Karnataka High Court
Smt. Sarojamma vs Smt Suvarnamma on 12 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 531 OF 2023
C/W
R.S.A NO. 853 OF 2023
IN RSA NO.531/2023
BETWEEN:
1. SMT. SAROJAMMA
W/O LATE CHANDRASHEKARA HANJI,
AGED ABOUT 63 YEARS,
R/AT HANJI CHANDAN SHEKAR NIVASA,
GANDHARVA NAGARA, NEW MANDLI,
SHIVAMOGGA-577202
2. SRI ARAVINDA HANJI
AGED ABOUT 45 YEARS,
R/AT HANJI CHANDAN SHEKAR NIVASA,
GANDHARVA NAGARA, NEW MANDLI,
SHIVAMOGGA-577202
...APPELLANTS
(BY SRI.VASANTH KUMAR H T, ADVOCATE)
AND:
SMT SUVARNAMMA ,
W/O LATE S BASAPPA,
SINCE DEAD BY HER LRS
2
1. K B MANJUNATHA
S/O LATE S BASAPPA,
AGED ABOUT 73 YEARS,
RTD EXECUTIVE ENGINEER, KEB,
APPAJI, 8TH BLOCK, 10TH CROSS,
SHARAVATHI NAGARA, SHIVAMOGGA-577201
2. SMT RATHNA
W/O DR BASAVARAJ,
AGED ABOUT 68 YEARS,
C/O SRINATHA BASAPPA KOLAMBI,
NO 18, WEITERIA COURT,
PINCATAWAY,
NEW JERSEY N.J.008854 USA
3. SMT POORNIMA
W/O MAHESH,
AGED ABOUT 55 YEARS,
C/O RTD EXECUTIVE ENGINEER, KEB,
APPAJI, 8TH BLOCK, 10TH CROSS,
SHARAVATHI NAGARA, SHIVAMOGGA-577201
4. SRINATHA BASAPPA KOLAMBI
S/O LATE S. BASAPPA,
NO 18, WEITERIA COURT,
PINCATAWAY,
NEW JERSEY, N J 008854 USA
5. SRI VIJAY KUMAR HANJI
S/O SRI VEERABHADRA HANJI,
SINCE DEAD BY HER LRS
SMT GOWRAMMA,
W/O LATE VIJAY KUMAR HANJI,
R/O DOOR NO 23, SRI VEERABHADRA,
1ST MAIN, II STAGE, DEVARAJ URS NAGARA,
SHIVAMOGGA-577006
3
6. SMT REKHA HANJI V
R/O DOOR NO 422, GANGA, 22ND MAIN,
2ND STAGE, J P NAGARA,
MYSORE-570008
7. SMT LEELA HANJI
D.NO 32, GANGA, 1ST CROSS, 1ST MAIN,
BASAVESHWARA NAGARA,
KENGERI, NEAR CHECK POST, MYSORE ROAD,
BANGALORE-560060
8. SMT PARVATHAMMA HANJI
C/O REKHA HANJI,
DOOR NO 42, GANGA, 22ND MAIN,
2ND STAGE, J P NAGARA,
MYSORE-570008
9. SMT SHAKUNTHALA HANJI
R/O DOOR NO 879, AKSHITHA NILAYA,
23RD MAIN, 2ND STAGE, J P NAGARA,
MYSORE-570008
10 . SRI PRAFULLACHANDRA HANJI V
S/O LATE VIJAY KUMAR HANJI,
R/O DOOR NO 23, SRI VEERABHADRA,
1ST MAIN, II STAGE, DEVARAJ URS NAGARA,
SHIVAMOGGA-577204
11 . SRI H V ANANDKUMAR
S/O VEERABHADRA HANJI,
RTD K.P.T.C.L. SENIOR ASSISTANT,
MIG 21, KHB COLONY, 1ST STAGE,
GOPALA, SHIVAMOGGA-577204
12 . SMT SHARADAMMA
W/O DINAKARA HANJI,
AGED ABOUT 68 YEARS
4
13 . SRI NATARAJA HANJI
S/O DINAKARA HANJI,
AGED ABOUT 43 YEARS
14 . SRI ASHOKA HANJI
S/O LATE DINAKARA HANJI,
AGED ABOUT 40 YEARS,
RESPONDENTS 12 TO 14 ARE
R/O LAXMIPURA VILLAGE, HOSHALLI THANDA,
THIRTHAHALLI ROAD
SHIVAMOGGA-577202
