Somnath And Anr vs Sri Manjunath
2022 Latest Caselaw 3969 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 09TH DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               RSA No.200083/2018 (INJ)

Between:

1.     Sri Somanath
       S/o Late Bemmu Pawar,
       Age: 65 years, Occ: Agriculture,
       R/o Yadrami Tanda, Tq: Jewargi,
       Dist: Gulbarga.

2.     Sri Sudhakar S/o Somanath Pawar,
       Age: 27 years, Occ: Agriculture,
       R/o Yadrami Tanda, Tq: Jewargi,
       Dist: Gulbarga.
                                           ... Appellants

(By Sri.Deepak V.Barad, Advocate)

And:

Sri. Manjunath S/o Chandru Chavan,
Age: 55 years, Occ: Agriculture,
R/o Yadrami Tanda, Tq: Jewargi,
Dist: Gulbarga-585 103.
                                          ... Respondent

(By Sri.B.Bhimashankar, Advocate)
                                  2




       This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure, 1908 praying to allow
the above Regular Second appeal and set aside the
judgment and decree dated 25.11.2017 by the Senior Civil
Judge & J.M.F.C., at Jewargi in R.A.No.10/2014 and
judgment and decree in O.S.No.32/2011 dated 13.03.2014
passed by the Civil Judge at Jewargi and consequently be
pleased to decree the suit of the plaintiffs, in the interest
of justice and equity.

      This appeal coming on for admission, this day, the
Court delivered the following:-


                        JUDGMENT

This appeal is filed challenging the judgment and

decree dated 25.11.2017 passed in R.A.No.10/2014

by the Senior Civil Judge & JMFC, Jewargi, confirming

the judgment and decree dated 13.03.2014 passed in

O.S.No.32/2011 by the Civil Judge, Jewargi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are plaintiffs and respondent is the

defendant before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiffs filed a suit for perpetual injunction

restraining the defendant from interfering into the

peaceful possession and enjoyment of the suit

property bearing panchayat No.11-90 measuring east-

west 40 feet north-south 30 feet situated at Yedrami

tanda power village, Tq: Jewargi, Dist: Gulbarga. It is

the case of the plaintiffs that that plaintiff No.1 is

father of plaintiff No.2 and plaintiffs are the absolute

owners and in possession of the suit property. The

name of plaintiff No.1 came to be entered in the

panchayat records and plaintiffs have been paying the

tax of the suit schedule property. It is contended that

the plaintiffs and their fore-fathers were and are in

peaceful possession and enjoyment of the suit

property since 35 years. Plaintiffs are using the suit

property for tying cattle, storing agricultural

implements and keeping household articles etc. The

defendant is not at all concerned to the family and

property of the plaintiffs in any manner. The

defendant without having any right, title or interest

over the suit property came over the suit property on

10.03.2011, with his supporters and tried to

dispossess the plaintiffs from the suit property.

Hence, the cause of action arose for the plaintiffs to

file a suit for permanent injunction.

3.1. Defendant appeared written statement

denying the averments made in the plaint. It is

contended that the age of defendant is 24 years and

he is working at Bangalore since from two years. It is

further contended that there is no question of

interference by the defendant and also denied the

description of the suit property, measurement of suit

property and boundaries of the suit property. It is

contended that defendant is the absolute owner and

possessor of residential plot bearing panchayat No.20-

3 measuring east-west 40 feet, north-south 30 feet.

The said property is the ancestral property of

defendant and defendant is enjoying the said

property. It is contended that defendant has not

interfered with the peaceful possession and

enjoyment of the plaintiffs over the suit property.

Hence prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiffs prove that the description of the suit property shown by them is correct?

2. Whether the plaintiffs prove that they are in possession of suit property as on the date of filing of suit?

3. Whether the plaintiffs prove that defendant is trying to dispossess them from suit property?

4. Whether the plaintiffs are entitled for permanent injunction as sought?

5. What order or decree?

3.3. In order to prove the case, plaintiff No.1

examined himself as PW.1 and one witness as P.W.2

and got marked documents as Exs.P1 to P4. On the

other hand, defendant examined power of attorney

holder as DW-1 and got marked Exs.D1 to D6. The

Trial Court, after recording evidence and considering

the material on record, held that the plaintiffs have

failed to prove the description of the suit property as

shown by them is correct and further held that the

plaintiffs failed to prove they are in possession of suit

property as on the date of filing of suit and further

recorded a finding that plaintiffs failed to prove that

defendant is trying to dispossess them from suit

property and also plaintiffs are entitled for permanent

injunction and consequently dismissed the suit.

3.4. The plaintiffs aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.10/2014. The First Appellate Court framed the

following points for consideration:

1. Whether the trial Court is justified in holding that plaintiffs are not in lawful possession of the suit property as on the date of filing of the suit?

2. Whether the trial Court is justified in holding that defendants are not causing obstruction and interfering with the plaintiffs' possession of the suit property?

3. Whether the judgment and decree under appeal is perverse, capricious and resulted in miscarriage of justice warranting interference?

4. What order or decree?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal filed by the plaintiffs. Hence the plaintiffs filed

this second appeal.

4. Heard learned counsel for the plaintiffs and

learned counsel for defendant.

5. Learned counsel for the plaintiffs submits that

the plaintiffs are in possession of the suit property and

defendant is causing obstruction and interfering with

the peaceful possession over the suit property. In

order to support the contention of the plaintiffs,

plaintiff No.1 examined as P.W.1 and also examined

one witness as PW.2, in order to prove the

interference by the defendant. He further submits that

the trial Court as well as the appellate Court have not

properly appreciated the material on record. Hence,

on these grounds he prays to allow the appeal.

6. Per contra, learned counsel for the defendant

supports the impugned judgment and award.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. Plaintiffs have filed a suit for perpetual

injunction contending that the defendant is

obstructing and interfering with peaceful possession

and enjoyment of the suit schedule property. In

support of their case, the plaintiff No.1 examined

himself as PW.1. PW.1 has reiterated the plaint

averments in the examination-in-chief. But in the

course of cross-examination he has admitted that he

has not seen defendant for past two years to the date

of his cross-examination and also admitted that

defendant is not residing in the address given, one

year earlier to the filing of the suit. Further PW.1 has

stated in the cross-examination that mother of

defendant has caused obstruction and interfered with

their possession. If mother of defendant has

obstructed and interfered with the possession of the

plaintiffs over the suit property, the plaintiffs ought to

have sought relief against mother of defendant, on the

contrary they have sought relief against defendant

who is not residing in the given address as on the date

of filing of suit and also subsequent to the filing of

suit. Further, PW.1 has categorically admitted in the

cross-examination that defendant has not made any

attempts to dispossess from the suit property. The

plaintiffs have failed to establish that the defendant

was interfering with the peaceful possession and

enjoyment of the suit property. In a suit for

permanent injunction, the plaintiffs have to establish

possession and also interference. In the present case,

the plaintiffs have utterly failed to establish the

interference by the defendant. Both the Courts have

concurrently recorded a finding of fact that the

plaintiffs have failed to establish the alleged

interference by the defendant and also recorded a

finding that defendant is not residing in the given

address. The plaintiffs have filed a false suit against

the defendant. The Courts below were justified in

passing the impugned judgment and decree. I do not

find any illegality in the impugned judgments and

decrees.

9. In view of the above discussions, I do not

find any substantial question of law involved in this

appeal. Accordingly, the appeal is dismissed.

In view of disposal of appeal, IA.No.1/2022 does

not survive for consideration.

Sd/-

JUDGE

msr