Adakamaranahalli Gram ... vs Sri Bylappa
2022 Latest Caselaw 5036 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF MARCH, 2022

                       BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.1945 OF 2013 (INJ)

BETWEEN:

ADAKAMARANAHALLI GRAM PANCHAYATH
DASANPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-562162.
REP BY PANCHAYATH DEVELOPMENT OFFICER
                                            ...APPELLANT
(BY SRI. B. RAVINDRA PRASAD, ADVOCATE)

AND:

SRI. BYLAPPA
S/O LATE GULLAPPA ,
AGED ABOUT 64 YEARS,
R/AT MAKALI VILLAGE,
DASANPURA HOBLI,
BANGALORE NORTH TALUK-560076.
                                          ...RESPONDENT

(BY SRI. N.J.RAMESH, ADVOCATE FOR RESPONDENT;
SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR PROPOSED
RESPONDENT NO.2
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
26.10.2017)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 10.10.2012 PASSED IN R.A.NO.203/2011 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V,
BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
                               2


DATED 22.06.2011 PASSED IN O.S.NO.680/2009 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA.

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


                        JUDGMENT

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

No.680/2009 on the file of the Senior Civil Judge and

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

Court') challenging the Judgment and Decree of the Court

of Additional District and Sessions Judge, Fast Track Court-

V, Bangalore Rural District, Bangalore (henceforth referred

to as the 'First Appellate Court') dated 10.10.2012 in R.A.

No.203/2011, by which it reversed the Judgment and

Decree dated 22.06.2011 of the Trial Court and granted

perpetual injunction in favour of the plaintiff in respect of

the suit schedule property.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court. The appellants

herein were the defendants while the respondent was the

plaintiff before the Trial Court. This Court in terms of the

Order dated 26.10.2017, permitted Adakamaranahalli

Gram Panchayat to come on record in the place of existing

appellants.

3. The suit in O.S. No.2852/2006 was filed for

perpetual injunction in respect of a site measuring East to

West 50 feet and North to South 155 feet lying within

khaneshumari No.5 of Makali village, Dasanapura hobli,

Bengaluru North Taluk. The plaintiff claimed to be the

absolute owner in possession of the aforesaid property and

that he was in possession of the same for more than 50

years and had constructed a dwelling house. In order to

establish that the plaintiff was in possession, he relied

upon a mahazar drawn in the year 1983 in respect of

khaneshumari No.5 of the said village by the Village

Panchayath Extension Officer as per the directions issued

by the Assistant Commissioner, Doddaballapura, dated

27.08.1983 in case No.VPCCR.106/1983-84 to the Chief

Executive Officer and the Administrator, Taluk

Development Board, Nelamangala, on 27.12.1983. The

plaintiff claimed that as per the mahazar, he was in

possession of the suit property even prior to 1960-61 and

was paying kandayam to the Panchayat for more than 10

years. He also contended that just like him, there was

another lady named Smt.Radha, who was in possession of

another portion of the site in khaneshumari No.5. The

plaintiff relied upon the proceedings initiated by Smt.

Radha and the village panchayat before the various

authorities in respect of the property of the said Smt.

Radha to contend that the defendants were not the owners

of the property bearing khaneshumari No.5. The plaintiff

claimed that the house constructed over the suit property

was serviced with electricity and his name was entered in

the electoral roll. He also claimed that he belonged to

scheduled caste and that the Tahasildar had issued a

certificate to that effect. The plaintiff alleged that the

electricity bills, election card and the voters' list

established his possession over the suit property. He also

claimed that he had erected a compound wall around the

suit property and thus, contended that he was in

possession of the said property. He alleged that on

25.11.2006, the defendants went near the suit property

and asked the plaintiff and his family members to vacate

the same. Based on this cause of action, the plaintiff

sought for perpetual injunction restraining the defendants

from interfering with his possession and enjoyment of the

suit property and to restrain the demolition of the dwelling

house and compound.

