Sri N Krishnayya Navada vs Shri Nitilaksha Sadshiva Temple
2023 Latest Caselaw 1171 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 R.S.A. NO.2217/2017 (INJ)

BETWEEN:

SRI N. KRISHNAYYA NAVADA,
S/O LATE SHANKARA NARAYANAPPAYYA,
SINCE DEAD BY HIS LRs.

1.   SMT. SUNDARI AMMA,
     W/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 74 YEARS.

2.   SMT. ANURADHA,
     D/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 49 YEARS.

3.   SRI SURYANARAYANA NAVADA,
     S/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 44 YEARS.

4.   SRI GANESH NAVADA,
     S/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 42 YEARS.

5.   SRI VENKATESHA NAVADA,
     S/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 40 YEARS.

6.   SRI PADMANABHA NAVADA,
     S/O LATE N. KRISHNAYYA NAVADA,
     AGED ABOUT 37 YEARS.
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7.     SRI JAYARAMA NAVADA,
       S/O LATE N. KRISHNAYYA NAVADA,
       AGED ABOUT 34 YEARS.

8.     SRI SHRIPATHI NAVADA,
       S/O LATE N. KRISHNAYYA NAVADA
       AGED ABOUT 31 YEARS.

9.     SMT. RAJESHWARI,
       D/O LATE N. KRISHNAYYA NAVADA,
       AGED ABOUT 27 YEARS.

10.    SMT. JAYASHREE,
       D/O LATE N. KRISHNAYYA NAVADA,
       AGED ABOUT 24 YEARS.

       ALL ARE RESIDING AT NETLA HOUSE,
       GOLTHAMAJALU VILLAGE,
       BANTWAL TALUK,
       D.K. DISTRICT-574 222.                   ... APPELLANTS

              (BY SRI PRASANNA V.R., ADVOCATE)

AND:

1.     SHRI NITILAKSHA SADSHIVA TEMPLE,
       NITILAPURA, BANTWALA TALUK,
       D.K. DISTRICT-574222
       REP. BY ITS CHEIF EXECUTIVE OFFICER,
       MR. VASANTHARAJ SHETTY K,
       S/O B.G.M.SHETTY,
       AGE: MAJOR.

2.     SRI NONAYYA POOJARI,
       S/O SHEENAPPA POOJARI,
       AGE: MAJOR,
       R/A RAYAPPA KODI HOUSE,
       AMTOOR VILLAGE, KARINGANA POST,
       BANTWAL TALUK
       D.K. DISTRICT-574 222.                 ... RESPONDENTS
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      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.07.2017
PASSED IN RA NO.15/2012 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE AND JMFC, BANTWAL, D.K. ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
05.03.2012 PASSED IN OS NO.65/1999 ON THE FILE OF THE
PRL.CIVIL JUDGE AND JMFC, BANTWAL, D.K.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   23.01.2023, THIS  DAY,  THE  COURT
PRONOUNCED THE FOLLOWING:

                        JUDGMENT

This appeal is filed challenging the judgment and decree

dated 27.07.2017, passed in R.A.No.15/2012, on the file of the

Principal Senior Civil Judge and JMFC, Bantwal, D.K. reversing

the judgment and decree dated 05.03.2012 passed in

O.S.No.65/1999 on the file of the Principal Civil Judge and JMFC,

Bantwal, D.K.

2. The parties are referred to as per their original

rankings before the Trial Court to avoid the confusion and for the

convenience of this Court.

3. The factual matrix of the case of the plaintiff before

the Trial Court in O.S.No.65/1999 is that 'A' schedule properties

were the chalageni leasehold properties of the father of the

plaintiff under defendant No.1. The father of the plaintiff had

executed chalageni chit in favour of defendant No.1. After the

advent of the Karnataka Land Reforms Act, the father of the

plaintiff filed declaration before the Land Tribunal, Bantwal in

TNC No.9504/74-75 and the Land Tribunal, as per its order

dated 18.04.1979 conferred occupancy right in favour of his

father in respect of schedule properties. Ever since then, his

father was in actual possession and enjoyment of the same by

effecting vast improvement till his death. The documents were

also transferred in favour of the father of the plaintiff and he was

paying the tax and enjoying the same as absolute owner.

