Smt Ningamma vs K. Basavaraju and Others

V. Jagannathan, J.—This second appeal is by the Plaintiff aggrieved by the lower appellate court reversing the judgment of the trial court. The trial court had decreed the suit of the Plaintiff for permanent injunction and the lower appellate court on appeal being preferred by the Defendants, set aside the trial court''s judgment and the suit was dismissed.

Brief facts are that, the Plaintiff approached the trial court for the relief of permanent injunction in respect of the suit schedule property which had been displayed in the suit schedule as house in Kathathi village, Mandya taluk bearing house No. 263. The specific case of the Plaintiff was that, the 2nd Defendant is her father-in-law and the Plaintiff being married to the son of the 2nd Defendant and following her husband having died on 23.02.1993, the Plaintiff was left as the only heir of her husband''s properties. The 2nd Defendant and his sons have divided the properties under a partition deed and the Plaintiffs husband was given the suit property in the said partition and the partition that took place on 13.02.1992 was reduced to writing and it was signed by all the parties. As per the partition deed, a vacant site measuring 11/2 guntas fell to the share of the Plaintiff''s husband and in that site, they had built up a house which is the suit schedule property and was given the number as 263 by the Panchayath. The Plaintiff and her husband were in possession of the same and following the death of her husband, the Plaintiff continued to be in possession. Plaintiff gave a petition to the Tahsildar for change of khata after the land was allotted to her husband''s share and this was objected to by the 2nd Defendant and thereafter, an order was passed to change khata in the name of the Plaintiff. As the 2nd Defendant tried to interfere with the possession of the Plaintiff''s property, she had to file a suit praying for permanent injunction.

The case of the Defendants on the other hand was that, while they admit the relationship of the Plaintiff with the 2nd Defendant and the death of the Plaintiffs husband, and also the partition having taken place among five sons of the 2nd Defendant in respect of the ancestral property, it was their specific case that the property bearing No. 363/5A fell to the share of the 2nd Defendant and 2nd Defendant got it converted for non-agricultural purpose and borrowed loan from the 1st Defendant and constructed the house. As he could not repay the loan, 2nd Defendant sold the suit schedule property under a registered sale deed dated 22.08.1996 in favour of the 1st Defendant. It is on these averments in the written statement, suit of the Plaintiff was sought to be dismissed.

4, Learned trial Judge based on the pleadings of the parties, framed four issues which are referred to at para-4 of the judgment of the lower appellate court and the trial court after evidence appreciation, recorded the affirmative findings in respect of issue Nos. 1 & 2 and issue No. 3 was answered in the ''negative''. The result was suit of the Plaintiff was decreed and the Defendants were restrained from interfering with the Plaintiffs peaceful possession and enjoyment of the suit property.

On appeal by the Defendants, learned Judge of the lower appellate court accepted the arguments put forward on behalf of the Defendants and held that the trial court was in error in decreeing the suit of the Plaintiff and the evidence on record revealed that possession was not with the Plaintiff, but on the other hand, suit property has been sold by the 2nd Defendant in favour of the 1st Defendant. Therefore, the judgment of the trial court was reversed and suit was dismissed.

I have heard the learned Counsel for the Appellant and the learned Counsel for the 1st Respondent and other Respondents despite service have Remained absent.

Submission of the learned Counsel for the Appellant is that, the lower appellate court committed serious error in interfering with the judgment of the trial court and it is his argument that both sides have admitted the palupatti Ex.P1, under which, suit property fell to the share of the Plaintiffs husband. Even, khata was to be changed in the name of the Plaintiffs husband and the trial court took note of the evidence of PW-1 and in addition, all the documents produced by the Appellant in particular, Exs.P.3. P9 to P11 and these documents revealed that the Plaintiff was residing in house No. 263 and the Election Identity Card issued by the Election Commissioner also revealed that Plaintiff is residing in house No. 263. Therefore, the lower appellate court could not have reversed the judgment of the trial court.

In this connection, learned Counsel for the Appellant took me through the evidence on record and to the reasoning given by the trial court at paras 25, 26, 27 & 28 to contend that the reasoning given by the trial court was based on the evidence on record and therefore, the lower appellate court could not have disturb the findings recorded by the trial court. As such, the appeal be allowed by setting aside the judgment of the lower appellate court and restoring that of the trial court.

