Savitri Mahadev Naik and Others vs Raghurani

B.V. Nagarathna, J.—1. The plaintiffs in O.S. No. 36/1996 have preferred this second appeal, assailing judgment and decree passed in R.A. No. 26/2005 dated 18.08.2010 by the Prl. Civil Judge (Sr. Dn.), Karwar, confirming the judgment and decree passed by the Civil Judge (Jr. Dn.), Karwar, dated 30.06.2005 in O.S. No. 36/1996.

For the sake of convenience, parties shall be referred to, in terms of the status before the trial Court.

The plaintiffs filed a suit seeking the relief of declaration to the effect that the defendant has no right, title and interest in the suit property and for consequential relief of injunction against the defendant.

It is the case of plaintiffs that they are the legal heirs of Anandu Mahadev Naik, who died on 10.05.1995. That the son of plaintiff No. 1, namely, Anandu was having land bearing Sy. No. 37/A/1A, which was derived by him from Ladu Gopal Naik and that he was in actual possession, cultivation and enjoyment of the said land. That O.S. No. 80/1981 was filed seeking a declaration that defendant had no right and title in the suit property that the revenue authorities and survey authorities had during the pendency of that suit entered the name of defendant to an extent of 0-0-1 1/4 anas of land on 13.04.1996 and that in fact the said extent was sought to be encroached upon by the defendant by putting up boundary stones; that the entry of defendant''s name in the revenue records was without notice to the plaintiffs, and therefore, the plaintiffs sought the aforesaid reliefs, as the immediate cause of action for the suit was on account of the defendant making attempts to put up compound wall on the said extent of land.

On receipt of suit summons and court notices, the defendant appeared through her counsel and filed her written statement contending that there is no such land as 37/A/1A in Baad - I village, as has been stated by the plaintiffs in the plaint. It was averred that there was a compromise in O.S. No. 60/1956 admitting adverse possession of defendant by the plaintiffs therein and as a result Sy. No. 37/A/1A was bifurcated and Sy. No. 37/A/1A2 was carved out of the said extent of land measuring 1 1/4 anas, which was registered in the name of the defendant and the remaining 11 guntas 6 3/4 anas was given a new number as Sy. No. 37/A/1A1. The said bifurcation was as per the compromise decree passed in O.S. No. 60/1956 dated 21.01.1959. That the said decree was marked as Ex. D-4 in O.S. No. 80/1981. Thereafter survey was conducted and the defendant has continued to remain in possession of 1 1/2 anas of land. That O.S. No. 80/1981 has confirmed the adverse possession of the defendant and her right, title and interest in respect of it 1 1/4 anas in 37/A/1A2, and therefore, the present suit is frivolous and vexatious as the plaintiffs are strangers to the said extent of land. The defendant, further contended that the filing of present suit is an instance of committing of contempt of court as the decree in O.S. No. 60/1956 has already been complied with and the same cannot be reopened by this Court. That O.S. No. 80/1981 was filed by the plaintiffs by misleading the Court to the effect that the defendant was interfering in old Survey No. 37/A/1A, which comprised of 11 guntas and 8 anas including 1 1/4 anas which belongs to the defendant. But the Court took note of the sharp practice in law and passed a decree only in respect of 11 guntas 6 3/4 anas and excluded 1 1/4 anas in Sy. No. 37/A/1A2, which belong to the defendant. Therefore, the defendant contended that there was no merit in the suit and that the plaintiffs were not entitled to any relief. The defendant, further contended that Will dated 23.09.1959 said to have been executed by Ladu Gopal Naik in favour of Anandu Mahadev Naik was not valid. Defendant admitted that he tried to construct a compound wall on Sy. No. 37A/1A2, which is her property and that on account of said act of the defendant, the plaintiffs have filed the suit. Under the circumstances, plaintiffs sought dismissal of the suit.

