Karnataka High Court
P. Vishwanath Shetty vs Ramesh on 7 July, 2022
Bench: Ravi V Hosmani
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RSA No. 653 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 653 OF 2014 (INJ)
BETWEEN:
1. P. VISHWANATH SHETTY
S/O POOVAPPA SHETTY
AGED ABOUT 70 YEARS
2. LOKU SHETTY
S/O POOVAPPA SHETTY
AGED ABOUT 68 YEARS
3. RAMANNA SHETTY
S/O POOVAPPA SHETTY
AGED ABOUT 65 YEARS
4. SITHARAM SHETTY
S/O POOVAPPA SHETTY
AGED ABOUT 60 YEARS
APPELLANTS 2 TO 4
REP. BY THEIR G.P.A. HOLDER
APPELLANT NO.1 P.VISHWANATH SHETTY
Digitally signed by ALL ARE RESIDING AT
VEENA KUMARI B SANNA MUNDA BETTU
Location: High GUTTU HOUSE
Court of Karnataka
MUDUPERAR VILLAGE AND POST
MANGALORE-01.
...APPELLANTS
[BY SRI VISHWAJITH RAI M., ADVOCATE (PH)]
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RSA No. 653 of 2014
AND:
1. RAMESH
S/O NONAYYA POOJARY
AGED ABOUT 33 YEARS
R/O KATTADO BALI
MUDUPERAR VILLAGE AND POST
MANGALORE D.K.-01
2. PRASHANTH
S/O PADMANABHA POOJARY
AGED ABOUT 28 YEARS
R/O SHALEPADAVU
MUDUPERAR VILLAGE AND POST
MANGALORE D.K.-01
3. NAVEEN
S/O KOOSAPPA
AGED ABOUT 32 YEARS
R/O SHALEPADAVU
MUDUPERAR VILLAGE AND POST
MANGALORE, D.K.-01.
...RESPONDENTS
(NOTICE SERVED TO R1 TO R3 AND UNREPRESENTED)
THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 28.10.2013 PASSED IN
R.A.NO.5/2010, ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE
AND JMFC., MANGALORE, D.K., ALLOWING THE APPEAL AND
DISMISSING THE JUDGMENT AND DECREE DATED 16.11.2009
PASSED IN O.S.NO.270/2004 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN.) MANGALORE, D.K.
THIS RSA COMING ON FOR FINAL HEARING THIS DAY, COURT
DELIVERED THE FOLLOWING:
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RSA No. 653 of 2014
JUDGMENT
Challenging impugned judgment and decree dated
28.10.2013 passed in R.A.No.5/2010 by III Addl. Senior Civil
Judge & JMFC., Mangalore, D.K., allowing appeal and
dismissing judgment and decree dated 16.11.2009 passed in
O.S.No.270/2004 by Prl. Civil Judge (Jr.Dn.), Mangalore, D.K.,
appellants have filed this second appeal.
2. Appellants herein were original plaintiffs, while
respondents herein were original defendants. For sake of
convenience, parties shall hereinafter be referred to as per
their rank in suit.
3. O.S.No.270/2004 was filed by plaintiffs seeking for
relief of perpetual injunction restraining defendants from
interfering with plaintiffs' peaceful possession and enjoyment of
immovable property bearing survey no.30/12 measuring 61
cents situated at Mooduperur village, Mangalore Taluk,
(hereinafter referred to as 'suit property'). In plaint, it was
stated that plaintiffs were owners in possession and enjoyment
of suit property, which was acquired by plaintiffs under Will
dated 02.01.2000 executed by their grandfather. After death of
RSA No. 653 of 2014
their grandfather, they were in possession and enjoyment
thereof. Their names were also mutated in revenue records. It
was stated that government formed public road by acquiring
portion of property belonging to plaintiffs running North-South
on eastern side of suit property. Plaintiffs had put up barbed
wire fence with pillar all along eastern boundary. It was stated
that defendants were residing nearby suit property granted to
them by government without having any right, title or interest
insofar as suit property is concerned attempted to remove
barbed wire on eastern side and trespassed over plaintiff's
property. Despite resistance by plaintiffs, defendants did not
stop their activity, constraining plaintiffs to file suit.
4. Upon service of suit summons, defendant no.1 filed
written statement. Same was adopted by defendants no.2 and
3. In written statement defendants while denying plaint
averments contended that suit filed by plaintiffs is vexatious.