4. The suit was contested by the defendant No.1

who contended that the suit property bearing

khaneshumari No.5 of Makali village belonged to it and

was earlier recognized as 'Chatra' and was preserved for

public utility. It claimed that the suit property was under

its care and custody and it had constructed a building for

the benefit of running a school and the remaining vacant

portion was in its possession. It refuted the claim of

plaintiff that he was in possession of the suit property. It

contended that the suit property was utilized for the

purpose of playground for the Government school. It

denied the mahazar allegedly conducted by the Panchayat

Extension Officer on 27.08.1983. It contended that the

plaintiff did not pay any tax to the defendant No.1

concerning the suit property. It alleged that the plaintiff

had filed the suit to knock off the suit property at the

instance of Smt. Radha and Sri H. Ravi. It denied the

claim that the plaintiff had obtained electricity connection

to the house constructed allegedly on the suit property. It

denied the claim that the plaintiff was having a voter

identity card indicating that he was in possession of the

suit property. It claimed that the compound constructed

around the suit property was raised by the defendants and

that it is the defendants who were in possession of the suit

property. It next contended that the plaintiff was granted

a site measuring East to West 35 feet and North to South

35 feet in khaneshumari No.5 of Makali village, where he

had constructed a house and enclosed it by a compound

wall. It claimed that except this property, the plaintiff was

not in possession of any other property, much less the suit

property. It also claimed that the plaintiff had filed a suit

without issuing a statutory notice as contemplated under

Section 289 of the Karnataka Gram Swaraj and Panchayat

Raj Act, 1993 (henceforth referred to as 'the Act of 1993')

It also claimed that the plaintiff had furnished wrong

boundaries with an intention to knock off the property that

belonged to the Panchayat.

5. Based on these rival contentions, the Trial

Court framed the following issues:

"1. Whether the plaintiff proves that is in possession of the suit property as on the date of the suit?

2. Whether the plaintiff proves that unnecessarily the defendants are trying to interfere with the possession and enjoyment of the property?

3. What order or Decree ?"

6. The daughter of the plaintiff who was

authorized under a power of attorney was examined as

PW.1 and she marked documents as Exs.P1 to P30. The

defendant No.1 examined one of its officials as DW.1 and

marked documents as Exs.D1 to D8.

7. Based on the oral and documentary evidence,

the Trial Court dismissed the suit primarily on the following

findings:

i) The evidence on record did not show that the plaintiff was in possession of the suit schedule property.

ii) All the documents marked by the plaintiff excluding Ex.P15 related to some other property. That Exs.P15 and P16 were the mahazar drawn and report submitted to which the plaintiff was not a party and therefore, these documents did not show or demonstrate the possession of the suit property by the plaintiff.

iii) The evidence of PW.1 did not establish that the plaintiff was in possession of the suit property for more than 50 years as claimed in the plaint.

iv) Since the plaintiff failed to prove his possession, the question of interference by the defendants did not arise.

8. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed Regular Appeal No.203/2011

before the First Appellate Court.

9. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed the following points for consideration:

"1. Whether the appellant proves that the judgment and decree passed by the Trial Court is perverse, arbitrary and this court interference is necessary?

2. What Order?"

10. The First Appellate Court based on the oral and

documentary evidence on record, allowed the appeal and

decreed the suit primarily on the following grounds:

i) Undisputedly, a portion of site bearing khaneshumari No.5 was in possession of a person named Smt. Radha and that the defendant No.1 had passed a resolution on 26.08.1983 (stated as 27.08.1983 in the judgment of the First Appellate Court) declaring that the said property belonged to the village Panchayat, which was challenged by Smt. Radha before the Assistant Commissioner,

Bangalore sub-division, Bangalore in Case VPC No.214/1986.

ii) That the village Panchayat also preferred an appeal before the Assistant Commissioner, Bangalore sub- division, Bangalore, in Case No.VPC.46/1987-88.

