Sarojamma and Others vs Imamsab and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs'' regular second appeal against the judgment and decree dated 21.10.2014 made in R.A. No. 59/2011 on the file of the Senior Civil Judge and JMFC, Hirekerur confirming the judgment and decree dated 9.1.2008 passed in O.S. No. 476/1994 and dismissing the suit for permanent injunction.

It is the case of the plaintiffs that the suit schedule property bearing Sy. No. 19/1B measuring 1 acre 13 guntas, out of which, 16 guntas as appended to in the schedule and shown by the letters ''ABCD'' in the rough sketch annexed to the plaint was purchased by one Ashokappa from one Narayan Krishna Rao Despande under a registered sale deed dated 3.8.1990 and on the basis of the said sale deed, since then, they were in possession and enjoyment of the suit schedule property. Hence, defendants are in no way concerned to the suit schedule property and they are not in possession of the same. It is their further case that earlier to the filing of the suit, defendants attempted to obstruct the possession of the suit schedule property, etc., and therefore, they filed a suit.

The 2nd defendant did not file any written statement. The 1st defendant filed his written statement denying the entire plaint averments by contending that as per the rough sketch produced along with the written statement, the house shown by the letter ''C'' belongs to him and the Devastan is shown by the letter ''D''. It is further stated that towards the suit property, a house belonging to defendant No. 2 is existing. In between the suit property and the house of defendant No. 2, a house belonging to one Kareemsab Mulimani is existing and the same is shown with the letter ''D'' in the rough sketch annexed to the written statement. The house belonging to defendant No. 2 is shown by the letter ''A'' in the rough sketch. It is the case of defendant No. 1 that the land bearing Sy. No. 19/1B measuring 1 acre 13 guntas earlier was belonging to one Narayan Krishnarao Deshpande and out of the said land, 27 guntas of land came to be acquired by the Government for the road and out of the remaining 26 guntas of land, the southern portion of 8 guntas of land is purchased by him on 22.3.1990 under a registered sale deed from one Narayan Krishnarao Deshpande. In between his property and the property belonging to defendant No. 2, the property of Kareemsab Mulimani is existing. The property belonging to the plaintiffs is in no way concerned to defendant No. 1 and therefore, prayed for dismissal of the suit.

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

"i) Whether the plaintiffs prove that they are in lawful possession of the suit schedule property as on the date of the suit?

ii) Whether the plaintiffs further prove the alleged obstructions by the defendants?

iii) Whether the plaintiffs are entitled to the relief of permanent injunction as sought for in the suit?

iv) What order of decree?"

In order to establish the plaintiffs'' case, Power of Attorney Holder of the plaintiffs examined himself as P.W. 1 and marked the documents as Exs.P.1 to 12. The defendant is examined as D.W.1 and marked the documents as Exs.D.1 to 5.

Considering the entire material on record, the trial Court has categorically recorded a finding that the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit and the alleged interference by the defendants and accordingly, dismissed the suit.

The Lower Appellate Court reconsidering the entire material on record dismissed the appeal against which judgment and decree, the present appeal is filed.

I have heard the learned Counsel for the appellant Sri R.H. Angadi, who vehemently contended that the impugned judgment and decree passed by the Courts below ignoring both oral and documentary evidence on record has resulted in great injustice to the appellants; both the Courts below have not considered Ex.P.1 the registered sale deed dated 3.8.1990 and evidence of P.W. 1 has thereby resulted in injustice to the appellants and therefore, sought for setting aside of the judgment and decree of the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the appellants and perused the entire material on record.

The plaintiffs filed a suit for permanent injunction stating that they are the owners and in possession of the suit schedule property as on the date of filing of the suit by producing the material documents Exs.P.1 to 12 and oral evidence of P.W.1. To disprove the case of the plaintiffs'', defendant is examined as D.W.1 and marked the documents Exs.D.1 to 5. The trial Court recorded a finding that P.W.1 in his cross-examination has clearly admitted that the defendants have encroached upon a portion of the suit property earlier to the filing of the suit and that itself clearly goes to show that the plaintiffs are not in lawful possession and enjoyment of the suit schedule property as on the date of the filing of the suit. The burden is on the plaintiff to prove that they are in lawful possession and enjoyment of the suit property as on the date of filing of the suit. In the present case, the plaintiffs have utterly failed to prove that they are exclusively in possession and enjoyment of the entire property as on the date of filing of the suit. It also further recorded a finding that the plaintiffs have failed to prove the alleged obstruction and interference by the defendants over the suit property and accordingly, dismissed the suit.

The Lower Appellate Court on reconsidering the entire material on record, concurred with the findings of fact recorded by the trial Court holding that even, P.W.1 has stated in his cross-examination that he was not knowing regarding the encroachment made by the defendants prior to purchasing of 16 guntas of land by the plaintiffs and the said encroachment came to the notice of the plaintiffs only after 2 years prior to the institution of the suit and also he does not have any idea as to whether the Counsel has endeavoured to determine the extent of the alleged encroachment by way of surveying the suit property in the said suit. Considering the admissions of P.W.1, it held that it is clear that as on the date of the suit itself, plaintiffs are not in possession of the entire suit property and P.W.1 has categorically stated that the defendants have encroached unlawfully the portion of the plaintiffs'' property to an extent of 1 1/2 guntas in respect of which no other suit has been filed by the plaintiffs except the instant suit - O.S. No. 476/1994 seeking relief of bare perpetual injunction which has to be established by the plaintiffs that they were and are in possession of the suit property, but the admission of P.W.1 in his cross-examination clearly indicate that the plaintiffs are not in possession of the entire suit property. It also recording a finding that even though the Court Commissioner was appointed in the said suit at the instance of the plaintiffs, the report of him having not been challenged or objected to by the plaintiffs, defendant No. 1 has formally filed his objections. That the plaint hand sketch map is not emanating with the actual and reality existing on the spot. P.W.1 in the cross-examination admitted that the plaintiffs are not in possession of the entire suit property and when that is so, question of interference by the defendants and also entitling the plaintiffs with the relief of perpetual injunction as sought for, does not arise at all. Accordingly, the appeal was dismissed confirming the judgment and decree of the trial Court.

When the plaintiff comes before the Court for permanent injunction, he has to establish independently based on both oral and documentary evidence on record. The plaintiff-P.W.1 in his cross-examination has categorically admitted that defendants have encroached on the portion of the suit property two years earlier to filing of the suit and that itself clearly depicts that the plaintiffs are not in lawful possession and enjoyment of the suit property as on the date of filing of the suit. If that is so, the suit for bare injunction is not maintainable. The plaintiffs ought to have filed a comprehensive suit for declaration and consequential relief. The same has not been done in the present case. Both the Courts have concurrently held that the plaintiffs have failed to prove their lawful possession and enjoyment of the suit schedule property as on the date of the suit based on the cogent and legal evidence on record. As such, the finding of fact recorded by the Courts below cannot be interfered with by this Court by exercising the powers under the provisions of Section 100 of the Code of Civil Procedure.

No substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed.

However, it is needless to observe that it is always open for the appellants to file a comprehensive suit for declaration and possession and other consequently relief in accordance with law.