Channa Somaiah vs A K Rajashekaraiah
2023 Latest Caselaw 6088 Kant

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                                                   NC: 2023:KHC:31267
                                                  RSA No. 337 of 2015




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 30TH DAY OF AUGUST, 2023

                                    BEFORE
                    THE HON'BLE MR JUSTICE ASHOK S.KINAGI
                    REGULAR SECOND APPEAL NO. 337 OF 2015
            BETWEEN:
            1.    CHANNA SOMAIAH
                  NOW DEAD BY HIS LRS


            1a. SMT.M.G.BHADRAMMA,
                W/O LATE CHANNA SOMAIAH,
                AGE 58 YEARS
            1b. SRI.A.C.MAHESH
                S/O LATE CHANNA SOMAIAH, AGE 35 YEARS

            1c.   SRI.RUDRESH A.C.
                  S/O LATE CHANNA SOMAIAH,
                  AGE 32 YEARS

Digitally   1d. SRI SOMANATH A.C.
signed by       D/O LATE CHANNA SOMAIAH,
ALBHAGYA        AGE 27 YEARS
Location:
HIGH
COURT OF    1e. SRI A.C. SHYLAJA
KARNATAKA       D/O LATE CHANNA SOMAIAH,
                AGE 33 YEARS

                 ALL ARE R/AT ALAKAPURA, THONDEBHAVI HOBLI,
                 GOWRIBIDANAUR TALUK,
                 CHICKBALLAPUR DISTRICT-561208.
                                                       ...APPELLANTS
            (BY SRI.H.N.BASAVARAJU, ADVOCATE (VK FILED)
            SRI.NAGESH, ADVOCATE (VK NOT FILED)
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                                         NC: 2023:KHC:31267
                                        RSA No. 337 of 2015




AND:

    A K RAJASHEKARAIAH
    S/O LATE KARIBASAPPA,
    AGED ABOUT 67 YEARS,
    R/O ALAKAPURA TALUK,
    GOWRIBIDNUR-561208.
                                              ...RESPONDENT
(BY SRI. P B AJIT & SRI.THONTADARYA.R.K, ADVOCATES)

     THIS   RSA    IS   FILED    U/S.  100   OF   CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
17-04-2010 PASSED IN O.S.NO.217/2008 ON THE FILE OF THE
LEARNED CIVIL JUDGE (JR.DN.) & JMFC, GOWRIBIDANUR, AND
ALSO THE JUDGMENT AND DECREE DATED 27/08/2013
PASSED IN R.A.NO.81/2010 ON THE FILE OF THE LEARNED
SENIOR CIVIL JUDGE & CJM, CHICKBALLAPUR AND ETC.,

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

This appeal is filed by the appellant challenging the

judgment and decree dated 17.04.2010 passed in

O.S.No.217/2008 by the Prl. Civil Judge (Jr.Dn.) and

JMFC, Gowribidanur and also the judgment and decree

dated 27.08.2013 passed in R.A.No.81/2010 by the Senior

Civil Judge and CJM, Chickballapur.

2. For the sake of convenience, the parties are

referred as per their ranking before the trial Court. The

NC: 2023:KHC:31267 RSA No. 337 of 2015

appellant is the plaintiff and the respondent is the

defendant.

3. The plaintiff filed a suit for permanent

injunction restraining the defendant from interfering into

the peaceful possession and enjoyment of the suit

schedule property. It is the case of the plaintiff that the

suit schedule property bearing No.329, measuring East-

West 9.5 meters and North-South 11.1 meters and

Assessment No.330, measuring East-West 32.8 meters

and North-South 13.1 meters, situated at Alakapura

Village, Gowribidanur Taluk are the ancestral properties of

the plaintiff. These properties are assessed vide

M.R.No.1/2005-06 dated 04.06.2005. There was a house

situated in the said suit schedule property and it was in a

dilapidated condition and the same was removed by the

plaintiff and he had put up construction in a portion of the

property. The defendant having no manner of right, title

or interest, is trying to interfere with the possession of the

NC: 2023:KHC:31267 RSA No. 337 of 2015

plaintiff. As such, the plaintiff filed the suit for permanent

injunction.

4. The defendant filed written statement

contending that the suit schedule properties are the

ancestral properties of the defendant consisting of

Khaneshmari jinjer Nos.159, 265, 266 and 167 of

Alakapura Village and katha in relation to property

Nos.159, 164 and 165 also standing in the name of

H.Somaiah who is senior uncle of the defendant. The

katha in relation to Khaneshmari No.167 was standing in

the name of Sri.Puttappa, the great grandfather of the

defendant and all the properties are assessed and new

assessment number was assigned as Khaneshmari jinjer

No.48. Upon such reassessment, Khaneshmari number

was assigned with new No.219 vide resolution No.8 dated

28.02.1990. It is contended that the plaintiff is not in

possession of the suit schedule property and that it is the

defendant who is in possession of the suit schedule

property.

NC: 2023:KHC:31267 RSA No. 337 of 2015

5. The trial Court, on the basis of the pleadings of

the parties, framed the following issues:

"1. Whether the plaintiff proves his possession over the suit property as on the date of suit?

2. Whether the plaintiff proves the alleged interference caused by the defendant?

3. Whether the plaintiff is entitled to the relief of injunction?

4. What order or decree?"

6. The plaintiff in order to prove his case

examined himself as PW.1 and got marked 30 documents

as Exs.P-1 to P-30. The defendant was examined as DW.1

and examined four witnesses as DWs.2 to 5 and got

marked 11 documents as Exs.D-1 to D-11.

7. The trial Court after considering the oral and

documentary evidence answered issue Nos.1 to 3 in the

negative and consequently, dismissed the suit of the

plaintiff by its judgment and decree dated 17.04.2010.

