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Judgment
L. Narayana Swamy, J.—These two appeals are filed by the Plaintiff in O S No. 165/1991 being aggrieved of the judgment and decree passed in R A Nos. 49 & 51/2007 on the file of the Civil Judge (Sr.Dn.) at Sagar. The suit O S No. 165/1991 is filed by one Smt. Bhavanamma w/o late Seshagiriyappa seeking for relief of permanent injunction. The suit O S No. 243/1991 is filed by one Sri V N Dongre for the relief of permanent injunction and alternatively for recovery of possession of the suit schedule property. Both the suits are substantively in respect of the same property, except the measurement on North-South, Smt. Bhuvanamma claims it to be 60 whereas Sri V N Dongre claims it to be 55.
The trial court has decreed the suit filed by Sri v. N Dongre and dismissed the suit filed by Smt. Bhuvanamma. Aggrieved by the same, Smt. Bhuvanamma filed two regular appeals which came to be dismissed. Hence these two regular second appeals.
Smt. Bhuvanamma is hereinafter referred to as the Plaintiff and Sri v. N Dongre is referred as Defendant for the sake of convenience.
The brief facts of the case are that the Plaintiff claims to be the owner in possession of the suit schedule property on the ground that her husband Sheshagiriyappa purchased the same through registered sale deed dated 21.2.1958 from its previous owner Girijamma w/o H Venkataramaiah. The suit schedule property was situated in Sy. No. 2 of Kambalikoppa village, Sgar Taluk, on 9.8.1989 the suit schedule property is transferred to T.M.C Sagar from Yedjigalamane Mandal Pancahyath and it has given Assessment No. 1629 and that betterment charges of Rs. 2008/- is also paid to the Municipality by the Plaintiff and katha is also made in her name.
On the other hand, it is the case of the Defendant that a site measuring 60 x 90 in Sy. No. 2 of Kambalikoppa was allegedly permitted to be occupied by Smt. Girijamma w/o Venkataramanaiah from the year 1947-48 as per the grant certificate, that it was a Government land and Amildar of Sagar Taluk has given the said permission on condition laid down in the bond which was executed by Smt. Girijamma on 18.1.1948, that the grant was a free one that under the said bond, Girijamma undertook not to alienate the same at any time, hand over possession to the Government if wanted and that she would constructed a house within one year that even if Plaintiff has purchased any property from her, the same does not confirm any right title or interest to the Plaintiff as the alleged sale is in violation of grant conditions.
The Defendant has further stated that the grant certificate only gave a right to Girijamma to occupy the land measuring 60'' x 90'' in Sy. No. 2 which measured vast extent, from the grant certificate it cannot be inferred that a specific property was provided to the grantee, that it does not contain the boundaries of the property from which a specific property can be identified in Sy. No. 2, that according to the grant rules, in order to ascertain the specific property, it was necessary to have a survey subsequent to the grant in order to fix the boundaries and also to give a specific number in order to complete the grant, that no boundaries were given in the grant certificate, that subsequent to the grant, no phodi process has taken place, that the property granted cannot be identified at all, that even if Plaintiff has purchased any property from Girijamma as alleged, the same is not defined as specific property and its identity cannot be established and that the boundaries given in the sale deed do not bind the Defendant.
It is the specific case of the Defendant that he has been in possession and enjoyment of suit schedule property for more than 30 years and he has fenced the same on all the four sides, he has grown coconut trees and also dug open well, he has constructed a house by spending Rs. 1,00,000/-, the land originally belonged to T.M.C. Sagar that the T M C passed a resolution on 24.4.1989 and decided to issue sale certificate to the Defendant in respect of suit property, after payment of amount, the sale by T.M.C. in favour of Defendant is completed in pursuance of the said resolution, he has become the owner of suit schedule property.
On the basis of the pleadings of the parties, the trial court framed the necessary issues. The Plaintiff has examined herself as PW-1 and one H G Dattatreya as PW-2 and got marked Ex.P1 to P11. On the other hand, Defendant has examined himself as DW-1 and three witnesses DW-2 to 4. The Defendant has got marked Ex.D1 to D20.
Earlier this matter reached this Court by way of R S A No. 396/95 and 400/95 filed by the Defendant as against the judgment and decree passed in R A No. 96/93 & 97/93 dated 15.7.1994. By the said judgment, the lower appellate court had reversed the judgment and decree passed by the Trial Court.
This Court by the common judgment dated 20.3.1998 held that the title of Bhavanamma to the property purchased through sale deed dated 21.2.1958 is confirmed and that a Commissioner shall be appointed to identify the property of said Bhavanamma as well as Defendant - v. N Dongre and the appellate court may proceed to pass appropriate orders. It was also directed both parties to adduce further evidence if any. After remand, the appeals were numbered as R A No. 49/2007 & 51/2007.
