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Judgment
B. Veerappa, J.—This is an unsuccessful plaintiffs appeal against the judgment and decree dated 18.09.2014 made in R.A. No. 48/12 on the file of the learned Principal Senior Civil Judge, Jamakhandi, confirming the judgment and decree dated 5.10.12 made in O.S. No. 1/2011 on the file of the Principal Civil Judge, Jamakhandi, dismissing the suit for permanent injunction.
It is the case of the plaintiff that, he is a lessee of the Gram Panchayat , Todalabagi village, as per the lease deed issued by the Gram Panchayat in respect of the open space measuring 30 x 30 feet and he has constructed a hotel and running the hotel business peacefully for more than 30 years without any obstruction from anybody and he is paying the rents towards the suit property to the Gram Panchayat . The defendants 1 and 2 are trying to destroy the western side and northern side of the plaintiffs hotel and they are forcibly damaging the said walls of the plaintiffs hotel to make passage to their bank from east to west, though they have got alternative way to their bank. When the defendants 1 and 2 tried to demolish the western and northern side walls of the plaintiffs hotel, the plaintiff resisted the same and requested the defendants 1 and 2 to stop their illegal acts, but by using their influence they did not heed to the request of the plaintiff Therefore, the plaintiff was constrained to file the suit seeking for permanent injunction against the defendants in respect of the suit property.
Defendants 1 and 2 filed their written statement and denied the plaint averments and contended that the suit filed by the plaintiff is not maintainable since the plaintiff has not given description of the property properly and the hand-sketch map produced by the plaintiff is incorrect. The plaintiff has not made out the very identify of the property as required under law. The very lease of the suit property measuring 30 x 30 feet in favour of the plaintiff by the Gram Panchayat and also the plaintiff having constructed any hotel therein and running the business for the last 30 years is denied. It is also contended that the suit is bad for non-joinder of necessary party, namely, the Gram Panchayat and the suit filed only for the relief of injunction without seeking relief of declaration is not maintainable and no cause of action arose against the defendants. It is also contended that the suit filed by plaintiff is not maintainable in view of bar under Section 118 of Karnataka Co-operative Societies Act, etc. Accordingly, the defendants prayed to dismiss the suit.
On the basis of the pleadings, trial court framed the following issues:
Whether plaintiff proves his possession over suit property?
Whether the plaintiff further proves the interference by defendants as alleged?
Whether plaintiff is entitled for relief sought?
What order or decree?
In order to establish his case plaintiff has examined himself as PW. 1 and witness as PW. 2 and marked documents as Ex. P. 1 to P. 21. On behalf of defendants, the Secretary of the Society was examined as DW. 1 and marked one document as Ex. D. 1.
After considering the entire material on record, both oral and documentary, the trial court recorded a finding that the plaintiff has failed to prove his possession over the suit schedule property and the alleged interference by the defendants and therefore, the plaintiff is not entitled to the relief sought for. Accordingly, the suit came to be dismissed.
Aggrieved by the said judgment and decree, the plaintiff appellant filed R.A. No. 48/2012 before the learned Senior Civil Judge, Jamkhandi, who by his impugned judgment and decree dated 18.9.14 dismissed the appeal and confirmed the judgment and decree of the trial court.
Against the said judgment and decree of the courts below the present appeal is filed.
I have heard the learned Counsel for the appellant.
Sri. Mrutyunjay Tata Bangi, learned Counsel for the appellant has contended that both the courts below concurrently erred in not considering the oral and documentary evidence produced by the plaintiff, which depicts that the plaintiff is in possession of the suit property as on the date of the suit. The suit property is the property of Gram Panchayat which has been leased out to the appellant and hence, the plaintiff is entitled to protect his possession in respect of the suit property. Therefore, he sought to set aside the judgment and decree of the courts below.
I have given my anxious consideration to the arguments advanced by the learned Counsel for the appellant and perused the entire material on record.
The suit is filed for permanent injunction on the basis of the lease deed said to have been executed by the Gram Panchayat in favour of the plaintiff The defendants 1 and 2 denied the identity of the property in possession of plaintiff. It is to be seen that the plaintiff has not impleaded the Gram Panchayat as party to the suit and has not examined any officials of the Gram Panchayat to prove the alleged lease deed. The trial court considering the oral and documentary evidence on record, has recorded a finding that, though the PW. 1 in the cross-examination has admitted that the property was leased to him by passing a resolution by the Gram Panchayat , the plaintiff has not been produced the copy of the resolution before Court and there is no explanation forthcoming for its non-production. So also, the plaintiff has not produced the license obtained by him to run the hotel. The plaintiff claims in the suit that there are walls on the western and northern side of his hotel. Except the photographs which are not clearly disclosing the exact location, no other materials are produced to show the very existence of any hotel belonging to the plaintiff and which has western and northern side walls. In fact, PW. 1 in his cross-examination has admitted that, there is only one wall to his hotel towards north and other 3 sides are having thatched walls. In the cross-examination, PW. 1 has given boundaries of his hotel as, towards East and West: Road, North-Panchayat property, South-open space belonging to Panchayat. But no where in the plaint he has stated that the property where the defendants have constructed the Bank is situated adjacent to his hotel. In the cross-examination, plaintiff has admitted that the gate of the society building is towards eastern side of their building and his hotel is not situated in front of the gate. But, the map produced by him disclose that his hotel is situated towards eastern side of the defendants'' building, which is contrary to the admission made by him. PW. 2 examined on behalf of plaintiff failed to state the very identify of the property in question and also the existence of western and northern side wall of his hotel. Therefore, in the absence of any convincing evidence to prove the identity of the property leased out to the plaintiff by the gram panchayat and also the possession of the suit property described in the plaint, it was held that the plaintiff has failed to establish the very identify of the property and his possession over the suit schedule property and therefore, the question of granting injunction does not arise. Accordingly, trial court dismissed the suit.
On re-appreciation of entire oral and documentary evidence on record, the lower appellate court confirmed the judgment and decree of the trial court and held that the plaintiff has failed to prove the very identity of the property in question. When he has failed to establish the identify of the property in question, granting of injunction in favour of plaintiff does not arise. Accordingly, the appellate court dismissed the appeal.
The plaintiff filed the suit mainly on the basis of the resolution passed by the gram panchayat and admittedly the gram panchayat is not made as party to the suit and no copy of resolution is produced to prove that the suit schedule property was leased to him. Admittedly, the plaintiff has not examined any officers of the grama panchayat to prove the alleged lease deed executed in his favour. In the absence of any material documents produced to prove that he is in possession of the suit schedule property as on the date of the suit, both the courts below have concurrently held that the plaintiff has failed to prove his possession of suit schedule property as on the date of the suit. It was held that the suit property is not identifiable and hence lawful possession of the plaintiff over the suit property is not established and therefore, he is not entitled to equitable order of permanent injunction. Both the courts below have specifically recorded a finding that when the plaintiff has failed to prove the very identify of the property in question, the question of granting injunction does not arise. Such a finding of fact cannot be interfered by this court exercising powers under section 100 of Code of Civil Procedure. No substantial question of law in the present appeal.
Hence, the RSA is dismissed at the stage of admission.