Madivalayya S/O. Rachayya Angadi vs Basappa S/O. Mahadevappa ...
2022 Latest Caselaw 1349 Kant

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               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 31ST DAY OF JANUARY, 2022

                              BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 R.S.A.NO.5406 OF 2013(INJ)
BETWEEN:

MADIVALAYYA S/O RACHAYYA
ANGADI, AGE: 65 YEARS, OCC: AGRICULTURE,
R/O TADKOD, DHARWAD TQ & DIST-580005.
                                                      ...APPELLANT
(BY SRI.S.G.KADADAKATTI, SRI.A.R.PATIL, & SRI.M.B.GONDI, ADVS.)

AND:

1. BASAPPA S/O MAHADEVAPPA
SAVADATTI, AGE: 80 YEARS,
OCC:AGRICULTURE, R/O TADKOD,
DHARWAD TQ & DIST-580005.

2. GURUVAYYA S/O RACAYYA
AGANDI, AGE: 50 YEARS,
OCC:AGRICULTURE, R/O TADKOD,
DHARWAD TQ & DIST-580005.

3. BASAVAYYA S/O RACAYYA
AGANDI, AGE: 42 YEARS,
OCC:AGRICULTURE, R/O TADKOD,
DHARWAD TQ & DIST-580005.
                                                     ...RESPONDENTS
(BY SRI.J.S.SHETTY & SRI.H.I.TARIHAL, ADV. FOR R1,
   R2 AND R3 SERVED)

      THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE IIIRD ADDL.SENIOR
CIVIL JUDGE, DHARWAD IN R.A.NO.71/2008, DATED 20.11.2012 BY
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE PRL.CIVIL
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JUDGE (JR.DN) AND PRL.JMFC, DHARWAD IN O.S.NO.137/2007 DATED
25.06.2008 AND TO ALLOW THE APPEAL IN THE ENDS OF JUSTICE AND
ETC.,

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



                               JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendant No.1 who has questioned the concurrent judgment

and decree of the Courts below wherein the present

appellant/defendant No.1 is restrained by way of perpetual

injunction from interfering with the respondent No.1/plaintiff's

peaceful possession and enjoyment over the suit schedule

property.

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

The respondent No.1/plaintiff filed a bare suit for

injunction in O.S.No.137/2007 by specifically contending that

he is the absolute owner of residential house and open space

which is comprised in VPC.Nos.132 and 132/B. The

respondent No.1/plaintiff further contended that he purchased

the suit schedule property from previous owner namely

Abdulkarimsab S/o Nabisab Peerjade for a valuable sale

consideration of Rs.12,000/- under registered sale deed dated

24.07.1997. The respondent No.1/plaintiff further specifically

contended that the erstwhile owner delivered possession

pursuant to execution of sale deed and mutation was executed

in terms of registered sale deed. The respondent

No.1/plaintiff further contended that there is a 6 ft. passage

between VPC No.132 and 132/B and the said passage was

used by the previous owner and after transfer of the suit

schedule property in favour of the respondent No.1/plaintiff,

he has been using the passage without anybody's obstruction.

3. The respondent No.1/plaintiff further contended

that the present appellant/defendant No.1 who is neither the

adjoining owner nor he has any right and title over the suit

schedule property attempted to close the suit passage. The

respondent No.1/plaintiff further contended that the

appellant/defendant No.1 is falsely asserting that their

property adjoins to the suit property and therefore, the

property set up by the respondent No.1/plaintiff in respect of

VPC No.132/B is in fact property covered under VPC No.272/A

which is owned by the present appellant/defendant No.1.

Hence, filed a bear suit for injunction.

4. The present appellant/defendant No.1 stoutly

denied the entire averments made in the plaint. The present

appellant/defendant No.1 specifically disputed the description

of the suit property. He further specifically contended that the

sale deed of respondent No.1/plaintiff is concocted and

created. The present appellant/defendant No.1 specifically

asserted that they are the owners of VPC No.272/A and

therefore, relied on property extract issued by the authority

and specifically contended that VPC No.272/A is open space

and appellant/defendant No.1 is using to store hay sticks,

cowdung and a hut is also situated and therefore, contended

that the respondent No.1/plaintiff is highhandedly trying to

use the passage by contending that this passage bears

VPC.No.132/B.

