Babu Jagajeevanram Medical ... vs Sri N. Saravana
2021 Latest Caselaw 2017 Kant

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       IN THE HIGH COURT OF KARNATAKA BENGALURU

            DATED THIS THE 28TH DAY OF MAY, 2021

                          BEFORE

           THE HON'BLE MS. JUSTICE JYOTI MULIMANI


               R.S.A. NO.1830 OF 2013 (INJ)


BETWEEN:

BABU JAGAJEEVANRAM MEDICAL
COLLEGE & HOSPITAL,
REPTD. BY ITS CHAIRMAN &
PRESIDENT, DASANPURA VILLAG,
DASANPURA HOBLI,
BANGALORE NORTH TALUK.                          ...APPELLANT

(BY SRI.VIJAY KUMAR, ADVOCATE)

AND:

SRI N.SARAVANA,
S/O S.NAGARAJI,
AGED ABOUT 40 YEARS,
R/AT NO.21/D, INDUSTRIAL SUBURB,
II STAGE, TUMKUR ROAD,
YESHWANTHPURA,
BANGALORE - 560 022.                          ... RESPONDENT

(BY SRI.SHANMUKAPPA, ADVOCATE)


      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.07.2013
PASSED BY THE II ADDITIONAL DISTRICT & SESSIONS JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE IN R.A.NO.145/2012.


      THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                        JUDGMENT

Sri Vijay Kumar, learned counsel for appellant and

Sri Shanmukappa, learned counsel for respondent have

appeared through video conferencing.

2. This appeal is posted after issue of notice to

respondents.

3. For the sake of convenience, the parties are

referred to their ranking in the trial court.

4. The factual matrix of the case is that plaintiff

brought an action for permanent injunction. It is the case

of the plaintiff that she is the absolute owner in possession

and enjoyment of the agricultural lands bearing Old No.50,

New No.50/2B, measuring 31 Guntas and Sy.(Old) No.49,

New No.49/1B measuring 1 Acre 34 Guntas, Sy.No.49/1A

measuring 1 Acre 33 Guntas and Sy.No.50/2A measuring 1

Acre 03 Guntas, situated at Heggadadevanapura Village,

Dasanapura Hobli, Bangalore North Taluk having

purchased the same under a registered sale deeds dated

27.07.1990, 08.06.1990 and 29.07.1991. Accordingly,

mutation entries were changed in her favor. She has

constructed a Farm house, Pump house, Security guard

house and dug a borewell in the suit 'A' schedule property.

It is also stated that she has carved out a small cart

road in the middle of 'A' schedule property i.e., 'B'

schedule property which bifurcates 'A' schedule property

into two parts. It is averred that 'B' schedule property is

not a public road and plaintiff is exclusively enjoying the

same. She has fenced 'A' schedule property with barbed

wire and stone pillars. The defendant is running a Nursing

College and they have purchased lands towards western

side of 'A' schedule property. The officials of defendant

tried to make use of 'B' schedule property as road formed

by the plaintiff in the suit 'A' schedule property. It is

averred that the defendant's officials and students have

got separate access to reach the Nursing College which is

formed long back and connected to the main road.

Contending that defendants who have no right, title

or interest over the suit schedule properties, tried to enter

'B' schedule property. Accordingly, she sought the aid of

the Court seeking the relief of permanent injunction.

5. In furtherance of service of suit summons,

defendant appeared and filed written statement. It denied

the plaint averments. It is the case of defendant that it is

a Schedule Caste and Schedule Tribe Trust registered on

21.11.1995. The Government has allotted 25 Acres of land

to the defendant - Institution, which is adjacent to the suit

'A' schedule property for a period of 30 years on lease.

Subsequently, the Government permitted the Institution to

purchase the leased land. The Trust has made payment in

the month of March 2006.

It is stated that at the time of allotting 25 acres of

land, suit 'B' schedule property was/is in existence and the

same is being utilized by the defendants for their ingress

and egress to their lands. Except this road way, there is no

other road to approach their lands. It is also stated that

the defendant, its staff and students are utilizing this road

to reach the College.

It is further averred that one Smt. Kempamma and

others have executed a consent letter in favor of defendant

on 15.05.2002 to utilize the road, measuring to an extent

of 14 feet x 410 feet after receiving a sum of

Rs.1,50,000/-. Thus, defendants have secured exclusive

right of way in Schedule 'B' property. Accordingly, prayed

for the dismissal of the suit.

6. On the basis of the pleadings, the trial court

framed the following issues.

"1. Whether the plaintiff proves that he is in possession and enjoyment of the "B" schedule property?

2. Whether the plaintiff further proves that unnecessarily the defendant is trying to interfering with his possession?

3. Whether the plaintiff is entitle for the relief of permanent injunction as sought for?

4. What order or decree?"

7. To substantiate the contentions, plaintiff

examined as PW-1 and the documents are marked as

Exs.P-1 to P-25. The president of defendant's Trust has

deposed as DW-1 and marked the documents as Exs.D-1

to D-19.

