T B Nanjundappa vs Smt Geetha
2021 Latest Caselaw 5302 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 2nd DAY OF DECEMBER, 2021

                           BEFORE

  THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                  R.S.A.No.2010/2015

BETWEEN:

T.B.Nanjundappa
S/o late T.B.Eshwarappa,
Aged about 67 years,
R/o 3rd parallel road,
Durgi Gudi,
Shivamogga-577201.                        ... Appellant

(By Sri.S.V.Prakash, Adv.)

AND:

Smt. Geetha
W/o K.P.Manjunatha,
Aged about 42 years,
R/o Mallikarjuna Nilaya,
Channappa Layout,
Shivamogga-577201.                      ... Respondent

(By Sri.R.Gopal, Adv.)

     This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
23.09.2015 passed in RA.No.10/2014 on the file of the II
Addl. Sr. Civil Judge, Shivamogga dismissing the appeal
and confirming the judgment and decree dated 13.12.2012
passed in O.S.No.655/2003 on the file of the Prl. Civil
Judge and JFMC, Shivamogga.
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     This appeal coming on for admission, this day, the
Court delivered the following:

                          JUDGMENT

This instant regular second appeal has been filed by the

unsuccessful plaintiff challenging the judgment and decree

dated 13.12.2013 in O.S.No.655/2003 passed by the Court of

Prl. Civil Judge and JFMC, Shivamogga which has been

confirmed in R.A.No.10/2014 by the Court of II Addl. Senior

Civil Judge, Shivamogga by its judgment and decree dated

23.09.2015.

2. For the sake of convenience, the parties are referred to

by the rank assigned to them in the court at first instance.

3. Brief facts of the case that would be relevant for the

purpose of disposal of this appeal are, the plaintiff had filed

O.S.No.655/2003 before the Court of Prl. Civil Judge and

JMFC, Shivamogga (Hereinafter referred to as 'trial court')

for the relief of permanent injunction, restraining the

defendant, her agents, men and representatives from

entering into or in any way interfering with his peaceful

possession and enjoyment of the suit schedule property and

from removing the barbed wire fence by taking forcible

possession.

4. It is the case of the plaintiff that he is the absolute

owner in possession and enjoyment of the vacant site

measuring 40'X80', formed in Sy.No.30/1 of Block No.5

situated at Kallahalli, now called as Vinobhanagara,

Shimogga City. Out of the said total extent of the site, the

City Municipality, Shivamogga had acquired some portion of

the site for the purpose of widening of the road and therefore,

he was in possession and enjoyment of the property

measuring only 30'X60' which is described in the plaint

schedule. Further case of the plaintiff is that the suit

schedule property originally belongs to one K.Veerappa and

after his death, his wife Smt.Mallamma and children

succeeded to the said property and for their legal necessities,

the legal representatives of deceased Veerappa had executed

a sale deed in favour of plaintiff in respect of the suit

schedule property on 28.03.2000 and on the strength of the

same revenue records have been mutated in the name of the

plaintiff. It is the further case of the plaintiff that a portion of

the property was acquired by the City Municipality,

Shivamoga. He had applied for conversion of the said

revenue site for the purpose of construction of the house

before the Deputy Commissioner, Shimoga. The matter was

referred to the Tahsildar, Shimogga for property verification.

In this regard, the Tahsildar, Shimogga measured the

property through the Taluk Surveyor and prepared the

sketch reporting that the plaintiff was in actual possession of

the property measuring 30'X60' out of the full extent of

40'X80'. The plaintiff has further averred in the plaint that he

has paid betterment charges to the SUDA authorities,

Shimogga and he put up barbed wire fencing. Though the

defendant had no manner of right, title or interest over the

suit schedule property, she was trying to interfere with the

possession and enjoyment of the suit schedule property by

the plaintiff. Hence, left with no other alternative, the plaintiff

had filed O.S.No.655/2003 before the trial Court seeking

permanent injunction.

