Eshwaraiah vs Shankara
2021 Latest Caselaw 776 Kant

                              1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY, 2021

                            BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

       REGULAR SECOND APPEAL NO.1283 OF 2020

Between:

Eshwaraiah
S/o late Gurulingaiah
Aged about 60 years
R/of Mallenahalli Village
Honakere Hobli
Nagamangala Taluk
And also at

No.21, 40 Feet Road
17th Main Road
Raghavanagar
New Timber Yard Layout
Bangalore-560 026.
                                               ...Appellant
(By Shri Omkaresha;
 Shri Gowri Shankar E., Advocates)

And:

       1. Shankara
          S/o Kemparase Gowda
          Major

       2. Ramachandra
          S/o Kemparase Gowda
          Major

       3. Muddegowda
          S/o Kemparase Gowda
          Major

       4. Nagaraju
                                     2


         S/o Cheluvegowda
         Major

         (Respondents 1 to 4 all are
          R/at A Sriramanahalli Village
          Honakere Hobli
          Nagamangala Taluk)
          Mandya-571 432.
                                                  ...Respondents

        This Regular Second Appeal is filed under Section 100
of the Code of Civil Procedure against the judgment and
decree dated 21.09.2020 passed in R.A.No.24 of 2019 on the
file of the Senior Civil Judge and JMFC., Nagamangala,
dismissing the appeal and confirming the judgment and
decree dated 02.04.2019 passed in OS.No.116 of 2011 on the
file of the Civil Judge and JMFC., at Nagamangala.

      This   appeal    coming on for admission, this day, the
court delivered the following:


                              JUDGMENT

This appeal is preferred against the judgment and

decree dated 21.09.2020 passed in RA No.24/2019 by the

Senior Civil Judge and JMFC, Nagamangala dismissing the

appeal and confirming the judgment and decree dated

02.04.2019 passed in O.S No.116/2011 by the learned Civil

Judge and JMFC at Nagamangala. The appellant herein is

plaintiff before the trial Court.

2. For the sake of convenience, parties in this appeal

are referred to as per their status before the trial Court.

3. It is the case of the plaintiff that the plaintiff is

the absolute owner in possession of the suit schedule

property bearing Sy.No.29/1 after durasti Sy.No.122

measuring 4 acres situated at A.Sreeramanahalli Village,

Honakere Hobli, Nagamangala Taluk and the suit schedule

property was granted in favour of the vendor of the plaintiff.

Thereafter, the plaintiff has purchased the said suit schedule

property by way of registered sale deed dated 18.10.2010 for

valuable consideration and he is in possession of the suit

schedule property. It is further stated in the plaint that after

purchasing the suit schedule property, the name of plaintiff is

mutated in the revenue records and thereby, the plaintiff

exercised his ownership in respect of suit schedule property.

He further stated in the plaint that the defendants without

any right, title and interest over suit schedule property have

tried to interfere with the peaceful possession and enjoyment

of the property and thereby, the plaintiff has lodged a

complaint before jurisdictional police for necessary action.

However, the jurisdictional police have not taken any action

against the defendants. Hence, the plaintiff has filed suit for

permanent injunction in O.S No.116/2011 on the file of Civil

Judge and JMFC, Nagamangala.

4. Defendants entered appearance and have filed

detailed statement of objections and submitted that the

plaintiff has no right, title and interest insofar as suit schedule

property. Defendants have denied the title of the plaintiff and

further submitted that the suit schedule property is a public

property consisting one Gokatte in the area of 2 acres and

remaining 2 acres is vacant covered by gross being used by

the villagers of A.Sriramanahalli as well as defendants for

grazing domestic animals. Defendants further stated that

water in the Gokatte is used for drinking and washing of the

domestic animals. Therefore, the defendants have sought for

dismissal of the suit.

5. Considering the pleadings on record, the trial

Court has framed the following issues:

1. Whether the plaintiff proves that, he is in peaceful possession over the suit schedule properties?

2. Whether the plaintiff proves the interference by the defendants over the suit schedule properties?

3. Whether the defendants prove that there was a big and deaf halla from time immemorial and the same was constructed by BDO office in the year 1976 as Gokatte?

4. Whether the plaintiff is entitle for the relief claimed for?

5. What order or decree?

In order to prove the case, plaintiff was examined as

PW1 and examined two independent witnesses as PW2 and

PW3 and has produced 33 documents and same were marked

as Exs.P1 to P33. Defendants No.1, 2 and 4 were examined

as DW1 to DW3 respectively and three independent witnesses

were examined as DW4 to DW6. In all DW1 to DW6 were

examined on behalf of the defendants and the defendants

have produced 20 documents and marked as Exs.D1 to D20.

