Shivaji Narayan Desai vs Amrut Vithoba Bharankar

B. Veerappa, J.—This is an unsuccessful plaintiffs Regular Second Appeal against the judgment and decree dated 16.12.2013 made in R.A. No. 303/2008 on the file of the Civil Judge (Sr.Dn.) Khanapur, confirming the judgment and decree dated 6.10.2007 made in O.S. No. 14/2007 on the file of the Civil Judge (Jr.Dn.), Khanapur, dismissing the suit for permanent injunction.

It is the case of the plaintiff that the suit land was cultivating by the father of the plaintiff, whose name was appearing as tenant and after his death, the plaintiff was continued in possession and enjoyment of the same. It is the further case of the plaintiff that the Land Tribunal, Khanapur conferred occupancy rights in favour of the plaintiff to an extent of 8 acres in the suit land. However, the plaintiff and his brother continued to cultivate the suit land in its entirety and are in possession and enjoyment of the same till today. The name of the plaintiff has been appearing in the revenue records as owner and cultivator to the entire extent till recently and the plaintiff is in possession, wahiwhat and enjoyment of the suit land and he grows the crops like paddy in rainy season and chillies in summer season. One Sri Mukundrao Nagojirao Sirdesai was the landlord of the suit land. The defendant has no manner of right title or interest over the suit land, with an intention to grab the suit property and to dispossess the plaintiff from the suit land is trying to disturb the peaceful possession, enjoyment and cultivation of the same etc. Therefore, he filed the suit. The defendant appeared through his counsel, but he did not file the written statement.

Based on the pleadings the Trial Court framed the following issues:--

"1. Whether the plaintiff proves that he is in lawful possession and enjoyment over the suit property as on the date of filing of the suit?

Whether the plaintiff proves interference of the defendant as alleged in the suit plaint?

Whether the plaintiff is entitled for the relief of permanent injunction?

What Order?"

The matter was posted for plaintiffs evidence. In order to establish his case the plaintiff examined himself as P.W. 1 and marked the documents as Exs. P1 to P8.

After considering the entire material on record the Trial Court recorded a finding that the plaintiff failed to prove that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit and also failed to prove the alleged interference by the defendant, accordingly the suit filed for permanent injunction came to be dismissed.

Aggrieved by the said judgment and decree the plaintiff filed Regular Appeal No. 303/2008 before the Senior Civil Judge, Khanapur, who after hearing both the parties passed the impugned judgment and decree dated 16.12.2013 dismissed the appeal and confirmed the judgment and decree of the Trial Court. Against the said judgment and decree of the Courts below, the present appeal is filed.

I have heard the learned counsel for the appellant.

Sri S.B. Hebballi, learned counsel for the appellant has contended that the defendant has not filed any written statement and Exs. P1 to P8 - RTC and other material documents produced by the plaintiff clearly indicates that he is in possession and enjoyment of the suit land as on the date of the suit. Therefore, the judgment and decree of the Courts below in dismissing the suit is bad in law and therefore, sought to set aside the judgment and decree passed by both the Courts below.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and perused the entire material on record.

