Sri K Jyothappa vs Sri H K Muniraju
2022 Latest Caselaw 97 Kant

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 IN THE HIGH COURT OF KARNATAKA BENGALURU


       DATED THIS THE 04TH DAY OF JANUARY, 2022

                       BEFORE

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

                RSA No.1212 OF 2015
BETWEEN:

SRI. K. JYOTHAPPA
S/O LATE MUNIYELLAPPA @ KAKAPPA
AGED ABOUT 81 YEARS
R/AT HENNAGARA VILLAGE
JIGANI HOBLI
ANEKAL TALUK
BANGALORE DISTRICT - 562 106.
                                           ... APPELANT

(BY SRI. VIJAY KUMAR K., ADVOCATE)

AND:

SRI. H.K. MUNIRAJU
S/O KAKAPPA
AGED ABOUT 49 YEARS
R/AT HENNAGARA VILLAGE
JIGANI HOBLI
ANEKAL TALUK
BANGALORE DISTRICT - 562 106
                                        ...RESPONDENT

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED: 22.04.2015 PASSED IN R.A. NO. 48/2006 ON THE
FILE OF THE IIIRD ADDITIONAL DISTRICT AND SESSIONS
JUDGE BANGALORE RURAL DISTRICT, ANEKAL DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED:05.04.2004 PASSED IN O.S.NO.466/1997 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE (JR DN) AND JMFC ANEKAL
AND ETC.
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     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

The present regular second appeal is filed under

Section 100 of CPC by the appellant/plaintiff aggrieved by

the judgment and decree dated 22/04/2015 passed in

RA.No.48/2006 by the III Additional District and Sessions

Judge at Bengaluru Rural District, sitting at Anekal (for

short 'the First Appellate Court'), in and by which, the

first appellate Court while dismissing the appeal

confirmed the judgment and decree dated 05/04/2004

passed in O.S.No.466/1997 by the Additional Civil Judge

(Junior Division) and JMFC Anekal (for short 'the Trial

Court).

2. The plaintiff filed the above suit claiming to

be the absolute owner in possession and enjoyment of

the suit schedule property bearing Khaneshumari

No.155/144 measuring 36x32 ft. of Hennagara village of

Anekal Taluk. It is contended that the suit property is

originally an ancestral property. That the father of the

plaintiff died about 10 years prior to filing of the suit

leaving behind the plaintiff as his legal heir and upon his

demise, the plaintiff inherited the suit schedule property

and he is in possession and enjoyment of the same. That

the plaintiff obtained necessary documents in respect of

suit properties in his name. That the defendant is an

utter stranger to the suit schedule property. That the

defendant is having his property situated on the northern

side of the suit schedule property. Taking undue

advantage of the situation, the defendant made illegal

attempts to encroach upon the portion of the plaintiff's

property, constraining the plaintiff to approach the court

for filing the suit for permanent injunction.

3. The defendant appeared and filed written

statement denying the plaint averments and also denying

the claim of the plaintiff that he is the absolute owner of

the suit property. It is contended by the defendant that

he is the owner of property bearing No.156/144

measuring 47x36 feet consisting of a Mangaluru tiled

house. That the defendant and his family members are

residing in the said house. That with an intention to

construct another room in front of the house, defendant

approached the competent authority to obtain licence.

The concerned authorities have issued licence to put up

construction and as per the terms and conditions, the

defendant has desired to put up additional construction

attached to the existing residential house. That the

plaintiff has no manner of right, title, interest or

possession over the suit property. The defendant

produced Form Nos.9, 10 and 11 pertaining to property of

the plaintiff. That in the Form No.9, the name of one

Seenappa S/o Hotteppa has been entered to the extent of

36 x 16 feet. That the revenue authorities have

transferred the said document in favour of the plaintiff in

respect of property measuring 36x16 feet only. However,

the plaintiff has created false story and obtained

document of mutation in collusion with revenue

authorities has changed the measurements illegally. That

on the strength of the false document, the plaintiff has

filed the suit just to harass the defendant and the same is

not maintainable. Further the defendant has contended

that the plaintiff with dishonest intention to knock off the

property of the defendant, has filed the present suit.

Hence, sought for dismissal of the suit.

4. The Trial Court based on the pleadings

framed the following issues.

1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

2. Whether the plaintiff further proves the defendants interference into the suit schedule property?

3. What order or decree?

5. The Trial Court recorded evidence. The

plaintiff examined himself as PW.1 and one Basavarajaiah

was examined as PW.2, exhibited 5 documents marked as

Exs.P1 to P5. On the other hand, defendant examined

three witnesses as DWs.1 to 3, exhibited 7 documents as

Exs.D1 to D7.

6. The Trial Court, on appreciation of the

pleadings and evidence on record concluded that the

dispute between the parties was only concerning to

measurement of the property and the plaintiff though

contended that he is the owner in possession and

enjoyment of the suit property measuring 36x32 feet has

not produced any documentary evidence except Ex.P2.

The trial court further observed that Ex.D3 produced by

defendant reflected the name of one Seenappa to the

extent of 36x16 feet and came to the conclusion that the

plaintiff is the owner only to an extent of 36x16 feet and

not to an extent of 36x32 feet as claimed. Consequently,

dismissed the suit of the plaintiff by its judgment and

decree dated 05/04/2004. Aggrieved by the same, the

plaintiff filed Regular Appeal in RA.No.48/2006.

Considering the grounds urged by the plaintiff, the first

appellate court framed the following point for its

consideration:

1. Whether the appellant proves that the judgment and decree passed by the learned Addl. Civil Judge and JMFC Anekal in OS.No.466/1997 dated 05/04/2004 is suffering from any irregularities or illegalities and calls for interference by this Court in this appeal?

2. Whether the appellant proves that he is in possession of suit property within the boundaries and extent given in the schedule?

3. Whether the appellant proves the alleged interference made by respondent No.2?

7. The first appellate court by its judgment and

decree dated 22/04/2015 confirmed the judgment and

decree passed by the trial court and consequently

dismissed the appeal. Aggrieved by the same, the

appellant/plaintiff is before this Court.

8. Learned counsel for the appellant/plaintiff

reiterating the grounds urged in the appeal memorandum

submitted that despite production of documentary

evidence in the nature of Ex.P2 which reveal the

measurement of the suit schedule property being 36x32,

the courts below erroneously relied upon Ex.D3 produced

by the defendant and concluded that measurement of the

property of the plaintiff is only 36x16 feet and thereby

declined to grant relief of injunction. He submits that

Exs.P1 and P2 are the Panchayath records disclosing the

extent of property being 36x32 feet and also the evidence

of DWs.1 and 3 who have not disputed the measurement

of the property of plaintiff. This being admitted case, he

submits that the courts below erred in not granting relief

of injunction to the plaintiff.

9. On perusal of the records and considering the

submission made by the counsel for the appellant, it is

seen that the case of the plaintiff that he is the owner of

the property bearing No.155/144 measuring 36x32 he

having inherited the same through his father, the only

document produced by the plaintiff from Exs.P2 and P3

which house list number. The plaintiff has claimed that

the defendant being the neighbouring owner is

attempting to illegally encroach upon the portion of the

property of plaintiff. The defendant, in the written

statement apart from denying the case of the plaintiff has

specifically disputed the ownership, extent and

possession of the plaintiff over the suit schedule property.

Ex.D3 produced by the defendant reveal that portion of

the suit property measuring 36x16 standing in the name

of one Seenappa which fact is not disputed by the

plaintiff. On the other hand, during evidence plaintiff has

relied upon the said document Ex.D3 and the entries

made therein to justify that the father of the plaintiff

during his lifetime had permitted said Seenappa to put up

hut on a portion of suit schedule property, and the said

Seenappa subsequently transferred the said portion of

suit schedule property, in favour of the plaintiff. Thus,

the plaintiff has not disputed Ex.D3, on the other hand

has taken shelter under Ex.D3 explaining the reasons for

reduction of extent of land from 36x32 to 36x16. Be that

as it may, in a suit for bare injunction all that plaintiff is

required to establish is his lawful possession and if there

is dispute with regard to the title made by the defendant,

it is bounden duty of the plaintiff to produce cogent

material evidence establishing his title and lawful

possession thereof. In the instant case, in the written

statement the defendant has specifically denied the

ownership and the possession of the plaintiff to the entire

extent of 36x32 feet. The defendant has also disputed

the measurement of suit schedule property. It was all

the more important on the part of the plaintiff to have led

cogent evidence to justify his lawful possession over the

suit schedule property. Apart from not disputing the

contents of Ex.D3, the plaintiff sought to justify the

position to the extent of property measuring 36x16

having been given by his father to Seenappa. On a

holistic reading of the pleading and material evidence, no

fault can be found with the reasoning and finding given

by the trial court and the first appellate court. For the

aforesaid reasons and analysis, no substantial question of

law involves in this appeal requiring reconsideration.

10. It is necessary to note that the plaintiff is

claiming his ownership over property bearing

No.155/144, measuring 36x32 feet and the defendant is

claiming ownership over property bearing No.156/144

measuring 47x36. The courts below have declined to

grant relief of injunction in favour of the plaintiff for his

failure to establish his lawful possession over the entire

extent of land measuring 36x32 of the suit schedule

property. In the circumstances, it is made clear that since

the defendant has disputed the title and possession of the

plaintiff over the suit schedule property, plaintiff may

seek such substantial relief, as he may be entitled to in

accordance with law. Hence, the following:

ORDER

i) Regular Second Appeal No.1212/2015 is

dismissed.

ii) The judgment and decree dated

22/04/2015 passed in RA.No.48/2006

by the first appellate court is confirmed.

Sd/-

JUDGE

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