H.N. Nagamohan Das
1. This appeal is directed against the judgment and decree dated 04.08.2005 in O.S. No. 163/99 passed by the V Additional City Civil Judge, Bangalore City, decreeing the suit of the plaintiff for grant of permanent injunction and dismissing the counter claim.
2. The appellants are defendants and the respondent is the plaintiff before the trial court. For convenience, the parties are referred to their status before the trial court.
3. The plaintiff is an Association registered under the Societies Registration Act. The plaintiffs contend that they purchased 2 acres 30 guntas of land in Sy. No. 110/2 of Laggere Village (the schedule property) under an agreement of sale dated 26.11.1988 from its vendors Sri B.C. Vijayakumar and Smt. Mayamma. In part performance of this agreement of sale, the plaintiffs were put in possession of the schedule property and they are in peaceful possession and enjoyment of the same. In the month of December 1998, the defendants tried to interfere with the plaintiff''s possession and enjoyment of the schedule property and therefore, they filed O.S. No 163/99 for grant of decree of permanent injunction.
4. The defendants 1 and 2 entered appearance before the trial court, filed written statement inter aha contending that they are the owners of a portion of land in Sy.No. 110/ 1 of Laggere Village and the plaintiffs are trespassing into their property. The defendants opposed the claim of the plaintiffs. On the basis of the pleadings, the trial court framed the following three issues for its consideration:
1. Whether the plaintiff proves that it has been in lawful possession of the suit schedule property?
2. Whether the plaintiff proves interference?
3. To what order and reliefs the parties are entitled?
5. Before the trial court, the plaintiff examined six witnesses as PWs 1 to 6 and got marked Exs.P1 to P58, The defendants examined one witness as DW-1 and got marked Exs.D1 to D44. The trial court after hearing both the parties and on appreciation of the pleadings oral and documentary evidence on record held that plaintiffs are in peaceful possession and enjoyment of the schedule property and there is interference by the defendants and consequently, decreed the suit of the plaintiffs for permanent injunction vide judgment dated 04.08.2005. Aggrieved by this judgment and decree of the trial court, the defendants approached this Court in RFA No. 497/02. This Court vide judgment dated 18.06.2002 allowed the appeal, set aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh disposal in accordance with law. This Court while remanding the matter observed as under:
Para-5: Therefore, keeping in view the submissions made, I deem it desirable that fresh survey is to be carried out in this suit by the A.D.L.R. by giving notice to both the parties and in their presence the survey is to be made. The appellants are however entitled to produce the records of the survey done earlier as an additional document before the trial Court and after survey, considering the reports of the Surveyor and the additional documents, if any, and if necessary by allowing oral evidence, the trial court shall dispose of the suit, in accordance with law.
6. After remand from this Court, the defendants amended their written statement and incorporated counter claim to direct the plaintiffs to demolish the structures put up subsequent to passing of the status quo order by the trial Court on the schedule property mentioned in the written statement To this counter claim of defendants, the plaintiffs filed written statement. On the basis of the amended pleadings, the trial court framed the following two additional issues;
1) Whether the defendants prove that the plaintiff Association have erected temporary sheds on the schedule property subsequent to passing of interim order in the above said suit.
2) Whether the defendants are entitled to the relief of Mandatory Injunction by way of counter claim.
7. After remand and framing of additional issues, both the parties adduced oral evidence and also produced additional documents, Further, as per the directions issued by this court in RFA No. 497/2002, the trial Court appointed ADLR as Court Commissioner to survey the schedule property as per the memo of instructions of both the parties. Accordingly, the Court Commissioner conducted survey of the schedule property and submitted his report to the trial Court, The Court Commissioner was examined as CW-1 and through him 3 documents came to be marked as Ex.C1 to Ex.C3. The trial Court after hearing both the parties and on appreciation of the pleadings, oral and documentary evidence on record passed the impugned judgment and decree on 04.08.2005 decreeing the suit of plaintiffs and dismissing the counter claim of defendants. Hence, this appeal by the defendants.
