IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.36/2015 BETWEEN:
1. K.N.SUMATHA AGED ABOUT 38 YEARS W/O B.R.UMASHANKARA ARADHYA REP. BY HER P.A.HOLDER B.R.RENUKARADHYA R/AT MARIGUDI STREET BELUR VILLAGE, KOTHATHI HOBLI MANDYA TALUK – 571 404 2. B.R.UMASHANKARA ARADHYA AGED ABOUT 55 YEARS S/O RENUKARADHYA R/AT MARIGUDI STREET BELUR VILLAGE, KOTHATHI HOBLI MANDYA TALUK – 571 404 …APPELLANTS (BY SRI C.R.SUBRAMANYA, ADVOCATE) AND:
SHANKAR AGED ABOUT 52 YEARS S/O DARIGOWDANA DEVAIAH R/O MARIGUDI STREET BELUR VILLAGE, KOTHATHI HOBLI MANDYA TALUK – 571 404 …RESPONDENT (BY SRI VEERESHA K., ADVOCATE FOR SRI H.B.CHANDRASHEKAR, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:22.09.2014 PASSED IN R.A.NO.57/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.03.2013 PASSED IN O.S.NO.149/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MANDYA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal of the plaintiffs arises out of the judgment and decree dated 22.09.2014 in Regular Appeal No.57/2013 passed by the Principal Senior Civil Judge & CJM., Mandya.
2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the plaintiffs and confirmed the judgment and decree dated 05.03.2013 in O.S.No.149/2008 passed by the Prl.Civil Judge, Mandya. By the said judgment and decree, the Trial Court dismissed the suit of the plaintiffs for permanent injunction.
3. Appellants were the plaintiffs and respondent was the defendant before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.
4. The subject matter of the suit was the property bearing khata No.541/123/627 measuring 18 feet x 45 feet situated at Belur village, Kothathi Hobli, Mandya Taluk. Out of that, dispute is with regard to an open space measuring 3 ft x 45 ft, which according to the plaintiffs, formed part of eastern part of their property and lying on the western side of the defendant’s property.
5. Plaintiff purchased khata No.541/123/627 of Belur village measuring 18 feet x 45 feet under Ex.P2 the sale deed from one Chennaiah. Plaintiffs contended that earlier there was a building and demolishing that for constructing new building, they laid foundation into 13½ x 42 feet in the center and left passage of 3 feet x 45 feet on the eastern side. They further contended that defendant started to interfere with the possession and enjoyment of the said passage of 3 feet x 45 feet.
6. Defendant contended that when plaintiffs started to put up a new construction, they have put up the construction covering the entire site and they have not left any passage on the eastern side of the property. He claimed that the said passage is part of his property and now plaintiffs are claiming that to be their property.
7. On the basis of such pleadings, the Trial Court framed the following issues:
“1. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference from the defendant?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
8. The parties adduced evidence. On behalf of the plaintiffs, their Power of Attorney Holder was examined as PW-1 and another villager was examined as PW-2 and Exs.P1 to P5 were marked. Defendant was examined as DW-1 and on his behalf, Exs.D1 to D6 were marked.
9. The trial court after hearing the parties dismissed the suit holding that plaintiffs have failed to prove their lawful possession over the disputed passage and that forms part of their property. The trial court further held that in view of the challenge to the title of the plaintiffs to disputed area, the plaintiffs should have sought declaration of title and the suit for bare injunction was not maintainable and thus dismissed the suit.
10. Plaintiffs challenged the said judgment and decree of the trial court before the first appellate court in R.A.No.57/2013.
11. The first appellate court though differed with the finding of the trial court regarding maintainability of the suit held that plaintiffs have failed to prove that they had left 3 feet x 45 feet passage in their site as alleged by them. The first appellate court held that the plaintiffs failed to prove that they had put up construction leaving 3 x 45 feet passage between their property and property of the defendant by examining any person from the Grama Panchayat. The first appellate court further held that Ex.P5 the endorsement issued by the Grama Panchayat in favour of the plaintiffs was subsequent to Ex.D7 the endorsement issued by the same Panchayat in favour of the defendant stating that defendant has not encroached the property and though they were mutually inconsistent, no evidence was adduced to prove Ex.P5.
12. In the first appeal, the plaintiffs challenged the judgment and decree of the trial court on the ground that the trial court should have allowed their application for issue of commission. For that, first appellate court held that as per the records, said application was filed at highly belated stage, the said order of dismissal of the application was not challenged and thereby that attained finality.
13. Sri.C.R.Subramanya, learned Counsel for the appellants – plaintiffs seeks to assail the judgments and decrees of the courts below on the following grounds:
(i) The defendant did not dispute the ownership of the property and the purchase under Ex.P2;
(ii) When the dispute was in the nature of boundary dispute, the trial court ought to have issued commission for clarifying that. The first appellate court should have upheld that ground.
(iii) The first appellate court dismissed the suit only on the ground that grant of permanent injunction is a discretionary relief and therefore, it does not interfere with the discretion exercised by the trial court. However, the first appellate court did not examine whether the trial court judiciously exercised the discretion.
