Raju vs Baburao

A.V. Chandrashekara, J.—Plaintiffs are before this Court as they axe aggrieved by the dismissal of their suit filed for the relief of permanent injunction in O.S. No. 185 of 2005, which was pending on the file of the Court of Principal Civil Judge (Junior Division) and JMFC, Chikodi and the affirmation of the same in regular appeal filed u/s 96 of Civil Procedure Code, 1908 in R.A. No. 61 of 2007, which was pending on the file of the FTC-I, Chikodi, dated 28-8-2009. Respondents herein were the defendants in the said suit. Parties will be referred to as plaintiffs and defendants as per the their ranking given in the Trial Court. According to the plaintiffs, suit had been filed in respect of an open space bearing GPC No. 489 of Nainglaj/Village, Chikodi Taluka abutting the house of the plaintiffs. It is stated to be measuring 18.5 feet North and 16.3 feet East. The case of the plaintiffs is that suit schedule property i.e., the house and the open space abutting the house was their ancestral property and they have been enjoying the same from the time of their grandfather and great grandfather. Plaintiffs are stated to be residing in the suit house enjoying adjoining open space as described in the schedule. Defendants are stated to be strangers and since they attempted to interfere with their possession, plaintiffs had to file a suit for permanent injunction.

Defendants have denied all the material averments and have called upon the plaintiffs to strictly prove the contents of the plaint. According to defendant 1, his name is till entered in the records of property bearing GPC No. 489 even prior to 1970 and it continues to be in his name. His father one Mr. Rayagouda was Policepatil of this village and died in the year 1958 leaving behind him defendant 1 and other four sons. After defendant 1 constructed a building over the open space prior to 1955 with black tiles and some open space is left surrounding the suit property and the building measure East-West 24'', South-North 40'' having main door of 6'' width on northern side and there are ten windows on four sides of the building and the rain waterfalls from four sides of the building, and there are two water tanks on southern side of the building and the building was used for Flour Mill. Nobody had questioned the title or possession for the past 55 years and that the plaintiffs have filed a frivolous suit and hence they prayed to dismiss the suit. On the basis of the above pleadings, following issues came to be filed:

(i) Whether the plaintiffs prove that, they are in lawful possession and enjoyment of the suit property as on the date of suit?

(ii) Whether the plaintiffs further prove, the alleged interference by the defendants?

(iii) To what order of decree?

Plaintiff 1 is examined as P.W. 1 and two witnesses have been examined on his behalf. Defendant 1 is examined as D.W. 1 and on his behalf, as many as four witnesses have been examined. 11 exhibits have been got marked on behalf of the plaintiffs and 21 exhibits, have been got marked on behalf of the defendants. After hearing the arguments and assessing the evidence, both issues have been answered in the negative and consequently suit is dismissed. As against the said judgment and decree, an, appeal came to be filed u/s 96 of C.P.C. in R.A. No. 61 of 2007. The learned Judge of the First Appellate Court has also dismissed the appeal and thereby the judgment of the Trial Court is confirmed. These concurrent findings which are called in question before this Court. The learned Counsel for the appellants has submitted his arguments.

Overwhelming evidence have been placed on behalf of the defendants to show that he has been in possession of the house, open space and ''the surrounding suit schedule property. Admittedly, name of defendant 1 is appearing as the person in possession in respect of the records maintained by the Panchayat right from the year 1971 till the date of filing of a suit. The burden was heavy on the plaintiffs to discharge the initial burden cast upon them. The initial burden has not been effectively discharged. Weaknesses, if any, of the defendants cannot be a trump card in favour of the plaintiffs, unless the initial burden is discharged, as contemplated u/s 102 of the Indian Evidence Act, 1872. Whether defendants has the title are not is not to be decided by this Court, more particularly, in an injunction suit. Suffice to state that there is acceptable evidence in regard to the house in which the defendant is living and the open space surrounding the area. Though the name of grandfather of the plaintiffs is shown as Kathadar, the name of defendant 1 is found as the person in possession. This document itself is not in favour of the plaintiffs. Exs. P. 4 to P. 9 the photographs do not disclose anything about possession of the suit property by the plaintiffs. If really plaintiffs were in possession of the property for quite a long time, they could have furnished the voters list and other relevant documents. Taking all these into consideration, the Trial Court has dismissed the suit by giving proper findings that too after assessing evidence on the touchstone of intrinsic probabilities. The First Appellate Court has concurred with the judgment of the Trial Court by giving cogent and valid reasons. Hence, there are no merits in the present appeal and the appeal will have to be dismissed. There is no scope to interfere with the concurrent findings on facts:

ORDER

The appeal filed u/s 100 of C.P.C. is dismissed as unfit for admission by confirming the judgments of the Trial Court as well as the First Appellate Court.

Notwithstanding the dismissal of the appeal, nothing comes in the way of the plaintiffs filing a comprehensive suit for declaration of title and injunction or possession, as the case may be, if he so advised, in terms of the principles laid down by the Hon''ble Supreme Court in the case Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, , as they have emphatically denied the right of the plaintiffs in respect of an open space and the abutting house. In such an event, the respondents/defendants are at liberty to take any stand they deem it proper inclusive of one touching limitation.

There is no order as to costs.