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Judgment
A.S. Bopanna
The appellant herein is the plaintiff in O.S. No. 1803/2003. The suit was filed by the plaintiff seeking for judgment and decree of permanent injunction to restrain the defendant and persons claiming under him from interfering with the peaceful possession and enjoyment of the suit schedule property. The Court below after considering the rival contentions has dismissed the suit by its judgment and decree dated 09.10.2009. The unsuccessful plaintiff is therefore before this Court in this appeal. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
The case of the plaintiff is that she is the wife of one Munichikkappa of Kalkere village and has three sons. The said Munichikkappa died leaving them to succeed to the property. The property bearing khatha No. 137/1 and 137/2 of Kalkere village which is described in the schedule is stated to be the ancestral properties of the plaintiffs family. It is her case that her husband''s grand father late Muniyappa S/o Mailanna and the grand father of the defendant namely late Muddaiah, S/o Kurlappa jointly acquired the suit schedule property along with other properties under a registered sale deed dated 08.03.1908. The said Muniyappa and Muddaiah got the said properties divided between them in equal proportion and they were in separate possession and enjoyment of the properties during their life time. Their respective children have succeeded to the portions which were in their possession and enjoyment as absolute owners. The husband of the plaintiff who had thus succeeded to his father''s share had obtained the khatha and was in possession and enjoyment of the suit schedule properties during his life time by paying the taxes. On his death, the plaintiff and her children who have succeeded are in possession and enjoyment of the same. The Horamavu Village Panchayat has effected khatha in the name of the plaintiff and the other revenue records also stand in her name and she is paying the taxes thereto is her case. The further case of the plaintiff is that the defendant has got the properties on the northern side of the suit schedule item Nos. 1 and 2. Though the defendant has no right, title or interest over the suit schedule properties, taking advantage of the helplessness of the plaintiff has made attempts to encroach the northern portion of the suit schedule properties by erecting a compound wall during last week of February 2003 which was resisted but, there has been repeated attempts thereafter. It is in that context, the plaintiff has instituted the suit praying for the relief of injunction.
The defendant on being served with the suit summons appeared and filed his written statement. The claim of the plaintiff to the suit schedule property is denied and the existence of such property is also disputed. On the other hand it is contended that the defendant is the absolute owner in possession and enjoyment of the property bearing House list No. 124 and 148 with khatha No. 137/1 and 2 which is measuring an extent of 353 ft X 72 ft + 51 ft/2 X 54 ft situate at Kalkere village, K.R. Puram Hobli. The defendant contends that the said property was acquired by his grand father Muddaiah @ Muddappa @ Muddegowda S/o Kurlappa under a registered sale deed dated 02.12.1896 from Gangadharaiah S/o Gowripedda Nanjunda Bhatta. The grand father of the defendant was in possession since his purchase, which has thereafter been succeeded to by the father of the defendant and subsequently the defendant. The property is being used by the defendant and his family members as a thrashing floor and for stocking grass. In the year 1896, the measurement was not indicated but the property was identified by its boundaries and the extent stated depending on the yield therefrom. The said measurement indicated if considered in the present terms would be more than 2 acres. The further details are also referred to indicate that there was a pathway in existence towards eastern side of the property which lead to the wet lands which was situated on the northern side of the Kalkere village and a pathway was also in existence towards western side of the property which was leading to Belishivali village which is described in the said sale deed dated 02.12.1896. It is the case of the defendant that out of the said property, the grand father and father of the defendant had put up residential house on the eastern side to about one-third portion. The house was constructed in an area measuring 110 ft X 175 ft + 60 ft/2 X 70 ft. The khatha entries are made in the Horamavu Village Panchayat and house list No. 187 has been assigned. The extract of the Tax Demand Register is relied upon and it is contended that the taxes are being paid. The schedule property is'' about two-third portion of the property described in the sale deed dated 02.12.1896. The defendant has also constructed the poultry farm on obtaining ''NOC'' from Horamavu Village Panchayat.
In that context, the defendant contends that the plaintiff has no manner of right over the property and that she is not related to Muniyappa. It is his case that the said Muniyapp had no wife and children and the genealogical chart relied upon is disputed. The defendant also refers to an endorsement dated 18.10.1973 wherein the Village Panchayat had indicated impediment to issue genealogical chart since as per their enquiry, it was found that Muniyappa, S/o Mallanna had died prior to 1940 without leaving behind any legal heirs. The defendant therefore contends that the plaintiff is a total stranger to the family of late Muniyappa and has nothing to do with the properties which were also purchased under the sale deed dated 08.03.1908. In any event, the property in the possession of the plaintiff is not a part of the said document. The defendant alleges motive against one Sri M. Revanna who is the Chairman of Horamavu Village Panchayat, whose father in fact had filed suits in O.S. No. 2286/1989, O.S. No. 382/1989 and O.S. No. 7394/1991 as also a collusive suit in O.S. No. 2611/1993 to which the defendant has impleaded himself and are pending consideration. In the said suits, the defendant had produced the sale deed dated 08.03.1908 as an exhibit and the said Sri Revanna taking advantage of the same has set up plaintiff. Reference is also made to the change of revenue entries which were made due to connivance of Sri M. Revanna which were questioned by filing appropriate proceedings under the Panchayat Raj Act. It is therefore contended that though the suit schedule property does not exist, the plaintiff has created the same and is presently attempting to take advantage in the instant case. The defendant has therefore sought for dismissal of the suit.