Formerly item No.1 of the schedule property was bailu field and

major portion of bailu field were capable of growing two paddy

crops. The father of the plaintiff was raising two crops in the

said paddy field. Item No.1 of schedule property is situated

towards north of Sy.No.117/4, wherein defendant No.1 temple is

situated. The land in Sy.No.117/2A is higher in level by about 4-

5 feet from the land situated in Sy.No.117/4. There is a

kattahuni in Sy.No.117/2A in its southern side and in

Sy.No.117/2A. The width of the same is about 10-12 feet.

Towards south of the said kattahuni, the land in Sy.No.117/4 is

situated which is about 4-5 feet lower in level wherein defendant

No.1 temple is situated. The said kattahuni which is situated in

Sy.No.117/2A there are 5 yielding coconut trees, 2 coconut

plants, one tamarind tree, one mango tree, one jack fruit tree

and one teakwood tree which has been maintained and reared

by his father till his death and after his death, the plaintiff was

utilizing the usufructs of the said trees for himself.

4. It is also his case that he had converted the bailu

field into a areca garden and at present there are yielding areca

garden. Surrounding the said areca garden in the kattahuni in

its north east and west, his father has planted coconut plants

and now they are yielding. The father of the plaintiff died on

26.12.1982 leaving behind the plaintiff as one of the legal heirs.

The plaintiff has also filed a suit on behalf of all the heirs of

Shankaranaranappayya. After the death of the said

Shankaranaranappayya, the mutation has been accepted in his

name and RTC stands in his name. Even in the RTC, existence

of areca trees and coconut trees and other fruit bearing trees are

mentioned, which clearly show that the plaintiff is in possession

and enjoyment of those trees. Except the plaintiff, no one has

got any right, title and interest in the said trees or in the said

plaint schedule property. It is further stated that the plaint item

No.2 of the schedule property consists of residential house and

other improvements of the plaintiff which is situated towards

western side of Sy.No.117/4. There is direct access from this

survey number to Sy.No.117/2A. Sy.No. 117/2B was formerly in

the possession of his father, which was formerly a tank. Later,

at the request of the temple authority, i.e., defendant No.1, his

father has given up his claim in respect of Sy.No.117/2 portion

measuring 4 cents, which is now denoted as Sy.No.117/2B

wherein now Pakashala is situated. Even in the kattahuni, the

plaintiff has also planted coconut plants which are now aged

about 6-7 years. Apart from it, there are yielding coconut trees

of aged about more than 35-40 years.

5. It is contended that when the matter stood thus,

defendant No.2 claiming to be a leader in the locality and

claiming to be the well wisher of defendant No.1, in order to gain

popularity in the locality, is making attempts to remove the

coconut from the trees situated in the kattahuni which was the

subject matter of the lease and in respect of which occupancy

right has been conferred in favour of his father. It is the plaintiff

who has been removing coconut from the trees situated in the

kattahuni. The plaintiff on 02.04.1999, when he was removing

coconut from the coconut trees situated in the southern

kattahuni, defendant Nos.1 and 2 objected stating that the

plaintiff shall not pluck coconut. The defendants have no

manner of right and they have no right to object the plaintiff

from plucking the coconut from the coconut trees situated in the

southern kattahuni of Sy.No.117/2A. The defendant No.1 which

is represented by Adalithedar is also supporting the illegal claim

of defendant No.2 even though defendant No.1 has no manner

of right over the plaint schedule property. Defendant No.1 and

defendant No.2 have held out a threat that they will take forcible

possession of the coconut trees and also remove the coconut

from the coconut trees situated in the plaint 'A' schedule

property and hence the suit was filed for the relief of permanent

injunction.

