(Prayer: This R.S.A. is filed under Section 100 of CPC against the Judgment and Decree dated 15.3.2006 passed in R.A. No 254/2003 on the file of the II Addl. Civil Judge (Sr. Dn.) and CJM, Mysore, Partly allowing and partly dismissing the appeal and partly setting aside and partly confirming the Judgment and Decree dated 21.7.2003 passed in O.S.No.34/98 on the file of the II Civil Judge (Jr. Dn.) and J MFC, Mysore. )
1. This appeal is preferred by the appellant-plaintiff being aggrieved by the judgment and decree dated 21.7.2003 in O.S. No.34/1998 passed by the II Civil Judge (Jr. Dn.) and JMFC, Mysore and the judgment and decree dated 15.3.2006 passed in R.A. No.254/2003 by the II Additional Civil Judge (Sr. Dn.) and CJM Mysore.
2. The appellant herein filed the aforesaid suit before the trial Court seeking relief of declaration that he has perfected his title to the plaint schedule property as an absolute owner by establishing long usage and possession and by adverse possession and also for consequential relief of injunction restraining the defendant, her agents, servants or any person claiming under the defendant not to interfere in the plaint schedule property in any manner whatsoever.
3. The suit schedule property is all that piece and parcel of the open space including toilet, bathroom, washing stone, Brundavan measuring East to West 21 ft. 3!4 inch and North to South 48 ft. forming eastern portion cf the property having katha No.389, Door No. 171, situated Hinkal village, Mysore Taluk. It is contended by the plaintiff that originally, the property was measuring East to West 43 ft. 6 inch and North to South 4 8 ft. Out of this, western half of the property was sold to father of the plaintiff under the registered sale deed dated 27.1.1960. Two years later, and as the plaintiffs father and fam% was in requirement of additional space for bathroom and toilet, solicited the seller namely late D. Annoji Rao to pari with the remaining portion of the property. Late D. Annoji Rao being in cordial terms effected the sale for consideration of Rs.75/- and the possession of the remaining portion was taken in the year 1962. Since then, the plaintiff and his family members are in physical possession of the same as owners. This being so, one B.A. Govinda Rao, S/o. D. Annoji Rao, claimed possession over the said area and filed a suit in O.S No.225/1986 on the file of the II Munsiff and JMFC at Mysore, which went up in appeal in R.A. No.22/1993. However, the said suit was decreed and it is learnt by the plaintiff that the owner Govinda Rao sold the property in favour of the defendant herein and parted with possession of the property, It is contended that the plaintiff is having apprehension that the defendant who claims to be the purchaser may make use of extrajudicial remedies in order to evict him from the plaint schedule property. The plaintiff being in absolute possession of the suit schedule property since 1962, his father as well as the members of the family have perfected title by adverse possession. Hence, he sought the relief of declaration and consequential relief of declaration.
4. The defendant appeared in the said suit and filed written statement denying the case of the plaintiff. It is contended that since the earlier suit filed by Govinda Rao against the plaintiff herein and his father in O.S No.225/1986 has been decreed and the appeal preferred in R.A No.22/1993 on the file of the II Additional Civil Judge, Mysore came to be withdrawn by filing a memo stating that the appeal has become infructuous, the present suit filed is not maintainable. It is stated in the written statement that the defendant is a bona fide purchaser of the suit schedule property from his original owner Govinda Rao and he has perfected his right, title and interest over the same. Katha has been transferred in her name and hence, she is the absolute owner of the said property. It is further stated in the written statement that there is no cause of action to file the suit. The suit is barred by time. The plaintiff has not valued the suit schedule property properly. The relief claimed cannot be granted as the plaintiff is not at all in possession of the suiz schedule property and hence, sought to dismiss the suit.
5. On the basis of the above pleadings, the trial court framed the following issues:â
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property by way of adverse possession ?
2. Whether the plaintiff proves the alleged interference by the defendant ?
3. Whether the suit is not properly valued ?
4. Whether the plaintiff is entitled for the relief claimed ?
5. What order or decree ?
6. In the suit, on behalf of the plaintiff, four witnesses were examined as P.Ws. 1 to 4 and on behalf of the defendant, four witnesses were examined as D.Ws.1 to 4 and the documents at Exs.P.1 to 11 and Exs.D.1 to D.18 were got marked.
7. After considering the merits of the case, ultimately, the trial court dismissed the suit of the plaintiff with costs. The plaintiff preferred an appeal in R.A. No.254/2003 before the II Additional Civil Judge (Sr. Dn.) and CJM, Mysore. The first appellate court framed the following points for consideration:â
1. Whether the judgment and decree passed by the trial court is vexatious, frivolous and requires any interference by this Court ?