8. Sri. Shantharaj, Learned senior counsel for the defendants fairly submits that he has no grievance in so far as the judgment and decree of the trial Court decreeing the suit of plaintiffs. But, it is to be classified with reference to the survey conducted by ADLR after remand from this court-He contends that despite abundant evidence available on record, the trial Court committed an error in not decreeing the counter claim. The trial Court rejected the counter claim on surmises and conjectures. The failure to consider the admitted facts and the available documentary evidence on record by the trial Court has resulted in failure of justice. Reliance is placed on the following decisions;-
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9. Per contra, Sri. K.V. Narasimhan, learned counsel for the plaintiffs contend that under the agreement of sale dated 26.11.1988, the plaintiffs are put in possession of the land as per the survey conducted in the year 1981. Now the present survey in 2003 indicates that the plaintiffs are in possession of a portion in Sy. No. 110/1 and another portion in Sy. No. 110/ 2. Therefore, he contends that unless, the plaintiffs are legally dispossessed by due process of law, they are entitled to continue in the portion occupied by them in Sy.No. 110/01. He supports the impugned judgment and decree of the trial Court, Reliance is placed on the following decisions: -
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10. Heard arguments on both the side and perused the entire appeal papers and records.
11. It is not in dispute that the claim of the plaintiffs for decree of permanent injunction is in respect of the plaint schedule property. The plaint schedule property is 2 acres and 30 guntas in Sy. No. 110/2 of Laggere Village. The plaintiffs contend that as per the survey of the year 1981, they were put in, possession of a portion in Sy.No. 110/1 and a portion in Sy.No. 110/2. The material on record discloses that as per Ex.D-8 the order dated 22.06.1998 in JDLR appeal No. 4/99, the Joint Director of Land Records set aside the survey dated 24.03.1981. This order of Joint Director of Land Records is prior to filing of suit before the trial Court on 06.01.1999, Either at the time of tiling the suit or subsequent to filing of the suit the plaintiffs have not amended the plaint contending that they are in possession of a portion in Sy. No. 110/1 and a portion in Sy.No. 110/2. Even to this day, the prayer of the plaintiffs remained that they are in possession of 2 acres and 30 guntas in Sy. No. 110/2. The location of this 2 acres 30 guntas in Sy. No. 110/2 is clearly specified in the survey sketch prepared by the ADLR in the year 2003 as found at Ex.C-3. Land in possession of the plaintiffs under the agreement of sale dated 26.11.1988 in Sy. No. 110/ 2 to an extent of 2 acres 30 guntas situated at Laggere Village is shown in green colour as ABFH in Ex.C-3. The claim of plaintiffs for decree of permanent injunction is also in respect of land in their possession under the agreement of sale to an extent of 2 acres 30 guntas in Sy. No. 110/2 of Laggere Village. Learned senior counsel for the defendants fairly submit that he has no objection for grant of decree of permanent injunction in favour of the plaintiffs as specified in the survey sketch Ex.C-3. Though the trial Court granted decree of permanent injunction in favour of the plaintiffs, the same has not been clarified with reference to the survey sketch. Keeping in view the directions issued by this Court on earlier occasion in RFA No. 497/02, the present survey is conducted in the year 2003 and Ex.C-3 is an out come of that Survey. There is no dispute between the parties in so far as Survey Ex.C-3 is concerned. Therefore, the impugned judgment and decree of the trial Court is required to be modified specifying that plaintiffs are entitled for decree of permanent injunction in respect of schedule property as specified in survey sketch Ex.C-3 marked in green colour as ABFH.
