Karnataka High Court
Basavantappa Genitive Father ... vs Hanumavva W/O. Dhareppa Teggihal on 9 February, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5262 OF 2012(INJ)
BETWEEN:
BASAVANTAPPA GENITIVE FATHER SIDDAPPA
ADPOTIVE FATHER SHIVAPPA JALIKATTI,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O INAMA GOVANAKOPPA,
TQ: SAUNDATTI, DIST: BELGAUM
...APPELLANT
(BY SRI.LAXMAN T.MANTAGANI, ADV.)
AND:
1. SMT.HANUMAVVA W/O DHAREPPA
TEGGIHAL, AGE: 87 YEARS, OCC: NIL
T/O INAMA GOVANAKOPPA,
TQ: SAUNDATTI, DIST: BELGAUM
2. BUDDIVANTAPPA S/O MALLAPPA KURI
AGE: 57 YEARS, OCC: AGRICULTURE
R/O INAMA GOVANAKOPPA,
TQ: SAUNDATTI, DIST: BELGAUM
...RESPONDENTS
(R1 HELD SUFFICIENT; R2 APPEAL DISMISSED)
2
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE COURT OF THE PRINCIPAL SENIOR CIVIL JUDGE
SAUNDATTI AT SAUNDATTI IN R.A.NO.10/2011 DTD: 15.11.2011,
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE COURT
OF CIVIL JUDGE SAUNDATTI AT SAUNDATTI, IN O.S.NO.82/2005
DTD: 28-06-2011, AND ALLOW THE ABOVE REGULAR SECOND
APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful
plaintiff questioning the concurrent judgments and decrees of
the Courts below wherein the suit filed by the appellant-
plaintiff herein seeking for bare injunction is dismissed by both
the courts below.
2. For the sake of convenience, the parties are
referred as per their rank before the trial Court.
3. The facts leading to the case are as under:
The plaintiff filed a bare suit for injunction in
O.S.82/2005 by specifically alleging that he is in lawful
possession over the suit land bearing Survey No.193/2
measuring 5 acres 7 guntas. The plaintiff claims that he is in
possession since 1952 till the filing of the suit. The plaintiff
further contended that his name is appearing in the
cultivator's column and other rights column in terms of the
mutation affected as per M.E.No.1636. The plaintiff further
contended that he was cultivating the suit land as a tenant
and has filed Form No.7 for grant of occupancy rights. He
further pleaded that the Land Tribunal, Savadatti, has rejected
Form No.7 on technical grounds eventhough plaintiff was
found to be in possession and enjoyment over the suit
schedule property. He claims that he is paying tax to the
concerned authority and therefore, sought for relief of
injunction against defendants who are the landlords of the suit
schedule property. Plaintiff has further contended that his
mother namely Siddavva filed a suit O.S.46/1996 seeking the
relief of partition and separate possession against the
defendants. The said suit came to be dismissed and against
the said judgment and decree plaintiff's brother Gadigeppa
Siddappa, who was brought on record during the pendency of
the suit preferred an appeal in R.A.No.30/2002. The said
appeal was withdrawn by Gadigeppa Siddappa. Plaintiff
alleges that defendants taking undue advantage of withdrawal
of the R.A. 30/2002 started inferring with plaintiff's peaceful
possession and enjoyment over the suit schedule property.
Though the elderly persons of the villages requested the
defendants not to cause obstruction, the defendants did not
give yield to the request. Hence, he was constrained to file a
bare suit for injunction.
4. On receipt of summons, the defendant No.2 filed
written statement and stoutly denied the entire averments
made in the plaint. The defendants contended that the claim
of plaintiff seeking grant of occupancy rights in respect of the
suit land was rejected by the Land Tribunal and the same was
confirmed by this Court in W.P.18165/1979. The defendants
contended that they are in exclusive possession over the suit
land and therefore, the suit is liable to be dismissed.
5. The trial Court having assessed the oral and
documentary evidence found that land Tribunal has rejected
the claim of the plaintiff and therefore found that the plaintiff
has failed to prove his lawful possession and enjoyment over
the suit land as on the date of the filing of the suit. Feeling
aggrieved by the same, the plaintiff preferred an appeal in
R.A.No.10/2011. The appellate Court having independently
assessed the evidence on record has also come to conclusion
that the plaintiff has failed to establish his lawful possession
over the suit land. The appellate Court while examining the
Land Tribunal's order which was produced at Ex.P8 found that
the present plaintiff has given a statement giving up his claim
insofar as Survey No.193/2 measuring 5 acres7 guntas is
concerned i.e the present suit land and therefore, in the light
of the statement made by plaintiff before the Land Tribunal, it
has proceeded to grant occupancy rights to present appellant-
plaintiff only in respect of Survey No.190/2, whereas the claim
pertaining to the present suit land was rejected. The appellate
Court found that having succeeded in getting occupancy rights
in respect of Survey No.190/2, the plaintiff as an afterthought
challenged the order of the land Tribunal. His claim in respect
of suit land was rejected and order of the Land Tribunal
rejecting the claim of the plaintiff in respect of the suit land
was confirmed by this Court in W.P.18165/1979.The appellate
Court on these set of reasonings has proceeded to confirm the
reasons and conclusions arrived at by the trial Court and
accordingly, the appeal came to be dismissed.
6. It is against these concurrent judgments and
decrees of the Courts below, the present second appeal is
filed.
7. Heard the learned counsel for the appellant-plaintiff
the perused the judgments under challenge.
8. Plaintiff claims that he is the tenant of the suit land
and that he is in lawful possession since 1952. However, on
perusal of the order of the Land Tribunal as per Ex.P8, it is
clearly evident that plaintiff has given a statement before the
Land Tribunal admitting that he is the lawful tenant only in
respect of Survey No.190/2 and has given up his claim in
respect of suit land bearing Survey No.193/2. The land
Tribunal having examined the statement made by plaintiff and
after due enquiry has proceeded to grant occupancy rights
only in respect Survey No.190/2 and the claim in respect of
Survey No.193/2 is concerned, the same stood rejected in the
light of the statement made by the plaintiff before the land
Tribunal. This order is confirmed by this Court in
W.P.18165/1979. If plaintiff has made a statement that he is
not the tenant of the suit land, the same would bind him and
he is estopped from re-agitating his claim in respect of Survey
No.193/2. Both the Courts have recorded a categorical finding
that plaintiff has failed to prove his lawful possession as on the
date of the suit. On the contrary, the defendants have
succeeded in producing clinching rebuttal evidence, which
would clearly prove that it is the defendants who are in lawful
possession over the suit land. If the claim of the plaintiff was
rejected by the Land Tribunal based on a statement made by
the plaintiff to the effect that he is not cultivating the suit land
as a tenant, the question of reconsidering the very said claim
would not arise in the present case on hand. Even to claim
possessory right, the plaintiff is required to prove that he is in
lawful possession as on the date of the suit and there is
interference by the defendants. Both the elements are found
missing in the present case on hand. It is a frivolous case and
the very filing of the suit amounts to sheer abuse of process of
Court. No substantial question of law arises.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
*alb/-
