Veerupaxi and Others vs Basagouda

B.V. Nagarathna, J.—1. Though the appeal listed for admission, with the consent of learned counsel for the parties, it is heard finally.

Appellants are the plaintiffs in O.S. No. 129/2003. They have filed the second appeal, assailing judgment and decree passed in R.A. No. 107/2005 by the Fast Track Court-1, Chikkodi, by which, the appeal preferred by the respondent-defendant has been allowed and judgment and decree passed in O.S. No. 129/2003 dated 03.12.2005 has been set aside and consequently suit has been dismissed.

For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.

The plaintiffs filed a suit seeking the relief of permanent injunction restraining the defendants or any person acting on his behalf from disturbing the peaceful possession and enjoyment of the suit hut in plaintiffs'' land. According to the plaintiffs the suit hut is situated in agricultural land bearing R.S. No. 47/1 measuring 52 acres 6 guntas of Kamatyanatti village, Chikkodi Taluk. The said hut is described fully in plaint ''A'' schedule. According to the plaintiffs they are the owners in actual possession and enjoyment of an area of 5 acres 8 guntas in the said survey number. The said land was tenanted land. Plaintiffs had filed an application under the provisions of Karnataka Land Reforms Act, 1961 in Form No. 7 seeking grant of occupancy rights in respect of the said extent of the land. The Land Tribunal, Chikkodi, granted lesser extent of land. The plaintiffs are residing therein for a long period of time, that the hut consists of three parts and is made out of sugarcane rubbish and Jower hemps. Family members of the plaintiffs, along with their belongings are residing therein and are also using the hut for tethering cattle. That the plaintiffs are paying house tax on the said hut and V.P.C. Number has been allotted as V.P.C. No. 1432 by Yadgud village panchayat. Defendants are owners of an extent of 1 acre 9 guntas in the said survey number which is the adjacent land. Relationship between the parties have not been good and the defendants have all along threatened that they would demolish the hut by using force. Several complaints have been made against the defendants in this regard. But it is of no avail. In the circumstances, plaintiffs filed suit seeking decree of permanent injunction against the defendant.

On service of suit summons and notices from the trial Court the defendant appeared and filed his written statement contending that plaint is based on imaginary and misleading facts. That description of the suit property in schedule A is misleading, vague and not correct, that the suit is in respect of a hut situated in an area of 52 acres 6 guntas in R.S. No. 47/1. The actual measurement of the hut is essential as also its location. But the same has not been given. The plaintiffs have also not produced any hand sketch or map with regard to R.S. No. 47/1 showing location of their land said to measure 5 acres 8 guntas. The suit is not maintainable for want of clarity of location and identification of the suit property. That, in fact there is no such hut in the entire suit property and much less in 5 acres 8 guntas of land in respect of which, plaintiffs have no right, title and interest. Contending that all other allegations are false and imaginary the defendant sought dismissal of the suit.

On the basis of the aforesaid pleadings the trial Court framed the following issues for its consideration.

1) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit property?

2) Whether the plaintiffs further prove the alleged interference by the defendant?

3) To what order or decree?

- - -

In support of their case, plaintiffs examined two witnesses and produced 7 documents which were marked as Exs. P. 1 to P. 7 while the defendant let in evidence of two persons including himself and produced three documents which were marked as Exs. D. 1 to 4. On the basis of the said evidence the trial Court answered issue Nos. 1 and 2 in the affirmative and decreed the suit of the plaintiffs by granting a decree of permanent injunction restraining the defendant from disturbing peaceful possession and enjoyment of the suit hut by the plaintiffs by judgment and decree dated 03.12.2015.

Being aggrieved by the judgment and decree of the trial Court the defendant filed R.A. No. 107/2005 before the first appellate Court, which, on hearing learned counsel for the respective parties framed the following point for its consideration.

"Whether the impugned judgment and decree requires the interference of this Court and that the appeal is fit to be allowed?

- - -

It answered the said point in the affirmative and allowed the appeal and thereby set aside the judgment and decree of the trial Court in O.S. No. 129/2003 and consequently the suit was also dismissed.

