Thibbegowda and Others vs Ninganna and Others

Ravi V. Malimath, J.—The case of the plaintiff is that the suit schedule property originally belonged to one Akkamma who sold the same to the plaintiff under a registered sale deed dated 15/3/1954 and since then the plaintiff was in possession of the suit schedule property as absolute owners. The revenue documents are all changed to his name. He has been paying the taxes. That the defendants having no manner of right, title or interest, are making attempts to trespass on the suit land and attempting to interfere over the plaintiffs possession and enjoyment over the same. Hence the instant suit was filed seeking for a decree of declaration of plaintiffs title and for consequential relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. On service of notices, defendants entered appearance and denied the suit claim. The first defendant disputes the plaintiffs title and possession of the suit property. That there is no proof regarding interference. That the first defendant is the owner in possession of the site measuring 30 x 40 ft. having purchased the same under a registered sale deed dated 8/7/1985 from one Shanthamma. That the said land originally belonged to one Dasegowda. The same was sold to Sreenivasamurthy and Narayana. Sreenivasamurthy converted his land for non-agricultural purpose and made 30 x 80 ft. site. He has paid the layout charges and conversion charges and the same is assessed to municipal tax. He sold the site in favour of Yashodamma and Shanthamma by bifurcating it into two sites by registered sale deed dated 4/2/1980. The 1st defendant has purchased the site from Shanthamma under a registered sale deed dated 8/7/1985 and since then she is in possession and enjoyment over the said property. That she has obtained valid licence from the Municipality and has started construction work. The plaintiff, by making a bogus claim, is attempting to encroach the defendant''s property. Hence it is pleaded that the suit be dismissed.

During the course of the trial, the plaintiff impleaded the 2nd defendant who also filed his detailed written statement denying the plaint averments. Defendant No. 2 contends that it is not within his knowledge and he is not concerned with the facts of the case. He disputes the allegation of interference. He contends that he is not claiming any right over the suit schedule property. That he is not a necessary party to the suit.

During the course of the trial, the plaintiff amended the prayer in the suit alleging that the 2nd defendant has encroached 10 x 12 ft. property illegally. Hence the prayer for recovery of possession, was also sought for. The amendment was allowed. Additional written statement was filed denying the plaintiffs plea. That 2nd defendant has instituted a suit in O.S. No. 108/2006 against the present plaintiff when the plaintiff intended to encroach upon his property. The said suit is pending consideration. Hence he sought for dismissal of the suit.

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

"1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property as stated inpara-2 of the plaint?

2) Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

3) Whether the plaintiff proves the allegations regarding interference as pleaded?

4) Whether the plaintiff is entitled for the relief of declaration as prayed?

5) Whether the plaintiff is entitled for alternative relief as prayed for?

6) Whether the plaintiff is entitled for injunction as prayed for?

7) What order or decree?"

The legal representative of the plaintiff No. 1D was examined as PW-1 and 3 other witnesses were examined as PW-2 to PW-4 and 13 documents were marked. Defendant No. 2 was examined as DW-1 and 2 other witnesses as DW-2 and DW-3 and got marked 11 documents. All the issues are held in the affirmative and the suit of the plaintiff was decreed. He was declared as the absolute owner of the suit schedule property. Defendants were restrained from interfering with his possession over the suit schedule property. Defendant No. 2 was directed to deliver possession of the encroached area of 70 x 10 ft. as identified by the Court Commissioner. Aggrieved by the same, defendant No. 2 filed an appeal. The appeal was partly allowed. The judgment and decree of the Trial Court with regard to the title of the plaintiff, was confirmed. The decree for permanent injunction was partly modified restraining the defendants from interfering with the plaintiffs possession to an extent of 70 x 10 ft. and the decree for recovery of possession, was set aside. Aggrieved by the same, the plaintiff has filed the second appeal.

By the order dated 29/1/2014, the appeal was admitted to consider the following substantial question of law:

"When the Lower Appellate Court accept that the defendants in the original suit cannot claim more than the property for which they are entitled to, was justified in reversing the finding of the Trial Court on Issue No. 2 ?" Both learned counsels submit that the substantial question of law requires to be reframed. I have heard learned counsels on the same. Consequently, the substantial question of law is reframed as under:

Whether the First Appellate Court was justified in reversing the decree for mandatory injunction and possession, when neither the encroachment nor possession has been claimed in the original plaint and whether such a decree could be granted only on the basis of the report of the Commissioner? 4. Learned counsel appearing for the appellants contends that the impugned order of the appellate court is erroneous and liable to be set aside. It is further contended that the findings recorded by the First Appellate Court that in the absence of any pleading regarding encroachment and possession, the same could not be granted, is erroneous. When the plaint is subsequently amended to include the prayer of encroachment and also seeking for possession, the First Appellate Court committed an error in reversing the finding with regard to encroachment and possession.

On the other hand, learned counsel for the respondents defends the impugned order.

Heard learned counsels and examined the records. The title of the plaintiff was decreed and the defendants were directed not to interfere with the plaintiffs possession, while further directing the defendants to deliver possession of 70 x 10 ft., as identified by the Court Commissioner. The First Appellate Court modified the decree while confirming the title of the plaintiff. The injunction restraining the defendants from interfering with the property measuring 70 x 10 ft., was confirmed. However the decree of the Trial Court granting recovery of possession to a portion of the suit property, was set aside, as well as for recovery of possession. It is this that is sought to be challenged here.

The appellate court while considering the plea of the plaintiff, was of the view that the Court Commissioner who was appointed, has clearly stated that the defendant No. 2 has encroached a portion of the suit property. After the submission of the Commissioner''s report, the plaintiff amended the prayer portion of the plaint and has inserted an alternate prayer seeking recovery of the encroached portion. Therefore the Appellate Court was of the view that in the absence of any pleadings, the prayer cannot be granted. Therefore it reversed the finding. The Trial Court, on the contrary, while placing complete reliance on the report of the Commissioner, granted relief to the plaintiff since the Commissioner himself has stated that the defendant No. 2 has encroached a portion of the suit property and therefore the plaintiff was entitled to the same.

On hearing learned counsels, I''m of the view that the reasoning assigned by the First Appellate Court is just and appropriate. In the absence of any pleading, the prayer by itself would not stand. Merely amending the prayer to include the prayer of seeking recovery of encroached portion is not sufficient. Plaintiff would necessarily have to plead as to when the defendant encroached upon the said portion and that the said portion requires to be handed back to him. There is no such pleading which would mean that the plaintiff has not pleaded as to when the encroachment took place. In the absence of a pleading which narrates the date on which the defendants encroached upon the plaintiffs property, such a decree could not be granted. The Commissioner''s report cannot substitute the pleadings. The suit would have to be considered based on the pleadings and evidence. The Commissioner''s report is only an additional evidence in support of the case. When the fundamental pleading regarding encroachment is absent, the prayer to that extent, was rightly reversed by the appellate court. In these circumstances, the substantial question of law is answered by holding that the First Appellate Court was justified in reversing the finding of the Trial Court on mandatory injunction and possession based on the fact that there was no pleading to the effect of any encroachment and consequently there could not be a decree for handing over possession by the defendants to the plaintiff, based solely on the report of the Commissioner. On answering the substantial question of law, the appeal is dismissed.