Jagannath @ Jagadish vs B K Rangaswamy
2022 Latest Caselaw 280 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 07th DAY OF JANUARY, 2022

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

          REGULAR SECOND APPEAL NO.4/2016

BETWEEN:

JAGANNATH @ JAGADISH
S/O LATE DASEGOWDA
AGED ABOUT 53 YEARS
R/O SHANKARIPURAM
HASSAN CITY-573001.
                                    ...   APPELLANT
(BY SRI.GURURAJ R, ADVOCATE FOR
    SRI. VIGHNESHWAR .S. SHASTRI, ADVOCATES)

AND:

B.K. RANGASWAMY
AGED ABOUT 66 YEARS
SECRETARY
ARAVINDA HIGH SCHOOL
KUVEMPUR NAGAR
HASSAN-573 001.
                                    ... RESPONDENT

      THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 09.10.2015 PASSED IN R.A.NO.58/2013 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
JMFC, HASSAN, DISMISSING THE APPEAL CONFIRMING
THE JUDGMENT AND DECREE DATED 05.03.2013 PASSED
IN O.S.NO.286/2005 ON THE FILE OF THE PRL. CIVIL
JUDGE & JMFC, HASSAN.

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

Present regular second appeal is filed by the

appellant/plaintiff aggrieved by the judgment and

decree dated 09.10.2015 passed in R.A.No.58/2013

on the file of II Additional Senior Civil Judge and

JMFC, Hassan (hereinafter referred to as the 'First

Appellate Court') in and by which, the first appellate

court confirmed the judgment and decree dated

05.03.2013 passed in O.S.No.286/2005 on the file of

the Principal Civil Judge and JMFC, Hassan

(hereinafter referred to as the 'Trial Court) which suit

was filed by the appellant/plaintiff for relief of

permanent injunction.

2. The case of the appellant/plaintiff is that;

(a). He has been in actual possession and

enjoyment of the suit schedule property being

immovable property bearing Municipal New Khatha

No.542 new A.R.No.489 (old khatha No.4038 again

old A.R.No.252) measuring east to west 60 feet and

north to south 40 feet. That he has constructed a

asbestos sheet house about 20 years ago and he has

let out the portion of the said property to the tenant

who has in occupation of the same. That the said

property was in possession of the mother of the

appellant/plaintiff. After her demise, the

appellant/plaintiff came into possession of the said

property and has been in continuous possession of the

same.

(b). It is further contended that the mother of

the appellant/plaintiff had earlier filed a suit against

the vendor of the defendant in O.S.No.183/1984. That

the said suit came to be dismissed on 03.12.1982

against which she has preferred R.A.No.7/1993 before

the Senior Civil Judge, Hassan which appeal also came

to be dismissed on 20.02.1995. It is claimed by the

appellant/plaintiff that during the pendency of the said

proceedings he constructed a house and he had grown

coconut and other fruit bearing trees on the property.

That on 21.11.2005 respondent/defendant came to

the schedule property removed the fence and cut the

fruit trees apprehending dispossession by the

respondent/defendant, appellant/plaintiff filed the

present suit.

3. Respondent/defendant in written statement

denied the case of the appellant/plaintiff including

ownership and possession thereon. It is also denied

that the appellant/plaintiff had constructed an

asbestos sheet room and let out the same to the

tenant. It is admitted that plaintiff's mother had filed

suit in O.S.No.183/1984 against the vendor of the

defendant which resulted in dismissal of the suit.

4. appellant/plaintiff examined himself as

P.W.1 and exhibited 23 documents as Ex.P.1 to

Ex.P.23. Defendant examined himself as D.W.1 and

no documentary evidence are levied.

5. Based on the pleadings, trial court framed

issues, recorded evidence and by its judgment and

decree dated 05.03.2013 dismissed the suit of the

appellant/plaintiff.

6. Being aggrieved by the same,

appellant/plaintiff preferred R.A.No.58/2013. The first

appellate court re-appreciating the oral and

documentary evidence furnished by the plaintiff

dismissed the said regular appeal, confirming the

judgment and decree of the trial court. Aggrieved by

the same, the appellant/plaintiff is before this Court.

7. Learned counsel appearing for the

appellant/plaintiff reiterating the grounds urged in the

appeal memorandum submits that;

(a). The first appellate court and trial court

erred in dismissing the suit without appreciating the

material evidence produced by the plaintiff in the

nature of documents issued by the CMC, Hassan and

the photographs furnished by the plaintiff establishing

the continuous possession of the plaintiff.

(b). He further submits that merely because the

suit in O.S.No.183/1984 and thereafter R.A.No.7/1993

which were filed by the mother of the plaintiff against

the vendor of the defendant were dismissed, the

courts below ought not to have dismissed the suit of

the plaintiff without independently assessing the

material evidence produced by him. Thus, he submits

that the courts below have erred in dismissing the suit

giving raise to substantial question of law.

8. Heard learned counsel appearing for

appellant/plaintiff and perused the records.

9. The plaintiff has categorically stated that

he is in possession of the suit property which originally

belonged to his mother-Smt.Kamalamma. That he

came into possession of the property after her demise.

He has also pleaded that his mother had earlier filed

the suit in O.S.No.183/1984 against the vendor of the

defendant which resulted in dismissal against which

the mother of the plaintiff had filed regular appeal in

R.A.No.7/1993, which is also resulted in dismissal.

The aforesaid factual aspect of the matter being on

record, the possession of the mother of the plaintiff

itself is not established. In that view of the matter, the

plaintiff who is claiming right, title and possession

over the suit property through his mother cannot

better the case for himself than that of his mother.

The plaintiff has not produced any other material

evidence establishing his lawful possession over the

suit property. The trial Court and first appellate

court having examined and appreciated these aspects

of the matter and having appreciated the oral and

documentary evidence produced by the

appellant/plaintiff, have rightly concluded that the

plaintiff failed to establish his lawful possession over

the property resulting dismissal of the suit. On a

holistic reading of the evidence and reasoning of the

trial court and first appellate court, this court is of the

considered view that no substantial question of law

involves in this matter for consideration. Hence,

appeal is dismissed.

In view of dismissal of the matter, I.A.No.1/2016

does not survive for consideration.

Sd/-

JUDGE

RU