Sri. Govindappa vs Sri. N H Rehman
2023 Latest Caselaw 1762 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 10TH DAY OF MARCH, 2023

                          BEFORE

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

                 R.S.A.NO.119/2018 (DEC/INJ)

BETWEEN:

SRI GOVINDAPPA,
S/O VENKATESHAPPA @ KATHEPPA,
AGED ABOUT 53 YEARS,
R/AT NAYANAHALLI MAJARA,
KOTHUR VILLAGE,
BETHAMANGALA HOBLI,
BANGARPET TALUK-563 116.
                                               ... APPELLANT

            (BY SMT. V.N.RAKSHITHA, ADVOCATE FOR
             SRI RAGHAVENDRA RAO K., ADVOCATE)

AND:

1.     SRI N.H. REHMAN,
       S/O LATE HYDER SAB,
       AGED ABOUT 68 YEARS.

2.     SMT. DILSHAD BEGUM,
       W/O N.H. REHMAN,
       AGED ABOUT 58 YEARS.

3.     SRI VENKATESHAPPA,
       S/O VENKATESHAPPA @ KATHEPPA,
       AGED ABOUT 55 YEARS.

4.     SRI MUNIYAPPA,
       S/O VENKATESHAPPA @ KATHEPPA,
       AGED ABOUT 51 YEARS.
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5.   SMT. MUNILAKSHMAMMA,
     W/O GOVINDAPPA,
     AGED ABOUT 48 YEARS.

     RESPONDENT NO.1 TO 5 ARE
     R/O NAYANAHALLI MAJARA,
     KOTHUR VILLAGE,
     BETHAMANGALA HOBLI,
     BANGARPET TALUK-563 116.

     SRI CHIKKA VENKATASWAMI BOVI,
     SINCE DEAD BY HIS LRS.,

6.   SRI VENKATESHAPPA,
     S/O LATE CHIKKA VENKATASWAMI BOVI,
     AGED ABOUT 58 YEARS,
     R/AT NAYANAHALLI MAJARA,
     KOTHUR VILLAGE,
     BETHAMANGALA HOBLI,
     BANGARPET TALUK-563 116.

7.   SRI RAJAPPA,
     S/O VENKATESHAPPA,
     AGED ABOUT 28 YEARS,
     R/AT NAYANAHALLI MAJARA,
     KOTHUR VILLAGE,
     BETHAMANGALA HOBLI,
     BANGARPET TALUK-563116.

8.   SRI A.M.LAKSHMINARAYANA,
     S/O SRI MIDDEMANE MUNIYAPPA,
     AGED ABOUT 67 YEARS,
     R/AT BETHAMANGALA NEW TOWN,
     BETHAMANGALA HOBLI,
     BANGARPET TALUK-563 116.
                                          ... RESPONDENTS

     (BY SRI Y.R. SADASIVA REDDY, SENIOR COUNSEL FOR
        SRI RAHUL S. REDDY, ADVOCATE FOR R1 & R2;
           NOTICE TO R5 TO R8 IS DISPENSED WITH
               VIDE ORDER DATED 19.08.2018;
           NOTICE TO R3 & R4 IS DISPENSED WITH
               VIDE ORDER DATED 19.12.2019)
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      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 13.11.2017 PASSED IN
R.A.NO.84/2015 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE
AND JMFC, K.G.F, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 15.10.2015 PASSED IN
O.S.NO.551/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC, K.G.F.

     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.02.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:

                        JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent Nos.1 and 2.

2. This appeal is filed challenging the judgment and

decree dated 13.11.2017, passed in R.A.No.84/2015, on the file

of the Additional Senior Civil Judge and JMFC, KGF.

