Ramegowda and Others vs Chikkanna

Ravi V. Malimath, J—The case of the plaintiff is that the suit schedule properties are ancestral joint family properties of the plaintiff and his brothers. That the father of the plaintiff by name Thimmegowda, who died about 5 1/2 years ago before filing of the suit was managing the joint family properties. After his death, the plaintiff became the manager of the joint family.

The suit schedule properties are lands, which lost the characteristics of agricultural land and are fit for only residential purpose. The members of the joint family of the plaintiff are residing in the suit schedule properties by constructing a shed for residence and also another shed to store the agricultural equipments and tether the cattle and other livestock. The plaintiff has also put up a foundation in the suit schedule properties for the purpose of construction of farm house and the family of the plaintiff has grown coconut trees, neem trees, etc.

That the defendants having no manner, right title or interest over the suit schedule properties and were never in possession and enjoyment of suit schedule properties in any capacity. Inspite of which, the defendants about a week before filing of the suit attempted to trespass over the suit schedule properties. Hence, they filed the instant suit seeking a decree of permanent injunction.

On service of suit summons, the defendants entered appearance and denied the plaint averments. They denied the case of the plaintiff that the plaintiff is the owner of the suit schedule properties being the joint family member. They pleaded that the father of the defendant Nos. 2 and 3 was in possession and enjoyment of the suit schedule properties along with other properties as the absolute owner. That the father of the plaintiff is in possession and enjoyment of survey No. 1/1 to an extent of 2 1/2 guntas and in survey No. 1/2 to an extent of 3 guntas. Till his death, the father of defendant Nos. 2 and 3 were in possession and enjoyment of the said properties as absolute owners.

Their father mortgaged the suit schedule properties in favour one Bhadraiah @ Doddanna, to discharge the loans. After the death of the father, defendant Nos. 2 and 3 divided the properties about 15 years prior to filing of the suit. The property in dispute have fallen to the share of the second defendant in the family division. About 8 years ago, the defendant Nos. 2 and 3 have discharged the mortgage amount. Since then, defendant Nos. 2 and 3 are in possession and enjoyment of suit schedule properties. Inspite of execution of the lease deed dated 22.07.1975, the father of the defendant Nos. 2 and 3 and the defendants continued to be in possession of the suit schedule properties. Therefore, the suit schedule properties are the absolute properties of defendants Nos. 1 and 2. They have also raised coconut trees, neem trees., etc. and they are residing in the suit schedule properties by constructing a shed and another shed to store agricultural equipments.

That the grama panchayat accepted the katha in favour of the first defendant to an extent of 40x27 feet and the property was numbered as 57. Subsequently, the first defendant has changed the katha in favour of his wife. Now the katha stands in the name of the wife of the first defendant, who has put up a basement in the property to an extent of east to west 35 feet, north to south 12 feet after obtaining building license.

The Grama Panchayat has also accepted the katha in favour of the second defendant to an extent of east to west 38 feet, north to south 125 feet and was numbered as 2/B in janjar No. 4. The plaintiff by taking undue advantage of the RTC entries cannot seek possession of the suit schedule properties. The plaintiff has given wrong description of the suit schedule properties by giving wrong boundaries. Hence, it was pleaded that the suit be dismissed.

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

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

Whether the plaintiff proves that the defendants are interfering with his peaceful possession and enjoyment of the suit schedule property?

Whether the plaintiff is entitled for the relief as claimed?

What order or decree ?"

The plaintiff was examined as PW-1, among two other witnesses and 12 documents were marked. The second defendant was examined as DW-1 along with two other witnesses and 25 documents were marked.

All the issues were held in the negative and the suit was dismissed. Aggrieved by the same, the plaintiff preferred a regular appeal. The appellate court allowed the appeal by setting aside the judgment and decree of the trial court and decreed the suit of the plaintiff. The defendants were restrained from interfering with the plaintiffs possession and enjoyment of the suit schedule properties. Aggrieved by the same, the defendants have filed the present second appeal.

Sri. G. Papi Reddy, learned counsel for the appellants contend that the order of the first appellate court is erroneous. That the first appellate court failed to consider the material and evidence on record. That when there is a dispute with regard to title, an injunction cannot be granted. The title would have to be first decided and only then, the plea of the injunction can be granted. That the plaintiff has failed to prove by material or evidence that he is the owner of the suit schedule properties. That it is the appellants/defendants who are in possession of the suit schedule properties.

