acquisition is mentioned as ''Pitra''. The learned judge of the appellate court has considered this word as ancestral. Even if the said word is considered as meaning ancestral, it does not take away the effect of other entries in these two important revenue records. On the other hand, the learned judge has observed that the plaintiff has placed material to probablise that pursuant to the grant in the year 1937, revenue records showed his name till 1987. The learned judge has observed in paragraph 13 that burden was on the defendants to disprove the same. He has further held that the defendants have not placed any document to probablise continuous possession pleaded by them.

The learned judge of the first appellate court has observed in paragraph 14 that the plaintiff has not examined anybody to probablise possession being held by him. In the light of the very admission elicited from the mouth of DW-1 regarding the exact boundaries of the schedule property, non-examination of any witness on behalf of the plaintiff would not be of any consequence.

In paragraph 16 of the judgment of the first appellate court, it is observed that Exs. D7 to D11 probablise the stand of the defendant in the written statement. It is further observed that nothing is elicited by the plaintiff as to why these documents should not be believed. Such observation is wholly misconceived, inconsistent and improper. Exs. D7 to D11 do not disclose that the grandfather of DW-1 possessed land in Survey No. 446 and was in possession of the same. Such observation is without any basis whatsoever. There is clear misreading of the oral and documentary evidence by the first appellate court which is the final court of facts.

In fact Exs. P4 to P6 are very important documents which have a bearing of the schedule property and they have not been properly analyzed by the trial court and the first appellate court. It is in this regard proper question of laws has been framed on 6.6.2008. The learned judge of the trial court as well as the appellate court have committed a serious error and illegality in not appreciating documentary evidence in the light of admissions elicited from the mouth of DW-1 who asserts that his grandfather was granted the schedule property on temporary basis and he was in possession of it till his death and later on his father was in possession of the same. Hence substantial question of law No. (1) is answered in the negative.

Substantial question of law No. (2):

The son-in-law of the plaintiff is examined as PW-3 on the basis of power of attorney executed by Puttamma, the plaintiff. What is argued before this court is that PW-2 is not competent to tender evidence as he is not a member of the family of Puttamma. Though he is not a member of the family of Puttamma''s family and was not born when the grant was made, he is competent to produce documents in support of the case of the plaintiff. At least to that extent, the evidence of PW-3 definitely could be taken into consideration.

Ex. P-9 is the certified copy of the order sheet relating to Darkhast relating to Survey No. 181. As could be seen from the typed copy of Ex. P-9, a sum of Rs. 8/-was collected as market price from the plaintiff-Kempodeyara Lingaiah, s/o Lingaiah. The Tahsildar had ordered the office to verify whether purchase money has been credited to the Government pursuant to sale on 26.11.1936. The name of the plaintiff is found as the person who had purchased the schedule property in public auction.

Ex. P-10 is the saguvali chit issued in favour of the plaintiff pursuant to Ex. P9 Ex. P11 is the copy of Tippani relating to Survey No. 446 prepared by survey authorities by phoding Survey No. 181 on the basis of documents. There is a specific reference about the block number being phoded in No. 181 and new No. 446 being assigned. The said survey according to Ex. P11, was conducted in the year 1939 and the same is entered in the Pahani. This is a certified copy of a public document issued by the authorities and there is no reason to disbelieve the same. There is also a specific reference about this land being in possession of Kempodeyara Lingaiah, s/o Lingaiah and the survey being conducted on 29.6.1939. Consequently his name came to be entered in the survey records in respect of Survey No. 181 1 hectare 64 ares inclusive of 2 guntas Kharab land and it is disclosed in Ex. P-12.

Ex. P13 is the index of lands in which the name of Lingaiah is found as Khatedar. Ex. P-14 is another index of lands in respect of Survey No. 446 in which the name of Lingaiah is found. Ex. P-15, RTC for the years 1982-83 to 1986-87 also contains his name in column Nos. 9 and 12(2) as Khatedar and in possession. As already discussed, the decision rendered by the Hon''ble apex court in the case of AMBIKA PRASAD (supra) is aptly applicable to the facts of this case.

The name of Lingaiah is also found in the RTCs for the years 1988-89 and 1989-90 in respect of Survey No. 446 as the person in possession and also as Khatedar relating to 1 hectare 64 ares inclusive of 2 guntas of Kharab land. Ex. P20 is Jameen Phasal and boundaries register extract issued for the year 1959-60 in respect of Survey No. 446 and the name of Lingaiah is found as the person in possession of 4.02 acres inclusive of 2 guntas of Kharab land along with other grantees. His name also finds pace relating to Survey Nos. 445 to 457 and 454.

Ex. P-21 is Pahani Phasal for the year 1961-62 incorporating the name of Lingaiah relating to Survey No. 446. Similar is the case with Ex. P-22 issued for the year 1965-66. Ex. P-23 is another Pahani Phasal Patrika incorporating the name of Lingaiah relating to Survey No. 446 for the year 1968-69. These documents were prior to the coming into force of the Karnataka Land Revenue Act, 1964, and rules framed thereunder. Record of Rights and Patta, being comprehensive revenue records, are official records after the Act came into force. Prior to that, RoR and Phasal were relevant and certified copies have been produced. They have been issued by none other than the concerned Tahsildar, who is the lawful custodian of these registers.

Thus plaintiffs have produced sufficient materials to support acquisition of title by Lingaiah on the basis of the bid made by him in the auction by the Tahsildar and saguvali chit being issued consequently, incorporating his name by assigning a new survey number. This is done after conducting Phodi work. In fact, Honnappa is the best person to speak as to whether Survey No. 446 was settled in his favour as per Ex. D-16, settlement deed. He has specifically deposed that Survey No. 446 has not been settled in his favour.

Viewed from any angle, plaintiffs have furnished acceptable supporting documents in respect of their stand taken in the plant and they have been able to effectively discharge the initial burden cast on them. They have not only produced documents to support their possession of the land, but also documents under which title was acquired by Kempodeyara Lingaiah. On the other hand, defendants have not been able to produce documents to probablise that the schedule land had been temporarily granted by the Shanbhog and Patel in favour of their grandfather and it was in his possession till his death. The documents produced on behalf of the defendants do not probablise in any manner about their continuous possession of the suit schedule property. In between the two, it is the plaintiffs who have been able to make out a clear case of acquisition of title and consequential possession. Thus substantial question of law No. (2) will have to be answered holding that additional evidence placed on record is sufficient to grant the relief of permanent injunction apart from the evidence already placed on record prior to recording of evidence under Order XLI Rule 27, C.P.C.

In view of the finding on the second substantial question of law, the appeal will have to be allowed and the judgment and decree of the trial court and affirmed by the first appellate court will have to be set aside and consequently suit is to be decreed as prayed for.

In the result, the following order is passed:

ORDER

"The appeal filed under Section 100, C.P.C. is allowed with costs throughout. The judgment and decree passed by the trial court in O.S.744/92 and affirmed by the first appellate court in R.A.299/2004 (old No. 38/2000) are set aside. The suit of the plaintiff in O.S.744/92 which was pending on the file of Civil Judge (Junior Divn. Mandya, is decreed. The defendants are restrained from interfering with the peaceful possession of the plaintiffs by way of permanent injunction."