Karnataka High Court
Sri Hemla Naika vs Smt. Rathnamma on 10 September, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC:37364
RSA No. 39 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 39 OF 2013 (INJ)
BETWEEN
SRI. HEMLA NAIKA,
SON OF MANGALYANAIKA,
AGEDABOUT 55 YEARS,
AGRICULTURIST,
R/O DEVABALU VILLAGE,
SHIMOGA TALUK,
SHIMOGA DISTRICT-577 416.
...APPELLANT
(BY SRI. S.VPRAKASH., ADVOCATE)
AND
1. SMT. RATHNAMMA,
WIFE OF THOTAPPA,
Digitally AGED ABOUT 49 YERS,
signed by HOUSE MAKER,
PRAKASH N
Location: 2. SRI THOTAPPA,
HIGH SON OF KARIBASAPPA,
COURT OF AGED ABOUT54 YEARS,
KARNATAKA
BOTH ARE R/O DEVABALU VILLAGE,
SHIMOGA TALUK,
SHIMOGA DISTRICT-577 416.
...RESPONDENTS
(BY SRI. G.S.BALAGANGADHAR., FOR C/RESPONDENTS)
-2-
NC: 2024:KHC:37364
RSA No. 39 of 2013
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED:01.10.2012
PASSED BY THE ADDL. DISTRICT JDUGE, SHIMOGA IN
R.A.No.34/2005 AND RESTORE THE JUDGMENT AND DECREE DATED
24.06.1997 PASSEDBY THE PRL. CIVIL JUDGE (Jr.Dn) SHIMOGA IN
O.S.No.773/1990, ETC.
THIS RSA COMING ON FOR ORDERS AND HAVING BEEN
RESERVED FOR ORDERS ON 19.06.2024, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV JUDGMENT
1. The Appellant is before this Court seeking for the following reliefs:
a. Call for records in O.S.No.773/90 on the file of Prl. Civil Judge (Junior Division) shimoga and in R.A.No.34/2005 on the file of court of Addl. District Judge, Shimoga.
b. Set aside the judgment and decree dated 01.10.2012 passed by the Addl. District Judge, Shimoga in R.A.No.34/2005 and restore the judgment and decree dated 24.06.1997 passed by the Prl. Civil Judge (Jr.Dn), Shimoga in O.S.No.773/1990.
c. Pass such other suitable judgment and decree as this Hon'ble Court deems it appropriate in the admitted facts and circumstances of the case, to meet the ends of justice.
d. Award costs throughout.
2. The appellant who is the plaintiff in OS No.773/1990 is before this Court challenging the judgment passed -3- NC: 2024:KHC:37364 RSA No. 39 of 2013 in Regular Appeal in RA No.34/2005 setting aside the decree passed in OS No.773/1990. The suit in OS No.773/1990 was filed seeking a permanent injunction restraining the defendants, their men, agents and servants from interfering with the peaceful possession and cultivation by the plaintiff with the suit scheduled land.
3. The plaintiff claims that the suit schedule property had been granted to the plaintiff under darkasth by the Tahsildar, Shimoga Taluk in DAR No.440/1973- 74 and saguvali chit has been issued in favour of the plaintiff, ever since the grant, the plaintiff has been in peaceful possession and cultivation of the property.
4. Defendant No.1 is a member of the Konagavalli Mandal Panchayath, the defendant No.2 being her husband they have no right, title or interest over the property of the plaintiff that they sought to interfere with the possession of the plaintiff with an intention and motive to knock off the valuable land of the -4- NC: 2024:KHC:37364 RSA No. 39 of 2013 plaintiff. Claiming that the defendants are powerful persons in the village and they are likely to take the law into their hands, the petitioner had approached the trial Court for an order of injunction as indicated above.