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

the Trial Court while seeking the relief of permanent injunction in

respect of item Nos.1 and 2 of the suit schedule property is that

one Venkataswamy Bhovi was the absolute owner of item No.1

of the suit schedule property and he was in physical possession

and enjoyment of item No.1 of suit schedule property. The said

Venkataswamy Bhovi for his legal necessity sold the said

property by way of sale deed dated 12.03.2008 and plaintiff

No.1 had become the absolute owner of the suit schedule

property. It is further contended that plaintiff No.1 was the

absolute owner of item No.2 of the suit schedule property and

the plaintiff No.1 for his legal necessity had sold the property to

one A.M.Lakshmi Narayana (defendant No.7). Later, plaintiff

No.1 and defendant No.7 for their legal necessities sold item

No.2 of the suit property to plaintiff No.2 by way of registered

sale deed dated 12.11.2009 and by virtue of the absolute sale

deed dated 12.11.2009, plaintiff No.2 had become the absolute

owner of the suit schedule property. By virtue of the absolute

sale deeds dated 12.03.2008 and 12.11.2009, all the relevant

documents are changed into the name of plaintiffs in respect of

the suit schedule property item Nos.1 and 2 and the names of

the plaintiffs finds a place in respect of suit schedule property

item Nos.1 and 2 and the revenue authorities have recognized

the right, title, interest and possession of the plaintiffs over the

suit schedule property item Nos.1 and 2 and the mutation

proceedings in M.R.No.9/2009-10 and 4/2009-10 clearly proves

that the sale deeds have been already acted upon and the RTC

pahanis for the year 2009-10 standing in the name of the

plaintiffs. It is further contended that subsequent to the sale

deeds dated 12.03.2008 and 12.11.2009, the plaintiffs have

been in possession and enjoyment of the suit schedule property

item Nos.1 and 2 and are raising seasonal crops thereon like

ragi, avare, thogare and other crops in the suit schedule

property item No.1 and 2 and the said aspect is also well within

the knowledge of the defendants and the defendants are

estopped from contending otherwise.

4. The defendant No.6 had filed an objection not to

effect khatha in the name of plaintiff No.1 in respect of suit

schedule property item No.1 and the said objection was

converted into a proceedings and the said proceedings in RRT

Dis.CR.12/2009-10 had ended in favour of plaintiff No.1 on

22.12.2009. It is further contended that the defendants have

absolutely no right, title, interest or possession over the suit

schedule property item Nos.1 and 2 and the defendants were

never in possession of suit schedule property at any point of

time in any manner subsequent to the sale deeds dated

12.03.2008 and 12.11.2009. The defendants and their family

members illegally made attempts to trespass and interfere over

the peaceful possession and enjoyment of the suit schedule

property item Nos.1 and 2 and hence without any other

alternative, the plaintiffs filed the suit.

5. In pursuance of the suit summons, defendant Nos.2

to 7 were placed exparte and defendant No.1 filed a detailed

written statement denying the entire averments of the plaint.

The defendant No.1 contended that the description of the suit

property is false and incorrect. It is contended that the plaintiffs

have filed this suit in order to claim the property in possession of

defendant No.1. By showing the northern boundary as property

of Chickabodappa have included the property in possession of

defendant No.1. The land described as item No.2 is not

measuring 2 acres 20 guntas, but measuring 4 acres. Further, it

is contended that he has been under Bagurhukum Saguvali in

the land measuring 1 acre in Sy.No.28 from number of years.

The land in possession of defendant No.1 is bounded on the east

by road and Kothamuniyappa, Beerappa and others, west by

plaintiffs' land, north by Chickbodanna @ Venkataswamy and

south by Chikkaboddanna land now sold to the plaintiffs (now

claimed by plaintiff as item No.2 land). The said land is in

possession of defendant No.1 and his family from number of

years. The defendant No.1 had applied to the Tahsildlar for

regularization of the unauthorized occupancy during the year

1999 and the proceedings were initiated in this regard and

mahazar was drawn, sketch was made showing the possession

of defendant No.1. The defendant No.1 has been in possession

of the said land from number of years growing crops and eking

out his livelihood. The plaintiffs have been illegally interfering

with defendant No.1's possession over the said land and now in

order to illegally knock off the said 1 acre of land, the plaintiffs

have engineered the above suit.

6. Based on the pleadings of the parties, the Trial Court

framed the issues and the plaintiffs in order to prove their case

examined plaintiff No.1 as P.W.1 and one witness as P.W.2 and

got marked the documents at Exs.P.1 to 9. The defendant No.1

has been examined as D.W.1 and two witnesses have been

examined as D.W.2 and D.W.3 and got marked the documents

at Exs.D.1 to 18. The Trial Court after considering both oral and

documentary evidence placed on record answered all the issues

partly in the affirmative and granted the decree in favour of the

plaintiffs in respect of item No.1 of the suit schedule property

and dismissed the suit in respect of item No.2 of the suit

schedule property.

