Karnataka High Court
Sri Rudresh vs Smt Anasuyamma on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:24768
RSA No. 331 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 331 OF 2024 (INJ)
BETWEEN:
1. SRI RUDRESH
S/O DUMMAPPA,
AGED ABOUT 50 YEARS,
R/O KURABARA BEEDHI,
BEHIND BEERALINGESHWARA TEMPLE,
CHANNAGIRI TOWN AND TALUK-577213.
...APPELLANT
(BY SRI. SHRIDHAR NARAYAN HEGDE, ADVOCATE)
AND:
1. SMT. ANASUYAMMA
W/O LATE SREEKANTAIAH,
Digitally signed AGED ABOUT 75 YEARS,
by DEVIKA M OCC: AGRICULTURIST,
Location: HIGH
COURT OF 2. G.S. JAGANATH
KARNATAKA
S/O LATE SREEKANTAIAH,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
RESPONDENTS NO.1 AND 2 ARE
R/O. GOUDRA BEEDHI,
CHANNAGIRI TOWN AND TALUK-577213.
...RESPONDENTS
(BY SMT.G.M.SUMITHRA, ADVOCATE FOR
SMT. SARITHA KULKARNI, ADVOCATE)
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NC: 2024:KHC:24768
RSA No. 331 of 2024
THE RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED03.02.2024
PASSED IN R.A.NO.25/2023 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.08.2023 PASSED IN O.S.NO.127/2019 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the caveator-respondent Nos.1 and 2.
2. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.127/2019 while seeking the relief of permanent injunction is that the plaintiff No.1 is the mother of plaintiff No.2 and both are residents of Channagiri Town. The plaintiffs claimed possession of the suit schedule property through one Srikantaiah G.M., who was the husband of plaintiff No.1, father of plaintiff No.2, who died on 19.06.2013 leaving behind the plaintiffs as his legal representatives. Plaintiffs claimed title as well as possession of -3- NC: 2024:KHC:24768 RSA No. 331 of 2024 the suit schedule property of said Srikantaiah G.M. through a registered family partition dated 25.04.1988. The plaintiffs asserted that they are in actual, physical and peaceful possession in and over the suit schedule property and all the revenue records are standing in their names. It is contended that the defendant is stranger to the family and suit property. He attempted to intrude in its possession in 1st June 2019 and the same was resisted. It is also contended that on 26.06.2019 at about 11.00 a.m., the defendant with his supporters came near to the suit property by laying a false claim and tried to stop the agricultural work which was being done by the plaintiff through JCB and lorry in order to plant the coconut trees. The same was resisted with all hectic efforts and they have the complaint, but the complaint yield nothing and hence, filed the suit for the relief of permanent injunction.
3. The defendant appeared and filed the written statement denying the document of registered partition deed dated 25.04.1988 and also denied the alleged interference. On the other hand, it is the contention of the defendant that grand-father, father of defendant were in actual possession of suit schedule properties, since 1935. The defendant also -4- NC: 2024:KHC:24768 RSA No. 331 of 2024 continued such possession and he also made representation before the concerned authority, in order to get some report with regard to physical possession and enjoyment. Consequently, the competent authority did spot mahazar and gave report holding that the defendant is in possession of the suit schedule property within the boundaries as is mentioned in spot mahazar. It is contended that he is in possession of the suit schedule property and is growing maize crop in it and he is in possession of the suit schedule property from the date of their ancestors and hence, prayed the Court to dismiss the suit.
4. The Trial Court having considered the pleadings of the parties, allowed the parties to lead evidence and considering both oral and documentary evidence placed on record, accepted the contention of the plaintiffs that they got the property through a registered partition deed of the year 1988 and they are in continuous possession and also did not accept the contention with regard to the documents, particularly which have been produced by the defendant before the Court to evidence the fact that he in possession of the property.
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NC: 2024:KHC:24768 RSA No. 331 of 2024
5. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.25/2023. The First Appellate Court also, having considered the grounds urged and also considering both oral and documentary evidence placed on record, formulated the points whether the Trial Court committed an error in coming to the conclusion that the plaintiffs are in possession of the suit schedule property, whether there is interference. The First Appellate Court also comes to the conclusion that the plaintiffs have proved that they are in possession of the property and answered the said points as 'negative'. Being aggrieved by the said concurrent finding, the present second appeal is filed before this Court.
6. Learned counsel for the appellant would vehemently contend that both the Courts failed to consider the documents which establishes the fact that from 1935 the appellant is in continuous possession, including their ancestors. D.W.1, who was examined categorically stated that in the year 1935, his grand-father, his father and now he is in physical possession of the suit schedule property. Inpsite of document, particularly Ex.D1 which is the report given by the concerned Village -6- NC: 2024:KHC:24768 RSA No. 331 of 2024 Accountant, the same has not been considered by the Trial Court. Learned counsel would vehemently contend that Exs.D25 and D26 are the tax paid receipts in respect of the suit schedule property and the same have not been considered by the Trial Court. The defendant also produced Exs.D29, D30 and D31 which are RTC Extracts of the year 1969-70 to 1972-73, wherein the name of Dummappa was reflected and all these documents have not been considered by the Trial Court as well as the First Appellate Court. Hence, this Court has to admit the appeal in not accepting the documents of Exs.D1 to D5 which evidences the fact that the defendant and his ancestors were in possession of the suit schedule property.
