Yallamma, Ramaiah and Anandappa vs Rathnamma and Others

A.S. Pachhapure, J.—The appellants have challenged the Judgment and Decree of the First appellate Court in R.A. No. 61/2008, granting injunction in favour of the respondents by setting aside the Judgment and Decree of the trial Court. The facts reveal that the suit property is Sy. No. 7: 4th Block, measuring 7 acres with the boundaries described in the schedule to the plaint. The respondents instituted the suit seeking the relief of declaration of their title over the suit property and injunction. The suit property was granted to one Chowdike Durgaiah under a contract grant. Chowdike Durgaiah died issueless and Chowdike Thippaiah i.e., the husband of the deceased original plaintiff was his brother. The other plaintiffs [the respondents herein] are the legal representatives of the deceased original plaintiff. It was their contention that on the death of Chowdike Durgaiah, Chowdike Thippaiah succeeded to suit schedule property and on his death, they have been in possession and enjoyment of the same. There was an obstruction to their possession and therefore they approached the trial Court, seeking the relief of declaration of their title and injunction. The appellants herein are the defendants and it is their contention that they are in possession of the suit property and the genealogy submitted by the plaintiffs is not true. It was also their contention that the plaintiffs are not the legal representatives of deceased Chowdike Durgaiah. They contend that Chowdike Durgaiah was the owner of the suit schedule property and since 20 years prior to the suit they are in exclusive possession of the same. On these grounds, they sought for dismissal of the suit.

The trial Court has framed the issues. The plaintiffs examined P.Ws. 1 to 4 and in their evidence Exs. P1 to 13 were marked. The defendants examined D.Ws. 1 to 4 and in their evidence Exs. D1 to 8 were marked.

The trial Court after hearing learned counsel for the parties and on appreciation of the material on record held that the plaintiffs have failed to establish their possession and title to the suit property. Consequently, the suit was dismissed. Aggrieved by the Judgment and Decree of the trial Court, the plaintiffs filed R.A. No. 61/2007 and the first appellate Court though affirmed dismissal of the suit for the relief of declaration, granted a decree of injunction in favour of the plaintiffs. Aggrieved by the Judgment and Decree of the first appellate Court, the present appeal is filed.

At the time of admission, the following substantial question of law is raised for consideration:

Whether the first appellate Court which affirmed the finding of the trial Court that ownership in respect of the suit property was not established by the plaintiffs, was justified in reversing the dismissal of the suit for permanent injunction, without setting aside the finding of fact that there was no material evidence produced to show the relationship of the plaintiffs with the original grantee of the land, Chowdike Durgaiah and granting the relief of injunction, in favour of the plaintiffs?

I have heard learned counsel for the parties.

It is the submission of learned counsel for the appellants that genealogy produced by the plaintiffs at Ex. P3 is not proved and in the absence of any evidence to prove that the plaintiffs are the legal representatives, the question of granting injunction to protect the alleged lawful possession does not arise. He also submits that the trial Court has rightly dismissed the suit and the first appellate Court did not assign cogent reasons to grant a decree for injunction. In the absence of any evidence of the plaintiffs being the legal representatives of deceased Chowdike Durgaiah, he contends that no relief could be granted.

On the other hand, learned counsel for the respondents supporting the Judgment and Decree of the first appellate Court submits that there are unambiguous admissions on the part of the plaintiffs to prove the possession and enjoyment of the suit schedule property by the plaintiffs and the first appellate Court after assessing the evidence has rightly granted the decree, assigning reasons to over-come the findings of the trial Court.

P.W. 1-Siddanna is the son of deceased Chowdike Thippaiah and he states in his evidence that his father is the younger brother of Chowdike Durgaiah and the suit property was granted to Chowdike Durgaiah under a contract. Ex. P1 is the record of rights and in the ownership and possession column, the name of Chowdike Durgaiah appears. Ex. P2 is the record of rights for the year 1997 to 2000. Exs. P4 to 6 are the land revenue receipts for the year 1998-99 and 2001-02. The name of the plaintiffs do not appear in the record of rights. But, anyhow, the evidence reveals that Chowdike Durgaiah was the owner and was in possession of the suit property.

The name of the respondents were entered in the records under a mutation entry in the year 2000 and the original plaintiff has preferred an appeal before the Assistant Commissioner in R.A. No. 77/2000-01. This appeal was allowed vide Order dated 11.12.2001 and the names of Yellamma and others were set aside leaving the matter for adjudication by the Civil Court. Thereafter, the name of Chowdike Durgaiah was continued in the records.

Ex. P3 is the genealogy issued by the Village accountant. It reveals that Chowdike Thippaiah was the brother of Chowdike Durgaiah and that the plaintiffs are the legal representatives of deceased Chowdike Thippaiah. To prove Ex. P3, it is the evidence of P.W. 1 and others, which is relied upon. Anyhow, the Village Accountant who has issued the certificate is not examined. The respondents relied upon the admission of the defendants in their evidence. D.W. 3 is one Gidda Durgappa, a person, who was aged about 70 years. He admits in the cross-examination that except the plaintiffs and Chowdike Thippaiah, there were no other legal representatives of Chowdike Durgaiah. He also admits that in the year 2000 the defendants had caused obstruction to the possession of the plaintiffs. He also admits that the defendants have no right or title in the suit property. Further, D.W. 4-Hanumanthappa unambiguously admits in the cross-examination that after the death of Chowdike Thippaiah, Honnuramma and her children i.e., the plaintiffs are cultivating the suit property and to this suggestion, he admits that it is true. He also admits that except Honnuramma and other children, no others have any interest in it. He further admits that in the year-2000, the defendants have obstructed the possession of the plaintiffs and that a complaint was filed by the plaintiffs with the Police in this regard.

The aforesaid admissions are unambiguous and would reveal that the plaintiffs are the legal representatives of deceased Chowdike Thippaiah and they are in possession of the suit property. The relationship of Chowdike Thippaiah, his wife and children of Chowdike Durgaiah is not denied by D.W. 3 and he admits the relationship also. So, it is on the basis of these admissions that the first appellate Court has come to the conclusion to grant a decree in favour of the plaintiffs as the possession has been admitted. Both the plaintiffs are held to be the legal representatives of Chowdike Durgaiah as there was a grant under the contract, the Court below has granted a decree of injunction as the plaintiffs have a better title. The perusal of the material placed on record would reveal that the trial Court did not consider this aspect and the first appellate Court has passed the decree of injunction on the admissions of the aforesaid witnesses. I do not find any illegality committed by the first appellate Court in reversing the Judgment and Decree of the trial Court. Hence the substantial question of law raised is answered in affirmative. Consequently, the appeal fails and it is dismissed.