5. Upon service of suit summons, the defendant had

entered appearance before the trial court and filed her

written statement denying the entire plaint averments. The

defendant had contended that the suit schedule property is

not at all in existence and there is no identity of such

property described in the plaint schedule. The defendant had

stated that she is the absolute owner in possession of the site

bearing No.391 having Municipal Katha No.381/382/4126

and assessment No.382/41/26/391, measuring 20'x30' feet

situated in 34th Ward, Vinobahagara Extension, 2nd Stage,

Shimoga. The said property was purchased by her under the

registered sale deed dated 23.08.2003 from its previous

owner Sri. Suresh Dattaram Shet of Gangaparameshwari

Temple Road, 5th Cross, Gandhi Bazar, Shimoga for valuable

consideration. Subsequent to the said sale deed, the revenue

records of the said property which was subject matter of the

sale deed dated 23.08.2003 were mutated in the name of the

defendant. The defendant also contended that the plaintiff's

vendor Smt. Mallamma wife of K.Veerappa represented by

the instant plaintiff T.B.Nanjundappa had earlier filed a suit

in O.S.No.640/1996 for permanent injunction against

C.M.C., Shimoga, the defendant's vendor Suresh Dattaram

Shet and another lady by name Smt. Mary Saroja w/o late

Rajabhooshana and in the said suit, the vendor of the

defendant and City Municipality had filed written statement

and it was specifically contended that the plaint schedule

property in O.S.No.640/1996 which is also the plaint

schedule property in the present suit was originally acquired

and sites were formed by C.M.C.,Shimoga and sold in favour

of one H.S.Ramabhovi through a registered sale deed dated

19.10.1984 who in turn sold the same in favour of her

vendor through his power of attorney holder by name

Mohammed Ameer son of Mohammed Hussain under the

registered sale deed dated 30.03.1985. The said suit in

O.S.No.640/1996 was dismissed for non prosecution on

25.01.2002.

6. The defendant had further contended that if the

plaintiff had purchased the suit schedule property under the

registered sale deed dated 23.08.2003, he being the GPA

holder of Smt. Mallamma in the earlier suit in

O.S.No.640/1996 would have brought to the notice of the

court before which the suit was pending about registered sale

deed executed in his favour but the same has not been done

and therefore the claim of the plaintiff that he had purchased

the suit schedule property under the registered sale deed

dated 23.08.2003 becomes highly doubtful. The defendant

therefore prayed to dismiss the suit.

7. On the basis of the rival pleadings, the Trial Court has

framed four issues which read as follows:

i. Whether the plaintiff proves that he is the owner in possession of the suit property as on the date of the suit ?

ii. Whether the plaintiff proves the alleged interference by the defendant?

iii. Whether this suit is hit by the principles of res-judicata?

iv. What order or decree?

8. During the course of trial, the plaintiff examined

himself as P.W.1 and had also examined four other

witnesses as P.Ws.2 to 5 and twenty eight documents were

got marked as Exs.P-1 to P-28. On behalf of the defendant,

she herself got examined as D.W.1 and has also examined

three other witnesses as D.W.2 to 4 and got marked 38

documents as Exs.D-1 to D-38. Ex.D1 to D3 were marked

during the course of cross examination of P.W.1, by

confrontation.

9. The Trial Court after hearing the argument on both the

sides by its judgment and decree dated 13.12.2013

dismissed the suit. Being aggrieved by the same, the plaintiff

had filed R.A.No.10/2014 before the first appellate court.

After re-appreciating the entire oral and documentary

evidence available on record, the first appellate court had

framed the following points for consideration.

1. Whether the appellant proves that the judgment and decree passed by the learned trial judge is arbitrary, frivolous, capricious, illegal and not based on materials placed on record?

2. Whether the impugned the judgment and decree calls for interference by this appellate court?

3. What order?

10. The first appellate court having answered both the

points for consideration in the negative by its judgment dated

23.09.2015 had dismissed the regular appeal filed by the

plaintiff and thereby, confirmed the judgment and decree

passed by the trial court in O.S.No.655/2003. Being

aggrieved by the concurrent findings recorded against him by

the courts below, the plaintiff is before this Court in this

regular second appeal.

11. Learned Counsel for the appellant/plaintiff contended

that the courts below have not properly appreciated the oral

and documentary evidence and thereby, committed error in

dismissing the suit. It is also contended on behalf of the

plaintiff that the title deeds produced by the plaintiff in

support of his case have not been properly appreciated by

the courts below. Learned counsel for the plaintiff further

submitted that the documentary evidence available on record

would also go to show that for the purpose of widening the

road, the portion of the property which was purchased by the

plaintiff from the legal heirs of late Veerappa was acquired by

C.M.C., Shimoga and the plaintiff thereafterwards was in

possession of remaining land which measures 30'x60' which

is the property described in the schedule. He further submits

that, the trial court and first appellate court erred in coming

to the conclusion that the description of the property shown

in the sale deed executed by legal representatives of

Veerappa in favour of plaintiff and the description of the suit

schedule property does not tally with each other. Learned

counsel for the defendant has argued in support of impugned

judgment and decree passed by the courts below and prays

to dismiss the appeal.

