Shambulingappa vs Mallajamma

H.G. Ramesh, J.—Defendants are in second appeal challenging the judgment and decree passed by the VI Addl. District Judge, Mysore in RA 509/2009 on 13.7.2010.

The plaintiffs, based on the right available to one Nanjamma who is said to be the propositus, by way of re-grant in her favour under the Personal & Miscellaneous Inams Abolition Act, claiming right sought for an injunction against the defendants in respect of the suit property. The suit came to be rejected by the trial court. Thereafter, plaintiffs filed appeal before the first appellate court producing additional document at Ex. P14 said to be an endorsement issued by the Spl. Deputy Commissioner based on which the lower appellate court opined that there is a re-grant order in favour of Nanjamma during 1958. Also noting some entries in the RTC that revenue was paid for the year 1935-36 and also for the year 1945-46; importance has not been attached to the said documents by the trial court and the endorsement issued by the Deputy Commissioner - Ex. P14 coupled with the" payment of revenue vide Exs. P2-3, tried to conclude that plaintiffs were in possession of the suit schedule property as on the date of filing of the suit and also though the trial court had taken into consideration the RTC entries which was standing in the name of Channappa/2nd defendant, Ex. D3 to 11 and also the record of rights produced at Ex. D1, the same was scored of holding that there is a prima facie case in favour of the plaintiffs.

Admittedly, this is a suit for bare injunction. The relevant period/point to be considered for the purpose of re-grant is the year 1957 when the Personal & Miscellaneous Inams Abolition Act came into force. The payment of revenue during 1935-36 and 1945-46 by one Maranna husband of Nanjamma and whether that payment of revenue depicts the right of possession is also one question for consideration. Another aspect is Ex. P14 - though it is admitted by the lower appellate court but the same has been disputed by the counsel for the appellants herein on the ground that in the endorsement issued by the Spl. Deputy Commissioner although six items were claimed for re-grant by Nanjamma in Sy. No. 52/2, there is no clear mention as to the extent of land re-granted in her favour. In the fact situation, it is argued by the appellants'' counsel that the document at Ex. D3 to 11 read with Ex. D1-record of rights and the RTC do depict that for the purpose of prima facie possession of the property in question, these documents are necessary. Rightly the trial court having examined these documents dismissed the suit of the plaintiffs stating that the suit filed by the plaintiffs is for injunction. But on the other hand, the documents at Ex. D3-11 and D1 do depict that Channappa is in possession. However, the lower appellate court without examining in detail as to the veracity of Ex. P14, that there is nothing on record to confer right on the plaintiffs or their predecessor''s claim - Nanjamma in respect of Sy. No. 52/2 to the extent of 2.32 acres, has reversed the order of the trial court. A presumption is drawn by the lower appellate court without looking into the contents and details of Ex. P14 that too produced before the lower appellate court for the first time and without taking into consideration why such a document could not be produced before the trial court, it has simply proceeded to accept the document.

The substantial question of law framed for consideration is -''whether the first appellate court is justified in holding that the plaintiffs are in possession of the suit schedule property by drawing inference from the documents Ex. P1 to P4''.

In the context that Ex. P2-3 are the documents of the year 1944-45 to 1945-46 and 1935-36 to 1938-39 and these are two stray documents which only depicts payment of land revenue and nothing else. Ex. P14 though is produced and admitted, it does not reflect entry of re-grant in favour of Nanjamma. In such situation, the lower appellate court committed an error in admitting such a document which do not confer any right by way of re-grant in favour of Nanjamma as such, whoever being the successor of Nanjamma would not succeed to the estate especially in respect of Sy. No. 52/2 measuring 2.32 acres. On the other hand, as held above, the document in proof of possession Ex. D3-11 viz., RTC for nearly ten years and also the record of rights do demonstrate that the defendant Channappa was in possession of Sy. No. 52/2. Since it is not a suit for declaration and injunction and it is a suit for bare injunction, the suit filed cannot be maintained. The lower appellate court committed an error in holding that there was re-grant in favour of Nanjamma and as such, necessarily this property has been succeeded by the plaintiffs. The very order of the Deputy Commissioner in remitting the matter of the Tahsildar is without considering the factual position and needs to be set aside. Accordingly, it is set aside.

In the result, appeal is allowed. While setting aside the order of the lower appellate court, the judgment and decree passed by the trial court dismissing the suit of the plaintiffs is upheld. The substantial question of law raised is answered accordingly. Parties to bear their own costs in this appeal.