IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Regular Second Appeal No. 834 of 2008 BETWEEN:
PUTTARAJAMMA AGED ABOUT 65 YEARS W/O S N KUMARA SWAMY OLD SOSALE VILLAGE & HOBLI T NARASIPURA TALUK MYSURU DISTRICT-571 123.
(BY SRI. R. RAJKUMAR, ADV. FOR SRI. N. JAI PRAKASH RAO, ADV.) AND:
S M CHELKUBERA HINDU, MAJOR S/O SRI S N MADAIAH R/AT NO 112/1A 5TH MAIN, 7TH CROSS HOTEL PRABHA UPSTAIRS CHAMARAJAPETE BENGALURU-560 018.
(BY SMT. M. N. VIJAYA, ADV.) …APPELLANT ……RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.08.2007 PASSED IN R A No.31 OF 2001 ON THE FILE OF THE CIVIL JUDGE, (SR.DN.), T.NARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.06.1994 PASSED IN O.S. No. 204 OF 1992 ON THE FILE OF THE MUNSIFF AND J.M.F.C., T.NARASIPURA.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the judgment and decree passed the Munsiff at T.Narasipura in O.S.No.204/1992 dated 27.06.1994, confirmed by the judgment and decree passed in R.A.No.31/2001 by the Senior Civil Judge (Sr.Dn.), T.Narasipura, the appellant has filed this second appeal.
2. Brief facts of the case are as under:
Plaintiff/appellant has filed a suit for injunction alleging that the land bearing Sy.No.336 measuring 3 acres 35 guntas situated at Benakanahally Village is a thoti inam land and the mother of the plaintiff was one of the chakras performing the service of chakras and she was in possession of 19½ guntas in lieu of being a chakra. The said land is the subject-matter of the suit comprised in ‘A’ schedule property and the defendant’s husband is one Kumaraswamy and his mother was one Vaddagallamma. She was also one of the chakras and she was in possession to the extent of 19½ guntas comprised in ‘B’ schedule property. The said Vaddagallamma died about 12 years back and plaintiff submits that his mother died about 2 years back. During her lifetime she was in possession and enjoyment of schedule ‘A’ property and after her death, the plaintiff came in possession of the schedule ‘A’ property. After her death, the plaintiff and his brothers S.M.Murthy and S.M.Barkuche are in possession and enjoyment of the said land. The defendant’s husband is physically disabled and the defendant, on his instigation, is trying to interfere with the plaintiff’s peaceful possession and enjoyment of schedule ‘A’ property.
Defendant appeared and filed written statement denying that the mother of the plaintiff was not in possession of the suit schedule property and she was never performing chakra and her husband was a government employee and she was residing with him in various places like Mysore, Bengaluru, Kolar, etc., during his service. After the retirement of her husband, she was residing at Bengaluru, permanently. The defendant’s mother-in-law Late Vaddagallamma was in possession and enjoyment of the land to the extent of 38 guntas in Sy.No.336 situated at Benakanahally Village. The defendant denied that the mother of the plaintiff was in possession and enjoyment of the schedule ‘A’ property and has further denied that after her death, plaintiff and his brothers are in possession of the schedule ‘A’ property and further submitted that schedule ‘A’ and ‘B’ properties are in possession of the defendant and it is also pleaded that the mother of the plaintiff namely Siddamma has stated before the Revenue Inspector of T.Narasipura Taluk on 23.05.1981, that she was never cultivating the said land mentioned in schedule ‘A’ to the plaint and another statement was recorded before the Assistant Commissioner, Nanjangud on 18.11.1972, so far as the land in question are concerned. The mother-in-law of defendant was in possession of the suit schedule property during her lifetime and after her death, defendant is in possession of both schedule ‘A’ and ‘B’ properties. On these grounds he sought for dismissal of the suit.
The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issue:
1. Whether the plaintiff has proved his lawful possession and enjoyment of the plaint ‘A’ schedule property ?
2. Whether the interference is true ?
3. What order and what decree ?
Plaintiff examined herself as PW-1 and two witnesses as PW-2 & PW-3 and got marked documents as Exs.P1 to P5. Defendant examined herself as DW-1 and two witnesses as DW-2 & DW-3 and got marked documents as Exs.D1 to D8. The trial Court answered issue No.1 in affirmative holding that the plaintiff has proved his lawful possession and enjoyment of schedule ‘A’ property and also answered issue No.2 in affirmative holding that the defendant is interfering with the peaceful possession and enjoyment of schedule ‘A’ property and decreed the suit granting injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff over the schedule ‘A’ property.