5. The Trial Court having assessed the oral and

documentary evidence answered issue Nos.1 to 3 in the

affirmative and held that the respondent No.1/plaintiff has

succeeded in proving that he is in peaceful possession and

enjoyment over the suit schedule property and further held

that the respondent No.1/plaintiff has also succeeded in

proving the alleged interference by the present

appellant/defendant No.1. The Trial Court having examined

the oral and documentary evidence and also the stand taken

by the present appellant/defendant No.1 has held that though

appellant/defendant No.1 has asserted right and title over VPC

No.272/A, however, has failed to establish his right and title

over the suit property. The Trial Court has also referred to

Ex.P-12 which was a suit filed by Anjumann-E-Islam against

the defendants and the said suit was decreed by holding that

VPC No.272 belongs to Anjumann-E-Islam. The Trial Court

was of the view that the appellant/defendant No.1 has not at

all produced any documentary evidence to prove that VPC

No.272 was sub-divided and the said division bearing VPC

No.272/A is owned by the appellant/defendant No.1. The Trial

Court having referred to the title documents produced by the

respondent No.1/plaintiff as per Ex.P-1 coupled with the

property extracts at Exs.P-2 to P-4 has come to conclusion

that the plaintiff has succeeded in establishing his lawful

possession and also alleged interference. The said judgment

is confirmed by the First Appellate Court.

6. It is against this concurrent judgment and decree of

the Courts below which are under challenge by the defendant

No.1 before this Court.

7. Heard learned counsel appearing for the appellant.

Perused the judgment under challenge.

8. The respondent No.1/plaintiff is asserting right and

title over the property bearing VPC Nos.132 and 132/B. To

establish his title, he has produced copy of registered sale

deed as per Ex.P-1. The registered sale deed clearly indicate

that the respondent No.1/plaintiff is the owner of the suit

schedule property. Exs.P-2 to P-11 are the tax receipts in

respect of the suit property. Coupled with this documentary

evidence, the respondent No.1/plaintiff has examined as many

as four witnesses who have deposed on behalf of respondent

No.1/plaintiff and have stated that the respondent

No.1/plaintiff is in lawful possession over the suit schedule

property. The respondent No.1/plaintiff by producing title

documents and also property extracts coupled with ocular

evidence of independent witnesses has succeeded in

discharging the initial burden.

9. The present appellant/defendant No.1 contention is

that he is the owner of property bearing VPC No.272/A which

is adjoining to the property bearing VPC No.132. The

contention of the appellant/defendant No.1 is that the

respondent No.1/plaintiff has come up with a fictitious

property which he claims that it bears VPC No.132/B. It is the

specific case of the appellant/defendant No.1 that this

property in fact is not at all in existence and the boundaries

assigned to this property are in fact relating to VPC No.272/A

and therefore, the present appellant/defendant No.1 claim is

that he is the absolute owner of VPC No.272/A. However, the

documents placed on record clearly indicate that property

bearing VPC No.272 is in fact owned by Anjumann-E-Islam.

Both the Courts have recorded a concurrent finding that the

appellant/defendant No.1 has failed to establish the sub-

division in VPC No.272 and has also not produced any title

documents indicating that appellant/defendant No.1 is the

owner of property bearing VPC No.272/A. Based on this

ground, both the Courts have proceeded to hold that

respondent No.1/plaintiff is in lawful possession as on the date

of filing of the suit and the alleged interference is also proved.

10. The concurrent findings recorded by the Courts

below is based on legal evidence adduced by respondent

No.1/plaintiff. Both the Courts have held that the

appellant/defendant No.1 has failed to prove his title over the

property bearing VPC No.272/A and therefore, have proceeded

to grant perpetual injunction against the appellant/defendant

No.1 from interfering with respondent No.1/plaintiff's peaceful

possession and enjoyment over the suit schedule property

bearing VPC No.132/B.

11. The judgment and decree passed by the Courts

below in granting perpetual injunction is based on clinching

evidence on record and coupled with unequivocal admission

given by DW.1 in cross-examination who has admitted that

VPC No.132/B is in possession of the plaintiff. Therefore, I do

not find any infirmity or illegality in the judgments under

challenge. No substantial questions of law would arise for

consideration in the present appeal. The appeal is accordingly

dismissed.

SD/-

JUDGE CA