On the basis of the rival pleadings, the trial Court framed the following issues for its consideration:

1) Whether the plaintiffs prove that they are in lawful possession of the suit land as on the date of the suit, as contended in the plaint?

2) Whether plaintiffs further prove that the defendant attempted to encroach into the suit land to an extent of 1 1/4 anas as contended in plaint?

3) Whether plaintiffs further prove that defendant has illegally got entered her name to the suit land to an extent of 1 1/4 anas as contended in plaint?

4) Whether the suit is barred by the principle of res judicata?

5) Whether plaintiffs are entitled for the relief sought?

In support of their case, plaintiffs let in the evidence of two witnesses and they produced 12 documents, which were marked as Exs. P-1 to 12. The defendant let in her evidence as D.W. 1. She produced seven documents, which were marked as Exs. D-1 to D-7. On the basis of the said evidence, the trial Court answered all the issues in the negative and dismissed the suit of plaintiffs with costs.

Being aggrieved with the said judgment and decree of the trial Court, plaintiffs preferred R.A. No. 26/2005 before the I Appellate Court. On hearing the learned counsel for respective parties, the I Appellate Court framed the following point for consideration:

Whether the appellants prove that the judgment and decree passed by the Trial Court is illegal and interference of this Court is necessary?

What order?

It answered point No. 1 in the negative and dismissed the appeal. Being aggrieved by the concurrent findings of the courts below, the plaintiffs have preferred this second appeal.

I have heard learned counsel for appellants and learned counsel for respondent and perused the material on record.

It is contended on behalf of appellants that the courts below were not right in dismissing the suit of plaintiffs despite substantial evidence let in by the plaintiffs, which have not been considered in their proper perspective. It was submitted that an Application under Order XLI Rule 27 of the Code of Civil Procedure (hereinafter referred to as ''C.P.C.'', for brevity) was filed before the I Appellate Court in order to bring on record certain documentary evidence, but no order was passed on the said application by the first Appellate Court. Learned counsel for the appellants submitted, as a result, there has been mis-carriage of justice, as the I Appellate Court has not considered the application for additional evidence at the time of final hearing of the appeal and neither has any order been passed on the said application. He submitted that substantial questions of law arise in this appeal, and therefore, the appeal may be admitted for a detailed hearing.

Per contra, learned counsel for the respondent supporting the judgment of the Courts below contended that this is not the first round of litigation between the parties. There was O.S. No. 60/1956 between the predecessors in title of the parties. In that suit there was a compromise entered into and plaintiffs'' predecessor recognised and accepted possession of defendant''s vendor, Mahadev Borkar in respect of 1 1/4 ana, which has been subsequently renumbered as Sy. No. 37/A/1A2. That pursuant to the said compromise Borkar was declared as the owner and in possession of 1 1/4 anas of land in original Sy. No. 37/A/1A and the said declaration has enured to the benefit of the defendant, who is none other than the successor of Mahadev Borkar. It is submitted that, by mis-leading the Court once again the plaintiffs had filed O.S. No. 80/1981 in respect of the entire Sy. No. 37/A/1A by suppressing the fact that Sy. No. 37/A/1A had already been bifurcated into two portions, namely, Sy. No. 37/A/1A1 which comprises of 11 guntas 6 3/4 anas, and Sy. No. 37/A/1A2 comprising of 1 1/4 anas, which is in the ownership and possession of the defendant. That the defendant had every right to put up a compound wall on her land and when she attempted to do so, the present suit was filed, which is again a frivolous and vexatious suit. That the Courts below rightly dismissed the suit and no substantial question of law arises in the appeal, is the submission of respondent''s counsel. It is also submitted that as against the decrees passed in O.S. No. 60/1956 and O.S. No. 80/1981 no appeal was preferred and the said decrees have attained finality. He, therefore, sought for dismissal of the appeal.

