A.S. Shivaswamy vs Siddamma

Ravi V. Malimath, J.—Aggrieved by the judgment and decree of the trial Court dismissing the suit of the plaintiff and the first Appellate Court affirming the said dismissal, the Plaintiff has filed by the present appeal.

The parties will be referred to their ranking as referred before the trial Court.

The case of the plaintiff is that the land bearing Sy. No. 85/1 totally measuring 20 guntas originally belongs to the father of the Plaintiff. The State Government acquired 12 guntas of land for the purpose of formation and distribution of sites. Hence, what remained was only 8 guntas of land and the Plaintiffs father was in possession of the same till his death. The Plaintiff being his legal representative succeeded to the said property. The Defendants are the allottees of one site in the acquired land which is situated towards the southern side of the suit schedule property and they have no manner of right, title and interest over the suit schedule property. However, they continued to interfere with the possession of the 8 guntas. Hence, the Plaintiff filed the instant suit seeking for a declaration that he is the absolute owner of the suit schedule property and for permanent injunction to restrain the defendants from interfering in the peaceful possession of the property.

The Defendants denied the suit averments. It was contended that the location of the suit schedule property is incorrect, imaginary and created for the purpose of filing of the suit.

The trial Court framed the following issues for consideration:

Whether Plaintiff proves that he is the owner and in possession of property situated within the boundaries of plaint schedule?

Whether Plaintiff further proves the alleged interference by the Defendants over plaint schedule property?

Whether Plaintiff is entitled for relief as prayed for?

What Order or Decree?

The issues were held in negative and the suit was dismissed by the trial Court. Aggrieved by the same, he filed an appeal before the Additional District Judge, Mandya in R.A. No. 96/2007, which was also dismissed. Hence, the present appeal by the Plaintiff.

The learned Counsel for the appellant contends that both the Courts below committed an error in considering the material on record. Hence, the suit ought to be decreed by allowing this appeal.

The learned Counsel for the respondents contends that there is no merit in this appeal nor is there any substantial question of law that arises for consideration. Hence, he prays for dismissal of the appeal.

Heard learned counsels.

The trial Court by considering the plea of the Plaintiff was of the view that in terms of the notification acquiring the property vide Ex. P7 which is the gazette notification, the same would show that the land was situated towards southern side of the acquired land. Therefore, keeping in mind the notification in terms of Ex. P7, the boundaries as furnished by the Plaintiff do not correlate with the said notification. Therefore, the boundaries mentioned by the Plaintiff in the suit are incorrect. On these reasons, the trial Court dismissed the suit.

I ''am of the considered view that there is no error in the said finding to interfere with the same.

What is further being contended is that the Defendants have themselves admitted with regard to 8 guntas of land situated towards the southern portion of the acquired land. However, even on cross-examination of DW-1, it could be seen that what is admitted by DW-1 is that the remaining land is situated towards the southern part of his site and therefore, it is not the case of either of the parties that the remaining land is situated towards the south of the allotted sites. Therefore, the admission would not come to the aid of the Plaintiff. Hence, on this ground, the suit was dismissed. The reasoning assigned by the trial Court is just and proper. Hence, I do not find any ground to interfere with the same.

When the Plaintiff himself has failed to appropriately narrate the boundaries of the property or with regard to the identification of the suit schedule property, no decree could be passed in his favour. Even in terms of Ex. P7, it would correctly narrate the location of the property. Even though the Plaintiff was a minor on that-day, no efforts were made by him subsequently to question the gazette notification and also so far as the boundaries are concerned. Under these circumstances, when the schedule mentioned by the Plaintiff is incorrect, no suit could be proceeded on an imaginary schedule as mentioned by the Plaintiff. Considering the facts and circumstances of the case, I ''am of the considered view that no substantial question of law arises for consideration in this appeal. The entire case of the Plaintiff revolves on facts. Hence, I do not find any ground to interfere with the impugned orders passed by the courts below. Consequently, the appeal being devoid of merit is dismissed.