Full Judgment
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 415 OF 2023 BETWEEN: SRINIVAS, S/O T. DASAPPA, AGED ABOUT 60 YEARS, R/AT ANEDODDI VILLAGE, KOPPA HOBLI, MADDURU TALUK, MANDYA DISTRICT - 571 401. …APPELLANT
(BY SRI. VINAYA KEERTHI M, ADVOCATE FOR SMT. SHRUTHI S.P, ADVOCATE) AND: Digitally 1. RAJESH, signed by SUMA B N S/O BENNATTI CHIKKANNA, Location: AGED ABOUT 55 YEARS, High Court of Karnataka HEAD MASTER, GOVERNMENT PRIMARY SCHOOL, DANANAYAKANAPURA VILLAGE, KEREGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT - 571 401.
2. BOREGOWDA, S/O LINGE GOWDA, AGED ABOUT 46 YEARS, -2-
3. ARUN KUMAR, S/O SHIVALINGAIAH, AGED ABOUT 49 YEARS,
4. LOKESH, S/O THAMMAIAH, AGED ABOUT 49 YEARS,
5. VENKATALINGAIAH, S/O LINGAIAH, AGED ABOUT 46 YEARS,
6. RAMAKRISHNA, S/O SANNAPPA, AGED ABOUT 43 YEARS,
7. SADANANDA, S/O CHIKKANNA, AGED ABOUT 43 YEARS,
8. NAGAMMA, W/O SHANKARA, AGED ABOUT 41 YEARS,
9. INDRA, W/O GIRI, AGED ABOUT 40 YEARS,
10. MANGALA, W/O KUMAR, AGED ABOUT 49 YEARS, R2 TO R10 ARE RESIDING AT GOVERNMENT PRIMARY SCHOOL, DANANAYAKANAPURA VILLAGE, KEREGODU HOBLI, -3-
MANDYA TALUK, MANDYA DISTRICT - 571 446. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2022 PASSED IN RA NO.56/2019 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANDYA.
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.08.2019 PASSED ON OS NO.49/2012 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, MANYDA. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff aggrieved by the
judgment and decree dated 28.08.2019 passed in
O.S.No.49/2012 on the file of II Additional Civil Judge and JMFC, Mandya which was confirmed by the judgment and decree dated 30.09.2022 passed in RA No.56/2019 on the file of II Additional Senior Civil Judge and JMFC, Mandya.
2. The above suit is filed by the plaintiff for the relief of bare injunction against the defendants contending that the suit schedule property was originally granted to -4-
one Gangubai, wife of Ramsingh through Darkhast in the year 1940. That after the demise of Gangubai her son B.R. Vishwanath Singh sold the same to one Channegowda in terms of deed of sale dated 26.03.1981. 2.1 Grandson of Channegowda by name B.L. Kantaraju and his brother B.L. Ramalingaiah had got their name mutated in the revenue records. Thereafter, in terms of partition, the said property was allotted to the joint possession of B.L. Kantaraju and his sister Yashodamma. The said Kantaraju and Yashodamma had executed an agreement of sale in respect of schedule property in favour of one Parashivaiah S/o Shivalingaiah, which led to filing of suit in O.S.No.166/2001 for the relief of specific performance.
3. The said suit was partly decreed directing the
defendants therein to refund the sale consideration amount to the plaintiff. An Execution Petition was filed in Ex.P.95/2008, in which, the schedule property was put for public auction. Plaintiff herein purchased the schedule property in the said public auction. The sale was confirmed -5- in favour of the plaintiff and deed of sale was executed and registered in favour of the plaintiff on 12.04.2011. The
plaintiff filed Misc.case.No.10/2011 and obtained the possession of the suit property on 10.08.2011. Thus, the plaintiff has been in possession and enjoyment of the suit schedule property as absolute owner thereof. That the plaintiff had approached the Tahasildar for change of khata, but, for want of survey sketch the khata was not changed in his name and Tahasildar had issued an endorsement in this regard.
