Shankarappa and Others vs Krishnappa and Others

B.V. Nagarathna, J.—1. Defendant Nos. 1 and 3 in O.S. No. 321/2012 have preferred this Appeal assailing the judgment and decree of the II Addl. Senior Civil Judge, Hubli, dated 27.6.2015 passed in R.A. No. 59/2013 by which, judgment and decree of the trial court dated 11.3.2013 is modified.

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

The 1st Respondent/plaintiff filed the suit seeking the relief of mandatory injunction and permanent injunction against the defendants in respect of suit properties comprising of VPC. No. 617 measuring East-West 24.6 feet and North-South 35 feet, situated at Mantur village. According to the plaintiff, in the year 1988, Government of Karnataka had allotted the suit property to him and he was handed over vacant possession of the same. On 10.2.1989 a certificate was issued, mentioning measurements of the suit property and mentioning the boundaries to it. Subsequently, Government of Karnataka constructed houses in the suit property to an extent of East to West 16 feet and North to South 13 feet. In the plaint, the entire suit property is shown in the plaint sketch by letters ''ABCD''. The constructed portion is shown as ''AEFK'' and vacant space is depicted by letters ''EFGHKBID''. According to the plaintiff, defendants have no manner of right, title and interest in the suit property. The father of defendants 5 to 9 by name Kenchappa, with a view to keep agricultural equipments, wood, etc., in the portion of the suit property, started interfering with plaintiff''s peaceful possession and enjoyment of the suit property. Plaintiff filed O.S. No. 540/1988 against him, but the suit was dismissed. He preferred appeal in R.A. No. 84/2000 against the judgment and decree passed in O.S.540/1998 and the said appeal was allowed. Father of defendants 5 to 9 disobeyed the judgment passed in R.A. No. 85/2000. Plaintiff filed E.P. No. 121/2008. During the pendency of the said petition, father of defendants 5 to 9 died and defendants 5 to 9 were brought on record. A Court Commissioner was appointed in E.P. No. 121/2008. The Court Commissioner requested for police help. On 29.11.2011, the Court Commissioner went to the spot with the help of police. But the defendants obstructed the Commissioner with the help of their supporters. Consequently, Court Commissioner could not complete his work. According to the plaintiff, defendants have encroached upon land measuring 15 feet x 8 feet and they have put up a shed illegally therein, which is shown in the plaint sketch marked as ''GHIC. The Court Commissioner submitted a report stating that one Shankarappa Navalgund-defendant No. 1 in O.S.321/12, had illegally put up a shed in the portion of the suit property. That father of defendants 5 to 9 was a party in O.S. No. 540/1998 and R.A.84/2000. Therefore, judgment and decree passed in R.A. No. 84/2000 is binding on the said defendants. That, plaintiff sought for relief of mandatory injunction and permanent injunction against defendants.

In response to the suit summons and court notices, defendant No. 1 appeared and filed his written statement by contending that the property bearing Plot No. 27 measuring 25 feet x 30 feet situated within the limits of Shiraguppi Grama Panchayat is situated on the Northern side of the suit property. The Shiraguppi Grama Panchayat allotted Plot No. 27 in favor of the father of the defendant-1 and during his life time he was in possession and enjoyment of the suit property. After his death, Khata was mutated in the name of the 1st defendant. That the plaintiff is not entitled to any relief in the suit. On the basis of the above pleadings, the trial court framed the following issues for its consideration:

"1. Whether the plaintiff proves that the defendants have illegally encroached the suit property and constructed a shed in GHCI portion as shown in sketch?

Whether the suit for bare injunction is maintainable without the relief of declaration?

Whether the suit is bad for non-joinder of necessary parties?

Whether the plaintiff is entitled for the relief sought for?

What order or decree?"

In support of his case, the plaintiff examined himself as P.W.1. He produced 12 documents which were marked as Ex. P.1 to P.12, while the defendants did not let in any evidence.

After hearing the arguments, the Trial Court answered issue Nos. 1, 2 and 4 in the affirmative. Issue No. 3 in the negative and decreed the suit in favour of the plaintiff and against defendants 1 to 3 and 5, by judgment and decree dated 11.3.2013.

Being aggrieved by the judgment and decree of the trial court, the defendant preferred R.A. No. 59/2013 before the I Appellate Court which, on hearing the learned Counsel for the parties, framed following points for its consideration:

"1. Whether the appellants prove that the finding recorded by the lower court is contrary to law and facts and it needs interference?

Whether the appellants prove that they could not produce these documents in O.S.321/2012 even after due diligence?

What order?"

It answered points 1 and 2 in the negative and dismissed the appeal, by confirming the judgment and decree of the Trial Court, with a modification, by directing defendants 1 to 3 and 5 to 9 to vacate and hand over vacant possession of the encroached portion of the suit property to the plaintiff and they were also restrained from interfering with the peaceful possession and enjoyment of the suit property. The application I.A.3 filed under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure (CPC) was dismissed.