Being aggrieved by the judgment and decree of the first appellate Court, plaintiffs have preferred this second appeal.

I have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record as well as original records.

Appellants'' counsel submitted that there is no dispute with regard to the fact that 5 acres 8 guntas of land was granted to the appellants-plaintiffs by virtue of the order of the Land Tribunal and by this Court in W.P. No. 4003/1993. They were registered as occupants as they were the tenants of said land, and the disputed hut is located within an extent of 5 acres and 8 guntas. In support of this fact appellants produced 7 documents including the photographs and negative at Ex. P. 4. The appellant-plaintiffs have all along enjoyed the said extent of land including the hut. This aspect was appreciated by the trial Court and accordingly the suit was decreed against defendant. The first appellate Court in the appeal filed by the respondent herein has reversed the said judgment and decree of the trial Court based on Ex. D. 3-hand sketch. A reference to that hand sketch is made at para No. 20 of the judgment of the first appellate Court. The said document is not a certified copy of any document which has been produced before any Court of law. It is a bare hand sketch map. The said map has, in fact no relevance to the case, it is not signed by any body, the person who has drawn that map has not been examined. In the absence of there being any authenticity to the said document it could not have been the basis for reversing the judgment of the trial Court. He therefore contended that substantial questions of law would arise in this appeal which would require admission of the matter and for a detailed hearing thereon.

Per contra, learned counsel for the respondent-defendant supporting judgment of the first appellate Court contended that the decree granted by the trial Court was not in accordance with law. The first appellate Court, on application of mind, rightly dismissed the suit by setting aside the judgment of the trial Court that Ex. D. 3 is a document which was submitted by none other than the plaintiffs before the Tribunal. The very same hand sketch map was produced by the defendant. It is on the basis of that document that the first appellate Court passed its judgment, there is no lacuna in the judgment of the first appellate Court. The plaintiffs have not been able to point out as to where exactly the suit hut is located. In the circumstances, no substantial question of law would arise in this appeal and the same may be dismissed, in limine.

During the course of submission, learned counsel on both sides have also drawn my attention to the certified copy of the order passed by this Court in W.P. No. 4008/1993 which shall be adverted to during the course of the judgment.

Having heard learned counsel for the parties and on perusal of the material on record and also the original records, in my opinion, the appeal would have to be admitted to consider the following substantial question of law:

Whether the first appellate Court was justified in setting aside judgment and decree of the trial Court in O.S. No. 129/2003 resulting in dismissal of the suit and consequently declining to grant of relief of permanent injunction to the appellant herein as against the respondent in respect of the suit hut?

- - -

Appeal is admitted to consider the aforesaid substantial question of law.

From the material on record it is noted that there is no dispute with regard to the fact that R.S. No. 47/1 totally measured 52 acres 6 guntas. Various portion of the said land was in the occupation of tenants and several tenants had filed Form No. 7 seeking registration of occupancy rights entered their names. In this context plaintiffs had filed an application before the Land Tribunal which granted occupancy right to an extent of 5 acres 8 guntas in the names of the plaintiffs. It is the case of the plaintiffs that the suit hut is located within the said extent. It is also not in dispute that the defendant also was one of the tenants of R.S. No. 47/1. He had filed an application seeking grant of occupancy rights and the Land Tribunal granted occupancy rights. That order was challenged by the plaintiffs in W.P. No. 4008/1993 before this Court. This Court by order dated 23.06.1997 (Ex. D. 1) directed that in Sy. No. 12/1 which is re-Sy. No. of 47/1, 37 guntas in third strip be given to the plaintiffs herein. The said direction was issued with a view to put an end to the litigation between the parties and in the interest of justice. Consequently, the actual extent of land to be registered in the name of the defendant was 1 acre 9 guntas only. Thereafter the Land Tribunal modified Form No. 10 and accordingly Form No. 10 was issued to an extent of 5 acres and 8/guntas in the name of the plaintiffs. Writ Petition was disposed in the aforesaid terms.

