Sharanareddy and Others vs Bhudappa

Aravind Kumar, J.—1. This second appeal is directed against the Judgment and decree dated 24.02.2012 passed in R.A. 20/2011 by Senior Civil Judge, Chincholi whereunder Judgment and decree dated 21.04.2011 passed in O.S. 36/2005 by Prl. Civil Judge and JMFC, Chincholi, came to be confirmed.

I have heard Sri. Ameet Kumar Deshpande, learned counsel appearing for appellants and Sri. B.K. Hiremath, learned counsel appearing for respondent.

Parties are referred to as per their rank in trial Court. Facts in brief which has led to the filing of this appeal are as under:

"Plaintiff filed a suit for perpetual injunction against defendants in respect of open space bearing Panchayat No. 1-14 (old) 81/B (new) measuring 36ft North to South and 12ft East to West morefully described in the plaint contending inter alia that suit property is the open space situated in between the houses of plaintiff and defendants. It is further contended plaintiff is owner of house bearing Panchayat No. 86 having towards East and North an open yard existing. Open space which is adjacent to the open yard of the plaintiff is towards east and said open space was purchased by the mother of plaintiff Smt. Shivalingamma on 10.05.1966 under registered sale deed and since date of purchase plaintiff and her family members are in possession and enjoyment of suit open space. Defendants 1 to 4 are joint family members and main door of the defendants house is towards northern side and now they have opened the door in their western wall and obstructing the plaintiff property. Hence, order of injunction came to be sought for restraining the defendants."

On suit summons being served defendants appeared and filed their written statement contending that property shown by plaintiff i.e., open space bearing Gram Panchayat No. 1-14 (81B New) and measurements shown therein are wrong; suit open space described in the plaint is part and parcel of defendants house bearing Gram Panchayat No. 81 of Bhaktampalli village and correct measurement is 36 feet North to South and 9 feet East to West; it is completely false recently defendants had opened door at western wall of defendants house and suit property is in between house of plaintiff and defendants and exclusively owned and possessed by defendants. It was denied that mother of plaintiff Smt. Shivalingamma had purchased the suit property; and house of defendants having one door towards northern side. It was also contended that plaintiff had earlier filed a suit O.S. 14/2005 and this fact has been suppressed by plaintiff. On the basis of pleadings of the parties trial Court framed following issues:

"1. Whether the plaintiff proves that the suit open space measuring 36" X 12" is the part and partial of H. No. 1-14 (old) and he is in possession of the same as on the date of suit? (issue No. 1 is deleted by order dated: 19.04.2011)

Whether the plaintiff proves the alleged interference by the defendants?

Whether the plaintiff proves that the opening of a door in the Western wall of the house of the defendants is causing nuisance to him and his family members and hence same is need to be ordered to be closed?

To what reliefs the plaintiff is entitled for?

What order or decree?

Addl. Issues:

Whether plaintiff proves that suit property was purchased by his mother in his name through registered sale deed, since he is lawful owner in possession of suit property?"

In support of their respective pleadings plaintiff and 1st defendant got themselves examined as PW-1 and D.W. -1 respectively. Plaintiff also examined Court Commissioner Who was Secretary of Gram Panchayat as PW-2. On behalf of plaintiffs 9 documents were produced and they were got marked as Exhibits P-1 to P-9(a). On behalf of defendants two documents were produced and it was got marked as Exhibits D-1 and D-2. After considering the pleadings and evaluating evidence available on record all the issues came to be answered in favour of plaintiff. Trial Court has noticed that main dispute between plaintiff and defendants relates to open space measuring 36ft x 12 ft and though there is a slight doubt relating to space with regard to exact location, by referring to boundaries shown in the pleadings and deposition of both parties it can be resolved. Hence, it has proceeded to adjudicate the rival claims on the said basis. It was opined by trial Court that there is no dispute with regard to open space between house of plaintiff and defendants. D.W. -1 who entered witness box has admitted in the cross examination that his father has sold 36 feet x12 feet open space to the plaintiff and to prove the sale transaction and registered sale deed dated 10.05.1966 came to be produced and it was marked as Exhibit P-1. Sri. Thippa Reddy, who is the father of 1st defendant as per recitals found in Exhibit P-1, had sold house No. 1-14 situated at Bhaktampalli Village as per measurement indicated in the said sale deed which was to an extent of North to South 12 yards and East to West 4 yards to the plaintiff who was then a minor and was under the guardianship of his mother Smt. Shivalingamma. Description of the property as described in the sale deed Exhibit P-1 and P-1(a) and boundaries or description of the property as described in the plaint schedule are one and the same. As such trial Court has rightly arrived at a conclusion that plaintiff has purchased the suit schedule property from father of 1st defendant. As already observed herein above D.W. -1 in his cross examination has admitted that his father had sold 36ft x 12 ft open space to the plaintiff about 40 years back and they have no right over the said property.

