Venkatamma @ Laxmamma vs S Mahadeva Shetty
2021 Latest Caselaw 895 Kant

                           1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15TH DAY OF JANUARY 2021

                        BEFORE

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

           R.S.A. No.400/2014 (DEC/INJ)

BETWEEN:

1.     VENKATAMMA @ LAXMAMMA
       SINCE DEAD BY LR'S

1(a) D.N. VENKATARAMANA,
     S/O NARAYANAPPA,
     AGED ABOUT 67 YEARS,
     R/A RAVANDUR DODDAKOPPALU VILLAGE,
     RAVANDUR DHAKLE & HOBLI,
     PERIYAPATNA TALUK,
     MYSORE DISTRICT - 571 107.
                                    ... APPELLANT

(BY SRI.ISMAIL M MUSBA, ADVOCATE)

AND:

1.     S. MAHADEVA SHETTY,
       S/O SANNASHETTY,
       AGED ABOUT 43 YEARS,
       R/A THOLAKAL COLONY,
       RAVANDUR VILLAGE,
       RAVANDUR HOBLI,
       PERIYAPATNA TALUK,
       MYSORE DISTRICT - 571 107.

2.     RAMAMMA,
       W/O LATE SHIVANNA,
       AGED ABOUT 62 YEARS,
       R/A R.D KOPPALU VILLAGE,
       PERIYAPATNA TALUK,
                          2


     MYSORE DISTRICT - 571 107.

3.   JAYAMMA,
     W/O PALANI,
     AGED ABOUT 65 YEARS,
     R/O VADDAMBALU VILLAGE,
     HANAGODU HOBLI,
     HUNSUR TALUK,
     MYSORE DISTRICT - 571 105.

4.   GOVINDAPPA,
     S/O NARAYANAPPA,
     AGED ABOUT 61 YEARS,
     R/A R.D. KOPPALU VILLAGE,
     PERIYAPATNA TALUK,
     MYSORE DISTRICT - 571 107.
                                    ... RESPONDENTS

(BY SRI.ROHITH GOWDA, ADVOCATE FOR C/R1)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 8.1.2013
PASSED IN R.A.NO.34/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE & JMFC., HUNSUR, DISMISSING THE APPEAL
FILED AGAINST THE JUDGMENT AND DECREE DATED
25.2.2012 PASSED IN OS.NO.103/2004 ON THE FILE OF
THE CIVIL JUDGE & JMFC., PERIYAPATNA.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:

                   JUDGMENT

This is an appeal directed against the judgment

and decree by the Court of Senior Civil Judge and

JMFC, Hunsur, in R.A.No.34/2012, confirming the

judgment passed by the Court of the Civil Judge and

JMFC, Periyapatna in O.S.No.103/2004.

2. For the sake of convenience, the parties

shall be referred to in terms of their status and ranking

before the trial court.

3. The factual matrix of the case as averred in

the plaint are that the suit schedule property was

originally granted in favour of 1st plaintiff, by the Block

Development Officer, Periyapatna, under the Hakku

Patra, dated 02.01.1996. Thereafter, khata of the

property was changed in the name of 3rd plaintiff and

thereby, the plaintiffs were paying taxes from time to

time and had put up foundation in the suit schedule

property. At this juncture, the defendant tried to

encroach upon the suit schedule property of the

plaintiffs with malafide intention to construct a house,

for which, 3rd plaintiff has filed a suit in

OS.No.137/2001 before the competent Court for the

relief of permanent injunction and the order of status-

quo was granted by the said Court.

4. It is further stated that, the defendant has

started construction on 21.09.2001, despite there was

interim order in OS.No.137/2001 pending

consideration before the competent Court and, the

defendant continued the construction and accordingly,

violated the interim order passed in OS.No.137/2001,

as such, plaintiffs have filed OS.No.103/2004 on the

file of Civil Judge and JMFC, Periyapatna and sought for

relief of declaration and consequential relief of

permanent injunction against the defendant.

5. The defendant contested the suit by filing

the written statement denying the plaint averments.

He contended that he is the absolute owner in

possession and enjoyment of the suit schedule

property, measuring 30X40 feet, bearing Site No.21

and the said site was purchased by him on 03.07.2000

from his vendor. Thereafter, the defendant has availed

loan from Cauvery Grameena Bank, as he was an

employee of the said Bank and thereby, put up

construction over the suit schedule property and he is

residing along with his family members since seven

years. Further it is stated in the written statement that

the suit filed by 3rd plaintiff in OS.No.137/2001 against

the defendant came to be dismissed on 02.07.2004.

Defendant further contended that in order to harass

the defendant, the plaintiffs have filed suit in

OS.No.103/2004. Therefore, he prayed to dismiss the

suit.

6. On the basis of the above pleadings, the

trial Court has framed the following issues:

1. Whether the plaintiffs prove their ownership and possession over the suit schedule site ?

2. Whether the plaintiffs prove that the defendant has illegally constructed the house on the suit schedule site ?

3. Whether, the plaintiffs prove that the suit schedule property house is liable to be demolished by way of mandatory injunction ?

4. Whether the plaintiffs are entitled for reliefs as sought for ?

5. What Order or Decree ?

To substantiate their contentions, 2nd plaintiff got

examined himself as PW1 and examined two more

witnesses as PW2 and PW3 and got marked 25

documents as per Exs.P1 to P25. On the other hand,

the defendant, examined himself as DW1 and

examined one more witness by name Dhasharatha as

DW2 and got marked 9 documents as per Exs.D1 to

D9.

7. The trial Court after considering the oral and

documentary evidence available on record, decreed the

suit in OS.No.103/2004 and on Regular Appeal in RA

NO.34/2012, the First Appellate Court by its judgment

and decree dated 08.01.2014, confirmed the judgment

and decree of trial Court.

8. Being aggrieved by the judgment and

decree of the First Appellate Court and the trial Court,

plaintiff No.2/appellant has preferred this Regular

Second Appeal under Section 100 of Code of Civil

Procedure, 1908 (CPC).

9. Sri.Ismail M.Musha, learned counsel for

plaintiff No.2/appellant submits that it is not in dispute

that as per Ex.P1-Hakku Patra, 1st plaintiff is the owner

in possession of the suit schedule property. He further

submits that the schedule property bearing site No.27

measuring 40X38 feet, formed in Survey No.18 of

Ravandur Village was granted in favour of 1st plaintiff

by way of Hakku patra by the Block Development

Officer on 02.01.1976 and thereby, the plaintiffs

exercised their right of ownership in respect of suit

schedule property. He further contended that, the

defendant, without any authority and right has

interfered with suit schedule property and tried to put

up construction in the land belonging to the plaintiffs,

and said aspect of the matter was not considered by

both the Courts below.

10. It is the further contention of appellant's

counsel that the boundary of the suit schedule property

is different with that of defendant's property and said

fact was not considered by the both the Courts below,

which requires interference by this Court by exercising

jurisdiction under Section 100 of CPC. On these

grounds he sought to allow the appeal.

11. Sri.Rohith Gowda, learned counsel for the

caveator/respondent No.1 supports the impugned

judgment and decree passed by the Courts below and

sought to dismiss the appeal.

12. Heard the learned counsel appearing for

both the parties and perused the materials on record.

13. I have carefully observed the finding

recorded by the trial Court with regard to issue No.1,

wherein, the trial Court after appreciating Ex.P1-Hakku

patra dated 02.01.1976 issued by the Government as

well as the Ex.P3- Hakku Drudikarana Patra issued by

Secretary of Grama Panchayath, Ravandur, has

recorded a finding that Ex.P1-Hakku Patra was issued

by the Government in favour of 1st plaintiff and Ex.P3

reflects the name of late Govindappa, S/o

Narayanappa on the certificate, who is 3rd plaintiff

therein.

