Karnataka High Court
Sri Akeella Subba Rayadu vs Smt Jayashree on 21 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.994 OF 2021(INJ)
BETWEEN:
SRI.AKEELLA SUBBA RAYADU
SON OF RAMAMURTHY
AGED ABOUT 80 YEARS
RESIDING AT LAKSHMI SRINIVASA NAGARA CAMP
ERANGALA POST
BELLARY DISTRICT
PIN CODE-583 115
... APPELLANT
(BY SRI.P.M.SIDDAMALLAPPA, ADV.)
AND:
1. SMT.JAYASHREE
WIFE OF K.BABU RAO
AGED ABOUT 63 YARS
AGRICULTURIST
RESIDING AT KANIVEBILACHI VILLAGE
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
PIN CODE-577 231
2. SRI.KRISHNA RAO
SON OF K.BABU RAO
AGED ABOUT 43 YEARS
AGRICULTURIST
RESIDING AT KANIVEBILACHI VILLAGE
2
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
PIN CODE-577 231
3. SRI.K.R.RAVI PRAKASH NETAJI NAIKA
SON OF K.T.BADIYA NAIK
AGED ABOUT 45 YEARS
RESIDING AT KABBALA VILLAGE
CHANNAGIRI TALUK
DAVANGERE DISTRICT
PIN CODE-577 231
4. THE DEPUTY COMMISSIONER
DAVANAGERE DISTRICT
DAVANAGERE
PIN CODE-577 101
5. THE TAHSILDAR
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
PIN CODE-577 231
6. THE DEPUTY DIRECTOR OF LAND RECORD
DAVANAGERE DISTRICT
DAVANAGERE
PIN CODE-577 101
7. THE SURVEY SUPERVISOR
TALUK OFFICE
CHANNAGIRI TALUK
CHANNAGIRI
PIN CODE-577 231
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.08.2019
PASSED IN RA NO.35/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHANNAGIRI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
3
DATED 25.06.2018 PASSED IN OS NO.869/2007 ON THE
FILE OF THE PRINCIPAL CIVIL JDUGE AND JMFC,
CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by defendant No.1.
2. A suit for injunction was filed by the plaintiffs
contending that they were the owners of the land bearing
Sy.No.52/9 measuring 3 acres and Sy.No.52/10 measuring
2 acres 20 guntas which were both situated at Hosahalli
Village, Channagiri Taluk, Davanagere District.
3. It was their case that they had purchased item No.1
under two registered sale deeds in the year 1993 and item
No.2 under a sale deed dated 18.09.1989 and ever since
they were in possession.
4. It was their further case that defendant No.1 had
purchased the lands in Sy.Nos.52/A, B and C measuring an
extent of 5 acres and had sold the entire land and
migrated to Bellary District. It was stated that defendant
No.1 in collusion with defendant Nos.3 to 6 had tried to
create the survey documents and in order to create the
documents, defendant Nos.4 to 6 had trespassed upon the
property and interfered with the plaintiffs possession and
hence, the plaintiffs were constrained to file a suit.
5. Defendant Nos.1 and 2 filed a common written
statement, while defendant No.4 - the Tahsildar filed a
separate written statement.
6. Defendant Nos.1 and 2 denied the plaint averments
and also the boundaries of the suit schedule property.
They set up the plea that defendant No.1 had purchased
3 acres in Sy.No.52/A on 28.05.1983, 3 acres in S.No.52/B
on 26.02.1982 and 3 acres in Sy.No.52/C on 16.10.1978
and out of the said extent purchased, he had sold 2 acres
in Sy.No.52/A in favour of one Smt.Balasoubagyalakshmi,
1 acre 20 guntas each in Sy.Nos.52/B and 52/C in favour
of Sri.Balasu Srinivas and was in possession of the
remaining extent. It was alleged that in order to grab the
property of these defendants, the suit has been filed.
7. Defendant No.4, in his written statement admitted
that the plaintiffs were in possession of the land bearing
Sy.Nos.52/9 and 52/10 towards the road from West to
East Halla.
8. The Trial Court on consideration of the evidence
adduced before it, came to the conclusion that the
plaintiffs had proved that they were in possession as on
the date of the suit. It however concluded that the
interference by defendant Nos.1 and 2 had not been
proved. It also came to the conclusion that defendant
Nos.3 and 4 had not created the revenue documents in
favour of defendant Nos.1 and 2. Thus, after finding that
the plaintiffs were in possession, the prayer for injunction
was refused on the ground that interference by defendant
Nos.1 and 2 was not established.
9. The plaintiffs, being aggrieved, preferred an appeal.
10. In the appeal, the Appellate Court concurred with the
finding of the Trial Court that the plaintiffs had proved
their possession over the suit property. The Appellate
Court, however, disagreed with the finding of the Trial
Court regarding interference and noticed that there was a
clear averment in the plaint that the defendants were
interfering with the possession of the plaintiffs over the
suit property.
11. The Appellate Court noticed that DW1 in his cross
examination had also admitted that the plaintiffs were in
possession of the suit property. It also noticed that the
defendants were present along with the revenue officials in
the suit schedule property for the survey and that by itself
indicated that there was an intention to interfere with the
plaintiffs possession. The Appellate Court accordingly
concluded that the interference had been proved and
therefore, the plaintiff was entitled for a decree of
injunction. The appeal was accordingly allowed.
12. Sri.B.M.Siddamallappa, learned counsel for the
appellant basically contended that the suit itself was not
maintainable since one of the prayers in the suit was for
injunction to restrain the revenue authorities from making
the entries in the revenue documents. He submitted that
in such a suit, which was not maintainable, the Appellate
Court could not have decreed the suit.
13. He also contended that the boundaries of the
property were incorrect and having regard to this fact, it
was wrong on the part of the Appellate Court to decree the
suit.
14. Admittedly, both the Courts on appreciation of the
documentary evidence have come to the conclusion that
the plaintiffs had proved their lawful possession of the suit
schedule property. Both the Courts have also taken note of
the clear admission of defendant No.2 (DW1) regarding the
possession of the plaintiffs over the suit schedule property.
15. In the light of the concurring findings of fact
recorded by both the Courts that the plaintiffs were in
possession, no substantial question of law, as such, would
arise for consideration in this second appeal. The second
appeal is accordingly dismissed.
16. It is however made clear that if the right of
defendant Nos.1 and 2 over their property is denied or
interfered with by the plaintiffs, they are at liberty to
institute an appropriate proceedings in respect of their
properties.
17. Since, the appeal itself is being taken up on merits,
the application in I.A.No.2/2021 filed for condonation of
delay is allowed and the delay of 127 days in filing the
appeal is condoned.
18. Since, the main appeal itself is dismissed,
I.A.No.1/2021 seeking stay do not survive for
consideration accordingly the same is also disposed of.
Sd/-
JUDGE
GH
