Bhimashankar and Others vs Basappa and Others

K.N. Phaneendra, J.—1. The appellants herein are the defendant Nos. 1 to 4 before the Trial Court and also they have preferred an appeal before the 1st appellate Court as they have suffered a decree. Being lost the case in both the Courts, they are before this Court.

For the purpose of easy understanding and convenience, the rankings of the parties as per the ranks of the Trial Court are retained.

One Bassappa S/o Irappa has filed a suit in O.S. No. 172/2001 before the trial Court against as many as 11 defendants. Out of them the appellants are defendant Nos. 1 to 4. The suit was filed for declaration of ownership and for possession over the land bearing Sy. No. 286/2-3-B measuring 04 acres 01 gunta and for the relief that the mortgage deed dated 30.03.2005 executed by the plaintiff is not binding and it is null and void and also for perpetual injunction restraining the defendants from plaintiffs peaceful possession and enjoyment over the suit land.

It is the contention of the plaintiff that he was cultivating the land since 1968 on lease basis and father of defendant Nos. 1 to 3 was the lessor. The plaintiff applied for grant of occupancy rights in respect of said land measuring 07 acres 01 gunta. The father of the defendant Nos. 1 to 3 has contested the said proceedings before the Land Tribunal, Bidar. After due enquiry, the occupancy rights were granted in favour of the plaintiff to the extent of 04 acres 01 gunta out of 07 acres 01 gunta. The orders of the Land Tribunal, the father of the defendant Nos. 1 to 3 has preferred an appeal before the Land Reforms Appellate Authority, the appellate authority has allowed the appeal and set aside the occupancy rights granted in favour of the plaintiff. The plaintiff being aggrieved by the order of the Land Reforms Appellate Authority, challenging the same by way of Civil Revision Petition No. 2715/1989 before this Court. The said Revision Petition was allowed confirming the order of Land Tribunal, Bidar dated 21.07.1982. The plaintiff claiming absolute ownership over the suit property by way of above said proceedings, has filed the suit. Subsequently, the name of the plaintiff was mutated in the land records showing that he was in possession and enjoyment of the land. The defendant Nos. 1 to 4 having lost their battle before the Land Tribunal and the High Court have started interfering with the plaintiffs possession and enjoyment over the property. In spite of repeated requests and demand by the plaintiff, they did not desist from interfering with the plaintiffs possession. Further added to the above in order to cast the clouds on the plaintiffs title and possession, during the pendency of the suit, the defendant No. 1 colluding with defendant No. 11 has created a mortgage deed on 30.03.2005 in the name of the plaintiff. Therefore, the plaintiff has sought for the relief that the said mortgage deed is not binding upon him on the ground that the plaintiff never executed any mortgage deed in favour of defendant No. 11.

Defendant Nos. 1 to 7 appeared before the Court and contested the proceedings by filing written statement. The defendant Nos. 8 to 10 remained ex-parte and during the pendency of the suit, the defendant No. 11 was brought on record, but he also remained exparte. Defendant Nos. 1 to 7 have denied the ownership of the plaintiff and also alleged interference as stated by the plaintiff. In fact, defendants have admitted about grant of occupancy rights in respect of the suit property in favour of the plaintiff but they have denied plaintiffs exclusive ownership and possessory rights over the property. It is contended that defendant Nos. 1 to 3 continued in possession of the property immediately after the death of their father and prior to that, their father was in possession and enjoyment of the property. It is the specific contention of the defendants that plaintiff after receiving mortgage amount from the defendants'' father handed over the property to the possession of the defendants father, in fact, revenue authorities have conducted panchanama and recorded the possession of the defendants over the said property. On these grounds, the defendants have claimed that the plaintiff is not entitled for any declaratory nature of relief.

On the above rival contentions, the Trial Court has framed the following issues:

"i. Whether the plaintiff proves that he is the owner in possession of suit property?

ii Whether the plaintiff prove that, the mortgage deed dated 30.03.2005 is created in the name of plaintiff and it is not binding upon the plaintiff?

iii. Whether the plaintiff proves the alleged interference of the defendants.

iv. Whether the suit valuation made and Court fee paid are correct?

v. Whether the plaintiff is entitled for the reliefs as prayed for?

vi. What order or decree?"