6. In pursuance of the suit summons, defendant Nos.1

and 2 appeared through their counsel and filed the written

statement denying all the averments of the plaint. It was

contended that the entries made in the RTCs produced by the

plaintiff are not conclusive proof of alleged existence of trees and

their possession by the plaintiff. The plaintiff is never in

possession and enjoyment of those trees. It is contended that

defendant No.1 temple is situated in Sy.No.117/4 of

Golthamajalu Village. In the outside of the temple in four sides,

there are existence of foundation like structure which covers and

protects the outer side "angana" of the temple. The said

foundation is very old mud construction and higher in level than

the level of the land on which the temple is situated. In the

southern side of the temple, the foundation like structure

contains rows of coconut trees as similarly situated in disputed

area. The plaintiff has made northern side foundation now the

subject matter of the dispute. The situation of the disputed

coconut trees are within the property of defendant No.1 temple.

The plaintiff has resorted this false suit with an intention to grab

the property of the temple. The alleged kattahuni is not situated

within Sy.No.117/2B. The plaint sketch is not correct one and

prepared by the plaintiff to suit his false claim. Based on the

pleadings of the parties, the Trial Court framed the issues and

the plaintiff in order to prove his case examined himself as P.W.1

and got examined two witnesses as P.W.2 and P.W.3 and got

marked the documents at Exs.P.1 to 48. The defendant No.2

got examined himself as D.W.1 and got examined one of the

trustee of defendant No.1 as D.W.2 and got marked the

documents at Exs.D.1 to 9. The Trial Court after considering

both oral and documentary evidence placed on record and

considering the admission elicited from the mouth of D.W.1 and

also considering Ex.P.48 and also the Commissioner report,

decreed the suit and hence the appeal was filed before the

Appellate Court in R.A.No.15/2012.

7. The appellant in the appeal contended that the Trial

Court has committed an error in decreeing the suit. It is

contended that the Trial Court erred in not appreciating the facts

of the case in a proper perspective and missed right point at

issue and thereby arrived at wrong conclusion and relied on

inadmissible and irrelevant evidence and circumstances. The

Trial Court has failed to understand that the dispute lies in the

alleged kattahuni and not in the survey number of the

properties. The documentary evidence and report of the

Commissioner reflects that the alleged kattahuni is not situated

in the plaintiff's property. The lower Court ought to have come

to the conclusion that the alleged kattahuni is not in the plaint

schedule property and identification of the property made by the

plaintiff is not correct. The Trial Court failed to understand both

oral and documentary evidence available on record. Based on

the grounds urged by the appellants, the Appellate Court also

formulated the point whether the plaintiff has established his

lawful possession over the schedule property and whether the

plaintiff has established interference and whether disputed

coconut trees fall within the properties of the plaintiff and the

Appellate Court reversed the finding of the Trial Court and comes

to the conclusion that the finding given by the Trial Court

requires interference and comes to the conclusion that the

plaintiff has not established the lawful possession over the

schedule properties and disputed coconut trees not comes within

the property of the plaintiff. Hence, the present R.S.A. is filed

before this Court by the plaintiffs/appellants.

8. The main contention of the learned counsel for the

appellants in the second appeal is that the lower Appellate Court

has erred in reversing the finding of fact rendered by the Trial

Court based on the admission of D.W.1 and D.W.2 and drawn

erroneous assumptions and committed an error. The lower

Appellate Court has assumed that there is a serious dispute

about the location of kattahuni and some of the coconut trees.