iii) The Assistant Commissioner passed an order holding that the entire gramatana site in khaneshumari No.5 does not belong to the village Panchayat as it was an inam land that had vested in the State. Being aggrieved by the said order, Panchayat filed an appeal before the Divisional Commissioner, Bangalore Division, Bangalore, in Case No.VPC.Appeal No.4/1991-92. The Divisional Commissioner held that the entire land in khaneshumari No.5 of Makali village did not belong to the village Panchayat as it was a private property of persons, who were residing therein. This order was challenged by the Dasanapura Group Panchayat before this Court in W.P. No.22303/1994 which was initially dismissed for non-prosecution on 04.02.1998 and after restoration of the petition, it was rejected in terms of the Order passed by a coordinate Bench of this Court dated 21.01.1999.

iv) That the evidence of the power of attorney holder of the plaintiff established that the plaintiff was in possession of the suit property for over 50 years by constructing a small house.

v) That the suit property is a portion of khaneshumari No.5 which is in possession of the plaintiff and the remaining portion is in possession of Smt.Radha.

vi) That the plaintiff has constructed a compound wall around the suit schedule property with cement bricks and raised trees in the property.

vii) That the plaintiff had obtained electricity connection to his house in the suit schedule property and obtained an identity card from the Election Commission of India.

viii) That the plaintiff had paid building tax in respect of the house in suit schedule property.

ix) That in some portion of khaneshumari No.5, there were other persons named Munishamappa and Mallaiah, who were in possession and the Panchayat had passed a resolution to grant khata in the name of Sri Mallaiah.

x) That after the death of Munishamappa, his sons, namely Sri Bylappa, Sri Narasimha and Sri

Hanumanthappa had sold their portion to Smt.Radha, under a sale deed. Based on the sale deed, Smt.Radha had filed an application to transfer khata in her name. On 26.08.1983, the Panchayat passed a resolution for cancellation of the khata that was transferred in the name of Smt. Radha. Smt. Radha preferred an appeal before the Assistant Commissioner in VPC.(A).No.8/1983 under the Karnataka Village Panchayat and Local Boards Act. In the appeal, the Assistant Commissioner directed the Administrator of the Taluk Development Board, Nelamangala, to inspect the site bearing khaneshumari No.5 and submit a report. Accordingly, the Administrator, Taluk Development Board, Nelamangala, inspected the site and submitted a report about the persons, who were in possession of the site bearing khaneshumari No.5 along with their names and extents. In this report, it was shown that the plaintiff was in possession of the suit property and that he had constructed a house.

xi) That the defendant No.1 admitted that a mahazar as per Ex.P15 was drawn and that Ex.P16 was a report submitted by the Panchayat Extension

Officer to the Government and therefore, Exs.P15 and P16 cannot be overlooked.

xii) That the photos furnished by the plaintiff indicated that he had constructed a house in the suit property and had enclosed it by a compound wall.

xiii) That the plaintiff had paid tax to the Panchayat and therefore, the Panchayat had admitted the possession of the plaintiff in the suit property.

11. Being aggrieved by the aforesaid Judgment

and Decree of the First Appellate Court, the defendants

have filed this Regular Second Appeal.

12. This appeal was admitted to consider the

following substantial questions of law:

"i. Whether the plaintiff/respondent had proved his possessory title over the suit property based on documents to which the plaintiff was not a party?

ii. Whether the First Appellate Court committed an error in mis-construing Exs.P.15 and 16 and holding that it was the plaintiff who was in possession of the suit property, though the said

exhibits related to persons named Munishamappa, Bylappa, Nagoji Rao and Narasimaiah, Hanamantappa?

iii. Whether the suit for injunction was maintainable against the defendant without complying the requirement of Section 289 of the Karnataka Panchayath Raj Act, 1993?"

13. The learned counsel for the

appellant/defendant No.1 submitted that except Ex.P15,

the other documents did not relate to the suit property.

