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Judgment
P.D. Waingankar, J.—This appeal is directed against the judgment and decree dated 03.09.2010 passed in O.S. No. 5462/2006 on the file of the IX Additional City Civil Judge, Bangalore, whereby the suit filed by the plaintiff for a decree of permanent injunction came to be dismissed.
Brief facts which gave rise to this appeal are as under:
The appellant (who shall hereinafter be called as ''plaintiff'') filed a suit for a decree of permanent injunction against respondent (who shall hereinafter be called as ''defendant'') contending that the plaintiff is the absolute owner of the suit schedule property which came to his share under a registered partition deed dated 26.04.2006. It is stated that originally Sy. No. 191 of Thimmenahalli, measuring 2 acres and 19 guntas was re-granted in favour of one Doddaiah, the uncle of the plaintiff. Pursuant to a registered partition deed dated 28.05.1970 between the father of the plaintiff T. Muniyappa and his uncle Doddaiah, 1 acre 91/2 guntas of land came to the share of T. Muniyappa, the father of the plaintiff. Thereafter, the father of the plaintiff and his brother Doddaiah jointly sold 2 acres 13 guntas of land out of the said Survey Number to the National Co-operative Housing Society Limited by a registered sale deed dated 13.08.1971. The remaining 6 guntas of land was allotted to the share of T. Muniyappa, the father of the plaintiff and subsequently, it came to the share of plaintiff under a partition deed dated 26.04.2006 which is the suit schedule property.
During the month of August, 2005 the officials of defendant''s Corporation came near the suit property in order to form a public park therein. As such, the plaintiff gave a complaint to Assistant Executive Engineer, BBMP. The plaintiff got issued a legal notice on 10.02.2006 to the defendant-Corporation. Though the officials of the defendant kept quite for sometime, again on 21.06.2006, the officials made an attempt to form a park in the suit schedule property which made the plaintiff to file suit for decree of permanent injunction.
The defendant appeared and filed written statement wherein it is contended that the suit itself is not maintainable apart from contending that the plaintiff is neither owner nor in possession of the schedule property since it was acquired by the Government long back. Further, it is contended that as per the BDA layout plan, the schedule property was reserved as RFD which comes under high tension line. The so called partition deed dated 26.04.2006 set up by the plaintiff is a created document. There is no cause of action for filing the suit and hence defendant sought for dismissal of the suit.
Based on the pleadings, the following issues came to be framed:
1) Whether the plaintiff proves that he was in lawful possession of the schedule property as on the date of the institution of the suit?
2) Whether the interference alleged is true?
3) Whether the plaintiff is entitled to the permanent injunction sought for?
4) To what decree or order?
After framing of the issues., the plaintiff got himself examined as PW-1 and relied upon as many as 8 documents marked as Exs. P-1 to P-8. On behalf of defendant-Corporation no oral evidence has been led except marking two photographs Exs. D-1 and D-2.
The Trial Court upon hearing the arguments and upon appreciation of the evidence placed on record, by the impugned judgment and decree dismissed the suit of the plaintiff.
Aggrieved by the dismissal of the suit, this appeal is preferred on the ground that the trial Court erred in passing the judgment and decree without appreciating the evidence placed on record by the plaintiff in its proper perspective though the defendant did not lead any evidence. It is also urged that the trial Court came to the wrong conclusion that the property had been acquired long back in order to form a park therein. It is further urged that the impugned judgment perverse, capricious, it requires to be interfered with.
I have heard the learned counsel appearing for the appellant/plaintiff and learned counsel appearing for respondent/defendant. Perused the records.
The learned counsel for the appellant would submit that though ample evidence had been produced on behalf of the appellant/plaintiff the trial Court without proper appreciation of the evidence erroneously came to the conclusion that the plaintiff failed to prove his possession over the schedule property as on the date of filing of the suit. Further, it is submitted that since the defendant-Corporation failed to lead rebuttal evidence, the trial court ought to have accepted the case of the plaintiff. Hence, the learned counsel sought to set aside the judgment and decree and to grant a decree of permanent injunction.
Per contra, the learned counsel for the defendant while supporting the judgment and decree would submit that the appeal is devoid of merits and hence liable for dismissal.