12. It is not in dispute between the parties that after remand from this Court, the defendants filed an application for amendment of the written statement to incorporate the relief of counter claim for mandatory injunction. The trial Court allowed the application filed by the defendants to amend the written statement After amending the written statement by the defendants, the plaintiffs filed written statement. On the basis of these amended pleadings, the trial Court framed the additional issues, On the basis of this additional issues, both the parties adduced the evidence and also placed documentary evidence. As directed by this Court in RFA. No. 497/02, the trial Court appointed a Court ADLR as Court Commissioner and be has submitted a report in 2003, The report of the Court. Commissioner i.e., the Surveyor specifies the portion encroached by the plaintiffs in Sy. No. 110/1 of the Laggere village which is the schedule property in the written statement. The trial Court without considering this important evidence available on record rejected the claim of defendants for counter claim on surmises and conjectures. Further, it is seen from the record that in the plaint which was filed on 06.01.1999 it was stated that there are only 9 sheds put up by the plaintiffs in the plaint schedule property. Undisputed survey sketch now available before the court indicates the number of sheds put up by the plaintiffs both in Sy. No. 110/2 and also in Sy.No. 110/1. Again the trial Court committed an error in not considering this material available on record. The trial Court proceeds on the premise that the vendor of the plaintiffs might have encroached a portion of Sy- No. 110/1 and consequently he might have put the plaintiffs in the possession of the same in 1988 and therefore the trial Court holds that the plaintiffs may proceed to take action against the plaintiffs by filing a separate suit It is not the case of plaintiffs that their vendor encroached the written statement (schedule property) and later the plaintiffs are put in possession of the same. This approach of the trial Court is based on surmises and conjectures and contrary to the evidence and material on record. This is an illegality committed by the trial Court. On this ground, the impugned judgment and decree of the trial Court dismissing the counter claim of the defendants is liable to be set aside.
13. During the pendency of this appeal, the defendants have filed an application seeking amendment of the written statement to include additional prayer of counter claim for recovery of possession of the written statement (schedule property) from the plaintiffs. The plaintiffs have not filed any objections to this application. In the normal course an application for amendment of the written statement at this stage is not entertainahle. But, in the instant case, the dispute is pending between the parties right from the year 1981 when the first survey was conducted, The Civil Suit between the parties is pending from the year 1999, The counter claim of the defendant for mandatory injunction is already there on record and the same is not questioned by the other side. In identical circumstances, the Supreme Court in
7. In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
14. In view of this dictum of the Supreme Court, having regard to the facts and circumstances of this case, it is not proper for this court to drive the parties to file another suit resulting in multiplicity of proceedings. By allowing the application of the defendants to amend the counter claim in their written statement by incorporating the additional prayer for possession it will save the time, trouble, delay and expenses. In doing so, an opportunity is to be provided to the plaintiffs to file additional written statement and to take defence available under law and also to lead additional evidence by both the parties. In the circumstances, the application filed by the defendants for amendment of the written statement is liable to be allowed.
For the reasons stated above, the following:-
ORDER
1) The appeal is partly allowed.
2) The impugned judgment and decree of the trial Court decreeing the suit of plaintiff for permanent injunction is modified specifying that the plaint schedule property as ABFH shown in green colour in Survey sketch Ex.C-3.
3) The defendants or anybody claiming under them are hereby permanently restrained from interfering from the peaceful possession and enjoyment of the plaint schedule property as stated above.
4) The impugned judgment and decree of the trial Court dismissing the counter claim of the defendants is hereby set aside.
5) The application filed by the defendants for amendment of the counter claim is hereby allowed.
6) The learned counsel for the defendants to amend the counter claim of the written statement before the trial Court within two weeks from the date of receipt of the order. The trial Court to provide an opportunity to the plaintiffs to file additional written statement for this counter claim and to decide the matter in accordance with law after providing an opportunity to both the parties.
7) In view of the fact that already abundant evidence available on record and the matter is pending for a long time, a direction is hereby issued to the trial Court to expedite the matter and to dispose the counter claim of the defendants as expeditiously as possible and in any event not later than four months from the date of receipt of copy of this order. Ordered accordingly.