He submitted that Ex.P15 - mahazar/panchanama and

Ex.P16 - report were a record of an inspection conducted

by an officer in a proceeding before the Assistant

Commissioner. He submitted that except a stray

statement in the mahazar, there was nothing else to

establish that the plaintiff was in possession. He also

submitted that the contents of the mahazar was not

proved by cogent and acceptable evidence before the Trial

Court. He further submitted that as per the case of the

plaintiff, the plaintiff was in possession of one portion of

khaneshumari No.5 and the other portion was in

possession of Smt. Radha. He submitted that the portion

that was in possession of Smt. Radha was sold by her in

terms of Ex.D6 which did not indicate that the plaintiff was

in possession of the adjacent portion of the site in

khaneshumari No.5. He also submitted that the plaintiff

did not produce any document to show that he was in

possession of the suit property though it was contended

that the plaintiff was in possession of the suit property for

over 50 years. He submitted that the photographs marked

before the Trial Court related to the suit property, but the

said building and the compound found therein was erected

by the defendants. The learned counsel submitted that the

First Appellate Court perversely considered the evidence

and treated the documents produced by the plaintiff as if it

related to the suit property while it did not. He, therefore,

submitted that the Judgment and Decree of the First

Appellate Court being an erroneous finding on a question

of fact, based on an erroneous assumption of the evidence

on record deserves to be set aside.

14. Per contra, the learned counsel for the

plaintiff-respondent submitted that the defendants had

failed to plead substantial questions of law in the appeal

filed before this Court, but pleaded the same in a separate

sheet of paper that was annexed to the appeal

memorandum. He submitted that this is an error and that

should result in dismissal of the appeal. In this regard, he

relied upon the judgment of this Court in CHONDANA

GOPALA VS. CHONDANA MONNAPPA [ILR 1986 Kar

994]. He also relied upon the judgments of the Apex

Court in SASIKUMAR AND OTHERS vs. KUNNATH

CHELLAPPAN NAIR AND OTHERS [(2005) 12 SCC 588 ]

and in B.C. SHIVASHANKARA vs. B.R. NAGARAJ [2007

(3) Kar.L.J. 48 (SC)]. He next contended that even if the

First Appellate Court had decided a question of fact

wrongly or erroneously, that would not give rise to a

substantial question of law. In this regard, he relied upon

the judgment of the Apex Court in BABULAL AND

OTHERS vs. SHANKAR LAL AND OTHERS [2008(17)

SCC 638]. He contended that the defendants were not the

owners of the suit property and therefore, he was entitled

to protect his possession against the whole world except

the owner. He submitted that Ex.P15 clearly indicated that

the plaintiff was in possession of the suit property and this

being a document prepared in the course of performance

of official duty, has presumptive value and therefore, the

First Appellate Court rightly decreed the suit. That the

finding recorded by the First Appellate Court is a pure

question of fact which does not give rise to a substantial

question of law and therefore, this Court may not interfere

with the findings recorded by the First Appellate Court. He

further dilated and submitted that possession being a

visible badge of ownership cannot be considered lightly by

the Courts and therefore, when the plaintiff had

established that he was in possession of the suit property,

every endeavour should be made by the Courts to protect

such possession. He relied upon the judgment of the Apex

Court in SOMNATH BURMAN vs. DR. S.P. RAJU AND

ANOTHER [1969(3) Supreme Court Cases 129] as well as

the judgment of this Court in SMT. JAYAMMA

VENKATRAM AND ANOTHER vs. SMT. ASHRAF JAHAN

BEGUM AND ANOTHER [2020 (3) KCCR 1966]. He also

relied upon the judgment of the Apex Court in

M.KALLAPPA SETTY vs. M.V. LAKSHMINARAYANA

RAO [AIR 1972 SC 2299] to buttress his arguments. He

also contended that a mere inadvertent error found in any

document does not result in a substantial question of law

for consideration. In this regard, he relied upon the

judgment of the Apex Court in in JANGBIR vs. MAHAVIR

PRASAD GUPTA [AIR 1977 SUPREME COURT 27].

15. I have considered the submissions made by

learned counsel for the plaintiff and defendant No.1. I

have also perused the records of the Trial Court, the

Judgment and Decree of the Trial Court and the impugned

Judgment and Decree of the First Appellate Court.

