Janabai vs Devendra

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 24/1998, on the file of Civil Judge (Jr. Dn.), Haliyal, has come up in this second appeal impugning the judgment and decree dated 8.7.2013, passed in R.A. No. 201/2006, on the file of Senior Civil Judge, Yallapur, sitting at Haliyal.

The brief facts leading to this second appeal are that the appellant herein is the plaintiff in O.S. No. 24/1998 which was filed for the relief of declaration and permanent injunction with reference to suit schedule property i.e., open land bearing Municipal No. 656/B, situated in CTS No. 3121/60 of B ward of Haliyal. According to the plaintiff, the aforesaid land is open land belonging to panchayat, on which she had put up a cow shed and has been in possession and enjoyment of the same utilizing the said land as her cow shed. It is also her case that she was in possession and enjoyment of the suit property as its owner for the past 15 years prior to filing of the suit without obstruction from anybody by paying tax to the Town Municipal Authority, Haliyal. According to the plaintiff, the defendant in the original suit who is respondent herein tried to dispossess her from the suit schedule property without having any right, title or interest over the same. It is also contended that he was claiming himself as a owner of the suit property.

In the said suit on service of summons the defendant entered appearance and stated that the suit schedule property, which is property of Town Municipal Council, Haliyal, was the subject matter of public auction dated 18.10.1976, wherein he was the highest bidder for purchase of the same. It is also stated that the consideration amount for which he bid the said property was required to be paid in five instalments from 18.10.1976 to 29.11.1976 and sale deed was required to be executed immediately thereafter. According to him, he has paid the entire sale consideration towards the amount for which he bid the property in the auction and thereafter he got the sale deed of the suit schedule property executed in his name on 23.12.1996. According to him, he is in possession of the suit schedule property and therefore the suit filed by the plaintiff shall be dismissed.

In the said suit, based on the pleadings, issues were framed and suit of the plaintiff was decreed and it was held that the defendant has no right to dispossess the plaintiff from the suit property without following due process of law and consequently permanent injunction was granted in favour of the plaintiff with reference to the suit property.

Being aggrieved by the same, the defendant preferred an appeal in R.A. No. 201/2006, on the file of Senior Civil Judge, Yallapur, sitting at Haliyal, wherein the lower appellate Court on re-appreciation of the pleadings and evidence available on record with reference to the finding of the trial Court on issues 1 to 4, proceeded to frame points for its consideration and by answering the first point for consideration which was with reference to correctness or otherwise of the judgment being answered in the negative, the contention raised by the defendant who is appellant in the said appeal in point No. 2 and 3 were answered in the affirmative. Consequently the suit of the plaintiff was dismissed.

Being aggrieved by the divergent finding rendered by the lower appellate Court, the plaintiff has come up in this second appeal, seeking to set aside the judgment and decree dated 8.7.2013, passed in R.A. No. 201/2006 and consequently to restore the judgment and decree dated 11.2.1999 passed in O.S. No. 24/1998.

Heard the learned counsel for the appellant as well as the contesting respondent. Perused the judgments of both the Courts below and also the findings rendered therein. On going through the same, it is seen that the judgment and decree passed by the trial Court is rightly set aside by the lower appellate Court for the following reasons.

Admittedly the suit property was belonging to Town Municipal Council, Haliyal. The fact that the suit property was subject matter of public auction in the year 1976 is not in dispute. It is further not in dispute that in the said auction the defendant in the original suit who is respondent herein has bid the said property for the highest consideration, in favour of whom the auction sale was confirmed. The records would disclose that he has paid the entire sale consideration amount for which he bid the property in public auction. However it is seen that there is delay and latches on the part of the Town Municipal Council, Haliyal, in executing the sale deed of the suit schedule property in favour of the defendant in the original suit.

The delay in executing the sale deed in favour of the defendant cannot be taken advantage of either by the plaintiff or any other person, who is totally stranger to the suit property, to set up a claim that they have been in possession and occupation for number of years and that possession should be recognized as valid and legal in the eye of law and that the same should be recognized as against legitimate owners of the property and they should be prevented from being evicted is a far-fetching argument which should not have been entertained by the trial Court. But however for the reason best known to the trial Court, it has considered the said prayer and rendered its finding erroneously on issues 1 to 4.

However, when the same was subject matter of appeal in R.A. No. 201/2006, the lower appellate Court has rightly re-appreciated the pleadings, documents available on record with reference to the finding of the trial Court on issues 1 to 4 having found that to be wrong, has set aside the same and consequently dismissed the suit of the plaintiff and thereby legitimate right of the defendant in the original suit who is respondent herein is recognized and his right to possession and enjoyment of the suit schedule property is upheld as against the trespasser who is plaintiff in the original suit.

Therefore, in the light of the finding rendered by the lower appellate Court in its judgment in R.A. No. 201/2006, this Court find no grounds are made out to consider this second appeal filed by the plaintiff in the original suit, seeking to set aside the judgment and decree passed in R.A. No. 201/2006, for admission.

Accordingly, this second appeal filed by the plaintiff in the O.S. No. 24/1998, on the file of the Civil Judge (Jr. Dn.), Haliyal, is hereby dismissed. Consequently, the judgment and decree dated 8.7.2013 passed in R.A. No. 201/2006 on the file of Senior Civil Judge, Yallapur, sitting at Haliyal, is hereby confirmed.