Karnataka High Court
Mr Basavanagowda vs Mr. Mruthyunjaya on 4 August, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:27479
RSA No. 716 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 716 OF 2021 (INJ)
BETWEEN:
1. MR. BASAVANAGOWDA
S/O. SIDDAPPA TATTUR,
AGED ABOUT 50 YEARS,
R/O. INAM AGRAHARA
MUCHADI VILLAGE,
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT-577 428.
...APPELLANT
(BY SRI ABHISHEK K., ADVOCATE)
AND:
1. MR. MRUTHYUNJAYA
Digitally signed
by SHARANYA T S/O. SIADAPPA
Location: HIGH AGED ABOUT 54 YEARS,
COURT OF S/O. BASAVARAJAGOWDA
KARNATAKA
2. SHIVAPUTRAPPA
S/O. MAHADEVAPPA
AGED ABOUT 42 YEARS,
3. NAGARAJA
S/O. MAHADEVAPPA
AGED ABOUT 38 YEARS,
4. SURESH
S/O. MAHADEVAPPA
AGED ABOUT MAJOR,
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RSA No. 716 of 2021
ALL ARE R/O. AGRAHARAMUCHADI VILLAGE,
SHIKARIPURA TALUK
SHIVAMOGGA-577 428.
...RESPONDENTS
THIS RSA IS FILED UNDER 42 RULE (1) R/W. SEC.100
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
25.02.2020 PASSED IN R.A.NO.11/2019 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC AT SHIKARIPURA DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE
DATED 12.03.2019 PASSED IN O.S.NO.18/2013 ON THE FILE
OF THE C/C. PRINCIPAL CIVIL JUDGE AND JMFC,
SHIKARIPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. This appeal is filed against concurrent finding of the
Trial Court. The plaintiff has sought for the relief of injunction
to the extent of 20 guntas of land in Sy.No.112 which has been
described in the schedule. The Trial Court, having considered
both oral and documentary evidence placed on record, comes
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RSA No. 716 of 2021
to the conclusion that the plaintiff has only produced the
document of Ex.P1-Notice issued by the Tahsildar, Shikaripur
and no document is produced before the Trial Court to prove
that he is in possession of the property. The plaintiff is only
relying upon the document of Ex.P1 and even the officials of
the Revenue Department have not been examined in order to
prove the document of Ex.P1. Apart from that, no document is
placed before the Court to prove that he has been in possession
of the property, except the document of Ex.P1.
3. The Trial Court, having considered both oral and
documentary evidence placed on record, in Para No.18 comes
to the conclusion that in order to prove the possession, the
plaintiff has not produced any document and only relied upon
the document of Ex.P5 which is the decision of the Grama
Sabha and the same goes to show that the plaintiff is
cultivating in the suit survey to the extent of 2 acres which is a
forest land and the same is contrary to oral and documentary
evidence placed on record by the plaintiff and the claim is only
in respect of 20 guntas of land and not in respect of 2 acres as
set out in the document of Ex.P5. Hence, the Trial Court comes
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to the conclusion that plaintiff has not proved his possession to
grant the relief.
4. The First Appellate Court also, on re-appreciation of
both oral and documentary evidence placed on record, comes
to the conclusion in Para Nos.11 and 12 of the judgment that,
except the document of Ex.P1, no document is placed and in
order to prove the document of Ex.P1 also, none of the
witnesses, who belong to Revenue Department have been
examined. Apart from that, the First Appellate Court also taken
note of the document of Ex.P5 which came into existence in the
year 2015 and suit was filed in 2013 and document of Ex.P5
has come into existence after filing of the suit. Hence, not
accepted the case of the appellant and therefore, concurred
with the findings of the Trial Court.
5. Learned counsel for the appellant would vehemently
contend that the document produced is only Ex.P1 i.e., notice
issued by the Tahsildar and except that document, no
document is placed before the Court and prays this Court to
frame substantial question of law that both the Courts have
committed an error in not considering the document of Ex.P1
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and this Court has to frame substantial question of law. The
very contention of the learned counsel for the appellant cannot
be accepted.
6. It is settled law that when the plaintiff seeks for the
relief of permanent injunction in respect of the very property,
he has to place the document to show that as on the date of
suit, the property is standing in his name and admittedly, the
property belongs to Government and the same is also not
disputed by the plaintiff. In the absence of any documentary
evidence that he has been in possession and also document
relied upon by the plaintiff is only Ex.P1 and except the same,
nothing is placed on record and the same is also not proved by
examining the officials of the Revenue Department as observed
by the Trial Court and the First Appellate Court, the question of
framing substantial question of law invoking Section 100 of CPC
does not arise and this Court can frame substantial question of
law invoking Section 100 of CPC, if the material evidence is not
considered and ignored by both the Trial Court as well as the
First Appellate Court. Hence, I do not find any ground to admit
the appeal and frame substantial question of law.
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7. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
