Susheelamma vs Venkatalaxmamma

Budihal R.B, J.—This appeal is preferred by the appellants being aggrieved by the judgment and decree passed in O.S. No. 691/1990 on the file of the Principal Civil Judge (Jr. Dn.) & JMFC, at Maddur dated 24.7.2002 and the judgment and decree dated 7.10.2005 passed by the Civil Judge (Sr. Dn.), Maddur in R.A. No. 51/2002.

The appellants have challenged the judgment and decree of the Courts below on the ground that it has failed to draw necessary inference and to hold that appellant No. 1 is in possession of 20 guntas of kharab land in view of their application for grant of the same. The Courts below have failed to note that respondents did not produce any documents in respect of the suit schedule property to prove their possession and enjoyment of the same. The documents produced by the respondents Exs. P2 to P12 did not refer to the suit schedule property. The trial Court has erred in relying upon Ex. P16, an endorsement issued by the Village Accountant to come to the conclusion that respondents are in possession of 35 guntas of kharab land. The trial Court has erred in not drawing adverse inference against the respondents in view of Ex. P17, a petition filed before the Land Grant Committee for 22 guntas of kharab land, which is contrary to the claim of the respondents that they are in possession of 35 guntas of kharab land. The trial Court has erred in dismissing I.A. No. 5, an application filed under Order 26 Rule 9 of CPC for appointment of ADLR, Maddur as Commissioner for local investigation to measure the suit schedule property. The first appellate Court has erred in dismissing I.A. No. 3 filed by the appellants under Order 13 Rule 10 of CPC to summon the records pertaining to the application filed by the first plaintiff for grant of oni kharab land of Karadkere village. The Courts below have failed to consider the evidence lead by parties in correct perspective. The judgment and decree of the Courts below are opposed to law and facts and equities of the case.

The brief facts of the case of the parties leading to the present appeal are that the respondents in this appeal were the plaintiffs before the trial Court. They have filed the suit seeking the relief of permanent injunction to restrain the defendants, their agents, servants or anybody from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property i.e., property bearing Sy. No. 90/6 measuring 35 guntas as shown in the schedule to the plaint. Plaintiff No. 2 is the husband of plaintiff No. 1 One Thimmappagowda was the owner in lawful possession of property bearing Sy. No. 90/6. Their exists a kharab land attached to the said survey number 90/6 belonging to the said Thimmappagowda, which was situate on the northern side of the land in Sy. No. 90/6. The said kharab land measuring 35 guntas is the subject matter of the present suit. The owner Thimmappagowda sold the land in Sy. No. 90/6 in favour of plaintiff No. 1 under the registered sale deed dated 24.1.1975 for valuable consideration and since from the date of purchase plaintiffs are in possession and enjoyment of the same. According to the plaintiffs, the kharab portion of the property was also sold in favour of plaintiff No. 1 by executing a document dated 25.1.1975 wherein Thimmappagowda has specifically stated that plaintiff No. 1 is entitled to enjoy the suit schedule property and also entitled to enjoy the kharab portion attached to Sy. No. 90/6. Hence, plaintiff No. 1 is in actual possession and enjoyment of the said kharab portion also. Thimmappagowda had also sold 39 guntas of land in Sy. No. 90/6 to plaintiff No. 2 but the sale deed was executed in the name of defendant No. 1. This 39 guntas of property is situate on the western side of the property purchased by plaintiff No. 1 and southern side of kharab land. After the sale and delivery of possession of the suit kharab land, R.T.C. entries have been made in the name of plaintiff No. 2. Defendants have no manner of right, title or interest over the said kharab land and they are never in possession and enjoyment of suit schedule property at any time in any capacity. The defendants cannot disturb plaintiffs'' peaceful possession and enjoyment of the suit schedule property. Since last 10 days defendants are interfering with the possession of the suit property by the plaintiffs and they are creating unnecessary obstructions to the plaintiffs'' possession. Hence, the suit.

