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Judgment
A.S. Pachhapure, J
The appellants have challenged the judgment and decree of injunction granted by the First Appellate Court allowing the appeal of the respondent and setting aside the dismissal of the suit ordered by the trial Court.
The brief facts relevant for the purpose of this appeal are as under:
The parties would be referred as per their rank in the trial Court for the sake of convenience.
The appellants herein are the defendants and it is the respondent who instituted the suit for injunction to restrain the defendants from causing obstruction to his peaceful possession and enjoyment of the suit properties. Item No. 1 bearing No. 83 measuring east to west 90 yards and north to south 80 yards with 16 tamarind trees and vacant space etc., with the boundaries mentioned in the schedule to the plaint. Item No. 2 is the property bearing No. 84 measuring east to west 88 yards and north to south 96 yards with the boundaries mentioned in the schedule to the plaint.
The plaintiff contented that he is the absolute owner of the suit item No. 1 under the registered sale deed dated 23.05.1949, whereas he purchased item No. 2 under an unregistered sale deed dated 20.08.1957. It is his contention that he has been in possession of the suit properties with the measurement stated aforesaid since for the last more than 50 years and has grown tamarind trees over the suit item No. 1. He also states having put up the construction of 20 shops over item No. 2 in the years 1990 and 1996.
On 12.02.2007, there was an act of interference by the defendants and there was a frivolous litigation challenging the measurement before the Taluk Panchayath, Zilla Panchayath and this Court in W.P. No. 10108/2003 which came to be dismissed on 16.01.2007. In view of the obstruction caused by the defendants, he instituted the suit for injunction to restrain them from causing obstruction to his peaceful possession and enjoyment of the suit properties.
The defendants filed their written statements denying the averments made and it was their specific contention that though the plaintiff is the owner of the properties bearing Nos. 83 and 84, the areas in yards as contended by the plaintiff is not admitted. It is their specific contention that suit item No. 1 measures 90 ft. x 80 ft, whereas, suit item No. 2 measures 88 ft. x 96 ft. They have also denied the boundaries of the suit properties mentioned by the plaintiff in the schedule. They have denied the title of the plaintiff over the suit properties to the extent of the area mentioned in yards. So also it is the plea that the Panchayath resolved to correct the mistake occurred in the record and a resolution was passed by the Grama Panchayath and the said resolution was not challenged by the plaintiff till today and therefore, he submits that the suit for injunction cannot be maintained.
They contend that beyond the area of 90 ft. x 80 ft. and 88 ft. x 96 ft. there are properties of others including the defendants and plaintiff has filed a false suit showing the areas in yards though he is the owner to the extent of the areas in feet. On the basis of these pleadings, the trial Court framed the issues calling upon the plaintiff to prove his lawful possession, interference of the defendants and as to the nature of relief to be granted.
In the trial, the plaintiff examined PW. 1 his power of attorney holder and two witnesses as PW. 2 and PW. 3. In their evidence, Exs. P1 to P.14 were marked. On behalf of the defendants, DW. 1 to DW. 8 were examined. In their evidence, Exs. D1 to D.17 were marked. The trial Court heard the learned counsel for the parties and on appreciation of the evidence on record, dismissed the suit of the plaintiff holding that he is not the owner in possession of the area as mentioned by him in yards. Aggrieved by the judgment and decree of the trial Court, the plaintiff approached the First Appellate Court in R.A. No. 146/2010 and the First Appellate Court has reversed the judgment and decree of the trial Court and granted injunction holding that the plaintiff is the absolute owner of the aforesaid two items with the measurements in yards. Aggrieved by the judgment and decree of the First Appellate Court, the defendants have approached this Court in this second appeal.
The following substantial question of law is raised for consideration:
"When the trial Court dismissed the suit of the respondent for injunction assigning its own reasons for its conclusion, whether the First Appellate Court was justified in reversing the findings of the trial Court and granting a decree for injunction and in doing so, did not assign appropriate and valid reasons to overcome the findings of the trial Court and thereby committed an illegality in the impugned judgment and decree?"
It is the contention of the learned counsel for the appellants that the First Appellate Court has committed an error in holding that the respondent is the owner of the suit properties in yards and not in feet. He submits that the respondent has not produced any title deeds to establish the measurement of the suit properties and it is for this reason that the trial Court had dismissed the suit. It is also his contention that the First Appellate Court has not assigned valid reasons to overcome the findings of the trial Court which is based on the material document and other oral evidence. It is also his submission that the respondent has to approach the Court for relief of declaration and as there is a complicated question relating to the measurement of the suit properties, it cannot be decided in an injunction suit. He submits that the respondent was in the management of the Panchayath and has created fictitious documents so as to show the suit properties in yards though he is the owner of the suit properties with the measurements in feet. Hence, he seeks to set aside the impugned judgment and decree.
