The Agricultural Produce Marketing Committee vs Deshpande Enterprises and Others

B. Veerappa, J.—This Regular Second Appeal is filed by the defendants against the judgment and decree dated 9.12.2012 made in R.A. No. 60/2001 on the file of the Fast Track Court, Jamakhandi confirming the judgment and decree dated 27.8.1999 made on O.S. No. 213/1996 on the file of the Civil Judge (Jr. Dn.), Mudhol, decreeing the suit of the plaintiffs for permanent injunctions.

The respondents/plaintiffs filed a suit for permanent injunction against the appellant contending that plaintiff No. 1 is a registered partnership firm, plaintiff Nos. 2 and 3 are the partners of the firm -plaintiff No. 1 dealer in petrol and diesel situated in CTS Nos. 3885 and 3866/1B and the said entire area is considered as explosive area which originally belonged to the Agriculture Produce Marketing Committee, Jamakhandi (for short hereinafter referred to as ''APMC''). The Chairman, Secretary and One of the Member of the above said Committee have jointly executed a sale deed in respect of sale of 5 plots which formed one compact block measuring East to West 150'' and North to South 175'' to plaintiff No. 2 - Mohanrao for a sum of Rs. 3255/- under a registered sale deed dated 30.1.1974 executed in favour of plaintiff No. 2 as per the resolution No. 6 dated 29.12.1973 of APMC, and from the date of purchase of 5 plots, plaintiff No. 2 is in possession and enjoyment of the same till today. Subsequently, plaintiff No. 2 purchased an open space measuring East to West 36 mtrs., on northern side and 1 mtr., on Southern side and North to South 80 mtrs., on Western side 74 mtrs.. This property originally was part of agricultural land bearing Sy. No. 542 of Mudhol and was under the ownership of one Srimat Parvatibai Malojirao Ghopade and this land was converted into non-agricultural purpose and the same was sold to plaintiff No. 2 by the Power of Attorney Holder of Srimat Ghorpade viz., Tukojirao Balakrishnarao Nimbalkar on 16.4.1986. On the western side of this property, CTS No. 3885 is situated which belongs to the plaintiff. Part of CTS No. 3884 bearing plot No. 50 was purchased by plaintiff No. 2 from the Chairman of APMC. It was the further case of the plaintiffs that the defendants intended to construct a compound at three places in the property of the plaintiffs and defendant had no right to encroach upon the property of the plaintiffs, etc, and therefore, sought for an injunction.

The defendant filed his written statement denying the entire plaint averments contending that the plaintiffs unauthorisedly and illegally tress passed into suit property, etc. and therefore, prayed for dismissal of the suit.

Based on the pleadings, the trial Court framed the following issues:

i) Whether the plaintiffs prove that he is the absolute owner of suit property and defendant intends to construct compound wall in the suit property?

ii) Whether the plaintiffs prove that the defendant has encroached in the suit property and constructing the compound wall with an intention to harass them?

iii) Whether the plaintiffs are entitled for the relief sought for?

iv) What decree or order?"

In order to establish the case of the plaintiffs, plaintiff No. 2 examined himself as P.W.1 and marked the documents Exs.P.1 to 9. The Secretary of APMC - Mahalingapur was examined as D.W.1 and no documents were marked.

On considering the entire material on record, the trial Court recorded a finding that the plaintiffs proved that the defendant has encroached upon the suit property by constructing a compound wall with an intention to harass them and therefore, decreed the suit as prayed for. Aggrieved by the said judgment and decree, defendants filed an appeal - RA No. 60/2001 before the Fast Track Court, Jamakhandi, which after hearing both the parties, by the impugned judgment and decree dated 9th of February, 2012 dismissed the same on the ground of delay and laches without going into the merits of the case, against which, the present appeal is filed.

I have heard the learned Counsel for the parties to the lis.

Sri V.S. Kalsoormath, learned Counsel appearing on behalf of Sri Mallikarjuna C. Basareddy, strenuously contended that there was a mutual understanding between the parties to solve the dispute and therefore, he could not file an appeal within time on the assurance given by the plaintiffs to dissolve the dispute between the parties but unfortunately, plaintiffs have not come forward to dissolve the dispute. In that process, there was a delay of 1 year 6 months 7 days in filing the appeal and therefore, sought for setting aside the judgment and decree of the Lower Appellate Court with liberty to the appellant/defendant to contest the matter on merits by condoning the delay.

Per contra, Sri M.G. Naganuri, learned Counsel for the respondents strenuously opposed and sought to justify the impugned judgment and award passed by the Lower Appellate Court.

I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.

It is not in dispute that the plaintiffs had filed a suit for injunction against the defendant mainly on the basis of the Exs.P.1, 2 and 3, sale deeds and other documents to prove their possession as on the date of the suit. The defendant, except the oral evidence of D.W.1, has not produced any material document. The trial Court considering the entire material on record has decreed the suit holding that the plaintiffs have proved that they are the absolute owner of the suit schedule property and the defendant intended to construct a compound wall in the suit schedule property and so also have proved that the defendant has encroached upon the suit property by constructing a compound wall with an intention to harass them.

It is not in dispute that the present appellant/defendant was the sole defendant and was represented by the learned Counsel. Admittedly, the trial Court passed the judgment and decree on 27.08.1999 and an appeal came to be filed before the Lower Appellate Court on 19.4.2001 with a delay of 1 year 6 months and 7 days and the Lower Appellate Court considering the entire material on record, dismissed the appeal mainly on the ground of delay and laches.

Prima facie, the Lower Court appears to be correct in view of the fact that throughout the proceedings the defendant contested the suit by engaging an advocate and therefore, the theory putforth by the defendant has no basis. However, it is relevant to mention here that the very appellant preferred O.S. No. 73/2010 for declaration of title and possession and consequential relief of injunction against the present respondents and after contest the said suit came to be dismissed on 13.8.2010. It is also an admitted fact that against the said judgment and decree of the trial Court, the present appellant filed RA 163/2010 before the Lower Appellate Court on 16.3.2010 which is pending adjudication between the parties.

Since the Lower Appellate Court dismissed the appeal only on the ground of delay and laches without reference to the merits of the case and admittedly, in the present case, suit filed by the plaintiff is only for a bare injunction and in view of the comprehensive suit filed by the present appellant to establish his title in respect of the very property in question, it is suffice to observe that any observation made by the trial Court in the present appeal i.e., O.S. 213/1996 for granting injunction and rejecting the appeal i.e., R.A. No. 60/2001 on the ground of delay and laches will not come in the way of the appellant to establish his right, title and interest in respect of the very suit property independently in the pending appeal R.A. No. 163/2010 between the parties. Hence, the appellant had not made out any prima facie case.

No substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed.

However, it is needless to mention that any observations made in this judgment arising out of the suit for injunction consequent upon dismissing the appeal on delay and laches will not come in the way of the appellant to establish his right in R.A. No. 163/2010 arising out of O.S. No. 73/2010 for declaration of title, possession and injunction in respect of the very suit property pending between the parties to the lis.

Ordered accordingly.