NARASIMHA SHASTRY Vs. MANGESHA DEVARU

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Court of the Civil Judge, Mangalore, in R.A.No. 33 of 1976, dismissing the suit of the plaintiff, reversing the judgment and decree of the Court of Munsiff, Buntwal, South Kanara in Original Suit No. 170 of 1973, decreeing the suit of the plaintiff for permanent injunction against the defendants from interfering with his possession of the suit land especially on the portion to the west of rain water channel called 'kani'.

(2.) The plaintiff-appellant brought this simple suit for injunction alleging that he purchased the suit land from defendant-1 under a registered sale deed dated 16-11-1938 and at the time of the purchase the extent of this A schedule property was not clearly known, the approximate extent was noted in the sale deed but, the boundaries were specifically shown to identify the property and the boundaries have been clearly stated in the sale deed. While there is no dispute with regard to other three boundaries, the eastern boundary is contested by the parties. In the sale deed it is stated that the eastern boundary is a rain water channel and the areca garden of defendant-1. He then alleged that somewhere in August 1972 the defendants trespassed into his land and cut two trees. Therefore it was necessitated to file a suit for this relief. The defendants in their written statement referred to an earlier Original Suit No. 221/1946 for rectification of the sale deed and that suit was dismissed and secondly they denied the averments made in plaint para 3(2) and as the plaintiff cut the tree growth inspite of objections, they complained to the police and at the request of the police the plot was measured by the Taluk Surveyor who found the tree growth situated in S.No. 183/bC which is not owned by the plaintiff. The defendants cut removed only the branches near their house and the main tree remained there. In short, it was the contention of the defendants that they did not trespass on the land of the plaintiff. It is significant that nowhere they disputed that the land sold to the plaintiff did not extend till rain water channel and the specific allegation with regard to this eastern boundary pleaded in paragraph 2 of the plaint was not made in the written statement as pointed out by the appellant's Counsel and which according to him is very relevant for considering the respective portions in possession of the parties.

(3.) While the trial Court found on evidence that the land to the west of this rain water channel or kani was sold to the plaintiff and that all along he has been in possession of the same, the first Appellate Court on reappraisal of evidence found that the land did not extend till the rain water channel and the boundary terminated somewhere to the west of rain water channel and it also considered the survey map produced by the defendants. This judgment and decree of the first Appellant Court is challenged contending that the first Appellate Court completely ignored the main contention of the appellant that what exactly sold was the land within the boundaries stated in the sale deed and the First Appellate Court referring to the patty-proceedings mainly in support of its judgment was not right in negativing this basic proposition that where the extent of the land was not definite or is approximate, it is the boundaries that prevail. While the trial Court accepted and acted on this proposition, the First Appellate Court did not at all keep in view this proposition and acted on some other material which does not prove the possession of defendants to the portion west of the channel. This is the main contention of the appellant and at the time of admission the following question of law has been set down for determination. Whether the finding of the Court below that the plaintiff has failed to prove his title and possession in respect of the suit schedule property is vitiated on account of non-consideration of material evidence and circumstances in the case?