Somaiah A.M. vs M.V. Prabhakara and Others

B. Sreenivas Gowda, J.—1. This second appeal is by the plaintiff in the suit challenging the concurrent judgments and decrees passed by the Courts below in dismissing his suit brought for the relief of permanent injunction against the defendants.

The case of the plaintiff is that he is the absolute owner in possession of entire suit ''A'' schedule property and 50 cents out of 2.15 acres in the suit ''B'' schedule property. He has acquired the suit ''A'' schedule property by virtue of occupancy rights granted by the Land Tribunal, Somwarpet in his favour and has acquired the suit ''B'' schedule property in a family partition. Steps have been taken to have the revenue entries changed into his name. The steps have also been taken for correction of errors crept in the revenue records in respect of suit ''A'' schedule property. It is contended that there are already three channels constructed by the Government in the suit ''A'' and ''B'' schedule properties of the plaintiff and no compensation has been paid to him by the Government. Now the defendants/respondents 3, 4 and 5 are attempting to construct one more channel in the suit A and B schedule properties of the plaintiff at the instance of defendants 1 and 2-respondents 1 and 2. Therefore, he was constrained to institute the suit seeking for the following reliefs:--

a) For a permanent injunction against the Defendants that is prohibitory and mandatory injunction against the defendants restraining them, their men, their contractors, subordinated and all or any person or persons claiming through them not to open the channel on the suit A and B schedule lands or in any way entering into the suit lands or disturbing the peaceful possession and enjoyment of the suit A and B schedule lands by the plaintiff.

b) For costs of this suit and

c) For any other reliefs.

The defendants 1 and 2 have filed common written statement denying the case of the plaintiff. It was contended that the plaintiff is not in possession of 1.85 acres in the suit A schedule property. They admitted that the plaintiff is having 50 cents in the suit B schedule property which was allotted to his share in a family partition. The suit brought by the plaintiff seeking injunction in respect of 2.15 acres in the suit ''B'' schedule properties is not maintainable. The second defendant has contended that he has nothing to do with the dispute complained in the suit and he has been unnecessarily dragged into the case and he has prayed for dismissal of the suit.

The defendants 3, 4 and 5 have not filed written statement.

The trial court based on the rival contentions of the parties has framed the following issues:--

1) Whether the plaintiff proves his possession over suit schedule properties as on the date of suit?

2) Whether he further proves that defendants are illegally trying to open new channels in schedule properties and causing interference?

3) Whether the plaintiff is entitled for relief of permanent injunction as prayed?

4) What order or decree?

The plaintiff in order to prove his case has examined himself as P.W. 1 and two witnesses as P.Ws. 2 and 3 and has produced as many as 43 documents which were marked as Ex. P1 to Ex. P43.

On behalf of defendants no witnesses were examined. The application submitted by the plaintiff was marked through P.W. 1 as Ex. D1.

The trial court after hearing the arguments of the parties and considering the oral and documentary evidence on record has answered issue No. 1-partly in the affirmative holding that the plaintiff is in possession of suit A schedule property and is not in possession of entire suit B schedule property and answered issue Nos. 2 and 3 in the negative holding that the plaintiff has failed to prove that defendants by constructing a new channel in the suit properties are causing interference and has failed to prove that he is entitled for permanent injunction and consequently, dismissed the suit.

The plaintiff being aggrieved by the said judgment and decree of the trial Court has challenged the same in R.A. No. 23/2012 before the Lower Appellate Court. The Lower Appellate Court on re-appreciation of the entire oral and documentary evidence on record, dismissed the appeal and also I.A. No. 1 filed by the Appellant under Order XLI Rule 27 of C.P.C.

Perusal of the judgments of the Courts below would show that the plaintiff claimed to be the owner in possession of 50 cents of land out of 2.15 acres of land in the suit B schedule property but he has furnished boundaries for 2.15 acres. According to the case of the plaintiff, he has taken steps for rectification of the error crept in the revenue records in respect of the suit A schedule property and has also taken steps for change of khatha of the suit properties from the name of vendor of his father into his name. He admits in his evidence that 50 cents of land out of 2.15 acres in the suit B schedule property allotted to his share under family partition has got separate boundaries and there is no impediment to demarcate the place where the defendants are making attempts to construct new channel in the suit A and B schedule properties. Under the above circumstances the plaintiff/appellant seeks liberty of the Court to file a separate suit.

Admittedly the present suit was filed for the relief of for bare injunction and it has been dismissed on the ground that the plaintiff having claimed to be the owner in respect of 50 cents of land out of 2.15 acres of land in the suit B schedule property, could not have brought the suit for entire 2.15 acres under ''B'' schedule property that too furnishing boundaries for the total extent of 2.15 acres of land instead of 50 cents of land which has separate boundaries as admitted by the plaintiff himself and also on the ground that the plaintiff having admitted that there is no impediment to describe the place where there are already three channels constructed by the Government in the suit A and B schedule properties has not done so. Therefore the plaintiff realizing his mistake, wants to file a fresh suit by demarcating the place where three channels have already been constructed by defendants 3 to 5 in the suit A and B schedule properties and also the place where they are making attempt to open one more channel in the suit A and B schedule properties. The present suit filed by the plaintiff being one for bare injunction and the plaintiff can always file any number of such suits on new cause of action no injustice will be caused to the defendants if the request of the plaintiff is granted.

Hence, the following order:

The appeal stands disposed of reserving liberty to the appellant - plaintiff to file a fresh suit by demarcating the boundaries in respect of 50 cents of land out of 2.15 acres of land in the suit B schedule property and demarcating the place where there are three channels already constructed by the Government in the suit A and B schedule properties and also demarking the place where the defendants are making attempt to construct one more channel in the suit A and B schedule properties.