6. The trial Court after considering the material on

record by its judgment and decree dated 02.04.2019

dismissed the suit made by plaintiff/appellant. Being

aggrieved by the same, the appellant has preferred RA

No.24/2009 on the file of Senior Civil Judge and JMFC,

Nagamangala.

7. After service of notice, defendants have resisted

the appeal. The First Appellate Court after appreciating the

material on record and the finding recorded by the trial Court

by its judgment and decree dated 21.09.2020 dismissed the

appeal made by appellant/plaintiff and as such confirmed the

judgment and decree dated 02.04.2019 passed by the trial

Court in O.S No.116/2011. Being suffered by the judgment

and decree passed by the Courts below, the plaintiff has

preferred this instant second appeal.

8. Sri.Omkaresha, learned counsel appearing for the

appellant vehemently contended that the judgment and

decree passed by the trial Court is contrary to records,

particularly, with regard to the interference made by the

Courts below in respect of title of the plaintiff. He further

contended that the vendor of the plaintiff is the true owner in

possession of the suit schedule property and thereby, the

plaintiff has purchased the suit schedule property by

registered sale deed dated 18.10.2010 for valuable

consideration and in that view of the matter, the finding

recorded by both the Courts below is erroneous which

requires to be set aside in this appeal. Sri.Omkaresha,

learned counsel while emphasizing on this aspect, submitted

that pursuant to the execution of the sale deed dated

18.10.2010, all the revenue records stands in the name of

plaintiff and thereby, plaintiff exercised ownership insofar as

suit schedule property and defendants have no right, title and

interest in the schedule property and defendants, who are

none other than neighbouring villagers of the land are

interfering with the suit schedule property belonging to the

plaintiff. Therefore, the finding recorded by both the Courts

below with regard to title as well as possession of the plaintiff

requires to be interfered in this second appeal.

9. I have carefully examined the finding recorded by

the Courts below as well as arguments advanced by the

learned counsel for plaintiff/appellant. It is undisputed fact

that the plaintiff claims to be the owner in possession of the

property by virtue of registered sale deed dated 18.10.2010,

purchased by the plaintiff from his previous vendor for

valuable consideration and thereby, the revenue entries are

mutated in favour of the plaintiff/appellant. However, the

controversy in this suit is with regard to the interference

made by the defendants. Both the Courts below have held

that since there is a cloud in the title of the property of

plaintiff, the plaintiff ought to have converted the suit for

permanent injunction into a suit for declaratory relief. Perusal

of the finding recorded by the both the courts below, I do not

find substance in this arguments of the learned counsel for

the appellant. Therefore, without establishing his right as a

true owner insofar as suit schedule property is concerned, the

relief sought for by the plaintiff for permanent injunction is

not maintainable and in that view of the matter, I have

carefully examined the averments made in the written

statement particularly paragraphs 7 and 8 of the written

statement which reads as under:

"7. The case of the defendant is as follows:- The defendants are not belongs to K Mallenahalli Village as stated in the cause title. The suit Schedule property is belongs to the villagers of A Sriramanahalli i.e., Public Property. The suit schedule property is consisting one Gokatte in the area of 2 Acres, remaining 2 Acre is vacant covered by gross which using by the villagers of A.

Sriramanahalli as well as defendants for grazing the domestic animals. The Gokatte is situated is always having water in all seasons. The water of Gokatte is using for drinking and washing of the domestic animals of the said villagers as well as the defendants from immemorial time. The said Gokatte was constructed in the suit schedule property from the BDO Office in the year 1976- 77, prior to constructing the Gokattein the suit schedule property there was a big and deaf Halla, water was standing always in it which was using for drinking and washing of the domestic animals of the said villagers as well as the defendants from immemorial time, excess water flowing from southern side to northern side of the suit schedule property. The plaintiff has suppressed the above facts and not pleaded a single word regarding Gokatte and Halla. When the Gokatte is situated in the centre of the suit schedule property and remaining extent is vacant of grazing domestic

animals, the plaintiff cannot raise any crops in the suit schedule property. The intention of the plaintiff is demolish the Gokatte and grab the suit schedule property for selling others as he is running real estate business. The defendants and villagers have questioned the mutation entry of the plaintiff before the Assistant Commissioner Court of Pandavapura which is pending for consideration. The defendants and villagers and their ancestors were and are using the suit schedule property for the said purpose from immemorial time.

8. The Vendors of plaintiff has no manner of right or title of possession over suit schedule property to convey the same in favour of plaintiff. Since the plaintiff claims possession of suit schedule land under a title deed and the defendants have denied the title or possession of suit schedule land, plaintiff should have filed a suit for declaration of title and consequential relief of injunction. Bare injunction suit is not maintainable under law. As such, suit was brought is not maintainable and liable to be dismissed."

