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Judgment
B. Veerappa, J—This is a defendants'' second appeal, filed against the judgment and decree dated 11.02.2014, made R.A. No. 33/2013 on the file of the Senior Civil Judge, Hukkeri, confirming the judgment and decree dated 19.06.2013, made in O.S. No. 75/2009 on the file of the Civil Judge, Sankeshwar, granting permanent injunction in favour of the plaintiff.
The respondent, who is the plaintiff in the trial court had filed suit for permanent injunction against the defendants/appellants from constructing any building in the suit property, contending that the suit property is the vacant property measuring 21 feet east to west and 12 feet north to south, situated on the northern portion of VPC No. 496 house having boundaries in the East--a house of one Smt. Dundawwa Hosamani, to the West--property of one Dundappa Dadu Madigar, in the South--house bearing VPC No. 496 and in the North--agricultural field of one Shivagond Patil. In VPC No. 496, the plaintiff has constructed a house in the portion measuring East to West 21 feet, North to South 26 feet and it is facing towards South. There is a door to the backside and from the said door, the plaintiff is going to the suit property and enjoying the suit property by keeping firewood, tying goats, drying cloths etc. Since, 1996 the plaintiff is in possession of the suit property. In the VPC extract of Kesti Panchayat VPC No. 496, which is having a house and vacant portion, stands in the name of the plaintiff under Ashraya Yojane. The defendants have no manner of right, title and interest over the suit property. They have started digging the foundation in the suit property. The plaintiff requested them not to put up any construction in the suit property, but they have not listened to the words of the plaintiff and started digging foundation in the suit property. Therefore, the plaintiff was constrained to file the suit.
The defendants filed written statement contending that the description of the suit property is not correct. They have contended that in the entire VPC No. 496, plaintiff has constructed his house. Therefore, there is no vacant property remaining to the plaintiff on the North of his house and he is not in possession and enjoyment of the said property. The defendants have admitted that VPC No. 496 has been granted to the plaintiff under Ashraya Yojane, but it is his contention that the plaintiff has been granted VPC No. 496 measuring East to West 21 feet and North to South 26 feet. The suit property is not the portion of VPC No. 496. The defendants have contended that the suit property is VPC No. 496 and it is in the name of the 1st defendant and it is measuring East to West 21 feet and North to South 12 feet. In the said vacant portion, the 1st defendant has dug up foundation. VPC No. 499 belongs to the Gram Panchayat and under Ashraya Youjane, it has been granted to the 1st defendant. The 1st defendant is constructing the house by leaving 3 feet towards the house of the plaintiff. The plaintiff has filed this suit with an intention to grab the property in VPC No. 499. Therefore, sought for dismissal of the suit.
Based on the pleadings, the trial court framed the following issues:-
"(i) Whether the plaintiff proves that the suit property shown in letters ABCD in the plaint hand-sketch is the part and parcel of the VPC No. 496 and situated at Kesti village?
(ii) Whether the plaintiff proves that he is in lawful possession and enjoyment of the ABCD area measuring 21 feet, East to West and North to South, 12 feet?
(iii) Whether the plaintiff proves that the defendants are illegally constructing the building in the suit property without having any right or interest?
(iv) Whether the defendant Nos. 1 and 2 prove that the suit bearing VPC No. 499 and it belongs to her?
(v) Whether the defendant Nos. 1 and 2 prove that they are entitled for compensatory costs of Rs. 10,000/-
(vi) Whether the plaintiff proves that he is entitled for the relief as sought for?
(vii) What order or decree?"
In order to establish his case, the plaintiff examined as PW-1 and another witness as PW-2 and got marked documents Exs. P-1 to 9. On the other hand, defendant No. 2 examined as DW-1 and two more witnesses as DWs-1 and 2 and got marked documents Exs. D-1 to 4.
