Karnataka High Court
Rangappa Kariyappa Ilagera vs Moulasab Rehamansab Gulaguli @ ... on 30 August, 2012
Author: N.K.Patil
Bench: N.K. Patil
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 30TH DAY OF AUGUST, 2012
: BEFORE:
THE HON'BLE MR. JUSTICE N.K. PATIL
R.S.A.NO. 1065/2003 (Inj)
Between:
Rangappa Kariyappa Ilagera,
Age: 60 years, Occ: Agriculture,
R/O. Belagalpeth,
Hangal Taluk, Haveri Dist.
... Appellant
(By Shri. Madanmohan M Khannur, Advocate)
And
Moulasab Rehamansab Gulaguli
@ Bankapur,
Age: 42 years, Occ: Coolie,
R/O. Belgalpeth,
Hangal Taluk, Haveri Dist.
... Respondent
(By Shri. K S Korishettar, Advocate)
*****
This RSA is filed U/S. 100 of CPC against the
Judgement & Decree Dt. 31.10.2003 passed in
R.A.No.6/2002 on the file of the District Judge, Haveri,
dismissing the appeal and confirming the Judgement and
Decree Dt. 1.3.2002 passed in OS No.38/2002 on the file of
the Civil Judge (Sr.Dn.), Hangal.
This RSA coming on for Final Hearing, this day, the
Court, delivered the following:
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JUDGMENT
This is a plaintiff's appeal, directed against the judgment and decree dated 31st October 2003, passed in Regular Appeal No.6/2002, by the learned District Judge, Haveri, dismissing the same and confirming the judgment and decree passed by the Trial Court dated 1st March 2002, in O.S.No.38/2002.
2. The plaintiff/appellant, while challenging the impugned judgment and decree passed by the Lower Appellate Court, has raised the following substantial questions of law, for consideration:
1. Whether the Trial Court was proper giving a finding regarding title over the property without there being any issue on that point?
2. Whether the Courts below were right in dismissing the suit without claiming the declaration relief?3
3. Whether the Courts below were right in not appreciating the Ex.P.1 on the ground that there is no mentioning of CTS No.?
4. Whether the Courts below were right in giving a finding that both the parties have led their evidence, the question of burden of proof under Section 101 to 104 of Evidence Act?
5. Whether the Courts below were right in disbelieving the Ex.P.1 i.e., agreement of sale having produced by the appellant is a 30 years old document on the date of recording the evidence which has been produced from proper custody as per Section 90 of Indian Evidence Act?
6. Whether the Courts below were right in dismissing the suit on the ground agreement of sale as come to light for the 1st time and even a trespasser can file suit for injunction?
3. The parties would be hereinafter referred to as per their ranking before this Court. Facts in brief are 4 that, the appellant herein had filed a suit for injunction, restraining the respondent, his agents, servants or anybody claiming under him from obstructing his peaceful possession and enjoyment of the suit property described in para.2 of the plaint. He contended that the suit property is a thatched hut and open space. Its property number is 133 of Belagalpeth, excluding the property sold to one Giddappa Bovera measuring 9 mola North-South, and 40 mola East-West of property No.133, totally measuring 26 mola North-South and 110 mola East-West bounded by East : Land of one Aladakatti Desai, by West: Public road ; by North :House and open space of one Gousurab Masanakatti; towards South by House and backyard of Giddappa Bover, which is the suit schedule property. Prior to 1969, the said property was owned by one Tajusab Hussainsab Madarsabanavar of Belgalpeth. The Said Tajusab was in possession of the same and he had sold portion of it to one Giddappa Bovera. The said Giddappa Bovera had put up a house in the property 5 purchased by him. So far as remaining property is concerned, the said Tajusab had sold to the appellant for `800/-. The talks were included on 2nd April 1969 and on that day the said Tajusab received advance amount of `200/- and put the appellant in possession of the suit property. Since then, the appellant is making wahivat of the suit property as owner. It is further stated therein that, time and again said Tajusab has been collected remaining balance by way of installments like `100/- and `150/- for his medicines as he was suffering from illness. The appellant had paid entire balance consideration and had requested said Tajusab to execute registered sale deed but he had postponed for one or other pretext. But in the year 1970 the said Tajusab expired due to his illness without leaving any heirs. He had no legal heirs and as such, there was no occasion for the appellant to get executed registered sale deed. But appellant had paid entire sale consideration amount and he has been in possession of the suit property ever since 2nd April 1969 as a owner 6 and appellant is making wahiwat of the suit property by storing firewood, putting haystack and cow dung pit. Even two years prior to the filing of the suit, appellant has planted 190 teak wood plants in the suit property. Thus, he has been making wahiwat of the suit property ever since 1969 without interference by anybody.