7. Being aggrieved by the judgment and decree of the

Trial Court, the plaintiffs filed an appeal in R.A.No.84/2015

before the Appellate Court. The plaintiffs/appellants contended

that the judgment and decree of the Trial Court is perverse in

respect of item No.2 of the schedule property. Though there is

existence of 22 guntas of kharab land in item No.2 of the suit

schedule property, the Trial Court without appreciating the

material on record, has erred in holding that the plaintiffs have

failed to establish the said extent of 22 guntas of the land in

item No.2 of the suit schedule property. The Trial Court has not

considered the material available on record and comes to the

wrong conclusion in partly decreeing the suit. The finding of the

Trial Court is perverse and capricious and hence prayed the

Court to allow the suit in its entirety. The learned counsel for

the plaintiffs also filed an application under Order 41 Rule 27

read with Section 151 of CPC seeking permission to produce the

certified copy of tippani copy and Karnataka Revision Settlement

Akar Bundh. It is contended that those documents are obtained

recently from the concerned authority and hence could not

produce the same before the Trial Court and the said documents

throw much light into the actual situation of the case on hand

and those documents are just and necessary to resolve the

controversy between the parties.

8. The defendant No.1 filed statement of objections to

the said I.A. and contended that the documents produced was

within the knowledge of the plaintiffs and the documents do not

have any bearing on the appeal. The First Appellate Court

having perused the grounds urged in the appeal memo and also

the application formulated five points for consideration. On

appreciation of both oral and documentary evidence placed on

record, answered point Nos.1 and 2 in the affirmative in coming

to the conclusion that the plaintiffs have proved the existence of

22 guntas of kharab land in item No.2 of the schedule property

and the materials on record also prove the actual possession and

enjoyment of plaintiff No.2 over item No.2 of the suit schedule

property as on the date of suit and illegal interference of the

defendants. Point No.3 was answered in the negative. The

Appellate Court comes to the conclusion that it requires

interference of this Court and also with regard to filing of the

application under Order 41 Rule 27 of CPC comes to the

conclusion that the documents which have been produced are

not necessary and already the plaintiffs have proved the case

and allowed the appeal and granted the relief of injunction in

respect of item No.2 of the schedule property and directed the

defendants and their family members not to interfere with the

plaintiffs' peaceful possession and enjoyment over the item No.2

of the suit schedule property. Hence, the present appeal is filed

by defendant No.1 assailing the judgment of the First Appellate

Court.

9. The learned counsel for the appellant would

vehemently contend that the application filed under Order 41

Rule 27 of CPC seeking permission to adduce the additional

evidence before the First Appellate Court was not considered

properly. The proviso specifically contemplates that the parties

to the appeal shall not be entitled to produce additional evidence

unless they satisfy the requirement of Order 41 Rule 27 of CPC.

The Appellate Court disposed of I.A.No.4 mechanically and

without application of mind and without being satisfied whether

the said application has satisfied the ingredients of Order 41 Rule

27 of CPC and disposal of the said I.A. is illegal and the same is

not in accordance with Order 41 Rule 27 of CPC. The learned

counsel submits that Order 41 Rule 28 of CPC specifically

contemplates the mode of taking additional evidence. The First

Appellate Court has not taken the additional evidence as

required under Order 41 Rule 28 of CPC. It has neither taken

evidence on such additional documents nor has directed the Trial

Court to take evidence on these documents. Without taking

evidence on these additional documents produced by respondent

Nos.1 and 2, the First Appellate Court has adjudicated the

matter. Therefore, the adjudication made by the First Appellate

Court is contrary to Order 41 Rule 28 of CPC and therefore the

judgment of the First Appellate Court is unsustainable in law.

The Trial Court has considered the admission of P.W.1

elaborately and has recorded reasons for dismissal of the suit in

respect of item No.2 of the suit schedule property. The First

Appellate after considering the reasons of the Trial Court has to

record its own reasons and the same has not been done and

hence the very approach of the First Appellate Court is

erroneous.

10. This Court while admitting the appeal framed the

following substantial questions of law:

1. Whether the First Appellate Court was justified in allowing the application filed by the plaintiffs under Order 41 Rule 27 of CPC without

following the procedure laid down under Order 41 Rule 27 and Rule 28 of CPC?

2. Whether the First Appellate Court was justified in accepting the contention of the plaintiff that the kharab purportedly attached to the main property could be deemed to have been validly transferred, without even examining whether the kharab was 'A' or 'B' kharab and whether it was transferable?

3. Whether the First Appellate Court erred in reversing the judgment of the Trial Court while admittedly the plaintiffs sought to make out a new case by producing additional documents and therefore the plaintiffs were permitted to make out a new case which was neither pleaded nor proved before the Trial Court?

4. Whether the First Appellate Court was justified in granting injunctive relief in respect of part of item of No.2 of the suit schedule property (22 guntas of kharab land) even though plaintiffs failed to produce any evidence to prove possession over the disputed portion of item No.2?

11. The learned counsel for the appellant in her

arguments has reiterated the grounds urged in the appeal memo

and contended that there is no dispute with regard to granting of

injunction in respect of item No.1 and only dispute is in respect

of item No.2 of the suit schedule property. The learned counsel

would contend that in terms of the sale deed Ex.P.3 dated

12.11.2009, the plaintiff No.1 had purchased the property to the

extent of 2 acres 20 guntas and not included the kharab to the

extent of 22 guntas. The learned counsel contend that the First

Appellate Court committed an error in reversing the finding of

the Trial Court in respect of item No.2 and fails to give proper

reasons by re-assessing the material on record.

12. The learned counsel for the appellant in support of

her arguments relied upon the judgment of this Court in the case

of SRI DODDASHAMANNA @ SHAMANNA v.

VENKATESHAPPA G. AND ANOTHER reported in 2013 (2)

KCCR 1410 and relied upon paragraph No.13 of the judgment

wherein an observation is made with regard to the dispute is

only regarding 36 guntas of kharab land. It is also not in dispute

that this 36 guntas of kharab land is a part of Sy.No.9. Merely

because it becomes part of Sy.No.9, when what is granted is 3

acres 18 guntas, title to 36 guntas is not conveyed to the

plaintiffs. Therefore, Venkatarayappa acquired only 3 acres 18

guntas, he was not the owner of 36 guntas of kharab land which

is not the subject matter of grant. To that extent, the judgment

of the Trial Court is vitiated and is hereby set aside.

13. The learned counsel also relied upon the judgment of

the Apex Court in the case of AKHILESH SINGH ALIAS

AKHILESHWAR SINGH v. LAL BABU SINGH AND OTHERS

reported in (2018) 4 SCC 659 and brought to the notice of this

Court paragraph Nos.12 to 14 wherein, the Appellate Court

discussed with regard to the scope of Order 41 Rule 27 of CPC.

In paragraph No.12 it is held that Order 41 Rule 27 of CPC is

silent as to the procedure to be adopted by the High Court after

admission of additional evidence. Whether after admission of

additional evidence, it is necessary for the Appellate Court to

grant opportunity to other party to lead evidence in rebuttal or

to give any opportunity is not expressly provided in Order 41

Rule 2 of CPC. In paragraph No.13, extracted Order 41 Rule 2

of CPC and in paragraph No.14 held that Order 41 Rule 2

provides that the appellant shall not, except by leave of the

court, be allowed to urge any ground in the appeal, which is not

set forth in the memorandum of appeal. The proviso to Order 41

Rule 2 engrafts a rule, which obliged the Court to grant a

sufficient opportunity to the contesting party, if any new ground

is allowed to be urged by another party, which may affect the

contesting party. The provision engrafts rule of natural justice

and fair play that contesting party should be given opportunity

to meet any new ground sought to be urged. When Appellate

Court admits the additional evidence under Order 41 Rule 27, we

fail to see any reason for not following the same course of

granting an opportunity to the contesting party, which may be

affected by acceptance of additional evidence.

14. The learned counsel relying upon this judgment

would contend that the First Appellate Court has committed an

error in entertaining the application filed under Order 41 Rule 27

of CPC and also granting the relief of permanent injunction in

respect of even kharab land.

15. The learned counsel also relied upon the judgment of

this Court in the case of SADASHIVAIAH AND OTHERS v.

