Shankarappa vs Narayanappa and Others

Ravi V. Malimath, J—The respondent-plaintiff claims to have purchased the ''B'' schedule property from one Gowramma on 29-11-1990. The second plaintiff purchased ''A'' schedule property jointly from one Gangamma under a registered sale deed dated 13-8-1992. Gowramma derived the property under a Will dated 21-10-1983 from her maternal grand-father. Subsequently, both the plaintiffs who were close relatives with one another being the brother and sister have got their lands exchanged by registered Exchange deed dated 23-8-1999. As such the first plaintiff became the owner of ''A'' schedule lands bearing Sy. No. 35/3B and Sy. No. 35/3C and plaintiff No. 2 that of ''B'' schedule land bearing Sy. No. 34/3. That the defendant is the owner of adjacent lands bearing Sy. No. 35/1 and 35/2. That without any concern whatsoever, the defendant attempted to illegally cause interference with the plaintiffs'' cultivation of land. Hence, the instant suit was filed for declaration of title and for injunction. The defendant on service of suit summons entered appearance and denied the plaint averments. It was contended that the plaintiffs are not even the owners of the suit schedule properties. That the suit schedule properties has nothing to do with the property owned by the defendant. That the plaintiffs cannot claim that they are in possession of plaint ''A'' and ''B'' schedule properties.

Based on the pleadings the trial Court framed the following Issues:--

"1. Whether both the plaintiffs prove their purchasing suit schedule properties under separate Sale Deeds dated 29.11.90 and 13.08.92 from Smt. Gowramma?

Does they further prove the mutual exchange of their properties under a Regd. Deed dated 23.08.99 with exclusive possession of the respective ''A'' and ''B'' schedule properties?

Whether the defendant prove that Smt. Gowramma had no right to sell ''A'' schedule land Sy. No. 35/3 to 2nd plaintiff under Sale Deed dated 13.08.92?

Whether defendant further prove that nonexistence or non-availability of land of 1st plaintiff when Survey settlement Dept. conducted the survey before plaintiffs exchanging the properties?

Whether plaintiffs prove the alleged illegal interference & obstruction of the defendant in their peaceful possession and enjoyment of the schedule properties?"

The 1st plaintiff was examined as P.W. 1 and another witness and 18 documents were relied. The defendant was examined as D.W. 1 and 14 documents were relied upon. Issues 1,2 & 5 were held in the affirmative. Issues 3 & 4 were held in the negative. The suit was decreed. The plaintiffs were declared as owner in possession of ''A'' and ''B'' schedule property with an injunction to the defendant not to interfere with the plaintiffs'' peaceful possession and enjoyment of the property. Aggrieved by the same, the defendant filed an appeal which was dismissed. Hence, the present second appeal.

By the order dated 8-4-2008 the appeal was admitted to consider the substantial question of law:--

"Whether the Courts below were justified in holding that the plaintiff has established his title to the property when they noticed that under the Will Sy. No. 34 was not bequeathed in favour of the plaintiff and the said survey Number was not the subject matter of the Will at all?"

Learned counsels submit that the substantial question of law requires to be reframed. Hence, they have addressed arguments on the same. On hearing, the substantial question of law is reframed as follows:--

"Whether the Courts below were justified in granting decree for title in the absence of a specific pleading to support such a prayer?"

The learned counsel for the appellant contends that the impugned order is bad in law and liable to be set aside. Both the Courts below have failed to consider the plaint averments. That the plaintiff himself has narrated that there is no dispute with regard to the title of property. The trial Court committed an error in decreeing the suit. So far as injunction is concerned, it is submitted that even prior to the filing of the suit, the appellant-defendant herein had since filed a suit in O.S. 273/2000 against the plaintiffs herein wherein the suit was decreed and injunction was granted against the 1st plaintiff herein, therefore the question of granting injunction would not arise.

On the other hand, Sri T.A. Chikkavenkate Gowda, the learned counsel appearing for the respondents plaintiffs defends the impugned order. He contends that substantial material has been produced by him in order to show that the respondents are the owners in possession of the suit schedule property. That there has been interference by the defendant and hence the decree was sought, for declaration of title as well as injunction.

Heard learned counsels. The averments in the plaint in para-5 reads as follows:--

"5. It is submitted that defendant is claiming to be the owner of lands in Sy. No. 35/1 and 35/2 of Maralenahalli village of Doddaballapura Taluk to an extent of 1 acre 15 guntas of land totally. The said land is situate adjacent to the suit schedule A and B property. It is submitted that the plaintiff have nothing to do with the property allegedly owned by the defendant and at the same time defendant cannot have any claim whatsoever on the property of the plaintiff viz. Plaint ''A'' and ''B'' schedule properties".

That the Court below failed to consider the said pleading. The plaintiffs very categorically states in their plaint that the suit schedule property is adjacent to the land being claimed by the defendant. That the plaintiffs have nothing to do with the property allegedly owned by the defendant and at the same time the defendant cannot have any right over plaint ''A'' and ''B'' schedule properties. When such being the plea of the plaintiffs, the question of granting a decree with regard to the title does not arise. It is not even the case of the defendant that the defendant is questioning his title to the plaint schedule properties Infact, he gives a further narration that the property owned and claimed by the defendant is adjacent to the property of plaintiffs. That both of them did not have a right, title and interest over the others property. Therefore, the premise on which the trial Court proceeded to decree the suit for title is therefore misconceived. The same is beyond the pleadings of the plaintiffs. Therefore the decree granted by the trial Court with regard to the title of the plaintiffs over the plaint ''A'' and ''B'' schedule property is misconceived. That the Courts below therefore committed an error in decreeing the suit to that extent.

However, in so far as injunction is concerned, the plea made out by the plaintiffs is that the properties were exchanged inter se between the plaintiffs and the defendant tried to interfere with the plaint schedule property. Substantial material and evidence has been led in, in support of his case. I'' am of the view, that on considering the evidence no interference is called for. Both the Courts below have recorded questions of fact with regard to interference by the defendant. I'' am of the view that the decree for granting injunction against the defendant requires to be sustained.

Even otherwise the case of the defendant is that they having filed a suit in O.S. 273/2000 and decree for injunction has been obtained against the plaintiffs herein, therefore each one of the parties have an order of injunction for their respective portions of the properties.

It is apparent that the Courts below committed an error in decreeing the suit of the plaintiff for title in the absence of pleadings. However, the Courts below were justified in granting a decree for injunction.

On answering the substantial question of law, the appeal is partly allowed. The Judgment & decree dated 24-6-2006 passed in O.S. 401/2002 by the learned Civil Judge(Senior Division), Doddaballapura, and Judgment & decree dated 22-10-2007 passed in R.A. No. 112/2006 by the learned Sessions Judge, Fast track Court-II, Bengaluru Rural District, are modified. The decree for title declaring the plaintiffs as owners of ''A'' and ''B'' schedule property is set side. The decree of injunction is sustained.

Decree to be drawn accordingly.

No Costs.