Shivayogappa vs Basavanneppa Bellur and Others

B. Veerappa, J—The appellant -- plaintiff filed the Regular Second Appeal against the judgment and decree dated 27.05.2011 made in R.A. No. 45/1995 on the file of the Senior Civil Judge, Haven, confirming the judgment and decree dated 31.10.1995 made in O.S. No. 59/1987 on the file of the Munsiff and J.M.F.C., Haven dismissing the suit of the plaintiff for permanent injunction.

The appellant - plaintiff filed O.S. No. 59/1987 against the respondent -- defendants for permanent injunction contending that the suit property belongs to Prabhavatibai W/o. Mallikarjunappa Varad and it was in her possession and her husband was doing cardamom business at Mangalore and she was also residing at Mangalore with her husband. As a result, the suit property was not required by the aforesaid Prabhavatibai for her personal use and occupation and therefore, a rent note dated 08.08.1986 was made by the said Prabhavatibai and gave it to the plaintiff on rent. Not only the suit property, but also an adjoining property was given on rent by the said Prabhavatibai to the plaintiff on rent. The aggregate rent was Rs. 300/- per month. The rent in respect of the suit property was only Rs. 15/- per month. Due to the demand made by the aforesaid Prabhavatibai, the plaintiff has already vacated the other property and has given possession of the same to her. However, the plaintiff had continued his tenancy in respect of the suit property and started residing therein. Some of his relatives viz., brother-in-law, brother and mother-in-law are also residing with him in the suit property. The plaintiff is employed in KSRTC at Hirekerur, but he has kept his family in the suit property at Haven. The plaintiff periodically visited Haven and also further contended that it was came to his notice that the husband of the aforesaid Prabhavatibai has created some bogus sale deed in favour of the defendants. Even though it is mentioned in the said sale deed that the possession was handed over to the defendants, the plaintiff continued in the possession of the suit property. The recital regarding handing over of the possession in the alleged sale deed is bogus. The husband (Mallikarjunappa Varad) of Prabhavatibai died on 26.03.1987. The defendants taking disadvantage of the said fact, started interfering with the possession of the plaintiff in respect of the suit property. Therefore, the plaintiff filed the suit.

The defendants filed written statement and admitted that the suit property belongs to Smt. Prabhavatibai W/o. Mallikarjunappa Varad. However, they have denied that he has the benefit of the suit property and ultimately contended that the aforesaid Prabhavatibai had given suit property as rent to the plaintiff and further contended that the husband of Prabhavatibai on the strength of general power of attorney executed the sale deed in respect of the suit property in favour of the defendants and executed the registered sale deed on 05.09.1986 for sale consideration of Rs. 1,95,000/- and defendants have paid full amount of consideration and the defendants were put in possession on the date of the sale deed and they are in possession of the suit schedule property. The plaintiff never put in possession of the suit property. The alleged rent note dated 08.08.1986 is a bogus and fabricated document and also contended that after the death of the husband of Prabhavatibai, she unnecessarily challenged the sale by giving a public notice in Samyukta Karnataka and defendants given a suitable reply to the said notice. The plaintiff had never resided in the suit property. The plaintiff was posted at Hirekerur and was residing at Hirekerur and therefore, he had no business to do in the occupation of the suit property. The plaintiff was not the tenant of the suit property. The defendants had never interfered with the possession of the suit property as alleged, because there is no question of the plaintiff''s possession in respect of the suit property. In fact, the suit property was in possession and enjoyment of the defendants and the plaintiff files a false complaint against the defendants through one Virappa Shirur in the Police Station at Haven. The plaintiff and Prabhavatibai did so only with an intention to dispossess the defendants from the suit property. The CPI of Haven visited the suit property and locked the same and delivered the key to the JMFC. Thereafter, an application was filed before JMFC, Haven and obtained the possession of the key. The said order was passed by the learned JMFC without notice to the defendants. But on the very next day i.e., on 19.05.1987 the defendants also filed an application for setting aside the said order and prayed the Court to deliver the key of the suit property to them. During that time, the plaintiff and the aforesaid Prabhavatibai have fabricated the rent note dated 08.08.1986. Further, they filed this suit in the Court of the Vacation Judge at Dharwad and obtained ex parte injunction. The plaintiff is a close relative of Prabhavatibai and therefore, both of them together have fabricated the said document to dispossess the suit schedule property. Therefore, the defendants prayed for dismissal of the suit.

