Karnataka High Court
T.D.R. Harishchandra vs Smt. T.D.C. Manjula on 30 August, 2023
Bench: H.P.Sandesh
-1-
NC: 2023:KHC:31088
RSA No. 751 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 751 OF 2017 (INJ)
BETWEEN:
1. T.D.R. HARISHCHANDRA
S/O LATE T.D.R. RANGAPPA GOWDA,
AGED ABOUT 69 YEARS,
R/O DWARAKA LODGE,
NEAR ANANDRAO CIRCLE,
BANGALORE-09.
...APPELLANT
(BY SRI PRUTHVI WODEYAR, ADVOCATE)
AND:
1. SMT. T.D.C. MANJULA
W/O H.N.SHYAMANNA,
Digitally signed AGED ABOUT 63 YEARS,
by SHARANYA T R/O HORABAILU, HEDDURU POST,
Location: HIGH THIRTHAHALLI TALUK-577432,
COURT OF
KARNATAKA SHIVAMOGGA DISTRICT.
2. SMT T.D.C. JAYANTHI
W/O H.K.SHESHAPPA,
AGED ABOUT 58 YEARS,
R/O HOSAKOPPA,
DYAMALAPURA POST,
THIRTHAHALLI TALUK-577432,
SHIVMOGGA DISTRICT.
3. T.D.C. GURAPPA GOWDA
S/O LATE T.D.M.CHINNAIAH GOWDA,
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RSA No. 751 of 2017
AGED ABOUT 61 YEAR,S
R/O TUDUR DODAMANE,
THIRTHAHALLI TALUK-577432,
SHIVAMOGGA DISTRICT.
...RESPONDENTS
(BY SRI ASHWATH C.M., ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 24.01.2015
PASSED IN R.A. NO.17/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., THIRTHAHALLI, DISMISSING THE
APPEAL CONFIRMING THE JUDGMENT AND DECREE DATED
10.02.2012 PASSED IN O.S. NO.142/2003 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC., THIRTHAHALLI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the appellant's counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case of the respondents
before the Trial Court that defendant is the adjacent owner
and plaintiffs have already fenced the property and defendant
made an attempt to encroach the same i.e. on 5.9.2003 and
hence filed the suit for the relief of bare injunction and the
Court also framed the issue with regard to possession as well
as interference is concerned and having considered both oral
and documentary evidence granted the relief of permanent
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RSA No. 751 of 2017
injunction and coming to the conclusion that defendant is
interfering with the possession of the plaintiffs. Being aggrieved
by the said judgment, an appeal was filed in R.A.No.17/2013
and the Appellate Court on considering the grounds urged in
the appeal, re-assessed the evidence both oral and
documentary comes to the conclusion that there is a specific
pleading and also the evidence of the witness is very clear with
regard to the interference and hence, dismissed the appeal.
Being aggrieved by the said judgment, present appeal is filed.
3. The counsel for the appellant vehemently contend
that both the Courts have committed an error in decreeing the
suit without appreciating the oral and documentary evidence,
pleadings and admissions and reasons assigned by both the
Courts are perverse and counsel also contend that the Trial
Court committed an error in decreeing the suit when the suit is
in contrary to Order 7 Rule 3 of CPC and plaintiffs have failed to
identify the suit schedule property and hence it requires
interference and admit and frame substantive question of law.
4. The counsel appearing for the respondents would
contend that both the Courts have given fact finding with
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RSA No. 751 of 2017
regard to the interference is concerned and now appellant
cannot contend that no material is placed with regard to the
interference is concerned and no substantive question of law.
5. Having heard the appellant's counsel and also the
counsel appearing for the respondents and having perused the
material on record, suit is filed for the relief of bare injunction
in respect of the property measuring 3 acres of land in
Sy.No.74/2 and clear boundary description is also given and
Court also comes to the conclusion that the property belongs to
the plaintiffs and defendant made an attempt to encroach upon
the same. Based on the pleadings of the plaintiffs, categorically
stated that on 5.9.2003 an attempt was made to encroach the
property of the plaintiff by the defendant i.e. appellant herein,
who is the adjacent owner and having taken note of the
pleadings as well as the oral evidence the Court comes to the
conclusion that an attempt is made to interfere with the
possession of the respondents herein and when such pleading
and evidence is available, the very contention of the appellant's
counsel that no interference is made out by the plaintiffs cannot
be accepted and both the Courts have given finding with regard
to interference is concerned, particularly considering the date of
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RSA No. 751 of 2017
interference which has been pleaded in the plaint and also
taking into note of both oral and documentary evidence, I do
not find any ground to admit the appeal and frame the
substantial question of law as contended by the appellant's
counsel and no ground to invoke Section 100 of CPC.
6. Hence, the appeal is dismissed.
Sd/-
JUDGE
AP
