Sri Faras Hussain vs Sri Moosa Yusuf and Others

Anand Byrareddy, J.—Heard the learned Counsel for the Appellant. The Appellant was the Defendant before the trial court. The original Plaintiff is no more. It was his case, that he had encroached on the suit property to the extent of 14 cents of land in Sy. No. 371/1A of Shiroor Village belonging to the government, about 38 years prior to the suit and had enclosed the same with a compound wail and had constructed a house apart from planting trees and digging a well and constructed other appurtenant buildings and it was the case of the Plaintiff, that he had continued in possession along with his family ever since. Further, the Plaintiff had made an application for grant of the said suit property and this was in turn granted to the extent of 10 cents. But, however, the Plaintiff who had been in possession of 14 cents, continued to occupy the entire extent. It was the further case of the Plaintiff, that the Defendant who was not in occupation of any part of the suit property, sought to interfere with the Plaintiffs possession and tried to put up construction. In that background, the suit was filed seeking to restrain the Defendant-Appellant herein, from putting up any such construction and there was an order of temporary injunction granted by the trial court in respect of the same. It was the Plaintiffs case that the Defendant had forcibly encroached on the suit property and had constructed a temporary shed. The Plaintiff accordingly, had pleaded the subsequent events of the Defendant having encroached on the suit property. It was in that background, that the trial was conducted and the trial court decreed the suit. Since the Defendant did not seriously challenge or defend the suit, though he had entered appearance and also filed his written statement denying the plaint averments and claiming that the Defendant was in possession of the suit property to the extent that was alleged as having been encroached, the trial court having decreed the suit, the same was carried in appeal and the Appellant made a futile attempt to tender evidence before the lower appellate court. The lower appellate court, however, rejected the application seeking to produce evidence and affirmed the finding of the trial court. It is that which is the subject matter of challenge in the present appeal.

The learned Counsel for the Appellant has framed several substantial questions of law. While candidly admitting, that there was a lapse on the part of the Defendant-Appellant in not having tendered evidence in support of the pleadings and hence would submit that having regard to the close relationship of the parties, it is personal animosity which has led to this rancour and therefore, out of sheer spite that the suit was filed to deprive the possession of the Appellant-Defendant and therefore, an opportunity ought to be granted to establish the Defendant''s case and in the face of the circumstance, that the Defendant has also applied for grant of the very suit property to the extent of 10 cents and the same pending consideration, it would be in the interest of justice to consider the questions of law framed.

However, having regard to the above facts and circumstances, since the Defendant-Appellant does not claim title to the property, but. only seeks to assert possession over the suit property in the face of findings of fact by the courts below and in the absence of any evidence tendered by the Appellant, it would be futile to relegate the parties to trial yet again, at this point of time. If the Appellant should succeed in obtaining grant of the land, to whatever extent he would be independently enabled to come into occupation legitimately and that being so, there is no warrant for interference by this Court in this proceedings at this stage. There is no substantial question of law that arises for consideration. The appeal is rejected.