Mr Sidda vs Varadanayaka @ Varadaiah
2023 Latest Caselaw 5165 Kant

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                                                     NC: 2023:KHC:26919
                                                       RSA No. 1896 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 2ND DAY OF AUGUST, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1896 OF 2017 (INJ)

                   BETWEEN:

                   1.    MR. SIDDA
                         AGED ABOUT 53 YEARS
                         SON OF LINGAMMA AND SIDDANAYAKA
                         BASTHIPURA VILLAGE,
                         KOLLEGALA TALUK
                         CHAMARAJANAGAR DISTRICT-571 438.
                                                              ...APPELLANT

                              (BY SRI RAJAGOPAL T.R., ADVOCATE FOR
                                  SRI B.R.VISWANATH, ADVOCATE)
                   AND:

                   1.    VARADANAYAKA @ VARADAIAH
                         AGED ABOUT 60 YEARS
                         SON OF NARAYANA @ NARAYANI
Digitally signed
by SHARANYA T            DODDAPARIVARA STREET,
Location: HIGH           KOLLEGALA TALUK
COURT OF                 CHAMARAJANAGARA DISTRICT-571 438.
KARNATAKA
                                                              ...RESPONDENT

                         THIS RSA IS FILED U/S. 100 OF CPC, 1908 AGAINST THE
                   JUDGMENT AND DECREE DTD: 04.04.2017 PASSED IN
                   R.A.NO.12/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
                   AND JMFC, KOLLEGALA,        DISMISSING THE APPEAL AND
                   CONFIRMING THE JUDGMENT AND DECREE DTD: 19.12.2015
                   PASSED IN O.S.NO.53/2009 ON THE FILE OF THE ADDITIONAL
                   CIVIL JUDGE AND JMFC, KOLLEGALA.

                        THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                           NC: 2023:KHC:26919
                                             RSA No. 1896 of 2017




                               JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. This appeal is filed against the judgment and

decree dated 04.04.2017 passed in R.A.No.12/2016 on the file

of the Senior Civil Judge and JMFC, Kollegala, dismissing the

appeal and confirming the judgment and decree dated

19.12.2015 passed in O.S.No.53/2009 on the file of the

Additional Civil Judge and JMFC, Kollegala.

3. The appellant-plaintiff has filed the suit for the relief

of declaration of possessory rights and consequential relief of

permanent injunction restraining the defendant from interfering

with the peaceful possession of the plaintiff over the suit

schedule property.

4. The defendant appeared and filed the written

statement before the Trial Court and the Trial Court having

considering both oral and documentary evidence i.e., the

evidence of P.Ws.1 and 2 and D.W.1 and Exs.P1 to 44,

considered the matter on merits and comes to the conclusion

that, earlier the plaintiff had also filed the suit for the relief of

NC: 2023:KHC:26919 RSA No. 1896 of 2017

permanent injunction and not proved the possession and

hence, the suit was dismissed. Against the said judgment, he

also filed the appeal before the Senior Civil Judge and JMFC,

Kollegala which is numbered as R.A.No.12/2016 and the same

also came to be dismissed and no appeal is filed against the

said judgment and the same has attained its finality.

5. The Trial Court, while dismissing the suit, in Para

No.27, comes to the conclusion that, when the plaintiff has

sought the declaratory relief of possessory right, he has not

established the same and in Para No.29, observed that the

plaintiff has not placed any documents to show that he is in

possession of the suit property. He claimed injunction based on

the orders passed by the Land Tribunal in favour of Lingamma

but, he failed to establish that he is the adopted son of

Lingamma and Siddanayaka and also failed to establish that he

is in possession of the suit property on the date of filing of the

suit. The documentary evidence prevails over the oral evidence

and the document placed before the Court does not establish

that he is in possession of the suit property. Hence, the Trial

Court comes to the conclusion that, in the absence of any

documentary proof with regard to the possession as well as

NC: 2023:KHC:26919 RSA No. 1896 of 2017

possessory right, the question of granting the relief of

declaration does not arise.

6. The Appellate Court also having considered the

grounds urged in the appeal also discussed in detail particularly

reasoning given by the Trial Court, taken note of the material

available on record, particularly in paragraph No.20 comes to

the conclusion that plaintiff in the suit plaint has admitted the

ownership of defendant over the suit schedule property, but he

claims that he has been in possession and enjoyment of the

suit schedule property and the same is also discussed earlier

and plaintiff has failed to adduce any sufficient documents to

prove his long standing possession over the suit schedule

property and also considering the documents which have been

produced comes to the conclusion that the very possession has

not been proved and claiming right only on the basis of entry of

name of Lingamma in the RTC of the said property, the

possession of the plaintiff as on the date of institution of the

suit or prior to it cannot be presumed and having taken note of

the reasoning given by the Trial Court as well as both oral and

documentary evidence, the First Appellate Court also comes to

the conclusion that the plaintiff has mainly based his suit for

NC: 2023:KHC:26919 RSA No. 1896 of 2017

declaration on the ground of his long standing possession over

the property. The plaintiff claims to have acquired his

possessory right only on the basis of his long standing

possession over the suit schedule property and he failed to

prove his long standing possession over the suit property, the

question of acquiring alleged possessory right over the suit

property does not arise and hence comes to the conclusion that

the appellant-plaintiff is not entitled for the relief of declaration

of his possessory right over the suit schedule property and

hence on appreciation of both oral and documentary evidence,

the First Appellate Court is the statutory appellate Court which

considered both question of fact and question of law and did

not find any ground to reverse the finding of the Trial Court.

7. When such being the case, the question of

considering the second appeal does not arise. When there is no

substantive question of law to consider the same and both

Courts given finding on the material available on record and

this Court can consider only the substantive question of law, if

the materials are not considered by the Trial Court as well as

the First Appellate Court and ignored both oral and

NC: 2023:KHC:26919 RSA No. 1896 of 2017

documentary evidence by both the Courts while invoking

Section 100 of CPC and hence, I do not find any merit to admit

the second appeal.

Hence, the appeal is dismissed. In view of dismissal of

the appeal, I.A.No.1/2017 does not survive for consideration

and the same is also dismissed.

Sd/-

JUDGE

ST/AP