UFM Sri Nagesh vs Shrikant and Others

A.V. Chandrashekara, J.—This second appeal is filed u/s 100 of CPC is filed challenging the concurrent findings given by the Court of Civil Judge (Jr. Dn.) Ankola in O.S. No. 49/2004 and affirmation of the same in R.A. No. 366/2006, dated 22.04.2009. The appellant herein is the plaintiff in the said suit and the appellant in R.A. No. 366/2006. The respondents herein were the defendants in O.S. No. 49/2004 and respondents in R.A. No. 366/2006. The parties will be referred to as the plaintiff and the defendants as per their ranking given in the trial Court.

The plaintiff had filed a suit for the relief of permanent injunction and mandatory injunction in respect of a house bearing 537, put up in an area of one gunta, out of total extent of 21 guntas of land in Sy. No. 90/1 of Bobruwada village in Ankola Taluk. According to the plaintiff, the defendants have unauthorisedly put up a house in one gunta of land, out of 21 guntas of land possessed by the plaintiff in Sy. No. 90/1. The defendants have not seriously questioned the possession or title in respect of the 20 guntas of land belonging to the plaintiff. The plea of the defendants in the said suit was that they had put up a house way back in the year 1977 and that they have spent sufficient amount and that they have been living in the said house. The averments of the plaintiff that they were only licenses under him had been specifically denied. According to the defendants, the suit for permanent injunction and mandatory injunction was not at all maintainable without seeking the relief of declaration of title and without seeking the relief of recovery of possession of the same.

On the basis of the above pleadings, 11 issues were came to be framed, as found in page Nos. 6 and 7 of the impugned judgment of the trial Court. The plaintiff himself has been examined as PW1 and the first defendant himself has been examined as DW1. 12 exhibits have been got marked on behalf of the plaintiff and 6 exhibits have been got marked on behalf of the defendants.

After hearing the arguments, the learned civil Judge (Jr. Dn.) has answered the issue Nos. 1, 3, 8 and 10 in the affirmative, issue No. 6 partly in the affirmative and remaining issues in the negative. The plea of adverse possession taken up on behalf of the defendants has been rejected vide finding on issue No. 5. Ultimately, the suit has been dismissed solely on the ground that no relief of recovery is sought for. So far as injunction in respect of 20 guntas of land is granted, it is held that the same belongs to the plaintiff. But the defendants have been permitted to make use of the land held by the plaintiff as an access to their house.

Being aggrieved by the dismissal of their prayer for mandatory injunction, the plaintiff had filed an appeal u/s 96 of the C.P.C. in R.A. No. 366/2006 before the Court of Senior Civil Judge at Kumta, which ultimately came to be dismissed and thereby the trial Court''s finding has been affirmed. It is these concurrent findings of the trial Court as well as the first appellate Court, which are called in question u/s 100 of the C.P.C.

Several grounds have been urged in the appeal memorandum contending that both the Courts have adopted a wrong approach to the real state of affairs and that the Courts have not taken into consideration the establishment of the title of the plaintiff to the entire extent of 21 guntas of land in Sy. No. 90/1. It is further contended that the relief of mandatory injunction is equivalent to the relief of recovery of possession and that the trial Court could not have non-suited the plaintiff on that count. It is further contended that the suit filed by the plaintiff is not at all barred by time and that there is an incorrect finding to that effect. It is further contended that both the Courts have wrongly held that the suit for mandatory injunction should have been filed within three years from the date of putting up of construction by the defendants. It is further contended that the oral and documentary evidences have not been tested on the touchstone of intrinsic probabilities and that the judgments and decrees of the trial Court and the first appellate Court are opposed to law and action probabilities. Hence, it is prayed to allow the appeal and decree the suit in its entirety.

The two substantial questions of law have been proposed in the appeal memorandum filed, they are found in page 8 of the appeal memorandum and they are as follows:

i) Whether the Courts below have erred in not granting the prayer of the appellate for permanent injunction and also the Mandatory Injunction as prayed for when the claim of adverse possession has been negatived by both the Courts and after holding that the respondents are mere licenses?

ii) Whether on the facts and circumstances of the case, the judgment and the decree passed by the Courts below is sustainable according to law?

I have heard the arguments from the learned counsel for the appellant regarding admission. Perused the records.