Having heard learned counsel for the parties and on perusal of the material on record it is noted that entire controversy is with regard to Sy. No. 37/A/1A2 which measures 1 1/4 anas. That bit of land was earlier part of 37/A/1A, which totally measured 11.8 anas. Both the courts have accepted the fact that in O.S. No. 60/1956 there was a compromise entered into between the predecessors in title of the present plaintiffs and the present defendant. The possession of the defendant''s predecessors, namely, Mahadev Borkar in respect of 1 1/4 anas by way of adverse possession was accepted in the compromise entered into between the parties in O.S. No. 60/1956. Thereafter, survey was conducted in respect of Sy. No. 37/A/1A and bifurcation of the said survey number was made and phode of the said survey number was conducted and Sy. No. 37/A/1A measuring 11.6 3/4 anas and Sy. No. 37/A/1A2 measuring 1 1/4 anas were divided and new sub numbers were assigned. Therefore, by virtue of the compromise entered into between the predecessor in title of the present parties in O.S. No. 60/1956 the right, title and interest of the defendant in respect of 1 1/4 anas in Sy. No. 37/A/1A2 has been established. However, O.S. No. 80/1981 was filed by the plaintiffs in respect of not just Sy. No. 37/A/1A2, but in respect of entire Sy. No. 37/A/1A by suppressing the compromise entered into in O.S. No. 60/1956. The suppression made by plaintiffs in O.S. No. 80/1981 was noticed by the Courts and the plaintiffs were declared to be owners only in respect of Sy. No. 37/A/1A1 measuring 11.6 3/4 anas, while the defendant was declared to be owner in possession of Sy. No. 37/A/1A2 measuring 1 1/4 anas. Despite the categorical findings given in O.S. No. 80/1981, the plaintiffs, preferred the present suit O.S. No. 36/1996. The courts below, once again taking note of the earlier proceedings have concluded that the plaintiffs cannot be granted any relief. In fact, after earlier proceedings in O.S. No. 60/1956 and O.S. No. 80/1981 the plaintiffs had no right, title or interest in respect of Sy. No. 37/A/1A2. The suit ought to have been dismissed in limine on the basis of res judicata. However, the matter went into trial and after considering the evidence including the judgment passed in O.S. No. 80/1981 the courts below have rightly dismissed the suit.

However, there is one other aspect which requires consideration. Appellants counsel contended that Application under Order XLI Rule 27 of C.P.C. was filed seeking production of additional evidence, which is in the form of the orders passed by the Revenue authorities in respect of 1 1/4 anas of land in possession of the defendant, which is numbered as Sy. No. 37/A/1A2. The grievance of the appellants is that no order was passed on the said application. On perusal of the judgment of the I Appellate Court, it is noted that there is no reference to the said application having been adverted to by the appellants therein.

That apart, when once in two independent proceedings courts have already been held in favour of the defendant, in respect of 1 1/4 anas in Sy. No. 37A/1A2, it was futile on the part of the appellants herein to have filed any application seeking production of further evidence in the matter. As already noticed, the suit ought to have been dismissed on the ground of res judicata, in which event there was no necessity of matter being set down for trial at all. In that view of the matter, no grievance could be made by the appellants with regard to no order being passed on the application filed under Order XLI Rule 27 of C.P.C. by the appellants herein. This, in fact, does not cause any prejudice to the appellants as they or their predecessor in title have not challenged the judgment and decree passed in O.S. No. 60/1956 or in O.S. No. 80/1981 which have attained finality. Secondly, O.S. No. 60/1956 resulted in a compromise which declared the right, title and interest of the defendant in respect of 1 1/4 anas in Sy. No. 37/A/1A2. Therefore, with regard to the additional evidence also the appellants had no right to produce such evidence and the I Appellate Court rightly did not consider the said application at the time of final hearing of the matter.

I do not find any lacuna in the judgment of the courts below. No substantial question of law arises in the appeal. Hence, the appeal is dismissed.

Parties to bear their respective costs.