The learned Counsel for the Plaintiff submits that husband of the Plaintiff purchased the suit schedule property as per Ex.P1. It has to be presumed that the Plaintiff is in legal possession and enjoyment of the suit property. The lower appellate court has gone beyond the directions issued by this Court in R S A No. 400/95. The lower appellate court has failed to appreciate the report of the Commissioner which clearly proves that the Plaintiff is in possession and enjoyment of the suit property and the house constructed therein, she has paid the betterment charges to the Municipality, khata has been transferred in her name and assessment No. 1629 is assigned to the property, the Commissioner has clearly located the property as per the sale deed and therefore, the lower appellate court ought to have allowed the suit filed by her and dismissed the suit filed by the Defendant. The learned Counsel for the Plaintiff has relied upon the following authorities in support of his case:
(i) AIR 1979 Knt. 40 (K Veerabasappa v. The Court of District Judge At Chitradurga and Ors.), Shanaz Begum Vs. Rehana Begum, to the effect that court below cannot go beyond the scope of remand.
(ii) Jagdish Singh Vs. Natthu Singh, to the effect that when findings of the courts below are vitiated by non-consideration of relevant evidence or by essentially wrong approach, the High Court is not precluded from recording proper findings by re-appreciating the evidence.
(iii) Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, to the effect that the judgment produced in the case is admissible in evidence: even if the Plaintiff is not a party to it.
(iv) AIR 2010 SCW 4544 (R Hanumaiah and Anr. v. Secretary to Government of Karnataka. Revenue Department and Ors.) to the effect that in the absence of documents of title nor possession, suit for declaration of title is liable to be dismissed.
The learned Counsel for the Defendant submits that the Defendant has been in possession and enjoyment of suit schedule property for more than 30 years and has fenced the same has grown coconut trees and also dug a open well, he has constructed a house building by incurring expenditure of Rs. 1 lakh, the T M C passed a resolution on 24.4.1989 and decided to issue sale certificate to the Defendant in respect of the suit property, after payment of amount, the sale by T M G in favour of Defendant is completed and he has become the owner. The Plaintiff after obtaining a temporary injunction order entered into the suit schedule property forcibly. There is no prima facie case and balance of convenience in favour of the Plaintiff. The Plaintiff has failed to establish identity of the property and there is no linking document from grant document to sale deed. The Commissioner has committed an error in identifying the property based on the boundaries mentioned in the sale deed when the boundaries are disputed by the Defendant. Therefore, the trial court has rightly disbelieved the commissioner''s report. The Plaintiff after remand has not led any evidence nor produced any documents to show the identity of the property. The learned Counsel for the Defendant has relied upon the following citations.
(i) Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs. and Others, to the effect where the Plaintiffs title is Under A Cloud and He Does Not Have Possession, The Remedy Is Suit For Declaration and Possession, With Or Without Consequential Injunction.
(ii) Kashmir Singh Vs. Harnam Singh and Another, to the effect when the High Court can interfere with the concurrent findings of the courts below.
(iii) AIR 2009 SCW 287 (Bachhaj Nahar v. Nilima Mandal and Ors.) to the effect suit for declaration without a plea of easement, dismissed, it is improper for the High Court to convert the suit into enforcement of easementary rights.
(iv) Gurdev Kaur and Others Vs. Kaki and Others, and Koppisetty Venkat Ratnam (D) through LRs. Vs. Pamarti Venkayamma, as to the interference by the High Court only when there is a substantial question of law arises in the second appeal and not otherwise.
(v) Krothapalli Satyanarayana Vs. Koganti Ramaiah and Others, a case where Defendant had constructed the wall in the passage used as lane for passing and repassing by the Plaintiff, relief of mandatory injunction was not granted to the Plaintiff who approached the court after 9 years.
(vi) ILR 2006 KAR 4251 (A V. N Prasad v. Sita Bai Raj Purohit) a case where construction of wall and garage had come to the notice of the Plaintiff in 1984, the Plaintiff had filed suit in the year 1995. It is held Plaintiff is not entitled to the relief of mandatory injunction being guilty of acquiescence.
The point that arises for my consideration in these appeals is whether the judgment and decree passed by the lower appellate court suffers from any illegality calling for interference at the hands of this Court? My answer is in the negative for the following reasons.
It is mainly contended on behalf of the Plaintiff that the lower appellate court has exceeded the remand order passed by this Court in R S A Nos. 396/95 c/w 400/95 disposed of on 20.3.1998 and further the lower appellate court ought to have relied upon the Commissioner''s report and allowed the appeals in favour of the Plaintiff. In order to appreciate the said contention, it is necessary to extract relevant portion of Para-5 of the judgment, which is as under:
...The second appeals, are, accordingly, allowed. While confirming the decree on the title, the same is modified only for the purpose of identifying the property of the Plaintiff, namely, Bhavanamma. It is open to the Appellant to produce additional documents, if he wants to produce herein and on production the Appellate Court shall take the documents on file and dispose of the case after giving opportunity to both the parties by way of additional evidence or otherwise. The parties to appear before the first appellate court on 16.6.1998.