4. It is further the case of the plaintiff that at the
time of grant of property it was referred to with Sy.No.16 of Dhananayakanapura Village and after pakka phodi it was assigned with new Sy.No.140. That the defendants being the residents of Dhananayakanapura Village are causing interference with the peaceful enjoyment and possession of the plaintiff over the suit property, constraining him to approach the Court by filing the above suit. -6-
5. Defendant No.1 filed written statement which
was adopted by the defendants Nos.2 to 8. The defendants denied the title and possession of the plaintiff over the suit property. It is contended by the defendants that on the request of Deputy Director, Public Instructions Department, Mandya, 1 Acre 9 guntas of land in Sy.No.141 was granted for construction of Government Higher Primary School and Playground and another 6 guntas of land in same survey number was granted for the
purpose of construction of Public Library, Teachers' Quarters and for other purposes. Thus it is contended that the said granted land belonged to the school. That the plaintiff with an intention of knocking off the remaining 25 guntas of Government Kharab land in Sy.No.141 by showing incorrect and wrong description of the property has filed the present suit without having any right, title and interest over both the Sy.Nos.140 and 141. As such sought for dismissal of the suit.
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6. On the basis of the pleadings trial Court framed the following issues for its consideration. " 1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit?
2. Whether the plaintiff proves the alleged interference and obstruction by the defendants?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?"
7. Plaintiff examined himself as PW-1 and two
additional witnesses as PW-2 and PW-3 and exhibited seven documents marked as Ex.P.1 to P.7. One Rajesh has been examined as DW-1 and nine documents were got marked as Exs.D.1 to D.9.
8. On appreciation of the evidence, trial Court
dismissed the suit as the plaintiff failed to prove the possession over the suit schedule property. Aggrieved by the same, plaintiff has preferred Regular Appeal in R.A.No.56/2019. -8-
9. Considering the grounds urged First Appellate Court framed the following points for its consideration. "1. Has the plaintiff established that he is in lawful possession and enjoyment of the suit property as on the date of suit?
2. Has the plaintiff established the alleged interference by the defendants?
3. Whether the judgment and decree passed by the trial court is justified?
4. Whether the judgment of the trial court requires interference?
5. What order or decree?"
10. On re-appreciation of the evidence, the First Appellate Court dismissed the appeal confirming the
judgment and decree passed by the trial Court. Aggrieved
by the same the plaintiff is before this Court.
11. Learned counsel for the appellant reiterating the
ground urged in the memorandum of appeal submitted that when the plaintiff purchased the property the same was referred to the Sy.No.140. However, he does not dispute that originally grant was made and the land was referred to Sy.No.16. The trial Court and First Appellate Court on appreciation of evidence have found that -9- Sy.No.16 was originally a Gomala land which was subsequently assigned with Sy.Nos.137, 138, 139 and 140 and the remaining land has also been assigned with Sy.No.141. The trial Court has also found that as per Ex.D.1, the Official Memorandum issued by Deputy Director, Mandya Sy.No.141, measuring 1 acre 9 guntas has been granted to the Government School for the purposes of construction of amenities.
12. Trial Court and First Appellate Court have
juxtaposed the description of the property given in the documents produced by the plaintiff with that of the documents produced by the defendants and have found that the property being claimed by the plaintiff is the same that of the property belonging to first defendant. As such, came to the conclusion that the property being claimed by the plaintiff and the property belonging to the first defendant is one and the same. Further the trial Court referring to the oral evidence of the witnesses has come to the conclusion that the description being given by them is
- 10 - not the one which is factually existing as such dismissed the suit.
13. The first Appellate Court on re-appreciation of
the evidence while confirming the judgment and decree passed by the trial Court also referred to the law laid down by the Hon'ble Supreme Court in the case of Anathula Sudhakar V/s. P. Buchi Reddy (dead) by LR's and others reported in AIR 2008 SC 2033 and consequently negatived the contention of the plaintiff.
14. Thus, though the plaintiff who has claimed that
he has purchased the property which is at Sy.No.140, on appreciation of the evidence trial Court and First Appellate Court have come to the conclusion that the property being claimed by plaintiff is the one which is being claimed by the defendants as well. Since the trial Court and the First Appellate Court have appreciated the factual aspects of the matter come to a common and concurrent conclusion, the same cannot be interfered under Section 100 of Code of Civil Procedure, 1908. No substantial Question of law
- 11 - would arise for consideration in this appeal. Hence, the following:
ORDER
(i). Appeal is dismissed. (ii). It is made clear notwithstanding the dismissal of the appeal, the plaintiff is entitled to seek such comprehensive relief as would be available and permissible under law. Sd/- JUDGE BVK List No.: 1 Sl No.: 10