Karnataka High Court
Shivasiddegowda vs Dali Boregowda on 29 July, 2024
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NC: 2024:KHC:29856
RSA No. 577 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.577 OF 2009 (INJ)
BETWEEN:
SHIVASIDDEGOWDA
S/O MADEGOWDA
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1. SMT LAKSHMAMMA
W/O LATE SHIVASIDDEGOWDA
DECEASED
(DELETED VIDE ORDER DATED 05.07.2024)
2. K S ASHWATHANARAYANA
S/O LATE SHIVASIDDEGOWDA
AGED ABOUT 45 YEARS
3. VIJAY KUMAR
Digitally signed S/O LATE SHIVASIDDEGOWDA
by R DEEPA AGED ABOUT 43 YEARS
Location: HIGH
COURT OF 4. MAHADEVA
KARNATAKA
S/O LATE SHIVASIDDEGOWDA
AGED ABOUT 40 YEARS
5. MANJULA
D/O LATE SHIVASIDDEGOWDA
R/AT D NO 27, 3RD CROSS, MAIN
KUMBARAKOPPA, MYSORE 570017
...APPELLANTS
(BY SRI. VELANKI RAVI, ADVOCATE FOR
SRI. P B RAJU., ADVOCATE
SRI. P.S. JAGADISH)
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NC: 2024:KHC:29856
RSA No. 577 of 2009
AND:
DALI BOREGOWDA
SINCE DECEASED BY HIS LRS
1. CHIKKATHAYAMMA
W/O LATE DALI BOREGOWDA
DECEASED REP. BY R4 (DAUGHTER)
2. SUBBEGOWDA
S/O LATE DALI BOREGOWDA
DECEASED REP. BY R5 TO R8 (WIFE AND SONS)
3. LAKSHMAMMA
D/O LATE DALI BOREGOWDA
DECEASED
4. BORAMMA
D/O LATE DALI BOREGOWDA, MAJOR
R/AT ANNAYYAPPANA BEEDI,
KUMBARAKOPPAL,
MYSORE
5. SMT JAYAMMA
W/O LATE SUBBEGOWDA
AGED ABOUT 63 YEARS
6. S ANNAIAH
S/O LATE SUBBEGOWDA
AGED ABOUT 47 YEARS
7. SHIVARAJ
S/O LATE SUBBEGOWDA
AGED ABOUT 42 YEARS
8. SHIVAKUMAR
S/O LATE SUBBEGOWDA
AGED ABOUT 40 YEARS
RESPONDENT Nos.5 TO 8 ARE
R/AT D.NO.33/16,
KEMPEGOWDA STREET
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NC: 2024:KHC:29856
RSA No. 577 of 2009
KUMBARAKOPPAL - 570 017
MYSURU.
...RESPONDENTS
(BY SRI. H C SHIVARAMU, ADVOCATE FOR R5 TO R8;
V/O DATED 28.11.2012 R4 IS LR OF R1 & R3;
R5 TO R8 ARE LRS OF R2;
R4 - SERVED, UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 28.2.2009 PASSED IN
R.A.NO. 116/1993 ON THE FILE OF THE II ADDL.CIVIL JUDGE
(SR.DN.), MYSORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 26.2.1993
PASSED IN OS.NO. 582/1982 ON THE FILE OF THE PRL.I
MUNSIFF, MYSORE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 28.02.2009, passed in R.A.No.116/1993 by the II Addl. Civil Judge (Sr.Dn.) & CJM, Mysore.
For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants -4- NC: 2024:KHC:29856 RSA No. 577 of 2009 are the legal representatives of plaintiffs and respondents are the defendants.
2. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for permanent injunction restraining the defendants from interfering with the possession and enjoyment of his site No.H8 situated in Kumbarakoppal measuring East to West 60 feet and North to South 50 feet. It is the case of the plaintiff that, the plaintiff is the absolute owner of the suit site as he had purchased the site from Mysore City Corporation on 29.08.1978 for a sum of Rs.362/-. The Mysore City Corporation delivered possession of the site in favour of the plaintiff. The plaintiff after obtaining the necessary permission from the Corporation, has commenced construction of a building over the aforesaid site. The defendant has no right, title or interest over the suit property. The defendant tried to interfere with plaintiff's construction over the suit property on 13.11.1982 and -5- NC: 2024:KHC:29856 RSA No. 577 of 2009 17.11.1982. Hence cause of action arose for the plaintiff to file the suit for permanent injunction.