5. The defendant No.1 filed a written statement denying that the land had been granted under darkasth to the plaintiff and further denied that the plaintiff was in possession of the property. It is claimed that the defendants who are in possession of the suit schedule property, the plaintiff is not in possession nor cultivating the said property. The suit schedule property being Government land, the defendants cultivating the same in an unauthorized manner for over ten years. The defendants had submitted an application to Tahsildar, Shivamogga for regularization of their possession. The defendants have been paid TT of Rs.450 to Tahsildar, Shivamogga. The said application is still under process, a spot Mahazar had been conducted which -5- NC: 2024:KHC:37364 RSA No. 39 of 2013 report would indicate that the plaintiff is not in possession of the suit property and it was defendants who are in possession. The alleged saguvali chit said to be issued in favour of the plaintiff has not been found nor it has been placed on record. In that view of the matter, the Deputy Tahsildar and the Revenue Inspector had passed an order directed the Surveyor of land to measure the area in dispute and find out where the land belonging to the plaintiff is situate. During such enquiry the plaintiff had himself admitted that he has not in possession of the suit schedule property, it was the defendants who are in possession thereof and he had made a request to the Revenue Officials to obtain possession and handed it over to him.
6. In furtherance thereof, the Tahsildar being satisfied that defendants are in possession of the property directed the concerned police authorities to give protection to the defendants, which was so given. The defendants who are cultivating the land and the -6- NC: 2024:KHC:37364 RSA No. 39 of 2013 plaintiff is now seeking to usurp the land belonging to the defendants. On that basis, it was prayed for the suit to be dismissed.
7. The trial Court formulated the following issues for consideration;
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the schedule property on the date of the suit?
2. Whether the plaintiff proves the alleged unlawful interference to his peaceful possession and enjoyment of the schedule property by the defendants?
3. Whether the plaintiff is entitled to the relief of perpetual injunction?
4. What decree or order?
8. On evidence being completed and arguments being heard, the trial Court passed a judgment on 24.06.1997, decreeing the suit and restraining the defendants, their men, agents and servants from interfering with the plaintiff's peaceful possession on their land. While doing so, the trial Court took into consideration that the Katha had been made out in the name of the plaintiff, mutation extract also in the -7- NC: 2024:KHC:37364 RSA No. 39 of 2013 name of the plaintiff, the plaintiff was in actual physical possession and causing cultivation of the properties. The witnesses of the Plaintiff have in unequivocal terms admitted to the plaintiff being in cultivation of 4 acres land for several years. The plaintiff's had led the evidence PW-2, 3 and 4 who had confirmed the continuous possession of the plaintiff.
9. The trial Court on the basis of Ex.P1 to P4 came to a conclusion that the plaintiff's cultivating the suit schedule property continuously for over 15 years and thus came to a conclusion that the plaintiff is in the owner in possession, cultivation, enjoyment of the suit schedule property. The trial Court also came to a conclusion that the defendants were interfering with the possession of the plaintiff and on that basis, decreeing the suit restrained the defendants from interfering with the plaintiff's peaceful possession on land.
-8-
NC: 2024:KHC:37364 RSA No. 39 of 2013
10. The defendants filed an appeal in R.A. No.34/2005 which came to be allowed by the First Appellate Court by its judgment date 1.10.2012. Prior thereto, the Regular Appeal which had been filed was dismissed on 22.09.2008 resulting in filing of RSA No.1606/2009, wherein the said dismissal order was set aside and the matter remanded for fresh consideration.
11. The First Appellate Court after remand took into consideration the enquiry report of the Revenue Inspector wherein the plaintiff had stated that the defendants are in actual possession of the suit property. By referring to Ex.D-5, the First Appellate Court came to a conclusion that there is an admission on part of the plaintiff that he was not put in possession of the suit schedule property and that the possession is with the defendants. The plaintiff not being in possession, defendants being in possession, the plaintiff seeking for delivery of possession before the revenue authorities, the First -9- NC: 2024:KHC:37364 RSA No. 39 of 2013 Appellate Court came to a conclusion that the suit for injunction simplicitor was not maintainable.
12. The First Appellate Court took into consideration the evidence led by DW-2-the Revenue Inspector who had conducted a mahazar of the property. When the plaintiff admitted before him that he had no possession and requested him to get the possession from the defendants. The First Appellate Court on reexamination of the evidence came to a conclusion that the claim of the plaintiff being in respect of Sy.No.40, the said survey number having been sub- divided and phodied under Sy.No.40/1 which is the claim made in the suit. There is no document which has been produced by the plaintiff to establish that he was in possession of the property covered under Sy.No.40/1. There is no documentary evidence which has been placed on record to indicate that the plaintiff was in possession of said land. In terms of Ex.P-1, the grant certificate that was relied upon by the plaintiff, the plaintiff was called upon to cultivate
- 10 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 the land within two years of the grant, which would imply that as on that date the plaintiff was not in cultivation of the property, no document has been placed on record of the plaintiff having cultivated the property. The First Appellate Court came to a conclusion that the plaintiff was neither in possession nor in cultivation of the suit schedule property.
13. On that basis the First Appellate Court came to a conclusion that the land having been claimed to be granted in the year 1975, the sketch which has been produced had been prepared in the year 1988 therefore the sketch at Ex.D-6 is not one which was prepared at the time of the grant. There is no document which has been placed on record to indicate that the plaintiff was in possession of the property without the plaintiff being in possession of the property, no relief of injunction can be granted. Even in terms of Ex.D-6, the First Appellate Court came to a conclusion that the exact area of the land in Sy.No.40 of which the plaintiff was in possession
- 11 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 has not been shown. Sy.No.40 being a large area, the extent claimed by the plaintiff being smaller one, it was required for the plaintiff to establish the exact location and extent. It is in that background that the First Appellate Court came to a conclusion that there was no document or material to show the existence of the suit property within the suit boundaries. The First Appellate Court also observed that the plaintiff did not lead the evidence of the neighbours of the plaintiff in as much as the said neighbours were the best evidence to establish the possession of the plaintiff.
14. Apart from not leading evidence of the neighbours, the First Appellate Court had observed that there are no documents which have been placed on records, which would indicate that the said neighbours were in fact the owners in possession of the adjacent land and on both the accounts, it came to a conclusion that the plaintiff had not established that the plaintiff was in possession of the suit schedule property and
- 12 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 on that basis came to a conclusion that the trial Court had mechanically accepted the oral evidence of the plaintiff's witnesses contrary to the documents of record.
15. Much emphasis has been laid by the First Appellate Court as regards the spot inspection report submitted by the Revenue Inspector, who having visited the property on 30.5.1990, recorded the Mahazar, examined the possession of the disputed land and had further recorded that since three years prior to 17.5.1990, there is a dispute between the plaintiff and defendant about the possession of the disputed property and defendant No.1 was forcefully cultivating the disputed property. The plaintiff himself having admitted before the Revenue Officers that it is defendant who is in possession, the question of an injunction being granted to a person not in possession would not arise and as such, the First Appellate Court dismissed the suit with cost. It
- 13 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 is challenging the same, that the plaintiff is before this Court.
16. The submission of Sri.S.V. Prakash., the counsel for the appellant is that;
16.1. The judgment of the First Appellate Court is contrary to law and facts. The trial Court had properly considered the documents and facts on record and came to a conclusion that the land was granted to the plaintiff and the plaintiff was in possession of the property. Merely because defendants had sought for regularization of their possession of 4 acres of land in Sy.No.40/1, would not mean that the plaintiff was not in possession of the suit schedule property.
16.2. Admittedly, the defendants are not the owners of any land, there is no title vested in the defendants with respect to the suit schedule properties. If at all the contention of the defendants was as regards the identity and
- 14 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 boundary of the property, this aspect ought to have been considered on the basis of the documents on record and not merely on the basis of the statements made by the defendants.
16.3. The defendants themselves having admitted that the total extent of the land in Sy.No.40 is 14 acres 6 guntas. The claim of the defendant being for 4 acres was only a portion of the land in Sy.No.40 and not on the entire land, where the First Appellate Court has committed a grave error in dismissing the suit filed by the plaintiff without properly ascertaining the identity and boundary of the suit schedule properties. 16.4. The First Appellate Court ought to have appreciated that the title of the property was with the plaintiff, the defendant had only furnished an application for regularization of his unauthorized position. On comparative merit, it is the plaintiff who had a better right, title,
- 15 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 interest over the suit schedule property than the defendants. The illegal occupation of the defendants not having been regularized, they not being the owners of the property, the First Appellate Court ought to have granted an order of injunction against the defendants. 16.5. The fact that the plaintiff had produced documents to establish the grant in its favour, the question of Phodi or otherwise in the said land on a date of the Phodi etc. would be irrelevant. The grant of the land in favour of the plaintiff would presuppose and also establish that the plaintiff was in possession of the suit schedule property entitling the plaintiff to an order of injunction against the defendants. 16.6. The First Appellate Court had unnecessarily cast the burden of Phodi of the property on the plaintiff when the same was irrelevant. Whether the plaintiff had carried on cultivation within two years or not was not material in so far as
- 16 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 the defendants are concerned. If at all, there is violation of the plaintiff of any of the conditions, it is for the State to have taken action against the plaintiff and not for the defendant to usurp the property or seek to take over possession of the property of the plaintiff. The survey sketch having been prepared by a Surveyor ought to have been given due credence and not discussed in a manner done by the First Appellate Court.
