HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.300 OF 1999 Dated 17-9-2010 Between: U.Veerabhadrappa. …Appellant. And: D.Pampa Reddy and another. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.300 OF 1999 JUDGMENT: This is an appeal filed by the plaintiff-appellant and it was admitted on the following substantial questions of law on 13-7- 1999. “a) Whether the appellate Court is right in allowing the application filed by the defendant to produce certain document, particularly Ex.B.6 and whether the appellate Court is right in relying on the same without Ex.B.6 being proved in accordance with law by examining the person who issued it. The finding based on Ex.B-6 accordingly, would be a finding based on material, which is not proved in accordance with law. Therefore, such findings are vitiated and cannot be binding on the High Court under Section 100 C.P.C.” Heard the learned counsel for the appellant and the learned counsel for the respondents. Mr. T.S.Anand learned counsel for the appellant submits that Ex.B.6 on which the respondent/defendant placed reliance is a document No.37 dated 19-5-1934. The said document said to be a permission granted to the forefathers of the defendant is sought to be connected by the defendant to the plaint schedule property to the claim that he has been in possession of the suit land. The plaintiff on the contrary placed reliance on Ex.A.23 which is certified copy of minutes of the resolution of Grampanchayat for the period from 24-4-1921 to 10-7-1935 and this document is filed to disprove Ex.B.6 by contending that there is no reference to any such permission as is sought to be projected on the basis of Ex.B.6. Further, the counsel states that Ex.B.6 is not proved at all and in that view of the matter contends that substantial questions of law deserves to be answered in his favour. In order to support the claim for injunction, the learned counsel for the appellant placed reliance upon Ex.A.1 site plan regarding which there is no controversy and Ex.A.2 certified copy of the adangal for the period of Faslies 1381 to 1384. The learned counsel points out that the entry in S.No.131 in the adangal shows that survey No.337/2 to the extent of Ac.0.06 cents is under encroachment of the plaintiff’s father and the said entry is consistently shown for all Fasli years which proved his possession. Ex.A.5 is an application for obtaining certified copy relating to the possession of the plaintiff’s father and letter addressed to the Mandal Revenue Officer, Maddikera requesting to issue 2-A Registers. Ex.A.25 is relied upon to show that H.No.2/20 records the name of the appellant-plaintiff and his family. Ex.A.27 is another certificate stating that the plaintiff- appellant is the owner of the old house No.1/20 with new house No.3-2-48. Apart from these documents, plaintiff counsel placed reliance upon Ex.A.28 certified certificate issued by the Executive Officer of Grampanchayat, Maddikera dated 28-8-1993 specifically mentioning that the plaintiff’s father and after him, plaintiff is in possession of the house No.2/20 with specific encroachment in front of the said house. Similarly, Ex.X.2 is relied upon which is the site plan produced and marked through the Executive Officer P.W.5 which specifically mentions the place in possession and enjoyment of the appellant-plaintiff. The rest of the documents filed by the appellant are in the nature of photographs and negatives and on the basis of which the learned counsel contends that the appellant-plaintiff has proved his possession and courts below committed error in not appreciating the evidence properly. Learned counsel seriously attacks the findings of the lower appellate Court also by contending that Ex.B.6 which is fabricated document disallowed by the trial Court was relied upon by the appellate Court to come to a conclusion that the defendants father constructed and had obtained permission to construct in the suit land. Mr. K.Somakonda Reddy learned counsel for the respondents on the contrary submits that though in a suit of this nature, it is essential for the appellant-plaintiff to establish his possession and relies upon Ex.A.1 the site plan to contend that after the plaintiff’s house, there is 10 feet road and beyond that the land that is the site in question, which abuts the defendants’ house. He therefore submits that it is impossible to accept the contention of the appellant that he was in possession of the suit site though it does not abut his house and though 10 feet road separate the plaintiff’s house and the suit land. Learned counsel also points out that Ex.A.2 on which reliance is placed by the appellant does not any where show that it relates to the suit land. He points out that the extent of survey No.337 is Ac.97-92 cents as shown in column 5 and as such, Ac.0.06 cents entry thereon cannot be said to be relating to the suit land itself. Learned counsel for the respondents points out that Ex.A.28 on which reliance is placed is dated 28-8-93 which is at least four years after the suit and similarly Ex.X.2 is dated 28-5-1994 five years after the suit and criticized the said document on the ground that the Executive Officer who is said to have issued both the documents has no authority to issue any certificate or certify anybody’s possession. These documents are therefore liable to be ignored. To the extent of Ex.B.6 also, the learned counsel does not press any contention and stated that though it was a permission and the same was not proved is immaterial in view of the fact that the appellant-plaintiff has to succeed in his suit on the basis of his own strength and not on any weakness of the defendants. As Ex.B.6 is not pressed by the learned counsel for the respondents, the main part of substantial questions of law need not be answered as the respondents also are not placing any reliance on the said document and does not support the judgment of the appellant Court to that extent. However, the other part of the substantial questions of law namely whether the judgment of the Courts below are vitiated is concerned, on consideration of the evidence on record, I am of the view that the said question also has to be answered in the negative. The suit site as is evidenced from Ex.A.1 as well as Ex.X.2 and which is not in dispute is that the plaintiff’s house bearing No.1/20 abuts the road which is shown as 10 feet and beyond the road and adjacent to the defendants’ house plaint schedule land marked as ‘ABCDEF’ is shown. The lower appellate Court relied upon a decision of the Bombay High Court reported in MAHAMADSAHEB IBRAHIMSAHIB v. TILOKCHAND ABHEERCHAND MARWADI ([1]). The land abutting the house can be presumed to be belonging to the owner of the house but that situation does not exist in the present case as the suit land admittedly is beyond the road abutting the plaintiff’s house. I am also not prepared to accept the contention of the learned counsel that Ex.A.2 can be connected to the suit schedule land as the said document merely states that a fraction of part of Ac.97-92 cents is under encroachment of the plaintiff’s father. The same does not necessarily relate to the suit schedule land. Similarly even if Ex.A.23 is said to rebut Ex.B.6, the other two documents relied upon by the plaintiff namely Ex.A.28 and Ex.X.2 are at least 4/5 years later than the suit and the said documents cannot be looked into to prove the possession of the plaintiff on the date of the suit. In view of the aforesaid evidence on record, I am unable to see any perversity in the findings recorded by the lower Courts and it cannot be said that the impugned judgments are vitiated and require the correction by this Court under Section 100 C.P.C. Appeal is therefore, liable to be dismissed and accordingly, the same is dismissed. However, there shall be no order as to costs. ________________________________ Justice VILAS V. AFZULPURKAR Dated 17-9-2010. Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.300 OF 1999 Dated 17-9-2010 [1] 1922 BOM BAY 243