Upon hearing the submission made by the learned counsel appearing for the parties, points that would arise for my determination are as under:
i) Whether the trial Court is justified in coming to the conclusion that the plaintiff is not in possession of the schedule property as on the date of filing of the suit?
ii) Whether the appellant/plaintiff has made out ground to call for interference in the impugned judgment and decree?
The case of the plaintiff is that schedule property measuring 70 ft. x 93 ft. is the site carved out of the Sy. No. 191 of Thimmenahalli village measuring 2 acres 19 guntas of which the father of the plaintiff, T. Muniyappa and his brother Doddaiah were the joint owners. Further case of the plaintiff is that by a registered partition deed dated 28.05.1970, the said survey number was divided between T. Muniyappa and Doddaiah. In the said partition, 1 acre 91/2 guntas of land came to the share of the father of the plaintiff T. Muniyappa. However, by sale deed dated 13.08.1971 both T. Muniyappa and Doddaiah jointly sold an area of 2 acres and 13 guntas in Sy. No. 191 in favour of National Co-operative Housing Society Limited. Thus, the area left behind was 6 guntas. It is further case of the plaintiff that in the partition deed dated 26.04.2006, 6 guntas of land was allotted to the share of the plaintiff which is the suit schedule property. The plaintiff who has been examined as PW-1 has also reiterated the same in his evidence. Apart from his oral evidence, the plaintiff has produced as many as 8 documents in support of his case. Ex. P-1 is stated to be the original partition deed dated 26.04.2006 entered into between one M. Sridhar and the plaintiff-M. Gourish whereunder 6 guntas out of Sy. No. 191 which is the suit schedule property said to be have been allotted to the share of the plaintiff. But the plaintiff has not produced the record of rights extract pertaining to the said 6 guntas of land so as to ascertain in whose name 6 guntas of land was standing. In the absence of RTC in respect of 6 guntas of land, no credence can be given to the contents of the so called partition deed whereunder 6 guntas of land said to have been allotted to the plaintiff, more so for the reason that the defendant-Corporation has taken up a contention that the schedule property was acquired long back. Exs. P-2 to P-4 are the encumbrance certificates for the period running from 01.04.1970 to 31.03.1972, 01.04.1970 to 31.03.2005 and from 01.04.1970 to 31.03.1972. When the plaintiff produced these encumbrance certificates, there was no impediment for him to produce RTC extract for the relevant period. Even if we go by the encumbrance certificates, what is evident is that T. Muniyappa, the father of the plaintiff and Doddaiah were owners of Sy. No. 191 in the year 1970 to 1972. It is also evident from Ex. P-4 that on 13.08.1971 they sold 2 acres 13 guntas of land to the National Co-operative Housing Society. But so far as remaining 6 guntas of land, no documents are forthcoming. The other documents produced by the plaintiff are the copy of the complaint as per Ex. P-6, copy of the legal notice issued to the defendant before institution of the suit as per Ex. P-7 and the postal acknowledgement for having received the copy by the defendant. Though the plaintiff produced all these documents, he failed to produce necessary documents regarding 6 guntas of land which according to him is the suit schedule property. In the absence of production of those documents, it is impossible to come to the conclusion that an area of 6 guntas of land was allotted to the share of the plaintiff. Further, in the cross-examination of the plaintiff who has been examined as PW-1, he admits that the suit schedule property is being used by the general public. That itself goes to show that the plaintiff is not at all in possession of the schedule property. On the other hand, it is being used by the general public. The very fact that it is being used by the general public and having regard to the photographs of schedule property produced by the defendant as per Exs. D-1 and D-2, it gives an impression that it is the property reserved for formation of park by the Corporation and when the defendant were about to form park the plaintiff filed the suit. Since the suit is one for a permanent injunction, it was mandatory on the part of the plaintiff to establish his possession as on the date of filing of the suit. The plaintiff neither produced RTC pertaining to suit property nor produced Khatha Certificate. On the other hand, plaintiff has admitted that the suit property is being used by the general public. In that case, the trial Court is right in coming to the conclusion that the plaintiff failed to prove his possession over the schedule property as on the date of filing of the suit. The trial Court is justified in dismissing the suit. I do not find any illegality or irregularity committed by the Court below in dismissing the suit. The appeal is devoid of merits. Hence, I pass the following order.
The appeal is dismissed.