They specifically denied that plaintiffs acquired property under
a Will dated 02.01.2000. Defendants specifically denied that
plaintiff had put up barbed wire fencing and pillar along eastern
boundary. It was alleged that description of suit property was
not correct. It was contended that there was a public road
RSA No. 653 of 2014
passing through Sy.no.139 of Muduperar village. Plaintiffs were
greedy and mischievous persons had encroached upon road
and put up granite pillars and barbed wire fencing. When it
came to knowledge of people of locality, they objected to acts
of plaintiffs and approached jurisdictional police and also village
panchayat etc., Plaintiffs while undertaking not to encroach
upon road before authorities, had filed this frivolous suit.
Therefore, sought for dismissal of suit.
5. Based on pleadings, trial Court framed following
issues:
1. Whether the plaintiffs prove their
possession and enjoyment of the plaint
schedule 'A' property as on the date of
the suit?
2. Whether the plaintiffs prove the alleged
interference by the defendants into their
peaceful possession and enjoyment of
the plaint schedule 'A' property?
3. Whether the plaintiffs are entitled for the
reliefs claimed in the suit?
4. What order or decree?
6. Thereafter plaintiff no.1 examined as PW.1 and
got marked two documents. Exhibits P.1 and P.2 were got
RSA No. 653 of 2014
marked. Defendant no.1 examined himself as DW.1. No
documentary evidence was marked.
7. On consideration, trial Court answered issues
no.1 to 3 in affirmative and issue no.4 by decreeing suit
and granting injunction as prayed for. Aggrieved by same,
defendants filed R.A.No.5/2010 on several grounds. It was
contended that trial Court did not frame proper issues
arising from pleadings of parties. Pleadings were not
appreciated as per provisions of specific relief Act and
without answering all issues in favour of defendants, trial
Court had passed impugned judgment and decree. It was
also contended that trial Court erred in not allowing
application filed by defendants for appointment of
Commissioner. Trial Court also erred in not allowing
application filed by defendants for summoning records.
8. Based on contentions, first appellate Court raised
following points for consideration:
1. Whether the plaintiff proves the
possession over the suit schedule
property with measurement and
boundaries mentioned in the suit? If so
RSA No. 653 of 2014
further proves the illegal interference
caused by the defendants?
2. Whether lower Court has erred in
appreciating the evidence placed on
record and arrived to wrong conclusion,
hence findings of the lower Court is liable
to be set aside by interference of this
Court? If so, to what extent?
3. What order?
9. On re-appreciation of evidence, first appellate Court
answered point no.1 in negative; point no.2 in affirmative and
point no.3 by allowing appeal and set aside judgment and
decree passed by trial Court. Being aggrieved by impugned
judgment and decree plaintiff is in appeal.
10. Sri Vishwajith Rai M., learned counsel for
appellants/plaintiffs submitted that impugned judgment and
decree passed by first appellate Court was contrary to facts and
evidence on record. Conclusions of first appellate Court were
perverse and contrary to records. It was submitted that first
appellate Court reversed judgment and decree passed by trial
Court on two grounds: that plaintiffs though failed to prove that
they were in possession of suit property as boundaries of suit
property were not given and also on ground that plaintiffs had
failed to establish interference by defendants.
RSA No. 653 of 2014
11. Learned counsel submitted that trial Court while
passing impugned judgment and decree had referred to
admission by DW.1 in his evidence, that plaintiffs had put up
barbed wire fencing around suit property by leaving 1ft. set
back. DW.1 also admitted that they have no right or possession
over suit property. Insofar as interference is concerned, learned
counsel submitted that defendants had sought to contest
plaintiffs' suit. They had also denied plaintiffs' title or
possession over suit property. During cross-examination DW.1
had admitted that there were attempts made for removal of
stone pillars and barbed wire fencing and that defendants had
approached grama panchayat and police authorities. These
documents would substantiate not only possession of plaintiffs
over suit property, but also interference by defendants.
Ignoring said material evidence available on record, first
appellate Court came to conclusion that plaintiff had failed to
give measurements or boundaries of suit property had
dismissed suit.
12. Learned counsel submitted that suit property in
question was clearly identified by its survey number.
Measurement was mentioned as 61 cents. Ex.P.1 - record of
RSA No. 653 of 2014
rights of suit property indicated not only its extent, but also
disclosed that names of plaintiffs were entered in pursuance of
'Will'. Learned counsel submitted that in absence of any contra
evidence led by defendants, first appellate Court was not
justified in reversing well reasoned judgment and decree
passed by trial Court.
13. Defendants though served have remained
unrepresented in this appeal. Heard learned counsel for
plaintiffs, perused impugned judgment and decree and record.
14. Appeal was admitted on 03.06.2021 to consider
following substantial questions of law:
1. Whether the first appellate Court is justified in
reversing judgment and decree of the trial
Court?
2. Whether the first appellate Court is justified in
holding that plaintiffs failed to prove their
lawful possession and enjoyment over the suit
schedule property as on the date of the suit?
15. From above submission, it is not in dispute that
plaintiffs were owners of suit property and had filed suit for
permanent injunction against defendants to restrain them from
interfering with plaintiffs peaceful possession and enjoyment of
suit property. While plaintiffs contended that they are in lawful
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RSA No. 653 of 2014
possession and enjoyment of suit property and that defendants
were interfering with same without any right title or interest.
Defendants alleged that plaintiffs were not in possession and
had in fact put up barbed wire fence by encroaching public road
in Sy.no.139, which was opposed by defendants and other
villagers and they had approached public authorities against
same.
16. In order to establish their possession over suit
schedule property and interference by defendants, plaintiffs
examined plaintiff no.1 as PW.1. He deposed in terms of plaint
pleadings that plaintiffs were owners of suit property having
acquired same under 'Will' dated 02.01.2000 executed by their
grandfather in their name. After death of their grandfather,
they had got their names mutated in revenue records. Ex.P.1 -
record of rights of suit property was produced, which
corroborated their claim.
17. On other hand, defendants examined defendant no.1
as DW.1. Though he deposed in terms of contents of written
statement, during cross-examination, he admitted that he knew
location of suit property. He further admitted that to western
side of suit property, there was land bearing Sy.no.139 and
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RSA No. 653 of 2014
road running North-South was fenced with stone pillars and
barbed wire on its western side. He also admitted that plaintiff
had put up fence leaving a gap of one foot from government
road. He also admitted that he did not have any right or
possession over suit property. It was also elicited from
evidence of DW.1 that defendants and other villagers had
sought to remove pillars and barbed wire put up by plaintiffs.
They had also approached jurisdictional police and gram
panchayat.
18. Based on above evidence, trial Court concluded that
plaintiff had proved his lawful possession over suit schedule
property as well as interference by defendants and decreed
plaintiffs' suit.
19. First appellate Court, however, went on a tangent.
Though, defendants did not claim any right, title or interest
over suit property, as they were allottees of government house
sites in different survey number, their opposition to plaintiff's
suit was only on ground that plaintiff had encroached public
road and put up fence, which would obstruct their access to
public road. Even though it took note of admissions of DW.1, it
was of opinion that plaintiff though required to establish
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RSA No. 653 of 2014
boundaries of suit property had failed to do so and on said
reason reversed judgment and decree passed by trial Court. On
said finding, it passed impugned judgment and decree.
20. Considering fact that defendants were opposing
plaintiff's suit only insofar as alleged encroachment upon public
road formed in survey no.139 and fact that plaintiffs were
seeking for permanent injunction only in respect of suit
property namely, Sy.no.30/12 measuring 61 cents, there was
no occasion for first appellate Court to have ventured into
boundary dispute. Description in suit property was with
reference to entire survey number of which record of rights was
produced. As injunction was sought for in respect of entire
portion of survey no.30/12, first appellate Court was not
justified in venturing into boundaries of suit property.
21. Insofar as interference, defendants not only denied
plaintiff's possession, but also opposed suit by contending that
when plaintiffs put up fence by encroaching upon public road
in Sy.no.139, they and other villagers had attempted to
remove fence. During cross-examination, DW.1 further
admitted that defendants had also approached Grama
panchayat and police authorities to assist them in removing
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RSA No. 653 of 2014
obstruction. These admissions of acts of defendants
substantiated interference. Under such circumstances,
overlooking evidence available on record, first appellate Court
set aside well considered judgment and decree passed by trial
Court. Conclusions arrived at as well as reasons assigned being
perverse and contrary to record are liable to be set aside.Both
substantial questions of law are answered in negative. In view
of above, I pass following:
ORDER
Appeal is allowed. Judgment and decree passed by first
appellate Court is set aside and judgment and decree passed
by trial court is restored.
Sd/-
JUDGE
Psg*
