Rajappa S/O. Basanagouda ... vs Jatteppa S/O. Mallappa ...
2022 Latest Caselaw 4189 Kant

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                                   RSA No. 100601 of 2015


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 11TH DAY OF MARCH, 2022

                         BEFORE
         THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

      REGULAR SECOND APPEAL NO. 100601 OF 2015 (INJ-)

BETWEEN:


1.    RAJAPPA S/O. BASANAGOUDA BHARAMAGOUDAR
      AGE: 31 YEARS,
      OCC: AGRICULTURE
      R/O. ARIKATTI, TQ: HIREKERUR
      DIST: HAVERI.
2.    UJJAPPA S/O. BASANAGOUDA BHARAMAGOUDAR
      AGE: 39 YEARS,
      OCC: AGRICULTURE
      R/O. ARIKATTI, TQ: HIREKERUR DIST: HAVERI
3.    BASANAGOUDA S/O. BASALINGAPPA BHARAMAGOUDA
      AGE: 66 YEARS,
      OCC: AGRICULTURE
      R/O. ARIKATTI, TQ: HIREKERUR DIST: HAVERI
4.    SMT. RENUKA W/O. PARAMESHAPPA GOUDAR
      AGE: 46 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. KARNALLI, TQ: SHIKARIPUR
      DIST: SHIVAMOGGA
5.    SMT. VANAJAKSHI W/O. BASAVARAJAPPA BANAKAR
      AGE: 43 YEARS,
      OCC: HOUSEHOLD WORK
      R/O. VRUTTIKOPPA,
      TQ: SORAB
      DIST: SHIVAMOGGA
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                                     RSA No. 100601 of 2015


6.   SMT. LATHA W/O. NAGARAJ JAMPLAR
     AGE: 37 YEARS,
     OCC: HOUSEWIFE
     R/O. TADASANAHALLI,
     TQ: SHIKARIPUR,
     DIST: SHIVAMOGGA.

                                              ...APPELLANTS
(BY SRI. P G MOGALI.,ADVOCATE)
AND:

1.   JATTEPPA S/O. MALLAPPA
     BHARAMAGOUDAR
     AGE: 45 YEARS,
     OCC: AGRICULTURE
     R/O. ARIKATTI, TQ: HIREKERUR
     DIST: HAVERI.
2.   KAREGOUDAPPA S/O. MALLAPPA
     BHARAMAGOUDAR
     AGE: 51 YEARS,
     OCC: AGRICULTURE
     R/O. ARIKATTI, TQ: HIREKERUR DIST: HAVERI.

                                           ...RESPONDENT'S
(BY. R1 & R2 ARE SERVED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CPC,
AGAINST JUDGMENT AND DECREE DATED 1.04.2015 PASSED
IN R.A. NO.3/2014, ON THE FILE OF THE SENIOR CIVIL JUDGE
& JMFC, HIREKERUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 12.12.2013
AND THE DECREE PASSED IN O.S NO.67/2006 ON THE FILE OF
THE CIVIL JUDGE & JMFC, HIREKERUR, DECREEING THE SUIT
FILED FOR PERMANENT INJUNCTION.


     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THIS COURT MADE THE FOLLOWING:
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                                       RSA No. 100601 of 2015


                          JUDGMENT

The present appeal is preferred by the defendants

assailing the judgment and decree dated 01.04.2015 in RA

No.3/2014 on the file of Senior Civil Judge and JMFC, Hirekerur

confirming the judgment and decree dated 12.12.2013 in OS

No.67/2006 on the file of the Civil Judge and JMFC, Hirekerur,

whereby the suit of the plaintiff for permanent injunction has

been decreed and the defendants herein are permanently

restrained from cutting 'Honne tree' situated at point 'G' shown

in the hand sketch attached annexed to the plaint.

2. Parties herein are referred to as per their rankings

before the trial Court for the sake of convenience.

3. The plaintiff filed suit for the relief of permanent

injunction restraining the defendants from encroaching upon

the property and cutting the 'Honne tree' standing at 'G' point

mentioned in the hand sketch of the plaint, it is averred in the

plaint that the plaintiff is in possession and enjoyment of ABCD

area and defendant's property is towards the western side

shown as CDEF to the sketch annexed to the plaint and

between the property of the plaintiff and the defendant there is

RSA No. 100601 of 2015

a CD line which divides the property and in the property of the

plaintiff there is a canal shown as XY towards the western side

and to the northern side of the canal there is a "Honne Tree" at

point 'G' and the same is mentioned in the RTC extract

pertaining to the plaintiff's property since 1991 and that the

defendants without any right, title and interest is claiming right

over the "Honne Tree" and in the guise of cutting the tree in

the property of defendant he is trying to cut the "Honne Tree"

which is in possession and ownership of the plaintiff and thus

sought for permanent injunction restraining the defendant from

cutting the "Honne Tree".

4. The defendant appeared and filed their written

statements contending that the defendant is having a 'Honne

tree' and Mango tree and other trees in his property and he is

cutting other trees which are in possession and ownership of

the defendant. It is contended that the defendant is the owner

of RS No.36 measuring 3 acres 20 guntas and the defendant is

in possession of the "Honne Tree" as shown at point 'T' in the

hand sketch annexed to the written statement which is towards

the eastern side of his property. It is further contended that he

is the absolute owner in possession of the "Honne Tree" and his

RSA No. 100601 of 2015

name is mentioned in the RTC and that the plaintiff without

having any right, interest and title over the said tree has filed

the suit without any cause of action and sought for dismissal of

the suit.

5. The trial Court on the basis of the pleadings,

evidence and material on record held that the plaintiff has

proved the lawful possession and enjoyment of the suit "Honne

Tree" as on the date of the filing of the suit.

6. Aggrieved by the judgment and decree of the trial

Court the defendants preferred RA No.3/2014 before the lower

appellate Court, in the appeal filed by the defendants the lower

appellate Court on re-appreciation of the material and evidence

on record confirmed the judgment and decree of the trial Court

and held that the plaintiff has proved that he is in possession

and enjoyment of the suit schedule "Honne Tree". Aggrieved by

the judgment and decree of the Courts below the defendants

have preferred this appeal.

7. Heard the learned counsel for the appellant Sri. P.G.

Mogali for admission and though the respondent Nos.1 and 2

have been served they have remained absent.

RSA No. 100601 of 2015

8. In addition to the various contentions urged by the

learned counsel for the appellants, it is contended that the

Courts below have not considered the documentary evidence

produced by the defendants to show the fact that the "Honne

Tree" is situated in the property of the defendants and the

same finds place in the RTC records of the defendants property

and the plaintiffs without having any right over the "Honne

Tree" has included and mentioned the same in the RTC of the

plaintiffs property.

9. The actual dispute is in regard to the location and

situation of the "Honne Tree" whether in the property of the

plaintiffs or in the property of the defendants. Keeping this in

mind the pleadings, evidence and material on record needs to

be considered.

10. The Courts below has held that the plaintiffs are in

possession and enjoyment of the suit schedule "Honne Tree"

and the said tree is situated in the property of the plaintiffs.

Though the defendants disputed and contended that the

"Honne Tree" is situated in the property of the defendants no

material evidence is forthcoming and only evidence relied by

RSA No. 100601 of 2015

the defendants is the mentioning of "Honne Tree" in the RTC

records of the defendants property which according to the

plaintiffs is that the defendants have already cut the "Honne

Tree" situated in the property of the defendants and the

mentioning of the "Honne Tree" in the RTC records of the

defendants is of no consequence. It is further noticed that the

DW.1 has admitted in his cross examination that there are

standing trees in the property belonging to the plaintiffs and

the mentioning of "Honne Tree" in the RTC extract of the

plaintiffs, but however the defendants tried to contend that

though the entries have been effected 25 years ago the same

has been effected behind the back of the defendant. This

contention of the defendant is not acceptable as the defendants

have made no efforts to challenge the mutation entry in

regards to the mentioning of "Honne Tree" in the property of

plaintiffs. The plaintiff in order to prove that the suit "Honne

Tree" is situated in the property of the plaintiffs has produced

the RTC extract at Ex.Ps-1 to 5 and examined one witness as

PW.2 and substantiated his contention that the "Honne Tree" is

situated in the property of the plaintiffs from time immemorial.

It is also pertinent to note that DW.1 has admitted in his cross

RSA No. 100601 of 2015

examination regarding the actual position of the suit land as

per the hand sketch annexed to the plaint, which clearly depicts

that there is a canal in the property of plaintiffs and to the

northern side there is this "Honne Tree" at point 'G'. The sketch

produced by the defendant to show the location of "Honne

Tree" does not tally with the location of "Honne Tree" at point

'G' and the plaintiffs have proved that the location and situation

of the "Honne Tree" in the plaintiffs property. In the

circumstances, this Court is of the considered view that no

substantial question of law arises for consideration seeking for

warranting interference in the concurrent findings of the Courts

below. In the result this Court pass the following;

ORDER

(i) The appeal filed by the defendants is

dismissed as devoid of merits.

No order as to costs.

Sd/-

JUDGE

VMB/ PJ