Gurupad Shirodkar S/O Parashuram vs Mohan Anegundi S/O Chidambarappa
2022 Latest Caselaw 1547 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 2ND DAY OF FEBRUARY, 2022

                            BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100607 OF 2014(INJ)

BETWEEN:

SRI.GURUPAD SHIRODKAR, S/O PARASHURAM
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O MAVINKOPPA, TQ: DHARWAD, DIST: DHARWAD.
                                                ...APPELLANT
(BY SRI.S.M.KALWAD, ADV.)

AND:

SRI.MOHAN ANEGUNDI,
S/O CHIDAMBARAPPA,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O MAVINKOPPA, TQ: DHARWAD,
DIST: DHARWAD, NOW AT HALIYAL, DIST: U.K.
                                              ...RESPONDENT
(BY SRI.J.S.SHETTY & SRI.M.M.MALAGI, ADVS.)

     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 16.04.2014 MADE IN R.A.NO.219/2012 PASSED BY THE
COURT OF II ADDITIONAL DISTRICT JUDGE, DHARWAD ALLOWING
THE APPEAL FILED BY RESPONDENT AND THEREBY REVERSING
THE JUDGMENT AND DECREE DATED 16.01.2012 MADE IN
O.S.NO.706/2010 PASSED BY THE COURT OF PRINCIPAL CIVIL
JUDGE & PRL.JMFC, DHARWAD, IN THE INTEREST OF JUSTICE &
EQUITY.
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     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:



                              JUDGMENT

The captioned second appeal is filed by the defendant

questioning the judgment and decree passed by the First

Appellate Court in R.A.No.219/2012 wherein the suit filed by

the respondent/plaintiff for bear injunction is allowed and suit

is decreed.

2. The facts leading to the case are as under:

The respondent/plaintiff filed a bear suit for injunction by

asserting right and title over the suit property which is an

agricultural land comprised in Sy.No.27 totally measuring 4

acres 19 guntas. The respondent/plaintiff claimed that the

suit land was purchased by his father Chidambarappa from his

original owner namely Shahugouli. The respondent/plaintiff

further contended that after the death of his father, the

respondent/plaintiff and his brothers inherited the suit

schedule property and they are in lawful possession and

cultivation of the suit schedule property. The

respondent/plaintiff contended that they have grown paddy

crop which was on the verge of harvesting. The

respondent/plaintiff specifically alleged that the

appellant/defendant who is the adjoining owner tried to

illegally interfere with the peaceful possession and enjoyment

of the respondent/plaintiff. Hence, filed a bare suit for

injunction.

3. The respondent/plaintiff in support of his contention

examined himself as PW.1 and examined one independent

witness as PW.2 and relied on documentary evidence vide

Exs.P-1 to P-5. The respondent/plaintiff has relied on a title

document vide Ex.P-5 which is the certified copy of the sale

deed. The appellant/defendant has not chosen to lead any

ocular evidence norhas produced any documentary evidence.

4. The Trial Court having examined the material on

record has come to conclusion that one more suit is pending in

O.S.No.783/2010. The Trial Court has also recorded a finding

that the respondent/plaintiff alone is not the absolute owner

and there are other legal heirs who have inherited to the

property from their father. Though Trial Court referred to

Ex.D-1 which is the property extract and the same is still

standing in the name of father of the respondent/plaintiff,

however, has strangely proceeded to hold that the initial

burden of establishing lawful possession is not discharged by

the respondent/plaintiff. On these set of reasonings, the Trial

Court has come to conclusion that though the present suit

being one for barr injunction, but the documents relied by the

respondent/plaintiff does not indicate that the suit property is

standing in the name of the respondent/plaintiff. It is in this

background, the Trial Court has come to conclusion that the

respondent/plaintiff has failed to prove his lawful possession

over the suit schedule property.

5. The respondent/plaintiff feeling aggrieved preferred

an appeal before the Appellate Court in R.A.No.219/2012. The

Appellate Court having examined the title documents at Ex.P-5

has come to conclusion that the father of the

respondent/plaintiff acquired valid right and title pursuant to

sale deed executed by his erstwhile owner. The Appellate

Court also found that the plaintiff father's name is duly

entered in the ownership column as well as in column No.12.

Therefore, the Appellate Court was of the view that the

registered sale deed executed in favour of the

respondent/plaintiff's father clearly indicate that the erstwhile

owner parted with possession. The Appellate Court has also

drawn adverse inference against the appellant/defendant who

has not chosen to lead any evidence either in the form of

ocular or documentary. On these set of reasonings, the

Appellate Court was of the view that the judgment and decree

of the Trial Court suffers from serious perversity and the

findings recorded by the Trial Court are palpably erroneous.

In this context, the Appellate Court allowed the appeal and

decreed the suit filed by the respondent/plaintiff.

6. The present appellant/defendant has filed the

second appeal questioning the divergent findings of the Courts

below.

7. The respondent/plaintiff has claimed right and title

on the basis of the registered sale deed obtained by his father

vide Ex.P-5. The respondent/plaintiff along with certified copy

of registered sale deed has also produced record of rights and

mutations which clearly indicate that pursuant to registered

sale deed, the respondent/plaintiff's father name was duly

mutated to the revenue records. The appellant/defendant has

taken a defence and is asserting right on the basis of sale

agreement. The Appellate Court having examined the

material on record has come to conclusion that the

appellant/defendant would not get any right and title based on

an agreement to sell and therefore, remedy, if any, is to file

an appropriate suit and enforce the suit agreement. On these

set of grounds, the Appellate Court held that the

respondent/plaintiff has succeeded in establishing his lawful

possession and has also proved alleged interference.

8. On perusal of the material on record, I am of the

view that the respondent/plaintiff has succeeded in proving

that he is in lawful possession over the suit property. Since

the present appellant/defendant is asserting title, alleged

interference is also proved by the respondent/plaintiff. The

judgment and decree of the Appellate Court is based on legal

evidence on record. I do not find any infirmity or illegality in

the judgment passed by the Appellate Court.

9. No substantial questions of law would arise for

consideration in the present appeal. Accordingly, the appeal is

dismissed.

SD/-

JUDGE

CA