Saraswathamma vs Ramappa

Ravi V. Malimath, J.—It is the case of the plaintiff that he is the absolute owner and in possession and enjoyment of the suit schedule property which originally belonged to Smt. Mallamma W/o. Gopalappa and Smt. Venkatamma W/o. Narayanappa. On 18.06.1997, they had agreed to sell the property and executed a sale agreement and delivered possession of the schedule property and also handed over the original title deeds pertaining to the suit schedule property to the plaintiff. On 24.01.2003, both Smt. Mallamma and Smt. Venkatamma executed a registered sale deed in favour of the plaintiff and all the revenue documents have been transferred to the name of the plaintiff. The defendant who has no manner of right, title possession over the schedule property attempted to interfere with the plaintiffs peaceful possession over the suit schedule property. On 20.07.2003, the defendant along with supporters came near the property and threatened the plaintiff and also made attempts to dispossess the plaintiff. Hence, he filed the instant suit for the relief of permanent injunction.

On service of notice, defendant entered appearance and denied the plaint averments contending that the schedule property originally belonged to the father-in-law of the defendant and Sy. No. 13 originally measuring 4 acres 30 guntas including 2 acres of kharab. Out of this, 2 acres of land has been gifted to Smt. Mallamma and Smt. Venkatamma by the father-in-law of the defendant i.e., father of Mallamma and Venkatamma. The said Mallamma and Venkatamma had approached the defendant expressing their intention to sell the property for a valuable consideration of Rs. 40,000/- and the defendant accepted the offer and on 20.11.1997. Both Mallamma and Venkatamma by receiving advance amount of Rs. 30,000/- from the defendant executed sale agreement in favour of the defendant in respect of the schedule property in the presence of witnesses. They also agreed to receive the balance sale consideration Rs. 10,000/- from the defendant at the time of registration. It is further contended that the defendant was ready and willing to perform her part of the contract but Smt. Mallamma and Smt. Venkatamma refused to perform their part of contract. In this regard, on 21.03.2002, defendant issued a legal notice and filed the suit in O.S. No. 46/2003 for specific performance which is pending. Hence, it is 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 lawful possession and enjoyment of suit property as on the date of filing of this suit?

Whether the plaintiff proves that the alleged interference by the defendant?

Whether the plaintiff is entitled for the relief of permanent injunction against the defendant as prayed?

What order and decree?"

In order to prove the case, plaintiff got examined as PW-1 and another witness was examined as PW-2 and 6 documents were marked. On behalf of the defendant, three witnesses were examined and 10 documents were marked. The trial Court held the issues in the negative and dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff filed an appeal, wherein the appeal was allowed. The judgment and decree of the trial Court was set aside. The suit of the plaintiff was decreed restraining the defendant permanently from interfering in the possession of the suit schedule property of the plaintiff in any manner. Hence the present second appeal by the defendant.

The learned Counsel for the appellant contends that the impugned order is bad in law and liable to be set aside. That the first Appellate Court committed an error in holding that the plaintiff is in possession of the suit schedule property. Hence, he prays that the appeal be allowed by dismissing the suit.

On the other hand, the learned Counsel for respondent defends the impugned order.

On hearing learned counsel, I ''am of the considered view that there is no merit in this appeal. The plea of the plaintiff is that he entered possession of the suit schedule property based on the agreement to sale. Thereafter, the sale deed was executed and he is put in possession of the same. The trial Court while considering the said fact was of the view that there is no material to show that the plaintiff was put in possession of suit schedule property based on the agreement to sell. However, the first Appellate Court while considering the evidence on record relied not only on the agreement to sale but also the plea of the plaintiff that the regular sale deed has been executed in terms of Ex. P4 dated 24.01.2003. Even though the witness was cross examined, nothing worthwhile has been elicited in order to disprove the contents of Ex. P4. The gift deed dated 04.08.1971 has been produced at Ex. P5 which has been executed by father of Venkatamma and Mallamma in their favour relating to the suit schedule property. Ex. P6 is the sale agreement dated 18.06.1997 executed by the vendor of the plaintiff in favour of the plaintiff. On considering the same, the first Appellate Court was of the view that even though the defendant has filed the suit for specific performance, the plaintiff has substantially shown that he is in lawful possession of the suit. Hence, I ''am of the considered view that the reasoning of the first Appellate Court is just and proper and no interference is called for. The question of specific performance is not a germane consideration for disposal of this matter. The present suit is a suit for bare injunction. There is sufficient material to show that the plaintiff is in possession of the same. Defendant has failed to prove that she is in possession of the suit schedule property. Further more, the entire case of the appellant revolves around facts. No substantial question of law arises for consideration in this appeal. Consequently, the appeal being devoid of merit is dismissed.

Since the issue of possession arising in this suit is also an issue emanating from the suit for specific performance filed by the defendant in O.S. No. 46/2003, necessarily decretal of this suit would be relatable to the judgment and decree to be passed in that suit.