V. Narayanaswamy vs City Municipal Council and Others

Aravind Kumar, J.—This is a plaintiff''s second appeal challenging the judgment and decree passed by Sr. Civil Judge and JMFC, Chintamani in R.A. No. 4/2007 dated 04.03.2011 whereunder judgment and decree of permanent injunction granted by Civil Judge (Jr. Dn) and JMFC dated 07.12.2006 in O.S. No. 58/2001 came to be reversed and suit filed by plaintiff for perpetual injunction came to be dismissed.

The above appeal has been admitted on 21.03.2013 to consider the following substantial question of law:

"Whether the finding of the lower appellate Court that the appellant - plaintiff is not in possession of suit property is contrary to evidence on record?"

I have heard the arguments of Sri Rajeshwar, learned Advocate appearing for appellant - plaintiff, Sri Ashok Mensinkai, learned Advocate appearing for respondent-1 and Sri M.J. Alva, learned Advocate appearing for respondent-2.

It is the contention of Sri P.N. Rajeshwar, learned Advocate appearing for appellant that first appellate Court committed a serious error in reversing finding of the trial Court on the ground of Grant Certificate issued by the Revenue authorities indicating grant of land of 5 guntas in Sy. No. 200 of Nakkundi village, Chintamani Town in favour of plaintiff''s grand father not having been produced and revenue entries found in revenue records are not believable is without any substance and said finding is contrary to material evidence available on record. He would elaborate his submission by contending that first appellate Court erred in arriving at a conclusion that plaintiff having claimed right, title and interest over the suit property by virtue of a Will executed by the original grantee namely, Sri Mallisetty Muniswamy was fatal to his claim since said Will was not produced, without considering the fact that in a suit for injunction, the production of the Will or its proving is impermissible and as such, judgment of first appellate Court requires to be reversed.

He would also submit that undisputedly, Municipality namely, first defendant which is rival claimant to the suit schedule property did not file written statement and any amount of evidence without plea is no proof of its assertion and as such, first appellate Court ought not to have reversed the finding of trial Court. He would also contend that documents produced by the plaintiff would clearly indicate that at an undisputed point of time, suit schedule property was granted to the grand father of appellant - plaintiff and as such, plaintiff had inherited the property and documents produced by plaintiff would clearly establish his possession and first defendant itself had issued khata in respect of portion of suit schedule property as per Ex. P-10 and non-consideration of this material evidence and brushing aside the same without assigning proper and cogent reasons is liable to be interfered with by answering the substantial question of law in favour of appellant. Hence, he has prayed for allowing the appeal.

Per contra, learned Advocates appearing for the respondents - Sriyuths Ashok Mensinkai and M.J. Alva would support the judgment and decree passed by first appellate Court and contend that finding recorded by first appellate Court is a finding of fact and it has in detail discussed as to why documents produced by plaintiff cannot be accepted to arrive at a conclusion that appellant - plaintiff is not in possession of suit property and same being a finding of fact, this Court sitting in second appeal would not interfere with the same. Hence, they would contend that substantial question of law framed by this Court be answered in favour of defendants. Hence, they pray for dismissal of the appeal.

Having heard the learned Advocates appearing for parties and on perusal of judgment and decree passed by trial Court which came to be reversed by first appellate Court and also on perusal of entire records of both the Courts for the purposes of answering substantial question of law formulated herein above, it would be necessary to state few facts giving rise to filing of this second appeal apart from stating the findings recorded by trial Court and reasons assigned by first appellate Court to reverse the said finding.

FACTUAL MATRIX:

Plaintiff filed a suit for bare injunction contending inter alia that suit schedule property measuring 5 guntas was granted in favour of his grand father and he had bequeathed the said land in favour of plaintiff and on his demise, the Will having come into effect, revenue records were made over to the name of plaintiff and in order to put up construction after demolishing existing temporary structure, plaintiff applied for sanction of the plan which was duly sanctioned by first defendant and both defendants have approved the plan for construction and plaintiff is in lawful possession and enjoyment of suit schedule property. It was contended that defendants had threatened to form sites in the suit schedule property for being allotted to the poor and when they prevented the plaintiff from putting up construction, plaintiff has sought for grant of permanent injunction against defendants.

