Karnataka High Court
Siddappa S/O Bhimappa Uppar vs Hanamant S/O Shasappa B. Patil on 9 June, 2022
Bench: E.S.Indireshpresided Byesij
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RSA No. 100736 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 09TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100736 OF 2019 (INJ-)
BETWEEN:
1. SIDDAPPA S/O BHIMAPPA UPPAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: NAGARAL, TQ: MUDHOL. Pin: 587113.
2. SMT.JANAWWA W/O ARJUN UPPAR
AGE: 51 YEARS, OCC: HOUSEHOLD WORK,
R/O: NAGARAL, TQ: MUDHOL. Pin: 587113.
...APPELLANTS
(BY SRI. VIJAYKUMAR B. HORATTI, ADVOCATE)
AND:
1. HANAMANT S/O SHASAPPA B. PATIL
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: NAGARAL, TQ: MUDHOL 587 113.
2. THE PANCHAYAT DEVELOPMENT OFFICER
GRAM PANCHAYAT, NAGARAL,
TQ: MUDHOL. Pin 587 113.
SHIVAKUMAR
HIREMATH ...RESPONDENTS
Digitally signed
by (BY SRI. PAVAN B. DODDATTI, ADVOCATE FOR C/R1.)
SHIVAKUMAR
HIREMATH
Date: 2022.06.10
11:49:27 -0700 THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:07.08.2019 PASSED IN
R.A.NO.38/2018 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
MUDHOL, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD:06.10.2018, PASSED IN O.S.
NO.256/2015 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL,
DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION.
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RSA No. 100736 of 2019
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is preferred by defendants No.2
and 3 assailing the judgment and decree dated 07.08.2019, in RA
No.38/2018 on the file of the Addl. Senior Civil Judge and JMFC,
Mudhol ((hereinafter referred to as 'the First Appellate Court', for
brevity), confirming the judgment and decree dated 06.10.2018 in
Original Suit No.256/2015 on the file of the Addl. Civil Judge and
JMFC, Mudhol (hereinafter referred to as 'the trial Court', for
brevity), decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties to this appeal
would be referred to as per their ranking before the trial Court.
3. It is the case of the plaintiff that, the plaintiff is the
owner in possession of the property bearing VPC No.607 of
Nagaral Village, measuring 35x48 feet. It is further averred in the
plaint that, the said property has been granted by defendant No.1 -
Panchayat as per the resolution dated 29.06.1991. It is further
averred that defendants No.2 and 3 without any right, title or
interest over the suit schedule property, interfering with the
RSA No. 100736 of 2019
peaceful possession of the plaintiff's property and as such, the
plaintiff has presented suit in Original Suit No.256/2015 seeking the
relief of permanent injunction against the defendants.
4. On service of notice, defendant No.1 entered
appearance, however, not filed written statement. Defendants
No.2 and 3 have filed written statement denying the averments
made in the plaint. The trial Court, based on the pleadings on
record formulated issues for its consideration.
5. In order to establish their case, plaintiff has examined
two witnesses as PWs.1 and 2 and produced 5 documents and the
same were marked as Exs.P1 to P5. Defendants have examined
two witnesses as DWs. 1 and 2 and produced 16 documents and
the same were marked as Exs.D1 to D16.
6. The trial Court after considering the material on record,
by its judgment and decree dated 06.10.2018, decreed the suit and
as such, restrained the defendants from interfering with the
peaceful possession and enjoyment of the suit property by the
plaintiff. Being aggrieved by the same, defendants No.2 and 3
have preferred Regular Appeal No.38/2018 on the file of the First
RSA No. 100736 of 2019
Appellate Court and the same was resisted by the plaintiff. The
First Appellate Court after considering the material on record, by its
judgment and decree dated 07.08.2019, dismissed the appeal,
consequently confirmed the judgment and decree in Original Suit
No.256/2015. Feeling aggrieve by the same, defendants No.2 and
3 have preferred this appeal.
7. I have heard Sri. Vijaykumar B. Horatti, learned
counsel appearing for the appellant and Sri.Pavan B. Doddatti,
learned counsel appearing for respondent No.1.
8. Sri. Vijayakumar Horatti, learned counsel appearing for
the appellants contended that, though the defendants have
pleaded in the written statement disputing the title of the plaintiff,
however, the same was not taken into consideration by both the
Courts below. He further contended that the plaintiff is not in
possession of the property as envisaged in the sketch appended to
the plaint and accordingly, he sought for interference of this Court.
9. Per contra, Sri. Pavan B. Dodatti, learned counsel
appearing for the respondent sought to justify the impugned
judgment and decree passed by the Courts below and further
RSA No. 100736 of 2019
argued that the suit schedule property has been granted by the first
defendant and the plaintiff is in possession of the suit schedule
property and the said aspect has been admitted by DW1 in his
cross-examination and therefore, he contended that there is no
merit in the appeal.
10. In the light of the submissions made by the learned
counsel appearing fro the parties, I have carefully considered the
material on record, which would indicate that the plaintiff is in
possession of the suit schedule property as the same was admitted
by DW1 in his cross-examination. However, the dispute may be
with regard to the boundaries or measurement of the properties. It
is also forthcoming from the finding recorded by the trial Court that
the suit schedule property has been granted by defendant No.1
and in this regard the plaintiff has produced Exs.P3 and P4 and in
order to establish the possession, the plaintiff has produced Ex.P5.
In that view of the matter, as the suit is one filed for seeking bare
injunction and there is no specific denial in the written statement
filed by defendants with regard to challenging the ownership of the
plaintiff, I do not find any illegality in the judgment and decree
passed by the trial Court.
RSA No. 100736 of 2019
11. That apart, the First Appellate Court, after re-
appreciating the material on record, as required under Order XLI
Rule 31 of the Civil Procedure Code and following the judgment of
the Hon'ble Apex Court in the case of Santosh Hazari vs
Purushottam Tiwari (Dead) By Lrs reported in (2001) 3 SCC 179,
held that the plaintiff has proved his possession in respect of the
suit schedule property.
12. In that view of the matter, as both the Courts below
have held that the plaintiff has proved his possession in respect of
the suit schedule property, I do not find any acceptable grounds to
interfere with the impugned judgment and decree passed by the
Courts below and therefore, as the appellants herein have not
made out a case for framing of substantial question of law as
required under Section 100 of the Code of Civil Procedure, the
appeal fails.
Accordingly the appeal is rejected at the stage of admission.
However, it is made clear that, in the event the parties are
subjected to prove their ownership in respect of their respective
RSA No. 100736 of 2019
properties, it is open for them to agitate their rights in accordance
with law.
Sd/-
JUDGE
gab
