Ufm Goyadu Mankali Gouda vs Ufm Hosabu S/O. Jattu Gouda
2022 Latest Caselaw 2979 Kant

                             1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100618 OF 2014(INJ)

BETWEEN:

1. U.F.M.SRI.GOYADU MANKALI GOUDA,
AGED ABOUT 60 YEARS, OCC: AGRICULTURE,
R/O KUJANI, GOKARN, TQ: KUMTA,
DIST.UTTAR KANNADA-581326

2. SMT. DURGI, W/O GOYADU GPUDA,
AGED ABOUT 55 YEARS,
OCC: HOUSEHOLD, R/O KUJANI, GOKARN,
TQ: KUMTA, DIST. UTTAR KANNADA-581326.

3. SUKRU GOYADU GPUDA,
AGED ABOUT 40 YEARS, OCC: HOUSEHOLD,
R/O GUMBALE, GOKARN, TQ: KUMTA,
DIST: UTTAR KANNADA-581326.

                                              ...APPELLANTS

(BY SRI.RAJASHEKHAR BURJI, ADV.)

AND:

1. U.F.M. SRI.HOSABU S/O JATTU GOUDA,
R/O BELEHITTAL, TQ: KUMTA,
DIST: UTTAR KANNADA,
SINCE DEAD BY LEGAL REPRESENTATIVES.
                              2


1A. SMT. SOMI HOSABU GOUDA,
AGED ABOUT 62 YEARS, OCC: HOUSEHOLD,
R/O TARMAKKI, TQ: KUMTA,
DIST: UTTAR KANNADA-581343
DECEASED TREATED AS LR'S
R1(B), (C), (D) & 2.

1B. SRI.MABLESHWAR HOSABU GOUDA,
AGED ABOUT 29 YEARS, OCC: AGRICULTURE,
R/O TARMAKKI, TQ: KUMTA,
DIST: UTTAR KANNADA-581343.

1C. SMT.SAVITRI HOSABU GOUDA,
AGED ABOUT 31 YEARS,
OCC: HOUSEHOLD, R/O TARMAKKI,
TQ: KUMTA, DIST: UTTAR KANNADA-581343.

1D. SMT.SEETA SEETARAM GOUDA,
AGED ABOUT 35 YEARS, OCC: HOUSEHOLD,
R/O TARMAKKI, TQ: KUMTA,
DIST: UTTAR KANNADA-581343.

2. SRI.KRISHNA HOSABU GOUDA,
AGED ABOUT 40 YEARS, OCC: AGRICULTURE,
R/O GOKARNA, BELEHITTAL,
TQ: KUMAT, DIST: UTTAR KANNADA-581326.

                                            ...RESPONDENTS

(BY SRI.DINESH M.KULKARNI, ADV. FOR R1(B-D) & R2,
R1(B-D) & R2 LRS OF R1(A)

     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE SENIOR CIVIL JUDGE KUMTA IN R.A.NO.71/2007
DATED 09.04.2014 CONFIRMING THE JUDGMENT AND DECREE
PASSED BY THE PRL.CIVIL JUDGE (JR.DN) KUMTA IN
O.S.NO.65/2004 DATED 27.06.2007, IN THE INTEREST OF JUSTICE
AND EQUITY.
                                   3


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

                              JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendants who are questioning the concurrent judgment and

decree passed by the Courts below granting relief of

possession in favour of the respondents/plaintiffs.

2. The facts leading to the case are as under:

The respondents/plaintiffs are seeking relief of

possession against the defendants in respect of property

bearing Sy.No.1305/2 totally measuring 2 guntas 4 annas and

also consequential relief of injunction to restrain defendants

from interfering with peaceful possession and enjoyment of

the respondents/plaintiffs in respect of suit schedule property.

The respondents/plaintiffs have specifically claimed that their

ancestor namely Jattu Sukru was cultivating land as a tenant

and accordingly, his name was mutated in respect of suit

property bearing Sy.No.1305 vide mutation entry No.8934

dated 03.06.1956. Therefore, respondents/plaintiffs claimed

that property bearing Sy.No.1305 has undergone sub-division.