The Court below after taking note of the rival contentions has framed three issues which read as hereunder:
The son of the plaintiff was examined as P.W. 1 and the documents at Exhs. P1 to P10 were relied upon. The son of the defendant was examined as D.W. 1 and relied upon the documents at Exhs. D1 to D28. The Court below on analysing the rival contentions has dismissed the suit by its judgment and decree dated 09.10.2009. The plaintiff is therefore before this Court assailing the said judgment and decree.
Sri M.S. Varadarajan, learned counsel for the plaintiff while assailing the judgment of the Court below contended that the materials available on record has not been properly appreciated. The learned counsel on referring to the sale deed dated 08.03.1908 would contend that the properties thereunder were purchased jointly and thereafter was partitioned and the property in question fell to the share of Muniyappa. Though Sri Muniyappa died unmarried and issue less, his brother late Era Chikkanna succeeded as Class II heir. The plaintiffs husband Munichikkappa is the grand son of Era Chikkanna and therefore, he succeeded to the same. On the death of Munichikkappa, the plaintiff has succeeded to the property. When the defendant does not dispute the purchase, the contention that the suit schedule property is not the subject matter of that sale deed cannot be taken into consideration. The defendant though contended that the purchase was under a different sale deed dated 02.12.1896, the same has not been proved. It is his contention that the trial Court though did not accept the defendant''s case, has dismissed the suit only because the partition had not been proved. The stray admission of P.W. 1 could not have weighed with the Court below in the background of the other materials available. The documents relied upon by the plaintiff would indicate that the taxes are being paid and the property is being enjoyed. When the defendant had failed to prove the contentions, the relief could not have been denied to the plaintiff. It is his case that the need for seeking declaration did not arise inasmuch as the plaintiff already had the right to the property and only the possession thereof was sought to be protected. It is therefore contended that the Court below has committed an error and the judgment is to be set aside.
Sri Yoga Narasimha, learned senior counsel appearing for Sri N.S. Satish Chandra, learned counsel for the defendant apart from seeking to sustain the judgment insofar as the finding on issue No. 1 and dismissal of the suit would however refer to cross objection and contend that the Court below was not justified in holding that the aspect of possession is not established by defendant also. The learned senior counsel refers to the sale deed dated 02.12.1896 under which the grand father of the defendant purchased the properties. The plaintiff has failed to establish that the property claimed in the suit is the one purchased under the sale deed of 1908 as claimed. There is a gap of 12 years between the said two documents and if reference is made to the boundaries indicated in the said documents, it would be clear. The nature of the measurement referred to is indicated and with reference to the sketch at Ex. D33 would seek to clarify that the suit schedule property as claimed by the plaintiff does not exist and in fact the defendant is in possession of the property as indicated therein. Though the plaintiff contends of joint purchase, she is claiming right under one of the purchaser whose branch has become extinct and therefore no claim can be made. It is further contended that when the plaintiff had failed to make out a case and the suit being for injunction, it ought to have been dismissed without making any other observations to create a cloud over the title and possession of the defendant. In such event, the observations which are contrary to the scope of the suit also cannot stand. It is therefore contended that the appeal is liable to be dismissed and the cross objections be allowed.
The following points arise for consideration in this appeal:
i) Whether the evidence available on record is sufficient to conclusively prove that the plaintiff is in possession of the suit schedule property ?
ii) Whether the Court below was justified in observing that the defendant should also seek for declaration ?
The plaintiff while alleging interference by the defendant and seeking injunction to protect her alleged possession has traced right to the property under late Muniyappa, S/o Mallanna who was one among the two persons who jointly purchased the properties under the sale deed dated 08.03.1908. The property is claimed to be the item No. 11 property under the sale deed. The case of the plaintiff is that after such purchase, the joint purchasers therein namely Muniyappa, S/o Mallanna on the one hand and Muddaiah, S/o Kurlappa on the other have partitioned the properties. In the said partition, the suit schedule property has fallen to the share of Muniyappa. On his death, his children are stated to be enjoying the properties by paying the taxes as contended in the plaint. The husband of the plaintiff late Munichikkappa has thereafter been succeeded to by the plaintiff and her children on the death of Munichikkappa. That is the simple case pleaded in the plaint while seeking right to the property. The defendant has not only denied the claim of the plaintiff but has set up title to the property under a different sale deed dated 02.12.1896 under which the grandfather of the defendant had purchased the property. Irrespective of the case set up by the defendant, the plaintiff at the outset would have to establish prima facie right as she claims possession under such right In that regard, the issue framed by the Court below is appropriate.
