IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH RFA.No.573/2010 (INJ) BETWEEN:
1. SRI FRANCIES, S/O LATE DODDA ANTHONY B., AGED ABOUT 50 YEARS.
2. SRI BORTHALAM, S/O LATE DODDA ANTHONY B, AGED ABOUT 45 YEARS.
3. SRI A. ARALAPPA, S/O LATE CHIKKA ANTHONY B, AGED ABOUT 50 YEARS.
4. SRI A. FRANCIS, S/O LATE CHIKKA ANTHONY B, AGED ABOUT 48 YEARS.
5. SRI A. CHOURI RAJ, S/O LATE AMRUTH RAJ, SINCE DEAD BY LRS 5(a) SAGAYA MARY, W/O LATE A. CHOURI RAJ, AGED ABOUT 45 YEARS.
5(b) ANTHONY ASHA C., D/O LATE A. CHOURI RAJ, AGED ABOUT 25 YEARS.
5(c) PRABHU SAGAR C., S/O LATE A. CHOURI RAJ, AGED ABOUT 23 YEARS.
5(d) ROOPA KALA C., D/O LATE A. CHOURI RAJ, AGED ABOUT 21 YEARS.
6. SRI ANTHONY RAJ, S/O LATE AMRUTHRAJ, AGED 36 YEARS.
ALL ARE RESIDING AT MARIYANA PALYA, ARABIC COLLEGE POST, K.R. PURAM HOBLI, BENGALURU-560 045. ... APPELLANTS (BY SRI K. VIJAYA KUMAR, ADVOCATE) AND:
1. SMT. AROGYAMMA, W/O LATE Y. JOSEPH, AGED ABOUT 55 YEARS.
2. MR. LAWRENCE, S/O LATE Y. JOSEPH, AGED ABOUT 37 YEARS.
3. MR. ANTHONY RAJ @ KANNIGA, S/O LATE Y. JOSEPH, AGED ABOUT 35 YEARS.
4. MR. DANIAL, S/O LATE Y. JOSEPH, AGED ABOUT 25 YEARS.
5. MR. JAMES, S/O. LATE Y. JOSEPH, AGED ABOUT 23 YEARS.
6. MR. ABRAHAM, S/O ABBAIYAPPA.
DIED WITHOUT MARRIAGE HENCE DELETED ALL ARE R/AT MARIYANNA PALYA, ARABIC COLLEGE POST, K.R. PURAM HOBLI, BENGALURU-560 045. ... RESPONDENTS (BY SRI K.S. CHANDRAHASA, ADVOCATE FOR R-1 TO R-5; R-6 IS DELETED VIDE ORDER DATED 30.08.2019) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.03.2010 PASSED IN O.S.NO.1345/2002 ON THE FILE OF THE XXXIX ADDL. CITY CIVIL JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.09.2019, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and decree dated 20.3.2010 passed in O.S.No.1345/2002, on the file of the XXXIX Additional City Civil Judge, Bangalore City, dismissing the suit filed by the plaintiffs.
2. The parties are referred to as per their original rankings before the Court below to avoid the confusion and for the convenience of the Court.
3. The appellants/plaintiffs are the sons of late Dodda Anthony and late Chikka Anthony. Their ancestors had purchased 18 guntas of land in Survey No.23 of Dasarahalli Village, Mariyappana Palya, K.R. Puram Hobli, Bangalore South Taluk under a registered sale deed dated 8.12.1951. After purchasing the above said property, their ancestors had applied for katha and bifurcation of the property. After bifurcation, new number was given as 23/8 only for 15 guntas, by stating that only 15 guntas of land was available in Survey No.23. The plaintiffs have constructed six houses in the above said property and they are living with the family members in the said property. They have taken electricity from KEB and also they are paying taxes to the Dasarahalli Panchayath and voters’ list and other documents are also produced before the Court below in order to establish their right for the above said property.
