Smt. Sarojamma vs Vidyashankar

B. Veerappa, J.—This is the plaintiffs Regular Second Appeal against the judgment and decree dated 12/09/2013 passed in RA. No. 71/2010 on the file of the Additional Senior Civil Judge at Chikmagalur, dismissing the appeal, confirming the judgment and decree dated 24/05/2010 passed in OS No.330/2005 on the file of the 2nd Additional Civil Judge and JMFC at Chikmagalur, dismissing the suit of the plaintiff for permanent injunction.

The appellants who are the plaintiffs before the Trial Court have filed a suit for permanent injunction against the defendants in respected of suit schedule property measuring 20 x 15 feet, situated at 7th Day School Road, Aravindanagara, Basavanahalli Extension, Chikmagalur city, contending that the plaintiffs are the owners of ''A'' schedule property and they are in possession and enjoyment of the ''B'' schedule property. ''B'' schedule property situates adjacent to the southern side of the ''A'' schedule property. Defendants are the owners of ''B'' schedule property. The plaintiffs have encroached ''B'' schedule property and constructed a bathroom and cattle shed on the ''B'' schedule property in the year 1990 and are in peaceful possession and enjoyment of ''B'' schedule property without anybody''s interruption. It is the further case of the plaintiffs that the defendants attempted to demolish the cattle shed and bathroom situated in ''B'' schedule property. Hence the suit was filed.

The defendants filed their written statement denying the plaint averments and contended that the plaintiffs are not the absolute owners of the ''B'' schedule property and defendants are the owners of the suit property by virtue of registered sale deed purced from one Venugopal and from the date of purce/the said ''B'' schedule property was a vacant site and there was no construction as contended by the plaintiffs. After the purce of the said site, defendant No.2 constructed one watchman shed. The boundaries mentioned in the plaint are not correct and prays for dismissal of the suit.

Based on the above pleadings, the Trial Court framed the following issues:

Whether plaintiffs prove that they are in possession of ''B'' schedule property as an encroacher since 1990?

Whether plaintiffs further prove that they have constructed bathroom and cattle shed in the ''B'' schedule property?

Whether the plaintiffs prove the alleged interference of defendants over ''B'' schedule property?

Whether defendant proves that the suit is bad for non-joinder of necessary party?

Whether plaintiffs are entitled to the relief of permanent injunction as prayed?

What order or decree?

In order to substantiate the plaintiffs'' case, the plaintiff No.2 examined himself as PW-1 and one witness as PW-2 and got marked documents Exs.P1 to P6. The defendant No.2 examined himself as DW-1 and one witness as DW-2 and got marked one document as Ex.D1.

After considering the entire material on record, the trial court recorded a finding that the plaintiffs failed to prove that they are in possession of the suit schedule property as encroachers since 1990. Plaintiffs further failed to prove that they had constructed a bathroom and cattle shed in the suit ''B'' schedule property. Plaintiffs further failed to prove the alleged interference by the defendants in respected of ''B'' schedule property and therefore the plaintiffs are not entitled for the relief for permanent injunction. Accordingly, suit came to be dismissed on 24/05/2010.

Aggrieved by the said judgment and decree of the trial court, the appellants filed R.A. No. 71/2010 before the Addl. Senior Civil Judge, Chikmagalur. After hearing both the parties, by the impugned judgment and decree dated 12/9/2013, dismissed, the appeal confirming the judgment and decree of the trial court. Against the concurrent findings of fact recorded by the courts below, the appellants preferred the present second appeal as a last ditch attempt.

I have heard the learned counsel for the appellants Sri. Jayakirthi M. C. learned counsel for the appellant contended that both the courts below have failed to consider the evidence on record and the admission of DW-1 about the existence of structure on ''B'' schedule property, while dismissing the suit and thereby erroneously passed the impugned judgment and decree contrary to the oral and documentary evidence on record. He further contended that the plaintiffs are in possession and enjoyment of the suit schedule property since 1990 without interruption from anybody. Therefore he sought to set aside the judgment and decree of the courts below.

I have given my careful consideration to the arguments advanced by the learned counsel for the appellants and perused the entire materia] on record.

The plaint averments of the plaintiffs clearly indicates that the plaintiffs are the owners of ''A'' schedule property and they are not the owners of B'' schedule property and they have admitted that the defendants are the owners of ''B'' schedule property. The suit is filed only in respected of B'' schedule property measuring 20'' x 15'' on the ground that the plaintiffs have encroached ''B'' schedule property on 17/9/1990 and constructed a bathroom and cattle shed on ''B'' schedule property and the defendants are trying to interfere with their possession. It is the specific case of the defendants that the ''B'' schedule property belongs to 1st defendant and his son constructed a watchman shed in the said site and not the plaintiffs, as alleged and that the plaintiffs were never in possession and enjoyment of the suit schedule property. The trial court, considering the entire material on record, recorded a specific finding that the plaintiffs have not established their lawful possession and enjoyment of the suit schedule property as on the date of the suit. The trial court further recorded a finding that the material documents produced by the parties Exs. PI to P3 and DI clearly indicates that the defendants are the owners and in possession of ''B'' schedule property and DW-1 specifically stated on oath that there is a watchman shed and they have constructed the same. No material documents are produced by the plaintiffs to prove that they have constructed the shed. When the plaintiffs have not claimed ownership in respected of ''B'' schedule property and have admitted in their pleadings and evidence that the defendants are the owners of ''B'' schedule property, the question of granting an order of permanent injunction in favour of the plaintiffs does not arise.

On re-assessing the entire material on record and the judgment and decree of the trial court, the Lower Appellate Court came to a conclusion that the plaintiffs failed to prove that they are the owners of the ''B'' schedule property, as admitted by them in the pleadings as well as evidence and that the defendants are the owners of ''B'' schedule property. Accordingly the appeal came to be dismissed.

Both the courts below, based on the oral and documentary evidence on record, concurrently held that the plaintiffs failed to establish their lawful possession as on the date of the suit. When the plaintiffs admitted the ownership of the defendants in respected of the ''B'' schedule property, the question of granting equitable order of permanent injunction in favour of the plaintiffs in the absence of any prima facie case, does not arise.

In view of the above, both the impugned judgment and decree of the courts below are just and proper. No substantial question of law arises for consideration in the present appeal. Accordingly the appeal is dismissed at the stage of admission.

Consequently, I.A. 1/15 filed for condonation of delay in filing the appeal is also dismissed.