Judgment:
V. Jagannathan, J.
1. This second appeal is by the defendant in the trial court aggrieved by the suit tiled by the plaintiff for permanent injunction being decreed and the same being confirmed by the lower appellate court by dismissing the appeal preferred him.
2. Brief facts are that, the plaintiff filed the suit in question for the relief of permanent injunction in respect of the suit schedule property measuring one acre of land in S. No. 50 of Kannur Village of Bangalore South Taluk, and the basis for the said suit was laid on the grant certificate said to have been issued in favour of the plaintiff in the year 1982. It was the plaintiffs case that, eversince the grant order, she has been in possession and enjoyment of the suit schedule property and following interference by the defendant, the suit came to be filed.
3. The case of the defendant, on the ether hand, was that the suit land belongs to him as the grant was made in his favour on 13.1.1982 and, therefore the plaintiff has no right or interest over the suit schedule property and the plaintiff was also not in possession of the same. It is this stand of the parties in essence that led the trial court to frame the relevant issues as could be found in paragraph-6 of its judgment and after appreciating the evidence let in by the parties, all the issues-1 to 3 were answered in favour of the plaintiff and the suit was decreed. The lower appellate court also concurred with the view taken by the trial court and dismissed the appeal filed by the defendant.
4. I have heard the learned Counsel for the parties and perused the entire record of this case.
5. Learned Counsel Shri T. Seshagiri Rao for the appellant-defendant submitted that the courts below erred in not taking note of the documents Exs.D-1, D-28 and P-11, which documents go to establish that no grant was made in favour of the plaintiff on 13.1.1982 and by producing the R.T.Cs. in respect of a grant made subsequently, the plaintiff has been trying to dispossess the defendant and, out of these documents, Ex.P-ll is the document issued by the Tahasildar, Hosakote, wherein it has been stated that no grant has been made in favour of the plaintiff in the year 1982 and secondly, Ex.D-28, which is the grant register, also confirms that no entry is to be found in the said register in respect of the land having been granted in favour of the plaintiff on 13.1.1982. Coupled with these, Ex.P-11, which is the mahazar conducted by the Tahasildar, also confirms that there was no grant made in favour of the plaintiff on 13.1.1982, but the said document Ex.P-11 refers to a subsequent period viz., 10.6.1985.
6. In the face of such documentary evidence, which are not objected to by either of the parties, both the courts below could not have recorded a finding that the grant has been made in favour of the plaintiff on 13.1.1982 to an extent of one acre in S. No. 50 of Kannur Village. As such, the findings recorded are perverse and being contrary to the documents produced and the judgments of the courts below cannot be sustained in law notwithstanding the fact that both the courts have concurred on facts.
7. Yet another submission made by the learned Counsel for the appellant is that certain documents were produced along with an application under Order 49 Rule 27 of the C.P.C., and the lower appellate court did not pass any order on the said application, either allowing it or rejecting it, and this also has led to the decision being going against the appellant. If the documents that the appellant wanted to produce had been considered, the court below could not have confirmed the trial court's judgment For all these reasons, the appeal be allowed by answering the substantial question of law in favour of the appellant.
8. On the other hand, learned Counsel for the respondent-plaintiff supported the findings of the courts below by contending that the documents Exs.D-1 and D-28 have been properly considered and the courts below have also given valid reasons for not acting upon Exs.D-1 and D-28 because, not all the grants made are reflected in the grant register and many such grants do not find entries in the revenue records maintained at the office of the Tahasildar. Under these circumstances, the court, below was justified in relying on Ex.P-1, grant certificate, and, as far as Ex.P-11 is concerned, the mahazar in question was drawn in the year 1996. As such, the findings of the courts below call for no interference. Another submission put forward by the learned Counsel for the respondent is that the appellant has also filed a suit for declaration and the said suit O.S. No. 418/2005 is also pending before the Addl. Civil Judge (Jr.Dn.), Bangalore Rural District. As such, the appeal be dismissed.
9. In the light of the aforesaid submissions put forward, the substantial question of law raised requires to be answered now and the said question is as under:
Whether the findings of the court below on the factum of possession by the plaintiff is perverse in the presence of Exs.D-1, D-28 and P-11 and on the evidence, on record?
10. In the light of the aforesaid question of law framed, it becomes necessary to examine the documents Exs.D-1, D-28 and P-11. Ex.D-1 is the endorsement given by the Tahasildar to the effect that no grant was made in favour of the plaintiff on 13.1.1982 in respect of one acre of land in S. No. 50 of Kannur Village. The said Tahasildar has also spoken to the said effect in the course of his evidence. Being an official witness, one cannot say that he was biased in favour of either of the parties.
11. Ex.D-28 is another document which is also coming from the proper custody and it is thegrant register produced by the Tahasildar himself viz., V.C. Inamdar, and in the said register also, no entry is to be found indicating the plaintiff having been granted land on 13.1.1982 as per Ex.P-1. The third document is Ex.P-11 produced by the plaintiff himself and a perusal of the said document further makes it clear that the grant of one acre of land in favour of the plaintiff was made on 10.6.1985 and consequent, to this, an entry is also made in the R.T.C. at page No. 470 for the year 1987-88. Ex.P-11 does not say anywhere that the grant was made in the year 1982 as per Ex.P-1. All these documents, therefore, do not give the scope for drawing a conclusion that the plaintiff was granted one acre of land on 13.1.1982 as per Ex.P-1. Both the courts lost sight of these documents and the evidence of the Tahsildar in particular.
12. Apart from this, the appellant had also filed an application under Order 41 Rule 27 of the C.P.C. producing certain documents viz., (i) Akarband Register Extract, (ii) Utar extract, (iii) Hadbus sketch, (iv) Village map of Kannur Village, (v) Mahazar conducted by Survey and Settlement Authorities as regards proceedings held by them, (vi) R.T.C. extract for the year 2004-2005 and (vii) Kandayam paid receipt, dated 18.1.2005, all pertaining to land bearing resurvey No. 206 of Kannur Village. These documents were not considered by the lower appellate court and no order was passed as to whether the application sought to be filed under Order 41 Rule 27 of the C.P.C. was allowed or rejected. Under the above circumstances, the finding of the courts below as regards possession of the suit schedule property by the plaintiff cannot be said to be consistent with the stand taken by the plaintiff himself and the documents produced before the trial court as per Exs.DI, D-28 and P-11. That apart, a submission is also made that the appellant has also filed a suit for declaration in respect of the land that was granted to him and the said suit is also pending.
13. In the light of the aforesaid discussion, I am of the view that the interest, of justice could be secured by setting aside the judgments of the courts below and the matter can be remitted to the court where the suit filed by the defendant is pending viz., Addl. Civil Judge (Jr.Dn.) Court, Bangalore Rural District, for disposal in accordance with law. But, the docnments now the appellant wants to produce, which were produced before the lower appellate court under Order 41 Rule 27 of the C.P.C., can also be produced by the appellant before the trial court where the other suit is pending. The appellant, therefore, can withdraw the said documents from the first appellant court.
14. The substantial question of law, therefore, stands answered in the affirmative and the appeal is allowed and the judgments of the courts below stand set aside.
As far as the possession is concerned, it is directed that the partes to maintain status quo as on this date in respect of the suit sehedule property.
It is also made clear that the above observations shall not come in the way of the trial court, which is now seized of the suit filed by the appellant in O.S. No. 418/2005, in disposing of both the matters in accordance with law.