Smt. Poosanama and Yadavan vs D. Robert Paul and Kirubakaran (Since dead by L.Rs. Smt. Vasantha and Others)

Ravi Malimath, J.—Aggrieved by the judgment and decree dated 19.11.2003 passed by the First Appellate Court in R.A. NO. 22/1999 allowing the appeal and decreeing the suit of the plaintiff, the defendants 1 and 2 have filed this appeal.

For the sake of convenience, parties would be referred to, as par their rank in the Trial Court.

The plaintiff filed a suit against the defendants seeking for a decree against them to declare that he is the owner of the suit schedule property, for permanent injunction restraining the defendants from interfering with the suit schedule property and for a direction to remove the illegal construction put up by them on the suit schedule property.

The defendants denied the suit claim. The Trial court having framed 5 issues, dismissed the suit of the plaintiff. Aggrieved by the same, the plaintiff preferred an appeal, which came to be allowed by holding that the plaintiff is the owner of the suit schedule property and granted an injunction restraining the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the suit schedule property and directed the defendants to remove the construction put up on the suit schedule property. Aggrieved by the judgment and decree of the First Appellate Court, the defendants 1 and 2 have filed the present appeal.

By the order dated 28.6.2006, this appeal was admitted to consider the following two questions of law:

1) Whether the lower appellate Court was justified in reversing the judgment and decree at the trial court?

2) Whether the judgment and decree of the lower appellate Court is sustainable when one of the defendants, namely, defendant No. 3 having died during the pendency of the proceedings in the appellate Court, as decree is one and indivisible?

The learned Counsel for the defendants contends that the judgment and decree of the First Appellate Court is erroneous and hence interference is called for. He submits that the First Appellate Court failed to consider the contentions raised by the defendants while reversing the judgment and decree of the trial Court. He contends that the reasonings of the First Appellate court is inadequate. There is no adequate reasons given by the First Appellate Court while reversing the well-considered judgement and decree of the trial Court. Only placing reliance on Ex.P4, E.P5, Ex.P6, Ex.P11, Ex.P13, and Ex.P.15, the first Appellate Court came to the conclusion that the suit of the plaintiff required to be decreed. Therefore, he contends that the judgment and decree of the First Appellate Court is erroneous in not considering the facts of the case and in the wrong appreciation of the same.

The Counsel for respondent No. 1 is served and unrepresented. The counsel for respondents 2 (a) to (f) has remained absent.

The first Appellate Court while considering the plea of the plaintiff came to the conclusion that the Trial Court committed an error in appreciating the evidence placed by the plaintiff, even though the plaintiff had produced the documents such as Ex.P4, Ex.,P5, Ex.P6 to show that he is the owner of the suit property. Ex.P6 shows that the property having a khata standing in his name. EX.P7 to Ex.P10 are tax paid receipts. Ex.P11, EX.P13 and Ex.P.15 show the illegal construction. The First Appellate Court having failed to consider the same allowed the appeal.

The reasoning given by the First appellate Court that the Trial Court has failed to consider the documents is erroneous. The Trial court in the course of considering the additional issue No. 1 has specifically referred to the documents Ex.P4, Ex.P5. Ex.P6, Ex.P11, Ex.P13 and Ex.P15 with regard to the status of the property concerning the plaintiff. On consideration of the same, the Trial court was of the opinion that inspite of the said documents, the plaintiff has failed to show that he is in possession of the suit, schedule property as on the date of filing of the suit. Therefore, to reverse a finding recorded by the Trial Court based on the evidence by merely holding that the documents have not been considered is erroneous. The finding recorded by the First Appellate Court that the trial Court has failed to consider the documents is opposed to law the facts of the case as well as the detailed reasoning given by the Trial Court while considering the said documents. While considering additional issue No. 1, the First Appellate Court has gone to the extent of calculating the area of suit schedule property in order to determine the respective rights of the parties. The same was necessitated to the fact that the construction was being put up on the suit schedule property and hence measurement of the property could be actuated and it could not be based on the acreage, but by square footage. The First Appellate court committed a gross error in holding that the trial Court committed an error in considering the case on the basis of square feet and not on the basis of acreage. In the instant case, when the entire claim is to an extant of 5 guntas, in order to ascertain as to the actual rights of the parties, the same has been rightly deduced in terms of square feet. Therefore, I find no error committed by the Trial Court in appreciating the contentions of both the parties with reference to square feet of the suit schedule property.

The First Appellate Court without assigning any reasons as to the reading of Ex.P4 Ex.P5, Ex.P6, Ex.P11, Ex.P13 and Ex. P15 held that non-consideration of these documents is fatal. As held earlier, the Trial Court has considered these documents and has rightly come to the conclusion based on facts. However, there is no reasoning recorded by the First Appellate Court to the effect of non-consideration of these exhibits. The First Appellate Court should therefore have applied its mind and held as to what is the resultant finding regarding the consideration of exhibits. By merely stating that the Trial court has failed to consider the documents, which finding is erroneous on facts, would not show that the concerned documents are to be read in favour of the plaintiff and against the defendants. Therefore, non-mentioning of the reasoning by the First Appellate Court in reversing the finding of the Trial Court so far as these exhibits are concerned is perverse. Therefore, this Court is of the considered view that the judgment and decree of the First Appellate Court in reversing the judgment and decree of the Trial Court is perverse and unsustainable. Hence, the first substantial question of law is accordingly answered.

The 3rd defendant namely, the 3rd respondent died during the pendency of the appeal before the First Appellate court. Therefore, it is contended that the entire judgment and decree of the First appellate Court is erroneous. I an unable to accept the said reasoning. The 3rd respondent namely the 3rd defendant is the son of the first defendant and brother of the 2nd defendant. The suit has bean decreed for declaration and injunction. The decree therefore is devisable and hence cannot be said to be null and void. In fact, the decree passed against a dead person being devisable, non-impleading of the legal-heirs of the deceased 3rd respondent would not be fatal to the decree of the First Appellate court. Hence, the substantial question No. 2 is answered against the appellants and in favour of the 1st respondent.

In the light of the answers to the substantial questions of law, the judgment and decree dated 19.11.2003 passed by the civil Judge(Sr.Dn), K.G.F., in R.A. No. 22/1999 is not aside. The suit of the plaintiff is dismissed. No costs.