16.7. Lastly, he submits that the First Appellate Court has given credence to a statement alleged to have been made by the plaintiff to the Revenue Inspector admitting that he is not in possession. For the said document to be considered by the First Appellate Court, it was required that this document was confronted to the plaintiff and an opportunity provided to the plaintiff to establish the circumstances in which such a statement was made, which would have
- 17 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 indicated that real and true facts without an opportunity for explanation had been given to the plaintiff. The said statement reported by third party could not have been taken into consideration by the First Appellate Court. 16.8. Sri.S.V.Prakash., relies on the decision of Hon'ble Apex Court in Udham Singh vs. Ram Singh and another1, more particularly para 9 thereof which is reproduced hereunder for easy reference:
"9.The above averments made in the plaint, as indicated earlier has been taken as admission of the plaintiff, however, this question needs to be looked into. First of all, we find that the averment made in the previous plaint does not lead to a conclusion that the defendants were admitted as tenants though no doubt the word "theka" has been used. But the expression theka can be used in many ways e.g. it may be "theka" for labour. It required to be explained or elaborated. We also find that the earlier suit was dismissed in default. No written statement was filed, nor were issues framed. Hence, obviously no trial took place. No doubt admission is the best evidence against the person who is said to have made it, but it can always be explained. One whose previous statement is to be treated as an admission or it is sought to be used, he has to be confronted with such a statement. We find that though the document, namely, the 1 (2007) 15 SCC 529
- 18 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 plaint in the earlier suit, has been brought on record but no request seems to have been made for summoning the plaintiff. Learned counsel for the appellant has placed reliance on the decision of this Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil. Our attention has been drawn to the observations made in paragraph 17 of the Report to the effect that the admission has to be clear, unambiguous and proved conclusively. It is a question which needs to be considered as to what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross-examination to tender his explanation and clear the point on the question of admission. In our view, the High Court was again wrong in attaching much weight to the averments made in the earlier plaint and coming to the conclusion that the defendants were admitted to be the tenants by the plaintiff on the land in question."
16.9. By relying on the Udham Singh case, he submits that an admission is required to be explained and when the admission is used against the particular person, he has to be confronted with such a statement without confronting the plaintiff any admission made cannot be made used against the plaintiff. 16.10. He relies upon the decision of the Hon'ble Apex Court in Shikharchand Jain vs. Digamber
- 19 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 Jain Praband Karini Sabha and ors.2 more particular para 5 and 6 thereof, which are reproduced hereunder for easy reference:
"5. It is now to be seen whether the first appellate court's finding really falls within the grip of Section 100(1)(c) of the Code of Civil Procedure. In his written statement Shikharchand has admitted Smt Rajrani's ownership of the land. But he has pleaded that he has become the owner of the land on account of the adverse possession for more than 12 years from 1937. The burden of proving the acquisition of ownership by adverse possession lay on him. The Khasra entries from 1937-38 to 1941-42 and 1943-44 to 1951-52 are all in favour of Smt Rajrani. They show that she was in possession over the land during those years. Khasra is a record of right according to Section 45(2) of the Central Provinces Land Revenue Act, 1917. Section 80(3) of that Act provides that entries in a record of right shall be presumed to be correct unless the contrary is shown. This provision raises a presumption of correctness of the aforesaid Khasra entries. The burden of proving adverse possession accordingly was a heavy one. The judgment of the first appellate court shows that it has not kept in mind this aspect while examining the evidence. In the first step, it has proceeded to assess the evidence adduced by Shikharchand. After discussing that evidence, it has recorded a finding that he was in possession. Thereafter, in the second step, it has proceeded to take the view that no reliance can be placed on Khasra entries. It has summed up the discussion thus:
"All these witnesses (of Shikharchand) have stated that the possession of the fields was with Shikharchand. Their statements are further supported by documentary evidence and, therefore, there is no room for any doubt that the possession was not with Shikharchand. It is true 2 AIR 1974 SC 1178
- 20 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 that in Patwari papers Mst Rajrani's name appears and that the dues were deposited on behalf of Mst Rajrani. But in my opinion the entries in Khasra and the fact that the receipts were issued in the name of Mst Rajrani would not by themselves establish the fact of possession. It is settled law that entries in Khasra have only presumptive value, and it is difficult to conclude from these entries that the possession was with Mst Rajrani. The falsity of the entries in Khasra is clear from the fact that from 1937 to 1947 the name of Mst Rajrani appeared in the Khasra Panchsala and yet Mst Rajrani's admission in D/1 shows that she was not in possession. This fact is enough to show that no reliance could be placed on the Khasra entries.