7. Per contra, learned counsel for the respondents would vehemently contend that both the Trial Court and the First Appellate Court, taking into note of the registered partition deed of the year 1988, immediately changed the khatha in the name of the plaintiffs and revenue documents are standing in the name of the plaintiffs and though some of the documents are relied upon by the defendant, they are created document and there is no basis for claiming possession and possession has not been established, the Court has to take note of lawful -7- NC: 2024:KHC:24768 RSA No. 331 of 2024 possession and hence, the Trial Court and the First Appellate Court rightly not considered the tax paid receipts which came into existence after filing of the suit and not committed any error.
8. Having heard the learned counsel for the appellant and learned counsel for the caveator-respondent Nos.1 and 2, particularly the contention of the plaintiffs before the Trial Court is that they were in possession of the suit schedule property as on the date of the suit and they got the property through partition deed of the year 1988 and even subsequent to partition also, the revenue entries are made in favour of the plaintiffs and all the documents clearly disclose the possession of the plaintiffs. The Trial Court also particularly taken note of the document at Ex.P2 i.e., the copy of the partition deed which is a registered document dated 25.04.1988 and also taken note of the RTC Extracts from the year 1985-89 and throughout till filing of the suit which are marked as Exs.P4 to P24 and also taken note tax paid receipts which are prior to filing of the suit from 1994 onwards and M.R.No.4/1992-93 is also produced and Encumbrance Certificate issued in Form No.15 is produced from 01.04.1969 to 13.02.2020 and complaint lodged is also -8- NC: 2024:KHC:24768 RSA No. 331 of 2024 relied upon as Ex.P36. These are the documents which are considered by the Trial Court while passing the judgment and both the Courts comes to the conclusion that though the defendant claims possession from 1935 onwards, there is no basis for claiming the said possession and also did not accept the contention of the defendant, since tax paid receipts are also subsequent to filing of the suit in the year 2019 and tax paid receipts, particularly Exs.D25 and D26 both dated 05.02.2020 are subsequent to filing of the suit. No doubt, Exs.D13 to D22 i.e., photographs are relied upon, the photographs not disclose that who are in possession and the Court has to look into the material on record as on the date of filing of the suit and all the documents of RTC Extracts i.e., Exs.P4 to P24 shows that from the year 1985-89, till filing of the suit i.e., 2018-2019, tax paid receipts are also produced. Having considered these material on record, the Trial Court comes to the conclusion that the plaintiffs have established their possession.
9. Even the First Appellate Court also while re- appreciating the material on record taken note of the very case of the plaintiffs and defendant and also taken note of the fact that the defendant only relies upon the report of the Revenue -9- NC: 2024:KHC:24768 RSA No. 331 of 2024 Officer and also taken note of the documents at Exs.D7 and Ex.D27, whereby the name of one Dummappa is mutated in the revenue records of Sy.No.99/3 and the same is not supported by any document, which has been observed in Paragraph No.21 of the judgment. In Paragraph Nos.23, 24 and 25 of the judgment, it is observed that the plaintiffs mainly relied upon the document of Ex.P2-partition deed and immediately after execution of the partition deed, khatha was changed in the name of plaintiff No.1 by making entry in M.R.No.2/1988-89. The defendant though tried to maintain his claim of possession over the suit schedule property on the basis of Ex.D7 and D27, but failed in his attempt by virtue of Exs.D33 and D38. Since, the revenue records so placed by the plaintiffs are fetching presumptive value of possession over the suit schedule property and the documents which have been relied upon by the defendant not proves his continuous possession from 1935.
10. The learned counsel for the appellant also relied upon the judgment in ANATHULA SUDHAKAR VS. BUCHI REDDY (DEAD) BY LRS & ORS. in CIVIL APPEAL NO.6191 OF 2001 dated 25TH MARCH, 2008 and contend that, if there is dispute in title, the plaintiffs ought to have filed the suit for
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NC: 2024:KHC:24768 RSA No. 331 of 2024 the relief of declaration and permanent injunction and the said contention cannot be accepted, since the appellant/defendant is not claiming any title in respect of the suit schedule property, but his contention is that he is in settled possession from 1935 onwards. When such being the case, the principle laid down in the said judgment is not applicable to the facts of the case on hand and there is no cloud on the title of the plaintiffs, since the defendant is not claiming any title, except claiming possession.
11. When both the Courts have applied their mind and given anxious consideration to the material on record, particularly oral and documentary evidence and when the case of the plaintiffs is more probable than the defendant and in the civil case, the Court has to take note of preponderance of probabilities and the same has been considered by the Trial Court and the First Appellate Court. Hence, I do not find any force in the contention of the learned counsel for the appellant that matter requires to be admitted and substantial question of law needs to be framed and the both the Courts have given concurrent finding based on the material available on record
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NC: 2024:KHC:24768 RSA No. 331 of 2024 and there is no substantial question of law to be framed by admitting the appeal.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE ST List No.: 1 Sl No.: 83