Vidhyasagar vs Gururaj and Others

A.N. Venugopal Gowda, J.—O.S. No. 38/2006 filed by the first respondent, on 14.03.2006, in the Court of Principal Civil Judge (Jr.Dn.) at Bidar, to pass a decree of perpetual injunction against the defendants i.e., appellant and respondent No. 2 herein, in respect of suit property measuring 9 acres 32 guntas of land in Sy. No. 52/2, Islampur village, taluk Bidar, was contested by both defendants by filing separate written statements.

The case of the plaintiff was that the suit property having been mortgaged by defendant No. 1, in favour of Canara Bank, Bidar Branch, was sold in a public auction by Debt Recovery Tribunal at Bangalore and that he being the auction purchaser, was put in possession and enjoyment, in pursuance of the sale certificate issued on 24.03.2005. It was contended that the defendants having no subsisting right, title and interest, interfered with his possession and enjoyment of suit property and the same being illegal, they be restrained by passing a decree of permanent injunction. Both defendants filed separate written statements. According to the defendants, the plaintiff is a trespasser of the suit property and that forcible possession was taken.

Having regard to the pleadings of the parties, following issues were raised for trial:

"1. Whether plaintiff proves that he is in possession of the suit land shown in the plaint on the date of suit?

Whether plaintiff further proves that the defendants illegally interfered in the suit land as alleged in the plaint?

Whether the plaintiff is entitled for the relief of permanent injunction as sought?

What decree or order?"

The plaintiff got himself examined as PW.1 and marked Exs.P1 to P15. Defendants got examined themselves examined as DWs. 1 and 2. Appreciating the record of the suit with reference to the rival contentions, issue Nos. 1 to 3 were answered in the affirmative and as a result, suit was decreed with cost. Both defendants were restrained from interfering with the possession and enjoyment of the suit property by the plaintiff, otherwise than by having recourse to due process of law.

Respondent No. 1 did not question the said decree.

Defendant No. 2, feeling aggrieved by the said decree, filed R.A. No. 3/2007 in the Court of Additional Civil Judge (Sr.Dn.) at Bidar. Considering the rival contentions and record of the suit, following points were raised for consideration:

"1. Whether the judgment and decree passed by the Prl. Civil Judge (J.D.), Bidar is illegal, perverse, capricious or against principles of law?

Whether any interference by this Court is necessary in view of subsequent development?

What order or decree?"

On independent assessment of the evidence and the other legal proceedings, which have taken between the parties in respect of the suit property, the appeal was dismissed on 14.09.2010.

Assailing the said judgments/decrees, this second appeal was filed by the second defendant.

Heard learned counsel on both sides and perused the record. There is no dispute with regard to the proceedings, which have taken place between the parties before the Debts Recovery Tribunal and the Debts Recovery Appellate Tribunal.

The second respondent i.e., father of the appellant, had instituted O.S. No. 49/2002 against the Canara Bank, Bidar Branch to pass a decree of perpetual injunction. The said suit was withdrawn. The Canara Bank had instituted suits against the loanee/Ganapathrao. The Debt Recovery Tribunal at Bangalore decreed the same on 16.07.1996. The Recovery Certificate was issued on 31.12.1996 for a sum of Rs. 47,32,967/-. Sri. Gururaj Patil S/o Channabasappa Patil, plaintiff in O.S. No. 38/2006, on the file of Principal Civil Judge (Jr.Dn.) at Gulbarga, purchased the mortgaged property in the auction sale conducted by the Tribunal. The sale certificate having been issued, he was put in possession. Alleging the interference by loanee and his son i.e., appellant and respondent No. 2 herein, O.S. No. 38/2006 was filed in the trial Court. In the written statement filed by the second defendant i.e., appellant herein, it was stated that there was partition between himself and his father and suit property was allotted to his share on 04.09.1991 and he being not a party to the proceeding, initiated by the Bank, is not bound by the auction sale. The orders passed by the recovery officer having been assailed before the Debt Recovery Tribunal was set aside.

The auction purchaser and Bank had filed M.A. Nos. 248/2007 and 249/2007 before the Debts Recovery Appellate Tribunal at Chennai. By a common order dated 02.11.2015, the said appeals have been allowed and the impugned order passed by the Debt Recovery Tribunal was set aside and it was held that there is no merit in the claim made by loanee/Ganapathrao and his son Vidhyasagar.

Since the substantial rights of the appellant and his father has been decided in M.A. Nos. 248/2007 and 249/2007 by Debts Recovery Appellate Tribunal at Chennai, vide common order passed on 02.11.2015 and as there is concurrent findings by the Courts below with regard to lawful possession and enjoyment of the suit property by the plaintiff/respondent No. 1 herein and as learned counsel for the appellant was unable to point out any perverse finding having been recorded by the Courts below, no substantial question of law arises for consideration in this appeal. The possession of the plaintiff/respondent No. 1 herein having been admitted, though by stating that he is a trespasser and that forceful possession was taken, in view of the findings recorded by the Depts Recovery Appellate Tribunal on 02.11.2015 in M.A. Nos. 248/2007 and 249/2007, I do not find justification to entertain this appeal.

In the result, appeal lacking any substantial question of law, being not maintainable, is rejected.

Consequently, Misc.Cvl. No. 156215/2010 filed for stay does not survive for consideration and is rejected.