2. What order ?
8. On Point No.1, first appellate court has recorded its finding partly affirmative and partly negative. The first appellate court has rejected the contention of the appellant- plaintiff holding that plaintiff has perfected his title to the suit schedule property by adverse possession. But however, the first appellate court held that the plaintiff has proved that he is in possession of the suit schedule property and accordingly, permanent, injunction was granted against the defendant holding that till the plaintiff is evicted from the suit schedule property under the due process of law, his possession is to be protected. Aggrieved by the said judgment and decree of the first appellate court, the plaintiff has preferred the present regular second appeal.â
9. While admitting the appeal, this Court has framed the following substantial questions of law arising for consideration in the appeal:
1. Whether the Courts below were justified in rejecting the relief to the plaintiff holding that the plaintiff had suffered a decree in O.S. No.225/1986 and the same attained finality, despite R.A. No.22/ !993 being disposed of as infructuous ?
2. Whether the Courts below more particularly, the lower appellate court has committed perversity in the manner of appreciation of the evidence of D.W.2 as against the evidence of P.Ws.2 to 4 available on record and as such, in that context, whether the Courts below have erred in not granting the relief to the plaintiff ?
10. During the course of arguments, learned Senior Counsel appearing for the appellant-plaintiff made the submission that the first appellate court has not considered the oral evidence adduced on behalf of the plaintiff and also not considered the other materials properly. The learnedâSenior Counsel made the submission that looking to the oral evidence of P.Ws.1 to 4, it clearly establishes that the appellant-plaintiff is in possession of the suit schedule property continuously as of right and to the knowledge of the defendant and others and has perfected his title by adverse possession. The oral evidence of the plaintiff and his witnesses goes to show that there was construction of a toilet, bath room, washing stone of clothes and brundavan and this aspect has been completely ignored by the first appellate court. The learned Senior Counsel made the submission the Courts below could have considered the case independently, but they have wrongly held tnat the suit is hit by the principles of resjudicata. The earlier suit filed by Govinda Rao, the vendor of the defendant herein, was only for bare injunction. Therefore, the question of applying the principles of resjudicata does not arise at all. Hence, the appellant- plaintiff has established his case both for the relief of declaration by adverse possession and also for permanent injunction. He submitted that so far as partly decreeing the suit for the relief of injunction, the respondent herein has notâpreferred any appeal. Hence, on that ground also, the appeal deserves to be allowed. In support of his contention, learned Senior counsel has relied upon the following decisions
1. AIR 1991 MP 53 - Ummedibai and others Vs. Bhikandm Singh and another)
2. AIR 2004 CAL. 188 - Jatindra Math. Mondal and others Vs Smt. Harimot Dassi and another)
3. AIR 2006 SC 2234 - Hero Vinoth Vs. Seshammal)
11. As against this, learned counsel appearing for the respondent-defendant dur'.ng the course of his arguments has submitted that in order to claim the relief of adverse possession, the ingredients of adverse possession under Article 65 of the Limitation Act are to be established. Regarding these ingredients, there is no pleading by the plaintiff claiming adverse possession. The learned Counsel has also made the submission that looking to the materials on record, both oral and documentary, the factum of adverse possession by the plaintiff over the suit schedule property is not at all established. As per the judgment passed in the earlier suit and in view of withdrawal of the appeal in R.A. No.22/1993, the judgment and decree passed in the O.S. No.225/1986 becomes final and it operates as resjudicata as against the case of the appellant-plaintiff again to claim the adverse possession over the suit schedule property. As the plea of adverse possession was already availed in the earlier suit O.S. No.225/1986 and there was specific issue on adverse possession which has been answered by the concerned trial court in the negative, the appellant- plaintiff is not permitted to raise such a contention in the latter suit that he is the owner of the suit schedule property by adverse possession. In support of his arguments, the leaned Counsel for the respondent nas relied on the following decisions:
1. Judgment in Civil appeal 8244/2013 - Gurudwara Sahib Vs. Gram Panchayat Village Sirthala 8and Another
2. AIR 2006 PandH 195 - Bhim Singh 85 Ors. Vs. Zile Singh and Others
3. AIR 2009 SC 103 - Hemaji Waghaji Jat Vs. Bhikabhai Khengarbhai Harijan 8and Others
4. (2007) 6 SCC 59 - P.T. Munichikkanna Reddy And Others Vs. Revamma 85 Others
5. AIR 2010 SCC 744 - Mandal Revenue Officer Vs. Goundla Venkaiah and anotherâ
6. Judgment in civil appeal No.28034/2011 - State of Haryana Vs. Mukesh Kumar and Others
12. I have perused the pleadings of both parties, orai evidence of the witnesses on both sides and the documents produced before the trial court, judgment and decree passed by the both the Court below and the decisions relied on by the learned Counsel on both sides which are referred above.