In order to prove his case, the plaintiff examined himself as PW. 1 and two more witnesses as P.Ws. 2 and 3 and got marked Exs. P1 to P12. The defendants have examined seven witnesses as D.W. s. 1 to 7 and got marked Exs. D1 to D7.

After appreciating the entire oral and the documentary evidence on record, the Trial Court answering issue Nos. 1 to 5 in the affirmative, ultimately, decreed the suit. The Trial Court has mainly relied upon the documents on record particularly, order of the Land Tribunal which is marked at Ex. P1 in file No. LRM/38/29-80 and also the order passed by the High Court in CRP No. 2715/1989 in order to ascertain the title of the plaintiff. Exs. P3 and P4 are the mutation entries accepted in the name of the plaintiff consequently, the records of rights are entered in the name of plaintiff as per Exs. P5 to P10. Ex. P12 is the copy of the mortgage deed. Looking to the above documents and the oral evidence of the plaintiff, it is clear that there is no dispute between the parties with regard to the legal battle that they have fought before the Land Tribunal, Land Reforms Authorities and the High Court. Though Ex. P12-copy of the mortgage deed is produced that has not been subjected to proof by the defendants. The defendants though produced a copy of the panchanama and tax paid receipts and RTC extracts at Exs. D4 to D7 but they have not proved the mortgage deed as such before the Court. In the absence of proof of mortgage deed, it cannot be at any stretch of imagination said that plaintiff has mortgaged the property in favour of defendant No. 11 at any point of time and put any of the defendants in possession of the property. Though the defendants have taken up the contention that the plaintiff has received mortgage amount from the defendants but has not taken back the possession and possession was with the defendants, the Trial Court has come to the conclusion that defendant No. 11 who is alleged to be the person who entered the mortgage transaction has not contested the suit at all, he remained exparte and defendant No. 9 who is said to be the agricultural servant under defendant No. 1 has also not contested the suit and he was also placed exparte. In the absence of proof before the Court with regard to the possession of the plaintiff being disturbed and the defendants came into the possession of the property subsequent to the Land Tribunal granting land in favour of the plaintiff, it cannot be said that the plaintiff has lost all his right or his possession over the property. Therefore, the Trial Court after analyzing the above said documentary and oral evidence on record has rightly decreed the suit.

The defendants aggrieved by the said judgment and decree of the Trial Court have preferred R.A. No. 4/2012 on the file of Principal District and Sessions Judge, Bidar. The plaintiff contested the said appeal. The appellate Court has also formulated the following three points for consideration:

"i. Whether the I.A. No. 1 under order 41 Rule 27 deserves to be allowed?

ii. Whether the appellants have made out grounds to interfere in the Judgment and Decree passed in O.S. 172 of 2001 dated 29.11.2011?

iii. Whether impugned Judge and Decree passed by Addl. Senior Civil Judge, Bidar in O.S. 172 of 2001 dated 29.11.2011 suffers from legal infirmity?"

Answering the above said points in the negative and after re-appreciating the oral and the documentary evidence and also perusing the judgment of the Trial Court, the First Appellate Court has also came to the same conclusion that the decree of the Trial Court deserves no interference at the hands of the First Appellate Court and therefore, it confirmed the judgment and decree passed by the Trial Court consequently, dismissed the appeal and the application filed under Order 41 Rule 27 of CPC.

On perusal of the issues framed by the Trial Court and the points for consideration formulated by the First Appellate Court, there is absolutely no legal point or any question of law arises for consideration of this Court. Title of the plaintiff and possession over the property were ascertained by the Trial Court and the First Appellate Court on the basis of the facts furnished by both the parties. Therefore, when there is no legal question involved in the case and no substantial question of law arises for consideration before this Court, the appeal deserves to be dismissed.

Hence, I proceed to pass the following:

"ORDER

The appeal is dismissed at the stage of admission itself as both the counsel have assisted the Court for disposal of the appeal."