4. When such being the fact, the respondent, who claims to be the grand son of deceased Tajusab is trying to get his name entered in the panchayat records pertaining to the suit property. Even on 16th February 1989, the respondent illegally tress-passed in the suit property and threatened the appellant with dire consequences contending that he is the grand son of deceased Tajusab and he is the absolute owner of the suit property. But the appellant is in possession of the suit property ever since 1970 as owner and thus his possession is perfected by adversary title. Therefore, the appellant was constrained to file the Original Suit, restraining the respondent, his agents, servants, or anybody claiming under him from obstructing his 7 peaceful possession and enjoyment of the suit property.
5. The respondent, upon service of notice, appeared through his Advocate and resisted the suit on various grounds and also filed written statement, inter alia, contending that the suit of the appellant is false, frivolous, vexatious and not tenable in law and also on facts and also denied the alleged sale transaction in favour of appellant and the possession of the appellant over the suit property, by virtue of alleged agreement of sale. It was also denied that appellant is making wahiwat of the suit property by planting teakwood plants, putting haystack and storing firewood etc. He admitted that the property 133 of Belgalpeth was owned by Tajusab and it is his ancestral property and it is false to contend that said Tajusab died issue less. On the other hand, respondent is the grand son of said Tajusab and he inherited the property. Said Tajusab was suffering from illness and in his last days Tajusab was residing with the respondent. It is the respondent who performed all the rites of deceased Tajusab and there is 8 no cause of action to file suit. The cause of action one mentioned in the plaint is false and imaginary and the suit of the appellant is not maintainable without seeking relief of declaration of title. The appellant's title to the property is clouded and hence mere suit for injunction without seeking relief of declaration is not maintainable and sought for dismissal of the suit with compensatory cost.
6. On the basis of pleadings of the parties and other relevant material available on file, the Trial Court framed necessary issues for consideration. They are:
1. Whether plaintiff proves that he is in actual possession of the suit property No.133 on the date of suit?
2. Whether suit in the present form is tenable without there being a relief of declaration?
3. Whether the defendant is entitle for compensation cost?
4. What decree or order?9
To substantiate the case of the appellant, he examined three witnesses including himself as PW1 and PWs. 2 and 3 and got marked Exhibits five documents as per Exs. P1 to P5. In rebuttal, the respondent also examined three witnesses including himself as DW1 and DWs. 2 and 3, but has not produced any documentary evidence. The Trial Court, after appreciation of the oral and documentary evidence available on file, has answered Issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order, dismissing the suit filed by the appellant with cost, holding that Ex.D1 does not confirm any title over the suit property, in the alternative, it is claimed by the appellant that after 1970, i.e. after the death of said Tajusab he continued to enjoy the said suit property openly and without interference from anybody. Thus he has perfected the title by adversary possession. When the appellant asserts that his possession is by adversary title, against the defendant, who claims to be the owner by inheritance, the suit for declaration of his title is 10 essential. Therefore, the Trial Court observed that without seeking relief of declaration mere suit for injunction based on alleged possession is not maintainable and accordingly, dismissed the suit. Being aggrieved by the said judgment and decree passed by the Trial Court, appellant herein felt necessitated to present the Regular Appeal No.6/2002 on the file of the learned District Judge, Haveri.
7. The said Regular Appeal had come up for consideration before the Lower Appellate Court on 31st March 2003 and the Lower Appellate Court after hearing both sides and after going through the judgment and decree passed by the Trial Court, framed necessary points for consideration as under:
1. Whether plaintiff proves that, he is in possession of suit property, in pursuance of agreement of sale, executed by deceased Sri. Tajuddin Madarasabanavar, dated 2.4.1969?
2. Whether plaintiff proves that, defendant is interfering in his peaceful possession and enjoyment of suit property?11
3. Whether suit filed by the plaintiff is maintainable without seeking relief of declaration of title?
4. Whether any illegality is committed by the court below, in dismissing suit of plaintiff, as per judgment and decree, dated 1.3.2002?
5. Whether plaintiff is entitled for relief, as prayed for, in I.A.No.I, under O.39 Rules 1 and 2 CPC?
6. Whether plaintiff is entitled to the relief as prayed for in I.A.No.III, under O.6 Rule 17 R/w 151 CPC?
7. Whether the matter is required to be remanded to the court below, under O.41 Rule 23 of CPC r/w under O.41 Rule 33 of CPC?