On the other hand, submission of learned Counsel for the 1st Respondent is that, the property which was sold by the 2nd Defendant in favour of the 1st Defendant was bearing No. 363, whereas the property that is shown in the suit schedule is 263 and that there is no identification of the property itself. Secondly, the suit is one for permanent injunction and the evidence placed by the Defendants reveals that the suit property was sold long back by the 2nd Defendant in favour of the 1st Defendant and in proof of the same, sale deed was also produced and marked in evidence as per Ex.D4. As such, the lower appellate court was justified in reversing the judgment of the trial court. Since the relief sought requires the Plaintiff to establish that she is in possession of the suit property and evidence on record indicating that the 2nd Defendant, examined as PW-2, having deposed to the effect that no house was given to the Plaintiffs husband and the house in question was sold by PW-2 to the 1st Defendant under a registered sale deed, the question of Plaintiff being given the relief of permanent injunction in the absence of Plaintiff establishing she being in possession of suit property, does not arise. Therefore, the judgment of lower appellate court does not call for any interference.

This Court while admitting this appeal on 12.12.07 had framed following substantial question of law for consideration.

Whether the judgment and decree of the appellate court is vitiated for not considering the evidence adduced by the parties during the course of the trial ?

It has to be mentioned at the outset that the suit filed by the Appellant-Plaintiff was one for permanent injunction. It is therefore incumbent on the part of the Appellant to establish that she was in possession of the suit property as on the date of filing of the suit.

The relationship between the parties is not in dispute. Further, no dispute is there with regard to the partition having taken place among the sons of the 1st Defendant. Ex.P1 is the palupatti that was produced before the trial court. The partition was effected on 13.2.92 is also an admitted fact. The property that is claimed by the Plaintiff in the suit is one bearing No. 263. The specific case of the Defendant is that, property bearing No. 363/5A was got converted by the 2nd Defendant for non agricultural purpose and he borrowed loan from the 1st Defendant and constructed the suit schedule house in the suit property and as he could not repay the loan, the 2nd Defendant sold the suit property to the 1st Defendant under a registered sale deed dated 22.8.96. This is the evidence given by the 2nd Defendant who was examined on behalf of the Plaintiff as PW-2.

The said witness has further stated in his evidence that, Ex.D4 is the sale deed under which he sold the property to the 1st Defendant and the lower appellate court has also found, after careful examination of the documents produced, that the boundaries of house property bearing No. 957/722 measuring 4.5 x 60 feet, do not tally with the boundaries mentioned in the suit schedule property. Apart from this, the evidence also reveals that the katha was not changed in respect of 11/2 guntas in the name of the Plaintiff.

The 2nd Defendant who was examined as PW-2 has deposed in his evidence that he had not given the house to his son i.e. the husband of the Plaintiff. The Plaintiff was to establish before the court that her husband had constructed the house in the house site measuring 11/2 guntas. No evidence was placed by the Plaintiff in this connection. The 2nd Defendant on the other hand had obtained the order of alienation from the Asst. Commissioner on 31.3.95 and got the land converted into construction purpose and the property was given the number 957/722 and not 263 as mentioned in the plaint schedule. All the witnesses for the Defendant have also deposed in their evidence that the 2nd Defendant has sold the property much prior to the suit in favour of the 1st Defendant and as the suit schedule property is a house property, the Plaintiff was required to establish that house was constructed by her husband and no document was forthcoming in this regard.

DW-5. one of the sons of 2nd Defendant has deposed in his evidence that, he forwarded the application to the Dy. Commissioner for conversion of dry lands into site and afterwards house was constructed in the said property Even the application given by the Plaintiff to the Tahsildar also indicated that the 2nd Defendant has sold the property in favour of the 1st Defendant much earlier to filing of the suit and Ex.D4 reveals that the 2nd Defendant sold the property to 1st Defendant on 21.8.96 and the suit was filed two months later.

Though learned Counsel for the Appellant referred to the documents produced by the Plaintiff viz., voters identity card, ration card etc., learned Judge of the lower appellate court has observed that these documents would not go to establish that the Plaintiff was in possession of the suit schedule property. Moreover, the lower appellate court also took note of the evidence of the Plaintiff, who could not even know or mention as to whose house was situated by the side of the suit property and names of persons who reside there. Therefore, the appellate court has observed that the Plaintiff was not residing in the suit property.

The property which was alienated by the 2nd Defendant was having the number 363/5A, whereas the suit property was mentioned by the Plaintiff as 363/5. Nevertheless, the boundaries of the two numbers were found to be one and the same.

Thus, the evidence on record after careful appreciation, led the lower appellate court to hold that the 2nd Defendant has sold the property in favour of the 1st Defendant under the sale deed Ex.D4, the question of the Plaintiff being in possession of the suit schedule property does not arise. As the suit is one for permanent injunction and the Plaintiff was not able to establish that she was in possession of the house called in question, the lower appellate court has rightly allowed the appeal filed by the Defendants and set aside the judgment of the trial court. I see no infirmity in the reasons recorded by the lower appellate court in the light of the evidence on record.

The substantial question of law framed therefore is answered by holding that the lower appellate court committed no error in dismissing the suit of the Plaintiff.

Appeal is accordingly dismissed. This however shall not come in the way of the Plaintiff establishing her title over the suit property.