6. As already pointed out, this passage shows that the first appellate court proceeded in the reverse order. Moreover, the Khasra entries have been discarded solely for the reason that Smt Rajrani has admitted in Ex. D/1 that she was not in possession. But Ex. D/1 has been entirely misunderstood by the first appellate court. Exhibit D/1 is a copy of the plaint filed by Smt Rajrani in a suit for profits against Shikharchand. Shikharchand was Lambardar of the mahal in which the Patti belonging to Smt Rajrani was situate. In the first paragraph of her plaint she has mentioned this fact. Thereafter she went on to say that she was entitled "to get her share of profits from the defendant". In para 2 she has said:
"That the defendant is in possession of all the Sir and khudkasht land of her full ... patti of the village ... that as the defendant did not render an account, nor paid anything inspite of repeated demands and a notice by the plaintiff, he is liable to pay interest by way of damages at the rate of 8 per cent per month" and the amount detailed in the schedule of accounts attached to the plaint. In the schedule she has shown the amount of rent recovered by Shikharchand from the tenants. She has also shown the estimated income from sir and khudkasht land belonging to her. After making
- 21 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 certain deductions, a total amount of Rs 318/7/- was claimed from Shikharchand. The suit was filed in July 1942. The suit for profits related to a period between 1938-39 and 1940-41. We do not think that para 2 of the plaint can be read in the manner it has been read by the first appellate court. It was a suit for profits by a co-sharer against the Lambardar. It was not a suit for mesne profits which an owner of land may claim from a trespasser. It was really a suit for accounts from the Lambardar. So it is not possible to spell out from para 2 on admission from Smt Rajrani that Shikharchand was in adverse possession over her sir land. Further, Shikharchand did not file a copy of his own written statement, nor a copy of the judgment in the suit. If he had denied his possession over her sir land, the suit for profits from sir land would have been dismissed. If he had pleaded adverse possession over her sir, then also her suit for profits from sir land would have been dismissed. If, on the other hand, the suit for profits of sir land were decreed, it would follow that Shikharchand was held to be in permissive possession and not in adverse possession. In the result, we are of opinion that the first appellate court was wholly wrong in discarding the Khasra entries on the solitary statement in para 2 of her plaint. The High Court could, therefore, interfere with its finding under Section 100(1)(c)."
16.11. By relying on Shikharchand Jain case, his submission is that the document of the title being in the name of the plaintiff, the defendant claiming to be in possession it is for the defendant to establish the possession in categorical terms. The defendant not having done so, the First Appellate Court ought not to
- 22 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 have come to a conclusion that defendant was in possession of the property.