13. The suit in O.S No.34/1998 was filed by the appellant-plaintiff for the relief of declaration of title over the suit schedule property by adverse possession and consequential relief of permanent injunction against the defendant. It is an admitted fact that even according to the appellant-plaintiff, earlier Govinda Rao, the vendor of the respondent-defendant filed a suit in O.S. No.225/1986 against the present appellant-plaintiff and his father seeking permanent injunction to restrain the defendants in the said suit from causing obstruction to the peaceful possession and enjoyment of the plaintiff therein. But in the said suit, the defendants have not denied the possession of the plaintiff over the suit schedule property. In the written statement, they denied the title of the plaintiff to the suit schedule property and set up the plea that they are the owners of the suit schedule property and they have also claimed that they became owners by adverse possession. Looking to the contentions raised by the defendants in the said suit, additional issue No.3 was raised to the following effect:
" Whether right and interest of the plaintiff over the suit property abandoned in view of the adverse possession claim of the defendants "
14. The trial court after considering the entire evidence, both oral and documentary, in the earlier suit in O.S. No.225/1986 has ultimately decreed the suit in favour of the plaintiff and recorded negative finding on additional issue No.3 holding that the defendants in the said suit are not the owners by adverse possession. Looking to this aspect of the matter, now it cannot be said that the earlier suit in O.S. No.225/1986 is a bare injunction suit because the title plea raised by the defendants denying the title of the plaintiff and claiming that they are the owners by adverse possession also has been decided in the said suit. It may be true that looking to the relief claimed in the said suit, it may be for bare permanent injunction, but looking to the pleadings of the parties and the issues raised in the said suit, in reality, it is a suit for declaration and consequential relief of injunction. In a suit for bare injunction, its valuation lor the purpose of court fee comes under the provisions of the Karnataka Courts Fee valuation Act, 1958 and the relevant provision is Section 26, which reads as under:
"Section 26: suits for injunction : - In a suit for injunction -
(a) where the relief sought is with reference to any immovable property,, and
(i) where the plaintiff alleges that his title to the property is denied, or
(ii) where an issue is framed regarding plaintiff s title to the property, fee shall be computed on one-half of the market value of the property or on (Rupees one thousand) whichever is higherâ
(b)Â [xxxxx]
(c)Â in any other case, whether the subject matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on (Rupees one thousand), whichever is higher."
15. Looking the above provision, even if the relief in the suit may be for injunction, but the Court is required to see the pleadings of the parties. Whenever the title of the plaintiff is denied or the defendant sets Lip a title in himself either as owner or owner by adverse possession, the Court has to decide the said issue in the suit. Perusing the judgment and decree passed in the- earlier suit and the finding on additional issue No.3, the Court below has decided not only the injunction aspect, but it lias also decided title to the parties. The Court beiow has come to the conclusion that the defendants have failed to prove their title by adverse to possession. Hence, the argument of the learned Senior Counsel for the appellant-plaintiff that the earlier suit was a bare inj unction suit and hence, the relief will be personam in nature and it cannot operate as resjudicata for maintaining the subsequent suit by the plaintiff, cannot be accepted at all because in the earlier suit by the defendant, they had set up a plea that they are owners by adverse possession. It is nothing but making a counter claim in the said suit. So the defence of the defendants itself amounting to plaint
16. The judgment and decree passed in the earlier suit in O.S No.225/1986 attains finality because the appellant before the first appellate court in R.A. No.22/1993 withdrew the said appeal. Therefore, the decree passed by the trial court in the earlier suit remains as it is. When the plea of the present appellant-plaintiff was already considered by the court in O.S. No.225/1986 and recorded the negative finding holding that the defendants in the said suit have failed to prove that they are owners by adverse possession, the plaintiff again is not permitted under law to bring another suit claiming that he is the owner by adverse possession. Both the Courts below have rightly come to the conclusion that the plea of the plaintiff regarding the relief of declaration that he is owner by adverse possession is hit by the principles of resjudicata and it is in accordance with law. No perverse or capricious view has been taken by the Courts below in recording such a concurrent finding regarding plea of adverse possession.
17. I have perused the decisions relied upon by the learned Senior Counsel appearing for the appellant-plaintiff. In view of the above discussion, I am of the opinion that the said decisions are not applicable to the facts and circumstances involved in the case on hand. Looking to the materials on record, both oral and documentary, so also the judgment and decrees passed by the Courts below, I am of the opinion that there is no merit in the appeal. There are no valid and justifiable grounds for this Court to interfere into the judgment and decrees of the Courts below. The appeal is dismissed accordingly.