14. It is further observed by the trial Court,

after considering Ex.P14-certified copy of the order

sheet of OS No.137/2001, wherein, the suit came to be

dismissed by the trial Court by its judgment and

decree dated 02.07.2004 and had come to the

conclusion that the plaintiffs failed to prove their

possession and ownership insofar as site bearing

No.21, which is the subject matter before the trial

Court. The Trial Court has also considered the fact that

Ex.P5 is the Form No.(D) issued under Section 3(4) of

the Karnataka Acquisition of Lands for Grant of House

Sites Act, 1972 and Ex.P6 is the Schedule of acquired

land, which discloses the Sy.No.18, under the

Karnataka Gazette Extraordinary, dated 21.09.1976.

The trial Court has appreciated the Ex.P9-Requisition

Letter, which has been addressed by 1st plaintiff to the

Executive Officer of Zilla Panchayat, Mysore, seeking

clarification of signature of the Block Development

Officer appeared to be affixed on the alleged Ex.P1-

Hakku Patra. Thereby, the trial Court by its finding at

paragraph-16 of its judgment and decree had opined

that there is disputed signature of the Block

Development Officer on Ex.P1-Hakku Patra and Ex.P11

(a, b, c)-Acqittence Register. During the cross-

examination of PW3 before the trial Court, a

clarification sought with regard to tenure of the

signatory of the Block Development Officer, and as

such, the PW3 has been questioned and he has

deposed as follows:

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15. I have also carefully scrutinized the cross-

examination of the defendant, who has deposed about

the boundaries of site No.20. As per Ex.D1-Hakku

Patra which is said to have been issued by the Block

Development Officer in favour of one Sannashetty

S/o.Kallappa of Ravandur Village during the year 1980.

16. On perusal of Ex.D1-Hakku Patra, it is clear

that Site No.20 was allotted in favour of one

Sannashetty, S/o Kallappa, who is none other than

father of the defendant and Ex.D2 which is the certified

copy of Sale Deed dated 30.06.2010, reveals about the

boundaries of Site No.20. After considering the

materials on record, the trial Court at paragraph-26 of

its judgment and decree has answered issues in

negative and held that the plaintiffs have not proved

their lawful ownership insofar as suit schedule property

is concerned.

17. On perusal of the judgment and decree

passed by the trial Court, it is evident that the trial

Court has properly appreciated the materials on record

as well as the oral evidence adduced by PW1, PW2 and

DW1, DW2 and documentary evidence at Ex.D2 -

Certified copy of registered Sale Deed and held that

the suit schedule property was allotted in favour of the

defendant and thereby, rightly dismissed the suit.

18. I have carefully gone through the finding

recorded by the First Appellate Court, being the last

Court to assess the evidence on record. On perusal of

the same, the First Appellate Court has properly re-

appreciated the facts of the case and oral and

documentary evidence on record and dismissed the

appeal by holding that the plaintiffs with the help of

concocted Ex.P1-Hakku Patra, have approached the

First Appellate Court. Accordingly, the First Appellate

Court has confirmed the judgment and decree passed

by the trial Court.

19. In that view of the matter, since both the

Courts below have concurred with the finding insofar

as execution of Ex.P1-Hakku Patra is concerned and

have properly appreciated the materials on record, I do

not find any material irregularity in the impugned

judgment and decree passed by the both the Courts

below.

20. 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."

     21.   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."

22. 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."

23. Since, the appeal is dismissed at the stage

of admission itself, the appellant/plaintiff No.2 has not

made out a case to frame the substantial question of

law as required under Section 100 of CPC as there is

no perversity in the judgment and decree passed by

the Court below.

24. With these observation, the Regular Second

Appeal stands dismissed.

In view of the disposal of the main appeal, IA.I of

2014 does not survive for consideration and

accordingly, it is dismissed.

Sd/-

JUDGE

SB