10. Perusal of the aforesaid averments made in the

written statement, it is the categorical statement made by the

defendants that the plaintiff is not true owner insofar as suit

schedule property is concerned and thereby, Ex.P12, which is

original grant certificate which was issued to husband of

plaintiff's vendor i.e. S.H.Muddaiah on 07.02.1970 which is

basically a gomal land and as per Ex.P13 certified copy of

khata which was issued by Tahsildar, Nagamangala in the

name of S.H.Muddiah S/o Hombalegowda on 31.10.2009 and

as per this document Old Sy.no.29 was changed to Sy.no.122

as new survey number with an extent of 4 acres including 6

guntas of kharab.

11. Perusal of Exs.P12 and P13 and on comparison

with Exs.P24 to 27 (RTC extract and mutation register

extract) would clearly indicate that the extent mentioned in

Ex.P24 to 27 is 3 acres 38 guntas including 6 guntas of

kharab. Perusal of Ex.P13-Village map of A.Sriramanahalli

would clearly indicate on the western side of Sy.No.122

shows that halla(Gokatte) and in that view of the matter, the

trial Court having considered the boundaries mentioned in

Ex.P13 and on comparison with Exs.P13 to 30 and on proper

appreciation of evidence on record as per paragraphs 16 to

18 had come to a conclusion that the defendants have rightly

questioned the title and ownership over the suit schedule

property of the plaintiff and as such, defendants with cogent

evidence proved that there is a cloud over the suit schedule

property. In that view of the matter the law declared by the

Hon'ble Supreme Court in ANATHULA SUDHAKAR vs. P.BUCHI

REDDY (DEAD) BY LRS AND OTHERS reported in (2008) 4

SCC 594 whereunder the Hon'ble Supreme Court in a

categorical dictum held that when there is a cloud in the title

of the property, an action for declaration is the remedy to

remove the cloud on the title to the property. The said

judgment has been followed by the Court below while

dismissing the suit of the plaintiff, which in my opinion, is just

and proper and concurrent finding recorded by the courts

below cannot be interfered by exercising jurisdiction under

Section 100 of CPC.

12. I have carefully examined the finding recorded by

the trial Court with regard to issue No.3 where under the

defendants have strongly objected with respect to revenue

documents of the suit schedule property which would clearly

establish the fact that the suit schedule property is being

utilized by the neighbouring village people for the purpose of

grazing animals. The evidence of PW2 and PW3 also establish

the fact that the said witnesses were not aware about the

extent of land as well as the boundaries therein which has

been disclosed by the trial Court at paragraph 23 and 24 of

the impugned judgment which do not require any interference

in this appeal. I have also carefully examined the finding

recorded by the First Appellate Court where under First

Appellate Court has considered the evidence of DW1 to DW3

in detail and also has examined Exs.D2 and D3 i.e. certified

copy of the report about construction in furtherance of the

notice issued by Assistant Commissioner with regard to

Gokatte had come to a conclusion that the finding recorded

by the trial Court is just and proper. Both the Court below on

concurrent finding has held that plaintiff has not proved the

ownership insofar as suit schedule property in view of catena

of decision rendered by this Court as well as Hon'ble Supreme

Court as under:

     1.    HULLAPPA     vs.   THE     STATE   OF   KARNATAKA

     THROUGH      DEPPUTY     COMMISSIONER,        BIDAR   AND

     OTHERS reported in ILR 2012 KAR 4958.

2. RAJU AND OTHERS vs. BABURAO AND OTHERS

reported in (2014)4 KCCR 3833.

3. THE LICENSED ELECTRICAL CONTRACTORS

ASSOCIATION OF KARNATAKA vs. B.P.DEVARAJ SINCE

DEAD BY LRs reported in 2019 (1) KCCR 740.

13. In this regard, it is useful to refer to the judgment

of the High Court of Calcutta in the case of SRI BHADRESWAR

PANDIT AND OTHERS v. SMT. PUSPA RANI PANDIT reported

in AIR 1991 CALCUTTA 405 wherein at paragraph 8 of the

judgment, it is observed thus:

"...a finding of fact by the lower appellate court, whether concurrent with the lower Court or not, can be reconsidered in suitable cases on second appeal if the finding is on no evidence or non-consideration of proper evidence or omission to consider the entire evidence. In all such cases non-consideration of evidence would be a point of law within the scope of section 100 of the Civil Procedure Code. The point admits of different interpretations and there have actually been divergent interpretations but the ratio decidendi seems to be that in a second appeal evidence on facts can be reappraised in suitable cases to prevent the miscarriage of justice."

In the case of SAMIR KUMAR CHATTERJEE v.