Defendant Nos. 1 and 2 have filed their written statement contending that the allegation that kharab land was attached to the land in Sy. No. 90/6 is false. It is also false that it belongs to Thimmappagowda. But it is true that this kharab land called as oni kharab land, as per survey records situate on the northern side of the land in Sy. No. 90/6. It is also true that this kharab land was unauthorisedly occupied by the said Thimmappagowda and it was in his possession, but it was not attached to Sy. No. 90/6 and is not part of Sy. No. 90/6. It is also denied that plaintiffs are in lawful possession and enjoyment of the kharab portion of the land. Plaintiff No. 1 is not in possession of any extent of the land except the land she has purchased in Sy. No. 90/6 under the registered sale deed dated 24.1.1975. The allegations made in paragraph No. 5 of the plaint are false. The oni kharab land on the northern side of Sy. No. 90/6 subsequently and in the month of June 1975 was occupied by defendant No. 1 since Thimmappagowda did not come and cultivate the said area. This area measures about 20 guntas. As this 20 guntas of land is adjacent to the land of defendant No. 1 on its northern side, which is part of the suit schedule land, it is in possession and enjoyment of the defendants. The allegation that the said portion of the kharab land was given to the possession of plaintiffs is false. Plaintiffs raised sugarcane only in respect of 4 guntas which is a part of the suit schedule property on the eastern side. Adjacent to it, they have purchased land in Sy. No. 90/6. The 20 guntas of kharab portion has been in possession of defendant No. 1 ever since the month of June 1975. Hence, they have sought to dismiss the suit.

On the basis of the above pleadings, the trial Court has framed the following issues:

Whether the plaintiffs prove that they are together in possession and enjoyment of the property described in the plaint schedule including the kharab portion?

Whether the plaintiffs prove the alleged interference by the defendants?

Whether the valuation made by the plaintiffs is correct and Court fee paid is sufficient?

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

What decree or order?

After considering the merits of the case, ultimately, the trial Court has decreed the suit of the plaintiffs and issued permanent injunction restraining the defendants, their agents from interfering with the plaintiffs possession and enjoyment of the suit schedule property in any manner.

Aggrieved by the judgment and decree of the trial Court, defendants have preferred the appeal in R.A. No. 51/2002 before the Court of Civil Judge (Sr. Dn.), at Maddur wherein the first appellate Court has dismissed the appeal and confirmed the judgment and decree passed by the trial Court. Hence, the appellants-defendants are before this Court in this regular second appeal.

This Court while admitting the appeal has framed the following substantial question of law for consideration:

"Whether the Courts below were justified in holding that plaintiff is in possession of the entire suit schedule property even though in the sale deed in which she is claiming title the said entire extent do not figure?"

Heard the arguments of the learned counsel appearing for the appellants. The respondents and their counsel have remained absent.

Learned counsel for the appellants during the course of arguments has submitted that though the respondents have claimed that their exists 35 guntas of kharab land on the northern side of the property bearing Sy. No. 90/6, but during the course of trial, they were not able to produce any material to show that 35 guntas of land was there on the northern side as a kharab land and though it is not established by satisfactory material that plaintiffs are in possession and enjoyment of 35 guntas of kharab land, the Courts below have granted the decree in their favour which is perverse and illegal. He has also submitted that that the appellants-defendants have placed the material by way of oral and documentary evidence that they are in possession and enjoyment of 20 guntas of kharab land and the plaintiffs-respondents are only in possession of 4 guntas of the land. The trial Court has ignored this aspect of the matter and has wrongly decreed the suit of the plaintiffs, which is confirmed by the first appellate Court. It is submitted that oral and documentary evidence produced by the parties are not correctly appreciated by both the Courts below. The judgment and decree passed by the Courts below are not in accordance with law. Hence, he has submitted to allow the appeal and to set aside the judgment and decree under appeal by dismissing the suit of the plaintiffs.

