Shivabai vs Jettappa

K.N. Phaneendra, J.—After hearing the learned counsel appearing for both the parties, this appeal is taken up for disposal at the admission stage itself.

The appellant herein filed a suit against the defendant (respondent herein) for permanent injunction restraining the defendant from interfering with the plaintiffs possession and enjoyment of the suit schedule property. The plaintiff claimed that he is the owner in possession and enjoyment of the property bearing V.P.C. No. 77 of Kerutagi village which is a house property under open site. It is averred that plaintiff has purchased the said property from one Kalyanasingh Hanumanasingh Rajaput for valuable consideration of Rs. 15,000/- under a registered sale deed dated 14.11.1996 by giving specific details about the situation of the said property, by giving boundaries and measurements. The plaintiff contended that he has been in possession and enjoyment of the said property and he sought permission to construct building in the suit property. In fact, permission was also granted by the competent authority. It is alleged that the defendant who has no manner of right, title and interest over the suit property has threatened the plaintiff with dire consequence of dispossessing from suit property and interfered with the plaintiffs possession and enjoyment of the property. Hence, he filed a suit for perpetual injunction.

The defendant made his appearance before the Trial Court in O.S. No. 55/1998 on the file of the Additional Civil Judge (Junior Division), Sindgi and filed his written statement countering the allegations made in the plaint. He denied the plaintiff is the owner in possession and enjoyment of the suit schedule property and he denied the description of the property. The defendant contended that the plaintiff is not the owner or in possession of the property. The allegation of defendant interfering with the plaintiffs possession has been categorically denied. Apart from denying the case of the plaintiff, the defendant has contended that he is the owner in possession of the open space situated towards the eastern side of the house of the plaintiff which he has purchased under the sale deed dated 12.05.1960. From the date of purchase he has been in possession and enjoyment of the said open space. The plaintiff, who has no right, title and interest of whatsoever nature over the open space belonging to the defendant, has approached this Court with false, frivolous and vexatious grounds and therefore, pleaded for dismissal of the suit.

On the basis of the said rival pleadings, the Trial Court has proceeded to frame the following issues:

i. Does plaintiff prove that, he is owner in possession of V.P.C. No. 77 of Kerutagi measuring 55'' X 35'' comprising house and open site as on the date of suit?

ii. Whether plaintiff prove the alleged obstruction by defendant?

iii. Whether plaintiff entitle for relief sought?

iv. What order or decree?

The Trial Court has framed the issues with reference to the ownership of the plaintiff. In a suit for permanent injunction, consideration of the ownership rights of the plaintiff though it is consequential, but no such relief can be granted in a suit for only permanent injunction. Therefore, though such an issue is framed to the extent that it refers to the ownership it has become redundant. The Trial Court has proceeded to record the evidence and in fact, the plaintiff examined himself as PW.1 and one more witness Shankranna Channappa Chattaraki as PW.2 and got marked several documents as Exs.P1 to P3. The defendant also examined himself as DW.1 and examined another witness Hirabai as DW.2. The defendant got marked Exs.D1 to D6.

ExP1 is the original sale deed executed by the vendor of the plaintiff in respect the property bearing V.P.C. No. 77 of Kerutagi village in favour of the plaintiff. Under Ex.P2 the plaintiff has shown that he has paid taxes to the said property and Ex.P3 is also another tax paid receipt.

The defendant has also produced the sale deed at Ex.D1 under which he purchased the property and Ex.D2 is the tax assessment card in respect of V.P.C. No. 90 for the year 1990-1991 and so on. Exs.D3 to D6 are also tax paid receipts pertaining to the said property.

The Trial Court after analyzing the oral and the documentary evidence on record has come to the conclusion that plaintiff has established his possession over the suit schedule property as on the date of the suit. The Trial Court has also come to the conclusion that plaintiff has not established the interference by the defendant. Therefore, though the Court has held issue No. 1 partly in the affirmative, held issue No. 2 in the negative and ultimately dismissed the suit of plaintiff.

Being aggrieved by the said judgment of the Trial Court, the plaintiff approached the first appellate Court by means of filing an appeal in R.A. No. 29/2000. The first appellate Court after analyzing the materials on record came to the conclusion that plaintiff has not established the case and consequently, judgment of the Trial Court came to be confirmed. It clearly goes to show that on the basis of the factual matrix with regard to possession of the property by the plaintiff and the materials and evidence on record, the Trial Court and the first appellate Court have come to the conclusion that plaintiff has not established his case. Therefore, suit came to be dismissed consequently, the first appellate Court also dismissed the said appeal.

Looking to the above said material on record, the Trial Court as well as the first appellate Court have extensively relied upon the oral and the documentary evidence placed before the Court. Looking to the issues framed by the Trial Court as well as the points raised for consideration by the first appellate Court, no legal issues framed so as to frame a substantial question of law before this Court as to whether the Trial Court or the first appellate Court have committed any legal error in drawing such inference. When the entire case is decided by the Trial Court as well as first appellate Court only on the basis of the factual matrix without there being committing any illegality or irregularity, such fact findings recorded by the both the courts below should not be interfered with by this Court exercising power under Section 100 of the Code of Civil Procedure while dealing with regular second appeal.

Section 100 of CPC empowers this Court to entertain the regular second appeal only when there is substantial question of law raised before this Court. Unless the Court is satisfied that there is any substantial question of law involved, the second appeal cannot be entertained. The provisions of Section 100 of CPC envisages that if the High Court is satisfied that the case involves substantial question of law, then only the Court has to frame substantial question of law and proceed to hear the appeal on merits. It is not that merely some question of law and facts are involved in a case is not sufficient to interfere with long drawn dispute between parties being adjudicated. The possession of the property and interference by the defendant are two important aspects dealt with by the Trial Court as well as by the first appellate Court on the basis of the facts provided by the parties to the suit. Therefore, I am of the opinion that no legal issues or no substantial question of law are available in this case.

Under the above said circumstances, there is no need to admit the appeal or to hear the appeal on any substantial question of law. Therefore, at the admission stage itself, this Regular Second Appeal deserves to be dismissed.

Accordingly, the appeal is dismissed.