Karnataka High Court
Sri Thimmaiah vs Sri Y K Maraiah on 24 August, 2023
Bench: Jyoti Mulimani
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RSA No. 2273 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.2273 OF 2008 (INJ)
BETWEEN:
1. SRI THIMMAIAH
S/O LATE VENKATARAVANAIAH,
AGED ABOUT 55 YEARS,
2. SRI MARANARASAIAH
S/O KUMBINARASAIAH,
AGED ABOUT 63 YEARS,
3. SRI GOVINDARAJU
S/O BANGALORE MARAIAH,
AGED ABOUT 30 YEARS,
4. SRI NARASIMHARAJU
S/O MARAHANUMAIAH,
AGED ABOUT 28 YEARS,
5. SRI GOVINDARAJU
Digitally signed by S/O THIMMAIAH,
THEJASKUMAR N
Location: HIGH
AGED ABOUT 30 YEARS,
COURT OF
KARNATAKA ALL ARE R/O YALACHIGERE,
KOLALA HOBLI, KORATAGERE TALUK,
TUMKUR DISTRICT - 572 103.
...APPELLANTS
(BY SRI. NITISH., ADVOCATE FOR
SRI. K.V.NARASIMHAN., ADVOCATE)
AND:
1. SRI.Y.K.MARAIAH
S/O LATE KARETHIMMAIAH,
AGED ABOUT 50 YEARS,
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RSA No. 2273 of 2008
2. SMT.THIMMAKKA
W/O LATE THIMMAHANUMAIAH,
AGED ABOUT 45 YEARS,
BOTH ARE R/O YALACHIGERE,
KOLALA HOBLI, KORATAGERE TALUK,
TUMKUR DISTRICT - 572 103.
...RESPONDENTS
(BY SRI. P.NARAYANAPPA., ADVOCATE [ABSENT])
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Sri.Nitish., learned counsel on behalf of
Sri.K.V.Narsimhan., for the appellants has appeared in person.
As could be seen from the daily order sheet, the appeal
was listed on 17.08.2023 and 18.08.2023. On these days there
was no representation on behalf of respondents.
The appeal is listed today. Today also, there is no
representation on behalf of respondents.
2. This is an appeal from the Court of Civil Judge
(Sr.Dn.) and J.M.F.C., at Madhugiri.
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3. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Trial
Court.
4. The plaint averments are these:
It is stated that the plaintiffs are the owners in actual
possession and enjoyment of the suit schedule properties and
the Katha and Pahani is in the name of the plaintiffs. The suit
schedule properties are the inam lands and granted by the
Government to the father of the first plaintiff
Late.Karethimmaiah since 1960. It is contended that
defendants have no manner of right, title or possession over
the suit schedule properties interfered with their peaceful
possession and enjoyment of the suit schedule properties.
Hence, they sought the shelter under the Court of law and filed
a suit seeking the relief of permanent injunction.
After the service of the suit summons, the defendants 1,
2 & 4 to 6 have appeared through their counsel and filed their
joint written statement. They denied the plaint averments.
They also denied that the plaintiffs are the absolute owners in
exclusive possession of the suit schedule properties and the
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Katha and Pahani stands in their name. They contended that
suit schedule item No.1 was the "Olagada Inamthi" and suit
schedule item No.2 was "Thoti Inamthi". These two inams were
minor inams. It is also contended that original inamdars for suit
item No.1 were Thimmahanumaiah, Kariya and 11 others
including the defendants and for suit item No.2 inamdars were
Bylappa, Venkatamuthaiah and others including the
defendants. They specifically contended that during the year
1950, the persons who performed the duties are treated as
minor inams and they are registered as occupants under
Sections 7 & 8 of Inam Abolition Act, 1954. Since then
defendants have continued to be in possession of the suit lands
as registered occupants. The plaintiffs taking advantage of the
katha entry, made an application to change katha & pahani in
their favor on I.H.R basis. Among other grounds, they prayed
for dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues. To substantiate their claim, respective parties led-in
their evidence. The Trial Court vide Judgment & Decree
dated:16.10.2003, dismissed the suit. Aggrieved by the
Judgment and Decree of the Trial Court, an appeal was
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preferred before the Appellate Court. The First Appellate Court
set-aside the Judgment and Decree of the Trial Court. Hence,
this Regular Second Appeal is filed by the defendants under
Section 100 of CPC.
5. Learned counsel for the appellants has urged
several contentions. Heard, the contentions urged on behalf of
the appellants and perused the appeal papers and records with
utmost care.
6. The suit giving rise to this appeal was brought by
the plaintiffs seeking the relief of permanent injunction. As
could be seen from the nature of the lis between the parties,
the suit is one for bare injunction based on possession as on
the date of filing of the suit. The right to injunction is based on
prima-facie right. The plaintiff claiming relief of perpetual
injunction has to establish the breach of an obligation or
infringement of a legal right. The case put forth by the plaintiffs
was that they are the absolute owners of the suit schedule
properties and there is an interference by the defendants.
7. The Trial Court in extenso referred to the material
on record and concluded that plaintiffs have failed to establish
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that they are in exclusive possession of the suit schedule
properties as on the date of filing of the suit. The Trial Court
also held that plaintiffs have failed to prove that defendants
have unlawfully interfered with their peaceful possession and
enjoyment of the suit schedule properties. On an appeal, the
First Appellate court on an erroneous footing went ahead and
decreed the suit solely on the ground that defendants have
failed to establish that suit schedule lands are inamthi lands
and they are joint owners in possession of the suit schedule
properties, which in my opinion is totally unsustainable in law.
The reason is simple and apparent. The suit is one for bare
injunction. What is required to be considered is whether
plaintiffs have proved their prima-faice ownership and lawful
possession over the suit schedule properties as on the date of
filing of the suit. In the present case, the plaintiffs have failed
to prove that they are the exclusive owners in possession of the
suit schedule properties. Hence, placing the burden on the
defendants to prove their joint ownership and possession over
the suit schedule properties is untenable.
8. It is pivotal to note that earlier record of rights
reveals that the suit schedule properties are inamthi lands and
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it was granted in favor of eleven persons. It is not in dispute
that in the year 1969-70, the plaintiffs made an attempt to
change the katha into their name. The Tahasildhar rejected
their claim. Again in the year 1993-94 they made one more
attempt to change the katha and the same was also rejected.
As things stood thus, in the year 1997-98 they made second
attempt to get the katha in their name on the basis of
inheritance and the officer concerned changed the katha. It is
relevant to note that the defendants questioned the change of
katha by filing an appeal before the Assistant Commissioner
and the order of the Tahasildhar was set-aside and the matter
was remanded to the Tahasildhar.
9. As already noted above, the suit schedule
properties are inamthi lands and it was granted in favor of
eleven persons including the defendants and hence, it can be
safely held that the plaintiffs at no point of time were in
exclusive possession of the suit schedule properties, much less
as on the date of the filing of the suit. This aspect of the matter
has been over-looked by the First Appellate Court. The
Appellate Judge on an erroneous approach shifted the burden
on the defendants to prove their joint ownership over the suit
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schedule properties and decreed the suit, which in my opinion
is incorrect. Furthermore, the Appellate Court has also erred in
shifting the burden on the defendants to prove their joint
possession over the suit schedule properties along with
Karethimmaiah who is the father of the first plaintiff. I may
venture to say that the First appellate Court has failed to have
regard to relevant considerations and disregarded the relevant
matters, in particular the law relating to permanent injunction.
10. The substantial questions of law are answered
accordingly.
11. The Judgment and Decree dated:03.07.2008
passed by the Civil Judge (Sr.Dn.) & J.M.F.C., at Madhugiri, in
R.A.No.148/2003 is set-aside.
12. Resultantly, the Regular Second Appeal is allowed.
Sd/-
JUDGE
TKN