I have perused the pleadings of both the parties presented before the trial Court, oral and documentary evidence produced in the suit and the judgment and decrees passed by both the Courts below and the grounds urged in the appeal memo.

The case of the plaintiffs according to their pleadings is that one Thimmappagowda, was the owner of Sy. No. 90/6 and plaintiff No. 1 has purchased 1 acre 6 guntas of land out of Sy. No. 90/6 from Thimmappagowda under the registered sale deed. So also, defendant No. 1 has purchased 39 guntas of land under the registered sale deed from the said Thimmappagowda. But it is the plaintiffs case that on the northern side of Sy. No. 90/6 there is a oni kharab land measuring 35 guntas, which was also in possession and enjoyment of said Thimmappagowda and while selling the portion of Sy. No. 90/6 in favour of plaintiff No. 1, Thimmappagowda also gave 35 guntas of oni kharab land to the possession of the plaintiffs and hence, they are in continuous possession and enjoyment of kharab area of 35 guntas also. But, according to the defendants, their exists oni kharab land on the northern side of Sy. No. 90/6, but they have disputed the extent of kharab land that it is 35 guntas and in their written statement they have contended that it is measuring only 24 guntas out of which, 20 guntas is in their possession and the remaining 4 guntas is in possession of the plaintiffs and on that ground, they have challenged the suit as well as the averments made in the suit by the plaintiffs.

As per the oral evidence of the parties, plaintiff No. 2 has been examined as P.W. 1 wherein he has stated that 35 guntas also belong to Sy. No. 90/6 and on the date of the sale deed, Thimmappagowda also gave 35 guntas to him by receiving Rs. 1,000/- from him and he has obtained a document from Thimmappagowda for giving this 35 guntas to him for Rs. 1,000/- which is the suit schedule property and in the suit schedule property he has raised sugarcane and paddy crops. He has stated that Thimmappagowda had executed the document i.e., kharar for 25 guntas, but after the purchase when it was measured, he came to know that it is 35 guntas. He has given the boundaries in his oral evidence that 35 guntas of land is bounded, on the East-Chamarajagadde, to the West-land of K.L. Gowda and Karigowda, to the North-property of Gendeputtanadodda and Doddaninganna and to the South-his own property. I have perused the said boundaries with the boundaries furnished in the schedule to the plaint and they are tallying with each other. In the cross-examination he has admitted that to the west of the property purchased in the name of plaintiff No. 1, there is a property of defendant No. 1. He has admitted as true that the suit schedule property is on the northern side abutting to the portion of the property purchased by plaintiff No. 1 and defendant No. 1. He has further deposed that Thimmappagowda while selling the portion of the property gave the portion stating that he is in possession of the kharab and asked P.W. 2 to enjoy by go on paying T.T. He has denied the suggestion that defendant No. 1 is in possession of 20 guntas of said kharab portion, which is on the northern side of the defendants'' property. He also denied that plaintiff is in possession of only 4 guntas of the kharab portion. In Ex. P16 it is shown that he is the owner of 33 guntas of land.

P.W. 2 who has been examined on the side of the plaintiff has deposed in his evidence that suit schedule property earlier belonged to Thimmappagowda. From him, plaintiff No. 1 and defendant No. 1 have purchased the property and to the north of the said properties there is a kharab land measuring 35 guntas in possession of Thimmappagowda. In the year 1975, plaintiff No. 2 has taken that kharab portion of the land and from that date plaintiff No. 2 is in possession of the said kharab land. In the cross-examination, he has denied the suggestion that the oni kharab land is on the northern side of the properties purchased by plaintiff No. 1 and defendant No. 1 and they are in possession of their respective portion of the kharab land. He has also denied the suggestion that plaintiffs are in possession of only 4 guntas of kharab and defendant No. 1 is in possession of 20 guntas. He has deposed that kharab portion is 35 guntas and he has seen the documents in that regard. He has also admitted that kharab portion belongs to the Government.