4. It is the case of the plaintiffs that the defendants, who are the neighbours tried to interfere with the possession of the plaintiffs by encroaching the property in Survey No.23/8 and hence they gave a complaint. The police advised the plaintiffs to file a suit. Accordingly, they filed a suit for permanent injunction against the defendants by alleging that the father of the defendants had filed L.R.F.No.4960/75-76 before the Land Tribunal, which application came to be rejected. In view of the Land Tribunal order, they have no semblance of any right in the property in question. The Court below issued summons against the defendants and they appeared through their counsel and filed the written statement contending that the suit itself is not maintainable, as the same suffers from res judicata. The plaintiffs’ fathers had filed O.S.No.2456/1993. During the pendency of the suit, which was filed for bare injunction, the father of the defendants i.e., Joseph passed away and hence the suit was abated and dismissed.
5. On 23.2.2002, the defendants started to gather the material in order to put up a wall by encroaching the suit schedule property claiming that the suit has been abated and they can put up the wall. It is also contended that the suit suffers from non-joinder of necessary parties since in the earlier suit, there were eight plaintiffs and in the present suit, there are only six plaintiffs.
6. It is the further case of the defendants that Survey No.23/8 measures 1 acre 9 guntas, which belongs to one Mariyappa and he sold 34 guntas of land in favour of his sister Susamma under a registered sale deed dated 6.10.1931. He retained the remaining 15 guntas of land and the same was succeeded by Susamma as a successor. 15 guntas inherited by Susamma is re-numbered as Survey No.23/8A. It is also the case of the defendants that the plaintiffs have mutated the property in M.R.No.1/89-90 for 15 guntas of land. Aggrieved by the said order, the defendants filed an appeal before the Assistant Commissioner and the same was dismissed. Against the said order, they have filed the revision petition before the Deputy Commissioner. It is their further case that the plaintiffs have got the property on southern side of Survey No.23/8. The parties led their evidence before the Court below to substantiate their claim. The Court below after considering the material on record, dismissed the suit by giving illegal findings. Hence, the present appeal.
7. In the appeal memorandum, it is contended that the suit schedule property was purchased under the registered sale deed dated 8.12.1951 from one Anthonamma in a Court auction. Hence, the plaintiffs have succeeded to the property and they are in possession of the suit schedule property and the same factor has not at all considered by the Court below. The Court below has considered only the case of the defendants and has come to the wrong conclusion and dismissed the suit.
8. The case of the defendants is that Survey No.23/8 measures 1 acre 9 guntas, which was the absolute property of Mariyappa, in which 34 guntas of land was sold to his sister Susamma. After the death of Mariyappa, 15 guntas of land has been succeeded by Susamma. In support of that contention, they have not produced any documents. Susamma cannot succeed to the property of Mariyappa because she is not the Class-I heir of Mariyappa. Mariyappa had a son and he succeeds the property and not Susamma, which fact was admitted by the defendants during the cross-examination of D.W.1. The Trial Court has accepted their contention and has given a wrong finding. The defendants have kept quiet for a period of 13 years and filed the appeal before the Assistant Commissioner in R.A.No.134/2002 and the same was rejected. Against the said order, revision petition was filed before the Deputy Commissioner in Revision Petition No.140/2001-02. The Court below failed to consider the voluminous documents produced by the plaintiffs, not only revenue entries, but also tax paid receipts, RTC extracts, katha endorsements, voters lists, election identity cards and certified copy of the deposition in O.S.No.2456/1993. The Trial Court has rejected the case of the plaintiffs solely on the ground that the revenue entries are stayed by the Deputy Commissioner, which is not only illegal, but contrary to the order passed by the Deputy Commissioner.
9. It is contended that it is well settled that even the owner of the property can get back his possession only by resorting to due process of law. The Trial Court has not considered the above said principle while passing the order. Once the settled possession is established, irrespective of title to the property, the Court has to grant the injunction. Exs.P.1 to 40 discloses exclusive possession of the suit schedule property in the hands of the plaintiffs. Further, it is contended that it is not a title suit and suit is filed for permanent injunction to protect the property from others for which voluminous documents are produced which establishes that the property was in possession of the plaintiffs. But the Trial Court failed to appreciate all these facts and erroneously dismissed the suit. Hence, prayed this Court to set aside the judgment and decree of the Trial Court.
