Karnataka High Court
Balakrishna Ningappa Kusane vs Vaman Govind Yalaji on 1 July, 2024
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NC: 2024:KHC-D:9036
RSA No. 100206 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100206 OF 2016 (INJ-)
BETWEEN:
1. SHRI BALAKRISHNA NINGAPPA KUSANE
(SINCE DECEASED BY HIS LEGAL
REPRESENTATIVES)
1(A) SHRI. MADHAV
S/O BALAKRISHNA KUSANE,
AGE: 66 YEARS, OCC: SERVICE,
R/O: H.NO. 1247, BASAVAN GALLI
SHAHAPUR, BELAGAVI-590016.
1(B) SMT. LATA PRATAP DHUNDUM,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O:H.NO. 1366, BASAVAN GALLI,
Digitally signed SHAHAPUR, BELAGAVI-590016.
by SAROJA
HANGARAKI
Location: HIGH 1(C) SHRI ANIL
COURT OF S/O BALAKRISHNA KUSANE,
KARNATAKA AGE: 60 YEARS, OCC: SERVICE,
DHARWAD
BENCH R/O:H.NO. 1247, BASAVAN GALLI,
DHARWAD SHAHAPUR, BELAGAVI-590016.
1(D) SHRI SUDHIR
S/O BALAKRISHNA KUSANE,
AGE: 56 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
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NC: 2024:KHC-D:9036
RSA No. 100206 of 2016
1(E) SHRI. SUNIL
S/O BALAKRISHNA KUSANE,
AGE: 54 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
2. SHRI SHANKAR NINGAPPA KUSANE,
AGE: 75 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
...APPELLANTS
(BY SRI SHAFIAHAMAD B. SHAIK &
SRI SANTOSH B. RAWOOT, ADVOCATES)
AND:
SHRI VAMAN GOVIND YALAJI,
AGE: 64 YEARS, OCC: BUSINESS,
R/O:H.NO.572, MATH GALLI,
BELAGAVI-590016.
...RESPONDENT
(BY SRI CHETAN MUNNOLI, ADVOCATE FOR
SRI R.M.KULKARNI & SRI PRATIK SHIPURKAR)
THIS RSA IS FILED U/SEC.100 R/W ORDER XLII RULE 1 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
13.03.2015 PASSED IN R.A.NO.128/2008 BY THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, BELAGAVI, CONFIRMING THE JUDGMENT
AND DECREE PASSED IN O.S.NO.544/2006 BY THE I ADDITIONAL
CIVIL JUDGE (JR.DN.) & JMFC, BELAGAVI, DATED 26.05.2008, BY
DISMISSING THE SUIT OF THE RESPONDENT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:9036
RSA No. 100206 of 2016
JUDGMENT
The above second appeal is filed under Section 100 of the Code of Civil Procedure1, by the legal heirs of the original defendant No.1 and defendant 2 challenging the judgment and decree dated 13.03.2015 passed in R.A.No.128/2008 by the Principal Senior Civil Judge and CJM, Belagavi2 and the judgment and decree dated 26.05.2008 passed in O.S.No.544/2006 by the I Additional Civil Judge and JMFC, Belagavi3, whereunder the suit for permanent injunction has been decreed by the Trial Court which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their ranking before the trial Court for the sake of convenience.
3. It is the case of the plaintiff that he is the absolute owner of the property namely 1 acre of agricultural land in R.S.No.659, Hissa No.4 of Macche 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as 'First Appellate Court' 3 Hereinafter referred to as 'Trial Court' -4- NC: 2024:KHC-D:9036 RSA No. 100206 of 2016 village, Belagavi4 having purchased the same vide registered Sale Deed dated 21.04.1980 and that he is in actual possession and enjoyment of the suit property by cultivating various crops like paddy, etc. That the defendants being the owner of neighboring agricultural lands in R.S.No.659 itself, are interfering with the peaceful possession and enjoyment of the suit property by the plaintiff. Hence, the plaintiff filed a suit for injunction.
4. The defendants entered appearance and contested the case of the plaintiff by filing written statement. The defendants however admitted the Sale Deed under which the plaintiff purchased the property. However it is contended that the plaintiff is the subsequent purchaser of the suit property and has never cultivated the same and not grown any crops and hence is not in possession of the suit property for about 12 years prior to filing of the suit. The defendants contend that they have purchased 26 acres and 12 gutnas in R.S.No.659 out of 4 Hereinafter referred to as 'suit property' -5- NC: 2024:KHC-D:9036 RSA No. 100206 of 2016 the total extent of 29 cares of 12 guntas along with two brothers namely Yallappa and Irappa under two registered Sale Deeds in the year 1968. That although they have purchased 26 acres 12 guntas, the vendor handed over possession of the entire extent of R.S.No.659 totally measuring 29 acres 12 guntas to the defendants and their two brothers. That the defendants sold a portion of the property owned by them vide two Sale Deeds dated 17.09.1968 and 04.10.1968 to an extent of 21 acres 12 guntas and 5 acres respectively. Hence, the plaintiff has no right over the suit property.
5. Consequent to the pleadings of the parties, the Trial Court framed five issues. The Trial Court upon an appreciation of the oral and documentary evidence on record, has noticed that the defendants have admitted that the plaintiff purchased the suit property vide registered Sale Deed dated 21.03.1980. Further, it was noticed that the name of the plaintiff is mutated in the revenue records vide M.E.No.3476 dated 22.04.1980. It -6- NC: 2024:KHC-D:9036 RSA No. 100206 of 2016 has been held that the plaintiff is in actual possession of the suit property and is cultivating various crops in the same and that he has sold sugarcane to the sugar factory by paying revenue to the Government.
6. The Trial Court, noticing the contention of the defendants, has recorded a finding that the defendants having greed of more extent of land, they tried to put forth their claim over the suit property on the basis of the registered document dated 21.02.1969 (Ex.D.4). That the Trial Court has recorded a finding that the assertion of the defendants that they are in possession of the suit property has not been proved by producing adequate oral and documentary evidence. Hence, the Trial Court having recorded a categorical finding that the defendants were attempting to interfere with the possession, has decreed the suit.
7. Being aggrieved, the defendants preferred R.A.No.128/2008. The plaintiff entered appearance before the First Appellate Court and contested the same. -7-
NC: 2024:KHC-D:9036 RSA No. 100206 of 2016
8. The First Appellate Court upon a detail reappreciation of the oral and documentary evidence on record, has held that the case of the plaintiff that he is in possession of the suit property is a more probable one than the case of the defendants. Hence, the First Appellate Court has affirmed the findings recorded by the Trial Court and dismissed the appeal filed by the defendants.
9. Learned counsel for the respondent submitted that both the plaintiff and the defendants have sold the property.
10. It is forthcoming from the aforementioned that both the Courts having recorded concurrent findings of fact that the plaintiff is in possession of the suit property and that the defendants are trying to interfere with the same, the appellants have failed to demonstrate that the said concurrent findings of fact are erroneous and is liable to be interfered with by this Court in the present appeal. -8-
NC: 2024:KHC-D:9036 RSA No. 100206 of 2016
11. Hence, the present appeal is dismissed as being devoid of merit at the stage of admission itself.
Sd/-
JUDGE Sh CT:GSM List No.: 1 Sl No.: 23