Smt. M. Jayanthi vs Sri. Dayananda

Anand Byrareddy, J.—The appellant was the plaintiff before the trial court. It was the case of the appellant that vacant site was formed in Sy. No. 4 of Dasarahally village, Yeshwanthapur Hobli, Bangalore North Taluk measuring East to West 23 meters and North to South 18.20 meters with the following boundaries: East by 30 feet road, West by Private property, North by road and pipeline road, South by 20 feet road, covering the four sites bearing Nos. 1, 2, 26 and 27 together with a watchman shed existing on the North Eastern corner of the sites, which was the suit property. It was the case of the plaintiff that the vendor of the plaintiff, after obtaining conversion of agricultural land, had formed a housing layout in which the above suit property was purchased by the appellant. It was the further case of the plaintiff that she had purchased the same under a registered sale deed dated 7.3.1977 and that the Village Panchayath, Chokkasandra had assigned a House List No. 301 and had collected taxes. A building licence was also issued to the plaintiff dated 2.4.1979 to construct houses and she had constructed a temporary shed in Site No. 1. It is stated that there was a suit filed earlier by the respondent''s vendor against the plaintiff''s vendor in O.S. No. 6304/1980, which was ultimately dismissed on 26.11.1986 and therefore, contends that the defendant who has no manner of right over the suit property has sought to cause interference and has encroached on a portion of the property and was seeking to obstruct the construction work, which was sought to be commenced by the plaintiff and on that basis, the trial court had also granted her an order of temporary injunction in respect of which with utter disregard of the order of the court, it was alleged that the defendant-respondent herein was illegally interfering with the appellant''s possession and hence, the suit for permanent injunction. The trial court had granted an order of temporary injunction during the pendency of the suit. Thereafter, the defendant having entered appearance, had contested the suit contending that the plaintiff has filed a false case and that the plaint averments were denied.

On the other hand, it was contended that the land bearing Sy. No. 4 measured more than 28 acres. Munivenkatappa was the owner of 2.26 acres of land by virtue of a sale deed dated 7.10.1950 and 27.06.1968, who sold it in favour of Doddamahimappa, and again purchased 1 acres 26 guntas in the year 1971 and thereafter had obtained conversion and sold 1 acre 20 guntas in favour of one Sunderraj in the year 1974 while retaining 6 guntas, and formed sites in the said 6 guntas and had died leaving behind his widow and children. The widow sold Site No. 1 to the defendant in the year 1977 under the registered sale deed and that he had obtained licence from the Panchayath for construction at which time, one Ramaiah, namely the alleged vendor of the plaintiff had threatened him and caused interference which drove him to file a civil suit in O.S. No. 6304/1980, which however was dismissed on technical grounds. The plaintiff was not a party to the said suit and that the defendant has constructed a house and is residing in the house therein, even prior to the filing of the present suit and that his property is measuring East to West 9.14 meters and North to South 11.58 meters. The alleged land purchased by Munivenkatappa is totally different and is not part of the suit property described by the plaintiff and it is not within 6 guntas of land, which according to the recitals in the sale deed of the defendant Munivenkatappa had retained. Therefore, he sought dismissal of the suit. The court below had framed the following issues:

ISSUES

Whether the plaintiff proves that the suit site is made up of site No. 1, 2, 26 & 27 formed in S. No. 4 and he is in lawful possession of the same as on the date of the suit?

Whether the plaintiff proves the suit obstruction by the defendant on 16-09-1987 as alleged in para 4 of the plaint?

Whether the defendant proves that he has purchased site No. 1 formed in S. No. 4 from Munivenkatappa or his L. Rs. and is in possession as alleged?

Whether the defendant proves that the vendor of the plaintiff had no valid title and therefore the plaintiff is not in possession as alleged?

What decree or order?

ADDITIONAL ISSUE

Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for?

On the above pleadings and after a detailed consideration of the evidence tendered by the parties, the court below has come to the conclusion that the rival claims are in respect of different extents of land, namely that the plaintiff was claiming the property defined hereinabove while the defendant was claiming Site No. 1 out of sites formed in 6 guntas of land in Sy. No. 4 and has concluded that there was a serious dispute about the existence and identity of the property claimed by both the parties. It has expressed its doubt as to the veracity of the documents produced by both the parties and has concluded that the property is not capable of identification. Though the counsel had produced rough sketches pertaining to the respective claims of their properties, those sketches were not supported by any authenticated documents to prove the identity of the property and both parties had produced Panchayat records which were much earlier to the institution of the suit and that there were no documents produced to indicate the present katha certificate, to correctly identify the situation of the property and has expressed that both the parties have failed to produce appropriate material in support of their respective cases and has proceeded to dismiss the suit.

From a perusal of the pleadings and the material documents that are produced, it is evident that there is inconsistency insofar as the property numbers that are claimed and the documents produced in support of their claim. As for instance, the plaintiff has produced a tax paid receipt in respect of House List No. 301 and there is no indication of the measurement of the property. She has also produced a building licence which is not a complete document, in that, it is torn in half and it is half a document that is produced without indicating the property number to which it relates and the alleged sanctioned building plan which is produced also is in respect of Site Nos. 1 and 27 of Sy. No. 4 without proper boundaries, whereas it is shown that on three sides, there is a road without indicating the number of private property which is on the Western side. Neither does the schedule to the plaint indicate any such number which could possibly provide a clue as to the existence of the property. It is for all these reasons that the Trial Court has rejected the suit as being incoherent and not establishing the identity of the property. The counsel for the appellant has now filed an application seeking appointment of a Court Commissioner. It is not for this court to gather evidence as it were insofar as the identity of the property in question is concerned. As rightly observed by the court below, it was for the plaintiff to produce material documents to establish the identity of the property and not stale documents of a period much prior to the suit which cannot be relied upon in granting the relief prayed for by the appellant. Since the court has treated both the plaintiff and the defendant alike and as the documents produced by them were not to the satisfaction of the court below, there is no error committed by the court and the court has acted with prudence and care in rejecting the plaint, as the documents in support of the same did not establish the case of the plaintiff. There is no ground for interference. The appeal is dismissed.