Baira S/O Manjayya Devadiga vs The State Of Karnataka
2022 Latest Caselaw 158 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

          DATED THIS THE 05TH DAY OF JANUARY 2022

                             BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

         REGULAR SECOND APPEAL NO.6024/2012 (INJ)
BETWEEN
SHRI BAIRA S/O MANJAYYA DEVADIGA,
AGE ABOUT 65 YEARS, OCC: COOLIE,
R/O SHIRALI-581354, BHATKAL TALUK,
DIST: UTTAR KANNADA.
                                                       ... APPELLANT
(BY SRI A S PATIL, ADV.)

AND
1.      THE STATE OF KARNATAKA
        REPTD. BY DEPUTY COMMISSIONER,
        KARWAR-581301, DIST: UTTAR KANNADA.

2.      THE REVENUE INSPECTOR,
        MAVALLI-581320, TQ: BHATKAL,
        DIST: UTTAR KANNADA.

3.      THE CHAIRMAN,
        VILLAGE PANCHAYAT COMMITTEE,
        SHIRALI-581354, DIST: UTTAR KANNADA.

4.      THE TAHASILDAR,
        BHATKAL-581320, DIST: UTTAR KANNADA.
                                                    ... RESPONDENTS
(BY     SRI JAGADISH PATIL, ADV. FOR R.3
        SRI PRASHANT MOGALI HCGP, FOR R.1, 2 & 4)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE HON'BLE SENIOR
CIVIL JUDGE, HONNAVAR (ITINERARY COURT AT BHATKAL) IN
R.A.NO.16/2003 DATED 03.02.2012 CONFIRMING THE IMPUGNED
JUDGMENT AND DECREE PASSED BY THE HON'BLE CIVIL JUDGE
(JR.DN.) & JMFC BHATKAL IN O.S.NO.26/1995 DATED 24.09.2001, IN
THE INTEREST OF JUSTICE AND EQUITY.
                               2




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

                       : JUDGMENT :

Though this appeal is listed for admission, with the

consent of the learned counsel appearing for the parties,

the same is taken up for final disposal.

2. This captioned regular second appeal is filed by

unsuccessful plaintiff questioning the concurrent

judgments and decree of the Courts below.

3. The facts leading to the above said case are as

under :

The appellant/plaintiff instituted a suit seeking relief

of bare injunction against the respondents/ defendants.

The plaintiff admitted that, respondent No.3 is the owner

of schedule 'A' property and further admitted that it was

meant for development of Children Park. The appellant

claimed that he was appointed as a watchman and was

drawing a salary of Rs.50/- per month for a period of 3 to

4 years. At paragraph No.3 of the plaint, specifically

contended that he has encroached about 30 guntas of

land, which is referred as schedule 'B' property and the

same is situated on the western side of schedule 'A'

property. The appellant contended that it is a revenue

land and he has developed by spending huge amount and

has planted coconut, mango, cashew, jackfruit and other

fruit trees in schedule 'B' property. The grievance of the

appellant is that the 3rd defendant has not paid salary for

last 15 years, and also threatened to oust him from

schedule 'A' property and therefore the present suit came

to be filed by the appellant herein.

4. The 3rd defendant on receipt of summons

contested the proceedings and stoutly denied the entire

averments made in the plaint. The 3rd defendant also

seriously disputed the allegations that the plaintiff has

encroached Sy.No.802A1A2. The 3rd defendant has

specifically contended that the plaintiff is not in

possession of the suit schedule property and therefore

question of granting injunction does not arise. The 3rd

defendant has specifically contended that the

appellant/plaintiff was a temporary employee and his

service is terminated and the 3rd defendant has taken

possession of schedule 'B' property except 4 guntas,

where the appellant/plaintiff has constructed a residential

house.

5. The appellant/plaintiff and respondents/

defendants to substantiate their claim have led in

evidence.

6. The Trial Court after appreciating the oral and

documentary evidence on record, has answered issue

Nos.1 and 2 in the negative and recorded a finding that

the appellant/plaintiff has failed to prove his lawful

possession in respect of schedule 'A' property. While

answering issue No.2, the Trial Court has held that the

appellant/plaintiff has failed to prove that he has

encroached 30 guntas of land in Sy.No.802A1A1 of Shirali

village.

7. The Trial Court having assessed the oral and

documentary evidence has recorded a finding that, since

the appellant was a temporary employee and the

materials clearly indicate that he did not continue as

watchman, cannot assert his possession over the

property. The Trial Court has also observed that the

property is already handed over to the panchayath by

BDO.

8. The Trial Curt by placing reliance on the

judgment rendered by the Apex Court was of the view

that, a temporary employee cannot assert possession and

cannot maintain injunction suit. In the absence of

clinching evidence, the Trial Court was of the view that,

the bald statement made by PW.1 is not at all admissible

and since the appellant/plaintiff has failed to prove his

lawful possession over the suit property, he is not entitled

for injunction. The Trial Court was also of the view that

the appellant/plaintiff has failed to prove the alleged

interference.

9. The appellant/plaintiff being aggrieved by the

judgment and decree passed by the Trial Court, preferred

an appeal before the First Appellate Court. The First

Appellate Court on re-appreciation of oral and

documentary evidence on record has concurred with the

findings and conclusions arrived by the trial Court and

proceeded to dismiss the appeal.

10. I have bestowed my anxious consideration to

the judgments rendered by the Courts below. The

materials on record clearly indicate that the appellant was

a temporary employee and subsequently terminated. The

entire lis probably emanates from the fact that the salary

was not paid to the appellant and probably in this

background as a counter, the appellant has come up with

present suit virtually claiming that he has encroached 30

guntas of public property. Even if, he was appointed as a

watchman, the appellant cannot assert possessory rights

over the property owned by the Government.

11. Both the Courts below have dealt with this

issue and have come to the conclusion that, the appellant

has failed to establish his possessory rights over the suit

schedule property. The question of protecting possessory

rights only arises in those situation where party

approaching the Court is able to establish that he is in

lawful possession over the suit schedule property as on

the date of the suit. Further the appellant is also required

to establish there is an interference by the defendants. If

the appellant is terminated, and has any grievance in

regard to payment of salary, he could have approached

the competent authority to seek redressal of his

grievances. On the contrary, he has come up with

frivolous suit in asserting possessory rights not only in

respect of small portion where he was residing, but he is

virtually claiming that he is in possession of adjoining 30

guntas owned by the Government by alleging that he has

encroached over this portion and therefore his possession

is to be protected.

12. It is a trite law that unlawful possession cannot

be protected and no injunction can be granted. These

significant details are taken into consideration by the

Courts below. I do not find any illegality in the judgments

under challenge, no substantial question of law arises in

the present case on hand and accordingly the appeal

stands dismissed.

Sd/-

JUDGE EM