Sri Venkatramanaiah and Sri Venkataramanaiah vs Sri Muninarayanappa, Hotel Narayanappa and The Secretary, Kenchanakuppe Grama Panchayath

A.S. Pachhapure, J.—In this second appeal the appellants have challenged the judgment and decree of injunction granted by the trial Court and confirmed in the appeal by the First Appellate Court. The facts relevant for the purpose of this appeal are as under:

The appellants herein are defendant No. 1 and legal representatives of defendant No. 2, whereas respondents 2 and 3 herein are defendants 3 and 4 in the trial Court. The first respondent herein instituted a suit for injunction to restrain the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property described in the schedule to the plaint. It is the property No. 1/7 in Kaneshumari No. 7/193 measuring east to west 180 feet and north to south 140 feet with the boundaries mentioned in the schedule to the plaint. The plaintiff is the son of Yembralappa and Chikkavenkatamma and the suit property was that of his mother. She is said to have bequeathed her interest in the suit property to the plaintiff under a registered Will dated 21.2.1992. On the death of his mother, the plaintiff is enjoying possession of the suit property which includes a toilet, bathroom, cattle shed adjoining vacant space with fruit yielding trees on it. As there was an obstruction to his possession by the defendants, the suit for injunction was instituted.

Defendants 1 to 3 filed written statement denying the averments made in the plaint including the measurement, the boundaries and the total area for which the injunction was sought. It is their contention that they are in possession of the property in pursuance of the sale deed and contend that the plaintiff was given a country titled house east to west 48 feet, north to south 45 feet and the vacant site measuring east to west 63 feet and north to south 45 feet. The vacant site is to the west and the house is to the East. He also contend that on the northern side it is their property and only thereafter there is a road. In the circumstances the defendants sought for dismissal of the suit.

On the basis of these pleadings, the trial Court framed issues casting burden upon the plaintiff to establish his lawful possession, obstruction and the nature of reliefs to be granted. During the trial, the plaintiff examined himself as PW1 and the documents Exs. P1 to P11 were marked. The first defendant was examined as DW1 and two witnesses as DWs. 2 and 3. In their evidence, Exs. D1 to D7 were marked. The trial Court after appreciating the material on record and on hearing decreed the suit holding that the plaintiff is able to establish lawful possession over the suit property and in view of the obstruction caused, a decree of injunction was granted. Aggrieved by the judgment and decree, defendants 1 and 2 preferred an appeal to the First Appellate Court in RA No. 115/2007 which came to be dismissed vide the judgment and decree dated 3.4.2008. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.

At the time of admission, this Court has framed the following substantial question of law for consideration:

Whether the Courts below were justified in sustaining the case of the plaintiff on the basis of a Will as against the sale deed which was set up by the defendant in respect of an area measuring 120 feet by 80 feet which is encompassed in the suit schedule property, whereas it is claimed by the defendant under the sale deed which was produced?

It is the contention of the learned counsel for the appellant that the Will Ex. P1 is not a document of title and as there is no mention of the area in the Will Ex. P1, a decree of injunction cannot be granted in favour of the plaintiff on the basis of the said Will in the absence of any material to prove the possession over the area with the boundaries mentioned in the suit schedule. So also it is contended that Ex. D1 is the sale deed which conveys title to the contesting defendants and it would reveal that on the northern portion it is the property of defendants 1 to 3 which lies in between the road and the property of the plaintiff. So, it is contended that in view of the oral evidence and Ex. D1 the sale deed, the Courts below committed an error in accepting the contends of the Will and the inconsistent oral evidence of PW1. Hence, he would submit that the decree of injunction granted by the trial Court confirmed in the appeal has to be set aside by dismissing the suit of the first respondent.

On the other hand, the learned counsel for the respondents supporting the findings of the Courts below contend that it is the question of possession which is decided by the Courts below on the basis of documentary, oral evidence and admissions of DW1 and in this second appeal a substantial question of law having cannot be raised and that the findings of facts by the Courts below cannot be interfered with.

In a simple suit for injunction, it is the question of possession which assumes more importance than the question of title. The plaintiff has to establish lawful possession over the suit property and an act of obstruction by the defendants. Therefore, there is no necessity to go deep into the question of title of the parties while assessing the evidence adduced. Though the plaintiff relies upon a Will, as the defendants are the strangers, they have no authority to challenge its validity. The contents of a Will are looked into only for the purpose of finding out the possession in the context of the other material placed on record by the parties to know as to whether the plaintiff is in possession of the property or not. So also, the sale deed Ex. D1 which is relied upon by the defendants 1 to 3, may be used to confirm the tile to the property mentioned therein and the question of their possession on the basis of the sale deed.

It is relevant to note that the plaintiff while describing the boundaries of the suit property it is the house of Narayanappa which is on the east and a house of Rachaiah on the west. On the northern side it is the road and on the southern side it is the land of Bhadramma. Though there is no material on record so far as the area that lies within the boundaries mentioned therein, the plaintiff claims that it is 135 feet to 140 feet i.e. the description of the suit property as mentioned by the plaintiff in the schedule to the plaint.

As could be seen from the Will Ex. P1 on the basis of which the plaintiff derives a title, the description mentioned in the Will is consistent with the boundaries as mentioned in the schedule to the plaint. The Will Ex. P1 was executed on 21.2.1992. It is or, the basis of that Will the name of the plaintiff was entered in the village records and the extract of demand register has been produced at Ex. P2. Ex. P3 is also the extract of the demand register for the year 2003-2004, wherein the name of the plaintiff appears as a owner in possession of the suit property. Ex. P4 is the receipt for payment of tax. That apart, PW1 in his evidence has stated that he is in possession of the suit property and he has also produced the photograph Exs. P5 to P11 which reveal existence of a cattle shed on the suit property.

Ex. D1 is a sale deed, on the basis of which defendants 1 to 3 derived title and it came into existence on 21.7.1937 long prior to the Will at Ex. P1. The defendants have also produced the extract of the demand register for the year 1997-1998, 2006-2007 at Exs. D2 to D4 and there is no consistent evidence with regard to the boundaries of the property purchased by the ancestors of defendants 1 to 3 since from 1937 till the date of the suit in question. To prove that the property of the defendants 1 to 3 is on the northern side in between the road and the property of the plaintiff there is no consistent evidence. The plaintiff has denied the existence of defendants property in between his house property and the road on the northern side. Therefore, the contents of the sale deed so far as the boundaries mentioned therein cannot be of much help to the defendants, as the said sale deed was in the year 1937. In the circumstances, it is the other records and the consistent version of the plaintiff as compared with the boundaries mentioned in the Will assumes importance. The first defendant is examined as DW1 and in the cross-examination he admits that the suit property was in possession of Chikkavenkatamma in her life time and a suggestion made to this effect has been accepted by DW1. To another suggestion in the cross-examination that the plaintiff is in possession of that much of the property as was in possession of Chikkavenkatamma, he accepts such suggestion as well and further admits that at the said place after demolishing the house, the plaintiff has constructed a building with cement sheets on the roof. He admits that there is a vacant place in front of this house and that the plaintiff has put up the construction of a shop, bath room, toilet, cattle shed and a suggestion to this fact is accepted by DW1 in the cross-examination. So, the aforesaid admission in the cross-examination of DW1 assumes greater importance and supports the consistent version of the plaintiff to prove the possession of the property within the boundaries mentioned in the sale deed. So, it is the contents of the Will, the boundaries therein, the oral evidence of the plaintiff and the admission of DW1 which were waived by the Courts below in assessing the evidence. In a civil case, it is the principle of preponderance of probability that is adopted in granting the relief. So, when DW1 admitted the possession of the suit property having been with the plaintiff and the evidence of the plaintiff is consistent with the contents of the Will, a decree of injunction was granted by the trial Court, the First Appellate Court as well re-appreciated the evidence and affirmed the decree. It is not the question of title which is decided in a case for injunction. Therefore, the question as to whether the plaintiff has the title to the property on the basis of the Will Ex. P1 or that the first defendant has derived title, sale deed Ex. D1 assumes no importance solely for the reason that in a suit for injunction it is the lawful possession which requires to be considered and not the title. No doubt in the Will Ex. P1 there is no measurement in respect of the vacant site, as the boundaries prevail over the measurement and as the plaintiff is able to establish that he is in possession of the suit property within the boundaries mentioned therein, grant of decree by the Courts below cannot be interfered with and the question as to whether the contents of the Will over ride the contents of the sale deed cannot be a matter for consideration. The contesting defendants may approach the Civil Court for the relief of declaration and any other appropriate reliefs if they are aggrieved in respect of the title of the parties. In view of the abundant evidence made available by the plaintiff and on the admission of DW1, no such substantial question of law as framed arise for consideration.

In the result, the substantial question of law raised is answered in negative. Consequently the appeal fails and it is dismissed.