Saroja vs Shanthamma

A.V. Chandrashekara, J.—Legal representatives of deceased defendant Chikkarangaiah are before this Court by filing an appeal under Section 100 of CPC. Respondent herein is the lone plaintiff in the suit bearing O.S. 182/1994 which was pending on the file of Court of Civil Judge (Jr.Dn.) & JMFC, Hoskote.

Parties will be referred to as per their ranking before the Trial Court.

Suit had been filed for the relief of permanent injunction with a request to restrain deceased defendant with interfering with the process of completion of construction work and possession of the plaintiffs house property situated on Site No. 3 on an area of 16X50 feet of Kasaba Hobli, V.V. Extension, Hoskote described as suit schedule property.

According to the plaintiff, defendant is the absolute owner of the suit schedule property and this is part and parcel of the larger site belonging to the defendant. Plaintiff is stated to have put up construction on a mistaken identity on the property of the defendant. She came to know that property over which she had put up house belonged to defendant only, when construction was almost completed. According to the plaintiff, defendant had agreed to pay entire cost borne by her to put up construction and she shall hand over the possession to the defendant. Since defendant did not keep up his words in accordance with the agreement dated 1.11.1992 and since defendant tried to interfere with the possession, she was forced to file a suit for the relief of permanent injunction.

Defendants have filed a detailed written statement denying all the material averments calling upon the plaintiff to strictly prove the contents of the plaint. They have specifically denied that defendant was trying to interfere with construction put up by the plaintiff. Further they has denied the agreement entered into between deceased defendant and plaintiff and demand for payment of remaining consideration. According to the legal representatives of deceased defendant, suit is not maintainable against true owner. With these pleadings, they prayed for dismissal of the suit.

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

"1) Whether the plaintiff proved that she is in lawful possession of the plain schedule property as on the date of suit?

2) Whether the plaintiff further proved the alleged interference of the defendants as stated in the plaint?

3) Whether the plaintiff is entitle for the relief as sought for?

4) What decree or order?"

Power of attorney holder of plaintiff is examined as PW-1 and has got marked 13(a) exhibits on his behalf. On behalf of the legal representatives of defendant, Saroja is examined as DW-1 and one Mohan is examined as DW-2 and as many as 2(a) exhibits have been marked.

After hearing the learned counsel for the parties, the Trial Court has answered issue-1 in the negative and issue-2 as "does not survive for consideration" and ultimately suit came to be dismissed. It is this judgment which was called in question before the FTC-III, Bangalore Rural District, Bangalore in R.A. No. 231/2003.

After hearing the learned counsel for the parties, the First Appellate Court had framed following points for its consideration:

"1. Whether the plaintiff proves that she is in possession of the suit schedule property as on the date of filing of the suit?

Whether the plaintiff proves the alleged interference by the Defendant?

Whether the plaintiff is entitled to the relief as sought for?

Whether the impugned judgment and decree passed by the court below is valid and sustainable in law?

What order?"

Ultimately, the said appeal was allowed on 9.3.2007 and granted limitated injunction directing the legal representatives of the deceased defendant not to evict the plaintiff except in accordance with law.

After hearing the parties, following substantial question of law was framed on 19.1.2010?

"Whether the respondent who was the plaintiff before the Trial Court could seek an injunction against the true owner, the appellant herein, which is an admitted circumstance?"

Admittedly, plaintiff is in possession of the property having put up a building in the suit schedule property. She has clearly admitted that property over which she has put up a building absolutely belonged to defendant and it is part and parcel of a large site held by the defendant. Agreement has been entered into the between deceased defendant and plaintiff on 1.11.1992 regarding mistaken identity. Of course defendants have subsequently denied the execution of such agreement.

Whatever it may be, plaintiffs possession of the suit schedule property is clearly admitted by the defendant. It is not as though plaintiff has put up a house overnight, infact, it has taken months to put up a building in the schedule property belonging to the defendant. Therefore, possession of the plaintiff cannot be considered as unlawful ipso facto, since she has been in possession from a reasonable length of time, her possession could be considered as "settled possession", which is liable to be disturbed only in accordance with law.

The relief granted by the First Appellate Court is not a blanket relief of permanent injunction. What is clearly observed by the First Appellate Court is that defendant cannot interfere with the possession of the plaintiff except taking possession in accordance with law. There could be an injunction even against the true owner and a person claiming injunction against the true owner must be in possession for a reasonable length of time and the said possession cannot be called as unlawful possession and it is to be termed as "settled possession". This is evident from the decision of the Hon''ble Apex Court in the case of Ram Rattan and Others Vs. State of Uttar Pradesh, .

What is reiterated in Ram Rattan''s case is that true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act of process of trespassing and has not accomplished his possession; but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.

In the present case, plaintiff has trespassed into possession of the defendant by mistaken identity and has put up construction. As already discussed, construction was not put up overnight and it took months and this was well within the knowledge of the defendant, who is the owner of the remaining extent of land.

In this view of the matter, the decision referred to supra is aptly applicable to the facts of the present case. Hence, First Appellate Court has adopted right approach to the real state of affairs and has not committed any illegality or perversity. Hence, appeal will have to be dismissed by confirming the judgment and decree of the First Appellate Court.

ORDER

Appeal filed under Section 100 of CPC is dismissed by upholding the judgment and decree of the First Appellate Court passed in R.A. 231/2003.

Notwithstanding the dismissal of the appeal, defendant are at liberty to seek possession in accordance with law since plaintiff is only in settled possession.

Parties to bear their costs.