16. In a suit for perpetual injunction based on

possession, the plaintiff is bound to produce all the

material documents available with him to establish that he

is in actual possession. He is bound to prove all

circumstances to evidence his possession. This is all the

more necessary when the suit is filed by a person claiming

to be in settled possession against a person who is

allegedly not the owner. The claim of settled possession is

not akin to mere possession. A person having no title to

the property can still claim to be in settled possession, if

such possession is for a long time without being disturbed

by any person whomsoever. Though it was pleaded in the

plaint that the plaintiff was the owner of the suit property,

the learned counsel fairly submitted that the plaintiff was

not the owner but he was in long settled possession of the

suit property. The plaintiff claimed that he was in

possession for more than 50 years. He also contended that

just like him, another lady namely Smt.Radha was in

possession of the remaining portion of the land in

Khaneshumari No.5. The boundaries given to the suit

property indicates that the said Smt.Radha owned the

property in Khaneshumari No.5 on the eastern side.

17. If the documentary evidence placed on record

is perused, Ex.P.2 is resolution passed by the Panchayat in

terms of which the request made by Smt. Radha for

assessment of the property was accepted. Ex.P.3 is the tax

paid receipt in the name of H.Ravi, S/o. Hanumanthaiah,

likewise Exs.P. 4, 5, 6, 7 are the treasury deposit made by

Hanumanthappa. Exs.P. 8, 9, 10 and 11 are also the

receipts issued by the Panchayat regarding the house tax

in favour of H.Ravikumar, S/o Hanumanthappa. Ex.P.12 is

yet another tax paid receipt favouring Smt.Radha. Ex.P.13

is the resolution passed by the Panchayat by which it set

at naught, the khatha in the name of Smt. Radha and

Hanumanthaiah and collection of tax in respect of the

property bearing khaneshumari No.5. Ex.P.14 is an

endorsement issued in case No.V.P.C.(A)/8/83 calling upon

Smt.Radha to appear before the Assistant Commissioner,

Doddaballapura. Ex.P.15 is the Mahazar drawn by the

Administrator of Taluk Development Board, Nelamangala.

Ex.P.16 is the report of the Panchayat Development Officer

of Nelamangala Taluk. Ex.P.17 is an order passed by the

Assistant Commissioner, Bengaluru Sub-division,

Bengaluru in case No.VPC.214/1986 filed by Smt.Radha

against the Administrator of Dasanapura Village Panchayat

and the person named Sri P.Mallaiah and in case

No.V.P.C.46/1987-88 filed by the Administrator,

Dasanapura Village Panchayat against Smt. Radha.

Ex.P.18 is another endorsement issued in case No.VPC

214/1986 & VPC No.46/87-88 between Smt.Radha and the

Village Panchayat, Dasanapura. Ex.P.19 is yet another

endorsement in case No.VPC/Appeal/20:1991-92 filed by

Smt.Radha against the Administrator, Dasanapura Grama

Panchayat. Ex.P.20 is an endorsement in case No.VPC

Appeal 1991-92 dated 05.04.1994. Ex.P.21 is an order

passed by this Court in W.P.No.22303/1994 filed by

Dasanapura Grama Panchayat against Smt.Radha. Ex.P.22

is a complaint lodged by the plaintiff and his daughter to

the Police Inspector of Nelamangala police station. Ex.P.23

is an acknowledgement issued by the concerned police,

while Exs.P.24 to 29 are the photographs. Ex.P.30 is the

tax paid receipt standing in the name of the plaintiff.

Ex.P.31 is another complaint lodged by the plaintiff and his

daughter before the jurisdictional police against the

defendants herein.

18. A perusal of the aforesaid documentary

evidence would indicate that except Exs.P.15, 24 to 30, all

the other documents related to the properties of either

Smt.Radha or Hanumanthappa. Learned counsel for the

plaintiff did not dispute this fact. As a matter of fact,

P.W.1 deposed in her evidence that "¤.¦.2 jAzÀ 20 zÁR¯ÉUÀ¼À£ÀÄß

gÁzsÁ J£ÀÄߪÀªÀgÀÄ ªÁ¢UÉ PÉÆnÖgÀÄvÁÛgÉ." Thus, the only documents that

relate to the claim of the plaintiff are the mahazar at

Ex.P.15, the photographs at Ex.P.24 to 29, complaints to

the police at Ex.P.22, 23, 31, tax paid receipt at Ex.P.30.

