Mr. Mohan Mestha vs Sri. John Santan Pinto
2023 Latest Caselaw 5881 Kant

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                                                            NC: 2023:KHC:30410
                                                           RSA No. 373 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 23RD DAY OF AUGUST, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 373 OF 2017 (RES)

                   BETWEEN:

                   1.    MR. MOHAN MESTHA
                         S/O. VENKATESH MESTHA,
                         AGED ABOUT 59 YEARS,
                         R/O. GUJJADI VILLAGE AND POST,
                         KUNDAPURA TALUK-576201.


                                                               ...APPELLANT
                             (BY SRI. K PRASANNA SHETTY.,ADVOCATE)
                   AND:

                   1.    SRI. JOHN SANTAN PINTO
                         S/O. SMT.JANILA PINTO,
                         AGED ABOUT 61 YEARS,
Digitally signed
by SHARANYA T            R/O. GANGOLLI VILLAGE AND POST,
Location: HIGH           KUNDAPURA TALUK-576201.
COURT OF
KARNATAKA

                                                              ...RESPONDENT
                              (BY SRI.H.JAYKARA SHETTY .,ADVOCATE)
                        THIS R.S.A IS FILED U/S. 100 OF CPC., AGAINST THE
                   JUDGEMENT & DECREE DTD 11.11.2016 PASSED IN R.A.NO.
                   22/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE
                   KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE
                   JUDGEMENT AND DECREE DTD:21.09.2010 PASSED IN
                   OS.NO.75/2003 ON THE FILE OF THE IInd ADDL. CIVIL JUDGE
                   AND JMFC., KUNDAPURA.
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                                                    NC: 2023:KHC:30410
                                               RSA No. 373 of 2017




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

Heard the learned counsel for appellant and learned

counsel for respondent.

2. The appellant has filed a suit in OS No.23/2003 for

the relief of permanent injunction and respondent herein has

filed a suit for possession in OS No.75/2003. The case of the

plaintiff before the Trial Court in OS No.23/2003 is that he is in

possession in Sy.No.133/11. On the other hand it is the

contention of the plaintiff in OS No.75/2003 that defendant is a

tenant in respect of 'A' schedule property and he is paying rent

of Rs.400/- and arrears of rent also. The tenancy has been

terminated and he is the owner of the property in

Sy.No.133/14 and he is entitled for possession of suit schedule

property.

3. The Trial Court having considered the pleadings of

the parties has framed the issues whether the plaintiff is in

exclusive possession in OS No.23/2003 and any interference by

the defendant and similarly issues were framed in OS

No.75/2003 as whether there is a tenant relationship and in

NC: 2023:KHC:30410 RSA No. 373 of 2017

arrears of rent and whether he is entitled for suit 'A' schedule

property. The Trial Court considering both oral and

documentary evidence on record, comes to the conclusion that

the plaintiff in OS No.23/2003 i.e., appellant herein has not

proved that he is in possession in Sy.No.133/11 and he is in

possession of property in Sy.No.133/14 as claimed by the

respondent. Hence, the suit in O.S.No.23/2003 was dismissed

by the Trial Court and the appeal was filed against the decree

passed in O.S.No.75/2003.

4. The appellant has filed only an appeal in RA

No.22/2010 against the finding of OS No.75/2003 and the

appellant did not challenge the dismissal of suit in OS

No.23/2003. The First Appellate Court in RA No.22/2010 on re-

appreciation of both oral and documentary evidence, comes to

the conclusion that the finding given by the Trial Court is not

erroneous and the appellate Court has dismissed the appeal.

5. Being aggrieved by the said finding, the present

appeal is filed. The counsel for appellant mainly contend that

both the Courts have committed an error in coming to the

conclusion that the appellant is in possession of Sy.No.133/14

NC: 2023:KHC:30410 RSA No. 373 of 2017

and actually he is possession of Sy.No.133/11. The very finding

of both the Courts that the respondent is entitled for possession

is erroneous. The Court below has appointed the Surveyor as

Commissioner for surveying the property and the Commissioner

at the time of survey of the property has not answered the

questions which are raised by the appellant and also by his

counsel. The Commissioner has not at all find the survey stones

of the property of the plaintiff, except the commissioner report,

there is no other evidence of title furnished by the plaintiff.

6. It is also contended that the shops rooms are

situated in Sy.No.133/11 which is not belongs to the plaintiff.

The Court Commissioner has not followed the guidelines while

surveying the land in question. The Court Commissioner has

measured the land without ascertaining the boundary stone

which is fundamental error committed by the Court

Commissioner. Hence, this Court has to frame substantive

question of law as to whether the Courts below have committed

serious material irregularity and illegality in exercising the

jurisdiction while appreciating material evidence available on

record.

