Yamanappa and Others vs Shivayogappa

K.N. Phaneendra, J.

This Regular Second Appeal is preferred calling in question the judgment and decree passed in OS No. 123/2006 on the file of the Civil Judge and JMFC, Indi, dated 6.9.2012.

On perusal of the judgment and decree of the Trial Court and the First Appellate Court, it reveals that the plaintiff and the defendants are the residents of Hire-Rugi village of Indi Taluk, Bijapur District. The plaintiff has been in possession and enjoyment of the open site bearing VPC No. 672 measuring 28 x 28 feet situated at Hire-Rugi village of Indi Taluk marked as ABCD in the plaint hand sketch and it is stated that the said property bears specific boundary such as -

"East by - Site of Basanna Jetteppa Navi

West by - Gaddeppa Jatteppa Ginni

South by - Hire Rugi Bolegaon Government road and

North by - Water gutter and after that land of defendant."

The plaintiff claims that the said property was allotted to him by the Village Panchayat (Mandal Panchayat) on rental basis and he has been paying taxes and rent regularly. However, the defendants, who have no manner of right, title or interest over the said property were interfering with the plaintiffs peaceful possession and enjoyment of the property and as such, the suit came to be filed.

The defendants, who are the appellants before this Court have entered their appearance before the Trial Court, filed their written statement denying the plaintiffs ownership and possession over the said property. The defendants have specifically denied that the suit property has been allotted to the plaintiff by Gram Panchayat and the boundaries of the suit property has not been properly mentioned. It is further denied that the passage alleged to have been left by the Panchayat for discharging waste water through gutter and after the passage, the land of the defendants is situated as pleaded by the plaintiff has also been denied. The defendants not only denied the possession and enjoyment of the property by the plaintiff, but they have stated that there is an agricultural land abutting to Hire Rugi Bolegaon main road. The width of the road is 80'' and it is stated that actually, there is no grama tana site towards the northern side of the said road. The plaintiff in collusion with the Chairman of the Grama Panchayat , created certain documents and has encroached the road and as such, he is not entitled for any relief. It is stated that no cause of action has occurred to the plaintiff.

On the basis of the pleadings of the parties, the Trial Court has framed the issues which are:

"(1) Whether the plaintiff proves that he is in possession and enjoyment of the suit property bearing VPC No. 672 of Hirerugi?

(2) Whether the plaintiff further proves that the alleged obstruction caused by the defendants?

(3) Whether the plaintiff is entitled for relief of permanent injunction as prayed for?

(4) What order or decree?"

The plaintiff himself examined as PW1 and other two witnesses were examined as PWs. 2 and 3 and got marked Exhibits P1 to P19. The defendant No. 2 is examined as DW1 and other two witnesses examined as DWs. 2 and 3 and got marked Exhibits D1 to D3.

On appreciating the oral and documentary evidence available on record, the Trial Court has held that plaintiff has established his possession over the suit property and granted the prayed relief. Being aggrieved by the said judgment and decree passed in favour of the plaintiff, the present appellants have preferred an appeal before the First Appellate Court i.e., Senior Civil Judge and JMFC, Indi, in RA No. 8/2012.

The defendants have contended that the Trial Court has not properly appreciated the oral and documentary evidence on record and the description of the property given by the plaintiff is not proper and the sketch does not depict the exact location of the property and therefore, the Trial Court has not properly appreciated the materials on record.

The First Appellate Court has formulated two points for consideration:

"(1) Whether the plaintiff/respondent is entitled to the reliefs as prayed?

(2) Whether the findings given by the Trial Court requires interference by this Court?"

The First Appellate Court after re-appreciation of the entire materials on record, has come to the conclusion that the Trial Court has not committed any serious error in granting the decree and hence, it dismissed the appeal. Against the above said two judgments, the present appeal is preferred.

The Trial Court has observed at paragraph 12 of the judgment evaluating the documents produced i.e., Exhibits P1 and P2 are the resolution passed by the Grama Panchayat Hire-Rugi village on 12.12.1984 and the hand sketch map showing the boundaries of the suit property issued by the grama Panchayat measuring 28 x 28'' and the suit property was allotted to the plaintiff on the basis of rent. Exs. P3 to P5 are the VPC Extracts for the years 1989-90 to 1998-99 and Exhibits P6 to 17 are the tax paid receipts and Ex. P18 is the Permission letter and Ex. P19 is the ROR. On considering the documents, the Trial Court held that the plaintiff has proved his possession. In the course of cross-examination, the defendants have also admitted that to the East and South of their property, shops are situated on the road.

It is the case of the defendant that plaintiff has encroached the road and he is doing the business in the shop there. It is the case of the defendant that there is no space between 80 feet PWD road and his property and there is no property belonging to the VPC in the said area in order to grant the same to the plaintiff. However, there is no specific defence taken up by the defendant that the plaintiff has encroached the land of the defendant and he is having his property or shop in the said area belonging to the defendant. But the over all material placed before the Court from the evidence of plaintiff and the defendant and the documents placed therein show that the plaintiff is in possession of some portion of the property which is according to the defendant is on the road.

Now, the question is whether the said property belongs to VPC or it is a PWD road. Therefore, in this regard, the competent authority has to take appropriate action if really the plaintiff is in possession of that property. When it is not the specific case of the defendants that the plaintiff has encroached the land of the defendants and thereby, the plaintiff is seeking injunction against the true owner. When such being the case and if at all any encroachment is there by the plaintiff, the defendant has to work out his remedy by means of filing necessary suit or approach the competent authority for his remedies. It is admitted by the defendant, that the plaintiff is in possession of site measuring 28'' x 28'', whether it is in the road or in the property of the defendant or it is in between the road and the property of the defendant. When once the possession is established, that possession has to be protected by the Court, till that person''s unlawful possession is disturbed by taking due process of law. Therefore, in my opinion, only on the basis of the factual materials, the Court has come to the conclusion with regard to the possession of the plaintiff, no substantial questions of law is involved in this particular case in order to proceed with the RSA. Hence, the Appeal deserves to be dismissed.

Accordingly, the Appeal is dismissed. In view of the dismissal of the main appeal, IA No. 2/2014 does not survive for consideration and accordingly, the same is dismissed.