10. The learned counsel for the appellants/plaintiffs in his arguments re-iterated the grounds urged in the appeal. The main contention of the appellants’ counsel is that earlier suit in O.S.No.2456/1993 is abated on account of death of the father of the defendants and the same cannot create any res judicata and the said suit is only for bare injunction and any number of suits can be filed based on the recurring cause of action. The Court below failed to take note of the fact that the plaintiffs have constructed the house and they are residing in the suit schedule property and voluminous documents are produced to establish the possession. The Court below failed to take note of the fact that whether the plaintiffs have proved their possession as on the date of the suit and instead gone into with regard to the title and accepted the case of the defendants in the absence of any documentary proof to the extent of claim made by the defendants.
11. The learned counsel for the appellants also submits that he has filed in total four applications under Order 41 Rule 27 of CPC. Application dated 18.6.2012 is filed seeking permission of this Court to permit the plaintiffs to produce the Land Tribunal’s order dated 16.10.1981, Form No.7 dated 27.4.1979, Revenue Appellate Tribunal’s order dated 22.4.1989 and the extract of the register. Application dated 4.9.2013, under the same provision is filed praying this Court to permit the plaintiffs to produce the order of the Assistant Commissioner dated 19.8.2013. Application dated 12.1.2016, under the same provision is filed praying this Court to produce the certified copy of the order dated 1.12.2015 passed by the Deputy Commissioner. The counsel has also filed one more application dated 27.8.2019 under the same provision praying this Court to produce the certified copy of the partition deed dated 14.8.1910, certified copy of the sale deed dated 5.5.1915, certified copy of the sale deed dated 23.3.1948, certified copy of the sale deed dated 26.5.1950, certified copy of the order sheet, plaint, written statement, issues, compromise petition and decree passed in O.S.No.390/1950-51, certified copy of the order sheet and plaint in O.S.No.2456/1993 and original tax paid receipts in respect of suit schedule property.
12. In support of the application, affidavit is sworn to stating as to how the land in Survey No.23 of Mariappana Palya was acquired by their vendor and her predecessors-in-title and he was unable to produce the certified copy of the title deeds of his vendor and her vendors due to oversight and those documents were obtained recently during the pendency of this appeal. Apart from that, they have also paid the taxes in respect of the suit schedule property during the pendency of the appeal and those documents are very much necessary for the effective adjudication of the above appeal since during the pendency of the suit before the Court below there was no dispute with regard to the title in respect of the suit schedule property and the suit in the Court below was for the relief of bare injunction, however in view of subsequent developments and also the revenue dispute between the parties which reached finality on 19.8.2013 and 1.12.2015 before the Assistant Commissioner. Subsequent to the passing of the judgment, the documents produced under the respective applications are very much necessary. The Court below also failed to consider the documents, which were produced earlier and these documents which are produced along with the applications have bearing on the suit. The suit was also filed in O.S.No.390/50-51 and in the said suit they have entered into a compromise and sale deed was executed. All those documents are very much necessary.
13. It is also contended that the defendants contended that total 1 acre 12 guntas in Survey No.23 belonged to one Mariyappa and they have got partitioned their ancestral properties including land in Survey No.23 under the Panchayat Parikath and in the said partition, land measuring 20 guntas fell to the share of Mariyappa as ‘C’ schedule property and the land measuring 23 guntas in Survey No.23 fell to the share of Andralappa. The said Andralappa for his family necessities sold 11½ guntas in Survey No.23 in favour of Urabagalu Chowrappa under the registered sale deed dated 5.5.1915 and he died leaving behind Thomasappa and Jonesappa and they have sold the entire 11½ guntas of land in favour of Jojappa and the said Jojappa has sold the said 11½ guntas of land in favour of his father. Since then the said land is in their possession and enjoyment. In order to arrive at a right decision, these documents are very much necessary. Hence, the plaintiffs may be permitted to file these documents.