The lower Appellate Court committed an error in holding that the

plaint is silent about the existence of kattahuni in Sy.No.117/2A

and when he claims his property within the boundary lines

mentioned in the plaint and Ex.P.1, then he cannot claim right

over the alleged revetment structure found immediately towards

northern side of Sy.No.117/4, which belongs to the temple. The

lower Appellate Court has erred in assuming that Ex.D.1 sketch

is proved as the plaintiff in his evidence has admitted that the

same was prepared prior to filing of the suit, but he has not

applied for measurement, as such, in the absence of examining

the author of Ex.D.1, the First Appellate Court ought not to have

assumed that same is admitted in evidence and proved by the

defendants. The lower Appellate Court has erred in holding that

there cannot be kattahuni having 10-12 feet width ignoring the

fact that there exists coconut trees and other trees and there is

no bar in retaining the wide kattahuni to have free access, which

is supported by Ex.P.48 being an undisputed document which

was the basis for grant of occupancy right.

9. The learned counsel for the appellants would contend

that the First Appellate Court is not justified in reversing the

decree of the Trial Court ignoring the admission of D.W.1 as to

the possession of the plaintiff over plaint 'A' schedule property

and when there is no dispute as to Ex.P.48, which establishes

existence of kattahuni (bund), coconut and other trees which

was the basis for confirmation of occupancy right in favour of the

plaintiff's father. This Court taking note of the grounds urged in

the appeal while admitting the second appeal, framed substantial

question as follows:

"Having regard to the facts and circumstances of the case and the material on record whether the finding of the First Appellate Court that the plaintiff has failed to prove his lawful possession suffers perversity?"

10. Inspite of service of notice against the respondents,

they are unrepresented and hence this Court heard the

arguments of the learned counsel for the appellants. The

learned counsel for the appellants contended that Ex.P.48 in the

grant certificate and occupancy rights has been conferred and

the First Appellate Court failed to take note of the said document

as well as coupled with Commission report. The learned counsel

would contend that the finding given by the First Appellate Court

in paragraph No.17 is not correct and proceeded in an erroneous

approach. The learned counsel would contend that the Trial

Court in paragraph No.18 made detailed discussion with regard

to the pleadings as well as evidence on record and particularly

admission given by D.W.1 and in paragraph No.21 of the

judgment of the Trial Court taken note of Ex.C7 Commissioner

report and the First Appellate Court relies upon Ex.D.1 which is

not proved, but considered the same and ought not to have

relied upon the document of Ex.D.1 and hence the learned

counsel would contend that the material available on record is

ignored by the First Appellate Court and proceeded in an

erroneous approach.

11. Having heard the learned counsel for the appellants

and also on perusal of the material available on record, it is not

in dispute that the suit schedule property originally belonged to

the temple and also the Trial Court granted occupancy right in

favour of the father of the plaintiff. The plaintiff examined

himself as P.W.1 and got examined two witnesses as P.W.2 and

P.W.3. The plaintiff also produced the plaint sketch, which is

marked as Ex.P.1, copy of the order of the Land Tribunal, which

is marked as Ex.P.2, copy of the sketch along with order which is

marked as Ex.P.2(a) and also Ex.P.3 Form No.10 and produced

the RTC in respect of Sy.Nos.117/2, 117/3, 117/4 and

assessment receipt and copy of the complaint given in terms of

Exs.P.17 and 18 and copy of the petition given to the Deputy

Commissioner and photograph also produced. The notice issued

by ADLR is also produced before the Court, statement of

defendant No.1 before the ADLR is also produced as Ex.P.46 and

certified copy of sketch as Ex.P47, Ex.P.48 vakkalu kararu and

Commissioner report. The defendants have examined two

witnesses and marked the document at Exs.D.1 to 9. The

Commissioner has been examined and through Commissioner,

the document Exs.C1 to 9 are marked including Commissioner

report at Ex.C.7.

12. Having considered the grounds urged in the appeal,

the nature of the suit filed before the Trial Court is for the relief

of permanent injunction. Having read the evidence of the

plaintiff's witnesses as well as the defendants' witnesses, it is not

in dispute that the suit schedule property earlier belonged to the

temple and occupancy right has been granted in favour of the

father of the plaintiff. The plaintiff examining himself as P.W.1

and reiterated the averments of the plaint by filing an affidavit

and also spoken with regard to the interference made by the

defendants on 02.04.1999 and also spoken with regard to the

giving of complaint. In the cross-examination, it is elicited that

Sy.No.117/2 is located on the northern side of the temple and it

was a wet land and existence of kattahuni and also admits that

there were 31 coconut trees. His father had given application to

Sy.No.117/2 and order was passed in favour of his father and he

is having possession. While preparing Ex.P.48, he was not at

the spot. The temple is facing towards east. He says that in

respect of the disputed land and temple, there is no any

demarcation. The document Ex.D.1 is also confronted and the

same was prepared prior to the dispute. He has not given any

application to survey the disputed land, but defendant No.3 has

given the application. It is suggested that Ex.P.1 is not based on

any document and the same is false document and the same

was denied.

13. P.W.2 has spoken in terms of the evidence of P.W.1.

In the cross-examination, he admits that the disputed survey

number is not known to him and he admits that on the north of

the temple, there are anganas and also admits that on the north

of that angana, no wet land is situated. He denies the

suggestion that on the north of the temple, no kattahuni, but he

admits that on the surrounding of the temple on higher level

there is a katte and the said katte belongs to the temple. The

plaintiff is not having any right in respect of the same. It is

suggested that the plaintiff who is making dispute with regard to

the coconut trees are in existence on the said katte and the

same was denied.

14. On the other hand, the defendant who has been

examined as D.W.1 filed an affidavit and in the cross-

examination he admits that the occupancy right was granted in

favour of the father of the plaintiff i.e., Sy.No.117/2A to the

extent of 64 cents and his father was in cultivation of the said

land and his father is no more. Thereafter, the property was

transferred in the name of the plaintiff and he categorically

admits that the suit schedule property is in possession of the

plaintiff and at the time of dispute also as on the date of filing

the suit, the plaintiff was in possession. He also admits that

Ex.P.48 vakkalu kararu is a document of declaration in favour of

the plaintiff. But he claims that while surveying the land in

terms of Ex.D.2, notice was given and he does not know whether

the notice was served to the plaintiff or not. D.W.1 further

admits that while conducting the survey, mahazar was drawn

and the statement of temple persons was recorded but he does

not know with regard to the presence of the plaintiff at the time

of the drawing of mahazar. Ex.D1 was prepared at the time of

making the declaration and the original is with the temple. But

he was not present at the time of declaration and he is not

having personal information in respect of Ex.D1 and thereafter

he has got the information and no one is alive who has got

information in respect of Ex.D1. He cannot tell that who has

produced Ex.D1 and he also cannot tell about Ex.D1. He also

admits that Ex.P46 and P47 are prepared on 26.11.1999 by the

surveyors and the same are the Statement and Sketch

respectively and also they came to the spot and identified the

border.

15. The other witness is DW2. DW2 in his affidavit state

that the plaintiff is claiming that the coconut trees belonged to

him and in the cross-examination he admits that there are

documents to show that he is the Administrative Trustee of the

temple and also admits that the plaintiff's right was confirmed as

occupancy right and their property is in their possession and also

he knows what the plaintiff has claimed in the plaint. He also

admits that he cannot tell who gave the application to survey the

land and he is not aware of the information given to the plaintiff

while preparing the document at Ex.D1. It is suggested that

while preparing Ex.D1, no notice was given to the plaintiff and

the said suggestion was denied. He claims that Ex.D1 was

prepared when there was a dispute between the plaintiff and the

temple but he cannot tell after how many days, Ex.D1 was

prepared after the dispute.