The trial court, considering the entire evidence on record, has recorded a finding that the plaintiff proved the suit property shown in letters ABCD in the plaint hand-sketch is the part and parcel of the VPC No. 496 and situated at Kesti Village and he is in lawful possession and enjoyment of the ABCD area measuring 21 feet East to West and North to South 12 feet and the plaintiff also established that the defendants are illegally constructing the building in the suit property without having any right or interest. Defendant Nos. 1 and 2 have failed to prove that the suit property bearing VPC No. 499 and it belongs to her. Further, Defendant Nos. 1 and 2 have failed to prove that they are entitled for compensatory costs of Rs. 10,000/- and hence, the trial court held that the plaintiff is entitled for permanent in junction. Accordingly, the suit is decreed granting permanent injunction in favour of the plaintiff.
Against the said judgment and decree, the defendants filed an appeal before the lower appellate court in R.A. No. 33/2013. The lower appellate court after hearing both the parties, by its impugned judgment and decree dated 11.02.2014, dismissed the appeal, confirming the judgment and decree of the trial court. Hence, the present regular second appeal is filed.
I have heard the learned counsel for the appellant.
Shri S.B. Patil, learned counsel on behalf of Shn A.B. Koni appearing for the appellants has contended that the impugned judgment and decree passed by the Courts below is contrary to the records and the impugned judgment and decree passed by the Trial Court on the basis of Ex. P-1 is one sided perverse and same has not been noticed by the Appellate Court. Therefore, he sought to set aside the judgment and decree of the Courts below.
I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record.
It is the specific case of the respondent -plaintiff before the Trial Court that he is the owner of suit schedule property i.e., VPC No. 496 and he is in possession and enjoyment of the same. It is the case of the defendant that he is the owner of VPC No. 499, the same was granted to him under Ashraya Yojane.
In order to establish the case, the plaintiff examined himself as P.W.1 and other witness as P.W.2 and produced material documents as Exs. P-1 to P-9 to prove his possession in respect of suit schedule property as on the date of the suit. The defendant examined as D.W.1 and other two witnesses D.Ws. 2 and 3 and produced documents Exs. D-1 to D-4 to disprove the contentions of the plaintiff.
Considering the entire material on record, the Trial Court recorded a finding that P.W.1 has stated that there is a document to show that the measurement of property VPC No. 496, East West 21 feet, North South 26 feet, but he has not produced any documents before the Court. Defendants have not produced any documents to show that VPC No. 499 measuring East West 21 feet, North South 12 feet. D.W.1 admitted in his evidence that in Gram Panchayath extract, the measurement of property is not mentioned. None of the documents produced before this Court either plaintiff or defendants. Even in the resolution passed by the Gram Panchayat, as per Ex. P-7, the measurement of property has not been stated. In such circumstances, the plaintiff cannot prove the measurement of his property and also the defendants cannot prove the measurement of their property bearing VPC No. 499. Therefore, only on the ground that the plaintiff has not produced the document to show the measurement of his property, the case of the plaintiff cannot be discarded. Admittedly, there is no measurement in the Gram Panchayat records in respect of the properties which comes within the limits of Gram Panchayat. Then how the plaintiff can produce the document in respect of his property. Ex. P-1 VPC extract shows that VPC No. 496 is having house and vacant portion. It is the contention of the defendants that the plaintiff has constructed the house in entire VPC No. 496. Exs. P-4 and P-9 shows that money was sanctioned to the plaintiff to construct house under Ashraya Yojane in the year 1996-97. Therefore, the plaintiff has constructed the house much earlier to the year 2008. Ex. P-1 is the VPC extract for the year 2008, it shows that the existence of house and vacant portion. Therefore, it supports the contention of the plaintiff that there is vacant portion remaining in his property VPC No. 496. Moreover, D.Ws. 1, 2 and 3 have admitted that there is vacant portion towards north of plaintiff''s house.