14. These applications are resisted by the defendants by filing objections. In the objection statement it is contended that there is no such pleading in the affidavit accompanying the application. Mere production of certain documents at the stage of argument in the appeal, which do not have any relevance to the suit schedule property cannot be entertained. The documents which they have produced before the Court has nothing to do with Mariyappa’s property. 15 guntas retained by Mariyappa was inherited by Susamma. The defendants are in absolute possession of the suit schedule property. The revenue records under Exs.D.12 to 14 shows the transfer of land measuring 34 guntas to the name of Susamma. Further, the revenue records produced at Exs.D.5, 7, 8, 9, 15 and 16 shows they stood in the name of Mariyappa in respect of 15 guntas of land in Survey No.23/8. Hence, the plaintiffs have not made out any ground to invoke the application under Order 41 Rule 27 of CPC and the application filed is only an afterthought. None of the documents help the plaintiffs. Hence, the application is liable to be dismissed.
15. The learned counsel for the respondent – defendants in his argument vehemently contended that the property totally measuring 1 acre 9 guntas belonged to Mariyappa and he sold 34 guntas of land vide sale deed dated 6.10.1931 and he retained remaining 15 guntas. The documents produced by the defendants before the Court establishes the said fact. The plaintiffs have sought the amendment regarding houses in 2008 only and in the cross-examination of P.W.1, he categorically admitted with regard to the revenue entries and the documents now sought to be produced will not help the plaintiffs.
16. The learned counsel for the appellants in support of his arguments relied upon the Division Bench judgment of this Court in the case of NEUROPSYCHIATRY AND CRITICAL CARE HOSPITAL PVT. LTD. v. THE AUTHORIZED OFFICER, BANK OF INDIA, BANGALORE reported in ILR 2016 KAR 1051 with regard to Order 41 Rule 27 of CPC and would contend that the essential requirement is that of the requirement of the Court. The Appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment, but, also, for any other substantial cause.
17. The learned counsel for the appellants also relied upon the judgment of this Court in the case of SUGAPPA AND ANOTHER v. SHIVASHANKERAPPA AND OTHERS reported in ILR 2015 KAR 4851 and contended that in this judgment this Court held that whenever an application is filed under Order 41 Rule 27 of CPC, it is incumbent upon the Court to hear arguments not only on the merits but also on the application. If the Appellate Court intends to dismiss the application, it has to pronounce the judgment on merits. If the Appellate Court intends to allow the application, then it has to allow the application and permit the concerned parties to lead additional evidence and defer the decision on merits.
18. The learned counsel for the appellants also relied upon the judgment of the Hon’ble Apex Court in the case of PRATAPRAI N. KOTHARI v. JOHN BRAGANZA reported in AIR 1999 SC 1666 and contended that dismissal of suit on the ground that defendant has proved his title and on doctrine that possession follows title is improper. It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.
19. The learned counsel relying upon the judgment of the Hon’ble Apex Court in the case of RAME GOWDA (DEAD) BY LRS v. M. VARADAPPA NAIDU (DEAD) BY LRS. AND ANOTHER reported in (2004) 1 SCC 769 contended that settled possession gives right to possession such that even the rightful owner may only recover it by taking recourse to law.
20. The learned counsel for the respondents/defendants relying upon the judgment in the case of DASAPPA v. SEETHARAM reported in ILR 1995 KAR 1683 contended that the plaintiffs are not bound to seek decree for declaration. Decision on question of title, possessory title or title otherwise, ancillary in the proceedings and unless proved not entitled to decree for possession or injunction. Plaintiff to stand on own legs not on weakness of defendant’s case.
21. The learned counsel for the respondents relied upon the judgment of this Court in the case of K. GOPALA REDDY (DECEASED) BY LRS. v. SURYANARAYANA AND OTHERS reported in 2004 (1) KCCR 662, wherein it is held that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff. Mere entries in the revenue records cannot be a basis to declare title of a person in respect of any immovable property. Hence, prayed this Court to dismiss the appeal.
22. Having heard the arguments of the learned counsel for the appellants and the learned counsel for the respondents, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in dismissing the suit and whether it requires interference of this Court?
(ii) Whether the appellants/plaintiffs have made out a ground to invoke Order 41 Rule 27 of CPC to produce the additional documents as additional evidence?
(iii) What order?
Point (ii):
23. Before considering the merits of the case, it is incumbent upon the Court to consider the applications filed by the appellants under Order 41 Rule 27 of CPC for production of additional documents. It has to be noted that the suit was filed in the year 2002 and disposed of in the year 2010. The plaintiffs claimed the relief of bare injunction in respect of the suit schedule property based on the sale deed dated 8.12.1951. They also contended that subsequently they have constructed the houses and they are staying in the suit schedule property and the defendants are interfering with the possession. Hence, sought for permanent injunction. The defendants in the written statement contended that the plaintiffs have purchased 18 guntas of land in respect of Survey No.23 of Dasarahalli Village, Bangalore South Taluk. The land bearing Survey No.23 measuring 18 guntas situated at Dasarahalli Village has nothing to do with the land bearing Survey No.23/8A measuring 15 guntas. On the other hand, contended that the land bearing Survey No.23/8 measuring 1 acre 9 guntas was the absolute property of one Mariyappa and out of 1 acre 9 guntas, 34 guntas was sold in favour of Susamma and the said Mariyappa has retained 15 guntas of land and the same was also succeeded by Susamma after the death of Mariyappa. The land sold in Survey No.23/8 measuring 34 guntas has been re-numbered as Survey No.23/8B. The RTC in respect of sale of 34 guntas of land stand in the name of Susamma in Survey No.23/8A and remaining land was inherited by Susamma and after her death by Joseph. In paragraph No.7 of the written statement, the defendants have contended that the plaintiffs are having their lands on the northern side of Survey No.23/8 measuring 15 guntas. Taking advantage of the poverty and simpleness of the defendants, slowly started to encroach the land of the defendants and to legalise their encroachment on the northern side of the property and the plaintiffs have no case in respect of the suit schedule property and the suit has to be dismissed.
24. Now the question before this Court is with regard to whether the plaintiffs were in lawful possession and enjoyment of the suit schedule property as on the date of the suit and whether the Court below has considered the same in right perspective. Before considering the said fact, there is a dispute between the parties with regard to measurement. It is the claim of the plaintiffs that they have purchased it in the Court auction to the extent of 18 guntas and they relied upon the sale deed of the year 1951. Now the plaintiffs have also produced the certified copy of the order of the said suit, plaint, written statement, compromise decree and also the copy of the sale deed. It is also their case that after purchasing the property, they have constructed the houses and they are in possession of the same. The documents now sought to be produced clinches the issues involved between the parties. Hence, they are necessary documents.
25. It is the contention of the defendants that the documents which have been produced by the plaintiffs have no relevance to the property involved in the matter. On the other hand, it is their contention that the property measuring 1 acre 9 guntas belonged to Mariyappa and the said Mariyappa sold 34 guntas and retained 15 guntas. After the death of Mariyapppa, his sister Susamma succeeded to the remaining extent of 15 guntas. It has to be noted that both the parties have led their evidence before the Court below. In the cross-examination of P.W.1 he categorically admits that they filed the suit earlier in O.S.No.2456/1993 and they are claiming the rights based on Ex.P.14 and the defence set out in the written statement was also put to the witness in his cross-examination and the same was denied. There is no dispute with regard to revenue proceedings had taken place before the Assistant Commissioner and also Special Deputy Commissioner.
26. The defendants were also examined before the Court below. D.W.1 in the cross-examination admits that he has not produced any documents to show that his mother Susamma was having relationship with Mariyappa. A suggestion was put to D.W.1 that the plaintiffs have put up compound wall surrounding their house and the same was denied saying that he is not aware of the same. However, he categorically admits that the plaintiffs are having vacant land surrounding their house. Hence, it is clear that the plaintiffs have constructed the house and residing. But D.W.1 also says that he cannot say that how many houses are there. Further he admits that in Survey No.23/8A, 34 guntas of land was acquired by the BDA for Arkavathi layout. Further, he admits that in the revision petition filed before the Deputy Commissioner, he has mentioned the address mentioned in the cause title of the suit. But denies the plaintiffs are in possession of Survey No.23/8.
27. Having considered the evidence available on record, the documents which have been produced by the plaintiffs before the Court below and the documents produced along with the application under Order 41 Rule 27 of CPC, there is a dispute with regard to 15 guntas of land. The defendants have also admitted that the plaintiffs have constructed the houses and there is vacant land surrounding the house. Though disputes the possession, the plaintiffs have produced voluminous documents – Exs.P.1 to 40 to establish their possession in respect of suit schedule property and the same has not been considered by the Trial Court while considering the matter on merits. It is also important to note that the defendants claims total extent of 1 acre 9 guntas. In order to substantiate that there was 1 acre 9 guntas in Survey No.23, no document is produced. Further, it is important to note that in one breath the defendants claim that property in Survey No.23/8A is re-numbered as 23/8B and land to the extent of 34 guntas was also acquired by the BDA. Both the parties are agitating with regard to extent of 15 guntas of remaining land. Now the plaintiffs have produced the documents from the year 1910 to 1951 contending that total extent of land available to Mariyappa and Mariyappa got only to the extent of 20 guntas in the partition and not to the extent of 1 acre 9 guntas as contended by the defendants and these documents are necessary to decide the issue involved between the parties. The plaintiffs have also produced the documents for having paid the tax in respect of suit schedule property. Furthermore, subsequent to the dismissal of the suit, the regular appeal and revision petition before the revenue authorities are also disposed of and those documents are also produced before the Court. In view of the dispute with regard to the identity of the property and also to the possession and when there is a clear admission on the part of the defendants in paragraph No.7 of the written statement that the plaintiffs are having the land on the northern side of Survey No.23/8 taking advantage of the simplicity of the defendants started to encroach the lands of the defendants. Hence, it is clear that the plaintiffs are having their lands on the northern side of Survey No.23/8. It is also the claim of the plaintiffs that they have purchased the property under the sale deed of the year 1951 and the identity of the property has to be made and also the rival contentions has to be adjudicated and in order to adjudicate all these issues, the documents produced before this Court are very much necessary. Hence, I am of the opinion that the plaintiffs have made out the ground to allow applications filed under Order 41 Rule 27 of CPC.
28. No doubt, there is delay in producing these documents and in the affidavit it is specifically stated by the plaintiffs that these documents are obtained subsequent to the filing of this appeal and the documents produced before the Court are the certified copies of the sale deeds of the year from 1910 onwards. When such being the case, in order to decide the issues involved between the parties and to adjudicate the matter on germane issues between the parties, the plaintiffs have made out the case to allow the application and I answer point No.(ii) in the affirmative.
Point (i):
29. The main contention of the plaintiffs in the appeal is that the Court below failed to take note of the voluminous documents produced before the Court to establish the lawful possession of the plaintiffs in respect of the suit schedule property. The Court below mainly concentrated on the defence of the defendants. On perusal of the judgment of the Trial Court, it is evident that the Court below while discussing issue No.1 discussed with regard to the claim of the plaintiffs based on Ex.P.14 dated 8.12.1951.
30. Per contra, the defendants’ contentions are also discussed in paragraph No.12 of the judgment. The entry made in respect of M.R.No.1/89-90 to change the khatha in favour of the plaintiffs has been questioned. The appeal filed by the defendants in R.A.No.134/2002 was dismissed and revision was filed in Revision Petition No.140/01-02. It has to be noted that the main contention of the plaintiffs is that as on the date of the suit, they had been in possession and Exs.P.1 to 8 from 1989-90 to 2000-01 shows the possession. Admittedly, the regular appeal filed before the Assistant Commissioner and the Special Deputy Commissioner have already been disposed of. He mainly relied upon the order of the Deputy Commissioner that entries made in M.R.No.1/89-90 cannot be relied upon. The fact that the revision petition is also disposed of is not in dispute. The Trial Court also relied upon Ex.D.2 with regard to sale of 34 guntas and came to the conclusion that Mariyappa retained 15 guntas of land taking into recitals of Ex.D.2 and boundaries mentioned. It has to be noted that the Court below failed to take note of the fact that D.W.1 has categorically admitted in the cross-examination that the plaintiffs have constructed the house and surrounding the house there are vacant space and also it is important to note that in paragraph No.7 of the written statement it is contended by the defendants that the plaintiffs who are having land on the northern side of Survey No.23/8 taking the advantage are encroaching upon the property of the defendants. It has to be noted that from the documents produced before the Court below by the plaintiffs, it is clear that the plaintiffs have been in possession of the property. The property which was sold in favour of Susamma to the extent of 34 guntas was acquired by the BDA in terms of Ex.P.64.
31. Now the question remaining is in which property the plaintiffs have been in possession by constructing the house since the defendants have not denied the same. The defendants claim that 15 guntas of land was retained by the vendor and the same has been succeeded by the defendants. In order to succeed to the said property by Susamma, no documents are placed before the Court. Now the additional documents are also produced before the Court with regard to the genesis of the title of the properties and to the extent of properties holding by the vendor of the plaintiffs and so also vendor of the defendants and tax paid receipts are also produced. The Court below failed to take note of the same and came to the conclusion whether the plaintiffs have been in suit schedule property or the defendants are in the suit schedule property. First of all, the property has to be identified and in whose possession the property has been in possession. In order to decide the issue between the parties with regard to granting of permanent injunction, the Court below has to give a definite finding who are in possession of the suit schedule property and no such efforts have been made by the Court below. The Court below comes to the conclusion that entry made in respect of the plaintiffs in M.R.No.1/89-90 has been stayed by the Special Deputy Commissioner. It has to be noted that in one breath defendants claim right in respect of Survey No.23/8A and in another breath claim right in respect of Survey No.23/8B. The very specific claim of the plaintiffs is that the property which he has purchased is Survey No.23 and subsequently the same has been re-assigned as No.23/8 and not sub-numbers 23/8A and B. When such being the case, the Court below ought to have given the definite finding whether the plaintiffs have been in possession or not. Instead of that, the Court relied upon the judgment reported in AIR 2004 (1) KCCR 662 and referring the judgment comes to the conclusion that the said judgment is aptly applicable to the case on hand and there is dispute with regard to title and possession. Under these circumstances, the plaintiffs have not established the possession over the suit schedule property. The Court below failed to take note of the voluminous documents produced by the plaintiffs and also admission made by D.W.1 in the cross-examination regarding possession. This Court also considered the additional material placed before this Court. Hence, it requires to set aside the judgment and to remand the matter to the Court below for fresh consideration by giving an opportunity to both the parties to adduce their evidence and give definite finding with regard to identity of the property and possession and give definite finding with regard to the documents produced by the plaintiffs to establish the possession, which has not been considered. Hence, I answer point No.(i) in the affirmative.
Point No.(iii):
32. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The impugned judgment and decree dated 20.3.2010 passed in O.S.No.1345/2002, is set aside.
(iii) The matter is remanded back to the Trial Court to consider the matter afresh by giving an opportunity to both the parties to adduce their evidence.
(iv) The applications filed under Order 41 Rule 27 of CPC are allowed.
(v) The office is directed to transmit the documents produced along with Order 41 Rule 27 of CPC to the Trial Court.
(vi) The Court below is directed to give an opportunity to both the parties to adduce their evidence and to dispose of the matter within six months from today, in accordance with law.
(vii) The parties are directed to appear before the Court below on 9.12.2019 without expecting any separate notice from the Court below.
(viii) The parties are directed to assist the Court below to dispose of the matter within the time stipulated and not to seek unnecessary adjournment since it is the matter of the year 2002.
Sd/- JUDGE MD