16. Considered both the oral and documentary evidence

placed on record in particular the evidence of PW1, PW2, DW1

and DW2. In the cross-examination of PW1 with regard to the

dispute between the parties in respect of coconut trees is

concerned, nothing is elicited from the mouth of PW1 except that

Sy.No.70/2 is situated on the southern side of the temple and

the same is a wet land and having kattahuni and in the said

kattahuni there are 31 coconut trees. He categorically admits

that in respect of Sy.No.70/2, his father gave an application for

declaration and the same is granted and he is having the

possession of the same and also he admits that there are

coconut trees in Sy.No.117/2 but he cannot tell at what extent

the coconut trees are available. He categorically admits that

there is no any demarcation between the plaintiff's property and

the property of the temple. But in the cross-examination of

DW1, it is very clear that the occupancy right was granted in

favour of the plaintiff's father and he also admits that in

Sy.No.117/2a, the extent of 64 cents are available and there

was an order in favour of the plaintiff's father by the Land

Tribunal and father of the plaintiff was in possession during his

lifetime and after the death of the father, the plaintiff is in

possession of the suit schedule property and categorically admits

that at the time of dispute also, the land is in possession of the

plaintiff. This admission is very clear that the plaintiff is in

possession of the suit schedule property and earlier it was in the

possession of his father during his lifetime and injunction has

been granted in favour of the plaintiff in respect of the suit

schedule property. When such being the case, the First

Appellate Court ought not to have reversed the finding of the

Trial Court.

17. The Trial Court in its judgment, in paragraphs 17 to

23, discussed both the oral and documentary evidence placed on

record. In paragraph 14, discussed with regard to the oral

evidence of the plaintiff and the documents produced by the

plaintiff and taken note of the written statement in paragraph 15

and in paragraph 17, taken note of the admission given by DW1

and DW2. DW2 admits that the plaintiff is in possession of the

suit schedule property and the suit schedule property is situated

lower level than the land of the temple. The Trial Court also

taken note of the documents produced by the defendant

particularly, the document of Ex.D1 and also taken note of the

boundary mentioned in the same and extracted the answer

elicited from the mouth of DW1 in the cross-examination and in

paragraph 18, taken note with regard to the possession. DW1

categorically admitted with regard to the document at Ex.P48

which the plaintiff is relied upon. The Trial Court also taken note

of the Commissioner's reported at Ex.P7 in paragraph 19 to

prove the situation of kattahuni and stated that in the land

bearing Sy.No.117/3 of the plaintiff, having house, cow shed,

and Well and in Sy.No.117/2, areca nut plant, coconut trees and

banana plants are also there and also in the sketch line 216

there are 144 links and 56 links and there is a fencing of

Dasavala and there are 5 coconut trees on the northern side and

they are aged about 40 to 50 years and the said fencing is in

existence between the land of the plaintiff and the temple and

the said fencing bifurcates the land of both the parties and there

are 5 coconut trees on the southern side and approximate age of

that trees is 40-50 years and 5 coconut trees towards northern

side of the said fencing and also there is an areca garden. Hence

taking into note of this report, the Trial Court comes to the

conclusion that northern side of the said fencing belonged to the

plaintiff and trees situated in the southern side of the fencing

belongs to the temple and the plaintiff is enjoying the trees

which were planted towards northern side of the temple and also

taken note of the evidence of PW1 in paragraph 20 regarding

marking of document at Ex.D1 and author of the document at

Ex.D1 has not been examined. The Trial Court taking note of

Ex.P46 and P47 dated 26.11.1999 which are prepared at the

spot by the surveyor and mahazar was drawn and the same is

admitted by the witnesses who have been examined before the

Trial Court i.e., DW1 and DW2. When such being the case, the

Trial Court comes to the conclusion that Ex.P46 and P47 are not

disputed and there is a presumptive value in respect of Ex.P46

and P47 and considering the material available on record

particularly the documents at Ex.P46 to P48 and also taken note

of the evidence of CW1 who has admitted in the cross-

examination that there is no basis to show that Panchanga is

situated in survey line 216 and taking into note of the material

available on record comes to the conclusion that the plaintiff has

proved the case.

