Sri Kullappa vs Smt Nanjamma
2022 Latest Caselaw 2325 Kant

                              1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR.JUSTICE M.G.S.KAMAL

               R.S.A.No.788 OF 2014 (INJ)
BETWEEN:

1.     SRI. KULLAPPA
       S/O LATE HARIDASAIAH
       AGED ABOUT 69 YEARS

2.     SRI. CHIKKAIAH
       S/O LATE CHIKKAIAH
       AGED ABOUT 94 YEARS

3.     SRI. LAKSHMAIAH
       S/O LATE DODDARAMAIAH
       G/O HOMBAIAH
       AGED ABOUT 49 YEARS

4.     LAKSHMI
       W/O SIDDALINGAPPA
       AGED ABOUT 58 YEARS

5.     SMT. MAHADEVAMMA
       W/O LATE CHIKKANNA
       AGED ABOUT 60 YEARS

       ALL ARE R/AT RANGANATHAPURA VILLAGE
       KASABA HOBLI TALUK
       NARASIPURA TALUK - 571 124.
                                      ... APPELLANTS
(BY SRI. REVANASIDDAPPA H.K., ADVOCATE(P/H)

AND:

SMT. NANJAMMA
W/O LATE MULLA SHETTY
AGED ABOUT 84 YEARS
R/AT RANGANATHAPURA VILLAGE
                                   2


KASABA HOBLI TALUK
NARASIPURA TALUK - 571 124.
                                                ... RESPONDENT

(BY SRI. T.N. RAGHUPATHY, ADVOCATE FOR RESPONDENT)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 03.02.2014 PASSED IN R.A. NO. 1/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC, TIRUMAKUDALU
NARASIPURA, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED:09.02.2011 PASSED IN
O.S.NO.102/2005 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
AND JMFC, NARASIPURA.

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



                           JUDGMENT

Present second appeal is filed by the

appellants/defendants aggrieved by the concurrent

findings and conclusions rendered in judgment and

decree dated 09.02.2011 in O.S.No.102/2005 by the

Civil Judge and JMFC, T.Narasipura (hereinafter

referred to as the 'trial Court) and the judgment and

order dated 03.02.2014 in R.A.No.1/2012 on the file

of Senior Civil Judge & JMFC, T. Narasipura

(hereinafter referred to as the 'first appellate court').

2. The respondent/plaintiff has filed a suit in

O.S.No.102/2005 for permanent injunction on the

premise that she is the absolute owner in possession

and enjoyment of suit schedule property being land

bearing Sy.No.62 measuring 1 acre 24 guntas situated

at Ranganathapura village, Kasaba Hobli, T.Narasipura

Taluk in terms of occupancy rights granted in her

favour in LRF No.5738/1975-76 dated 02.06.1982.

That the respondent/plaintiff was an illiterate old lady.

That some people in the village had informed her that

suit schedule property was acquired by the

Government for the purpose of distribution of sites to

some persons. Therefore, the respondent/plaintiff

applied to the Assistant Commissioner, Mysore for

grant of compensation. The Assistant Commissioner

issued endorsement dated 23.04.2006 stating that the

suit schedule property had never been acquired by the

Government. That the appellants/defendants apart

from spreading false information were threatening to

trespass and dispossess the respondent/plaintiff from

suit schedule property. Hence, she was constrained to

file the suit for permanent injunction.

appeared and filed written statement denying the

plaint averments. It was contended by the

appellants/defendants that Block Development Officer

(B.D.O),T.Narasipura had issued Hakku Pathras to

24 persons in Ranganathapura village including the

appellants/defendants. As such, question of

dispossessing the respondent/plaintiff from the suit

schedule property does not arise. That the suit

schedule property was originally belonging to one late

Mullashetty, the husband of the plaintiff. That the land

had been acquired by the Government as per the

Notification dated 20.10.1985. On taking possession

of the suit schedule property, the Government had

distributed 24 sites measuring 30X40 feet to various

persons including appellants/defendants on

25.07.1986. Ever since that the appellants/defendants

and others have been in possession of their respective

sites, Khatha was standing in their names and they

were paying property tax. Hence, sought for dismissal

of the suit.

4. The Trial Court based on the aforesaid

pleadings framed the following issues .

               "1.    Whether    the    plaintiff proves
                      that she is in possession and
                      enjoyment      over     the    suit
                      schedule property?

               2.     Whether      the    plaintiff  further
                      proves     that,    defendants     are
                      interfering    with    her    peaceful
                      possession and enjoyment over
                      the suit schedule property?

3. Whether the plaintiff is entitled for decree as claimed?

4. What order or decree?"

and recorded evidence.

5. One Siddashetty examined himself as

PW.1 and produced 7 documents marked as Ex.P.1 to

Ex.P7. No oral or documentary evidence was led in on

behalf of the defendants.

6. Taking into consideration the evidence

adduced by the respondent/plaintiff and also the

admission made by the appellants/defendants in the

written statement to the effect that husband of the

respondent/plaintiff was in possession of the suit

schedule property, and also taking note of the fact

that appellants/defendants neither produced any iota

of evidence nor cross-examined the plaintiff witness,

the Trial Court decreed the suit and granted

permanent injunction in favour of the

respondent/plaintiff, against the appellants/ defendants.

Aggrieved by the same, the appellants/defendants

preferred R.A.No.1/2012 before the First Appellate Court.

7. Based on the grounds urged in the appeal

memorandum, the First Appellate Court framed the

following points for its consideration.

"1. Whether appellants/defendants prove the judgment and decree passed by the Trial Court is not binding on them and it warrants interference by this Court?

2. Whether appellants have made out valid and sufficient grounds to permit them to adduce additional evidence?

        3.       Whether the matter             requires to be
                 remanded for fresh             consideration by
                 the trial court?

        4.       What order or decree?"

8. The First Appellate Court on re-appreciation

of evidence and also taking into consideration of

endorsement issued by the Assistant Commissioner on

23.04.2006 clearly stating that the land in question

was not acquired, concluded that the

appellants/defendants had failed to prove their

contention of having obtained Hakku Pathra in their

names by virtue of purported acquisition dated

18.07.1986. Though, the appellants/defendants had

made an application for production of documents

under order 41 Rule 27 of CPC, the First Appellate

Court declined to accept the same, in view of the

endorsement dated 23.04.2006 issued by the

Assistant Commissioner. The First Appellate Court

thus came to the conclusion that in view of the

aforesaid endorsement of the Assistant Commissioner

of not acquiring the suit land, the very case of the

appellants/defendants being in possession of the land

on the basis of Hakku Pathras which in turn were

purportedly issued pursuant to the acquisition of land

in question cannot be countenanced. In the aforesaid

facts and circumstances of the case, no illegality or

infirmity can be found with the findings and

conclusions arrived at by the Trial Court and the First

Appellate Court. No substantial question of law arises

for consideration in the appeal. Hence, the appeal is

dismissed.

Sd/-

JUDGE

RU