8. On the trial of the action, the suit came to

dismissed. On appeal the First Appellate Court set aside

the judgment and decree of the trial Court. Therefore, this

Regular Second Appeal under section 100 of CPC.

9. Learned counsel Sri. Vijay Kumar for appellant

submitted that the judgment and decree of the First

Appellate Court is unsustainable in law.

Next, he submitted that the First Appellate Court

erred in not considering the fact that the Schedule 'B'

property was in existence and the same is being used by

the defendant and its men for accessing its Institution

from several years. He submitted that it is an admitted

fact that the same is being used by the defendant much

prior to the purchase of the property by the plaintiff.

A further submission was made that the First

Appellate Court failed to consider the fact that plaintiff has

not made any claim with respect to the installation of

transformer in 'B- schedule property'. The enclosed barbed

wire with stone wall to the 'A-schedule property' on either

side of 'B- schedule property' shows that the plaintiff is not

the owner of 'B- schedule property'.

Counsel vehemently submitted that the 'B' schedule

property was owned/possessed by one Smt. Kempamma

who retained her right of using it with the consent of one

Vijaykumar Chappia to whom she sold the plaint 'A'

schedule property as some of her agricultural land exists

on the western side of 'A-schedule property'. Later 'A-

schedule property' was purchased by the plaintiff from

Vijaykumar Chappia.

He further submitted that Smt. Kempamma and

others have executed a consent letter on 15.05.2002 by

receiving a sum of Rs.1,50,000/- for using 'B-schedule

property'. Hence, the grant of injunction restraining the

defendant from making use of 'B-schedule property' by the

First Appellate Court is unsustainable.

Lastly, he submitted that viewed from any angle the

judgment and decree of the First Appellate Court suffers

from irregularity and the same is opposed to the material

on record. Hence, the same is liable to be set aside.

Therefore, he submitted that this second appeal may be

admitted by framing substantial questions of law.

10. Sri. Shanmukappa, learned Senior counsel for

respondent seek to sustain the judgment and decree of the

First Appellate Court being well merited, fully justified and

does not call for any interference by this court.

Accordingly, he prayed for the dismissal of the appeal.

11. I have considered the contentions urged on

behalf of both the parties. Perused the records with care.

12. The suit giving rise to this appeal was brought

by the plaintiff for the relief of permanent injunction.

I should observe that documentary evidence of

ownership like a sale deed cannot be ignored. The

documents produced by the plaintiff would show that

plaintiff has sufficient interest to maintain an action. It is

significant to note that the plaintiff has purchased the

property under a registered sale deeds dated 27.07.1990,

08.06.1990 and 29.07.1991. On the basis of these deeds,

his name was entered in the revenue records.

The First Appellate Court after re-appreciation of the

entire material on record found that plaintiff has

constructed Farm house, Pump house, Security guard and

has also dug a bore well in the suit schedule 'A' property.

she has also carved out a small cart road in the middle of

'A' schedule property i.e., 'B' schedule property which

bifurcates 'A' schedule property into two parts. Thus, 'B'

schedule property is exclusively enjoyed by the plaintiff.

It is also observed by the First Appellate Court that

the plaintiff has fenced 'A' schedule property with barbed

wire fence and stone pillars. When the officials of

defendant Institution and other persons attempted to

make use of this road as a public road, plaintiff gave a

police complaint and thereafter, he brought action against

the defendant seeking the relief of permanent injunction.

On the basis of material proof, the First Appellate Court

held that plaintiff is lawful possession of the property as on

the date of the suit.

It is the specific contention of the defendant that one

Smt. Kempamma had sold the property to one Vijaykumar

Chappia, who in turn has sold the property to the plaintiff.

Before the trial Court, the defendant specifically contended

that after the sale of the property, Smt. Kempamma and

others have executed a consent letter on 15.05.2002 to

use the schedule 'B' property' /road by receiving a sum of

Rs.1,50,000/- from the defendant Institution.

While arguing the matter learned counsel

Sri Vijaykumar vehemently urged that 'B- schedule

property' is public road. Smt. Kempamma and others have

permitted the defendant to make use of the road. I have

carefully considered the contention. As rightly observed by

the First Appellate Court, if it were to be a public road,

there was no necessity for the defendant to pay the

amount to Smt. Kempamma. Further there are no records

to show that the consent letter has been executed by

Smt. Kempamma and others.

It would be relevant to observe that in a suit for bare

injunction, plaintiff is required to prove his/her lawful

possession and enjoyment over the suit schedule property

as on the date of the suit. On the basis of the material

proof, the First Appellate Court held that plaintiff is in

possession of the schedule property. Further, the findings

by the Court of fact are neither vitiated by non-

consideration of relevant evidence nor there is any

erroneous approach to the matter. I do not find any error

in the finding of facts.

No substantial question of law arises in this appeal.

Accordingly, the appeal is dismissed at the stage of

admission itself.

Sd/-

JUDGE

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