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

"1. Whether the plaintiff proves that he is the tenant of the suit property and in pursuance of the tenancy he is in lawful possession of the suit property?

Whether the plaintiff proves that there was an obstruction from the defendants as alleged in the plaint?

Whether the plaintiff proves that he is entitled for perpetual injunction as sought for?

To what order or decree?"

The plaintiff in order to establish his prima facie case, examined himself as P.W. 1 and witnesses as P.Ws. 2 to 4 and produced documents Exs. P-1 to P-29. The defendant examined as D.W. 1 and witnesses as D.Ws. 2 and 3 and produced documents Exs. D-1 to D-4. After considering both the oral and documentary evidence on record, the Trial Court recorded a finding that the plaintiff failed to prove that he is the tenant of the suit property and he is in possession of the suit property and also the plaintiff failed to prove that there is an obstruction from the defendants and therefore, he is not entitled to the permanent injunction as sought for. Accordingly, suit came to be dismissed.

Against the said judgment and decree of the Trial Court, plaintiff filed an appeal in R.A. No. 45/1995 before the Senior Civil Judge, Haven, who after hearing both the parties by the impugned judgment and decree dated 27.05.2011 has dismissed the appeal confirming the judgment and decree of the Trial Court. Against the said concurrent finding of fact, the present regular second appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri Gurudev I. Gachchmamath, learned counsel for the appellant has contended that the impugned judgment and decree passed by the Courts below is erroneous and contrary to law. He further contended that both the Courts directed the plaintiff to hand over the possession of the suit property in favour of the defendants even without any counter claim as contemplated under Order 8 Rule 6A of the Code of Civil Procedure by the defendants. He also contended that both the Courts erred in not considering the rent note dated 08.08.1986 thereby committed a serious irregularity in dismissing the suit of the plaintiff. Therefore, he sought to set aside the judgment and decree of the Court below.

Per contra, Shri N.P. Vivek Mehta, learned counsel for the caveator respondents sought to justify the impugned judgment and decree of the Trial Court and contended that the plaintiff and Prabhavatibai have colluded together only to deprive the legitimate rights of the defendants in respect of immovable property acquired in pursuance of the registered sale deed dated 05.09.1986 for valuable consideration of Rs. 1,95,000/-and said Prabhavatibai admittedly filed execution petition in E.P. No. 4/2012 before the Civil Judge (Jr. Dn.) and JMFC, Haven and in the said execution petition filed under Order 21 Rule 97 read with Section 151 CPC in para 8 specifically stated that about 15 years back the plaintiff has been deposed from the property in question which reads as follows:

Learned counsel for the respondents further contended that the conduct of the plaintiff is nothing but playing fraud with the Court and he is not entitled for the equitable order of permanent injunction and relied upon the judgment of the Hon''ble Supreme Court in the case of South Eastern Coalfields Ltd. Vs. State of M.P. and Others, AIR 2003 SC 4482 : (2003) 2 JT 443 Supp : (2003) 8 SCALE 600 : (2003) 8 SCC 648 : (2003) 4 SCR 651 Supp : (2003) AIRSCW 5258 : (2003) 7 Supreme 539 and sought to dismiss the appeal.