The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.31/2001. The Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the respondent-appellant proves that he is in lawful possession of suit schedule property and defendant is interfering in possession and enjoyment of plaint schedule property ?
2. Whether the appellant-defendant proves that he is to be permitted to lead additional evidence i.e., to produce documents ?
3. Whether the appellant/defendant proves that the judgment and decree of the trial Court are perverse and unsustainable and interference of this court is required ?
4. What order or decree ?
The Appellate Court, after re-appreciating the oral and documentary evidence, held that the plaintiff is in lawful possession of plaint ‘A’ schedule property and defendant is interfering with the peaceful possession and enjoyment of plaint ‘A’ schedule property and further during the pendency of the appeal, defendant has filed an application under Order 41 Rule 27 of CPC for production of additional documents. The Appellate Court allowed the application and permitted the defendant to produce the additional documents and held that the trial Court has rightly decreed the suit of the plaintiff and consequently dismissed the appeal filed by the defendant, confirming the judgment and decree passed by the trial Court.
The defendant, aggrieved by the judgment and decree passed by the courts below, has filed this second appeal.
This court has admitted the appeal on the following substantial question of law :
Whether on the facts, plaintiff ought to have filed a suit for declaration of title and injunction?
3. Heard learned counsel for the parties and perused the records.
4. The case of the plaintiff is that he is in possession of the plaint ‘A’ schedule property bearing survey No.336 measuring 3 acres 35 guntas situated at Benakanahally Village is a thoti ‘Inam’ land and the plaintiff’s mother-Siddamma was performing the duties of ‘Chakras’ and she was in possession of 19½ guntas in plaint ‘A’ Schedule property. Defendant’s mother-in- law by name Voddagallamma was also performing the duties of chakras and was in possession of land to an extent of 19½ guntas in Schedule ‘B’ property and after her death defendant came in possession of ‘B’ schedule property. The husband of defendant is physically handicapped and on his instigation the defendant interfered with the peaceful possession and enjoyment of the suit ‘A’ schedule property.
5. The plaintiff has deposed in her evidence that his mother-Siddamma was in possession of the land to an extent of 19 ½ guntas of plaint ‘A’ Schedule property and after the death, plaintiff and his brothers are in possession of the said land. He has further deposed that earlier in the RTC extracts, the name of the mother of plaintiff was shown to the extent of 19 ½ guntas as per Exs.P.1 to P.5. Wherein, in Ex.P.5 it has been shown that the property is in dispute and in fact, no records have been produced by either of the parties to show that in the year 1991-92 there was a dispute between the parties. Only when the name of mother of the plaintiff has been removed from the RTC, dispute arose between the plaintiff and the defendant.
6. Plaintiff filed a suit for injunction on the ground that after the death of his mother he came in possession of the schedule ‘A’ property and in support of his case he has examined two witnesses PW-2 and PW-3. PW-2 deposed that schedule ‘A’ property belongs to Siddamma and she was in possession of the schedule ‘A’ property. PW-2 admits that in the year 1990 survey was done in respect of Sy.No.336. He denies that the suit schedule property does not belong to plaintiff and he further denies that suit schedule property belongs to the defendant. Further PW-3 was examined and he denies in the course of cross-examination that the suit schedule property was in possession of the defendant. The defendant in support of her defence has examined herself DW-1 wherein she has deposed that she is not entirely in possession of suit schedule ‘A’ and ‘B’ properties and mother of the plaintiff has given a statement before the Authorities that she is not in possession of the suit ‘A’ schedule property and admits in the course of cross-examination that Government has not re-granted the land to the defendant. She further admits that Siddamma, Kallaiah and Mallaiah were cultivating the land in Sy. No.336 and denies that she is not in possession to an extent of 39 guntas of land. She further denies that plaintiff is in possession of suit schedule ‘A’ property. She denies that she is in possession in respect of ‘B’ schedule property but DW-2 has deposed that entire land of 39 guntas is a chakragrama, and stated that plaintiff is in possession of 19½ guntas. In the course of cross-examination he pleads ignorance that the mother of the plaintiff was doing the work of chakra and he admits that defendant is his sister and he denies that defendant was in possession of land to an extent of 19½ guntas.
7. PW-3 has reiterated the evidence of PW-2. But in the course of cross-examination he states that he does not know the survey number of the suit schedule property. He denies how many persons are doing chakra work. He deposed that he do not know the plaintiff and his mother. He denies that earlier the suit ‘A’ property was in possession of Siddamma and after her death, plaintiff was in possession of suit ‘A’ schedule property.
