Rajasing vs Narayanaswamy

Ravi Malimath, J.—The case of the plaintiff is that he is the absolute owner and in possession of the suit schedule property viz., the house site bearing No. 13, morefully, described in schedule to the plaint. It was granted to him by the Government through the Block Development Officer, Kolar by virtue of a Hakku Patra in the year 1982. Thereafter, the khata was changed onto his name by the Grama Panchayath and taxes have been paid by him. He constructed a thatched hut and residing in it. Thereafter, the Hut collapsed. The defendant being a powerful person attempted to grab the property of the plaintiff. Hence, the instant suit was filed seeking for a declaration of title and for permanent injunction.

On service of summons, the defendant entered appearance and tiled his written statement denying the plaint averments. He disputed the title of the plaintiff as well the error in description of the properties.

It is his case that he is the owner in possession of the vacant site bearing Assessment No. 151 measuring 30x 15 feet. The said property was originally granted to Kempanna, the father of the defendant and after his death, the khata of the said property been changed in the name of the defendant. The Panchayath endorsements also evidence the same that there is no site bearing No. 13 and old khata No. 79 and new Khata No. 22. Hence, he sought for dismissal of the suit.

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

(i) Whether the plaintiff proves that he is the absolute owner of suit schedule property and he acquired the same under a Hakku-Patra issued in the year 1982?

(ii) Whether the plaintiff proves that he been in possession and enjoyment of the suit schedule property?

(iii) Whether the plaintiff proves the alleged interference?

(iv) Whether the defendant proves that the suit is not properly valued?

(v) Whether the defendant proves that the plaintiff created and concocted the Hakku-patra and suit schedule property not in existence?

(vi) Whether the plaintiff proves that he is entitled for the relief of declaration and permanent injunction?

(vii) What order or decree?

The plaintiff examined himself as PW1 along with two other witnesses and marked 5 documents. Ex.P6 was marked in the cross-examination. On the other hand, the defendant examined himself as DW1 and 2 others and marked 19 documents. Issue Nos.1 to 4 and 6 were held in the negative and issue No. 5 was held in the affirmative. The suit was dismissed. Aggrieved by the same, the plaintiff filed an appeal, which was also rejected, hence, the present second appeal.

The learned Counsel for the appellant contends that the impugned judgment and decree are erroneous and are liable to be interfered. Substantial material been produced in order to prove the title, possession of the plaintiff over the suit schedule property. Both (he Courts below have failed to consider the same and have erroneously dismissed the suit. I.A. 1/11 is filed by the appellant/plaintiff under Order 41, Rule 27 of Code of Civil Procedure seeking to examine the Government Officials in order to prove Ex.P1-the Hakku Patra. Hence, it is also pleaded that the application be allowed by permitting him to examine the officials and produce the documents. On the other hand, the learned counsel for the respondent/defendant contends that there is an error in respected of the measurement of the property; that the plaintiff failed to establish the title and there are no reasons for allowing the application. Hence, he sought for dismissal of the appeal.

On hearing learned counsel, I am of the considered view that there is no merit in this appeal.

The application seeking to examine the Block Development Officer and the Village Accountant does not carry any reasons at all except narrating the manner, in which the suit and appeal have been considered. The only reason assigned is that the plaintiff being a poor and rustic villager had no knowledge about the result of the non-examination of the said officials to prove Ex.Pl. After considering the reason explained in the application filed under Order 41, Rule 27 of Code of Civil Procedure, I am of the view that none of the parameters of law have been assigned by the plaintiff to allow the same. Even otherwise, the lack of knowledge with regard to the non-examination of the officials, is well within the knowledge of the counsel and the lack of knowledge of the plaintiff cannot constitute a ground. Hence, I find no reasons to allow the application. The application is accordingly rejected.

So far as the merits are concerned, the trial court was of the view that Ex.P 1, the Hakku Patra viz., the title of the plaintiff''s property contains various alterations. It was for the plaintiff to explain the said alterations. He failed to do so. It is his contention that the alterations have been made by the concerned authorities and therefore, requires to be accepted as it is. The trial Court was of the view that until the officials who carried out the corrections are examined, the altered Hakku Patra cannot be accepted. Since, there is a failure on the part of the plaintiff to examine the authors of the correction, the title of the plaintiff was held to be doubtful. Even insofar as injunction is concerned, the trial court was of the view that the suit schedule property as mentioned in the plaint measures 35x30 ft. However, Exs.P2 and P3 would disclose that the property measures 30x30ft. Therefore, the description of the property does not tally. Even otherwise, it is a vacant site and when the title itself is in dispute and the measurements of the property are also being disputed, the plaintiff would not be entitled for any decree.

The reasons assigned by the trial court are just and proper. I do not find any error that calls for interference. The entire case of the plaintiff revolves only around facts. No substantial question of law arises for consideration in this appeal. The material and evidence on record been rightly appreciated by the trial court, which does not call for any interference by this Court. Consequently, the appeal being devoid of merit is dismissed. The judgment and decree of both the Courts below are con firmed. No costs.