On the other hand, learned counsel for the respondent supporting the judgment and decree of the First Appellate Court submits that the trial Court had committed an error, which has been rectified by the First Appellate Court assigning its own reasons and as the evidence is supported by the title deeds and the name of the plaintiff appeared in the Panchayath records since beginning with the measurement in yards, he submits that the First Appellate Court was justified in granting the injunction decree.
The plaintiff has not entered the witness box. It is his son i.e, PW.1 who holds the power of attorney (Ex. P1) of the plaintiff, has deposed in the trial Court. At the time when the suit item No. 1 was purchased by the plaintiff under the sale deed at Ex. P7 dated 23.05.1949, PW. 1 was not born. When the plaintiff purchased the other property under an unregistered sale deed dated 20.08.1957, PW. 1 was a minor approximately less than 10 years of age.
PW. 2 states that the plaintiff is in possession of the suit properties and has also given the boundaries. Further states that there are tamarind trees and shops in the suit properties. He does not know the numbers of the suit properties and also its measurement. What he states in the cross-examination is that the suit items are about 1 acre of land within the boundaries. He has no knowledge as to whether in the Panchayath records, the suit properties are shown in feet or yards. Though, he is aware of the sale transaction, he has not seen the sale deed and does not know the boundaries mentioned in the sale deed. He admits that one year prior to recording his evidence, when the Panchayath Authorities came to auction the tamarind fruits, there were an altercation between the plaintiff and Panchayath officials.
PW. 3, though states the boundaries in his evidence and that there are tamarind trees and shops over the suit properties, he does not know the boundaries of the properties held by other owners of the suit properties. Though he states that the plaintiff has four houses, he does not know the boundaries of the said houses. He admits that towers have been installed over the suit properties by the Government Authorities and he does not know the measurement of the suit properties.
Looking to the evidence of PW. 1 to PW. 3, PW. 1 was not born when item No. 1 was purchased and he was minor when item No. 2 was purchased by the plaintiff and his oral evidence is insufficient to conclude as to whether the suit properties measures in feet or in yards. Likewise, the oral evidence of PW. 2 and PW. 3 also is insufficient to arrive at any conclusion regarding the measurement of the suit properties except on the point that the plaintiff is the owner of properties bearing Nos. 83 and 84.
In my opinion, on the basis of oral evidence, one cannot prove the measurement of the suit properties and to prove such a fact, it is necessary for the plaintiff to seek appointment of a Commissioner under the provision of Order 26 of CPC to inspect the suit properties and place on record its measurement. When PW. 2 and PW. 3 are not aware of the measurement on both the directions i.e., east to west and north to south, merely stating that there are tamarind trees and shops over the suit properties, is itself insufficient to prove as to whether the plaintiff is the owner of the suit properties in yards or in feet.
Ex. P2 is the extract of the demand register maintained by the Panchayath for the year 2006-2007 and there is no mention of the measurement of the suit item Nos. 1 and 2. Ex. P3 is the house measurement for the year 2004-2005 and in Cl.No. 5 of this extract, the suit item No. 1 is shown as 90 x 80 yards whereas suit item No. 2 is shown as 88 x 96 yards with the boundaries. The plaintiff intention is to derive support to his oral version on the basis of the extract of the demand register maintained by the Panchayath.
Though in the Panchayath records, the measurement was shown in yards, this entry was challenged by defendant Nos. 3, 4 and 6 before the Taluk Executive Officer. This appeal came to be dismissed on 31.07.2002. The copy of the order has been produced at Ex. P4. Against the order of the Taluk Executive Officer, the appeal was filed before the Zilla Panchayath and the said appeal also came to be dismissed on 29.01.2003 and the copy of this order is produced at Ex. P5. Aggrieved by the aforesaid orders, they approached this Court in Writ Petition No. 10108/2003 and the perusal of this order reveals that when the matter was taken up for hearing, the Grama Panchayath had passed a resolution on 15.06.2006 and in view of this resolution, the writ petition came to be rejected with an observation that it is open to the fourth respondent i.e., the plaintiff herein to question the resolution if he is so aggrieved in an appropriate legal proceedings.
At this juncture, it is necessary to mention here that the plaintiff never questioned the said resolution which has been now produced by the defendants at Ex. D11. It reveals that the Managing Committee of the Panchayath held a meeting on the aforesaid date and resolved that the measurement of the properties of the plaintiff mentioned in the Panchayath records is in yards and stating that there is nothing to support it and further that in all the Panchayath records, the measurement of the properties is shown in feet and there was no supporting material in favour of the plaintiff to show the measurement in yards. It directed to correct the measurement shown in yards as in feet in the Panchayath records. Though this resolution has been passed by the Panchayath on 15.06.2006, the plaintiff has not challenged the said resolution at any time till today.
Though the appeal of defendant Nos. 3, 4 and 6 was dismissed by the Taluk Executive Officer and Zilla Panchayath and though this fact may be a circumstance to support the version of the plaintiff, this Court in the writ petition had left it open to the plaintiff to challenge the resolution dated 15.06.2006 and no steps have been taken by the plaintiff and instead of approaching the other authorities, he approached the trial Court with the suit for injunction.
Ex. P7 is the certified copy of the sale deed dated 23.05.1949 wherein the plaintiff had purchased suit item No. 1. Perusal of Ex. P7 does not reveal the measurement. There is a mention of the boundaries of item No. 1 and it is as under:
''East-the backyard of Sinnappa and Muniswamy,
West-the land of Kanakappa,
North-property of Abdul Bahar,
South-property of Muniswamy and then the fort wall''.
These boundaries which have been mentioned, it not shown in the schedule to the plaint and they do not tally. To overcome this discrepancy and inconsistency as regards to the boundaries, neither PW. 1, the power of attorney holder of the plaintiff nor PW. 2 and PW. 3 have offered any explanation. When the boundaries mentioned in the sale deed at Ex. P7 are different than the boundaries mentioned in the suit schedule, I do not think that there is any consistency in the claim of the plaintiff and the boundaries of the suit properties. So the sale deed-Ex. P7 neither has any recital of the measurement of the suit item No. 1 nor the boundaries mentioned in the sale deed tallies with the description of the item No. 1 in the schedule to the plaint.
This material discrepancy ought to have been explained by the plaintiff and he could have given evidence as to how the boundaries in the sale deed were changed in the due course of time. In the absence of this evidence, the mere fact that some boundaries have been mentioned in the sale deed itself is of no help to the plaintiff. On this aspect of the matter, the learned counsel for the respondent relied upon the judgments of this Court reported in Narasimha Shastry Vs. Mangesha Devaru, and "2008 (4) KCCR 2852" (Gangappa Bankappa Angadi vs. Basappa Bankappa Sannakoodala and Others) and the relevant portion is extracted herein under:
"It has been held that where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not been clear, the recitals as to the boundaries should prevail."
This principle is not applicable to the facts on hand for the sole reason that the boundaries mentioned by the plaintiff relating to item No. 1 of the suit properties is not similar to the boundaries mentioned in the sale deed at Ex. P7. Hence, he cannot take any benefit of the aforesaid principle.
Though, the plaintiff contended that there is a sale deed relating to item No. 2 of the suit properties which he purchased on 20.08.1957, the document is not admitted in his evidence as it is an unregistered sale deed. Neither PW. 1, the power of attorney holder of the plaintiff nor the other two witnesses examined state before the Court, the boundaries of item No. 1 as mentioned in the unregistered sale deed dated 20.08.1957. So there is nothing for the plaintiff to substantiate the boundaries of item No. 2 of the suit properties on the basis of the unregistered sale deed dated 20.08.1957. So except the pleading in the plaint regarding the boundaries of item No. 2, in the absence of no other witnesses, in my opinion it is insufficient to prove that he is the owner of item No. 2 of the suit properties with the measurement in yards as described in the schedule to the plaint.
The plaintiff has produced the photograph of the suit properties and the standing trees etc., In my opinion this document cannot help the plaintiff to prove the measurement of the properties.
The Panchayath had made an inspection of the suit properties and the defendants have produced the Mahazar drawn including some sketches to show the existence of the dug pit, tamarind trees and house properties etc., at the time when inspection was made. The mahazar has been produced at Ex. D9. But anyhow it is admitted by the parties that at the time of the inspection of the suit properties, the notice of proposed inspection was not given to the plaintiff. Anyhow, the perusal of the Mahazar-Ex. D9 reveals that there are different other properties within the boundaries suggested by the plaintiff in the schedule to the plaint.