NC: 2023:KHC:30410 RSA No. 373 of 2017

7. The very finding of the Courts below that the

plaintiff is the absolute owner of the suit schedule property and

the defendant is in unauthorized possession of the suit schedule

property is erroneous and hence, this Court has to admit and

frame substantive question of law.

8. Per Contra, the counsel appearing for the

respondent would vehemently contend that when he had filed

the suit for permanent injunction claiming that he is in

possession in Sy.No.133/11 and the suit was dismissed and the

same is not challenged. But, they had challenged only the

judgment and decree passed in OS No.75/2003 and the First

Appellate Court on re-appreciation of both oral and

documentary evidence, rightly comes to conclusion that he is

possession of Sy.No.133/14 and not in possession in

Sy.No.133/11, such fact finding is given by both the Courts.

The appellate Court taken note of the appreciation made by the

Trial Court and did not find any perversity and rightly dismissed

the appeal. Hence, question of admitting the second appeal

does not arise.

NC: 2023:KHC:30410 RSA No. 373 of 2017

9. Having heard the appellant's counsel and also

counsel appearing for the respondent and it is not in dispute

that two suits are filed before the Trial Court. The appellant has

sought for permanent injunction in the suit OS No. 23/2003

claiming that he is possession of property in Sy.No.133/11.

Both the Courts have given finding that he is not in possession

of property in Sy.No.133/11 and considering both oral and

documentary evidence, the Trial Court has also having taken

note, while answering the Issue No.5 wherein the issue is with

regard to the possession as claimed by the respondent herein,

particularly taken note of admission given by him when he was

cross examined as PW1 in paragraph No.15 and 16, he had

given the admission that he is not in possession in

Sy.No.133/14 and also he is not having document to show that

where the property of Sy.No.133/11 is located and he has also

not known that where the property situates.

10. Having taken note of this, the Trial Court has

answered issue No.1 in the negative in OS No.23/2003. Both

the Courts have taken note of the commissioner report, the

surveyor has surveyed the land and found that this appellant is

in occupation of the premises of the property in Sy.No.133/14

NC: 2023:KHC:30410 RSA No. 373 of 2017

and relying upon the commissioner report, comes to the

conclusion that he is unauthorized occupation in Sy.No.133/14.

11. The First appellate Court has also on re-

appreciation of both oral and documentary evidence, since only

challenge is made with regard to the judgment and decree

passed in OS No.75/2003 and also the appellant has not

disputed the very ownership and he has not claimed any right

in respect of Sy.No.133/14. The appellate Court has taken note

of the claim made by the possession based on the title in

paragraph No.18 discussed with regard to the claim made by

the respondent and the First appellate Court on re-appreciation

of both oral and documentary evidence, apart from that the

answers elicited from the mouth of the witnesses was also

extracted, even the Commissioner who has been examined also

stated that he has not placed the boundary stones before

surveying the disputed land and also taken note of the

admission given by PW1, the surveyor has placed one boundary

stone and surveyed the suit property. No dispute with regard to

the fact that the surveyor has surveyed the suit property as per

FMB and also stated he has assisted the surveyor. The

appellate Court has also taken note of admission given by PW1

NC: 2023:KHC:30410 RSA No. 373 of 2017

on photographs and the Court Commissioner has submitted

Commissioner report which is marked as Ex.C1 and admitted

that existence of coconut trees and three fishing processing

tanks and same is also admitted by the PW1 in the cross

examination. Having considered all these materials and on re-

appreciation of evidence, the appellate Court comes to the

conclusion that the appellant has not made out any grounds to

reverse the finding of the Trial Court.

12. The main contention in the present second appeal

by the counsel for appellant that both the Courts have

committed serious material irregularity and finding in perverse.

In order to substantiate the same, no material is placed on

record that the material evidence has not been considered by

the Trial Court as well as the First Appellate Court in exercising

the jurisdiction of original jurisdiction and also the appellate

jurisdiction. Both the Trial Court and First Appellate Courts

have taken note of documentary evidence as well as the

admission elicited from the mouth of particularly the PW1 i.e.,

the appellant herein. He categorically admits that he has not

surveyed the land which he claims that he is in possession of

Sy.No.133/11. On the other hand, the survey report and the

NC: 2023:KHC:30410 RSA No. 373 of 2017

commissioner report which depicts that this appellant is in

possession of Sy.No.133/14 and hence, rightly passed an order

directing him to handover the vacant possession, though the

respondent claims that he was a tenant, but in order to

substantiate the same, no material was placed before the Court

and answered other issues in negative with regard to the

relationship of tenant, when such being the material on record,

I do not find any error committed by both the Courts to invoke

Section 100 of CPC to frame substantive question of law by

admitting the appeal and there is no merit to admit the present

appeal.

13. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of the dismissal of the main appeal, pending I.A does not survive for consideration.

Sd/-

JUDGE RHS