V. Venkatesh vs Ammani Nayar

Aravind Kumar, J—This second appeal is directed against the judgment and decree passed in R.A. No. 58/2012 dated 25.08.2014 by Principal Senior Civil Judge (CJM), Chickballapur, whereunder appeal filed by unsuccessful defendant came to be dismissed and judgment and decree passed by Principal Civil Judge, Chickballapura, dated 30.01.2012 in O.S. No. 153/2005 came to be affirmed, whereunder trial Court had granted an order of permanent injunction restraining defendant from interfering with plaintiffs peaceful possession and enjoyment of suit schedule property.

Heard learned counsel appearing for appellant. It is the contention of Sri. Nitish, learned counsel appearing on behalf of Sri. K.V. Narasimhan, for appellant that very grant made in favour of plaintiffs vendor Sri. P.M. Mathew has since been cancelled by the Assistant Commissioner and when Revenue Authorities have consistently held that defendant is in possession of suit schedule property, Courts below could not have decreed the suit for perpetual injunction and granted a decree of permanent injunction. He contends that there is erroneous appreciation of evidence by the Courts below and also non consideration of material evidence available on record and thereby it has resulted in miscarriage in the administration of justice and as such, Substantial Question of Law as formulated in the appeal memorandum would arise for being formulated, adjudicated and answered in favour of appellant/defendant as arising inter se between the parties. Hence, he prays for admitting the appeal.

Per contra, Sri. Viren Michael Peres, learned counsel appearing for Caveator/respondent would support the judgment and decree passed by Courts below.

Having heard the learned Advocates appearing for parties and on perusal of judgment and decree passed by Courts below, this Court is of the considered view that there is no Substantial Question of Law involved in this appeal for being framed, adjudicated and answered for reasons indicated herein below:

"Plaintiff contended before the trial Court that defendant was attempting to interfere with his peaceful possession and enjoyment of suit schedule property, which he purchased it from one Sri. P.M. Mathew under a registered sale deed dated 03.06.1995 and on account of such obstruction caused, suit in question seeking perpetual injunction was filed. Records would indicate that suit schedule property is carved out of Sy. No. 41 Block 2 measuring 3 acres 18 guntas and undisputedly it was granted in favour of one Sri. P.M. Mathew and said grant in favour of Sri. P.M. Mathew is being examined by the Revenue Authorities in a different proceeding."

Though learned Advocates appearing for parties have vehemently tried to assert their respective pleas in that regard, this Court desist from expressing any opinion in that regard as it is likely to prejudice the right of either of parties in any pending proceedings relating to grant.

Be that as it may. The only issue which was required to be considered by Courts below was to examine as to whether plaintiff was in lawful possession of suit schedule property as on the date of suit. Having taking note of fact that at an undisputed point of time Sri. P.M. Mathew was granted land in question by Revenue Authorities and it was subsequent to non alienation and period having lapsed (15 years) he had sold the same in favour of plaintiff under a registered sale deed dated 03.06.1995, plaintiff who claimed to be in possession of suit schedule property was held to be proved.

As against such claim defendant contended that he is in unauthorized occupation of this land and alleged Sri. P.M. Mathew was not entitled for being granted this land as already observed hereinabove and at the cost of repetition i.e., issue relating to grant of land is an issue alien to the present proceedings and it is for parties to substantiate the same in Grant Proceedings and undisputedly same is under the scrutiny of Revenue Authorities. In the instant case, Revenue Authorities namely, Tahsildar and Surveyor having conducted spot inspection had found that defendant is in possession of suit schedule property and as such they had recommended to the Assistant Commissioner for annulling the grant. However, on entire reexamination of records the Assistant Commissioner by order dated 31.01.2005 rejected the recommendation of Tahsildar and held that present plaintiff is in possession of suit schedule property. Said order has been produced and marked as Ex. P-35. This finding of fact cannot be examined by this Court sitting in second appeal.

It may be true that against said order defendant has filed an appeal before the Deputy Commissioner. Even Deputy Commissioner while dismissing the appeal filed by defendant had opined that it is for the Revenue Authorities to take action for cancellation of grant by order dated 10.07.2006 and pursuant to which it is stated that Authority have taken action and annulled the grant which again is the subject matter of scrutiny by the Revenue Authorities. In that view of the matter, this Court does not find any infirmity committed by the Courts below with regard to finding recorded that plaintiff is in possession and enjoyment of suit schedule property as on the date of filing of suit and as such, without expressing any opinion with regard to alleged grant made in favour of Sri. P.M. Mathew, appeal is being rejected at the thresh hold without being admitted.

For reasons aforestated hereinabove, I proceed to pass the following:

ORDER

"i. Second appeal is hereby dismissed.

ii. Judgment and decree dated 30.01.2012 passed by Principal Civil Judge, Chickballapur, in O.S. No. 153/2005, as affirmed by judgment and decree dated 25.08.2014 passed by Principal Senior Civil Judge (CJM), Chickballapur, in R.A. No. 58/2012, is hereby confirmed.

iii. No costs."

In view of appeal having been dismissed question of considering I.A. No. 1/14 for stay and I.A. No. 1/15 for additional documents does not survive for consideration and same stands rejected.