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

The entire case of the plaintiff/appellant is based on Ex. P. 3 the Rent Note dated 8.8.1986 and the entire case of defendants is based on Ex. D. 4 the sale deed dated 5.9.1986. Considering the entire material on record, the trial court recorded a specific finding that P.W. 1 though has adduced evidence was not available for cross examination. P.W. 2 the Power of Attorney Holder of plaintiff, i.e. brother-in-law of plaintiff, has given evidence stating that plaintiff is in possession of the suit property. The plaintiff has not examined Prabhavatibai Warad regarding execution of Ex. P. 3 Rent Note. Both plaintiff and said Prabhavatibai Warad have not entered into the witness box. PW. 2 brother-in-law of plaintiff has stated the plaintiff is still in active service working in KSRTC, Haven. It is the case of plaintiff that he is in peaceful possession and enjoyment of the suit property as on the date of the suit. It is for the plaintiff to establish the said fact by producing oral and documentary evidence. In the present case, either the plaintiff or Prabhavatibai Warad alleged to have executed the Ex. P. 3 dated 8.8.1986 and they have not adduced their best evidence in support of Ex. P. 3 and therefore, the Ex. P. 3 cannot be accepted as rightly observed by both the courts below. Therefore, an adverse inference has to be drawn against the plaintiff under the provisions of Section 114(g) of the Indian Evidence Act. It is worthwhile to note that, Ex. P. 3 Rent Note is unregistered document which is executed on a stamp paper of Rs. 5/- for a period of three years and hence, the same is hit by Section 107 of Transfer of Property Act. Therefore, the said unregistered and insufficiently stamped Rent Note Ex. P. 3 is not admissible in evidence and it cannot be looked into and it is of no assistance to plaintiff to establish his tenancy in respect of the suit schedule property.

The Trial Court also recorded a finding that PW. 2 who is brother-in-law of plaintiff is his close relative and admitted in the cross-examination that husband Mallikarjunappa of Prabhavatibai Warad was his matrimonial uncle. PW. 3 Rajanna is no where related to both sides. Therefore, there is no reason to disbelieve his testimony. In fact during the pendency of the proceedings the Court asked specific question to the learned Counsel for the plaintiff as to whether Prabhavatibai Warad is living or not. But the learned Counsel for the plaintiff answered in the affirmative. But the said Prabhavatibai Warad was not examined before the Court to prove the alleged Rent Note. The Trial Court further held that, there is absolutely no evidence on record to indicate that aforesaid Prabhavatibai Warad is incapable of giving evidence. In such circumstances, the trial court opined that plaintiff has not adduced the best possible evidence of Prabhavatibai Warad and the plaintiff himself. Ex. P. 3 is dated 8.8.1986, Ex. D. 4 sale deed in favour of defendants is dated 5.9.1986. Thus, it is clear that Ex. P. 3 has come into existence less than a month prior to the sale deed Ex. D. 4. The said Rent Note is addressed to Prabhavatibai Warad by the plaintiff it clearly appears from the said rent note that it is in respect of twin houses including the suit property. The rent fixed was Rs. 300/- per month for the twin houses. But, Ex. P. 3 nowhere shows the date from which the tenancy of the plaintiff commenced. The text no where shows that plaintiff was in possession of the suit property as tenant even prior to execution of Ex. P. 3. Therefore, it is presumed that rent note came into existence on 08.08.1986 and the alleged tenancy of the plaintiff commenced from 8.8.86. The last four lines of Ex. P. 3 show that the said tenancy was for a period of 3 years. The Rent Control Act no where prescribes the execution of a lease deed as Rent Note. Therefore, the plaintiff and his so-called landlord Prabhavatibai Warad had chosen to execute the Rent Note which was covered by the Transfer of Property Act.

Section 107 of Transfer of Property Act lays down that, any lease exceeding one year must be by a registered document and Ex. P. 3 is not a registered document. It is also not properly stamped. Because the rent per month for the twin houses including the suit property was Rs. 300/- per month. Hence, parties to document Ex. P. 3 ought to have paid proper stamp duty and got it registered. Ex. P. 3 is on a stamp paper of Rs. 5/- which is meaningless. The plaintiff has not even paid penalty. Hence, Ex. P. 3 is hit by provisions of Section 107 of Transfer of Property Act. Therefore, the unregistered and insufficiently stamped Ex. P. 3 cannot be made admissible in evidence and cannot be looked into and the said document is of no assistance to plaintiff to establish his tenancy in respect of suit property.

