Talawar Ramappa vs Sakrahalli Shekharappa
2022 Latest Caselaw 2846 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
      DATED THIS THE 21ST DAY OF FEBRUARY, 2022
                           BEFORE
 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
              R.S.A.NO.5346/2013 (DEC/INJ)
BETWEEN

1.    TALAWAR RAMAPPA,
      58 YEARS, S/O LATE T.NAGAPPA,
      R/O GADDIKERI VILLAGE,
      HAGARIBOMMANAHALLI TALUK,
      BELLARY DISTRICT, PIN-583212.

2.    TALAWARD PAKKIRAPPA,
      45 YEARS, S/O LATE T.NAGAPPA,
      R/O GADDIKERI VILLAGE,
      HAGARIBOMMANAHALLI TALUK,
      BELLARY DISTRICT, PIN-583212.
                                             ...APPELLANTS
(BY SRI C.S.SHETTAR, ADV.)

AND

SAKRAHALLI SHEKHARAPPA,
62 YEARS, S/O KOTRABASAPPA,
R/O GADDIKERI VILLAGE,
HAGARIBOMMANAHALLI, TALUK,
BELLARY DISTRICT, PIN-583212.
                                        .... RESPONDENT
(BY SRI K.L.PATIL, ADV.)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 11.02.2012 PASSED
IN R.A.NO.78/2011 BY THE PRINCIPAL SENIOR CIVIL JUDGE &
JMFC AT HOSPET CONFIRMING THE JUDGMENT & DECREE
DATED 26.07.2011 IN O.S.NO.11 OF 2010 PASSED BY THE
CIVIL JUDGE & JMFC AT HAGARIBOMMANAHALLI, AND DECREE
THE SUIT AS PRAYED FOR BY ALLOWING THIS REGULAR
SECOND APPEAL, IN THE INTEREST OF JUSTICE.
                                  2




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


                        : JUDGMENT :

The captioned regular second appeal is filed by

unsuccessful plaintiffs, wherein both the Courts below

have dismissed the suit filed by the appellants-

plaintiffs and relief of declaration and injunction

sought by the appellants-plaintiff is negatived by both

the Courts below.

2. Facts leading to the above said case are as

follows :

The appellants-plaintiffs filed a suit for

declaration and injunction in O.S.No.11/2010. They

claim that the suit schedule property is a vacant site

bearing Door No.131 corresponding Katha No.269. The

appellants-plaintiffs claim that the suit schedule

property is their ancestral property and they are in

exclusive possession and enjoyment over the suit

schedule property. The appellants-plaintiffs claim that

they are also paying tax. The appellants-plaintiffs

specific case is that the respondent-defendant is

nowhere concerned to the suit schedule property nor

is related in any manner. The grievance of appellants-

plaintiffs is that the respondent-defendant without

semblance of right and title tried to dispossess the

appellants-plaintiffs and therefore the present suit for

declaration and consequential relief of injunction came

to be filed by appellants-plaintiffs.

     3.     On        receipt    of   summons,     respondent-

defendant       contested the proceedings and          stoutly

denied the entire averments made in the plaint. The

respondent-defendant specifically contended that the

suit schedule property is the ancestral property and

his father has constructed a house leaving open space

towards northern side which measures 8 feet North-

South and 52 feet East-West. The respondent-

defendant specifically claims that the suit schedule

property bears property No.No.2/128 and the same

measures 16 feet East-West and 8 feet North-South.

The respondent-defendant claims that, he is in

exclusive possession and the appellants-plaintiffs have

no manner of right and title over the suit schedule

property. Respondent-defendant claimed that it is

appellants-plaintiffs who are threatening to dispossess

the respondent-defendant and therefore the

respondent-defendant was compelled to file a bare

suit for injunction in O.S.No.20/2002. He would

contend that said suit came to be decreed and the

appeal filed by the present appellants-plaintiffs in

R.A.No.56/2003 is also dismissed. Having suffered a

decree, the present suit is filed and therefore

specifically contended that the present suit is hit by

Section 11 of the Code of Civil Procedure, 1908.

4. The Trial Court having assessed ocular and

documentary evidence, answered Issue Nos.1 and 2 in

the negative and recorded a finding that the

appellants-plaintiffs have failed to prove that they are

the absolute owners and are in possession of the suit

schedule property. While dealing with Issue No.2, held

that the alleged interference is not proved and

accordingly Issue No.2 was answered in the negative.

While examining Issue Nos.3 & 4, the Trial Court

answered the same in the affirmative and recorded a

finding that respondent-defendant has proved that he

is the owner and in peaceful possession and

enjoyment over suit schedule property and therefore

the present suit is not maintainable as same is hit by

principles of resjudicata.

5. Feeling aggrieved by the judgment and

decree of the Trial Court, the appellants-plaintiffs

preferred an appeal before the First Appellate Court.

The appellants-plaintiffs, before the First Appellate

Court by reiterating the averments made in the plaint

specifically contended that the suit schedule property

in the present appeal and the one covered under

O.S.No.20/2002 are totally different and therefore the

appellants-plaintiffs' case before the First Appellate

Court was that the suit property being the ancestral

property are entitled for relief of declaration and

consequential relief of injunction. The grievance of the

appellants-plaintiffs before the First Appellate Court

was that the suit property in the present case was not

at all subject matter of the earlier suit filed by

respondent-defendant in O.S.No.20/2002 and

therefore Section 11 has no application to the present

case on hand.