Out of the aforesaid, Exs.P.22, 23, 24 to 29, 30 and 31

could certainly not establish the possession of the plaintiff.

Thus, the only document was Ex.P.15 which was an

unilateral/unverified statement made in a mahazar drawn

in a proceedings between Radha and the defendants which

related to the property of Radha.

19. A perusal of Ex.P.15 would indicate that this

was the report submitted by the Administrator of Taluk

Development Board, Nelamangala Taluk pursuant to the

direction issued by the Assistant Commissioner,

Doddaballapura in case No.VPC.CR.106-1983-84. In that

report it is stated as follows;

"SÁ£ÉõÀĪÀiÁj £ÀA.5gÀ §UÉÎ £ÁªÀÅ ºÉüÀĪÀÅzÉãÉAzÀgÉ £ÀªÀÄä ªÀiÁPÀ½ GgÀÄ¥ï vÉÆgÉ bÀvÀæ UÁæªÀÄzÀ ¥ÀÆgÀé¢AzÀ®Æ eÉÆÃrUÁæªÀĪÁVzÀÆÝ ¸ÀzÀj UÁæªÀĪÀÅ eÉÆÃrzÁgÀjAzÀ £ÁUÉÆÃfgÁªï ªÀÄvÀÄÛ CªÀgÀ ¸ÀAvÀwAiÀĪÀjUÉ ¸ÉÃjzÀÆÝ. F UÁæªÀÄ ¸ÀPÁðgÀPÉÌ ¸ÉÃgÀĪÀªÀgÉUÀÆ AiÀiÁªÀ «zsÀªÁzÀ gÉªÉ£Æ À å ªÀÄvÀÄÛ ¥ÀAZÁ¬ÄÛ ¯ÉPÀÌUÀ½gÀĪÀÅ¢®è. 1960-61 PÉÌ »AzÉ ¸ÀzÀj d«ÄãÀ£ÄÀ ß eÉÆÃrzÁgÀjAzÀ £ÁUÉÆÃfgÁªï ªÀÄvÀÄÛ EzÉà UÁæªÄÀ zÀ SÁAiÀÄAªÁ¹UÀ½AzÀÝ ¨ÉÊ®¥Àà ªÀÄĤ¸ÁéªÄÀ ¥Àà PÉÆÃV®ÄgÁªÀÄAiÀÄå ºÁUÀÆ ºÀ£ÀĪÀÄAvÀ¥àÀgÀªÀgÄÀ ¸Áé¢üãÀzÀ°èzÆ À Ý CªÀgÉà C£ÀĨsÀ«¹PÉÆAqÀÄ §gÀÄwÛzÝÀ gÄÀ . F ¥ÉÊQ eÉÆÃrzÁgÀ £ÁUÉÆÃagÁªï gÀªÀgÄÀ ¥ÁwAiÀiÁVzÀÆÝ CªÀgÀ PÀÄlÄA§zÀªÀgÁUÀ° CxÀªÁ CªÀgÀ ªÀA±À¸ÛÀgÁUÀ° EgÀĪÀÅ¢®è ªÀÄvÀÄÛ eÉÆÃrzÁgÀgÀ eÉÆvÉAiÀÄ°è dAnAiÀiÁV C£ÀĨsÀ«¸ÀÄwÛzÝÀ PÉÆÃV®Ä gÁªÀÄAiÀÄå ªÀÄvÀÄÛ CªÀgÀ ªÀÄPÀ̼ÀÄ UÀļÀî¥àÀgÀªÀgÄÀ ¸ÀºÀ¥ÀwAiÀiÁVzÀÆÝ CªÀgÀ ªÀÄUÀ £ÀgÀ¹AºÀAiÀÄågÀªÀgÀÆ ªÀÄvÀÄÛ ºÀ£ÄÀ ªÀÄAvÀ¥àÀgÀªÀgÄÀ ¥ÁwAiÀiÁV CªÀgÀ ªÀÄUÀ ªÀÄĤAiÀÄ¥ÀàgÀªÀgÀÆ ¸ÀºÀ¥ÁwAiÀiÁVzÀÆÝ CªÀgÀ ªÀÄUÀ ºÀ£ÀĪÀÄAvÀ¥ÀàgÀªÀgÀÄ FUÀ ºÁ° EzÀÆÝ ¸ÀzÀj ¸ÀéwÛUÉ ºÁ° ¨ÉÊ®¥Àà,

ªÀÄĤ¸ÁéªÀÄ¥Àà, £ÀgÀ¹AºÀAiÀÄå ªÀÄvÀÄÛ ºÀ£ÄÀ ªÀÄAvÀ¥àÀgÀªÀgÀÄ ºÀPÀÆÌzÁgÀgÁVgÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀévÄÀ Û ¥ÀÆgÀé ¥À²ÑªÄÀ 155 Cr ªÀÄvÀÄÛ GvÀÛgÀ zÀQët 215 Cr GzÀÝUÀ®«zÀÄÝ »AzÉ EzÀgÀ°è PÀ°è£À°è PÀnÖzÀ 65 CAPÀtzÀ MPÀÌ ªÀÄ£ÉUÀ½gÀĪÀ zÁR¯ÉUÀ½gÀÄvÀÛªÉ. ¸ÀzÀj eÁUÀªÀ£ÀÄß »AzÉ bÀvæÀ ªÀÄvÀÄÛ ªÁ¸ÀzÀ ªÀÄ£ÉUÀ½UÉ G¥ÀAiÉÆÃV¸ÀÄwÛzÀÝgÀÄ. FUÀ ¸ÀĪÀiÁgÀÄ ¨sÁUÀ ©zÀÆÝ ºÉÆÃVzÀÄÝ SÁ° d«ÄãÀÄ EgÀÄvÀÛzÉ. EzÀPÌÉ ªÉÄîÌAqÀ £Á®Æè d£ÀUÀ¼ÀÄ 1960-61£Éà ¸Á°¤AzÀ ¥ÀAZÁ¬ÄÛ PÀAzÁAiÀÄ PÀnÖPÆ É AqÀÄ C£ÀĨsÀ«¸ÀÄwÛgÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀéwÛUÉ ªÉÄîÌAqÀ £Á®ÄÌ d£ÀgÀ®èzÉ ¨ÉÃgÉ AiÀiÁgÀÆ ªÁgÀ¸ÄÀ zÁgÀjgÀĪÀÅ¢®è. ¸ÀzÀj d«Ää£À°è zÀQëtzÀ PÀqÉ ¥ÀÆgÀé ¥À²ÑªÄÀ ¸ÀĪÀiÁgÀÄ 50 Cr---155 Cr GzÀÝUÀ®zÀ°è ¨ÉÊ®¥Àà ©¯ï UÀļÀî¥Àà£ÀªÀgÀ ¸Áé¢üãÀzÀ°èzÀÆÝ EzÀgÀ°è MAzÀÄ aPÀ̪Á¸ÀzÀ ªÀÄ£É PÀnÖPÆ É AqÀÄ ªÁ¸ÀªÁVgÀÄvÁÛgÉ. "

20. The fact that Ex.P.15 was drawn by the

Administrator of Taluk Development Board was admitted

by D.W.1 in his cross-examination. However, the plaintiff

made no attempt to prove the contents of Ex.P.15. Even

otherwise this document went against the plaintiff in view

of the following observation contained therein. "SÁ£ÉõÀĪÀiÁj

5gÀ°è FUÀ gÀ« ªÀÄvÀÄÛ gÁzsÁ PÉÆÃA gÀ«gÀªÀgÄÀ MlÄÖ ¥ÀæzÉñÀPÉÌ ¸ÀÄvÀÛ®Æ PÀ®Äè

PÀA§UÀ¼À£ÀÄß £ÉnÖ ªÀÄļÀÄî vÀAw ¨ÉðAiÀÄ£ÀÄß ºÁQ¹PÉÆArzÀÆÝ EzÀgÀ°è ¸ÀéAvÀPÁÌV

»vÀÛ®Ä, PÀt ºÁUÀÆ ºÀÄ®Äè ªÉÄzÉAiÀÄ£ÀÄß ElÄÖPÉÆAqÀÄ C£ÀĨsÀ«¹gÀÄvÁÛgÉ."

However, except this document, the plaintiff who claimed

to be residing in the suit property for over fifty years and

that the house constructed in the suit property was

provided with electricity, he made no effort to mark any

documents to establish his possession over the suit

schedule property. The contention of learned counsel for

the plaintiff that Ex.P.15 was sufficient to establish the

possession cannot be accepted for the simple reason that

Ex.P.15 was never marked through the person who was

the author of the document. The defendants did not have

an opportunity to establish the correctness of the report

submitted. Ex.P.15 was only a corroborative piece of

evidence that had to be established by the plaintiff by

adducing acceptable independent evidence to establish his

possession over the suit schedule property.

21. The possession of the plaintiff cannot be

deduced from a document prepared in a revenue

proceeding to which the plaintiff was not a party and in

which the suit property was not the subject matter. To

claim the relief of perpetual injunction based on

possession, the same has to be established by

cogent/acceptable evidence, which the plaintiff miserably

failed.

22. In addition, the plaintiff claimed that a person

named Smt.Radha was in possession of the adjacent

portion of Khaneshumari No.5 on the eastern side of the

suit schedule property. This is belied by a sale deed dated

29.08.2001 (Ex.D.6) executed by Smt.Radha in respect of

a property in Kaneshumari No.5 which shows that the

plaintiff is nowhere in possession of any property on the

western side of her property, but is shown as the property

of Thimmarayappa. There is yet another circumstance

that is reflected from Ex.D.4 which is a sale deed executed

by plaintiff on 05.11.2004 in favour of Narasamma, by

which a site measuring 30X40 bearing Gramatana No.43

was sold. The western boundary is mentioned as 'School'

and the northern boundary is mentioned as 'Panchayth

Property'. This probabilises the claim of the defendants

that the plaintiff was granted a site at Makali Village which

was within the administrative limits of the defendants.

The P.W.1 who relentlessly claimed that this site was not

granted to plaintiff by the government, yielded up in cross-

examination where she deposed "It is true to suggest that

my father has sold his site situated at Makali Village,

Gramatana No.43 under a sale deed dated 05.11.2004 in

favour of Narasamma. The said property was granted to

my father by government". Therefore, the plaintiff has

cleverly attempted to lay a claim to the suit property by

trying to bank upon documents of Radha and other alleged

occupiers in Khaneshumari No.5. The Trial Court has

meticulously sieved the evidence and held that the plaintiff

has not proved his possession. However, the First

Appellate Court without looking into the documents, blindly

assumed that these documents related to the suit property

and decreed the suit. The casual approach of the First

Appellate Court is deprecated.

23. In that view of the matter, this Court is not

convinced about the possession of the plaintiff over the

suit schedule property.

24. A perusal of the judgment of the First

Appellate Court would demonstrate that the First Appellate

Court has misread the documents marked by the plaintiff,

as if it related to the suit property, though it did not. The

First Appellate Court must have restricted its examination

to Ex.P.15 which was only a mirage which created an

impression that the plaintiff was in possession of the suit

schedule property, which was really not conclusive. The

First Appellate Court therefore misdirected itself in holding

that the plaintiff was in possession of the suit property.

25. Consequently, the substantial questions of law

(i) and (ii) framed by this court is answered against the

plaintiff. In so far as the last substantial question of law is

concerned, the plaintiff alleged that the defendants

attempted to interfere with his possession and demolish

the compound wall etc. Therefore, the plaintiff could not

have waited for compliance of Section 289 of the Act of

1993. Hence, the non-issuance of a notice under Section

289 of the Act of 1993 was not fatal to the suit. Hence,

this question is answered in favour of the plaintiff.

26. Hence, the appeal is allowed and impugned

judgment and decree passed by the First Appellate Court

in R.A.No.203/2011 dated 10.10.2012 is set aside.

Consequently, the suit filed by the plaintiff in

O.S.No.680/2009 is dismissed.

The pending I.A.'s, if any, stand disposed off.

Sd/-

JUDGE

PN - from para No.15