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Judgment
A.S. Pachhapure, J.—The appellant has challenged the judgment and decree of the Trial Court dismissing his suit for injunction and also the appeal filed before the First Appellate Court. The facts relevant for the purpose of this appeal are as under:
The parties are referred as per their rank before the Trial Court for the sake of convenience.
The appellant herein is the plaintiff whereas respondents were the defendants. The suit property is the house property bearing house list No. 89 described in the schedule to the plaint. According to the plaintiff, it is an ancestral property acquired by inheritance and that he is in possession and enjoyment of the same as an absolute owner. The property stands in the name of plaintiff in the records of panchayath. He contends that the defendants have no right, title or interest of whatsoever type over the suit schedule property. There was a threat to his possession and for this reason, he instituted a suit for injunction.
The defendants filed the written statement denying title and possession of the plaintiff over the suit property. It is them specific contention that the property belongs to panchayath and the public at large are using the suit property as panchayath katte and it is being used by the people in the village at the time of fair and the water in the well over the suit property is used by the people of the village and they have a right to draw the water. They contend that the father of plaintiff had instituted a suit in OS No. 425/1969 and though the suit came to be decreed in his favour, the defendants preferred an appeal in RA No. 60/1978 and after the disposal of the appeals, there was a second appeal before this Court in RSA No. 123/1979 and 190/1979 and the decree of First Appellate court dismissing the suit of the father of plaintiff was upheld by this Court. Therefore, they contend that the plaintiff after his father failed to establish the right over the suit property, the present suit is filed by creating records in the panchayath as the plaintiff was an elected member in the panchayath. Therefore, they sought for dismissal of the suit both on merits and also by invoking Section 11 of CPC.
On the basis of these pleadings, the Trial Court framed three issues casting burden upon the plaintiff to '' establish his lawful possession, obstruction to his possession and reliefs to be granted.
During the trial, the plaintiff was examined as PW1 and documents Exs. P1 to P12 were marked. The defendants examined DW1 and documents Exs. D1 to D27 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, dismissed the suit. The plaintiff preferred an appeal in RA No. 123/2008 and the said appeal was also dismissed confirming the judgment and decree of the Trial Court. Aggrieved by the concurrent findings, the present appeal is filed.
I have heard learned Counsel for the appellant...
It is the submission of learned Counsel for the appellant that there is no finding by the Courts below that the suit property and the property in litigation in OS No. 425/1969 is the same and therefore, he contends that as the suit property is different from the one which was the subject matter in the earlier suit, the Courts below committed an error and illegality in dismissing the suit of the appellant. So also, he would contend that the appellant has a better title to the suit property and as the defendants have no title or any right over the suit property, a decree of injunction could have been granted. He submits that as the Courts below have overlooked the records produced by the parties, a substantial question of law arose on the above said aspect and therefore, he seeks to raise a substantial question of law relating to the contention raised above.
Learned Counsel for the respondent was absent.
The scrutiny of material placed on record by way of documents reveal that the plaintiff has produced the house list extract No. 89 as per Exs. P2 to P4 and these documents reveal that the property mentioned in the list stands in the name of plaintiff as on the date when the suit came to be instituted. Ex. P5 is the permission accorded by panchayath to put up the construction of a building on the suit property. Ex. P6 is the receipt for payment of tax dated 25.09.2006. Ex. P7 is the extract of demand register of the suit property bearing house list No. 89. Ex. P8 is the copy of judgment and decree in relation to the suit property in OS No. 405/2006 in which the panchayath and the secretary were defendants and the suit was instituted by the plaintiff. It reveals that the defendants were placed ex-parte and a decree was obtained. So on the basis of aforesaid documents and the oral evidence, the plaintiff claims that he is in possession of the suit property. Though in the plaint, he contended that the suit property is an ancestral property, to prove it, he has not produced even a single document. The aforesaid documents and the oral evidence of the plaintiff has to be looked into in the context of defence raised by the defendants and the earlier litigation between the father of plaintiff and the villagers.
The defendants have produced Ex. D2, the certified copy of the judgment and decree in OS No. 425/1969, wherein the father of plaintiff was the plaintiff in the said suit and two villagers and the State of Karnataka were defendants. Though the suit was decreed in favour of the plaintiff, the appeal was preferred in RA Nos. 58 and 60/1978 by the State and other defendants as against the father of plaintiff. The appeals were disposed of vide common judgment and decree dated 20.10.1978. The suit instituted by the father of plaintiff came to be dismissed. Exs. D4 and D5 are the judgment and decrees in the said appeals. That apart, the defendants have also produced the judgment and order of this Court in RSA Nos. 123/1979 and 190/1979 preferred by the father of plaintiff at Ex. D6 and both these appeals have been dismissed. So it is the contention of defendants that the subject matter of the litigation aforesaid is the subject matter in the present suit as well.
To appreciate the evidence to know as to whether the suit property is the subject matter in the aforesaid litigation, it is relevant to consider the oral evidence of plaintiff who in his cross examination admits that there is a well in the suit property and the people in the village draw water from the said well. Admittedly, in the suit property which was subject matter in litigation in OS No. 425/1969 as well, there is a well and though PW1 denies the suggestion that the suit property is not the property which was the subject matter in the earlier litigation, the fact that there was a well in the property in the earlier litigation and well in the suit property is a circumstance which strongly weighs in favour of defendants. PW1 disputes the suit having been instituted in OS 425/1969 by his father and pleads ignorance about the institution of suit and the appeal filed before the Firs Appellate court and also the appeals filed, before this Court against the judgment and decree of the First Appellate Court. When the material placed on record reveals that the plaintiff in the earlier litigation is the father of plaintiff in this suit, pleading ignorance about the litigation reveals suppression of material facts. It is for this reason that the Courts below have drawn adverse inference against PW1 and have come to a conclusion that the suit property is the same property which was in litigation earlier.
An important aspect has been brought on record in the cross examination of PW1 and it reveals that the plaintiff was a member of grama panchayath and a suggestion has been made to that effect that Exs. P9 and 10 have been created in collusion with panchayath authorities by misusing his possession as a member of mandal panchayath. If the plaintiff had admitted the earlier litigation between his father and if he had contended that the property was different than the one which is the subject matter in this suit, there could have been a different approach to the evidence adduced. But as the plaintiff had denied the above earlier litigation and his father being a party to the suit earlier, there is consistent evidence of defendants in addition to the contention in the written statement that the property in the earlier litigation is the same property which is the subject matter in the suit. This inference drawn gains support on the fact that the plaintiff had not produced any records to prove that the suit property was the ancestral property. The suppression of earlier records in relation to this property is also a strong circumstance which weighs in -Favour of the defendants.
The Courts below have appreciated the oral evidence as well the documentary by drawing proper inferences and have come to a conclusion that the plaintiff has failed to establish his title to the suit: property and his possession. Though the defendants are not the owners of suit property as the suit property is said to be a Government property wherein there is a well and the people have a right to take water and this circumstance is strongly proved on the basis of judgments in the earlier litigation and I do not find any substantial question of law for consideration in this appeal.
Learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, , wherein the Apex Court has held that the plaintiff can on the strength of his possession, resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession. The principle does not apply to the facts on hand for the sole reason that the plaintiff has not proved his title and also the possession. When the defendants and the villagers have a right to take water from the well situated in the suit property, it cannot be said that the defendants have no better title. There are concurrent findings by both the Courts below in holding that the suit property itself was in litigation earlier and the Courts have accepted the fact that the principle of res-judicata applies to the present suit and have rightly rejected the claim of appellant for a decree of injunction.
In the result, the appeal fails and it is dismissed.