16.12. He relies upon the decision of the Hon'ble Delhi High Court in Sh.Parmod Kumar Jain vs. Mr.Satish Jain & ors.3 more particularly para 67 and 68 thereof, which are reproduced hereunder for easy reference:
"67. Whether or not there was any 'admission' by plaintiff in the proceedings before the ld. DRT and what is the effect of such 'admission', if any, would have to be considered by this court at the time of final adjudication of the matter. Similarly, the effect of any suppression of material facts made by plaintiff at the time of filing of the plaint, shall be considered by this Court at the time of final adjudication of the matter. These questions, as raised on behalf of defendant No.1 with respect to admission or estoppel, would be required to be proved by way of leading evidence and cannot be decided in such a summary manner, especially when as per the law of the land, only the statements as made in the plaint will have to be considered, and not the defence as projected in the written statement.
68. Moreover, it has been held in a catena of judgments that a party is entitled to explain a previous „admission‟. Further, in addition to explaining an 'admission', the 'admission' has to be put to the party during evidence by confronting him and the witness then has a further chance to explain the same during cross-examination. This process of confrontation etc. can only be during the course of evidence. Thus, Supreme Court in 3 CS (OS) 182/2017 dated 3.8.2023
- 23 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 the case of Udham Singh Vs. Ram Singh and Another, held as follows:
"9. ......... One whose previous statement is to be treated as an admission or it is sought to be used, he has to be confronted with such a statement. We find that though the document, namely, the plaint in the earlier suit, has been brought on record but no request seems to have been made for summoning the plaintiff. Learned counsel for the appellant has placed reliance on the decision of this Court in Sita Ram Bhau Patil v. Ramchandra Nago Patil [(1977) 2 SCC 49]. Our attention has been drawn to the observations made in paragraph 17 of the Report to the effect that the admission has to be clear, unambiguous and proved conclusively. It is a question which needs to be considered as to what weight is to be attached to an admission and for that purpose it is necessary to find out as to whether it is clear, unambiguous and a relevant piece of evidence, and further it is proved in accordance with the provisions of the Evidence Act. It would be appropriate that an opportunity is given to the person under cross- examination to tender his explanation and clear the point on the question of admission. In our view, the High Court was again wrong in attaching much weight to the averments made in the earlier plaint and coming to the conclusion that the defendants were admitted to be the tenants by the plaintiff on the land in question."
16.13. By relying on Sh.Parmod Kumar Jain case, he submits that admission made in any other proceedings cannot be used in another proceedings without any opportunity of explanation being made available to the party
- 24 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 against whom such an admission is proposed to be used.
17. Sri.G.S.Balagangadhar., learned counsel appearing for respondent would submit that;
17.1. He would support the judgment passed by the First Appellate Court and reiterated that the First Appellate Court has taken into consideration all the relevant factors. The First Appellate Court has come to a categorical conclusion that the plaintiff was not in possession of the suit schedule property, that being the symphony for grant of an order of injunction the plaintiff having failed to establish that he was in possession, the question of injunction being granted would not arise. 17.2. His submission is that, merely because there is a grant order in favour of the plaintiff, would not amount to plaintiff being in possession. The said aspect of possession on the basis of a presumption on account of the issue of the
- 25 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 grant is a rebuttable presumption. The defendants have successfully rebutted the said presumption by having placed on record the application filed by the respondents for regularizing the possession of the defendants by claiming to be in possession of the property. 17.3. The Revenue Inspector having visited the property in furtherance of the said application filed by the defendants has recorded the statement of the plaintiff, wherein the plaintiff has also admitted that the defendants are in possession. These facts would be sufficient enough for the First appellate Court to over come the judgment of the trial Court and as such the judgment of the First Appellate Court is proper and correct, requiring no interference. 17.4. He again reiterates the finding of the First Appellate Court as regards the Phodi of the property, the exact location and extent of possession of the defendant and submit these
- 26 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 aspects not having been established by the plaintiff, no injunction would have been granted by the trial Court and as such the First Appellate Court has rightly dismissed the suit. 17.5. He relies upon a decision of Hon'ble Apex Court in Ram Bhajan & Another vs. Abdul Rahman & Ors.,4 more particularly para 8 thereof, which is reproduced hereunder for easy reference:
"8.It was further urged in the memo of appeal that the defendants had not pleaded the case which they tried to develop further. The reading of the pleadings indicate that while the plaintiffs claimed ownership and possession over the bager the same was the claim of the defendants also and they had indicated what were the acts of possession. If anything more was stated, I find from the appellate judgment, that the same were rightly rejected and in fact the defendants' case was also not accepted by the first appellate Court. The next point agitated in this appeal was that there was not an iota of evidence in support of the defendants ownership and possession of the bagar in dispute and, it was submitted, the Court below should not have allowed the first appeal. This, in my view cannot be raised as a ground of appeal as, in fact, the Court below had discarded the defence case also, but he has rightly put the burden on the plaintiffs and has rightly refused to give any benefit to the plaintiffs for the weakness of the defence case. Another point on which the appeal was pressed was that upon the finding of 4 AIR 1997 Allahabad 17
- 27 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 the trial Court that the plaintiffs were owners in possession of the suit property, the first appellate Court could not have reversed the decision on irrelevant and extraneous considerations. It is not disputed by the parties that the case of the parties depended on oral evidence alone. The trial Court gave its| own appreciation of the facts and Ihe appellate Court, it is clear from its judgment, had given good reasons for discarding Ihe evidence of the plaintiffs. He had copiously quoted from the statements of these witnesses to come to the conclusion that they were unreliable on the point of proving the possession of the plaintiffs on the suit property. It was finally contended that the lower Court allowed the appeal on points which were not urged at all. A reading of the judgment at page 2 indicates that it was urged before Ihe first appellate Court that the view taken by the munsif was not correct, and that it was not proved that the bagar belonged to defendants now, 1 and 2. The first appellate Court had discussed both these points and discarded the second point to come to conclusion that the defendants also could not prove title or possession, but it was of the view, on the basis of the evidence, that the plaintiffs too had failed to prove title and possession and thereby failed to discharge their onus. The scope of the second appeal under Section 100, CPC is very limited. The High Court is not expected to reappraise the facts to come to a conclusion other than the one arrived ai by either of Courts below. Even if this Court felt that on facts the case of a particular party is proved, it is not open for it to substitute its views on facts in place of the views of the lower Courts unless the view expressed by the learned Court was tainted with perversity. The Court of the first appeal had a right to appreciate the facts in its own way and good reasons for his arriving at a particular decision have been given. There is no averment before me that the Court had overlooked any important piece of evidence or had misread the evidence in such a manner that his conclusion becomes tainted. It would be unwarranted for this High Court to enter into the
- 28 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 facts in the absence of any perversity in the approach of the Court below."
17.6. By relying on Ram Bhajan case, he submits that the trial Court had firstly appreciated the facts and evidence on record. The First Appellate Court had reappreciated the evidence and come to a different finding.
17.7. His submission is that under Section 100 of the CPC, the scope of Second Appeal is limited and the Second Appellate Court cannot reappreciate the facts and evidence. The reasoning of the First Appellate Court to discard the finding of the trial court being proper and correct. There is no scope for this Court to re-appreciate the appreciation made by the First Appellate Court of the evidence.
17.8. He relies upon the decision of the Hon'ble Apex Court in Anathula Sudhakar vs. P.Buchi Reddy (dead) by Lrs. & Ors.,5 more 5 (2008) 4 SCC 594
- 29 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 particularly para 21 thereof, which is reproduced hereunder for easy reference;
"21.To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive
- 30 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. "
17.9. By relying to Anathula Sudhakar case, his submission is that when there is a cloud which had been cast on the title of the property of the plaintiff and when there is a claim made that the plaintiff was not in possession, a suit for declaration of title was required to be filed.
17.10. In this case, there is an admission made by the plaintiff himself that he is not in possession.
The suit for bare injunction was not permissible. The plaintiff had to file a suit
- 31 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 seeking for declaration of title and possession that not having been done the suit not being appropriately framed has been rightly dismissed by the first appellate court.
18. Heard Sri.S.V.Prakash., learned counsel for the appellant and Sri.G.S.Balagangadhar., learned counsel for respondent. Perused papers.
19. This Court had admitted the above appeal on 3.2.2020 for answering the following substantial question of law:
"Whether the First Appellate Court failed to notice that Ex.P1 was long prior to an application filed by the defendant seeking grant of occupancy rights and therefore fell in error in reversing the judgment and decree of the Trial Court?"
