Sri. Narasimhaiah vs Sri. Muddamallaiah
2022 Latest Caselaw 434 Kant

                          1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11th DAY OF JANUARY, 2022

                       BEFORE

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

         REGULAR SECOND APPEAL NO.1508/2015

BETWEEN:

1.     SRI. NARASIMHAIAH
       S/O CHANNAKOTAIAH
       AGED ABOUT 70 YEARS
       R/O RANGANAHALLI VILLAGE,
       TARIKERE TALUK-577228
       CHIKKAMAGALUR DISTRICT.

2.     SRI. NARASAPPA
       S/O CHANNAKOTAIAH
       AGED ABOUT 65 YEARS
       R/O JODIDEVARAHALLI VILLAGE
       KALLAMBELLA HOBLI
       SIRA TALUK,
       TUMKUR DISTRICT-571 202.

3.     SMT. LAKSHMAMMA
       W/O KEMPAIAH
       AGED ABOUT 50 YEARS
       R/O MUCHAVEERANAHALLI
       VILLAGE, CHELUR HOBLI,
       GUBBI TALUK
       TUMKUR DISTRICT-571 202.

APPELLANTS NO.1 AND 3
ARE REPRESENTED BY
THEIR P.A. HOLDER
SRI. KAMBADA RANGAIAH
                                  ... APPELLANTS

(BY SRI.ANANDEESWARA D.R, ADVOCATE)
                           2




AND:

SRI. MUDDAMALLAIAH
S/O SANNAMUDDAIAH
AGED ABOUT 45 YEARS
R/AT L. HALENAHALLI MAJARE,
SALAHATTI VILLAGE,
SOMPURA HOBLI,
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT-574229.
                                     ... RESPONDENT

   (BY SRI.M.B. CHANDRACHOODA, ADVOCATE)

      THIS APPEAL IS FILED UNDER SECTION 100 OF
C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE
DATED 15.06.2015 PASSED IN R.A.NO.14/2009 ON THE
FILE OF THE SENIOR CIVIL JUDGE, GUBBI, DISMISSIN
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 06.01.2009 PASSED IN O.S.NO.3/2003 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE (J.D.) AND
JMFC, GUBBI.

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


                     JUDGMENT

Present regular second appeal is filed by the

appellants/defendants aggrieved by the judgment and

decree dated 15.06.2015 passed in R.A.No.14/2009 on

the file of the Senior Civil Judge, Gubbi (hereinafter

referred to as the 'First Appellate Court') in and by

which, the first appellate court while dismissing the

appeal confirmed the judgment and decree dated

06.01.2009 passed in O.S.No.3/2003 on the file of the

Principal Civil Judge (Junior Division), Gubbi

(hereinafter referred to as the 'Trial Court').

2. The above suit in O.S.No.3/2003 was filed

by the respondent/plaintiff claiming to be in lawful

possession of the suit schedule property consisting of

land bearing Sy.No.1 measuring 8 acres 39 guntas

situated at Sorekaikote village, Chelur Hobli, Gubbi

Taluk having acquired the same under the registered

deed of settlement dated 17.06.1993 executed by his

father-in-law- Sri. Chikkbalaiah. That the name of the

respondent/plaintiff was mutated in the revenue

records and that the respondent/plaintiff has been

cultivating the suit schedule property. That the

appellants/defendants who are strangers to the suit

property having no manner of right, title or interest

much less possession over the schedule property were

attempting to interfere with peaceful possession and

enjoyment of the property of the respondent/plaintiff,

constraining the respondent/plaintiff to approach court

seeking relief of permanent injunction.

3. Appellants/defendants in the written

statement denying the case of the respondent/plaintiff

contended that the suit schedule property belonged to

Smt. Narasamma who is the mother of the defendant

Nos.1 and 2 and mother-in-law of defendant No.3. That

the appellants/defendants have been in possession of

the suit property, that the respondent/plaintiff has no

title or possession over the same property. It is further

contended that the revenue proceedings were initiated

before the Assistant Commissioner, Tumakuru

challenging the mutation of the name of the

respondent/plaintiff in the revenue records which has

been allowed and the matter is remitted to Tahsildar,

Gubbi for fresh consideration and that the said

proceedings are pending for consideration. That the

respondent/plaintiff has never been in possession of the

suit property. The documents namely deed settlement

and revenue records are concocted and the same do not

confer any right, title or interest in respect of the suit

property in favour of the respondent/plaintiff. Hence,

sought for dismissal of the suit.

4. Based on the pleadings, the trial Court

framed following issues and recorded the evidence.

"(1). Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of suit?

(2) Whether plaintiff proves the illegal obstruction by the defendants?

(3) What order or decree?"

5. The respondent/plaintiff got examined

himself as PW.1 and produced two documents as Ex.P.1

and Ex.P.2. Second defendant examined himself as

D.W.1 by filing the affidavit in lieu of evidence. However,

he not having tendered himself for cross-examination,

his evidence has been discarded. D.W.3. is the power of

attorney holder of defendants. D.W.2 is an another

witness. The defendants have exhibited ten documents

and marked as Ex.D.1 to Ex.D.10.

6. On appreciation of the evidence, the trial

Court decreed the suit restraining the

appellants/defendants or anybody claiming under them

from interfering with the suit property of the plaintiff.

Aggrieved by the same, appellants/defendants filed

R.A.No.14/2009. Considering the grounds urged by the

defendants, the first appellate court framed the

following points for its consideration.

"(1). Whether the impugned judgment and decree requires interference at the hands of this Court?

(2) What order?"

7. On re-appreciation of the evidence, the first

appellate court dismissed the appeal and confirmed the

judgment and decree of the trial Court. Aggrieved by the

same, appellants/defendants are before this Court.

8. Sri.Anandeeswara D.R, learned counsel

appearing for the appellants reiterating the grounds

urged in the appeal memorandum submitted that;

a) The respondent/plaintiff has not established

with satisfactory documentary evidence as to his title

and possession over the property except producing the

Ex.P.1- a deed of settlement dated 17.06.1993 executed

by Sri.Chikkabalaiah and the RTC extracts at Ex.P.2.

He submits Sri.Chikkbalaiah himself had no right over

the property as such conveyance made by him in terms

of deed of settlement is not valid and subsisting.

b) That appellants/defendants have produced

ten documents as Ex.D.1 to Ex.D.10 whereunder the

name of Smt.Narasamma, mother of defendant Nos.1

and 2 and mother -in-law of defendant No.3 has been

reflected up to the year 1983-1984. That since the name

of the respondent/plaintiff was mutated in the revenue

records illegally, the defendants have initiated the

proceedings before the Assistant Commissioner, who

has favored their petition by remanding the matter to

the Thasildar, Gubbi for fresh consideration and the

said matter is still under consideration. In that view of

the matter, he submits that respondent/plaintiff cannot

claim to be in peaceful possession of the suit schedule

property.

c) That in the evidence the respondent/plaintiff

has not identified the boundaries or the neighbors of

this property. That being the fact, the plaintiff himself is

not aware of the said schedule property claiming

possession. Therefore, he is unjustifiable.

d) That trial Court and first appellate Court not

having taken these aspect of the matter to the

consideration have erred in decreeing the suit.

Further, referring to the deposition of the defendant

No.2, he submits that D.W.2 is an official witness who

has deposed with regard to the revenue entries of the

documents and his evidence would establish the name

of Smt.Narasamma being reflected in the revenue

records.

(e). Thus, he submits that the appeal involves

substantial question of law warranting interference.

Hence, he seeks for allowing the appeal.

9. Sri. M.B.Chandrachood, learned counsel

appearing for respondent/plaintiff submits that:

a) The name of Sri.Chikkabalaiah has been

reflected even in the revenue records produced by the

defendants namely Exs.D.1, D.2, and D.3 right from the

year 1970-1971 onwards. He being the rightful owner of

the property had executed the settlement deed in favour

of the respondent/plaintiff. Pursuant to which the name

of the respondent/plaintiff was entered into the

revenue records.

b) That appellants/defendants have not even

produced any evidence, establishing their relationship

with Smt.Narasamma as rightly appreciated and taken

note of by the courts below.

c) That as on the date of the suit, the

respondent/plaintiff has established being in possession

of the schedule property and the suit being one for bare

injunction, the plaintiff has established his right title

possession over the property. Hence, he submits that

the judgment and decree passed by the courts below are

in accordance with law involving no substantial

question of law to be considered in this appeal. Hence,

he seeks for dismissal of the appeal.

10. Heard the learned counsel appearing for the

parties and perused the records.

11. The respondent/plaintiff filed the suit for

permanent injunction in respect of suit schedule

property which is an agricultural land measuring 8

acres 39 guntas in Sy.No.1. It is settled principles of law

that in a suit for injunction with respect to vacant of

land, the possession follows title.

12. In the instant case, the respondent/plaintiff

who has approached the court seeking decree of the

permanent injunction restraining the

appellants/defendants from interfering with his

possession, has based his relief on Ex.P1-a registered

deed of settlement dated 17.06.1993 admittedly

executed by his father-in-law Sri. Chikkabalaiah. Name

of the plaintiff is shown in the column Nos.9 and 12(2)

of Ex.P2-RTC. D.W.3 the power of attorney holder in his

evidence has admitted the relationship between the

plaintiff and Sri.Chikkabalaiah to be that of a son-in-

law and a father-in-law. Name of Sri.Chikkabalaiah is

reflected even in the documents produced by the

defendants as per Exs.D1 to D4, wherein the name of

Sri.Chikkabalaiah is continuously reflected in Column

No.12 right from the year 1970-71. The trial Court and

first appellate court have also taken note of the fact that

there is continuity of the name of Sri.Chikkabalaih in

the Khathedar column of Ex.D9 and also in Column

No.12 of ExsD1 to D4, to the effect that

Sri.Chikkabalaiah has been in possession of the

property. Thus, said Sri Chikkabalaiah whose name has

been reflected even in the documents produced none

other than by the defendants, executed a settlement

deed dated 17/06/1993 in favour of his son-in-law the

respondent/plaintiff, which document till date remained

unchallenged. The claim of the respondent/plaintiff

prima-facie over the suit schedule property has been

rightly accepted by the trial court and the first appellate

court. Though learned counsel for the

appellants/defendants vehemently submits that the

revenue entries effected the name of the plaintiff is

subject matter of consideration before the Tahsildar, till

date no conclusion has been arrived at in that aspect of

the matter. Thus, from the aforesaid facts and

circumstances, it is clear that even prior to the date of

filing of the suit till date, the name of Sri Chikkabalaiah

and thereafter the name of plaintiff continues to be

reflected in the revenue records substantiating their

claims and possession over the suit schedule property

supported by the settlement deed executed by Sri

Chikkbalaiah in favour of plaintiff No.1. On the other

hand, the appellants/defendants have not produced any

evidence with regard to their right over the property or

for that matter their relationship with said

Smt.Narasamma. The trial Court and the First Appellate

Court have taken note of this aspect of the matter. In

the light of the aforesaid material evidence and the

reasoning given by the trial court and the first appellate

court, no substantial question of law involves in the

matter for consideration. Hence, the following.

ORDER

i) Regular Second Appeal No.1508/2015

filed by the appellants/defendants is

dismissed.

    ii)     The   judgment     and   decree    dated

    06/01/2009 passed in         OS.No.3/2003 by

the trial court and the judgment and decree

dated 15/06/2015 passed in

RA.No.14/2009 by the first appellate are

confirmed.

iii) Under the above circumstances, the

parties to bear their own costs.

Sd/-

JUDGE

Ru/Mkm