Karnataka High Court
Channamma vs Sri. G K Venkatesha on 4 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO.1285 OF 2017 (INJ)
BETWEEN:
CHANNAMMA
FIRST W/O LATE CHIKKANEELEGOWDA @ PAPANNA
DEAD BY LRS ALREADY ON RECORD
1. SMT. JAYAMMA
2ND W/O LATE CHIKKANEELEGOWDA @ PAPANNA
AGED ABOUT 64 YEARS.
2. SMT. SHYLAJA
W/O RAMASWAMY
AGED ABOUT 44 YEARS.
ALL ARE RESIDING AT
GANGINA KOPPALU VILLAGE,
SOSALE HOBLI, T. NARSIPURA.
...APPELLANTS
(BY SRI. PULAKESHI A.P., ADVOCATE)
AND:
SRI. G.K. VENKATESHA
S/O LATE KULLAVENKATEGOWDA
AGED ABOUT 51 YEARS,
R/AT GANGINA KOPPALU VILLAGE,
SOSALE HOBLI, T. NARSIPURA
...RESPONDENT
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
2
DECREE DATED 02.03.2017 PASSED IN REGULAR APPEAL
NO.42/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., TIRUMAKUDALU, NARASIPURA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
26.09.2013 PASSED IN ORIGINAL SUIT NO.59/2006 ON THE
FILE OF THE CIVIL JUDGE AND JMFC., T.NARASIPURA.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendants in O.S.
No.59/2006 challenging the judgment and decree dated
26.09.2013 passed by Civil Judge & J.M.F.C., T. Narasipura
(henceforth referred to as 'Trial Court') which was
confirmed by the Senior Civil Judge & J.M.F.C.,
Tirumakudalu Narasipura (henceforth referred to as 'First
Appellate Court') in R.A. No.42/2013 in terms of the
judgment and decree dated 02.03.2017.
2. The parties shall henceforth be referred as
they were arrayed before the Trial Court. The appellants
were the defendants while the respondent was the
plaintiff.
3. The suit in O.S. No.59/2006 was filed for
perpetual injunction in respect of a vacant site bearing
No.6/6 situate at Ganiganakoppalu, Sosale hobli,
T.Narasipura taluk. The plaintiff claimed that the property
was acquired by him in terms of a deed of partition dated
26.07.1982 and that the katha of the said properties stood
in his name and that he was in possession and enjoyment
of the said property. He claimed that the defendants were
interfering with his possession claiming that the
predecessor of the defendants was the owner of site No.7
situate on the western side of the property bearing No.6/6.
The defendants claimed that the plaintiff had wrongly
furnished the western boundary as the property of
Chikkaneelegowda @ Thammaiah which was the property
bearing site No.8. It was thus contended that the plaintiff
tired to grab the site bearing No.7 on the western side of
his property.
4. The Trial Court after considering the oral and
documentary evidence held that the boundaries mentioned
in the suit corresponded with the boundaries mentioned in
Ex.P-1 which was the partition dated 26.07.1982. It also
considered the documents placed on record in the form of
Exs.P-6 and 7 and held that the western boundary of the
property was the property belonging to Chikkaneelegowda
@ Thammaiah. It, therefore, held that the plaintiff had
proved the boundaries of the property and hence in view of
the written statement filed by the defendants, the Trial
Court held that there was a case made out by the plaintiff
that the defendants were interfering with the possession of
the plaintiff and hence, decreed the suit.
5. An appeal preferred by defendants was
dismissed, as the First Appellate Court also found that the
plaintiff had established his title to the site bearing No.6/6.
The First Appellate Court held that the evidence of P.W.2
clearly demonstrated that site No.7 was not owned and
possessed by the predecessor of the defendants.
6. Being aggrieved by the aforesaid judgment and
decree, the present appeal is filed.
7. The learned counsel for appellants /
defendants vehemently contended that the suit schedule
clearly indicated that the western boundary of the property
was the property belonging to Chikkaneelagowda @
Thammaiah, while in Ex.P-1 it was shown as site No.7. He
submitted that there was no evidence to establish that site
No.7 was owned and possessed by Chikkaneelegowda @
Thammaiah. He, therefore, submitted that the Trial Court
without considering the legitimacy of the boundaries
mentioned in the suit schedule, had decreed the suit. He
also submitted that the plaintiffs ought to have brought a
suit for declaration of their title to the property since the
plaintiff was claiming a larger extent than what he was
entitled to under partition dated 26.07.1982.
8. A perusal of the judgment and decree of the
Trial Court would indicate that the plaintiff was claiming
relief of injunction based on title i.e., partition dated
26.07.1982. It is not the case of the defendants that they
had any right, title or interest in the site bearing No.6/6.
Their contention is that the partition deed indicated the
western boundary of the suit property as site No.7, while
the plaint disclosed that the western boundary as the
property of Chikkaneelegowda @ Thammaiah. Though the
defendants claim that site No.7 lying on the western side
belong to them, the documents marked in evidence
showed that the owner of the property on the western side
was Chikkaneelegowda @ Thammaiah.
9. If the defendants claim title to site No.7A lying
on the western side of the suit property and since the
defendants have already filed a suit in O.S. No.87/2013
against P.W.2, which is pending consideration before the
Civil Judge and J.M.F.C., at T. Narasipura, the defendants
are bound to seek declaration of their title in respect of the
said site against the plaintiff herein also. If such a suit is
filed, the observations recorded in O.S. No.59/2006 shall
not affect the findings that may be recorded by the Court
based on oral and documentary evidence adduced before
it.
10. In view of the above, as no substantial
question of law arises for consideration, this appeal stands
dismissed, but is however, subject to the above
observation.
Sd/-
JUDGE
hnm