3. Defendants filed written statement stating that the suit property is not a site. The boundaries furnished to the suit property refers to Sy.No.182/1 of Hebbal Village, Mysore Taluk which belongs to the defendant. It is contended that, Sy.No.182 measures 1 acre 33 guntas and out of that defendant purchased 1 acre 13 guntas from one Thippegowda under a registered sale deed. Now the said land is re-numbered as Sy.No.182/1. Out of that land, the defendant sold 18 guntas to different persons and the same has been acquired and further once 2½ guntas and again 20½ guntas was acquired and the defendant received compensation in respect of the said acquired land. It is contended that the plaintiff has no right, title or interest over the suit schedule property. Hence prayed to dismiss the suit.
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NC: 2024:KHC:29856 RSA No. 577 of 2009
4. The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issue:
Issues:
(1) Whether the plaintiff proves the interference by the defendant?
(2) Whether he is entitled for permanent injunction?
(3) To what decree is the plaintiff entitled?
Addl. Issue:
"Whether the plaintiff proves that he is in possession of the suit property?"
5. In order to prove the case of the plaintiffs, the plaintiff examined himself as PW-1 and got marked 22 documents as Exs.P1 to P22. In rebuttal, defendant examined two witnesses as DW-1 and DW-2 and got marked 14 documents as Exs.D1 to D14. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 and 2 and additional issue in the affirmative and issue No.3 as per the final order. The suit of the plaintiff was decreed and permanent injunction was granted restraining the defendants from -7- NC: 2024:KHC:29856 RSA No. 577 of 2009 interfering with the possession of the suit property by the plaintiff.
6. The defendants aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.116/1993. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
(1) Whether the learned Civil Judge is justified in decreeing the suit filed by the plaintiff in O.S.No.582/82 against the defendant for grant of permanent injunction?
(2) Whether the judgment and decree passed by the trial Court in O.S.No.582/82 is capricious, perverse and arbitrary which needs interference of this Court?
(3) What order?
7. Further, the defendants filed an application for production of additional evidence. The said application came to be allowed and the first Appellate Court has marked the documents as Exs.A1 to A6. The first Appellate Court placing reliance on the documents produced before it and on re-assessing the oral and documentary evidence, answered point No.1 in negative -8- NC: 2024:KHC:29856 RSA No. 577 of 2009 and point No.2 in affirmative and point No.3 as per the final order and consequently allowed the appeal filed by the defendants and the judgment and decree passed in O.S.No.582/1982 dated 26.02.1993, was set aside and the suit of the plaintiff was dismissed. The plaintiff aggrieved by the judgment and decree passed by the first Appellate Court, has filed this second appeal.
8. Heard learned counsel for the parties.
9. Learned counsel for the plaintiff submits that the first Appellate Court has passed the impugned judgment only on the ground that the demand register extract issued by the Tahsildar for the year 1961-1970 states that 1 acre 10½ guntas of land in bearing Sy.No.182 of Hebbal Village, Mysuru Taluk has been dropped from the acquisition proceedings. The said finding recorded by the first Appellate Court is without any basis.
He submits that the plaintiff has produced Ex.P16, which discloses that the said land was acquired under the Gazette Notification dated 30.11.1967, and that the -9- NC: 2024:KHC:29856 RSA No. 577 of 2009 defendants have not produced any records to establish that the acquisition proceedings were dropped in respect of Sy.No.182. He submits that the defendants have not produced any records to show that 12 guntas of land in Sy.No.182/1 was in possession and enjoyment of the defendants. The first Appellate Court dismissed the suit. The plaintiff has shown the boundaries of the suit schedule property and the first Appellate Court has also dismissed the suit on the ground of identity and possession of the property. The first Appellate Court has not properly appreciated the material on record and passed the impugned judgment. Hence, the impugned judgment is arbitrary and erroneous. Accordingly, he prayed to allow the appeal.
10. Learned counsel for the defendants submits that the land acquisition initiated by the acquiring authority was dropped and further, the defendants are in possession and enjoyment of the suit schedule property. He submits that the boundaries mentioned in the plaint is
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NC: 2024:KHC:29856 RSA No. 577 of 2009 part and parcel of Sy.No.182/1 of Hebbal village. He submits that the said land belongs to the original defendant as he had purchased the said land measuring 1 acre 13 guntas from one Thippegowda and after purchase, the said land was renumbered as Sy.No.182/1 and out of the said land, the defendants sold 18 guntas in favour of different persons and some portion of the land was acquired by the acquiring authority. He also submits that 2 ½ guntas and 20 and ½ guntas was acquired and the defendants received the compensation amount and remaining land i.e., 12 guntas is in possession and enjoyment of the defendants. Hence, he submits that there is a dispute in regard to the identity and boundaries of the suit property. The first Appellate Court considering that there is a dispute in regard to the boundary and identity, has rightly passed the impugned judgment. The first Appellate Court after re-appreciating the entire material on record was justified in passing the impugned judgment. He submits that the impugned judgment passed by the first Appellate Court is just and proper and does not
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NC: 2024:KHC:29856 RSA No. 577 of 2009 call for any interference. Hence, he prayed to dismiss the appeal.
11. Perused the records and considered the submissions of learned counsel for the parties.
12. This court admitted the appeal on 10.12.2012, to consider the following substantial question of law :
"Whether the lower appellate court is justified in allowing the appeal preferred by the defendant and setting aside the judgment and decree passed by the trial Court wherein it has decreed the suit of the plaintiff and granted permanent injunction restraining the defendant from interfering with the possession and enjoyment over the suit schedule property on the ground that the plaintiff has failed to prove that the suit site is carved out of the acquired land of the defendant ignoring the admission made by the defendant in his written statement that out of 1 acre 13 guntas purchased by him, an extent of 0.23 guntas has been acquired by CITB?"
13. Substantial question of law: It is the case of the plaintiff that, the plaintiff is the absolute owner of the suit schedule property as the same was purchased by him from the Mysuru City Corporation on 29.08.1978 for
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NC: 2024:KHC:29856 RSA No. 577 of 2009 valuable consideration and possession was delivered by Mysuru City Corporation in favour of the plaintiff and name of the plaintiff is appearing in the Corporation record. The plaintiff applied for license for construction of a building on the site. The corporation authorities after due enquiry granted license for construction of building on the said site and approved the plan. The plaintiff in order to establish his case examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and in order to establish that he is the owner of the suit schedule property produced allotment letter marked as Ex.P1, Ex.P2 is the possession certification which discloses that Mysuru City Corporation delivered the possession of the suit property in favour of plaintiff, Ex.P3 is the receipt for having paid the property tax, Ex.P4 is the endorsement, Ex.P5 is the tax paid receipt, Ex.P6 is the plan, wherein the authorities have approved the proposed sanction plan, Ex.P7 is the copy of affidavit of the plaintiff, wherein he has stated in the said affidavit that he had acquired the ownership and possession of site No.H8 measuring 60 feet
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NC: 2024:KHC:29856 RSA No. 577 of 2009 X 50 feet and stated that he has not holding any other vacant land or any other land with a building with a dwelling unit covered under the Urban Land (Ceiling and Regulation) Act, 1976 and Ex.P8 is the license issued to the plaintiff for constructing building specified in the sanctioned plan on site No.H-8, block No.5 situated at Kumbar Koppal Devaraj Mohalla Mysuru, Exs.P9 to P14 are the photographs which discloses that the plaintiff commenced construction by digging pits, Ex.P9(a) to 14(a) are the negatives, Ex.P15 is the gazette notification which discloses that acquiring authority acquired the lands vide notification dated 30.11.1967 which discloses that land bearing Sy.No.182/1 was acquired under the said notification, Ex.P16 is the award passed under Section 11 of the Land Acquisition Act, 1894, which discloses that the land bearing Sy.No.182/1 measuring 1 acre 10 ½ guntas was acquired and name of the defendants are shown as kathedar and anubhavadar, Ex.P17 is the list of properties acquired by the acquiring authority, Ex.P18 is the layout plan, Ex.P18(a) is the H, block portion, Ex.P19 and 21 are
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NC: 2024:KHC:29856 RSA No. 577 of 2009 the possession certificates, Ex.P20 is the allotment order, Ex.P22 is the endorsement. Nothing has been elicited in the course of cross examination except suggesting the plaintiff is not the owner and in possession of the suit schedule property. The said suggestion was denied by PW.1 and further, the plaintiff has examined two witness as PW.2 and PW.3, who have deposed that the plaintiff is in possession and enjoyment of the suit schedule property and the defendant has no concern over the suit schedule property.