First defendant did not file the written statement. Initially, suit came to be decreed by judgment and decree dated 03.10.2001. Being aggrieved by the same, defendants filed appeal in R.A. No. 94/2001 which came to be allowed and matter was remitted back to the trial Court with a direction to give opportunity to the parties to adduce evidence and decide the case on merits. It is thereafter first defendant filed an application under Section 151 CPC seeking permission of the Court to file written statement. Said application came to be rejected by order dated 02.09.2006. Same was not challenged by the first defendant. Undisputedly, second defendant had filed written statement on 17.08.2006. Thereafter, issues came to be framed and parties have tendered evidence and on evaluation of the said evidence, trial Court decreed the suit by judgment and decree dated 07.12.2006. Defendants preferred an appeal in R.A. No. 4/2007 and appellate Court by its judgment and decree dated 04.03.2011 allowed the appeal and reversed the finding of trial Court and dismissed the suit.

FINDING RECORDED BY THE TRIAL COURT

While answering issue No. 1 which related to plaintiff proving lawful possession of suit schedule property as on date of suit and also alleged interference of defendants, has found that D.W. 1 had admitted that Exs. P-9 to P-11 and P-13 to P-15 were issued by the Office of first defendant and it has also found that said witness had pleaded his ignorance about the manner in which suit land came to be acquired by his department and also the fact that 5 acres 28 guntas in Sy. No. 200 though claimed by first defendant as having been granted by the Government, had not obtained mutation of revenue records. It has also found that documents produced by plaintiff would clearly establish his possession over suit schedule property and those documents have been issued by defendants themselves without objecting to the same and as such, contention of the plaintiff is susceptible to acceptance. Hence, it decreed the suit.

FINDINGS OF THE FIRST APPELLATE COURT:

While re-appreciating the evidence, first appellate Court held that khata of suit schedule property came to be mutated by revenue authorities in the name of Sri Mallisetty Muniswamy - the original grantee in the year 2000-01 by which time he had already expired namely, he had expired on 04.12.1994 and as such, name of plaintiff ought to have been entered in the revenue records and this creates a doubt with regard to the entries found in revenue records. The appellate Judge has also held that Exs. P-1 to P-8 do not prove that suit schedule property was granted to Sri Mallisetty Muniswamy and he having been in possession and enjoyment of the same. It has been further held by the first appellate Court that Grant Certificate was not produced, Will propounded by the plaintiff was not proved in accordance with law and revenue entries found in the revenue records are not believable and on these grounds, it has set aside the judgment and decree passed by trial Court.

A substantial question of law does not necessarily mean a question of general importance. But the words "substantial question" would mean a question of law between the parties in the case involved. Non-appreciation of available evidence, erroneous appreciation of available evidence, erroneous construction of a document, which is the basis for determination of rights of parties would also tantamount to pure question of law. Keeping these aspects in mind, substantial question of law formulated in this appeal is being adjudicated and answered herein below:

RE: SUBSTANTIAL QUESTION OF LAW:

It is not in dispute that plaintiff has sought for relief of perpetual injunction. In a suit for bare injunction, plaintiff has to prove his lawful possession over suit schedule property as on the date of suit and it is thus far, no further. The issue of title cannot be gone into in a suit for bare injunction.

In the instant case, appellant-plaintiff contended that suit schedule property measuring 5 guntas was granted to his grand father Sri Mallisetty Muniswamy. It is no doubt true that he did not produce the original Grant Certificate issued in favour of his grand father. However, one of the documents which came to be produced to substantiate the said contention were Exs. P-20 and P-21 namely, index of land and extract of khetwar. A perusal of said documents would clearly indicate that 5 guntas of land was granted in favour of Sri Mallisetty Muniswamy who is grand father of plaintiff. In fact, first appellate Court has not looked into these two documents at all nor discussed as to how this documentary evidence could be ignored in view of its glaring contents, indicating such grant in favour of Sri Mallisetty Muniswamy. This is the first stage where first appellate Court committed an error in ignoring the material evidence, which had infact been looked into by trial Court for decreeing the suit.