8. What Order?
After re-appreciation of the oral and documentary evidence, available on file and after considering the judgment relied upon by the parties, the Lower 12 Appellate Court has held that the appellant is not entitled to any relief as prayed for and also dismissed the I.A.Nos.I, II and III and confirmed the order passed by the Trial Court in the Original Suit. Being aggrieved by the said judgment and decree passed by the Lower Appellate Court as also the judgment and decree passed by the Trial Court, the appellant felt necessitated to present this appeal, seeking appropriate reliefs as stated supra.
8. When this matter had come up for consideration before this Court for Admission on 1st December 2003, this Court framed substantial question of law as follows:
"Whether the finding of the appellate Court that the plaintiff has failed to prove lawful possession of the suit property and denial of relief of injunction in that regard is bad in law and perversely contrary to evidence on record?"13
9. Learned counsel appearing for appellant, at the outset submits that, both the Courts below have committed an error in not appreciating the oral and documentary evidence and other relevant material available on file. He submits that since 1970, appellant has been in peaceful possession and enjoyment of the property and to substantiate the same, he has produced Ex.P1 - agreement of sale; Exs.P2 & P3 - property extracts; Exs.P4 and P5 - Receipt No.97 and general receipt and he also adduced evidence of independent witnesses PWs.1 to 3. In spite of the oral and documentary evidence available on file, both the Courts below have committed error in dismissing the original suit and the appeal on the sole ground that without seeking declaration and injunction, the appellant cannot maintain the suit. The said reasoning given by both the Courts below cannot be sustained and is liable to be set aside and the relief sought for by the appellant is liable to be granted.
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10. As against this, learned counsel appearing for respondent, inter alia, contended and substantiated that the impugned judgment and decree passed by both the Courts below is after due appreciation of the oral and documentary evidence available on file and there is concurrent finding of fact recorded by both the Courts below. Hence, there is no substantial question of law, as such involved in this appeal and hence, interference in the impugned judgment and decree passed by both the Courts below is not called for.
11. After hearing the learned counsel appearing for both parties and after perusal of the impugned judgment and decree passed by both the Courts below, it can be seen that the appellant has filed a suit for bare injunction restraining the respondent or his agents, or servants or anybody from claiming under him from obstructing his peaceful possession and enjoyment of the suit schedule property described in paragraph 2 of the plaint. To substantiate the case regarding title of 15 the property, he placed reliance on the documentary evidence at Ex.P1, agreement of sale executed between the appellant and the deceased Tajusab, who is none other than the grand father of the respondent and on one pretext or the other he has delayed the execution of the sale deed an due to illness he expired. The respondent has denied the alleged agreement for sale and also denied the title and possession and stated that in fact, he is in peaceful possession and enjoyment of the said schedule property. During life time of his grandfather, he succeeded the property and denied saying that the deceased has died issue-less. In spite of granting sufficient time, the appellant has failed to produce any credible document to establish that he is in peaceful possession and enjoyment of the property and doing wahivat of the property. Recently, the appellant has filed the suit for injunction, stating that the respondent is obstructing his peaceful possession and enjoyment of the suit property.
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12. PW1 - Rangappa has stated in his evidence about the alleged sale transaction and also the payment of balance amount to deceased Tajusab by way of instalment, but no documentary evidence is produced by the appellant to show that he paid the balance amount to the said Tajusab by way of instalment. It is in the evidence of PW1 that the attesting witness to the said document has expired and hence, he could not examine attesting witness before the Court. Therefore, Ex.P1, Agreement of sale does not create any right, title or interest over the suit property and it only creates right in favour of the appellant only to get the sale deed registered. Except that, the appellant does not get any right over the suit property. Though the appellant has relied upon the document to establish his possessary title over the property No.133 obviously the property number which is allegedly sold to the appellant under Ex.P1, the same is not mentioned. Hence, Ex.P1 does not pertain to the suit property and even otherwise 17 Ex.P1 does not create any right title or interest over the suit property.
13. The Lower Appellate Court, after critical evaluation of the oral and documentary evidence available on file and the order passed by the Trial Court, has opined that the appellant was not in possession of the suit property, as on the date of filing of the suit and hence, no illegality is committed by the Trial Court in dismissing the suit of the appellant with cost. The said reasoning given by the Lower Appellate Court is just and proper and I do not find any justification to interfere in the well considered judgment and decree passed by the Lower Appellate Court.
14. Having regard to the facts and circumstances of the case, I am of the considered opinion that, in view of concurrent finding of fact recorded by both the Courts below, interference by this Court, in the impugned judgment and decree passed by both the Courts below is uncalled for.
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15. Hence, having regard to the facts and circumstances of the case, I am of the view that there is no substantial question of law involved in this case.
16. For the foregoing reasons, the appeal filed by appellant is liable to be dismissed as devoid of merits. Accordingly, it is dismissed.
Sd/-
JUDGE BMV*