One Thippanna s/o Venkatappa filed O.S. No. 69/1994 against the plaintiff claiming the injunction relating to the property bearing site No. 53 measuring 67 x 31 feet and this suit came to be decreed on 30.09.1996 and the certified copy of the judgment is produced at Ex. D2. There was some dispute relating to the tamarind trees and the plaintiff had approached the Deputy Commissioner and his request to grant Hakkudari rights in respect of the trees was rejected. The copy of this order has been produced at Ex. D1. Ex. D4 is the certified copy of the order sheet in O.S. No. 69/1994, whereas Ex. D5 is the copy of the application for temporary injunction. Ex. D6 is an endorsement issued by the Secretary of the Grama Panchayath, wherein it is stated that except the properties of the plaintiff, all the properties in the village and in the ad-joining villages, the measurement of the properties are in feet and that of the plaintiff alone is in yards. Ex. D7 is an endorsement by the plaintiff intimating the applicant, one of the defendants herein that there are no supporting documents to the entries of the plaintiff''s properties in Panchayath records with the measurement in yards.
Ex. D8 is an extract for the year 1908-1909 relating to the lands and the house properties details and are pertains to the house properties at Sl.Nos. 1 to 97 and the measurement of all the houses in both the directions is in feet and so far as the properties of the plaintiff is concerned, at the place mentioning the measurement of both the items of suit properties though 90 x 80 yards is mentioned, above these numbers, there is a mention of symbol denoting the feet and above it in Kannada, it is mentioned as " ". So perusal of these entries relating to the house bearing Nos. 83 and 84, there is mention of both the feet and also the yards. Though this document is sought to be challenged on the ground that the names of the parties have been mentioned in the other column of this extract, that fact may be only to denote the names of those owners who held these properties at present and that is not a ground to discard this document as a forged documents. There is a seal of Grama Panchayath with the signature of the Secretary certifying this document to be the extract of the register maintained by the Authorities. That apart, while this document was marked in the evidence of the defendants, the validity of the document was not questioned by the plaintiff. So if this document is looked into, a serious doubt arises for the reasons that all the properties in the village, the measurement is shown in feet and so far as the suit items, it is shown both in feet and also in yards and in the absence of this measurement and proof of boundaries, rather it appears to be improper to accept the version of the plaintiff to grant an injunction in his favour for an extent of area mentioned in yards. Though the plaintiff''s evidence is sufficient to prove his title to the properties with the measurement in feet, I do not think that he can get the benefit of injunction to the properties with the measurement in yards.
When the oral evidence cannot be accepted to prove the measurement of the properties and when there are no such admissions in their evidence to prove the measurement, I think it was just and proper for the plaintiff to approach the Civil Court with the relief of declaration instead of claiming an injunction.
Reliance is placed by the counsel for the respondent on the decision of the Apex Court reported in M. Kallappa Setty Vs. M.V. Lakshminarayana Rao, , wherein it has been held by the Apex Court that when the plaintiff is in continuous possession of the suit property, he is entitled to an injunction. This principle does not apply to the facts on hand for the sole reason that though the plaintiff has proved his title to the suit properties bearing Nos. 83 and 84 and when there is no dispute by the defendants about the ownership over the measurement i.e., 80 ft. x 90 ft. and 88 ft. x 96 feet, the benefit of an injunction cannot be granted to the plaintiff for an area in yards on the basis of the material placed on record and the evidence produced by the parties is insufficient to prove that the plaintiff is in possession of that much of the area in yards.
Anyhow, scrutiny of the judgment of the trial Court reveals that it has assigned the aforesaid reasons to arrive at the conclusion to dismiss the suit of the plaintiff. The First Appellate Court without accepting any reasons to overcome these findings of the trial Court has taken into consideration the sale deed where the boundaries have not been proved and as also taken into consideration the order of the Taluk Panchayath and Zilla Panchayath which will not bind the Civil Court and thereby came to a wrong conclusion. At that juncture, it is necessary to note that either Taluk Panchayath or Zilla Panchayath except relying upon the entries in the Panchayath records, have not gone into the other documents as it had no such opportunity and authority to decide that aspect of the matter and therefore, in my opinion, the orders passed by the Taluk Executive Officer and Zilla Panchayath are insufficient to establish the ownership and possession of the suit properties to the extent of the measurement in yards. Therefore, the substantial question of law raised is answered in negative.
Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree of the First Appellate Court is set aside and that of the trial Court is restored.
No costs.