The son of the plaintiff Sri Nagaraj has been examined as P.W. 1 and his affidavit in the nature of evidence is filed. Though it was plainly stated by the plaintiff in the plaint that her husband is the descendant of Muniyappa himself, who is one of the purchasers under the sale deed dated 08.03.1908, considering that the defendant had contended that Muniyappa had died issueless, P.W. 1 has adverted to the nature of relationship. The said P.W. 1 for the first time states that Muniyappa had a brother Era Chikkanna and that the father of P.W. 1 i.e., the husband of the plaintiff is the grandson of Era Chikkanna who had succeeded to the properties of Muniyappa which had been partitioned between Muniyappa and Muddaiah. This makes it more onerous for the plaintiff to establish the same. Firstly, the relationship has to be established; secondly the partition should be established and thereafter the ownership and possession of the plaintiff would arise since all these aspects have been disputed by the defendant.
In order to establish the relationship, the plaintiff has relied on Ex. P3 i.e., the genealogical chart stated to have been issued by the Village Accountant, Horamavu Village Panchayath. The said document is sought to be rebutted by the defendant through D.W. 1 and by relying on the document at Ex. D16, which is an endorsement issued by V.P. Secretary, Banaswadi Group Panchayath. The endorsement indicates that the application made by the defendant for issue of genealogical chart has been regretted since Muniyappa had died prior to 1940 and details were not available. Be that as it may, when there was serious dispute, the plaintiff could not have relied only on the said chart and the oral testimony of P.W. 1 alone. That apart, even if Ex. P5 is noticed, it shows that Era Chikkanna had two children and Doddamallaiah had two children. Though one of the branches at the two different tier is shown as issueless, in the context of claiming right under Muniyappa, one of the purchasers to the sale deed dated 08.03.1908, no details are pleaded or adverted in the evidence to show the manner and period of succession when ultimately certain revenue entries alone are being relied upon.
That apart, though it is contended that there was partition between Muniyappa and Muddaiah, no materials are placed. No doubt, even in the absence of there being partition among them, one of the joint purchasers would be entitled to half portion of the property and there should have been some evidence to show how the class-II legal heir of Muniyappa had come in possession of that portion. The certified copy of sale deed dated 08.03.1908 is marked as Ex. P2. The extract of the Tax Assessment List is marked as Ex. P3 which shows the name of the plaintiff. To correlate the said document, a similar extract is marked as Ex. P6 which shows the name of the husband of the plaintiff but, the details of the property is not clearly indicated. The source of the said extracts has not been brought before the Court to prove the extract except for marking the same. That apart, basis for entering the name of the husband of the plaintiff or that of the plaintiff is also not shown when there was serious dispute in that regard. The other documents at Exhs. P4, P7, P9 and P10 are receipts as issued by Gram Panchayath. The D.W. 1 also has relied on the extracts at Exhs. D4 to D11 and D21 to D28 and also the tax paid receipts at Exhs. D12 to 15. The same need not be adverted to in detail until the initial burden is discharged by the plaintiff.
Having noticed the above documents and when it is seen that the plaintiff is claiming right of succession, only the stray extracts for years 1982-83 and thereafter in 1993-94 alone would not be sufficient to establish the possession of the property. It is only if the plaintiff had established possession, the question of considering whether the defendant had interfered with her possession and as to whether the defendant had any better right would have arisen for consideration. The plaintiff though may not have had appropriate documents has not even chosen to examine any other person to establish possession be it as a owner or in any other manner. Point No. (i) framed herein is therefore held against the plaintiff.
In that background, a perusal of the judgment of the Court below would indicate that in fact a detailed consideration has been made by extracting the admissions of P.W. 1. Insofar as the Court below arriving at the conclusion that the plaintiff had not made out a case for injunction and that when there is a cloud on title, it would be appropriate to seek declaration is justified. The learned counsel for the plaintiff has however relied on the decision of this Court in the case of Puttegowda @ Ajjegowda Vs. Ramegowda, to contend that a suit for bare injunction is maintainable without seeking for declaration and it is contended that the Court below was not justified in observing that the suit for declaration is to be filed. However, what is to be noticed is that the Court below has arrived at such conclusion by relying on the decision of the Hon''ble Supreme Court which was cited before it and on applying it to the facts in the instant case. The discussion made by me hereinabove, also would indicate the cloud over the title to the suit schedule property has not been dispelled by the plaintiff. If the pre-existing right is crystal clear, it certainly would not require a declaration and in such case, a suit for injunction would be sufficient which is not the case herein.
The cross objection has been filed in the instant case in view of the observation made by the Court below that either of them have to establish their title. In a case for injunction at best the relief would be granted to the plaintiff, if possession is proved or else, it would be denied. It would not be necessary for the Court to decide the right of the defendant unless there is such prayer or counter claim by the defendants themselves or if the initial burden is discharged by the plaintiff. When the plaintiff was before the Court below and when the title itself was challenged, it is for the plaintiff to seek for such relief. If the defendant deems it necessary, he would do so on his own and it is not necessary for this Court to direct that they should also seek for declaration. The discussion by the Court below on the documents relied on by the defendant was however justified. Point No. (ii) is answered accordingly. In the result, the following:
ORDER
i) The appeal in RFA No. 143/2010 is dismissed.
ii) The RFA Cross Objection No. 15/2010 is disposed of with the above observations.
iii) In the facts and circumstances, the parties shall bear their own costs.