18. The First Appellate Court while reversing the

judgment of the Trial Court considered the grounds urged in the

appeal and discussed in detail regarding suit schedule property

consists of two items of property i.e., Sy.No.117/2a to the

extent of 64 cents and also taken note of dispute lies in between

southern boundary of item No.1 of schedule and northern

boundary of Sy.No.117/4 but comes to the conclusion that there

is no mention about situation of coconut trees in Ex.P46 and P47

but observed that the plaintiff cannot claim right over the alleged

revetment structure found immediate towards northern side of

Sy.No.117/4 is that of belongs to the plaintiff and RTC pertaining

to schedule property at Ex.P5 for the year 1998-99, Ex.P6 up to

Ex.P9, wherein it is mentioned about existence of coconut trees,

areca trees and other fruit trees along with one building and

RTCs also disclose the situation of the temple, house of the

plaintiff, situation of pakashale, etc. Ex.P12 also discloses the

coconut trees and other trees but the same has not been

considered by the First Appellate Court but comes to the

conclusion that those entries will not help the plaintiff to lay

claim over the existence of the same over the kattahuni. The

very approach of the First Appellate Court is erroneous and failed

to take note of the admission given by DW1 and DW2 and

erroneously comes to the conclusion that when the

Commissioner's report is against him, no importance can be

attached to cross-examination of Commissioner by defendant for

the reason that when the plaintiff cross-examined the

Commissioner, he has put the suggestion to him stating that his

earlier report and sketch prepared is correct. It is observed that

if both the sketch and report are read along with Ex.D1 sketch,

schedule and boundaries given therein, then, claim of the

plaintiff over the coconut trees situated on southern side of

survey line 216 is highly improper and therefore, the plaintiff is

guilty of suppression and the very observation of the First

Appellate Court is erroneous and the same is against the

Commissioner's report as well as the admission given by DW1

and DW2.

19. The First Appellate Court though referred the

admission given by DW1 in the cross-examination in page No.28

of its order but observed that DW1 admitted that at the time of

preparing of Ex.D2, notice was given to him on 19.04.1999 and

original sketch is with the temple and Ex.D1 sketch is prepared

at the time of grant of the land. Hence, the First Appellate Court

has committed an error in coming to the conclusion that when

the document at Ex.D1 was confronted to the plaintiff, same can

be relied upon and mere confronting and admitting the

document cannot be a ground to accept the document at Ex.D1

and erroneously comes to the conclusion that coconut trees are

situated in disputed area and dispute is only with regard to the

possession of those trees by the plaintiff and the defendant. The

suit is for the relief of permanent injunction is not in dispute and

injunction is also sought for in respect of suit schedule property.

