S. Mallikaiah and Others vs Thimmaiah and Others

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the Courts below in dismissing the appellants'' suit for permanent injunction, the present second appeal is filed.

The case of the appellants - plaintiffs is that the defendant was granted 4 Acres of land in survey No. 57 as described in the plaint schedule. He sold the northern 02 acres 10 guntas to the father of the plaintiff under a registered sale deed dated 17.02.1964 and 01 Acre towards the south, to the plaintiff through a registered sale deed dated 13.05.1966. The remaining 30 guntas of land to the south-east corner of the defendant''s land, was sold to one Bettaiah. The sale of 2 acres 10 guntas was set aside by the Assistant Commissioner, Tiptur since there was violation of condition of grant. The plaintiff preferred an appeal against the said order, which was dismissed by the Deputy Commissioner. Aggrieved by the same, he filed a writ petition, which was also dismissed. Hence he filed the instant suit against the defendant for a permanent injunction restraining the defendant from interfering with the suit schedule property. On the death of the plaintiff, his legal representatives were brought on record. The defendant entered appearance. No written statement was filed. On the death of defendant, his legal representatives were brought on record. They too did not file written statement nor did they lead any evidence.

The trial Court framed the following issues for consideration.

"1. Whether the plaintiff proves that he is in the lawful possession of the schedule property as on date of suit?

Whether the plaintiff proves the alleged interference by the defendants?

To what order ?"

One of the sons of the plaintiff was examined as PW.1 and another witness as PW.2 and got marked five documents. It held issue Nos. 1 and 2 in the negative and dismissed the suit. Aggrieved by the same, plaintiffs preferred an appeal, which was also dismissed. Hence the present appeal.

By the order dated 23.07.2008, the appeal was admitted to consider the following substantial question of law:

"Whether in the facts and circumstances of the case, the Courts below were justified in dismissing the suit, ignoring Exs.P1, P2 and P4? "

Learned counsel for the appellants contends that both the Courts below committed an error in not considering the evidence on record. Exs.P1 and P2 are T.T paid receipts. Ex. P4 is the certified copy of the sale deed in favour of the plaintiff. That these documents have not been considered by both the Courts. Hence he pleads that the question of law be answered favourably by decreeing the suit.

Respondent Nos. 1 to 8 are served and unrepresented.

The trial Court while considering the plea of the plaintiff, framed issues as to whether he is in lawful possession of the suit schedule property and whether he proves any alleged interference by the defendants.

The factum of withdrawal of grant of land in favour of the vendor of the plaintiff is undisputed. In fact, the same was pleaded by the plaintiff before the Deputy Commissioner as well as through a writ petition before this Court. None of his pleas has been accepted by any of the Courts. The Trial Court has considered Exs.P1 and P2 as well as P4. It has also considered the fact that the plaintiff has failed to examine any of his neighboring land owners to substantiate his contention that he is in possession of the suit schedule property. That he has not produced any document to show his possession over the 1st item of the schedule property nor has he produced any material to show that he has made any application to the State Government for regularization of the unauthorized occupation. Therefore, in these terms, the suit was dismissed. The appellate Court while considering the finding of the trial Court, affirmed the same.

When earlier the same was challenged in writ petition, it was dismissed on 17.12.1990. Immediately thereafter on 26.12.1990, the instant suit has been filed. Therefore, a presumption was drawn by the appellate Court that the suit has been filed in order to take undue advantage of certain observations made by the High Court and in the absence of material to show that the plaintiff is in possession of the suit schedule property, the finding of the trial Court was affirmed.

On considering both the judgments of the Courts below, I''am of the considered view that the Courts below were justified in dismissing the suit. That having considered Exs.P1, P2 as well as P4, the Courts below rightly came to the conclusion that the suit of the plaintiff cannot be decreed.

Even otherwise, what is also relevant here is that the land in question having been resumed by the State, necessarily, the land vests with the State. Therefore, the proper defendant would have been the State and not the vendor. The absence of making the State Government as a party to the proceedings, when admittedly, the land has been vested with the State Government is yet another reason as to why the plea of the plaintiff cannot be accepted.

Hence the substantial question of law is answered by holding that both the Courts below were justified in dismissing the suit while considering Exs.P1, 2 and 4. Consequently, the appeal is dismissed.