Shri S S Yoganna S/O S K Shankare ... vs Shri Somashekara S/O ...
2022 Latest Caselaw 4216 Kant

                             1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11TH DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

              R.S.A. NO. 22 OF 2011 (INJ)
BETWEEN:

SHRI S.S. YOGANNA
S/O S.K. SHANKARE GOWDA
AGED ABOUT 47 YEARS
R/AT BEEKANAHALLI VILLAGE,
SALAGAME HOBLI,
HASSAN TALUK AND DISTRICT-573201.
                                            ...APPELLANT
(BY SRI. ANANDA K., ADVOCATE)

AND:

1.     SHRI SOMASHEKARA
       S/O SRIKANTEGOWDA
       AGED ABOUT 54 YEARS

2.     SHRI RAMEGOWDA
       S/O DODDEGOWDA
       AGED ABOUT 64 YEARS

3.     SHRI RANGASWAMY
       S/O SHIVANANJEGOWDA
       AGED ABOUT 44 YEARS

       SL. NO.1 TO 3 ARE R/O
       SOPPINAHALLI VILLAGE,
       SALAGAME HOBLI,
       HASSAN TALUK AND DISTRICT-573201.

4.     SHRI S.G. NARAYANAGOWDA
       S/O GURUSWAMYGOWDA
                            2




     AGED ABOUT 62 YEARS
     R/O BEEKANAHALLI VILLAGE,
     SALAGAME HOBLI
     HASSAN TALUK AND DISTRICT-573201.
                                           ...RESPONDENTS

(BY  SRI.  V.VISHWANATH SHETTY, ADVOCATE              FOR
RESPONDENT NO.1;
NOTICE SERVED ON RESPONDENT NOs.2 TO 4                AND
UNREPRESENTED)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 06.07.2010 PASSED IN R.A.NO.73/2006 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN), HASSAN,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 03.04.2006 PASSED IN O.S.NO.171/2003
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN)& JMFC.
II COURT AT HASSAN.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the unsuccessful plaintiff

challenging the judgment and decree dated 03.04.2006

passed by Additional Civil Judge (Jr.Dn.) & JMFC II Court,

Hassan (henceforth referred to as 'Trial Court') in O.S.

No.171/2003 which was confirmed by the Principal Civil

Judge (Sr.Dn.) Hassan (henceforth referred to as 'First

Appellate Court') in R.A. No.73/2006 in terms of the

judgment and decree dated 06.07.2010.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The suit in O.S. No.171/2003 was filed for

perpetual injunction in respect of 9 guntas of land in

Sy.No.49/3 of Beekanahalli village, Salagame Hobli,

Hassan Taluk and District. The plaintiff claimed that at a

partition in the year 1982, 27 guntas of land in Sy.No.49

was allotted to the share of the father of the plaintiff, while

6 acres 3 guntas was allotted to the share of the father of

the defendant No.1. Later, the plaintiff claimed that in

year 1998, he and his brother partitioned the said 27

guntas of land in terms of which 9 guntas fell to the share

of the plaintiff and was bifurcated as Sy.No.49/3. The

plaintiff alleged that the defendants having no manner of

right, title and interest in the said property, attempted to

interfere with his possession which forced him to file a suit

for perpetual injunction.

4. The defendant No.1 contested the suit and

claimed that the plaintiff was not in possession of the suit

property. He specifically contended that the boundaries

mentioned in the suit schedule were incorrect. He also

claimed that the land claimed by the plaintiff did not exist

and no agricultural activity was ever conducted by the

plaintiff.

5. Based on these contentions, the Trial Court

framed the following issues :

i. Whether the plaintiff proves that he is in peaceful possession and enjoyment of suit schedule property?

ii. Whether the plaintiff proves that the defendant is interfering with the peaceful possession and enjoyment of suit schedule property? iii. Whether the plaintiff is entitled for the relief as prayed for?

iv. What decree or order?

6. The plaintiff was examined as P.W.1 and

marked documents as Exs.P-1 to P-11. A witness was

examined as P.W.2. The defendant No.1 was examined as

D.W.1, while defendant No.2 was examined as D.W.2 and

defendant No.4 was examined as D.W.3 and they marked

documents as Exs.D-1 to D-14.

7. The Trial Court after considering the oral and

documentary evidence held that the survey sketch at Ex.P-

5 relied upon by the plaintiff was challenged before the

Joint Director of Land Records, who passed an order at

Ex.D-1 and set aside the survey sketch. The Trial Court

held that the plaintiff failed to prove the location and

boundaries of the property. It also held that the plaintiff

failed to prove the identity of the property, as the survey

proceedings were not yet finalised. Since the suit was for

perpetual injunction and the plaintiff did nothing to

establish the boundaries of the suit schedule, more

particularly in the face of the defense of the defendant

No.1 that the suit was in respect of wrong boundaries, the

Trial Court held that the plaintiff is not entitled to the

reliefs and hence dismissed the suit.

8. An appeal preferred before the First Appellate

Court also met the same fate. Being aggrieved by the

aforesaid, the present appeal is filed.

9. The learned counsel for plaintiff submitted that

there is no dispute regarding the partition entered in the

year 1982 in terms of which 27 guntas was allotted to the

share of plaintiff's father. He submitted that this 27

guntas was divided between plaintiff and his two brothers

and in terms of which plaintiff secured 9 guntas and the

boundaries of the property were sufficiently established by

Ex.P-5. He also invited the attention of the Court to

evidence of D.W.3, who deposed that plaintiff was in

possession of the property described in the suit schedule.

He also invited the attention of Court to the evidence of

D.W.1 and Ex.P-11 which is a photograph of the plaintiff

and family members in the suit property. The plaintiff,

therefore contended that this was sufficient for the Trial

Court to decree the suit for perpetual injunction as the

plaintiff was the owner of the suit property which was

within the knowledge of the defendant No.1.

10. Per contra, learned counsel for defendant No1

specifically submitted that the defendant No.1 had denied

the boundaries mentioned in the Schedule to the suit. He

also invited the attention of the Court to the further

written statement filed where he contended that there is

no agricultural land lying within the boundaries mentioned

in the suit schedule.

11. I have considered the submission of the

learned counsel and I have perused the records of the Trial

Court.

12. As rightly contended by the learned counsel for

defendant No.1, when the plaintiff filed a suit for perpetual

injunction based on title, it is incumbent upon him to

incidentally prove his title as well as possession . In the

present case, though the defendant No.1 did not seriously

dispute the ownership of the plaintiff in respect of 9 guntas

land but he disputed the boundaries mentioned in the

schedule. Thus, it was incumbent upon the plaintiff to

prove the boundaries of the suit property. The plaintiff

could have proved the boundaries by examining his two

brothers, who had purportedly taken their share out of 27

guntas in Sy.No.49. He could have atleast examined the

immediate adjacent owners who were in possession of the

land in Sy.No.49. Instead, the plaintiff relied upon a stray

admission made in the evidence of D.W.3 to contend that

the plaintiff is in possession.

13. Now that Ex.P-5 is set aside by the Joint

Director of Land Records and the issue is still pending

consideration before the survey authorities, the plaintiff

could file a suit for appropriate reliefs only after conclusion

of the survey proceedings. At any rate, there is nothing on

record to establish that the plaintiff had proved the

boundaries of the suit schedule property.

14. In that view of the matter, both the Courts

were justified in dismissing the suit for injunction and this

Court does not consider it appropriate to interfere with the

finding of fact recorded by the Courts. Hence, this appeal

is dismissed.

15. However, it is open for the plaintiff to seek

protection of his possession after the survey proceedings

are finalised and after his property is identified in

accordance with law.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm