Karnataka High Court
N Kenchamma W/O C Narayanappa vs B H Gowramma W/O B Ramaiah on 18 June, 2012
Author: C.R.Kumaraswamy
Bench: C.R. Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR.JUSTICE C.R. KUMARASWAMY
R.S.A. NO.2370 OF 2005
BETWEEN:
N KENCHAMMA,
W/O C NARAYANAPPA,
AGED ABOUT 49 YEARS,
R/OF 2ND CROSS,
BASAVESHWARA NAGAR,
HIRIYUR TOWN,
CHITRADURGA DISTRICT-577501. ...APPELLANT
(BY SRI B M SIDDAPPA, ADV.,)
AND:
B H GOWRAMMA,
W/O B RAMAIAH,
AGED ABOUT 55 YEARS,
R/OF VEDAVATHI NAGAR,
HIRIYUR TOWN,
CHITRADURGA DISTRICT-577501. ...RESPONDENT
(BY SRI G M NATARAJ, ADV., FOR
SRI R V JAYAPRAKASH & MANJUNATH UDUPA, ADV.,)
****
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 17.9.2005 PASSED IN R.A.NO.16/2005 ON
THE FILE OF THE ADDL. DIST. JUDGE, FTC,
CHITRADURGA, ALLOWING THE APPEAL AND DISMISSING
THE JUDGMENT AND DECREE DT. 17.12.99 PASSED IN
O.S. NO.71/91 ON THE FILE OF THE ADDL. CIVIL JUDGE
(JR. DN.), HIRIYUR.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 17.9.2005 passed in R.A. No.16/2005 on the file of the Addl. District Judge, FTC, Chitradurga, allowing the appeal and dismissing the judgment and decree dated 17.12.1999 passed in O.S No.71/91 on the file of the Addl. Civil Judge (Jr. Dn.), Hiriyur.
2. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent.
3. The parties will be referred with reference to the status in the trial court.
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4. Plaintiff is the owner in possession and enjoyment of the schedule property (site bearing katha No.3024 and assessment No.2081) measuring East to West 30 feet and North to South 20 feet in Hosababbur village in Sy.No.38 bearing site No.76 of Hiriyur town. Measurement of the site granted by the Block Development Officer to the plaintiff is 30 feet x 20 feet. About a year back the Town Municipal Council, Hiriyur, extended his limits and thereby the suit schedule property has been included in the Town Municipal Council. It is stated in the plaint that on 26.02.1991 defendant tried to dig the foundation over the schedule property. Therefore the plaintiff sought for a permanent injunction restraining the defendant from interfering with the peaceful possession.
5. The case of the defendant in the trial court is denial of the case of the plaintiff. Boundaries mentioned in the plaint schedule are totally incorrect. Schedule furnished in the plaint is incorrect. Defendant is paying revenue to the 4 municipality. She has put construction over the schedule property.
6. The trial court has framed the following issues:
(1) Whether the plaintiff proves that she was in peaceful possession and enjoyment of the suit property as on the date of suit?
(2) Whether the plaintiff proves that the defendant unnecessarily trying to obstruct and interfere with the possession of the suit property?
(3) Whether the defendant proves that she has perfected her title over the suit property by way of "Adverse possession"?
(4) Whether the plaintiff is entitled for any reliefs as sought for?
(5) What order or decree?
7. The trial court has answered the above mentioned issues as under:
Issue Nos.1, 2 and 4 - In the affirmative, Issue No.3 - In the negative and 5 Issue No.5 - as per the final order.
8. The trial court has observed that the plaintiff in order to prove her possession as on the date of suit she has produced katha extract, assessment extract for the year 1990-91 which are marked as EXs.P1 and P2. These documents disclose that the name of the plaintiff has been entered in the records in the office of the Block Development Officer, Hiriyur Taluk. Plaintiff has also produced EX.P6 assessment list for the year 1988-89. EX.P4 is the endorsement issued by the Municipality of Hiriyur dated 8.8.1990 which discloses that the katha of the schedule property was ordered to be mutated on the basis of EX.P3 - Hakku Patra issued by the Block Development Officer of Hiriyur taluk. EX.P7 is the kandayam receipt for having paid by the plaintiff to the Town Municipal Council.
9. The trial court has also observed that defendant is not claiming the suit schedule property. According to the defendant the suit schedule property was allotted in favour of 6 Basanna but the site No.76 measuring 20' x 30' was allotted to plaintiff. Till today Basanna has not obstructed plaintiff for construction of the house in the suit property. The evidence of DW.1 coupled with her pleadings that the suit schedule site was not granted in favour of the plaintiff and she is in possession and enjoyment of the suit schedule property. The defendant has also taken up the contention that she has perfected her title over the schedule property by way of adverse possession. It is also the case of the defendant that schedule property was allotted in her favour by the Block Development Officer, but the grant certificate was misplaced.
10. After appreciating the evidence of plaintiff, documentary evidence and also the evidence of the defendants, the trial court came to a conclusion that the suit of the plaintiff has to be decreed and granted permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
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11. Feeling aggrieved by the same the defendant preferred a Regular Appeal before the Court of Additional District Judge, Fast Track Court, Chitradurga.
12. The lower appellate court has formulated the following points:
(1) Whether the plaintiff/respondent proves the suit schedule property is in her actual physical possession?
(2) Whether there is cause of action as pleaded by the plaintiff?
(3) Whether the judgment of the trial court requires interference?
(4) What order?
13. The above points were answered as under:
Point No.1 - In the negative Point No.2 - In the negative Point No.3 - In the affirmative and 8 Point No.4 - As per the final order.
14. It is observed by the lower appellate court that the plaintiff has to establish clear title to show that the possession can follow. It is in the circumstances, evidence tendered by the defendant creates a cloud on the title of the plaintiff. Therefore the plaintiff has failed to establish the possession over the suit schedule property. The defendant has not come to the court seeking any relief. The lower appellate court has observed at para 16 of the judgment that plaintiff has failed to establish that on the date of filing the suit she was in actual possession over the suit schedule property. Therefore the injunctive relief cannot be granted. Therefore the appeal was allowed. Suit of the plaintiff was dismissed.
15. Feeling aggrieved by the same the plaintiff has approached this court by way of second appeal.
16. This court has framed the following substantial questions of law.
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(1) Whether the lower appellate court was justified in reversing the judgement and decree of the trial court?
(2) Whether prima facie Exs.D1 and D3 would relate to some other property?
17. It is the contention of the learned counsel for the appellant that the lower appellate court erred in reversing the finding recorded by the trial court without assigning any proper reason. The lower appellate court erred in disbelieving EX.P2 - grant certificate issued by the Block Development Officer. The first appellate court proceeded on the footing that the Block Development Officer, who has no authority to grant certificate in favour of the appellant solely on the ground that on the date of issuing the certificate the area in which the schedule property situated was included in the municipal limits. He further submits that this approach of the appellate court is bad in law. The lower appellate court mainly relied on EX.D1 - endorsement issued by the Executive Officer of Hiriyur Taluk Panchayath on 27.03.1997. 10 The lower appellate court has misread the evidence of the parties. The learned counsel for the appellant further submits that the lower appellate court relying on Exs.D1 and D3 and recording the finding against the plaintiff is not proper.
18. Learned counsel for the respondent relies on the decision in the case of ANTHULA SUDHAKAR .Vs. P BUCHI REDDY (DEAD) BY LRS. AND OTHERS reported in 2008 (4) SCC 594.
Attention of this court was drawn to para 13.3 and 14.
"13.3 - Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.11
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and 12 convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
19. In this case the competent officer i.e., the Block Development Officer has issued EX.P3 grant certificate on the basis of Government Order dated 13.5.1972 bearing No.15/ DRH. The grant certificate was issued in favour of N Kenchamma on 22nd February, 1988. Survey Number was 38. Site No. is 76, measurement of the site is 30 feet x 20 feet. Bounded by -
North - Property belonging to Lokanna, South - Site No.77, West - Road and East - Ramadas's house.
13Based on this document she has got property mutated in the Hiriyur Municipal office and in respect of that the municipal council has also issued demand register. She has also paid tax. All these documents clearly indicates that she is in possession of the suit schedule property.
20. It is the case of the respondent/defendant that the suit schedule property is allotted to Basanna and also there is a cloud in respect of the suit schedule property. Therefore the plaintiff has to file a suit for declaration seeking for consequential reliefs. In the instant case it is a clear case of the plaintiff that she is the owner of the property in question and grant certificate is granted in favour of the plaintiff and she is in possession and enjoyment of the suit schedule property. It is the contention of the learned counsel for the appellant that EX.D3 is not a title deed. It is only a list of properties. The Town Municipal, Hiriyur relying on the grant certificate have changed the katha in favour of the plaintiff and also collected the tax in respect of the suit schedule 14 property. Such being the case it is difficult to believe EX.D3 as to how the property stands in the name of Basanna. Basanna is not a party to this suit.
21. It is not the case of the defendant that she is in possession of the property in question. DW.1 Gowramma has admitted in her evidence that she has no right over the suit schedule property and it is not in her possession. The trial court relying on the vague evidence of DW.2 wherein it is stated that the property in question is in the name of Basanna though the grant certificate issued to Basanna has not been produced nor marked by the Chief Executive Officer, Taluk Panchayath, Hiriyur. He clearly admits that EX.P3 at the time of issuance of reference in the Panchayath office. The lower appellate court has misdirected itself on the point of law dealing with the question of possession. It has overlooked or ignored the material document i.e., grant certificate. The appellate court has not properly appreciated the evidence on record, finding recorded by the appellate 15 Court based on conjectures and surmises and not based on the proper appreciation of the evidence and materials placed on record. In that view of the matter, the finding recorded by the lower appellate court has to be set aside. The conclusion reached by the trial court is sound and proper.
22. It is stated in EX.D1 that the Chief Executive Officer has stated that according to the records maintained in their office the grant certificate has not been granted in favour of N Kenchamma. EX.D3 is the list of properties maintained in the Taluk Executive Officer, Taluk Municipality, Hiriyur. The Chief Executive Officer has given an endorsement mentioning that as per their records no grant certificate was issued in favour of N Kenchamma. On the other hand the Town Municipal Council, Taluk Panchayath, Hiriyur have accepted the grant certificate issued in favour of the plaintiff and has mutated in their respective records besides they have also issued a demand register and collected tax even though EX.D1 issued by the Chief Executive Officer points out that 16 as per their records no grant certificate was issued in favour of N Kenchamma. The Taluk Executive Officer is not the competent authority to speak about the grant certificate issued by the Block Development Officer. In that view of the matter, the lower appellate Court has erred in reversing the judgment and decree of the trial Court.
23. In the result, I pass the following:
ORDER
1. This regular second appeal is allowed.
2. The judgment and decree of the lower appellate court is set aside.
3. Judgment and decree of the trial court is restored.
4. Parties to bear their own costs.
SD/-
JUDGE YKL