The substance of the plaintiffs case is that his father was a tenant in respect of the suit schedule property which consists of 17 acres 22 guntas of land bearing R.S. No. 11/1 to 17 situated at Budashe Village, Khanapur Taluk. According to the plaint averments the Tribunal granted occupancy rights in respect of 8 acres only and it is not forthcoming what happened to remaining land. Whether he applied to entire land or only 8 acres and according to the plaintiff the owner of the suit schedule property is one Sri Mukundrao Nagojirao Sirdesai and not the defendant. The defendant without any manner of right, title and interest is interfering with the peaceful possession of the plaintiff. Admittedly the owner of the land is not impleaded as a party to the proceedings. The only grievance of the plaintiff is that the ownership of the land is not disputed, but only the defendant is disturbing his peaceful possession. The Trial Court considering the entire material on record has recorded a finding that in Ex. P1 - Record of Right produced for the year 2006-07 the name of the plaintiff is shown as owner and cultivator to an extent of 8 acres of land, where as one Sirdesai M. Nagoji Rao was in possession and cultivation to an extent of 9 acres 22 guntas in the said survey number and said Mukund Sir Desai name is shown in the property extract for the year 2005-2006. Plaintiff has not filed any suit against the said Mukund Sir Desai but he has filed the suit against one Amrut Vithoba Bharankar whose name is not appearing in the record of rights either as owner or cultivator of land. Ex. P1 the record of rights indicate that the plaintiff is not the owner of the entire suit schedule property, but he is the Khabjedar of 8 acres of land. It is the contention of the plaintiff that he has preferred RTS appeal bearing No. 89/2007 before the Asst. Commissioner, Belgaum, against the M.E. No. 3/2005-2006 and the same has been stayed on 18.07.2007. It is not in dispute that the plaintiffs father was granted 8 acres of land in the said survey number but the plaintiff cannot claim possession of entire suit schedule property without producing any material document and admittedly as per Ex. P.8 the matter was pending before the Asst. Commissioner regarding entry of the names in the record of rights of Munkund Rao Sirdesai. When the plaintiff has not produced any material document to show that he is in possession of the entire extent of the suit schedule property, the Trial Court considering the entire material on record came to the conclusion that the plaintiff failed to prove his possession in respect of the entire suit schedule property as on the date of the suit. The contention that the Trial Court ought to have decreed the suit, since defendant has not filed any written statement cannot be accepted. It is worthwhile here to state that under Section 101 of the Indian Evidence Act, 1972, it is the burden on the plaintiff to prove the existence of facts which reads as under:--

"Section 101: Burden of Proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

When the plaintiff failed to prove that he was in possession and enjoyment of the entire suit schedule property he cannot assert that the defendant has not filed the written statement and he is bound to prove the existence of his possession in respect of the entire suit schedule property and the said burden lies on the plaintiff and the burden of proving the fact of possession of the entire suit schedule property always lies on the plaintiff, who assert it unless such burden is discharged, the other party is not required to be called upon to prove his case.

The Lower Appellate Court on re-appreciation the entire material on record has recorded a finding that Ex. P1 - RTC extract as on the date of filing of the suit shows that out of 17 acres 22 guntas of land the plaintiff was in possession and enjoyment of 8 acres of the land and the remaining 9 acres 22 guntas of land was in possession and cultivation by one Mukundrao Nagojirao Sirdesai and the name of the brother of the plaintiff is not found therein. The entries in the revenue records have got presumptive value to prove the contrary. Plaintiff relied on Exs. P2 to P8 and evidence of P.W. 2. Exs. P2 to P8 produced are not in the language of the Court. The plaintiff has not produced any translated certified copies of the same. The evidence of P.W. 2 is also not helpful. Because P.W. 2 is unable to depose the measurement of the land and Ex. P1 - RTC extract produced by the plaintiff does not prove that he is in possession and enjoyment of the entire suit schedule property as on the date of filing of the suit. Accordingly the appeal came to be dismissed.

It is a suit for bare injunction. The plaintiff must prima facie produce documents to prove his possession of the entire land as on the date of the suit. Ex. P1 - RTC extract disclose that only 8 acres and not entire extent of suit schedule land is in possession of the plaintiff and it is not the case of the plaintiff that he has confined the suit only in respect of 8 acres of land, but he himself has admitted that one Mukundrao Nagojirao Sirdesai was the landlord and admittedly he has not been impleaded in the suit purposefully and it is an admitted fact that he has already filed the appeal before the Asst. Commissioner in RTS No. 89/2007 against Mukund Rao Sir Desai and the said matter is still pending adjudication between the parties. In the absence of any material document to prove that he is in possession and enjoyment of the entire property, it is not possible to grant equitable order of permanent injunction. Both the Courts have concurrently held that the plaintiff has failed to prove that he is in lawful possession of the entire suit schedule property as on the date of the suit and plaintiff is not entitled to permanent injunction. Such a finding of fact recorded by the Courts below in respect of the suit for injunction is based on the co-gent legal evidence on record and no substantial question of law is involved in the present appeal to interfere with the findings of fact exercising power under Section 100 of the Code of Civil Procedure. Accordingly, this RSA is dismissed at the stage of admission without reference to the respondent.