12. I have carefully considered the arguments addressed by

the learned counsels on both sides and also perused the

material available on record.

13. It is not in dispute that the plaintiff had purchased the

property measuring 40'x80' formed in Sy.No.30/1 of Block

No.5 under the registered sale deed dated 28.03.2000 from

the legal heirs of late Veerappa. The said sale deed which is

marked as Ex.P1 would go to show that the said property

was measuring 40'x80', in Sy.No.30/1 of Block No.5, situated

at Kallahalli Village bounded on east by road, west by road,

north by site No.6 and south by site No. 4. The revenue

records of the property was also transferred in the name of

the plaintiff, on the strength of the aforesaid sale deed as per

Ex.P1. In the plaint, the plaintiff has described the suit

schedule property as property measuring 30'x60' formed in

Sy.No.30/1 (new No.30/1A1) in Block No.5 whereas the

property which was purchased by the plaintiff under

registered sale deed as per Ex.P.1 is measuring 40'x80' and it

is formed in Sy.No.30/1. No documents are produced by the

plaintiff to substantiate as to when the property purchased

by him under the registered sale deed at Ex.P1 was phoded

and the new survey number as shown in the schedule of the

plaint was allotted to his property.

14. In fact, both the courts below having appreciated the

oral and documentary evidence and having come to the

conclusion, that the plaintiff had purchased the property

measuring 40'x80' in Sy.No.30/1 from the legal heirs of late

Veerappa had refused to grant the relief as sought for by the

plaintiff on the ground that the description of the suit

schedule property differs from the property which was

purchased by the plaintiff under the registered sale deed

Ex.P1. Though the learned counsel for the appellant has

contended that the portion of the property which was

purchased by the plaintiff under the registered sale deed-

Ex.P1 was utilized by the C.M.C., Shimoga for the purpose of

widening the road but he has not produced any documents

in this regard.

15. Plaintiff has contended that sofaras acquisition of a

portion of the property he had produced certain documents.

The courts below having appreciated the said documents

have given a find that those documents related to acquisition

of the year1976-77 and 1990-93. The plaintiff is said to have

purchased the suit schedule property under the registered

sale deed dated 28.03.2000. If a portion of the property

which was purchased by the plaintiff under the registered

sale deed dated 28.03.2000 was already acquired under the

notification as per Ex.P4 to P19 as sought to be contended by

the plaintiff, he could not have purchased the property

measuring 40'X80'. The plaintiff who had approached the

court seeking decree of permanent injunction was not only

required to prima-facie prove the title of the property but was

also required to prove the correct description of the property

and its measurement, when it is alleged that the defendant

has been interfering with the possession of the suit property.

The courts below having appreciated the defence of the

defendant have rightly come to the conclusion that the

boundaries of the suit schedule property do not tally with the

boundaries of the property which was purchased by plaintiff

under Ex.P1 registered sale deed dated 28.03.2000. Ex.D1 to

D3 are the certified copies of the order sheet, plaint and

written statement in O.S.No.640/1996 which was filed by the

plaintiff's vendor and the plaintiff's vendor was represented

by the plaintiff in the said suit which was dismissed for

default in the year 2002. Now, the plaintiff contends that he

had purchased the suit schedule property in the year 2000

and this becomes highly doubtful when the plaintiff had not

brought to the notice of the said court about the purchase of

the suit schedule property by him under registered sale deed

dated 28.03.2000.

16. The courts below having appreciated all these aspects

of the matter, have rightly dismissed the suit filed by the

plaintiff seeking permanent injunction. I am of the

considered view that the judgment and decree passed by the

courts below which are impugned herein do not suffer from

any illegality or irregularity which calls for interference by

this Court in exercise of its powers under Section 100 CPC. It

is settled principle of law, unless any substantial question of

law is made out, this court in exercise of its power under

Section 100 of CPC cannot re-appreciate the evidence and

give a fresh finding. Therefore, I am not inclined to entertain

this appeal. Accordingly, the appeal is dismissed at the stage

of admission.

In view of the dismissal of the appeal, pending

interlocutory applications do not survive for consideration.

Sd/-

JUDGE

JS/-