The case of the plaintiffs is that 1 acre 9 guntas of land granted to the defendant is towards Northern side of the suit hut. But, subsequent to the order passed by this Court defendant has been threatening the plaintiffs that he would oust them from the said hut which is within 5 acres 8 guntas which is in their possession and occupation. The plaintiffs have resisted the attempts made by the defendants. In that regard police complaints were filed but as the matter is of a civil nature they filed a suit seeking decree of permanent injunction against the defendants. In the written statement what the defendant has stated is that description of the property in the plaint is vague, that there is no hand sketch map or any other such sketch enclosed to the plaint showing location of 5 acres 8 guntas in R.S. No. 47/1, that the suit is not maintainable as there is no clarity with regard to the identification of the suit property. While denying the fact that the suit hut is within the area of 5 acres 8 guntas of land belonging to the plaintiff, defendant has nowhere stated that the hut is within the lands which are granted to him by the Land Tribunal. It is only stated that the suit hut belongs to the defendant. But it is not averred that location of the suit hut is in the land granted to the defendant is to an extent of about 1 acre 9 guntas, in the written statement.

That apart, the plaintiffs in support of their case have produced Ex. P. 1-ROR, Ex. P. 2-Gram Panchayat extracts, Ex. P. 3-tax paid receipts, Ex. P. 4-photograph of the hut, Ex. P. 5-Land Tribunal order, Ex. P. 6-Form No. 7 filed by them before the Land Tribunal and Ex. P. 7 which is Form No. 10 which was issued subsequent to the order of this Court dated 26.03.1997 passed in W.P. No. 4008/1993.

On a conspectus consideration of these documents it emerges that suit hut located within the area of 5 acres 8 guntas which has been granted to the plaintiffs by the Land Tribunal by order passed by this Court in Ex. D. 1. The same has also been noted by the trial Court. On the other hand the defendant has produced three documents, one is the order passed in W.P. No. 4008/1993 which is in favour of the plaintiffs, Ex. D. 2 which is the list of documents produced by the defendant, Ex. D. 3 is the hand sketch said to have been produced by the plaintiffs before the Land Tribunal. According to the defendant, in terms of that sketch it becomes clear that the suit hut is not within the extent of 5 acres 8 guntas and the plaintiffs are bound by that document. But the fact remains that the defendant has not produced any documents in support of his case to the effect that the suit is within the area granted by the Land Tribunal to the defendant, i.e., within 1 acre 9 guntas of land in R.S. No. 47/1. No doubt Ex. D. 3-sketch may have been produced by the plaintiffs before the Land Tribunal but it is not the certified copy of that document which has been produced. At any rate, it could not have been the same document which was said to have been filed by the plaintiffs before the Land Tribunal. The said document, not having any semblance of authenticity, could not have been relied upon by the first appellate Court to come to the conclusion that as per that sketch the suit hut was not within the extent of 5 acres and 8 guntas of land granted to the plaintiffs. At any rate, that document does not categorically indicate that the suit hut is within the land which has been granted to the defendant.

In the circumstances, the first appellate Court was not right in reversing the judgment and decree of the trial Court based on Ex. D. 3-sketch. Therefore, in view of the pleadings filed and documents which have been produced by the plaintiffs before the trial Court, it must be held that the plaintiffs have proved that the suit hut is within an area of 5 acres 8 guntas of land in R.S. No. 47/1 which has been granted to the plaintiffs by the Land Tribunal and it is not located within the land which has been granted to the defendant exclusively. The substantial question of law raised in this appeal is answered in favour of the appellants. Thus, the suit is decreed by directing the defendant or any person acting on his behalf or claiming through him be permanently restrained by a decree of permanent injunction from disturbing the peaceful possession and enjoyment of the suit hut by the plaintiffs, by setting aside the judgment and decree passed by the first appellate Court in R.A. No. 107/2005 and by confirming the judgment and decree of the trial Court passed in O.S. No. 129/2003. The appeal is accordingly allowed.

Parties to bear their respective costs.