Gurupadayya S/O Revanayy ... vs Bouawwa W/O Late Dundappa ...
2022 Latest Caselaw 2101 Kant

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         IN THE HIGH COURT OF KARNATAKA

                 KALABURAGI BENCH

     DATED THIS THE 09TH DAY OF FEBRUARY, 2022

                       BEFORE

         THE HON'BLE MRS.JUSTICE J.M.KHAZI

                 RSA.No.200359/2015

BETWEEN:


GURUPADAYYA S/O REVANAYYA PALABHAVIMATH @ PUJAR
AGE: 57 YEARS OCC: AGRICULTURE
R/O: SARWAD TQ & DIST: VIJAYAPUR-586 125

                                        ... APPELLANT

         (BY SRI. SHRAVANKUMAR MATH, ADVOCATE)


AND:

1.     BOURAWWA W/O LATE DUNDAPPA BALAREDDY
       AGE: 72 YEARS OCC: HOUSEHOLD
       R/O: SARWAD
       TQ & DIST: VIJAPUR -586 125.

2.     ANNAPPA S/O LATE DUNDAPPA BALAREDDY
       AGE: 55 YEARS OCC: AGRICULTURE
       R/O: SARWAD
       TQ & DIST: VIJAYAPUR - 586 125.


3.     MAHADEV S/O LATE DUNDAPPA BALAREDDY
       AGE: 52 YEARS OCC: AGRICULTURE
       R/O: SARWAD
       TQ & DIST: VIJAYAPUR - 586 125.
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4.   SHRISHAIL S/O LATE DUNDAPPA BALAREDDY
     AGE: 51 YEARS OCC: AGRICULTURE
     R/O: SARWAD
     TQ & DIST: VIJAPUAR - 586 125.
5.   KASTURI D/O LATE DUNDAPPA BALAREDDY
     AGE: 49 YEARS OCC: HOUSEHOLD
     R/O: SARWAD
     TQ & DIST: VIJAYAPUR - 586 125.
6.   SUBHASH S/O LATE DUNDAPPA BALAREDDY
     AGE: 47 YEARS OCC: AGRICULTURE
     R/O: SARWAD
     TQ & DIST: VIJAYAPUR - 586 125.

7.   ASHOK S/O LATE DUNDAPPA BALAREDDY
     AGE: 43 YEARS OCC: AGRICULTURE
     R/O: SARWAD
     TQ & DIST: VIJAYAPUR - 586 125.
                                         ... RESPONDENTS
            (BY VINAYAK APTE ADVOCATE ALONG WITH
             SRI. SHRINIVAS B. PARTIL, ADVOCATE)


     THIS   REGULAR   SECOND   APPEAL   IS   FILED   UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO
ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 25.09.2008 PASSED IN O.S.NO.255/2001 BY
THE IST ADDITIONAL CIVIL JUDGE (JR. DN) VIJAYAPUR AND
WHICH IS CONFIRMED IN R.A.NO.123/2008 BY THE PRINCIPAL
SENIOR CIVIL JUDGE, VIJAPUAR, VIDE JUDGMENT AND DECREE
DATED 17.07.2015 AND CONSEQUENTLY DECREE THE SUIT OF
THE PLAINTIFF.


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

This is plaintiff's second appeal against concurrent

judgments of the Trial Court as well as First Appellate

Court, whereby the suit filed by plaintiff for the relief of

bare injunction came to be dismissed.

2. For the sake of convenience the parties are

referred by their rank before the Trial Court.

3. It is the case of the plaintiff's that he is the

owner of suit schedule property which is a vacant site

measuring 10 x 20 feet bearing VPC.No.22. Suit schedule

property surrounded on three sides by other properties,

including the house of defendant on the southern side. The

northern boundary of suit schedule property is road.

4. Alleging that defendant who is having his

house on the southern side of the suit schedule property

and even though he is having road on the southern side of

his house, he is trying to put up a door on the northern

side of his house, thereby trying to use the suit schedule

property a thorough fair to reach the road on the northern

side, plaintiff filed suit seeking bare injunction.

5. Defendant filed written statement disputing

that plaintiff is the owner of suit schedule property and

that his vendor had title to the same to convey it in favour

of plaintiff. He has specifically pleaded that there is a

vacant space measuring 8 x 20 feet on the northern side of

his property in VPC.No.20 and this vacant space is

surrounded by property of Sadashiv Sali on the eastern

side and house of Sangappa Somakkannavar on the

western side. He has specifically contended that neither

the vendor of the plaintiff nor the plaintiff have title to the

suit schedule property, as such the suit for bare injunction

is not maintainable.

6. Based on the pleadings the Trial Court framed

the relevant issues and additional issue.

7. Plaintiff examined himself as PW.1 and relied

upon Exs.P.1 to 5. On the other hand, defendant examined

himself as DW.1 and one witness as DW.2. He has relied

upon Exs.D.1 to 10.

8. After approaching the oral and documentary

evidence placed on record, the Trial Court dismissed the

suit on the ground that plaintiff has failed to prove his

lawful possession and enjoyment over suit schedule

property and also on the ground that since the defendant

is disputing the title of plaintiff, he should have filed a suit

for declaration also.

9. Being aggrieved by the same plaintiff

approached the First Appellate Court.

10. After examining the oral and documentary

evidence placed on record, the First Appellate Court also

came to the conclusion that except the sale deed, plaintiff

has not produced any documents to prove that his vendor

had title to convey the suit schedule property in favour of

plaintiff.

11. On the other hand, examining the earlier sale

deeds of the neighboring properties including the

document of title pertaining to defendant's property as well

as VPC.No.21 belonging to Sangappa which is situated on

the western side of suit schedule property and came to the

conclusion that the suit schedule property is a passage and

dismissed the First Appeal.

12. All along the defendant is disputing the

ownership of plaintiff over suit schedule property. Relying

upon the decision of the Hon'ble Supreme Court, in the

matter of Anathula Sudhakar vs. P. Buchireddy (Dead

by LRs) and others reported in 2008 (3) KCCR 1769,

the Trial Court as well as the First Appellate Court have

rightly dismissed the suit of the plaintiff. Inspite of

defendant disputing the title of the plaintiff, he has not

chosen to seek declaration of his title and consequential

relief. In the circumstances, I find no substantial question

of law arising to admit the appeal and therefore, the

appeal is dismissed as devoid of merits.

Sd/-

JUDGE

KJJ