Being aggrieved by the judgment and decree of the courts below, defendants 1 and 3 have preferred this Second Appeal.

I have heard learned Counsel for the appellants.

Learned Counsel for the appellants contended that the courts below were not right in granting the relief of permanent injunction against defendants in the absence of plaintiff seeking the relief of declaration of title in respect of the suit schedule property. He contended that the trial court was not right in answering issue No. 2 in favour of the plaintiff and against defendants. He contended that 1st defendant in his written statement has stated that Plot No. 27 measuring 25 x 30 feet is situate in the Northern side of the suit property which was the property of his father and on his demise, first defendant was in possession and enjoyment of the property and his name was entered in the revenue records and therefore, the first defendant challenged the title of the plaintiff vis-�-vis suit schedule property. He therefore contended that the plaintiff ought to have sought a comprehensive relief of declaration of title and consequential relief, instead of filing a suit for bare injunction and that the Trial Court was in error in entertaining such a suit. He also contended that before the Trial Court, the 1st defendant did not let-in any evidence as his advocate passed away and therefore, in the appeal an application was filed under Order XLI Rule 27 of CPC seeking permission to let-in evidence. But the I Appellate Court was not right in dismissing that application, as a result, the suit has not been contested and the first defendant has been deprived of an opportunity to let in evidence. He further contended that the absence of contest from the defendants, the judgment and decree of the trial court as affirmed by the I Appellate Court is not proper and that the Second Appeal raises substantial questions of law, which would require admission of the matter for a detailed hearing.

Having heard learned Counsel for the appellant and on perusal of the records as well as material on record, it is noted from the trial court judgment that defendant-1 filed his written statement, but none of the defendants let-in any evidence in the suit. It is noted by the I Appellate Court that defendants 1 to 3 were directed to file written statement by imposing cost, but they did not pay the cost. That apart, defendants 1 to 3 did not choose to cross-examine P.W.1. Therefore, there was absolutely no participation on the part of the defendants before the Trial Court. While filing I.A.3 under Order XLI Rule 27 CPC, the appellants produced eight documents. While considering that application, the I Appellate Court has noted that along with the written statement or during the course of evidence the said documents were not produced before the Trial Court. In fact, no evidence was let in on behalf of the defendants. The reason assigned before the I Appellate Court was that the advocate of the defendants had died and that prevented them from producing the documents. The first appellate court has noted that the documents sought to be produced by way of additional evidence were, photographs; receipt issued by the photographer; certificate issued by the Grama Panchayat; Tax paid receipts; Assessment Register extract. No reason has been assigned as to why those documents could not have been produced before the Trial Court. As far as the only reason that has been assigned by the defendants was that on account of their advocate''s death the documents could not be produced. But the I Appellate Court has rightly noted that no certificate of death of defendants'' advocate was produced so as to appreciate as to when he died and thereafter what transpired in the suit and as to why the defendants did not let in their evidence in the matter. In the circumstances, the I Appellate Court has rejected the application filed under Order XLI Rule 27 CPC.

I have considered the submission of the learned Counsel for the appellants with regard to the non-letting in of evidence before the Trial Court and the reason for filing application under Order XLI Rule 27 CPC before the I Appellate Court. If at all, the reason that on account of demise of their advocate the defendants were disabled in production of their evidence is to be believed, then all that was necessary was to produce the death certificate to show the death of their advocate by the appellants herein. That apart, when first defendant had filed his written statement, he ought to have been diligent enough to defend the suit by engaging another advocate in case the reason that his advocate had died is considered to be true. The fact remains that the trial court posted the case for evidence on 27.9.2012 and the suit was decreed on 11.3.2013 after recording plaintiff''s evidence. In fact, plaintiff who gave his evidence as P.W.1 was also not cross-examined by defendants. In that view of the matter, the I Appellate Court was justified in not allowing I.A.3 filed by the defendants under Order XLI Rule 27 CPC. The I Appellate Court has also noted the previous proceedings between plaintiff and defendants 5 to 9 wherein the decree of permanent injunction was issued as against these defendants and consequently noted that the Trial Court has not decreed the suit against defendants 5 to 9. In the circumstances, by modifying the judgment and decree of the trial court, the I Appellate Court has granted mandatory injunction against defendants 1 to 3 and 5 to 9 and also directed them to vacate and hand over vacant possession of the encroached portion of the suit property to the plaintiff.

I do not find any infirmity in the judgment of the court below dismissing the appeal with the above modification. No substantial question of law arises in this appeal. The appeal is dismissed.

In view of dismissal of the appeal, I.A.1/2016 also stands dismissed.