20. Ex.P.1 in the present case is a grant certificate granted on 18.9.1994 with respect to Sy.No.40. There is also a reference made to Sy.No.40/1 in the said Ex.P.1. This certificate having been issued way back on 29.4.1971, the suit was filed in the year 1990. The suit being one for injunction simplictor, it is required for the plaintiff to have establish that he
- 32 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 is in possession of the suit schedule property as on the date on which the suit was filed. From the year 1971 till the year 1990, there is no document which has been placed by the plaintiff to establish that he is in possession of the property.
21. In fact, the Defendants produced a document of the year 1990 being a report submitted by the Revenue Inspector being Ex.D.2 wherein the plaintiff have stated that defendants No.1 and 2 are in possession of the property. The defense of the plaintiff to that being Defendant No.1 has misused and abused her position as the President of the Panchayat.
22. The defendants have also produced a challan for having made payment of T.T. in respect of the application filed by them for regularization of the land which they claim to be an unauthorized possession. A demand for payment of the T.T. would arise during the process of consideration of the application for regularization and after coming to a
- 33 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 prima facie conclusion that the applicant is in possession of the property.
23. The fact that such a demand has been raised by the State and the payment has been made by the defendant taken into consideration alongwith Ex.D.2 would indicate that the plaintiff was not in possession of the property. The plaintiff has not produced any contemporary document at the time of filing of the suit to indicate that he is in possession of the property.
24. If that be so, it was but required for the plaintiff to have filed a comprehensive suit for declaration, title and possession of property and not a bare suit for injunction as held by the Hon'ble Apex Court in P.Buchi Reddy's case. There being a cloud on the title of the plaintiff as regards suit schedule property, a bare suit for injunction was not maintainable.
25. Insofar as the contention of Sri.S.V.Prakash that an opportunity had to be provided to the plaintiff to explain the admission, I am of the considered opinion
- 34 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 that in the present case the statement at Ex.D.2 was produced by the defendant in the present suit itself and formed a part of the record of the present suit. A reference to the said statement was also made in the written statement filed by the defendant. It was therefore always available for the plaintiff to have explained the same in the evidence led by the plaintiff, as also questioned the defendant witnesses during the course of cross-examination on the same. The plaintiff not having chosen to do either, cannot now contended that there is no opportunity provided to the plaintiff to answer the alleged admission made in terms of the Ex.D.2. The plaintiff in my considered opinion had all and every opportunity to explain the Ex.D.2 which he has failed to do. Thus, the decision relied upon by the by Sri.S.V.Prakash in Udham Singh vs. Ram Singh and another, Shikharchand Jain vs. Digamber Jain Praband Karini Sabha and ors and Sh.Parmod Kumar
- 35 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 Jain vs. Mr.Satish Jain & ors in this regard would also not enure to the benefit of the plaintiff.
26. Whether the plaintiff has been granted the land in the year 1971 and/or the defendants are in unauthorised occupation of the said land granted to the plaintiff are matters which cannot be considered in a suit for bare injunction, the plaintiff not having sought for declaration of title and/or possession. The decision of the Hon'ble Apex Court in P.Buchi Reddy's case is clear and categorical as regards the reliefs which have to be sought for by a plaintiff when there is a cloud on the title and/or when the plaintiff is allegedly not in possession. None of those reliefs having been sought for, there being a statement made by the plaintiff in terms of Ex.D.2 i.e., the defendants who are in possession, no document having been produced from the date of grant till the date of suit indicating possession of the plaintiff. These aspects have rightly considered by
- 36 -
NC: 2024:KHC:37364 RSA No. 39 of 2013 the First Appellate Court and the suit filed by the plaintiff has rightly in dismissed.
27. In that view of the matter, I answer the substantial question raised by this Court at the time of admission by holding that the First Appellate Court has taken into consideration Ex.P.1 as also all the other documents and has rightly taken into consideration the fact that Ex.D.1 application had been filed for regularization which was contemporaries to the date of filing of the suit and these aspects having been rightly considered by the First Appellate Court, the First Appellate Court has committed no error in reversing the judgment of the trial Court. The appeal, therefore stands dismissed.
Sd/-
(SURAJ GOVINDARAJ) JUDGE List No.: 19 Sl No.: 2