Smt. Chandramma vs Sri. K. Papanna

Ajit J. Gunjal

This appeal is admitted to consider the following substantial question of law:

(i) Whether the learned Appellate Judge was justified in reversing the judgment and decree passed by the learned Trial Judge without meeting the reasoning given by it?

This appeal is by the defendant. The suit is filed by the plaintiff-respondent for bare injunction in respect of the suit schedule properties.

The specific case made out by the plaintiff is that the property originally belonged to one Siddalingegowda. The said property was mortgaged in favour of the plaintiffs mother on 2.10.1974 and thereafter there was a sale on 27.10.1989. In the circumstances, they have been in possession of the suit schedule properties. According to the plaintiff-respondent the defendant is interfering with her possession. Hence, the present suit.

The defendant enters appearance files written statement inter alia contending that even before the sale deed was executed in favour of the plaintiff on 27.10.1989 the vendor of the plaintiff had parted with the suit property on 6.5.1989 in their favour. Thus as on the date of the sale deed executed by the vendor in favour of the plaintiff he had no title.

During the course of trial, the plaintiff examined himself as PW1 and Exs. P1 to P20 were marked and three more witnesses were examined as PW2 to FW4. On behalf of the defendant, she examined herself as DW1 and got marked Exs. D1 to D14 and one more witness was examined as DW2.

The learned Trial Judge was of the view that in the absence of production of the mortgage deed in favour of the plaintiff much prior to the sale in favour of the defendants the question of plaintiff being in possession does not arise.

The learned Appellate Judge on appeal by the plaintiff has reversed the finding and having regard to the various circumstances including the revenue records albeit, which are the subject matter of proceedings before the Revenue Authorities was of the view that the evidence, which is let in by both the parties has not been considered. Thus, reversed the finding and decreed the suit.

I have heard Mr. K.Vishwanath, Learned Counsel appearing for the defendant-appellant and so also Smt. M.P.Geetha Devi, Learned Counsel appearing for the plaintiff-respondent.

Mr. K.Vishwanath, Learned Counsel appearing for the defendant-appellant submits that the defendant is in possession of the suit schedule property pursuant to a sale deed stated to have been executed on 6.5.1989. Hence, in the circumstances, the learned Appellate Judge was not justified in reversing the judgment and decree.

Smt. M.P.Geetha Devi, Learned Counsel appearing for the plaintiff-respondent supports the judgment and decree.

I have perused the judgments and decrees passed by both the Courts below.

Indeed, one of the main reasons as to why the plaintiff-respondent has been non-suited is for non-production of mortgage deed to establish that she was put in possession as on 2.10.1974.

Apparently, it is to be noticed that the plaintiff has made available Ex. P2-the certified copy of the mortgage deed to establish that indeed, there was a mortgage.

The learned Appellate Judge has not taken into consideration the documents along with the revenue records and has come to a conclusion that; indeed, the plaintiff is in possession.

I am of the view that the reasons given by the learned Trial Judge for non-suiting the plaintiff has not been properly met by the learned Appellate Judge. More so, having regard to the finding recorded by him at Para 19 with reference only to Sy.No. 167/4, Hence, the following order is passed:

(i) The appeal is allowed.

(ii) The judgment and decree passed by the Appellate Court is set aside.

(iii) The matter stands remitted to the Appellate Court.

(iv) Since both the parties are before this Court they are directed to be present before the lower Appellate Court on 12.12.2012.

(v) Both the defendant-appellant as well as the plaintiff-respondent shall take this proceeding as notice to them and shall appear on the said date. They shall not wait for issue of fresh notice by the Appellate Court.