Secretary of Gram Panchayat, was appointed as Court commissioner and he has executed the commission warrant issued by the trial Court. As per the commissioner''s report suit property is shown as 11 ft East to West and North to South 36 feet. It is the specific case of plaintiff that he is the owner of house No. 81 having purchased the same from Sri. Thippa Reddy. Defendants have also not disputed or denied that plaintiff is not the owner of the adjacent house i.e., House No. 86 and this disputed area has been reflected in the sale deed produced by plaintiff and marked as Exhibit P-1 and P-1(a). The plan approved by the Municipal authority relating to the suit schedule property came to be produced and marked as Exhibit P-6 which would evidence the fact that plaintiff has purchased the suit property under Exhibit P-1 and P-1(a) and on account of complaint and counter complaint having been filed by Plaintiff and defendants as per Exhibits P-2 to P-4. Hence, trial Court has formed a clear opinion that there has been resistance by defendants to the peaceful possession and enjoyment of suit property by plaintiff. Hence, trial Court has decreed the suit by granting perpetual and mandatory injunction.

Being aggrieved by said Judgment and decree defendants pursued their grievance before appellate Court by filing an appeal in R.A. 20/2011. Appellate Court on reappreciation of entire evidence and after considering the documentary evidence available on record has dismissed the appeal and affirmed the finding recorded by trial court.

It is the contention of Sri. Ameet Kumar Deshpande, learned counsel appearing for appellants-defendants that Judgment and decree passed by courts below are contrary to facts, erroneous and both courts below have not considered the evidence available on record in proper perspective and cross examination of PW-1 as well as cross examination of PW-2 has not been evaluated in proper perspective. As such by formulating substantial question of law as formulated in the appeal memorandum he has prayed for answering the same in favour of the appellants.

Per contra Sri. B.K. Hiremath, learned counsel appearing for respondent-plaintiff has supported the Judgment and decree passed by trial Court.

Having heard the learned advocates appearing for the parties and on perusal of Judgment and decree passed by trial Court as affirmed by the lower appellate Court this Court is of the considered view that there is no substantial question of law involved in this appeal for being formulated and adjudicated, inasmuch as finding recorded by trial Court as well as lower appellate Court would clearly indicate Exhibit P-1 is the title deed of suit schedule property and measurements of the property as indicated in Exhibit P-1 is the described plaint schedule property. Thus, there is no identity crisis, insofar as suit schedule property is concerned. Though defendants contended that plaintiff does not have title to suit property, in the cross-examination D.W-1 has unequivocally admitted that his father Sri. Thippa Reddy had sold suit schedule property in favour of plaintiff under Exhibit P-1. Court Commissioner who had been appointed to inspect the suit property and submit a report has also entered the witness box. Infact in the cross examination of PW-2 (Court Commissioner) it has been elicited as to whether the plaintiff has put up construction in accordance with the plan sanctioned and said witness has answered the same in the affirmative. Infact in the cross examination of PW-2 it has been suggested that to the extent of property purchased by plaintiff under EX. P-1, he is in possession and this would indicate that plaintiff is in possession and enjoyment of suit schedule property. He has also denied that defendant is the owner of suit schedule property. In the background of evidence of PW-2 the evidence of D.W. -1 when perused which has been analysed by trial Court would clearly indicate that in the cross-examination dated 21.01.2008 D.W. -1 himself has clearly admitted that his father had sold an area measuring 36 ft x12 ft to plaintiff. This admission itself was sufficient for the trial Court as well as appellate Court to reject the defence set up by defendants. However, after considering the entire evidence on record both the courts held concurrently that plaintiff is in lawful possession and enjoyment of the suit property and there was interference by defendants and as such it has granted decree of perpetual injunction in favour of plaintiff and also granted the decree of mandatory injunction directing the defendants to remove opened door by them on their eastern wall. There is neither erroneous appreciation of evidence or improper appreciation of evidence by lower appellate Court calling for formulating substantial question of law in this regard. Hence, I find no merit in this appeal and I proceed to pass the following:

"ORDER

Second appeal is hereby dismissed.

Judgment and decree dated 24.02.2012 passed in R.A. 20/2011 by Senior Civil Judge, Chincholi affirming the Judgment and decree dated 21.04.2011 passed in O.S. 36/2005 by Prl. Civil Judge and JMFC, Chincholi stands confirmed.

No order as to costs.

Registry to draw the decree accordingly.

Registry is directed to transmit the records to the jurisdictional Court."

In view of appeal having been disposed of I.A. 1/2015 does not survive for consideration and stands rejected.