STATE OF KARNATAKA AND OTHERS reported in ILR 2003

KAR 5088, wherein in paragraph No.30 discussed with regard to

kharab land is concerned. Kharab land is so called because it is

not cultivable and is classification made for purposes of revenue

exemption. Kharab land is also capable of ownership and cannot

be regarded as an adjunct to cultivable land which gets

transferred along with the cultivable land. Acquisition of title to

the kharab land is similar to acquisition of title to the cultivable

land. The word "Phut Kharab" and 'pot' kharab mean and have

reference to a land which is included in an assessed survey

number but which is unfit for cultivation. Every pot kharab land

does not belong to government. For the purpose of assessment,

the uncultivable portion of the land or phut kharab portion of the

land is excluded from consideration on the ground that it is

cultivable. But it does not cease to belong to the owner of the

survey number. In volume I of the Mysore Revenue Manual, the

word kharab is explained in this way. The expression 'phut

kharab' is similar to the expression 'pot kharab'. That is so, is

clear from the Mysore Revenue Survey Manual where at page 68

the words 'pot kharab' land is defined as a piece of pieces of land

classed as unarable and included in a survey number. The

description has no relevance to ownership. The expression put

kharab is explained in Gupte's book on the Bombay Land

Revenue Code as 'barren or uncultivable land included in an

assessed survey number' and includes any land comprised in a

survey number. Which from any reason is held not to be likely

to be brought under cultivation."

16. The learned counsel referring this judgment would

contend that nature of kharab is also not decided by the First

Appellate Court and hence, it requires interference of this Court.

17. Per contra, the learned counsel for respondent Nos.1

and 2 would contend that the claim of defendant No.1 is that he

is in possession of Sy.No.28 and it is not his contention that he

is in possession of Sy.No.39 and kharab land is also in existence

in Sy.No.39. The learned counsel submits that in the cross-

examination he has categorically admitted that he is not claiming

any right in Sy.No.38 or Sy.No.39 and also it is his claim that he

is in unauthorized occupation of Sy.No.28 and made an

application for grant and no grant has been made and the same

is pending consideration according to him. The learned counsel

would contend that the relief sought is in respect of item No.2 is

also as mentioned in the earlier sale deed and no difference in

the boundaries mentioned in the suit schedule property and the

very contention of defendant No.1 that the plaintiff is making an

attempt to obtain the decree in respect of property of defendant

No.1 also has not been established. The First Appellate Court in

detail discussed the material on record and answered the points,

which have been formulated and granted the relief of permanent

injunction in respect of item No.2 of the suit schedule property.

Hence, no ground is made out to interfere with the judgment of

the First Appellate Court.

18. Now this Court keeping in view the contentions

urged in the appeal and also the oral arguments of the learned

counsel for the appellant and the learned counsel for respondent

Nos.1 and 2 has to consider the material on record. The first

substantial question of law framed by this Court is whether the

First Appellate Court was justified in allowing the application filed

by the plaintiffs under Order 41 Rule 27 of CPC without following

the procedure laid down under Order 41 Rule 27 and 28 of CPC.

Having considered this substantial question of law, this Court

would like to make it clear that application filed by the appellants

before the First Appellate Court has not been allowed and it is

disposed of by giving the reasoning in paragraph No.39 that

under such application, only sought permission to produce the

certified copy of Tippany and Karnataka Revision Settlement

Akar Bundh. By considering the material on record, the First

Appellate Court was of the opinion that when the said 22 guntas

of kharab land is part and parcel of item No.2 of the suit

schedule property and the same is in existence since 21.12.1966

in Sy.No.39, hence even in the absence of the said documents,

the plaintiffs have proved their case. The First Appellate Court

has not relied upon those documents and only disposed of the

application in coming to the conclusion that in the absence of the

said documents, the plaintiffs have proved their case and if such

documents are relied upon by the First Appellate Court, then

there is a force in the contention of the learned counsel for the

appellant that without giving an opportunity those documents

ought not to have been considered as contended by the learned

counsel for the appellant in relying upon the judgment referred

supra. These documents have not been relied by the First

Appellate Court and comes to the conclusion that in the absence

of the said documents the plaintiffs have already proved the case

by considering the material on record and not relied upon the

said documents. Hence, I answer substantial question of law

with regard to Order 41 Rule 27 of CPC that the application is

not allowed and also not relied upon the documents and the

question of following Rule 28 does not arise.

19. The second substantial question of law framed by

this Court is Whether the First Appellate Court was justified in

accepting the contention of the plaintiffs that the kharab

purportedly attached to the main property could be deemed to

have been validly transferred, without even examining whether

the kharab was 'A' or 'B' kharab and whether it was

transferable? The First Appellate Court while considering the

material on record, considered the said aspect in paragraph

No.29 with regard to the property was phoded in the year 1966

and re-numbered as Sy.No.39 in respect of Sy.No.28/P6. In

paragraph No.30 it is observed with regard to the negligence on

the part of the revenue authorities, though 22 guntas of kharab

land was shown in Sy.No.39 in the year 1966 itself, but after

selling item No.2 of the suit schedule property by plaintiff No.1

and defendant No.7 in favour of plaintiff No.2, the revenue

officials correctly mentioned the cultivable land as 2 acres 20

guntas and 22 guntas of kharab in the name of plaintiff No.2 in

Sy.No.39. The contention of defendant No.1 also answered that

in view of the said phodi document standing in the name of

Bodappa in Sy.No.39 as on 29.12.1966, the contention of

defendant No.1 that recently the revenue officials have included

22 guntas of kharab in Sy.No.39 does not hold water.

20. It is also important to note that the First Appellate

Court having considered the material available on record and

also considering the judgment of this Court in the case of

Sadashivaiah (supra), which has been relied upon by the

learned counsel for the appellant, taken note of the ratio laid

down in the said judgment and comes to the conclusion that the

said kharab land of 22 guntas is not 'B' kharab and the same is

'A' kharab. Hence, it is very clear that the First Appellate Court

having considered the principles laid down in the judgment

discussed in detail the nature of kharab whether it is 'A' or 'B'

kharab and concluded that 'B' kharab land does not belong to

the owner and it is reserved for public purpose, but it comes to

the conclusion that in the instant case, the said kharab of 22

guntas is not 'B' and the same is 'A' kharab. The First Appellate

Court examined the nature of kharab and comes to the

conclusion that it attaches the property of the suit schedule

property and hence comes to the conclusion that the plaintiff can

maintain the suit for permanent injunction with respect to item

No.2 of the suit schedule property.

21. The First Appellate Court also taken note of the

principles laid down in the judgment of this Court in the case of

Doddashamanna @ Shamanna (supra), which is also relied

upon by the learned counsel for the appellant before this Court

with regard to the granting of the specific relief of injunction and

comes to the conclusion that plaintiff No.2 is entitled for

equitable relief of permanent injunction with respect to item

No.2 of the suit schedule property including 22 guntas of kharab

land. In the said judgment it is held that the dispute is with

regard to 36 guntas of kharab land and it is also in dispute that

this 36 guntas of kharab land is a part of Sy.No.9 and also

observed that merely because it becomes part of Sy.No.9, when

what is granted is 3 acres 18 guntas, title to 36 guntas is not

conveyed to the plaintiffs. It has to be noted that the suit is filed

for the relief of injunction and not claimed any relief of

declaration in respect of kharab land. In this judgment it is also

observed that the defendant is neither the owner of Sy.No.10

nor in possession of this 36 guntas of land in Sy.No.9 and

therefore his plea that he has perfected his title by adverse

possession has remained only as a plea.

22. In the case on hand, it has to be noted that it is the

claim of the plaintiff that he has been in possession of the suit

schedule property bearing Sy.No.39 and the Appellate Court

taken note of the admission given by D.W.1 in the cross-

examination that he claims right in respect of Sy.No.28 on the

ground that he has been in unauthorized occupation and till

date, the same is not granted and the same is under pending

consideration. When the plaintiff has given specific admission

that he is no way concerned with Sy.Nos.38 or 39 and also it is

the specific case of the plaintiff that kharab land is attached to

Sy.No.39 in which he is in possession and the kharab land also

cannot be separated and the same is part of Sy.No.39. It is not

the claim of defendant No.1 that the said kharab land is part of

Sy.No.28 and only contention that considering kharab land of 22

guntas, the plaintiff is making an attempt to knock off the

property of defendant No.1 in respect of Sy.No.28. But the relief

is sought in respect of Sy.No.39 and not in respect of Sy.No.28.