On the other hand, Sri. D.S. Hosmath, learned counsel appearing for the respondent defends the impugned order. He contends that the first appellate court has rightly decreed the suit of the plaintiff. That substantial material which was not considered by the trial court was rightly considered by the first appellate court, while decreeing the suit. That the properties have come down the generations and documents to the said effect have been produced. Except the mortgage deed and the tax paid receipts, there are no other documents that would support the case of the defendants, that they are the owners in possession of the suit schedule properties.

Heard learned counsels.

The following substantial questions of law arises for consideration.

"i. Whether the judgment and decree of the first appellate court is perverse in misreading the evidence and material on record, with regard to the possession of the plaintiff over the suit schedule properties?

ii. Whether the first appellate court was justified in reversing the findings recorded by the trial court?

iii. Whether the judgment and decree of the trial court is perverse, that calls for any interference?"

In order to prove their case, the plaintiff relied on various documents in order to show that he is the owner in possession of the suit schedule properties. The plaintiff has produced Exhibits-P1 to P12 to establish title and possession. Exhibit-P9 would reveal that the suit schedule properties belong to one Keri Kempaiah, namely, the grandfather of the plaintiff. That the suit schedule properties were changed to the name of the plaintiff''s father in the year 1979-80. Ever since then, the name of the plaintiff''s father continues in the revenue records.

On the other hand, the defendants'' counsel contends that the suit schedule properties are their absolute properties and they have acquired the same through their father. However, there are no revenue records pertaining to the lands in question at Survey Nos. 1/1 and 1/2 referred to in Exhibit-D1. DW-1 has categorically admitted in the cross-examination, that he and his brother partitioned various existing properties and they actually do not own any self-acquired properties of their own.

Therefore, if they are the actual owners of 5 1/2 guntas, which is more than the extent referred to in Exhibits - D3 and D5, there was no reason for them to approach the concerned Grama Panchayat to enter khatha in their name to a smaller extent, to which they claim to be the owners. Admittedly, the first defendant is only claiming a smaller extent measuring 27 x 40 feet. It was deposed that the first defendant is residing with the family members by putting up a shed. There is no reference as to what is the extent of the shed and what is the actual extent of foundation that he has laid in the suit schedule properties.

The house assessment extracts produced by the defendants are neither a document of title nor document of possession. The house assessment extracts shows that taxes are being paid.

The katha standing in the name of the plaintiff''s grand-father was changed to the name of plaintiff''s father as per the Village Accountant shara. In terms of Exhibit-P10, Haddubasthu, would indicate that the plaintiff''s father got the properties divided in respect of properties bearing survey Nos. 1/1 and 1/2. When the plaintiff has produced substantial material to show that he has inherited the properties from the grand-father and the records of rights showed the name of the grand father and thereafter the father of the plaintiff, that would be sufficient to accept the case of the plaintiff, that he has inherited the properties from his grand father. It is herein that the trial court committed an error in declining to accept the said documents. Therefore, the first appellate court, on appreciating the evidence once again was of the view that the trial court miserably failed in properly appreciating the documents filed by the plaintiff, in order to show his ownership and possession of the suit schedule properties.

What is being contended by the appellants/defendants is that there is a serious dispute with regard to the title of the properties. That the defendants claim title to the suit schedule properties. The suit is not for one for title but for bare injunction. When the title itself is disputed, no injunction can be granted.

The defendants in order to establish their case placed reliance on the tax paid receipts and mortgage deed in terms of Exhibit-D1. It is therefore contended that the mortgage deed would clearly show that the defendants are the owners of the suit schedule properties. It is needless to state that the mortgage deed is not a document of title. It is a document evidencing alienation between two parties. It does not necessarily mean that one of them is the owner of the suit schedule properties. Except the mortgage deed, there is no other deed produced by the defendants in order to show as to how they came into the ownership or possession of the suit schedule properties. By placing reliance on Exhibit-D1, it cannot be said that the defendants are to be held as owners in possession of the suit schedule properties.

The other documents relied upon are Exhibits-D7 to D13 namely, the tax paid receipts. All these are subsequent to the suit. Exhibit-D12 is the tax paid receipt for the year 1994, in respect of property which is not in dispute property herein. Therefore, merely placing reliance on Exhibit-D1, it cannot be said that the title of the plaintiff is disputed by the defendants. Therefore such a contention cannot be accepted.

For the aforesaid reasons, I'' am of the considered view that the first appellate court has rightly considered the evidence and material on record with regard to the possession of the plaintiff. It cannot be said that the judgment and decree of the first appellate court is perverse. The first appellate court was therefore justified in reversing the findings recorded by the trial court. Under these circumstances, no interference is called for. The substantial questions of law are accordingly answered. In view of the answer to the substantial questions of law, the appeal is dismissed.

No costs.