Annaiah and Others vs Lakshmamma

A.S. Bopanna, J.—The appellants are before this Court assailing the concurrent judgments passed by the Courts below whereby the judgment and decree of permanent injunction granted in favour of the respondent herein by the judgment dated 07.10.2006 in O.S. No. 462/2001 has been affirmed by the Lower Appellate Court in its judgment dated 20.06.2011 passed in R.A. No. 291/2010.

Both the Courts below have arrived at the conclusion that the plaintiff is in possession of the suit schedule site which was allotted by the CITB and in that light has granted the order of injunction against the defendants from interfering with her peaceful possession and enjoyment of the site.

In the light of the contentions urged in this appeal, this Court by the order dated 04.01.2012 has admitted the appeal and framed the following substantial question of law for consideration:

"Whether in the facts, circumstances and evidence on record, the trial Court was justified in presuming interference with the plaintiffs'' peaceful possession and enjoyment of the suit schedule property on the premise that the defendant had denied the case of the plaintiffs and strong resistance was made to the claim made by the plaintiffs, in a suit for permanent injunction?" 4. The perusal of the substantial question of law framed above would indicate that the consideration which is required to be made is as to whether the plaintiff had proved the interference of her possession by the defendants. Though in that view, the fact that the plaintiff is in possession is not a serious question to be considered in this appeal, taking note of the contention that has been put forth by the learned counsel for the appellants, the consideration as made by the Courts below on that aspect will also have to be adverted.

In that background, I have heard the learned counsel for the parties in detail and perused the records relating to the case.

The suit schedule property is one of the sites to which the plaintiff claims right as having been allotted to her by the erstwhile CITB, Mysore in the layout formed by them and the Possession Certificates issued in her favour was relied upon. The father of the defendants had attempted interference with the possession of the plaintiff at an earlier point and as such, the plaintiff is stated to have filed a suit in O.S. No. 714/1991. During the pendency of the suit, the father of the defendants died and therefore the said suit was abandoned. Subsequently since the plaintiff contends that the defendants also started interfering with her possession, the instant suit has been filed.

In the background of the contention of the plaintiff that the site was allotted to her by the CITB, the contention put forth by the defendants is that in the property bearing Sy. No. 182/1 of Hebbal village, Kasaba Hobli, an extent of 12 guntas had been retained by their father. The grand father of the defendants late Boregowda is stated to have purchased the property measuring 38 1/2 guntas under a sale deed. Out of the said extent, 20 V2 guntas is stated to have been sold by the said Boregowda and out of the remaining 18 guntas, an extent of 6 guntas is stated to have been acquired for formation of the road. It is therefore contended that an extent of 12 guntas had remained to which the defendants claim right.

In the light of the rival contentions, the trial Court had framed four issues for its consideration. The plaintiff examined her son i.e., Power of Attorney Holder as P.W. 1 and a witness was examined as P.W. 2 and the documents at Exhs. P1 to P19 were relied. The first defendant examined himself as D.W. 1 and the documents at Exhs. D1 to D30 were relied upon. Though the defendants had contended that an extent of 12 guntas had been retained, no documents relating to the acquisition to the total extent nor the retained extent with reference to the identity of the property to co-relate the site to which the plaintiff was seeking to protect her possession was produced.

In a matter of the present nature, when the plaintiff was claiming right under an allotment made by CITB, the relevant documents in that regard, more particularly the documents at Exhs. P3 and P15 to P19 have been referred to by the trial Court as well as the Lower Appellate Court to come to a conclusion that the layout had been formed by the CITB and the site had been allotted and possession had been granted not only to the plaintiff but to other allottees as well. The possession granted to the plaintiff was under the document at Ex. P3 while the documents at Exhs. P17 to P19 were noticed to come to the conclusion that in the same layout certain other persons were also allotted sites. I have referred to this aspect of the matter in specific detail only to indicate the nature of the claim that had been put forth by the plaintiff in a suit seeking for injunction in the background of the contentions that had been raised by the defendants.

If that aspect of the matter is kept in view, the fact that the plaintiff is in possession of the suit schedule site would stand established and in that view, if there is interference, certainly the plaintiff would be entitled to protect her possession.

At this juncture, it is also necessary to take note of the contention put forth by the learned counsel for the appellants/defendants that if the Lower Appellate Court while re-appreciating the evidence had allowed the application filed under Order 41 Rule 27 of CPC in I.A. No. 5 and the documents produced along with the said application was taken into consideration, the conclusion reached by the trial Court should have been reversed since the judgment passed in O.S. No. 582/1982 which had been taken note by the trial Court had been set aside in an appeal which had been filed.

In that regard, what is necessary to be noticed is that the Lower Appellate Court in addition to re-appreciating the evidence which was already on record, has also taken note of the relevance of the documents that had been produced along with the application in I.A. No. 5. While taking note of the said documents, the Lower Appellate Court has arrived at the conclusion that the said documents even if taken on record as additional evidence would not alter the situation. I am of the opinion that the Lower Appellate Court in fact was justified in its conclusion since as rightly pointed out, even if the said documents were taken into consideration, the contention of the appellants/defendants that an extent of 12 guntas had been retained in Sy. No. 182/1 in the light of the claim made by the plaintiff under the CITB would not have been established by the appellants by the said documents.

Further, as noticed, the plaintiff was seeking to protect the possession which had been granted to her by the CITB and in such situation, neither the said documents which were produced along with application nor any other documents to establish that a different extent of land in the said survey number was acquired by the CITB was produced to establish the claim of the defendants.

Learned counsel for the appellants has further relied on the judgment of the Hon''ble Supreme Court in the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, to contend that when a ''cloud'' had been raised with regard to the title of the plaintiff, a suit for declaration should have been filed and a suit for bare injunction was not maintainable.

Having taken note of the said judgment, I am of the opinion that the same would not be applicable to the facts and circumstances arising in the instant case. As repeatedly noticed above, the plaintiff is claiming right to the property as an allottee under the CITB based on the possession which has been granted and on the other hand, though the appellants/defendants seek to contend that an extent of property in Sy. No. 182/1 had been retained by them was not a part of the acquisition, that contention has not been established and therefore at this juncture, it cannot be accepted that any extent of the property was left out of the acquisition proceedings so as to accept the contention that a ''cloud'' has been raised over the title of the plaintiff.

In such situation, when the plaintiff has proved that she is in possession of the property and in the nature of the contention that is being put forth by the defendants, more particularly by claiming that the property wherein the site which has been allotted to the plaintiff has not been acquired, it would certainly establish the fact that the defendants were interfering with the possession of the plaintiff and the possession was required to be protected by grant of injunction.

Therefore, if these aspects are kept in view, the substantial question of law raised herein would have to be answered against the appellants which is accordingly done. Hence, I see no merit in this appeal.

The appeal is accordingly disposed of. No costs.