Property bearing Sy.No.1305/2 measuring to an extent of 1

acre 5 guntas and phot kharab 8 annas is standing in the

name of Jattu Sukru Gowda who is none other than the

grandfather of the plaintiffs herein. The

respondents/plaintiffs claims that after coming into force of

Land Reforms Act, the original plaintiff namely Hosabu S/o

Jattu Gowda who is the father of present

respondents/plaintiffs filed an application seeking grant of

occupancy rights and the Land Tribunal by order dated

22.08.2000 granted occupancy rights in respect of property

bearing Sy.No.1305/2 totally measuring 1 acre 30 guntas.

The respondents/plaintiffs further claimed that the authorities

have issued Form No.11 and in terms of grant of occupancy

rights, mutation also came to be effected.

3. The respondents/plaintiffs claimed that the present

appellants/defendants on account of scarcity of water were

permitted to install pump set in the suit schedule property.

Accordingly, respondent No.1/plaintiff permitted defendant

No.1 to install a pump set so as to lift water from the well

situated in the suit schedule property. The respondent/plaintiff

has further claimed that due to compelling reasons, he had to

shift to Belehittal of Gokarna and therefore, with the

assistance of the villagers, he started cultivating the suit

schedule property and in absence of original plaintiff, one

Sukru Gowda was assisting in protecting the crops from the

stray cattles. The respondents/plaintiffs have further

contended that it was only when the respondent No.1/plaintiff

No.1 intended to sell the suit schedule property in favour of

one Sukru Gowda, the appellants/defendants approached

plaintiff No.1 and insisted for sale in their favour and on

refusal, the present appellants/defendants threatened him. It

is in this background, the respondents/plaintiffs initially filed a

bare suit for injunction and later sought relief of possession

and mandatory injunction.

4. On receipt of summons, the present appellants

contested the proceedings and stoutly denied the entire

averments made in the plaint. The present appellants

specifically contended that they are in exclusive possession

and enjoyment over the suit schedule property bearing

Sy.No.1305/2 to an extent of 2 acres 4 annas for more than

30 years and same is within the knowledge of the

respondents/plaintiffs and as such, they have perfected their

title in respect of suit schedule property.

5. The Trial Court having assessed oral and

documentary evidence examined the documents which are

placed on record by the respondents/plaintiffs. The Trial Court

having taken note of the Land Tribunal order wherein the

original plaintiff Kasabu S/o Jattu Gowda was conferred with

occupancy rights has proceeded to hold that

respondents/plaintiffs are in exclusive possession and

enjoyment over the suit schedule property. While examining

issue No.2, the Trial Court has come to conclusion that though

appellants/defendants have set up adverse title but, however,

to substantiate the said contention, the appellants/defendants

have failed to produce any documentary evidence indicating

that they have perfected their title by way of adverse

possession. On these set of reasonings, the Trial Court has

proceeded to decree the suit directing the present appellants

to handover 2 guntas 4 annas of encroached portion by the

appellants/defendants.

6. Feeling aggrieved by the judgment and decree of

the Trial Court, the present appellants/defendants preferred

an appeal before the Appellate Court in R.A.No.71/2007.

7. The Appellate Court having independently assessed

the oral and documentary evidence has found that the

respondents/plaintiffs have succeeded in establishing their

right and title over the suit schedule property. The Appellate

Court was also of the view that since respondents/plaintiffs are

claiming possession from the appellants/defendants and in

view of appellants/defendants having failed to establish that

they have perfected their title by way of adverse possession

has proceeded to confirm the judgment and decree of the Trial

Court and has consequently dismissed the appeal. It is

against this concurrent judgment and decree of the Courts

below, the appellants/defendants are before this Court.

8. Heard the learned counsel appearing for the

appellants. Perused the judgment under challenge.

9. The respondents/plaintiffs are asserting right and

title on the basis of occupancy rights granted in favour of the

original plaintiff namely Kasabu Jattu Gowda. The documents

which are placed on record clearly indicates that the father of

respondent/plaintiff was conferred with occupancy rights in

respect of the suit schedule property. Therefore, the

respondents/plaintiffs have succeeded in establishing that they

are entitled to seek possession from the present

appellants/defendants. The appellants/defendants having

failed in establishing that they have perfected their title by

way of adverse possession, both the Courts were justified in

directing the appellants/defendants to handover possession of

the suit schedule property.

10. The concurrent findings recorded by the Courts

below is based on clinching evidence adduced by the

respondents/plaintiffs. Therefore, I am of the view that the

judgment and decree of the Courts below does not suffer from

any infirmity. No substantial questions of law arises.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

CA