NC: 2023:KHC:31267 RSA No. 337 of 2015

8. The plaintiff aggrieved by the judgment and

decree passed by the trial Court preferred an appeal in

R.A.No.81/2010 on the file of the Senior Civil Judge and

CJM, Chickballapur. The First Appellate Court, after

hearing the parties, framed the following points for

consideration:

"1. Whether the judgment and decree passed by the trial Court is illegal, perverse, capricious and opposed to law and calls for interference by this Court?

2. What order?"

9. The First Appellate Court re-appreciation of

entire evidence, answered point No.1 in the negative.

Consequently, the appeal is dismissed by its judgment

dated 27.08.2013.

10. The plaintiff being aggrieved by the judgments

and decrees passed by the Courts below has filed this

second appeal.

11. Heard learned counsel for the plaintiff.

NC: 2023:KHC:31267 RSA No. 337 of 2015

12. Learned counsel for the plaintiff submits that

the Courts below have not properly considered the

documents produced by the plaintiff. He submits that the

plaintiff has produced revenue records to show that

plaintiff is in possession of the suit schedule property. He

submits that the findings recorded by the trial Court as

well as the First Appellate Court, that the plaintiff has not

examined adjacent land owner is contrary to the records.

Hence, he submits that the courts below could have drawn

a presumption under Section 133 of the Karnataka Land

Revenue Act 1964. The Courts below have committed

error in not drawing presumption under Section 133 of the

said Act. Hence, on these grounds, he prays to allow the

appeal.

13. Perused the records and considered the

submissions made by the learned counsel for the plaintiff.

14. The plaintiff was examined as PW.1 and he has

reiterated the plaint averments in the examination-in-chief

and in order to prove his possession, the plaintiff has

NC: 2023:KHC:31267 RSA No. 337 of 2015

produced documents marked as Exs.P-1 to P-30. Exs.P-1

and P-2 are the notices issued by the Deputy Registrar of

Co-operative Society to the father of the plaintiff. Ex.P-3

is the agreement executed between the father of plaintiff

and the office bearers of the Karnataka State Co-

operative, Agricultural and Rural Development Bank, Kolar

Branch. Ex.P-4 is the certified copy of the order passed in

M.R.No.1/2005-06. Ex.P-5 is the demand register extract

in respect of suit properties for the year 2005-06. Ex.P-6

is the demand register extract in respect of the suit

properties for the year 2008-09. Ex.P-7 is the building

licence issued in favour of plaintiff. Exs.P-8 to P-10 are

the tax paid receipts. Ex.P-11 is the NCR receipt issued by

the PSI, Manchenahalli Police Station. Ex.P-12 is the office

copy of the legal notice issued by the defendant to the

Secretary of the Grama Panchayath and the Executive

Officer, Taluk Panchayath. Exs.P-13 to P-15 are the postal

receipts to show the issuance of legal notices. Ex.P-16 is

the assessment register/extract of one Gangadharappa.

Ex.P-17 is the assessment register extract of one Bajantri

NC: 2023:KHC:31267 RSA No. 337 of 2015

Eramma. Ex.P-18 is the assessment register extract of

one Chikke Gowda. Ex.P-19 is the endorsement issued by

the Secretary, Alakapura Grama Panchayath. Ex.P-20 is

the information furnished by the Secretary, Alakapura

Grama Panchayath.

15. During the course of cross-examination of

PW.1, PW.1 has clearly admitted that the entries standing

in the name of the plaintiff was challenged by the

defendant by filing an appeal before the Executive Officer,

Taluk Panchayath. The Executive Officer has granted an

interim order staying the operation of the entries standing

in the name of the plaintiff. In the rebuttal, the defendant

was examined himself as DW.1 and also examined the

officials of the Grama Panchayat in order to establish that

the property bearing assessment No.330 of Alakapura

Village is corresponding to old Khaneshmari Nos.165, 166

and 167 of Alakapura Village and after re-survey, new

numbers have been given. The plaintiff has also produced

the said document marked as Ex.P-20. In order to

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NC: 2023:KHC:31267 RSA No. 337 of 2015

establish that the defendant is in possession of the

property, the defendant examined the adjacent land owner

of the suit schedule property wherein DWs.2 to 5 have

deposed that the plaintiff is not in possession of the suit

schedule property.

16. The trial Court placing reliance on the

documents produced by the plaintiff as well as defendant

has rightly observed that the entries stood in the name of

the plaintiff which has been stayed by the Executive

Officer and the plaintiff has failed to prove the possession

and enjoyment over the suit schedule property and also

the alleged interference caused by the defendant. The

First Appellate Court after re-appreciating the material on

record, has recorded a finding that the plaintiff has failed

to establish the possession over the suit schedule

property.

17. In the instant case, as rightly observed by the

First Appellate Court when the defendant has denied the

title of the plaintiff over the suit schedule property, the

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NC: 2023:KHC:31267 RSA No. 337 of 2015

plaintiff ought to have filed a suit for relief of declaration of

file without seeking relief of declaration. Hence the suit

filed by the Plaintiff is not maintainable. The plaintiff has

filed a mere suit for bare injunction. The Hon'ble Apex

Court in the case of Anathula Sudhakar vs. P.Buchi

Reddy (Dead) by LRs. & Others - (2008) 4 SCC 594,

held that mere suit for bare injunction without seeking for

a relief of declaration of title is not maintainable. In view

of the same, both the Courts below have concurrently

recorded a finding that plaintiff is not in possession of the

suit schedule property. Hence, I do not find any grounds

to interfere with the impugned judgments and decrees

passed by the courts below.

18. No substantial question of law arises for

consideration. Accordingly, appeal is dismissed.

Sd/-

JUDGE CA