8. The entries in the RTC i.e., Exs.P1 to P4 goes to show that the property was standing in the name of Siddamma i.e., the mother of the plaintiff to the extent of 19½ guntas. The said entries also disclose that Vaddagalamma, mother-in-law of the defendant was in possession of 19½ guntas of land. Defendant has contended that she is in possession of 39 guntas of land. But she has not produced any records to substantiate the same.
9. The learned counsel for the appellant submits that the mother of the plaintiff has given a statement before the Revenue Inspector as per Ex.D3, but on perusal of Ex.D3, I do not find anything to show that she was in possession of suit ‘A’ schedule property and further the survey sketch i.e., Ex.D4 does not help the defendant to show that she was in possession of the land to an extent of 38 guntas. The defendant has produced pass book and also produced Ex.D1 to show that an application was made to the Assistant Commissioner for re-grant of the land under Mysore Village Offices Abolition Act 1961, to show that he has applied for re-grant of the land to the extent of 38 guntas in Sy.No.336. But, during the pendency of the appeal, the defendant has filed an application for production of documents. The First Appellate Court allowed the application and permitted the defendant to produce the documents. Documents produced by the defendant are two re-grant orders. The first order is dated 08.04.1994. Entire 38 guntas of land was granted in favour of the defendant, but subsequently the Tahsildar has passed another order on 19.08.2004, in HOA No.1/03-04 granting 19½ guntas in favour of the plaintiff and 19½ guntas of land in favour of mother-in-law of the defendant. The said order has not been challenged by the defendant. The said document produced by the defendant supports all the contention of the plaintiff and also by perusal of Exs.P1 to P4, wherein the mother of plaintiff was shown to be in possession of Sy. No.336 to an extent of 19½ guntas of land i.e., suit ‘A’ schedule property and the mother-in-
law of the defendant was in possession to an extent of 19½ guntas of land in ‘B’ schedule property and the said fact has been confirmed by the revenue officials by passing re-grant order dated 19.08.2004, and the said document is a public document and that the Appellate Court accepting the said document held that the mother of the plaintiff was in possession of suit ‘A’ schedule property and after her death, the plaintiff came in possession of the schedule ‘A’ property and defendant is now in possession of ‘B’ schedule property after the death of her mother-in-law.
10. Defendant in the written statement has not denied regarding ownership of the plaintiff over the suit schedule property. When the defendant has not denied the ownership over the suit schedule property there was no necessity for the plaintiff to seek such a relief for declaration. The Hon’ble Apex court in the case of reported in Anathula Sudhakar vs. P. Buchi Reddy (dead) by Lrs. & Ors. reported in (2008) 4 SCC 594, held that the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.
11. As per the said judgment of the Hon’ble Apex Court, if the plaintiff is in lawful possession of the suit schedule property and such possession is interfered or threatened by the defendant, then a suit for an injunction simpliciter will lie. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. In the present case, defendant has not denied the title of the plaintiff over the suit schedule property. Plaintiff as well as the defendant are claiming to be in possession of the property based on re-grant. Subsequently, the revenue authority has passed an order in the year 2004 wherein re-grant of 19½ guntas in favour of the plaintiff and 19¼ guntas in favour of the mother-in-law of the defendant, was made. The said order has attained finality and in the present case when the title has not been denied, mere suit for injunction is maintainable in view of the law laid down in the aforesaid judgment, as both the courts have held that the plaintiff is in possession of suit ‘A’ schedule property and defendant is in possession of suit ‘B’ schedule property.
12. As discussed above, as the 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. In the present case, plaintiff has already produced RTC extract to show that prior to filing of suit, the name of plaintiff’s mother appears in the RTC extract. The presumption has to be drawn of its continuity. In the present facts and circumstances of the case, suit for bare injunction is maintainable. I would like to rely upon the judgment of the Hon'ble Apex Court in the case of AMBIKA PRASAD THAKUR & ORS. VS. RAM EKBAL RAI (DEAD) BY LRS. & ORS., reported in AIR 1966 SC 605, wherein it is held that a thing or a state of this is shown to be in existence, an inference of its continuity within a reasonably proximate time, both forwards and backwards, may sometimes be drawn. The presumption of future continuance is noticed in illustration (d) of Section 114 of the Indian Evidence Act. The rule that the presumption of continuance may operate retrospectively has been recognized in India. This is rule of evidence by which one can presume continuity of things backwards. The presumption of continuity weakens with the passage of time. How far the presumption may be drawn, both backwards and forwards, depends upon the nature of the thing and the surrounding. Hence, the substantial question of law is answered against the defendant 13. In view of the aforesaid facts and circumstances, I proceed to pass the following:
Order The appeal is dismissed.
Sd/- Judge RD