14. According to the appellants’ Counsel, following substantial questions of law arise in the case:
“1. Whether the lower appellate court was justified in dismissing the appeal having given a finding that the plaintiffs have proved their case but rejecting the appeal on the ground that the trial court in its discretionary power dismissed the suit and hence the same cannot be interfered with?
2. Whether the lower appellate court was justified in dismissing the appeal without examining whether the trial court exercised its discretionary power judiciously or not?
15. Per contra, Sri.Veeresha.K., learned Counsel appearing on behalf of Sri.H.B.Chandrashekar for the respondent – defendant seeks to support the impugned judgments and decrees of the courts below on the following grounds:
(i) When the plaintiffs state that they have left open space on eastern side in their site, burden was on them to prove the said fact;
(ii) Plaintiffs did not produce any building licence nor they examined the Grama Panchayat officials to prove Ex.P5;
(iii) In the absence of plaintiffs adducing any such evidence, it was not mandatory for the court to issue commission for collecting such evidence. Moreover, order of dismissal of application under Order XXVI Rule 19 CPC was not challenged and the first appellate court rightly rejected the same.
16. This being a second appeal under Section 100 CPC can be admitted for hearing, only if it is shown that the matter involves a substantial question of law for consideration.
17. What is the substantial question of law and when High Court can interfere with the judgments of the courts below were dealt with by the Hon’ble Supreme Court in the following judgments:
1. Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. - AIR 2001 SC 965;
2. Gurnam Singh (Dead) by LRs & Others –vs- Lehna Singh (Dead) by LRs. AIR 2019 SC 1441.
18. In Santosh Hazari’s case referred to supra, it was held that on the questions of facts, the first appellate court is the last court unless it is shown that the judgment of the courts below suffer perversity. It was further held that, merely because finding of the first appellate court on question of law is erroneous, that does not entitle the High Court to interfere with the same unless it is shown that such question of law is substantial question of law.
19. In Gurnam Singh’s case referred to supra, the Hon’ble Supreme Court held that in a second appeal under Section 100 of the CPC, the High Court cannot substitute its own opinion to that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on in-admissible evidence or no evidence.”
(emphasis supplied) 20. In the light of the above judgments, this Court has to see whether the substantial questions of law proposed by the appellants’ Counsel constitute substantial questions of law. This court also has to see whether the judgments and decrees of the courts below are contrary to any mandatory provisions of the applicable law, judicial precedents of the Hon’ble Supreme Court or based on inadmissible evidence or no evidence.
21. Sections 100 to 103 of the Evidence Act clearly state that when a person comes to the court setting up certain facts, burden of proving those facts lies upon him. Only if he discharges his burden, then onus shifts to the other side.
22. It is true that defendant did not dispute that plaintiffs have purchased the property measuring 18 ft x 45 ft in khata No.541/123/627 under Ex.P12. It was the specific case of the plaintiffs that there was a thatched shed, they demolished that and put up foundation leaving open space of 3 feet x 45 feet, which formed eastern part of their site to use as passage and that was lying on the western side of the defendant’s property and defendant is trying to encroach that. Whereas defendant contended that plaintiffs have not left any such open space and they have put up the foundation covering his entire site.
23. Under such circumstances, the burden was on the plaintiffs to prove that they have put up the foundation only on some part of their site. To prove that, they did not produce any building licence issued by the Grama Panchayat or any local authority.
24. They relied only on Ex.P5 the endorsement allegedly issued by the Grama Panchayat, Belur. The said endorsement was purportedly issued on 29.07.2008. The defendant also produced Ex.D7 an endorsement dated 02.06.2008 purportedly issued by the Secretary, Belur Grama Panchayat to the effect that plaintiffs have laid foundation on the entire 18 feet x 45 feet.
25. Exs.P5 and D7 were mutually contradictory. Ex.D7 was issued earlier in point of time. Plaintiffs did not even examine the author of Ex.P5 to prove the document. Having regard to these circumstances, the first appellate court held that plaintiffs have failed to discharge their burden.
26. The first appellate court did not dismiss the appeal on the sole ground of the relief being discretionary one, but dismissed the appeal appreciating the oral and documentary evidence as aforesaid and holding that the plaintiffs have failed to discharge their burden.
27. So far as dismissal of the application of the plaintiffs for issue of commission by the trial court, it is settled law that commission cannot be issued for collection of the evidence. Plaintiffs have to discharge their burden first. It was contended that without challenging the said order, the appellants can make that as a ground of appeal.
28. Section 105 CPC no doubt provides for making such ground. But reading of Section 105 CPC makes it clear that such ground can be taken only, if they show that such order of dismissal has led to the error, defect or irregularity in the judgment of the trial court.
29. In this case, dismissal of the application itself has not led to any error or irregularity in the judgments of the courts below. As the plaintiffs failed to prove their case by leading cogent evidence, courts below dismissed the suit and appeal.
30. Thus, it is clear that dismissal of the suit by the courts below was not contrary to any applicable law, judicial precedents or based on inadmissible or no evidence. This Court does not find any substantial question of law in the matter to admit the appeal. Therefore, the appeal is dismissed with costs. In view of disposal of the appeal, pending I.A.
stood disposed of.
KNM/-
Sd/- JUDGE