Sri Rameshwarappa vs Sri Ramanjinappa
2022 Latest Caselaw 4970 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF MARCH, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

     REGULAR SECOND APPEAL NO.301 OF 2022 (INJ)

BETWEEN:

1.     SRI. RAMESHWARAPPA
       S/O SRI. ANJINAPPA
       AGED ABOUT 82 YEARS

2.     SRI. G.P. ESHWARAPPA
       S/O DODDA HANUMANTHAPPA
       AGED ABOUT 72 YEARS

       ALL ARE R/AT GUMMAGATTA VILLAGE
       KASABA HOBLI, PAVAGADA TALUK
       TUMAKURU DISTRICT-515863.
                                           ...APPELLANTS
(BY SRI. VENKATARAMI REDDY E., ADVOCATE)

AND:

SRI. RAMANJINAPPA
S/O SRI. G. HANUMANTHAPPA
AGED ABOUT 61 YEARS
R/AT GUMMAGATTA VILLAGE
KASABA HOBI,
PAVAGADA TALUK
TUMAKURU DISTRICT-515863.
                                           ...RESPONDENT

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 14.01.2022
PASSED IN R.A NO.76/2016 ON THE FILE OF THE COURT OF
SENIOR CIVIL JUDGE AND JMFC., PAVAGADA, DISMISSING THE
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APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
08.02.2016 PASSED IN O.S.NO.261/2010 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC., PAVAGADA.

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

                          JUDGMENT

This appeal is filed by the defendants in O.S.

No.261/2010 on the file of the Principal Civil Judge and

JMFC., Pavagada, (henceforth referred to as the 'Trial

Court') challenging the concurrent finding of fact recorded

by both the Courts that the plaintiff is the owner in lawful

possession of the suit schedule property and is entitled to

perpetual injunction against the defendants from

interfering with his possession in the suit property.

2. The parties will henceforth be referred to as

they were arrayed before the Trial Court. The appellants

were defendants while the respondent was the plaintiff

before the Trial Court.

3. The suit in O.S. No.261/2010 was filed for

perpetual injunction contending that the plaintiff had

inherited the suit property from his father where he had

installed a mobile communication tower. He claimed that

the defendants were owners of the adjacent property. He

alleged that when the boundaries of the suit property were

fixed, son of the defendant No.1 and others had attested

the survey sketch thereby admitting the lawful ownership

and possession of the plaintiff over the suit property. He

alleged that the defendants were unnecessarily interfering

with his possession and enjoyment of the suit property and

hence, sought for perpetual injunction against the

defendants.

4. The defendants contested the suit by denying

the installation of the mobile communication tower. They

also contended that the land lying within the boundaries

mentioned in the suit schedule did not belong to the

plaintiff but was a public road which was used and enjoyed

by the public of Gummaghatta village. They denied the

measurement and the boundaries mentioned in the suit

schedule and contended that no survey was ever

conducted.

5. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether plaintiff proves his lawful possession over the suit property as on the date of suit?

2. Whether plaintiff proves the alleged interference?

3. Whether plaintiff is entitled for the relief as sought?

4. What order or decree?"

6. The plaintiff was examined as PW.1 and

examined a witness as PW.2 and marked documents as

Exs.P1 to P4. The defendant No.2 was examined as DW.1

and power of attorney holder of the defendant No.1 was

examined as DW.2 and they marked documents, Exs.D1 to

D15.

7. Based on the oral and documentary evidence,

the Trial Court held that the revenue records disclosed the

title of the plaintiff as well as his possession of the suit

schedule property. Ex.P3 was an order passed by the

Tahasildar confirming the boundaries of the suit schedule

property and Ex.P4 was survey mahazar drawn.

8. The Trial Court noticed the evidence of DW.1

and observed that as per the revenue records, 04 guntas

of land in Sy.No.2/7 stood in the name of the plaintiff.

DW.1 also admitted about the installation of a mobile

communication tower in the suit property. The Trial Court

noticed that the plaintiff and defendants were adjacent

land owners and Ex.P2 (Ex.D2) which was a sale deed

executed in favour of the defendant No.1 indicated the

southern boundary as the property of the plaintiff's father.

The Trial Court held that the defendants did not establish

that the suit property was a public road and also failed to

establish that the plaintiff was not in possession of the

suit property. Hence, the Trial Court decreed the suit.

9. Being aggrieved by the aforesaid judgment and

decree, the defendants filed R.A. No.76/2016.

10. The Court of Senior Civil Judge and JMFC.,

Pavagada (henceforth referred to as the 'First Appellate

Court') secured the records of the Trial Court, heard the

learned counsel for the parties, framed points for

consideration and after considering the oral and

documentary evidence, dismissed the appeal and

confirmed the judgment and decree of the Trial Court.

11. Being aggrieved by the aforesaid Judgment

and Decree of the First Appellate Court, the present appeal

is filed.

12. The learned counsel for the appellants -

defendants submitted that a Commissioner was appointed

by the First Appellate Court. He stated that there was a

beaten track in the suit property and therefore, it was used

as a road. He also submitted that as per the report of the

Court Commissioner, this beaten track extended in the

other lands in various survey numbers. He, therefore,

submitted that the plaintiff was never in possession of the

suit property and hence, the Trial Court and the First

Appellate Court committed an error in decreeing the suit.

13. The findings of the Trial Court leave no doubt

that the plaintiff is the owner of the land in Sy. No.2/7,

which is the suit property while the defendants are the

owners of the land bearing No.2/8 lying adjacent to the

land in Sy. No.2/7. If the ownership of the plaintiff is

admitted, then possession would automatically follow. If

the defendants have any intangible right over the suit

property, by way of easement, they are bound to establish

the same in the manner known to law. The records before

the Trial Court do not indicate that the defendants ever

made an attempt to establish that the suit property was

used as a road and/or that the suit property was an

easement of necessity or that the defendants had a

prescriptive right to use it. The fact that the defendants

have denied the case of the plaintiff and have disputed his

ownership itself is sufficient cause of action to file a suit for

perpetual injunction.

14. In that view of the matter, the Trial Court and

the First Appellate Court have rightly held that the plaintiff

is entitled for perpetual injunction. Consequently, this

Court does not consider it appropriate to disturb the

findings of fact recorded by both the Courts and hence,

this Regular Second Appeal is dismissed. However, it is

open for the defendants to seek declaratory relief in

respect of their alleged easementary right over the suit

schedule property.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma