Shekappa Yamanappa Kankanawadi and Others vs Vishnu Rajaram Devagirikar

K.N. Phaneendra, J.—This Regular Second Appeal is preferred by the defendants aggrieved by the judgment and decree passed by the Trial Court in O.S. No. 249/2001 dated 08.06.2006 on the file of the III-Additional Civil Judge (Jr. Dn.) Bijapur, which was confirmed by II-Additional Senior Civil Judge, Bijapur, in R.A. No. 120/2006 dated 14.09.2012.

For the purpose of convenience, I would like to retain the ranks of the parties as per their rankings before the Trial Court.

The plaintiff - Vishnu Rajaram Devagirikar filed a suit for permanent injunction against four defendants by restraining them from interfering with the possession and enjoyment of the land bearing Sy. No. 1013/2 measuring 9 acres 20 guntas of Mahalbhagayat, Bijapur. The said suit was contested by the defendants and after due contest, the said suit came to be decreed. The Court not only granted permanent injunction as sought for by the plaintiff but also gave liberty to the defendants to establish their title for taking possession of the suit property in due process of law subject to law of limitation. Being aggrieved by the said judgment and decree, the defendants have preferred an appeal in R.A. No. 120/2006. The First Appellate Court also after re-appreciating the oral and the documentary evidence on record confirmed the judgment of the Trial Court by dismissing the appeal.

The brief factual matrix of the respective parties as exposed in their pleadings are that,--

The plaintiff claims that he is the absolute owner of the said property having purchased by the father of the plaintiff from one Dhareppa S/o Shivappa Halahalli and others under a registered sale deed dated 07.02.1962. Since the date of purchase, they have been in possession and enjoyment of the property. In fact, the plaintiff claimed that he became the owner of the said land as the same was allotted to his share in the family partition effected by his father with the other brothers of the plaintiff. The mutation was also accepted in M.E. No. 13992 of Mahalbhagayat in the year 1994 itself. Since that date, the plaintiff has been in exclusive possession and enjoyment of the said land. The defendants who are strangers to the suit land, all of a sudden, on 11.06.2001 threatened the plaintiff and his men claiming right in the suit scheduled property. Therefore, the suit came to be filed.

The defendants entered appearance and filed their written statement denying the averments made in the plaint with regard to the ownership and possession over the land by the plaintiff and also denied the said sale deed relied upon by the plaintiff. It is alleged that the said sale deed was collusive and make believe and fraudulent transaction made with a view to create a false claim to the suit land. The defendants not only denied the partition between the brothers of the plaintiff but also denied the exclusive possession of the plaintiff over the suit schedule property. They have taken the special defence that the suit property was earlier owned by one Shivappa Dhareppa Halahalli and Dhareppa Shivappa Halahalli. On 10.07.1933, they sold the suit land along with Sy. No. 66/2 of Chandapur village by registered sale deed for Rs. 700/- to one Ramachandra Balavantrao Konnur and in pursuance of the same, mutation was also accepted. Subsequently, on 02.01.1942, the said Ramachandra sold the land bearing Sy. No. 69/2 measuring 9 acres 22 guntas along with Sy. No. 66/2 to one Muttawwa D/o Hanamantappa Madar of Bijapur, for valuable consideration of Rs. 1,700/- vide registered sale deed dated 03.01.1942 and the said Muttawwa was in possession of the said land. The said Sy. No. 69 of Chandapur village was originally measuring 23 acres 38 guntas and it was owned by Shivappa Dhareppa Halahalli and Dhareppa S/o Shivappa Halahalli. Out of the said Sy. No. 69, the said two owners sold western portion measuring 14 acres of the said land to one Sangappa Basappa Bijjaragi for Rs. 1,200/- under a registered sale deed on 25.06.1930 putting him in possession of the land. As a result, the said land was later sub-divided into Sy. Nos. 69/1 and 69/2. In the year 1947, agricultural lands of Chandapur village were merged into Mahalbhagayat survey numbers and Chandapur Sy. No. 69 was freshly re-numbered as Mahalbhagayat Sy. No. 10130 as per M.E. No. 2569 of Mahalbhagayat. The said Muttawwa died in the year 1948 leaving behind her son Yamanappa. The said Yamanappa and the present defendant continued to cultivate the suit land without any disturbance. The father and mother of defendant Nos. 1 to 3 were completely illiterates and defendant Nos. 1 to 3 are semi-illiterates and they are hardly able to put their signatures. It is contended that one year prior to the filing of the suit, the plaintiff and his brothers proposed to make an offer for the suit land. On suspicion, the defendants made enquiries, they shocked to know that the name of the father of the plaintiff was shown in the ROR for the year 1953-54 to 1964-65. Thereafter, the defendants made investigation of the revenue records and came to know that by means of collusion, the documents have been created and mutation has been accepted in favour of the plaintiffs father and subsequently, in the name of the plaintiff. Therefore, on these grounds, they pleaded for dismissal of the suit.

On the basis of the pleadings of the parties, the Trial Court has framed the following issues:

"i. Whether the plaintiff proves that he is in peaceful possession and enjoyment of suit land Sy. No. 1013/2 measuring 9 acres 20 guntas of Mahalbhagayat, Bijapur?

ii. Whether the plaintiff proves interference by the defendants in peaceful possession and enjoyment of the suit property?

iii. Whether the defendant Nos. 1 to 4 prove that they are in lawful possession of the suit property?

iv. Whether the plaintiff is entitled to the relief of perpetual injunction?

v. Whether the defendants are entitled to the reliefs sought in their counter claim?

vi. What order/decree?"

The entire issues show that the Trial Court has concentrated with regard to the possession of the suit schedule property by the plaintiff or by defendant Nos. 1 to 4. The plaintiff in order to prove his case, examined himself as P.W. 1 and got examined three witnesses as P.Ws. 2 to 4 and got marked Exs. P1 to P14. Defendant No. 1 examined himself as D.W. 1 and got examined four witnesses as Dz.Ws.2 to 5 and got marked Exs. D1 to D38.

On going through the entire materials on record, the Trial Court has come to the conclusion that the plaintiff has established his possession over the suit schedule property. Therefore, answering issue Nos. 1, 2 and 4 in the affirmative and issue Nos. 3 and 5 in the negative, decreed the suit of the plaintiff.

The Trial Court mainly concentrated on the oral evidence of the witnesses and also documents produced by the plaintiff. Relying upon the sale deed, mutation extracts, tax paid receipts and complaint lodged by the plaintiff and also charge sheet filed against the defendants etc. the Court has come to the conclusion that the plaintiff has established his possession over the suit schedule property. It appears, the said observation of the Trial Court is tentative in nature because, the Trial Court has also made observation that the defendants have claimed title over the property but they have no possession over the suit schedule property. Therefore, it has observed that if at all the defendants have acquired any title over the property through one Muttawwa as alleged by them, they have to work out their remedy by filing separate suit by getting declared that they are the owners of the said property and can seek possession from the plaintiff. Therefore, looking from the above said documentary and oral evidence of the parties, the Trial Court on analyzing the factual matrix has come to the conclusion that possession was with the plaintiff as on the date of the suit and prior to the filing of the suit. Therefore, on facts, the Trial Court decreed the suit.

Even before the First Appellate Court similar grounds are urged by the defendants, the First Appellate Court has framed the following points for consideration:

"i. Whether plaintiff proves that he is in possession of suit property bearing No. 1013/2 measuring 9 acres 20 gnutas?

ii. Whether plaintiff further proves that defendants are interfered with suit property?

iii. Whether plaintiff is entitled for injunction as sought for?

iv. Whether defendant No. 1 to 4 proves that they are in lawful possession of suit property and entitled for counterclaim?

v. Whether the judgment and decree of the Trial Court need to be interfered with? If so to what extent?

vi. To what or relief?"

Almost similar points referring to the possession of plaintiff and defendant Nos. 1 to 4 have been framed by the First Appellate Court. The First Appellate Court has also re-evaluated the materials on record and in fact, appreciated the documentary evidence and the oral evidence. On the basis of the admission of the defendants with regard to the possession of the plaintiff, the First Appellate Court has come to the conclusion that plaintiff has been in possession and enjoyment of the suit schedule property. Therefore, it gave its finding on point Nos. 1 to 3 in the affirmative and on point Nos. 4 and 5 in the negative and ultimately, dismissed the appeal confirming the judgment and decree passed by the Trial Court.

What could be seen from the judgment of the Trial Court as well as the First Appellate Court is neither of the Courts have framed any question of law raised between the parties. There was no point for consideration with respect to any legal aspect. Both the Courts have appreciated the oral and the documentary evidence on record in order to appreciate the possession of the plaintiff and defendant Nos. 1 to 4. Therefore, when there is no question of law raised either by the defendants or by the plaintiff before the Trial Court or before the First Appellate Court, there arises no substantial question of law to be decided by this Court. Therefore, I do not find any strong reasons to frame any substantial question of law in this particular case. Hence, the Regular Second Appeal deserves to be dismissed. Accordingly, the appeal is dismissed.