Narsinggiri S/O Hanmantgiri ... vs Shivachandgiri S/O Sadagiri
2022 Latest Caselaw 3973 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF MARCH 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

           R. S. A. NO.7072 OF 2008 (INJ)

BETWEEN:

NARSINGGIRI
S/O HANMANTGIRI GOSAVI
AGE: 62 YEARS, OCC AGRICULTURE & BUSINESS,
R/O. VILLAGE HALLIKHED (K) TQ. HUMNABAD,
DIST. BIDAR - 585327

NOW REPRESENTED BY GPA HOLDER
SRI. SANTOSH GIRI
S/O NARSINGGIRI
AGED ABAOUT 29 YEARS, OCC. AGRICULTURE
R/O. VILLAGE HALLIKHED (K) TQ. HUMNABAD,
DIST. BIDAR - 585327
                                       ...APPELLANT

(BY SMT. JYOTI S. JOSHI, ADV.)

AND

1.    SHIVACHANDGIRI
      S/O SADAGIRI
      AGED ABOUT 63 YEARS
      OCC AGRICULTURE, R/O. HALLIKHED-K,
      TQ. HUMNABAD, DIST BIDAR - 585327
                           2




2.   KESHAVAGIRI @ BABU
     S/O. SADAGIRI,
     AGED ABOUT 48 YEARS,
     OCC. AGRICULTURE, R/O. HALLIKHED - K,
     TQ. HUMNABAD, DIST. BIDAR - 585327

3.   MACHINDER GIRI
     S/O. HANMANTHGIRI,
     AGED ABOUT 53 YEARS
     OCC. AGRICULTURE, R/O. HALLIKHED - K,
     TQ. HUMNABAD,
     DIST. BIDAR - 585327
                                    ...RESPONDENTS

(BY SRI. SACHIN M. MAHAJAN, ADV. FOR R1 & R2)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 12.09.2008 PASSED IN R.A.NO.3/2006 BY THE
LEARNED CIVIL JUDGE (SR.DN.), BASAVKALYAN CAMP AT
HUMNABAD, CONFIRMING THE JUDGMENT AND DECREE
DATED 22.12.2005 PASSED IN O.S.NO.153/2002 BY THE
LEARNED PRINCIPAL CIVIL JUDGE (JR.DN.), HUMNABAD.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

This appeal is filed challenging the judgment and

decree dated 12.09.2008, passed in R.A.No.3/2006 by

the Civil Judge (Sr.Dn.), confirming the judgment and

decree dated 22.12.2005, passed in O.S.No.153/2002

by the Principal Civil Judge (Jr.Dn.), Humnabad.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the plaintiff and respondents No.1 to 3

are the defendants 1 to 3 before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for perpetual injunction

restraining the defendants from causing interference

and obstruction by way of removing the boundary

stones, trespass and cutting trees in respect of suit

land bearing Sy.No.61/1 measuring 4 acres including

14 mango trees and 2 tamarind trees situated at

Hallikhed (K), Taluka Humnabad. It is the case of the

plaintiff that plaintiff is the absolute owner in exclusive

possession of suit land which was ancestral property.

The defendants are his relatives. The land of

defendant No.1 is towards the south of suit land. The

suit land got measured and Form No.10 was prepared.

The boundary stone was also fixed by the survey

authority. The plaintiff is in enjoyment of suit land

and enjoying the fruits, exclusively. The defendants

have no concern with the suit land or trees standing in

the suit land. The defendants by colluding with each

other wants to encroach upon the suit land forcibly,

illegally and achieve their illegal objects. The plaintiff

requested the defendants not to remove the boundary

stone, but the defendants are not heading to the

request made by the plaintiff. Hence cause of action

arose for the plaintiff to file the present suit.

3.1. Defendants No.1 and 2 filed written

statement denying the averments made in the plaint

and also denied that the plaintiff is the exclusive

owner and possessor of suit land including 14 mango

trees and 2 tamarind trees. It is contended that

plaintiff is residing at Village Kamalapur and his father

died in the same village and he was buried in the

same village and there is no cause of action. Cause of

action shown in the plaint is imaginary. It is

contended that one Late Kashigiri was the common

ancestor. He had four sons by name Narasinggiri,

Bhagawangiri, Sadagiri and Mahadevagiri.

Narasinggiri had a son by name Hanumanthgiri who

died leaving behind three sons by name Narasinggiri

(plaintiff), Machindergiri (defendant No.2) and

Shivarajgiri. Bhagawangiri died leaving no male

issues and he was buried in the suit common portion

and his samadhi is in existence. It is further

contended that there are samadhis of the ancestors of

the parties in the suit schedule property and the said

open space is kept common between the ancestors of

the parties. It is contended that the plaintiff

suppressing the real facts, filed the present suit.

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 plaintiff proves that he is exclusive owner and possessor of land Sy.No.61/1 measuring four acres situate at Hallikehd (K) Village and proves his title on the date of suit?

2. Whether defendants prove that in the suit properties there are graves and samadhis of the ancestors of the parties to suit and it is kept common between Hanamanthgiri, Bhagwangiri and Sadagiri?

3. Whether plaintiff proves that defendants are causing interference and obstruction into his peaceful possession over the suit property?

4. Whether plaintiff is entitled for injunction as prayed for?

5. What decree or order?

3.3. Plaintiff in order to prove his case, examined

himself as PW-1 and got examined two witnesses

as PW-2 and PW-3 and got marked Ex.P1 to P4. On

the other hand, defendant No.1 was examined as DW-

1 and examined three witnesses as DWs.2 to 4 and

got examined the Court Commissioner as DW-5 and

got marked Ex.D1 to D15. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiff has failed to prove that

he is the exclusive owner and possessor of land

bearing Sy.No.61/1 measuring 4 acres and failed to

prove his title as on the date of suit and further

recorded a finding that the defendants have proved

that in the suit properties there are graves and

samadhis of the ancestors of the parties to the suit

and it is kept common between Hanumanthgiri,

Bhagawangiri and Sadhgiri and further recorded a

finding that the plaintiff has failed to prove that the

defendants are causing interference and obstruction

into his peaceful possession over the suit property.

Further held that the plaintiff is not entitled for

injunction as prayed for and consequently dismissed

the suit.

3.4. The plaintiff aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.3/2006. The First Appellate Court framed the

following points for consideration:

1. Whether the judgment and decree under appeal are contrary to law and evidence on record?

2. Whether there are any grounds for this Court to interfere in the judgment and decree under appeal?

3. What order or decree?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal filed by the plaintiff. Hence the plaintiff has

filed the instant appeal.

4. This Court on 02.09.2009, framed the

following substantial question of law for consideration:

Whether in the facts and circumstances and evidence on record, the Trial Court was justified in dismissing the suit as confirmed by the First Appellate Court?

5. Heard learned counsel for the plaintiff and

learned counsel for defendants.

6. Learned counsel for the plaintiff submits that

the plaintiff is in possession of the suit schedule

property and produced revenue records to establish

possession over the suit schedule property. She

further submits that the courts below have not

properly appreciated the material placed on record

and passed the impugned judgments and decrees.

She further submits that the impugned judgments

passed by the courts below are contrary to the

records. Hence on these grounds, she prays to allow

the appeal.

7. Learned counsel for the defendants submits

that the plaintiff is the owner in possession of portion

of suit land to an extent of 2 acres 38 guntas and

remaining portion of the suit property is the family

burial ground and there are graves in the remaining

portion of suit land. He further submits that the

courts below after considering the entire material on

record, was justified in passing the impugned

judgments and decrees. Hence on these grounds, he

prays to dismiss the appeal.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

9. It is the case of the plaintiff that plaintiff is

the owner of suit schedule property and in order to

prove the possession, has produced copy of Record of

Rights, Lavani Patra, Form No.10, Tippan Map,

Mutation copy. It is the specific case of the plaintiff

that there are mango trees and tamarind trees and it

is also the case of the plaintiff that defendants have

no right or concern over the suit property and trying

to encroach upon the same by removing boundary

stones and trying to cut down the standing trees

therein. The said fact was denied by the defendant

No.1 and 2 by filing a written statement. It is

contended that out of entire suit land, an area

measuring 1 acre 2 guntas is kept common between

the plaintiff and defendants and other bahubandas as

a burial ground of their family in which 11 mango

trees and tamarind trees and 1 jamoon tree and 1

neem tree are standing and the plaintiff and

defendants and other family members are enjoying

the fruits of the said trees. The defendants have

admitted the ownership of plaintiff over the portion of

the property i.e., to an extent of 2 acres 38 guntas

and remaining portion is their family burial ground.

The plaintiff in order to prove his case, examined

himself as P.W.1 and examined two witnesses as

P.W.2 and P.W.3. The plaintiff's witnesses have

reiterated the plaint averments in the examination-in-

chief. They were subjected to cross-examination.

They have admitted that in the suit land towards

north-western corner, there are samadhis of the

ancestors of the plaintiff and defendants. The plaintiff

has not pleaded in the plaint about the existence of

graves of their ancestors in the suit property. The

defendant No.1 examined himself as D.W.1 and

examined 3 witnesses as D.W.2 to D.W.4. The

defendants' witnesses have reiterated the averments

made in the written statement in the examination-in-

chief and produced records. The Trial Court at the

instance of the parties, appointed a Court

Commissioner for local inspection. The Court

Commissioner visited the spot and conducted

inspection and submitted a report. Court

Commissioner was examined as D.W.5. In his oral

evidence, he has deposed that as per the direction of

the Trial Court, he has visited the spot, conducted

inspection and submitted the report. The report is

marked as Ex.D12. Ex.D12 discloses that there are 2

constructed samadhis existing in the suit land and 4

graves aged about 40 to 50 years and 2 graves aged

about 2 to 5 years existing in the suit land. The

report of the Court Commissioner is being

substantiated by the evidence of P.W.2 and P.W.3 who

have specifically admitted about the existence of

graves in the suit land belonging to the ancestors of

the plaintiff and defendants. The Trial Court relying

on the report of the Court Commissioner, evidence of

D.W.5 and also admission of P.W.2 and P.W.3, has

held that plaintiff is not in possession of entire extent

of suit land i.e., measuring 4 acres. The Trial Court

has recorded a finding that the plaintiff is not in

possession of an area measuring 1 acre 2 guntas out

of 4 acres and further recorded a finding that out of 4

acres, 1 acre 2 guntas is a burial ground of their

family members in which samadhis and graves of their

ancestors are existing which is kept common in

between the plaintiff and defendants. The Trial Court

after considering the entire material on record, was

justified in dismissing the suit of the plaintiff. The

First Appellate Court, on re-appreciation of evidence

on record, upheld the judgment and decree passed by

the Trial Court. In view of the above discussion, the

courts below were justified in passing the impugned

judgments and decrees.

10. In view of the above discussion, the

substantial question of law is answered against the

plaintiff. Accordingly, the appeal is dismissed.

SD/-

JUDGE

RD