A T Ganesh vs Sri Sidde Gowda
2022 Latest Caselaw 5340 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MARCH, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.481 OF 2022 ( INJ)

BETWEEN:

A T GANESH
S/O THIMMAIAH GOWDA
AGED ABOUT 44 YEARS
R/AT SRI LAKSHMI VENKATESHWARA
ENTERPRISES, K M ROAD
CHIKKAMAGALURU-577 901.
                                    ...APPELLANT
(BY SRI. SACHIN B S, ADVOCATE)

AND:

SRI. SIDDE GOWDA
S/O BASAVE GOWDA @ BANAVE GOWDA
AGED ABOUT 62 YEARS
AGRICULTURIST
R/AT KULARAHALLI VILLAGE
MARLE POST, CHIKKAMAGALURU-577 901.
                                  .....RESPONDENT

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2020
PASSED IN R.A. No.28/2020 ON THE FILE OF THE PRINCIPAL
SENIOR   CIVIL   JUDGE   AND    CJM,   CHIKKAMAGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 07.03.2020 PASSED IN O.S No.388/2013
ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU.
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     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

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

No.388/2013 challenging the concurrent finding of fact

recorded by both the Courts that the plaintiff is in

possession of the suit schedule property and that he is

entitled for perpetual injunction against the defendant.

2. The parties will henceforth be referred to as

they were arrayed before the Court of III Additional Civil

Judge and JMFC., Chikkamagaluru (hereinafter referred to

as the 'Trial Court'). The appellant was the defendant

while the respondent was the plaintiff before the Trial

Court.

3. A suit in O.S. No.388/2013 was filed for

perpetual injunction in respect of a residential site. It was

contended in the plaint that the plaintiff had purchased the

suit schedule property in terms of a sale deed dated

08.12.1993 from Sri Neelaiah. The plaintiff claimed that

after he purchased the suit property, a certain portion of it

was acquired for the purpose of a drainage and what

remained with him was 30' x (53+60)/2'. The plaintiff

alleged that the defendant offered to purchase the same,

which was refused by the plaintiff. Then in an attempt to

placate the plaintiff, the defendant attempted to trespass

and interfere with the possession of the plaintiff over the

suit property, which compelled the plaintiff to approach the

City Municipal Council and Chikkamagaluru Urban

Development Authority, who advised him to approach the

Civil Court. The plaintiff thereafter filed the present suit for

perpetual injunction to restrain the defendant from

interfering with his possession in the suit property.

4. The suit was contested by the defendant who

claimed that the suit was a counter blast to the suit filed

by him in O.S. No.42/2011. He alleged that he purchased

a property from Zulfikar Ali on 25.05.2009 and that he was

in possession of the same and that he had raised a loan by

mortgaging the said property with Syndicate Bank,

Chikkamagaluru. He alleged that the plaintiff attempted to

trespass into his property, which compelled him to lodge a

complaint with the police and thereafter, he filed a suit to

protect his right in the property. He alleged that the

boundaries mentioned in the plaint were not correct and

hence, prayed that the suit be dismissed.

5. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether the plaintiff proves that he is absolute owner in possession and peaceful enjoyment of the suit schedule property?

2. Whether the plaintiff proves that the alleged interference from the defendant?

3. Whether the plaintiff is entitled for relief as claimed in the plaint?

4. What order or decree?"

6. The case was set down for trial. The plaintiff

was examined as PW.1 and he marked documents as

Exs.P1 to P16. He also examined two witnesses as PWs.2

and 3. The defendant was examined as DW.1 and he

marked documents as Exs.D1 to D5.

7. Based on the oral and documentary evidence,

the Trial Court held that the plaintiff has proved his title to

the suit schedule property, in terms of the sale deed dated

08.12.1993, the Trial Court decreed the suit and granted

perpetual injunction.

8. Being aggrieved by the aforesaid Judgment

and Decree, the defendant filed Regular Appeal

No.28/2020.

9. The First Appellate Court (Court of the Principal

Senior Civil Judge and CJM., Chikkamagaluru) secured the

records from the Trial Court, heard the learned counsel for

parties and framed the following points for consideration:

"(1). Whether the appellant has established that this respondent is a different person and not the person mentioned in Ex.P1 sale deed ?

(2) Whether appellant has established that Ex.P5 demand register extract is created and fabricated document?

(3) Whether the judgment and decree of the trial court suffers from any illegality or irregularity and as such calls for interference by this court in this appeal?

      (4)    What order or decree?"

and   in    terms   of   its   Judgment    and     Decree    dated

06.10.2020, dismissed the appeal.

10. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

      11.    The         learned       counsel         for     the

appellant/defendant       submitted     that     the   boundaries

mentioned in the schedule to the suit related to some

other property than the one claimed by the plaintiff and

therefore, the property described in the schedule was non-

existent. The learned counsel drew the attention of this

Court to the boundaries mentioned in the schedule to the

suit in O.S. No.388/2013 as well as the boundaries

mentioned in the schedule to the suit in O.S. No.42/2011

and contended that both the properties were different.

12. The learned counsel also contended that Trial

Court and the First Appellate Court granted perpetual

injunction in favour of the plaintiff only in view of the

default committed by the defendant in not furnishing

documentary evidence to establish his possession over the

suit property.

13. I have perused the Judgment/s and Decree/s

passed by the Trial Court as well as the First Appellate

Court.

14. It is seen from the Judgment of the Trial Court

that the plaintiff claimed title to the suit property in terms

of a sale deed dated 08.12.1993 (Ex.P1) and that the

revenue records indicated that he was in possession of the

suit property.

15. On the other hand, the defendant produced

Ex.D1, which is the certified copy of the sale deed dated

25.05.2009 executed by Sri M.Zulfikar Ali in favour of the

defendant. He also placed on record certified copy of the

mortgage deed dated 01.12.2010 (Ex.D2) executed by him

in favour of Syndicate Bank and certified copy of the

agreement of sale dated 29.09.1997 (Ex.D3) executed by

Sri D.K.Krishnamurthy and his wife Smt.Nethravathi in

favour of Smt. K.R.Vanamala. The Trial Court compared

the schedule mentioned in the sale deed Ex.P1 with the

boundaries mentioned in the schedule to the suit and held

that the boundaries tallied. The Trial Court drew the

presumption under Section 49 of the Registration Act,

1908 and held that the plaintiff had proved his title to the

suit property and therefore was deemed to be in

possession of the suit property and thus, granted perpetual

injunction. The First Appellate Court also considered the

sale deed at Ex.P1 and compared the boundaries

mentioned therein with the boundaries mentioned in the

schedule to the suit and also considered the evidence of

PWs.2 and 3, who deposed that it is the plaintiff who is in

possession of the suit property. The First Appellate Court

perused Ex.P11 which was the mutation register extract

which indicated that Sri Neelaiah was a tenant in respect of

the land in Sy. No.507/1 of Hiremagaluru village and that

the Land Tribunal granted the same to Sri Neelaiah who

thereafter sold the suit property to the plaintiff. The First

Appellate Court therefore held that the plaintiff had proved

the title of his vendor and hence, did not consider it

appropriate to disturb the findings recorded by the Trial

Court. This Court also does not feel it necessary to disturb

the concurrent finding of fact recorded by both the Courts.

Hence, the Appeal filed by the defendant is dismissed.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma