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VIMALA B.SHETTY versus LAXMI

High Court of Kerala

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VIMALA B.SHETTY v. LAXMI - SA No. 843 of 1993(A) [2007] RD-KL 15723 (14 August 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 843 of 1993(A)

1. VIMALA B.SHETTY
... Petitioner

Vs

1. LAXMI
... Respondent

For Petitioner :SRI.M.C.SEN, PARVATHY A MENON

For Respondent :SRI.K.G.GOWRISHANKAR RAI

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :14/08/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.

S.A .NO. 843 OF 1993 Dated 14th August 2007

J U D G M E N T

Third defendant in O.S.262 of 1986 on the file of Munsiff court, Kasargod is the appellant. Respondents 1 to 5 are the plaintiffs and sixth respondent the first defendant in the suit. Second defendant died before filing of the second appeal. Sixth respondent died subsequent to the filing of the appeal. Respondents 13 to 23 were impleaded as legal of heirs of sixth respondent. On the death of first respondent, respondents 2 to 5 were recorded as legal heirs. On the death of third respondent, respondents 24 to 27 and on the death of fourth respondent respondents 7 to 12 were impleaded as their legal heirs. Respondents instituted the suit seeking a decree for permanent prohibitory injunction in respect of plaint schedule property which is 2.79 acres in R.S.No.20/1 of Moodambail village. Respondents contended that plaint schedule property was obtained by Ramanna Bhandary on lease hold SA 843/93 2 right and after his death they have been in possession and enjoyment of the property and while so, they purchased jenm right from the Land Tribunal as per order in O.A.2309 of 1976 and Ext.A1 purchase certificate was granted and appellants have no manner of right or possession over the same. It was contended that they attempted to trespass into the property and therefore they are to be restrained by a permanent prohibitory injunction from trespassing into plaint schedule property. Appellant resisted the suit contending that plaint schedule property was not obtained by Ramanna Bhandary on lease hold right and O.A.2309 of 1976 was filed fraudulently and Land Tribunal was not justified in granting the order as it had no jurisdiction and Ext.A1 is vitiated. It was contended that K.P.Deranna Shetty, husband of first defendant and father of defendants 2 and 3 was a cultivating tenant in respect of the whole extent of plaint A schedule property along with other properties and he filed O.A.366 of 1975 before the Land Tribunal and obtained purchase certificate and therefore respondents are not entitled to the decree sought for.

2. Learned Munsiff after recording the evidence of SA 843/93 3 Pws.1 and 2, Exts.A1 to A4, B1 to B10, C1 and C2 dismissed the suit holding that both plaintiffs and defendants are relying on purchase certificate obtained and therefore they cannot be relied on and oral evidence of PW1 establishes that defendants are in possession of the property and therefore plaintiffs are not entitled to the decree sought for. Plaintiffs challenged the decree and judgment before Sub court, Kasargod in A.S.87 of 1991. Learned Sub Judge on re-appreciation of evidence found that the case can be decided only on the oral evidence, as both parties are relying on separate purchase certificates obtained from the Land Tribunal and also produced tax receipts. Learned Sub Judge found that though trial court relied on the so called admission about possession, evidence is to be read over as whole and evidence when appreciated in the proper perspective, do not establish that plaintiffs admitted possession of defendants and on that basis they cannot be non suited. Learned Sub Judge found that evidence of Pws.1 and 2 along with Ext.C1 report establish that there is a Bana in the suit property and PW2 has performed the viniyogas and evidence of PW2 establish that he and previously his father were performing the viniyogas at the instance of SA 843/93 4 plaintiffs and it establishes that plaintiffs have been in possession of the property. Learned Sub Judge also took note of the pleading in the plaint that there is a tank in the plaint schedule property and water is taken to the paddy fields of plaintiffs from that tank through the channel and report of the Commissioner shows that water is taken from the tank from the paddy fields of plaintiffs and it corroborates the case of plaintiffs that they are in possession of the property. In such circumstances, first appellate court held that plaintiffs are entitled to a decree for permanent prohibitory injunction. Appeal was allowed and suit was decreed. It is challenged in second appeal.

3. Second appeal was admitted formulating the following substantial questions of law. 1) Whether first appellate court was correct in finding the possession of plaint schedule property with plaintiffs, without referring to the evidence supporting such findings. 2) Whether first appellate court erred in not referring to acceptable evidence including report and plan submitted by the Commissioner. 3) Whether first appellate court was justified in granting a decree for SA 843/93 5 injunction, without clear proof of possession of plaintiffs.

4. Learned counsel appearing for appellant and respondents were heard.

5. Learned counsel appearing for appellant vehemently argued that trial court appreciated the evidence in the proper perspective and rightly relied on the admission of PW1, who admitted possession of plaint schedule property with defendants and first appellate court was not justified in interfering with that finding without proper appreciation of evidence. It was argued that there is categorical, unambiguous admission when PW1 was examined to the effect that defendants are in possession of the plaint schedule property and when Ext.B1 purchase certificate was produced along with written statement contending that defendants purchased jenm right of the plaint schedule property from Land Tribunal, PW1 cannot express ignorance of the case and admission of PW1 establish that defendants are in possession of the property covered under Ext.B1 purchase certificate and PW1 admitted that the properties are inclusive of plaint schedule property and therefore granting of a decree for injunction by first appellate SA 843/93 6 court is unsustainable. Learned counsel appearing for respondents argued that trial court did not appreciate the evidence correctly and first appellate court examined the records and appreciated evidence in detail and entered a factual finding that plaintiffs have established their possession and that factual finding cannot be interfered in exercise of powers of this court under Section 100 of Code of Civil Procedure. It was also argued that in the plaint it was specifically pleaded that they have dug a tank in the plaint schedule property as well as channel to take water from the tank to the property of plaintiffs and though these allegations are denied in the written statement, there was no case that defendants are taking water from the tank in the plaint schedule property and evidence of PW1 establish that paddy fields of plaintiffs are cultivated with the water from the tank in the plaint schedule property marked by Commissioner as T in Ext.C2 plan and evidence of PW2 further establish that plaintiffs have been in possession of the property which was rightly accepted by first appellate court. It was also argued that in spite of examination of Pws.1 and 2, none of defendants stepped into the box to assert their case and SA 843/93 7 face cross examination and therefore first appellate court on appreciation of evidence rendered a factual finding that plaintiffs are in possession of the property and it cannot be interfered in the second appeal.

5. Being a suit for injunction, question is only with regard to possession of the plaint schedule property. If plaintiffs could establish their possession over plaint schedule property, irrespective of the question whether Ext.A1 purchase certificate granted to plaintiffs or Ext.B1 purchase certificate granted to defendants, are valid plaintiffs are entitled to a decree sought for. So also, even if defendants did not succeed in establishing their possession of the suit property, unless plaintiffs establish their possession, they are not entitled to decree for injunction.

6. Question whether plaintiffs or defendants are in possession of the property is a finding of fact. Trial court on appreciation of evidence found that plaintiffs are not in possession of the property. That finding of fact was entered into by relying on admission made by PW1. First appellate court on re-appreciating the evidence found that finding of fact rendered by the SA 843/93 8 trial court is not correct. First appellate court found that there was no admission as found by trial court. In addition, first appellate court relying on the existence of tank and pleading of plaintiffs that channel leading from the tank is the source of water to paddy fields of plaintiffs, as well as evidence of PW2 who deposed that he used to perform viniyogas for the plaintiffs in the plaint schedule property held that plaintiffs have established their possession. If the view taken by first appellate court is a reasonable and possible view, on appreciation of evidence it is not for this court to re- appreciate the evidence and substitute the findings of this court to that of first appellate court. A finding of fact of the first appellate court is to be final.

7. Trial court non suited the plaintiffs only for the reason that evidence of PW1 establish that defendants are in possession. That finding was based on the admission of PW1. Learned counsel appearing for appellant and respondents had read over the deposition of PW1 and argued that there is admission, which according to learned counsel appearing for appellant is an admission about possession of defendants but which according to respondents is not an admission about the possession of SA 843/93 9 plaint schedule property at all. Question is whether appreciation by first appellate court was perverse or the view taken on appreciation of evidence is not a possible or reasonable view that can be taken on the evidence.

8. When PW1 was cross examined, he was asked about alleged lease obtained by Deranna Shetty under whom defendants are claimed right. PW1 deposed that Deranna Shetty had some lease hold property and he obtained some property on lease hold right and is in possession of the property. He also admitted that lease hold properties were assigned in favour of Deranna Shetty. On further cross examination PW1 deposed that Land Tribunal had assigned the property in favour of Deranna Shetty. On further questioning he also deposed that 4.56 cents compromised in R.S.20/1 is inclusive of the suit property. But when this question was put to, he was not asked whether defendants are in possession of the said 4.56 cents inclusive of the suit property. Therefore reading of deposition of PW1 cannot lead to a conclusion as rightly found by first appellate court, that PW1 admitted that defendants are in possession of the property. True, when Ext.B1 purchase certificate was SA 843/93 10 produced along with written statement plaintiffs cannot express ignorance about the property covered in Ext.B1. But that does not mean that PW1 admitted possession of plaintiffs or admitted that plaint schedule property is in the possession of defendants. As rightly pointed out by learned counsel appearing for respondents, evidence of PW1 is to be appreciated as a whole and portion of evidence cannot be cull out to hold that there is admission. What was deposed by PW1 was that plaint schedule property is part of the property obtained by his father and subsequently they purchased jenm right from Land Tribunal and they have been continuously in possession of the property. Though the order in favour of appellant under which Ext.B1 purchase certificate was granted, was earlier to the date of the order in O.A.2309 of 1976 in favour of plaintiffs. Ext.A4 extract of the register maintained by Land Tribunal establish that the said O.A filed by appellant was much earlier to the O.A filed by defendants and subsequently J form was filed with the landlord as per which Ext.B1 purchase certificate was granted. Learned counsel appearing for appellant submitted that though an application filed by plaintiffs challenging J form before Land Tribunal was SA 843/93 11 pending and later on that application was dismissed and therefore Ext.B1 order is binding on plaintiffs that question is not of much relevance in the appeal as the question not on the title and is only for injunction based on possession.

9. When the plaintiffs specifically pleaded in the plaint that there is a tank dug by them in the plaint schedule property and a channel was also dug from the plaint schedule property leading to the paddy fields and that case was denied in the written statement defendants have not contended that they have dug the tank or is taking water from that tank to cultivate their properties. Though a suggestion was given to PW1 that the excess water from the tank is being taken to the paddy fields of defendants it was not proved. Appreciating entire evidence in the proper perspective, it cannot be said that the view taken by first appellate court is not a possible or reasonable view. In any event, it cannot be said that appreciation of evidence was perverse, warranting re-appreciation of the evidence by this court or substitute to the finding of this court to that of first appellate court. In such circumstances, appeal fails and is dismissed. SA 843/93 12 M.SASIDHARAN NAMBIAR,

JUDGE.

uj. SA 843/93 13
=============================

M.SASIDHARAN NAMBIAR,J.



JUDGMENT

S.A.NO.843 OF 1993 14th August 2007
============================


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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