When defendant No.1 admitted in the cross-examination that he

is nowhere concerned with Sy.No.39, the very contention of the

learned counsel for the appellant cannot be accepted. In the

cross-examination, his answer is specific that he has no right

over Sy.No.38, which is item No.1 of the suit schedule property

or Sy.No.39, which is item No.2 of the suit schedule property

and no relationship between himself and Sy.No.39 measuring 3

acres 2 guntas. It is important to note that in the cross-

examination he admits that he does not know what is in

existence towards eastern, western, northern and southern side

of Sy.No.39. He categorically admits that he is not in possession

and enjoyment over item No.1 of Sy.No.38 and item No.2 of

Sy.No.39. But only he claims that Sy.No.38 and Sy.No.39 are

adjacent to each other and the said properties are adjacent to

Sy.No.28. This fact is also taken note of by the First Appellate

Court in paragraph No.34 and in detail discussed while allowing

the appeal.

23. Having taken note of the said admission it is clear

that his contention is that the plaintiff has included 1 acre of his

land in item No.2 of the suit schedule property and the same

cannot be accepted. Hence, I do not find any force in the

contention of the learned counsel for the appellant that without

examining whether the kharab was 'A' or 'B' kharab, the

Appellate Court committed an error and the suit is filed for the

relief of permanent injunction and the second substantial

question of law is with regard to whether the First Appellate

Court was justified in accepting the contention of the plaintiff

that the Kharab purportedly attached to the main property could

be deemed to have been validly transferred, without even

examining whether the Kharab was 'A' or 'B' Kharab and whether

it was transferable does not arise and the scope of injunction suit

is limited and the Appellate Court also not comes to the

conclusion that the same has been transferred.

24. The third substantial question of law is whether the

First Appellate Court erred in reversing the judgment of the Trial

Court while admittedly the plaintiffs sought to make out a new

case by producing additional documents and the plaintiffs were

permitted to make out a new case which was neither pleaded

nor proved before the Trial Court? Though an application was

filed under Order 41 Rule 27 of CPC, the same was not

considered and only disposed of observing that in the absence of

those documents, the plaintiff has proved his case and hence I

do not find any substance in the contention that new case has

been set out and the First Appellate Court committed an error in

allowing the plaintiff to make out a new case and no such new

case has been made out, only by considering the material on

record, the First Appellate Court re-appreciated the material on

record.

25. The fourth substantial question of law is whether the

First Appellate Court was justified in granting injunctive relief in

respect of part of item of No.2 of the suit schedule property (22

guntas of kharab land) even though plaintiffs failed to produce

any evidence to prove possession over the disputed portion of

item No.2? Having considered the material available on record,

the relief sought in the suit is in respect of two items of the

properties and in respect of item No.1, no dispute and item No.2

is in respect of 2 acres 20 guntas and inclusive of 22 guntas of

kharab land. No doubt, in terms of the sale deed, only 2 acres

20 guntas of land was included, but not included kharab land.

But, the fact is that in the year 1966, phodi was done in respect

of the suit schedule property and earlier it was numbered as

Sy.No.28/P6 and after the phodi, the same is re-numbered as

Sy.No.39. The defendant No.1 is also not claming any right in

respect of Sy.No.39 and only claim is in respect of Sy.No.28 and

the same is not yet granted and only claims that defendant No.1

is in unauthorized occupation of Sy.No.28. The only contention

of defendant No.1 is that the plaintiff is making efforts to

possess the property of Sy.No.28. But the suit is filed only in

respect of Sy.No.39, which is re-numbered and relief sought is in

respect of Sy.No.39 and not Sy.No.28. The defendant No.1 also

categorically admitted that he is not having any relation to

Sy.No.39 and even Sy.No.38 also. When such admission is

given and when the suit is filed for the relief of permanent

injunction in respect of 2 acres 20 guntas inclusive of 22 guntas

of kharab land and the First Appellate Court also comes to the

conclusion that the kharab land is 'B' kharab land and

categorically the same is 'B' kharab land and the same is part of

Sy.No.39. When the same is part of Sy.No.39, the same cannot

be separated from 2 acres 20 guntas of land and the same is

inclusive of kharab land and it comes to 3 acres 2 guntas. When

such being the material on record and when defendant No.1

does not claim any right in respect of Sy.No.39 and the relief is

sought for permanent injunction and not declaration in respect of

kharab land of 22 guntas and hence the First Appellate Court has

not committed any error in granting injunctive relief in respect of

item No.2 of the schedule property which includes the kharab

land. Hence, I do not find any force in the contention of the

learned counsel for the appellant to set aside the order of the

First Appellate Court as contended in the appeal.

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

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD