Vithoba and Others vs Revappa

A.N. Venugopal Gowda, J.—The defendants have filed this second appeal challenging the judgment and decree of the First Appellate Court dismissing the regular appeal filed by them and confirming the judgment and decree passed by the Trial Court decreeing the suit.

The respondent herein filed O.S. No. 108/2000, in the Court of the Principal Civil Judge (Jr. Dn.) at Sindagi, for a decree of permanent injunction restraining the appellants from causing obstruction for peaceful possession and enjoyment of the land measuring 4 acres in Sy. No. 276/2B of Devarnavadagi Village. The case of the plaintiff, sans unnecessary details was, that he is the owner and possessor of Sy. No. 276/B of Devarnavadagi Village and got the same by virtue of the occupancy rights granted by the Land Tribunal, Sindagi, in favour of his grand father � Bhimaraya Jivappa Chadakavate @ Yatanur. After the death of his grand father, the suit land was mutated in the name of his father and a partition having been effected by his father, i.e., between the plaintiff and his brothers, in the year 1996, the suit land was allotted in his favour and that he continues to be in possession and cultivation of the suit land as owner and that the defendants, without having any manner of right, title or interest on the suit land, attempted to dispossess him.

The case pleaded by the defendants, on the other hand was, that the grand father of the plaintiff had filed Form No. 7 for grant of occupancy rights in respect of the land in Sy. No. 276 and that 10 acres 7 guntas was granted, even though he was not in possession of the land. According to them, the entire land in Sy. No. 276 measures 20 acres 14 guntas and the same is in their possession and enjoyment. It was contended that the survey officials have not measured the land and handed over possession of the land granted to the grand father of the plaintiff and in fact the entire land is in possession of the defendants and that no right has accrued in favour of the plaintiff, pursuant to ME No. 3102. It was contended that even after the occupancy rights was granted to deceased Bhimaraya in the year 1979, he failed to seek possession and that the defendants are in continuous possession of the suit land along with Sy. No. 276/1 and that they have got title against deceased Bhimaraya and their possession is hostile to the title of deceased Bhimaraya.

The Trial Court considering the pleadings of the parties framed the following issues:

"1. Does plaintiff prove that, he is owner and possessor of suit land Sy. No. 276/2B 4 acres of Devarnavadagi?

Whether plaintiff prove the alleged obstruction?

Whether plaintiff entitle for relief of permanent injunction?

What order or decree?"

On appreciation of the oral and documentary evidence lead in the case, Trial Judge held that the plaintiff has proved that he is the owner and possessor of suit land and that there was illegal obstruction by the defendants and hence, the plaintiff is entitled to the relief of permanent injunction. Trial Judge answered all the issues in favour of the plaintiff and against the defendants and decreed the suit for injunction and restrained the defendants from interfering with the possession of the plaintiff over the suit land.

On appeal filed by the defendants, the Presiding Officer, FTC-I at Bijapur, on a fresh assessment and appreciation of the oral and documentary evidence placed on record of the suit by the parties, held that the plaintiff has proved that he is the owner and in possession of the suit land and that the judgment and decree passed by the Trial Judge does not call for any interference. The Appellate Judge upheld the findings of the Trial Judge on all issues and dismissed the appeal.

Sri Shivakumar Malipatil, learned advocate, contended that since the plaintiff was not in actual possession of the suit land, the suit filed to pass decree of permanent injunction was not maintainable. He submitted that the plaintiff having failed to prove that he is in actual possession of the suit land, the findings recorded in his favour by the courts below are perverse. He submitted that the courts below have committed error in granting the relief to the plaintiff, with reference to the provision under Section 44 of the Karnataka Land Reforms Act. Learned counsel submitted that the impugned judgments have given raise to substantial questions of law and hence, the second appeal is maintainable.

Perused the impugned judgments and considered the submissions made by Sri Shivakumar Malipatil.

Indisputedly, Land Tribunal has granted occupancy rights in respect of the suit land in favour of the grand father of the plaintiff. Ex. P-3 is Form-10, issued in respect of the suit land in favour of Bhimaraya Jivappa Chadakavate @ Yatanur. Concededly, order passed by the Land Tribunal, pursuant to which Ex. P-3 was issued, granting occupancy rights in respect of suit land has attained finality. Revenue records of the suit property show the name of the plaintiff. The question of possession of suit land is essentially one of fact.

The Trial Court on appreciation of the evidence has recorded a positive finding in favour of the plaintiff, based on the order of the Land Tribunal and the revenue records and also the oral evidence adduced by both the parties. The court below, which is the final court of fact, on fresh assessment and appreciation of the evidence lead by both parties has held that the plaintiff has proved that he is in possession of the suit land and that there was illegal obstruction by the defendants. Having recorded such finding, Appellate Judge has confirmed the finding of the Trial Court regarding the plaintiff''s possession over the suit land and upheld the decree passed by the Trial Court.

The same contentions as was raised before the courts below was reiterated by Sri Shivakumar Malipatil. Since question of possession of suit land is essentially one of fact, there is no scope to interfere with the finding of possession, concurrently recorded by the courts below. Sri Shivakumar Malipatil was unable to point out any perverse or illegal finding having been recorded by the courts below.

Under Section 100 C.P.C., interference with a finding of fact arrived at by the Trial Court and/or the First Appellate Court can be interfered with only in the event a substantial question of law arising for consideration. From the reading of the impugned judgments and the evidence placed on record of the suit by both parties, I do not find the courts below having recorded any perverse finding. As this appeal does not raise any substantial question of law, the same cannot be entertained.

In the result, for want of substantial question of law, the appeal is rejected.