As already noticed herein above, first appellate Court has disbelieved the contents of Ex. P-8 which is Mutation Register extract. The contents of said document would clearly indicate that Village Accountant after having verified the records has certified that revenue records maintained in the revenue Department would indicate possession and enjoyment of 5 guntas of land by Sri Mallisetty Muniswamy both in "Faisal Register" and "Khetewar Register". Revenue records certified by revenue authorities namely, Pahani extracts of the year 1948 would indicate that out of 9.28 acres in Sy. No. 200, 5 guntas had been unauthorisedly occupied by said Sri Mallisetty Muniswamy and same has been recorded in the Registers. He further certifies that from 1955-56 to 1975-76, name of Sri Mallisetty Muniswamy is found and so also for the year 1980-81 to 1991-92 and in conclusion, he has certified that records would disclose that 5 guntas has been granted to Sri Mallisetty Muniswamy as Darkhast land and accordingly mutation came to be made. It is no doubt true that as on the said date, said Sri Mallisetty Muniswamy had expired and at that point of time, plaintiff had sought for issuance of inheritance khata and as such, the mutation proceedings came to be commenced. Merely because as on the date, such entry having been made by the Village Accountant for mutating the revenue records and original grantee having expired, would not wipe out the fact of its contents or the original grantee Sri Mallisetty Muniswamy having been granted the land i.e., suit schedule property or grantee having continued in possession of the same. This fact is also fortified by the entries made in the revenue records i.e., index of land and Khetwar Register extract which came to be produced and marked as Exs. P-20 and P-21. For reasons best known, first appellate Court has conveniently ignored this material evidence available on record and thus, there has been non-consideration of evidence available on record and so also there has been erroneous appreciation of available evidence.

Last but not the least, defendants who on the one hand assert that out of 9 acres 28 guntas in Sy. No. 200, 4 acres had been granted to Sericulture Department and balance 5 acres 28 guntas were granted to them by the Government have failed to produce a piece of document to substantiate their claim. In fact, first defendant has not filed his written statement at all. However, the Commissioner of first defendant - Municipality was examined as D.W. 1 and he asserts in his evidence that suit schedule property and the adjacent property in all, measuring 5 acres 28 guntas was granted to first defendant - Municipality by a Government Order dated 19.12.1991 which has not seen the light of the day even before this Court.

Sri Ashok Mensinkai, learned Advocate appearing for first defendant has filed a memo enclosing a copy of the order dated 21.01.1991 which only indicates that Government having granted permission for exchange of land between Sports Department, Government of Karnataka and first defendant - Municipality. It does not even remotely suggest that possession of land bearing Sy. No. 200 measuring 5 acres 28 guntas having been delivered to Municipality. On the other hand, communication which emanated from the revenue Department addressed to Commissioner of first defendant dated 24.02.2006 marked as Ex. P-22 (which has also been ignored by first appellate Court) would clearly indicate that revenue Department has examined its records and found that said land measuring 5 guntas in Sy. No. 200 does not belong to first defendant. It is also been noticed therein that same has been granted as Darkhast.

To fortify the claim of plaintiff of his possession, issuance of khata by first defendant as per Ex. P-10, grant of building licence by first defendant as per Ex. P-11, collection of taxes as per Ex. P-13 to P-16 and receiving betterment charges as per Ex. P-17 by first defendant and approval of the plan by second defendant in favour of plaintiff to put up construction in the suit schedule property as per Ex. P-9 would clearly establish that plaintiff has been in lawful possession and enjoyment of suit schedule property and there has been non consideration of this material evidence by first appellate Court though trial Court had examined in detail and had arrived at a conclusion that plaintiff had established his lawful possession over suit schedule property.

In that view of the matter, substantial question of law deserves to be answered in the affirmative namely, finding of first appellate Court that appellant-plaintiff was not in possession of suit schedule property as being contrary to evidence available on record.

For the reasons aforestated, I proceed to pass the following:

(i) Second appeal is hereby allowed.

(ii) Judgment and decree passed by Senior Civil Judge and JMFC, Chintamani in R.A. No. 4/2007 dated 04.03.2011 is hereby set aside and judgment and decree passed by Addl. Civil Judge (Jr. Dn), Chintamani in O.S. No. 58/2001 dated 7.12.2006 is hereby restored.

(iii) Costs made easy.

Registry to draw the decree accordingly and also re-transmit the records to jurisdictional Courts forthwith.