       6.    The     First      Appellate      Court      having

independently      assessed      ocular     and    documentary

evidence     at    paragraph        No.28    has   meticulously

compared the boundaries referred to in the present

suit and one referred in O.S.No.20/2002. On

meticulous examination of the boundaries referred to

in both the suits, the First Appellate Court has also

recorded a categorical finding that the property which

is subject matter of the present suit was the subject

matter in earlier suit filed by the respondent-

defendant in O.S.No.20/2002. The First Appellate

Court was also of the view that the boundaries in both

the suits tallied with each other and therefore the

present suit is not filed in respect of some other

property as alleged by appellants-plaintiffs. On these

set of reasonings, the First Appellate Court has

concurred with findings and conclusion arrive at by the

Trial Court and has proceeded to dismiss the appeal. It

is against concurrent judgment and decree of the

Courts below the appellants-plaintiffs are before this

Court.

7. Heard learned counsel appearing for the

appellants and learned counsel appearing for the

respondent and perused both the judgments under

challenge.

8. The appellants-plaintiffs are asserting their

title over the suit schedule property bearing Door

No.2/131. Contention of the learned counsel for the

appellants is that the suit schedule property was

earlier assigned Door No.2/129. To establish his title,

the appellants-plaintiffs have placed reliance on

Exs.P.1, which is a property extract. Placing reliance

on Ex.P.1, the appellants-plaintiffs are asserting right

and title by contending that the suit schedule property

is their joint family ancestral property. The said claim

is countered by respondent-defendant by placing

reliance a counter property extract at Ex.D.11, which

is a demand extract issued in the name of respondent-

defendant. The said suit property bears Katha extract

No.268 and corresponding House No.2/128.

Respondent-defendant filed a bare suit for injunction

in respect of property baring No.2/128 with

corresponding Katha extract No.2/268. In the said

suit, respondent-defendant claimed that suit schedule

property is his ancestral property and in the said suit

the present appellants-plaintiffs were defendants. The

Trial Court having assessed oral and documentary

evidence found that respondent-defendant is in

possession and there is also a shed in property

bearing No.2/128. Having examined the material on

record, the Court decreed the suit filed in

O.S.No.20/2002 and the present appellants-plaintiffs

were restrained by way of perpetual injunction. The

said decree was questioned by filing appeal in

R.A.No.56/2003. The First Appellate Court on re-

appreciation dismissed the appeal filed by the present

appellants-plaintiffs.

9. Having suffered decree for perpetual

injunction which was confirmed by the Appellate Court

in R.A.No.56/2003, the present suit is filed by

appellants-plaintiffs seeking relief of declaration and

injunction. In the present suit, the appellants-plaintiffs

claim that they are asserting right and title over

property bearing Door No.2/131 with corresponding

Katha extract No.269. However both the Courts having

meticulously examined the boundaries in the present

suit and the boundaries shown in the earlier suit in

O.S.No.20/2002 have recorded categorical finding

that, the properties are one and the same.

10. While arguing the case, learned counsel

appearing for the appellants-plaintiffs would

vehemently submit that the present lis between the

parties can be resolved effectively only by having a

recourse to local inspection. Therefore, he would

submit to this Court that the application was filed

before the Trial Court seeking appointment of Court

Commissioner, which came to be rejected. However he

would fairly submit that, the said order was not at all

challenged. He would submit to this Court that even if

the said order is not challenged, it is well within the

appellants-plaintiffs right to assert and agitate their

claim and question the order by invoking the

provisions of Order XLIII Rule 1A of CPC. Though I find

some force in the submission made by learned counsel

appearing for the appellants-plaintiffs and it is a trite

law that if an interlocutory order is not challenged the

same can be agitated before the First Appellate Court

in regular appeal filed under Section 96 by raising

specific grounds. But in the present case, appellants-

plaintiffs have not chosen to question the said finding

on the application filed under Order XXVI Rule 9 of

CPC. If the appellants-plaintiffs have waved of their

rights and have not challenged the order before the

First Appellate Court, then I am of the view that, the

said finding recorded by the Trial Court on application

filed under Order XXVI Rule 9 cannot be examined

under Section 100 of CPC.

11. The appellants-plaintiffs have suffered a

decree in the earlier suit filed by the respondent-

defendant. In the earlier round of litigation both the

Courts have concurrently held that it is the

respondents-defendants who have put up a shed and

are in lawful possession over the suit schedule

property. Having suffered a decree in the earlier suit,

the present suit is filed again seeking relief of

declaration and consequential relief of injunction.

Therefore, when admittedly appellants-plaintiffs have

suffered a decree in earlier suit, the present suit even

otherwise is hit by Section 34 of Specific Relief Act.

Insofar as title is concerned, both the Courts have

concurrently held that the appellants-plaintiffs have

failed to their right and title over the suit schedule

property. Though a claim is made by appellants-

plaintiffs asserting right and title over the suit

schedule property, no documents have produced, to

substantiate their title in the suit schedule property.

The concurrent findings recorded by the Courts below

do not suffer from any infirmities and illegalities. No

substantial question of law arises. Accordingly, the

appeal stands dismissed.

Sd/-

JUDGE EM