Mallamma W/O Sangappa Kushtagi vs Hire Durgappa S/O Kempa Hanamappa ...
2022 Latest Caselaw 44 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 03RD DAY OF JANUARY 2022

                            BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.5507/2012 (PAR)

BETWEEN

MALLAMMA W/O SANGAPPA KUSHTAGI
SINCE DECEASED BY HER LRS,

1(A)    KUMARI NETRAVATHI
        D/O SANGAPPA KUSHTAGI,
        AGE: 14 YEARS, OCC: STUDENT,
        R/O DHANKANADODDI,
        TQ. AND DIST: KOPPAL,
        PIN 583231.

2(B)    KUMAR NINGAPPA
        S/O SANGAPPA KUSHTAGI,
        AGE: 11 YEARS, OCC: STUDENT,
        ---- REST DO----

APPELLANTS NO.1(A) & (B) ARE MINORS &
REPRESENTED BY THEIR GUARDIAN,
SHRI NINGAPPA S/O GADEPPA KUSHTAGI,
AGE : 49 YEARS, OCC: AGRICULTURE,
----REST DO----
                                           ... APPELLANTS
(BY SRI A.S.PATIL & SRI D.V.PATTAR ADV.)

AND :

1.      HIRE DURGAPPA
        S/O KEMPA HANAMAPPA KUSHTAGI,
        AGE 61 YEARS, OCC: AGRICULTURE,
        R/O DHANAKANADODDI,
                               2




     TQ. & DT. KOPPAL, PIN: 583231.

2.   SMT.AMBAWWA
     W/O HIRE DURGAPPA KUSHTAGI,
     AGE: 51 YEARS, OCC: HOUSEHOLD,
     ----REST DO----

3.   SHRI PARASAPPA
     S/O HIRE DURGAPPA KUSHTAGI,
     AGE: 36 YEARS, OCC: AGRICULTUE,
     ----REST DO----

4.   SHRI MANJAPPA
     S/O HIRE DURGAPPA KUSHTAGI,
     AGE: 33 YRS, OCC: AGRICULTURE,
     ----REST DO----
                                                ... RESPONDENTS

(BY SRI AVINASH BANAKAR, ADV. FOR R.1 TO R.4)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, PRAYING THIS COURT TO SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE PASSED BY THE HON'BLE FAST
TRACK COURT NO.1 AT KOPPAL IN R.A.NO.44/2011 DATED
12.03.2012 CONFIRMING THE IMPUGNED JUDGMENT AND DECREE
PASSED BY THE HON'BLE CIVIL JUDGE AND JMFC AT KOPPAL IN
O.S.NO.109/2009 DATED 24.09.2010, IN THE INTEREST OF JUSTICE
AND EQUITY.

     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 learned counsel appearing for both the parties,

the same is taken up for final disposal.

2. This captioned regular second appeal is filed by

unsuccessful plaintiff questioning the concurrent judgment

and decree of the Courts below.

3. The facts leading to the case are that, the

appellant/plaintiff field a suit for injunction simplicitor to

restrain the respondents/ defendants from interfering with

her peaceful possession and enjoyment over the suit

property which is Site No.17 measuring 40 feet x 20 feet.

The original plaintiff namely Smt.Mallamma claimed that

she was in lawful possession over the suit schedule

property based on a certificate of grant issued by the

Government of Karnataka under Ashraya Yojana Scheme in

favour of her late Husband on 08.06.1999 as per Ex.P.2.

The original plaintiff contended that, pursuant to the

allotment, her late husband was in lawful possession and

after his death, she being the widow has succeeded the

same and accordingly she is in lawful possession. The suit

came to be filed by laying a foundation that the

respondents/defendants are causing interference.

4. On receipt of summons, the respondents/

defendants tendered their appearance and also filed written

statement stoutly denying the entire averments made in

the plaint. The respondents/defendants specifically

contended that Site No.17 was allotted in favour of 2nd

defendant by the then Tahasildar, Koppal. Pursuant to the

allotment, Hakkupatra was issued by the authority on

19.11.1991 under Ashraya Yojana Scheme. Therefore

placing reliance on the Ex.D.2-Hakkupatra, the 2nd

defendant contended that she is in lawful possession and

enjoyment of over the suit property. Placing reliance on

rebuttal evidence, the defendants sought for dismissal of

the suit.

5. The Trial Court having appreciated the oral and

documentary evidence on record was of the view that, the

plaintiff though has placed reliance on Ex.P.2, the said

document would not establish the identification of the

property. In Ex.P.2, there is ambiguity in the boundaries

and the property details are not notified in the said

boundaries. The Trial Court having examined the rebuttal

evidence was of the view that the grant in favour of the 2nd

defendant is much prior in time as the allotment in favour

of the 2nd respondent was made in the year 1991 as per

Ex.D.2. The Trial Court was also of the view that the

boundaries mentioned in Ex.D.2 establishes the location

and existence of the suit property and there is no

ambiguity in Ex.D.2. On these set of reasons, the Trial

Court has come to the conclusion that the plaintiff has not

established her lawful possession over the suit schedule

property and has also failed to prove by producing

clinching evidence indicating that there was a grant in her

favour by the authority in respect of suit property. The said

judgment and decree has been confirmed by the First

Appellate Court on re-appreciating the oral and

documentary evidence on record.

6. Assailing the concurrent findings of both the

Courts below, the plaintiff is before this Court.

7. Learned counsel appearing for the

appellant/plaintiff would strenuously argue and contend

before this Court that, there is concurrent error by both the

Courts below in not properly appreciating the evidence on

record. However, on perusal of the materials on record, I

am of the view that the judgment and decree passed by

the both the Courts below would not warrant any

interference at the hands of this Court.

8. Rebuttal evidence placed on record by the 2nd

defendant clearly indicates that the Site No.17 was granted

in favour of the 2nd defendant way back in the year 1991,

whereas the plaintiff is asserting right on the basis of grant

which is of the year 1999 in respect of very property.

Moreover, the documentary evidence adduced by the

plaintiff does not establish the identification of the property

in question. There is ambiguity in the boundaries

mentioned in the Ex.D.2. These significant details are dealt

by both the Courts below. Therefore, no substantial

question of law arises in the present case on hand. The

appeal is devoid of merits and accordingly the same stands

dismissed.

Sd/-

JUDGE EM