DW1 and DW2 have categorically admitted that the plaintiff's

father was in possession of the suit schedule property during his

lifetime and thereafter, the plaintiff is in possession of the suit

schedule property and the documents at Ex.P46 and P47 are not

disputed and the same is also admitted by DW1 but only

conclusion arrived by the First Appellate Court that Ex.P48 is

silent regarding where exactly the coconut trees are situated and

given more importance to the evidence of PW1 that he was not

present at the time of preparing Ex.P48 and taken note of the

admission given by PW1 that Ex.D1 was prepared prior to filing

of the suit after the measurement and said document came to be

marked as Ex.D1 and he had not applied for measurement of

properties and erroneously comes to the conclusion that the

disputed kattahuni comes beyond the property of the plaintiff

towards southern side and when the suit is filed for the relief of

permanent injunction and relief is sought for to restrain the

defendant from entering and interfering with the property of the

plaintiff and Court ought to have taken note of the admission

given by DW1 as well as DW2 instead of that proceeded to

comes to a other conclusion that the coconut trees are not

situated within the suit schedule property and there is no any

authenticated document before the Court with regard to the

location of the coconut trees and injunction is also granted in

respect of the suit schedule property and DW1 and DW2 have

categorically admitted that earlier property belongs to the

temple and thereafter occupancy right was granted in favour of

the plaintiff's father and after the death of the father, the

plaintiff is in possession of the same and the First Appellate

Court has given more importance to the document at Ex.D1 and

approach of the First Appellate Court is against the admissions

elicited from the mouth of DW1 and DW2. The finding given by

the First Appellate Court in paragraph 17 is against the

admissions available on record and also the documentary

evidence available on record particularly Ex.P46 to P48. The

document at Ex.D1 has not been proved and the Trial Court in

detail discussed both the oral and documentary evidence placed

on record and Ex.D1 is only the certified copy of the sketch and

the author of the said document also has not been examined and

there is a reference in the document at Ex.P48, the existence of

coconut trees and no contra evidence against the document at

Ex.P48. But the First Appellate Court comes to the conclusion

that no reference in the document at Ex.P48 regarding existence

of coconut trees and the same is contrary to the mentioning of

coconut trees in document at Ex.P48.

20. On perusal of document at Ex.D1, no doubt, coconut

trees are mentioned in Sy.No.117/4 and in order to prove that

document, the author of the said document has not been

examined. DW1 categorically admitted in the cross-examination

that no notice was given to the plaintiff while preparing the

document at Ex.D1 and he has not sure about giving of notice to

the plaintiff but claims that notice was given at the instance of

temple and he cannot tell whether the said notice was served on

the plaintiff or not and this admission is found in paragraph 8 of

the cross-examination of DW1 and also he categorically admits

that he cannot tell whether the plaintiff was present or not and

no document to show that the notice was served on the plaintiff

but categorically admitted that Ex.D1 was prepared at the time

of declaration but DW1 categorically says that he was not

present at the time of preparing the document at Ex.D1 and he

is not having any personal information in respect of Ex.D1. When

these are the answers elicited from the mouth of DW1, the First

Appellate Court ought not to have accepted the document of

Ex.D1 when DW1 admits that he cannot tell that who had

produced Ex.D1 and hence, he cannot tell anything about Ex.D1.

21. The other witness DW2 also in the cross-examination

in respect of Ex.D1 is concerned, says that he is not having any

knowledge about the service of notice at Ex.D2 by the temple,

but he is the Administrative Trustee of the temple and he did not

made any attempt to know that whether Ex.D2 notice was

served on the plaintiff or not and also he cannot tell who gave an

application to measure the property in respect of Ex.D2 and he is

also not having any knowledge about giving of any application to

survey the property and further he admits that he cannot tell at

whose instance the said document was prepared and also he

cannot tell that whether the information was given to the

plaintiff while preparing the document at Ex.D1 and when these

answers are elicited from the mouth of DW1 and DW2, the First

Appellate Court ought not to have relied upon the document of

Ex.D1 and hence, the First Appellate Court committed an error in

setting aside the judgment of the Trial Court and the reasons

assigned by the First Appellate Court are contrary to the material

available on record and hence, taking into note of both oral and

documentary evidence placed on record, I have answered the

substantial question of law as affirmative in coming to the

conclusion that the First Appellate Court has committed an error

that the plaintiff has not proved his lawful possession over the

suit schedule property and hence, the same amounts to

perversity and ignored both oral and documentary evidence

placed on record particularly, the answer elicited from the mouth

of DW1 and DW2 with regard to the possession as well as the

document at Ex.D1 which has been relied upon by the First

Appellate Court hence, the appeal filed by the plaintiff/appellant

deserves to be allowed by answering substantive question of law

as affirmative.

22. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed.

(ii) The judgment and decree of the First Appellate Court passed in R.A.No.15/2012 is set aside and the judgment and decree of the Trial Court passed in O.S.No.65/1999 is restored and confirmed.

Sd/-

JUDGE

MD/SN