It is true that the defendants have not seriously disputed the title of the plaintiff insofar as remaining 20 guntas of land and they cannot do also. So far as one gunta of land where the defendants have put up construction is admittedly in the possession of the defendants. The plaintiff''s case was that a suit was filed for injunction in the year 1974 vide O.S. No. 38/1974 and during the pendency of the said suit, the defendants have constructed a house. As rightly pointed out by the trial Court and affirmed by the first appellate Court nothing is placed on record to demonstrate that there was an injunction order during the pendency of O.S. No. 34/1974 against putting up of any construction and the construction so made was in violation of such an injunction order. But an important admission culled out from the mouth of PW1 would go to show that the defendants chose to construct a house way back in the year 1977.

The plaintiff is examined as PW1 and his deposition would go to show that the father of the defendants come into possession of this area and put a small house thereon and later on the defendants have made it as a pakka house in 1977. It is an admitted fact that the father of the defendants was put into possession way back in the year 1955 and a hut existed there and now the same has been converted into a pakka house. The evidence on record would go to show that a pakka house was built in the place where a hut existed and this was put up in the year 1977 by obtaining a financial aid from the Government and there was absolutely no inhibition for them to put up any construction.

In fact PW1 has clearly deposed in his evidence that a house existed even in the schedule space in the year 1977. This would go to show that the defendants had been in possession of the property and residing there for more than four and half decades and that the plaintiff having known this, has not prayed for recovery of possession. This is nothing but acquiescence insofar as plaintiff is concerned.

The learned judge of the trial Court has specifically held that without seeking the relief of recovery of possession, the suit filed for the relief of mandatory injunction is not at all maintainable and on that ground the plaintiff is non-suited. The said factual finding is based on the evidence of the parties and is affirmed by the appellate Court on reassessment of the evidence. On perusing the judgment of the appellate Court, it is very clear that the entire evidence has been reassessed and that the first appellate Court has again tested the same evidence on the basis of the intrinsic probabilities. It is affirmed that the plaintiff has failed to prove that the house in question was built by the defendants during the pendency of O.S. No. 38/1974 and that there was an injunction order pending in the said suit.

What is argued before me is that in the light of the inability of the defendants to prove the aspect of adverse possession, the suit of the plaintiff should have been allowed. A defendant can take up not only alternative pleas but also inconsistent pleas. Therefore, inability of the defendants to prove the aspect of adverse possession will not give a leverage to the plaintiff to seek the relief of mandatory injunction, without there being a specific relief of recovery of possession. Here is a plaintiff, who has slept over for a considerable length of time having seen the defendants'' father coming into possession of one gunta of land and putting up of a hut and thereon his children making the said hut a pakka house even prior to 1974. Suffice to state that the factual finding given by the trial Court is based on good reasons and therefore, the first appellate Court has upheld the same. Hence, this Court does not find any infirmity or illegality in the approach adopted by the trial Court as well as the first appellate Court. The first appellate Court has adopted right approach to the real state of affairs keeping in mind the principles reiterated by the Hon''ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., .

The first appellate Court has affirmed the finding on the basis of the valid reasons and no inference is called for with the well-written judgments of the trial Court as well as the first appellate Court.

Another argument canvassed by the learned counsel for the appellant is that without there being a prayer on behalf of the defendants for ingress and agrees of the house put up in the schedule property, the trial Court could not have granted the said relief. The Courts are there not only for doing technical justice but also substantial justice. Having come to the conclusion that the defendants have put up a pakka house in one gunta of land out of total 21 guntas of land possessed by the plaintiff and if the plaintiff were to be inhabited by the defendants from having access to their house, the purpose for which the house has been put up will become otiose. Taking into consideration, the hard realities that may be faced to the defendants, the trial Court has rightly held that there should be proper ingress and agrees to and from the house of the defendants in the land up to the main road.

Suffice to state that no interference is absolutely called for, insofar as it relates to the dismissal for the relief of mandatory injunction and affirmation of the same by the first appellate Court. Hence, it is not a fit case for admission and accordingly, the appeal is to be dismissed.

ORDER

Appeal filed u/s 100 of CPC challenging the judgment and decree passed in O.S. No. 49/2004 on the file of Civil Judge (Jr. Dn.) Ankola and affirmation of the same in R.A. No. 366/2006 is dismissed as unfit for admission. The learned counsel for the appellant makes a submission that nothing comes in the way of plaintiff to file a suit for recovery of possession. It is made clear that if law provides for the plaintiff to file a suit for recovery of possession, nothing comes in his way and all the questions that are available for the parties are kept open to be urged in the said suit, which may be filed on behalf of the plaintiff seeking the relief of recovery of possession.