HIRENDRDA NATH GHOSH reported in AIR 1992 CALCUTTA

120, at paragraphs 8, 9 and 17 has observed thus:

"8. Be it stated here at the very outset that in a case of concurrent findings of fact by both the courts below, the scope of interference by the High Court is very limited and the High Court should not interfere with the concurrent findings of facts of the Courts below on the ground of perversity unless the court concerned misdirected itself In coming to its finding on the question of fact. Such concurrent finding of fact, however, as observed by the Supreme Court can be interfered with only where it is manifestly unjust or where the essential ingredients for such a finding of fact have not been found by the Courts below. It is true, in an ejectment suit a finding on the question

whether the defendant is a tenant or a licensee, the finding of the lower appellate Court on a consideration of the evidence is a finding of fact. Reference may be made in this connection to the decision of the Supreme Court . However, it has also been observed by the Supreme Court in another decision reported in AIR 1989 SC 1 that the question whether there is a tenancy or sub-tenancy or licence or parting with possession in any particular case, must depend upon the quality of occupation given to the licensee or the transferee. Of course, in the case referred to, dispute arose regarding the occupation of a holder to display his holding and as such the vital question in that case was whether occupation itself will amount to a question of tenancy or that of a licence. Mere occupation is not sufficient to infer either sub-tenancy or parting with the possession. Facts of the instant case are somewhat different from the one referred to, as because parting of possession in favour of the defendant/appellant is an undisputed fact, though it is claimed on behalf of the plaintiff/ respondent that the respondent was in actual legal possession of the suit property. In other words it is sought to be urged and emphasised that the possession of the defendant/appellant was not exclusive possession in this case. It is, therefore, urged that although the defendant/appellant was permitted to occupy a room, it was the possession of a licensee.

9. In view of the contentions of the learned Advocate for the defendant/appellant, it will be necessary to see as to whether the possession which

was given to the defendant/appellant was that of a licensee or that of a tenant. Further, in view of the points raised by the learned Advocate for the defendant/appellant, the entire relevant evidence on record is to be considered to see that the Courts below considered all such important evidence having direct bearing on the disputed issue. If, on such examination we find that the courts' below made such a mistake, then in that case this Court is fully authorised to set aside such finding. To make it clear once again, it is true that High Court, while hearing second appeal under Sec. 100, C.P. Code, has not the jurisdiction to examine the evidence and reverse or reject the conclusion reached by the first appellate Court. But we should also bear in mind that it has the power to interfere with such finding, when the lower appellate Court made a mistake of the nature as stated, and can decide the issue, treating such finding as unwarranted and then it can be looked into as a substantial question of law. If any authority is needed on this point even after the amendment of 1976, we may refer to the decision, Dilbagrai Punjabi v. Sharad Chandra and also the decision of the Supreme Court , Bhairab Chandra Nandan v. Ranadhir Chandra Dutta.

10 to 16. xxx xxx xxx

17. As already stated, the first court of appeal, also approached the whole case from a wrong angle misdirecting itself as that of the trial Court, in a way prejudicial to the interest of the defendant/appellant. In short, the appellate Court's judgment is also based on surmise and conjectures, as that of the trial Court.

He simply brushed aside the documentary evidence adduced by the defendant/ appellant as suspicious in nature and placed no reliance on the same without carefully examining the same and trying to arrive at a finding based on his independent judgment and reasoning. He simply dittoed and endorsed the finding of the trial Court that such documents were created for the purpose of this suit, without trying to weigh and assess the evidentiary value of the same. In that view of the matter, I am constrained to observe that the court of appeal below failed altogether to comply with the statutory provisions of Order 41, Rule 31 of the Code of Civil Procedure. The judgment of the appeal Court should not be the mere endorsement of the findings of the trial Court, not containing the reasons for the decisions arrived at by him independently of that of the trial Court."

The High Court of Patna in the case of GIRJA SINGH

AND ANOTHER v. GAYANWANTI DEVI AND OTHERS reported

in AIR 2001 PATNA 20, at paragraph 11 of the judgment, has

observed thus:

"Moreover, it has not been settled by recent judgment of the Apex Court that if the appellate Court does not advert to the reasonings given by the original court and writes an independent judgment on the basis of the materials on record and if the second appellate Court finds the same judgment to be proper on the basis of the materials then on the ground that the reasonings given by the original Court had not

been considered by the appellate Court, cannot be a point for reserving the appellate Courts judgment as required under S.100 of the Code of Civil Procedure."

The interference under Section 100 of CPC is very

limited and is only with regard to substantial question of law

addressed by the appellant before this Court. In the instant

case, appellant has not made out substantial question of law

required to be considered in this appeal as required under

Section 100 of CPC. Therefore appeal is dismissed at the

stage of admission itself.

Sd/-

JUDGE

UN