14. In rebuttal, the legal heir of the defendants was examined as DW.1 and he has reiterated the written statement averments in the examination in chief and produced the documents i.e., Ex.D1 is the index of lands, Ex.D2 is the copy of record of right, Ex.D3 and D4 are the photographs, Exs.D5 to D7 are the tax paid receipts, Ex.D8 and D9 are the RTC copies, Exs.D10 and 11 are the photographs, Exs.D12 and D13 are N.C.R, Ex.D14 is the photographs 6 in numbers. From the evidence of DW.1
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NC: 2024:KHC:29856 RSA No. 577 of 2009 that defendants have purchased 1 acre 13 guntas and out of the said extent 2½ guntas and another 20½ guntas was acquired and the defendants sold 18 guntas to different persons and the defendants are in possession to the extent of 12 guntas of land in SY.No.182/1. But from the perusal of Ex.P16 it discloses that the land was acquired by the Government for Kumbar Koppal Layout measuring 1 acre 10 ½ guntas. If Ex.P16 is looked into and the defence of the defendants that he has sold 18 guntas to different persons and 2½ guntas and 20½ guntas were acquired, the said defence does not matches with Ex.P16. Further, the defendants have not produced any record to show that the acquiring authority had dropped the acquisition proceedings. From the perusal of the documents produced by the plaintiff it discloses that the site was granted in favour of the plaintiff by CITB under Ex.P1 and possession certificate was issued as per Ex.P2, which discloses that the plaintiff is in possession and enjoyment of the suit schedule property. The defendants have not challenged the award passed by the land
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NC: 2024:KHC:29856 RSA No. 577 of 2009 acquisition officer acquiring Sy.No.182/1 measuring 1 acre 10½ guntas. The trial Court considering the over all material evidence has rightly held that the plaintiff has proved that he is in possession and enjoyment of the suit schedule property and the defendants obstructed the construction of the plaintiff over the suit schedule property. The plaintiff has produced the license issued by the competent authority granting a permission to the plaintiff to construct building over site No.8 and plan was approved. The defendants have not challenged the construction permission issued to the plaintiff. The trial Court was justified in decreeing the suit of the plaintiff. The first Appellate Court considering the demand register extract issued by the Tahsildar for year 1961 to 1970 has come to a conclusion that the acquisition proceedings were dropped. The said finding recorded by the first Appellate Court is contrary to the records. The defendants have not produced any record to establish that the acquisition proceedings in respect of Sy.No.182/1 was dropped and in the absence of the documents, the first Appellate Court
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NC: 2024:KHC:29856 RSA No. 577 of 2009 has committed an error in recording the said finding and passed the impugned judgment. Though the defendants have denied the identity and possession of the suit schedule property. The plaintiff has shown the boundaries and site number in the suit schedule property. The said boundary shown in the plan tallies with Ex.P2 i.e., the possession certificate issued on 29.08.1978. The defendants have not denied the contents of Ex.P2. Thus, the suit schedule property can be identified by the boundaries and site numbers in terms of Order VII Rule 3 of CPC. The first Appellate Court committed an error in passing the impugned judgment. In view of the above discussion, I answer substantial question of law in negative.
15. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is allowed.
The judgment and decree passed by the first Appellate Court in R.A.No.116/1993 dated
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NC: 2024:KHC:29856 RSA No. 577 of 2009 28.02.2009, is set aside. Consequently, the judgment and decree passed by the trial Court in O.S.No.582/1982 dated 26.02.1993, is restored.
No order as to the costs.
SD/-
(ASHOK S. KINAGI) JUDGE RD/ssb