On the side of the defendants, D.W. 1 has deposed in his evidence that he is the P.A. Holder for the defendants and has produced the Power of Attorney as per Ex. D1. He has deposed that defendant No. 1 is in possession of 20 guntas in the oni kharab and plaintiff No. 1 is in possession of 4 guntas of oni kharab. He has denied that plaintiffs are in possession and enjoyment of 35 guntas of kharab land. In the cross-examination when it was suggested that both the defendants are healthy, he has answered that both are age old but they are healthy. He has deposed that for executing the power of attorney the defendants have not at all come to Maddur. He has denied the suggestion that if at all the defendants come before the Court they have to tell the truth and for that reason they have avoided to come before Court and executed power of attorney in his favour. He has denied the further suggestion that by taking money from them he is giving false evidence that he was working as coolie under the defendants in the said land. He has further deposed and admitted that on the northern side of Sy. No. 90/6 there is a kharab land to the extent of 35 guntas. He has denied the suggestion that plaintiff is in possession of the said kharab area.

D.W. 2 has deposed in the examination-in-chief that D.W. 1 is serving as a coolie under the defendants. He knows that both the parties are claiming the kharab land. He has further deposed that plaintiffs are in possession of 4 guntas and defendants are in possession of 20 guntas of kharab portion, which is abutting to their respective portions of the land on the northern side. He has denied that there is no 35 guntas of kharab land and further deposed that there is no 35 guntas of kharab land and it is not correct that plaintiffs are in possession of 35 guntas. In the cross-examination, when it was suggested to him that disputed portion of the land is 35 guntas he said no and that it is only 25 guntas.

D.W. 3, another witness, has deposed that on the northern side of the property of defendant No. 1 there is 24 guntas of kharab land and plaintiff is in possession of 4 guntas and not 35 guntas. In the cross-examination he has denied the suggestion that the suit schedule property is 35 guntas and it is in possession of plaintiff No. 2. He has further deposed that plaintiffs are in possession of only 4 guntas. He has denied the suggestion that defendants are not in possession of suit schedule property.

I have also perused the judgment and decrees passed by both the Courts below. Looking to the judgment and decree passed by the trial Court as well as the first appellate Court, it is seen that they have taken into consideration each and every aspect of the matter and have come to the conclusion that on the northern side there is 35 guntas of oni kharab land. Looking to the documents produced by the plaintiffs i.e., record of rights from Exs. P2 to P12 in all those record of rights in column No. 9 of the R.T.C. the owners name is shown as Thimmappagowda. But in column No. 12 i.e., cultivators column, name of plaintiff No. 2 is shown that he is in possession and enjoyment of 35 guntas of land.

I have also the perused document Ex. P16, which is the khata extract issued from the Village Accountant, Karadakere circle addressed to plaintiff No. 2, which shows that Sy. No. 90/6 measuring to the extent of 0.33 guntas is in the name of plaintiff No. 2 as khatedar. So, on the side of the plaintiffs there are documentary evidence to support the contention that plaintiff No. 2 is in possession and enjoyment of the kharab portion of the land. It also probabalises that Thimmappagowda gave the kharab portion of land to plaintiff No. 2 by collecting Rs. 1,000/- from him. The Courts below have rightly appreciated that plaintiffs are able to establish their case with oral and documentary evidence. No illegality has been committed by the Courts below nor there is any perverse or capricious view taken by the said Courts in coming to such conclusion. There are concurrent findings of the Courts below regarding plaintiffs'' possession and enjoyment of suit schedule property, which is said to be the kharab land on the northern side of Sy. No. 90/6. Hence, there are no valid and justifiable grounds for this Court to interfere into the judgment and decree passed by the Courts below. There is no merit in the appeal.

Hence, the appeal is dismissed. No order as to costs.