It is the contention of the Defendant that no doubt Smt. Girijamma was permitted to occupy the property by executing a bond wherein certain conditions were mentioned it is not the grant in itself and further steps to grant the property in favour of Smt. Girijamma were not taken place. The Defendant has produced Ex.P18 permission to occupy the land and Ex.P19 bond executed by Smt. Girijamma. Ex.P18 does not disclose the boundaries of the property permitted to be occupied. Ex.P19 discloses that Smt. Girijamma has agreed to redeliver the property if the Government wants it. Ex.D3 is the resolution passed by the Town Municipality in favour of the Defendant. It also does not disclose the boundaries of the property. Ex.D2 is the notice dated 18.3.1991 issued by the Town Municipal Council, Sagar to the Plaintiff to the effect that her request for building license could not be considered because there is already a building there. The Defendant has produced documents Ex.D1 application for issue of licence, Ex.D2 notice, Ex.D4 Assessment extract, Ex.D5 notice, Ex.D7 reply by the Defendant. Ex.D8 to D14 bills and documents to show his purchase of building materials, Ex.D16 voters list of Plaintiff. On perusal of the above documents, it is clear that the Plaintiff has failed to produce linking documents in between grant and sale deed in order to ascertain identity of the property. On what basis the boundaries are mentioned in the sale deed executed by Smt. Girijamma is not made clear by the Plaintiff. In the absence of the same, the Commissioner locates the property on the basis of the boundaries mentioned in the sale deed, which boundaries are disputed by the Defendant. In the circumstances, the Plaintiff has failed to establish her case for permanent injunction. She has not produced any materials as to construction of the house either by herself or anybody on her behalf. Ex.D2 notice issued to Plaintiff in 1991 discloses that she for the first time applies for licence but the Town Municipal Council defers consideration of her request on the ground that there is already a house existing there. In view of all these materials, the Plaintiff has failed to prove her possession in respect of the suit schedule property. Though the sale deed is dated 21.2.1958, she claims khata from 1989. All these instances probabalize the case of the Defendant that he has been in possession and enjoyment, he has constructed the building, T M C has sold the property for an upset price in favour of the Defendant and Plaintiff has forcibly trespassed into the property and in possession of the suit property. In the circumstances, the contention that the lower appellate court has exceeded to the remand order and lower appellate court ought to have relied upon the commissioner''s report: cannot be accepted.
The courts below have relied upon the following circumstances to deny relief in favour of the Plaintiff:
(i) The Plaintiff has not produced any document to show that earlier to her khata, khata was standing in the name of her husband.
(ii) Though it is stated in the sale deed Ex.P1 that vendor has handed over saguvali chit and tax paid receipts, they are not produced before the court.
(iii) The Plaintiff has not amended the plaint to include the averments that she has constructed the house and living therein since 1958. On the other hand she has she has stated in the cross-examination that she sold garden land as per Ex.P5 dated 25.8.1989 and spent her share of Rs. 10,000/-for construction.
(iv) Though it is case of the Plaintiff that she had income from areca garden, Ex.P6 pass book issued by Sri Radhakrishna Adike Stores shows entry starts from 7.8.1989 and closed on 14.1.1991 in the name of her brother Narayanabhatta.
(v) PW-1 evidence discloses that she had invested areca income in ABSCOS and utilized the same for construction purpose. Ex.P7 & 8 receipts dated 26.8.1989 disclose the investment of Rs. 7,000/-and Rs. 8005/-. No documents are produced for having withdrawn the said amounts.
(vi) The evidence of PW-1 regarding construction of house is without necessary pleadings in the plaint.
(vii) Ex.P10 is a tax paid receipt dated 19.2.1991 and the tax paid is in respect of vacant site which falsifies her case that she has put up construction of suit house during 1989.
(viii) Though PW-2 states that husband of Plaintiff had first got sale agreement and then sale deed, Plaintiff has not produced the sale agreement.
(ix) In the cross-examination Plaintiff states, her husband purchased the site from Girijamma w/o Sheikdar Venkataramanaiah, but again after 2-3 sentences she has stated that the sale deed was executed by Girijamma w/o cook-Venkataramaiah.
(x) ExD16 voter''s list for the year 1988 showing the residence of the Plaintiff as Bheemanakone and Ex.D17 in respect of Defendant for the year 1998. No rebuttal documents are produced by the Plaintiff.
(xi) No licence is produced by the Plaintiff to put up construction.
(xii) No sketch or survey documents are produced to show that after grant in favour of vendor of husband of the Plaintiff, the property was demarcated.
(xiii) The Plaintiff has not chosen to examine Smt. Girijamma w/o Venkataramaiah.
(xiv) The basis for the boundaries mentioned in the sale deed is not explained and established.
(xv) The Defendant has produced reciepts for having purchased the timber, transport license from the forest department, tiles and other building material and his maintaining the accounts in respect of labour charges which showed construction of house by the Defendant.
(xvi) The evidence of DW- 2 to DW4 which supports the case of the Defendant that he has put up construction of the house, Plaintiff has forcibly entered into the suit schedule property.
(xvii) The pleadings of the Defendant, oral as well as documentary evidence placed on record disclosed that he was in unauthorized possession of the suit schedule property since long time and he had constructed the house, dug the well as well as raised the trees.
In view of the above, it cannot be said that that the judgment and decree of the courts below suffer from any illegality. There are no substantial questions of law arise for consideration. These appeals fail and they are liable to be rejected.
In the result, these appeals are rejected.