The trial court also recorded a finding that, to establish his possession the plaintiff has adduced sufficient oral and documentary evidence. The plaintiff filed suit on 18.5.87 in the court of vacation judge at Dharwad and obtained ex-parte injunction on 19.5.87 against the defendants. PW. 2 had filed complaint against the defendants with jurisdictional police and filed an application in the Court of the JMFC, Haven, and took possession of the keys of the suit property through the order of JMFC, Haven on the same day i.e. on 19.5.87. Ex. P. 4 shows that JMFC, Haven, passed order on 19.5.87 directing the Investigation Officer to hand-over keys of the suit property to the complainant of that case, i.e. PW. 2. It also appears that on the very next day i.e. on 20.5.87 Sri C.C. Neeralgi, the learned Counsel for defendants (accused in that particular criminal case) filed an application to set aside the said order. But, from the oral evidence of DW. 1 and other documentary evidence it appears that the said order dated 19.5.1987 passed by JMFC, Haven, remained in force and was never set aside either by him or by any superior court. The records of this case also show that ex-parte TI issued against the defendants has remained in force till the disposal of this suit on merits. The trial court also recorded a finding that as on the date of the suit i.e. 18.05.1987, the plaintiff was not in lawful possession of the suit property. But, he obtained possession of the suit property on 19.5.1987 by virtue of an order passed by JMFC, Haven, in Haven Police Station Crime No. 119/1987. The plaintiff through PW. 2 obtained the said possession on the very next date of the suit. His possession is still protected under temporary injunction issued by this court in this very suit. But, the plaintiff has failed to establish his tenancy in respect of the suit property. Therefore, his possession obtained through JMFC, Haven, on 19.5.87 was unlawful possession. The fact of giving possession of suit property by the plaintiff through order passed by JMFC, is also clear from Ex. P. 7. Admittedly, the plaintiff has no title in respect of the suit property. Therefore, even though at present the plaintiff is in possession of the suit property, his possession is unlawful. The plaintiff has produced various documents which are at Ex. P. 9 to P. 15, P. 19 to 23, P. 25 to P. 27 and Ex. 29. A perusal of the said documents clearly show that they are dated beyond 19.5.1987. Therefore, the said documents are of no assistance to the plaintiff to establish his possession in respect of the suit property as on the date of the suit.

The trial court also observed while considering issue No. 4 that plaintiff has obtained possession of the suit property on 19.5.1987 by virtue of an order passed by the JMFC, Haven. The said order is still in force and the possession of the plaintiff is further protected by interim injunction issued in the suit and the said possession is unlawful because he obtained possession of the suit property on 19.5.1987 by stratagem trick. If the suit is dismissed without any further orders, the defendants are likely to use muscle power to vacate the plaintiff from the suit property which cannot be permitted. It is equally true that defendants cannot be directed to file fresh suit for evicting plaintiff from suit property. If that is done, that would amount to travesty of justice. Therefore, trial court dismissed the suit and directed the plaintiff to vacate and hand-over vacant possession of the suit property within sixty days.

On re-appreciating entire material on record, the lower appellate Court has come to the definite conclusion that during the pendency of the suit the said Prabhavatibai Warad and her husband were alive. At that time, plaintiff could have examined the said persons to prove his case about execution of the Ex. P. 3 document, but he has not done so. The evidence before the trial court clearly discloses that the plaintiff is the permanent resident of Byadagi town. He has been working at Hirekerur town from the beginning. Under the said circumstances, why he took the suit schedule property on a monthly tenancy basis has not been properly explained by the plaintiff either in the plaint or in evidence of P.Ws. 1 to 4. The evidence placed before the trial court clearly disclose that the plaintiff and P.Ws. 1 and 2 are close relatives of the said Prabhavatibai Warad. The paper publication as stated supra discloses that the said Prabhavatibai Warad has been disputing the execution of the sale deed - Ex. D. 4, by way of making paper publication. But she has not taken any steps to cancel the said document in accordance with law. Till today, the sale deed marked as Ex. D. 4 has not been cancelled or set aside. Under the said circumstances, it is clear that the said Prabhavatibai Warad and her husband have instigated the plaintiff to file the suit by creating false story that plaintiff is tenant of the suit property. The evidence placed before the Court by the plaintiff also do not clearly disclose that P.Ws. 1 and 2 are residing in the suit schedule property as tenant from the year 1986. On careful perusal of the entire evidence placed before the Court, it is clear that at the instigation of the said Prabhavatibai Warad and her husband the plaintiff filed the suit and also filed complaint against defendants in Crime No. 119/97. It is also clear that by creating false story the plaintiff has obtained key of the suit schedule property through the Court and that thereafter P.W. 2 has been contending that he is residing in the suit property. But the Court Commissioner evidence clearly disclose that there was no symptoms that somebody was residing in the said house. As stated supra, the contents of sale deed marked at Ex. D. 4 Sale Deed also clearly discloses that the building situated in the suit schedule property was in a dilapidated condition as on the date of execution of the sale deed. Therefore, he opined that no grounds to discard or disbelieve the report of the Commissioner and there were no symptoms that somebody have been residing therein. The evidence placed before the Court by the plaintiff did not disclose that he has been in lawful possession and enjoyment of the suit schedule property. His possession if any over the suit schedule property is only a permissive basis since he has obtained key of the suit schedule property from the Court by way of creating a false story. The appellate court further recorded a finding that, in fact he has not been residing in the suit schedule property. Through the order of the Court P.W. 2 has obtained key of the suit schedule property for plaintiff he may reside over the same for some period, but recent circumstances disclose that suit schedule property has been collapsed and that it was unsuitable for residential purpose. The Court Commissioner has clearly reported that there was no symptoms that somebody have been residing in the building situated in the suit schedule premises. Therefore, on careful perusal of the materials placed before the trial court it dismissed the suit and same is in accordance with law. Accordingly, the appeal came to be dismissed.