It is the case of the defendant that VPC No. 499 belongs to defendant measuring East West 21 feet, North South 12 feet. Ex. D-3 is the VPC extract pertaining to VPC No. 499. There is no measurement to the said property. D.W.3 - Chandrakant Ramappa Nandganvi is the PDO (Panchayat Development Officer) of Kesti Gram Panchayat. He has stated that as per the resolution passed by the Gram Panchayat, VPC No. 499 measuring 16 X 16 feet vacant property has been given to defendant No. 1. In his cross-examination, D.W.3 has stated that the Gram Panchayat has got no authority to sanction site to the defendant No. 1. Further he has admitted that the resolution of Gram Panchayat was passed under the pressure of Gram panchayat members. Even D.W.2 who is Gram Panchayat member has stated that the Gram Panchayat has no authority to grant site to anyone. Under such circumstances, if a resolution was passed as per Ex. D-9/D-4 and VPC extract has been issued as per Ex. D-3, it appears that it is illegal one. Therefore, it cannot be said that defendant No. 1 has lawfully acquired the disputed property i.e., vacant portion which they claim that it is VPC No. 499. Ex. P-6 shows that defendant No. 1 has not applied for construction of the house to the Kesti Gram Panchayat and she has not been given permission to construct the house. This document shows that the defendant No. 1 is trying to construct the building in the suit property without the permission of the Gram Panchayat. Considering the entire material on record, the Trial Court come to the conclusion that the property is vacant property situated towards north of the plaintiff''s house. In Ex. P-1, VPC extract of VPC No. 496 the existence of house and vacant portion is shown. The plaintiff has produced the documents to show that he has been granted house under Ashraya Yojane in the year 1996-97. Therefore, there is a possibility of using the said vacant portion by the plaintiff for the purpose of keeping firewood, tethering goats and for drying cloths etc., cannot be ruled out. The evidence clearly shows that the sanctioning of VPC No. 499 to the defendant No. 1 is illegal and not in accordance with the procedure, because the Gram Panchayat has no authority to sanction the site to the defendant No. 1. Therefore, it clearly establishes that the suit schedule property is part and parcel of VPC No. 496 and plaintiff was in lawful possession and enjoyment of the same. Further it showed that VPC No. 499 has not been granted to defendant No. 1 by following the due procedure. Therefore, the attempt to put up construction in the suit property by the defendants was illegal.
The lower Appellate Court on reconsideration of the entire material on record considering the evidence of P.Ws. 1 and 2 and Exs. P-1 to P-9 has come to the definite conclusion that plaintiff has categorically stated that in his evidence before the Trial Court that suit ABCD portion shows the sketch map as part and parcel of VPC No. 496 and as shows the boundaries of suit property. It is a specific submission made by the learned counsel for the defendants that to disbelieve the case of the plaintiff that the suit schedule property ABCD portion is a part and parcel of VPC No. 496.
Considering the evidence of D.Ws. 1, 2 and 3, the lower Appellate Court has recorded a finding that the Gram Panchayat has no authority to sanction any property to anybody and in spite of it with the force of Panchayat member, the resolution was passed as per Exs. P-7 and D-4 for granting VPC No. 499 to the defendant No. 1. In the cross-examination, D.W.3 has admitted that the Panchayat has passed such resolution without having power to sanction the property in favour of defendant No. 1. Therefore, there is no equality in the eye of law of for granting property to defendant No. 1 as claimed by the defendants.
Ex. P-1 extract discloses that the plaintiff is in possession of suit property ABCD portion. The said fact has been admitted by defendant Nos. 1 to 3 in the cross-examination to the fact that the portion shown by the letters ABCD in the hand sketch map is the suit property which is situated towards northern side of house of plaintiff in VPC No. 496. Plaintiff has described boundaries of the suit property which has not been denied by the defendants. Exs. P-2 and D-1, photographs of suit property shown by the letters ABCD portion in hand sketch map annexed to the plaint.
Under these circumstances, the lower Appellate Court dismissed the appeal confirming the judgment of the Trial Court. Both the Courts concurrently held that plaintiff has proved his possession in respect of the suit schedule property, as on the date of the suit. By cogent and legal evidence on record, such a finding of fact cannot be interfered by this Court while exercising powers under Section 100 of the Code of Civil Procedure. The appellant has not made out any substantial questions of law to interfere with the impugned judgment and decree of the Courts below. Accordingly, appeal is dismissed at the stage of admission without reference to the respondents.