Both the courts have concurrently held that the plaintiff has failed to establish his possession as on the date of the suit. Admittedly, Prabhavatibai Warad and her husband were not examined before the Court. The agreed rent as per rent note dated 8.8.1986 was for Rs. 300/- per month and admittedly, the tenancy was for a period of three years and the same is hit by provision of Section 107 of Transfer of Property Act.

Both the courts below have concurrently held that plaintiff has not proved his possession and the plaintiff Prabhavatibai Warad and her husband colluded together and filed suit to harass the defendants who are fighting for the case on the basis of registered sale deed dated 5.9.1986. The appellant/plaintiff without any right or authority, has dragged the proceedings from 1987 till today i.e., for a period of about 28 years and this attitude of the plaintiff is nothing but a litigation gamble and cannot be encouraged in view of the dictum of the Supreme Court in the case of South Eastern Coalfields Ltd. Vs. State of M.P. and Others, AIR 2003 SC 4482 : (2003) 2 JT 443 Supp : (2003) 8 SCALE 600 : (2003) 8 SCC 648 : (2003) 4 SCR 651 Supp : (2003) AIRSCW 5258 : (2003) 7 Supreme 539 . The Hon''ble Supreme Court in the said case has categorically held that:

"Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation."

Sri. G.I. Gachchinmath, learned Counsel for appellant, stressed on the possession that both the courts below have held that plaintiff is in possession and therefore, in the absence of any action claimed by defendants, his position cannot be disturbed. The said argument cannot be accepted. The plaintiff got possession on the basis of an interim order through P.W. 2 and that interim order always merges with the final decision and since ultimately the suit came to be dismissed, it was held that plaintiff has not proved his possession as on the date of suit.

The Hon''ble Supreme Court in the case cited supra, has held as follows:

"The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed."

In the present case, admittedly, there is no piece of paper produced by the plaintiff to prove his possession as on the date of suit. It is also relevant to state at this stage, the very landlord Prabhavati Warad also filed application No. 4/12 before the learned Civil Judge (Jr. Dn) & JMFC, Haven, under Order 21 Rule 97 read with Section 151 of Code of Civil Procedure. In the said application, at para-8 she has categorically stated as follows:

Therefore, the contention of the learned Counsel for the appellant cannot be accepted and both the courts concurrently held that the plaintiff was not in possession of the suit property as on the date of the suit and he came to be in possession of the suit property by way of an interim order and ultimately the interim order passed merges with the final order by the court. The conduct of the party is nothing but abuse of process of the court and he has conveniently dragged the proceedings for more than 28 years and therefore, this regular second appeal is liable to be dismissed with exemplary costs.

Therefore, the appellant has not made out any substantial question of law to admit the present appeal. Accordingly, the appeal is dismissed with costs of Rs. 5,000/-.