15 . SRI.H.V.SHIVASHANKAR,
S/O LATE SRI.VEERABHADRA HANJI
SINCE DEAD BY HIS LRS
SMT DR S ANITHA HANJI
D/O LATE H V SHIVASHANKARA,
AGED ABOUT 48 YEARS,
R/O NO 1777/4, MANDARA NILAYA,
2ND CROSS, 1ST MAIN, VINAYAKA EXTN
NEAR VIDYANAGARA,
DAVANAGERE-577005
16 . SMT DR SNEHA HANJI
D/O LATE H V SHIVASHANKARA,
AGED ABOUT 38 YEARS,
R/O NO 5658/0-15, 1ST FLOOR,
LIC COLONY, BEHIND NUTHAN COLLEGE,
DAVANAGERE-577005
17 . SMT ASHWINI SHARATH
AGED ABOUT 40 YEARS,
D/O CHANDRA SHEKARA HANJI,
C/O SIDDAPPA,
RTD FOROEST RANGE OFFICER,
6TH CROSS, 1ST STAGE, VINOBHANAGARA,
5
SHIVAMOGGA-577204
18 . SMT ANURADHA KUMARA SWAMI
W/O KUMARA SWAMI,
D/O CHANDRASHEKARA HANJI,
AGED 36 YEARS,
NO 395, C.R.P.F. COLONY,
YELAHANKA, DODDABALLAPURA ROAD,
BENGALURU-560064
19 . SMT USHA SIDDAPPA
D/O SRI VEERABHADRA HANJI,
W/O SIDDAPPA, (RTD FOREST RANGE OFFICER),
AGED 73 YEARS, 1ST STAGE,
6TH CROSS, VINOBHANAGARA,
SHIVAMOGGA-577204
20 . SMT GIRIJA ESHWAR
D/O SRI VEERABHADRA HANJI,
AGED ABOUT 68 YEARS,
W/O DR G H ESHWARAPPA,
DOOR NO 137, DEEPASHRI,
RAMAKRISHNA NAGARA,
MAZDOOR EMPLOYEES LAYOUT,
SHIVAMOGGA-577201
...RESPONDENTS
(BY SRI.R GOPAL, ADVOCATE FOR C/R1;
SRI.SANTHOSH.H.R, ADVOCATE FOR R20;
SRI.M.BHASKAR JOIS, ADVOCATE FOR R15)
THIS RSA IS FILED UNDER SECTION 100 R/W
ORDER 42 RULE 2 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 17.12.2022 PASSED IN RA.No.57/2015 ON
THE FILE OF THE I ADDITIONAL DISTRICT, JUDGE, C/C III
ADDITIONAL DISTRICT, JUDGE, SHIVAMOGGA,
DISMISSING THE APPEAL AND CONFIRMING THE
6
JUDGMENT AND DECREE DATED 15.10.2015 PASSED IN
OS No.98/2011 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, SHIVAMOGGA.
IN RSA NO.853/2023
BETWEEN:
SMT USHA SIDDAPPA
D/O VEERABHADRA HANJI
W/O DR G H ESHWARAPPA
AGED ABOUT 75 YEARS
R/O 1ST STAGE, 6TH CROSS
VINOBANAGAR
SHIVAMOGGA DISTRICT-577301
...APPELLANT
(BY SRI.DAYANAND S PATIL, ADVOCATE)
AND:
SMT SUVARNAMMA
W/O LATE S BASAPPA BY HER LRS
1. K B MANJUNATHA
S/O LATE S BASAPPA
AGED ABOUT 73 YEARS
RTD EXECUTIVE ENGINEER, KEB
R/O APPAJI, 8TH BLOCK, 10TH CROSS
SHARAVATHI NAGARA
SHIVAMOGGA-577201
2. SMT RATHNA
W/O DR BASAVARAJA
AGED ABOUT 70 YEARS
C/O SRINATH BASAPPA
KOLAMBI, NO 18, WEITERIA COURT
PINCATAWAMY, NEW JERSY
7
N J 008854 USA
3. SMT POORNIMA
W/O MAHESH
AGED 57 YEARS
C/O RTD EXECUTIVE ENGINEER, KEB
R/O APPAJI, 8TH BLOCK, 10TH CROSS
SHARAVATHI NAGARA
SHIVAMOGGA-577201
4. SRINATH BASAPPA KOLAMBI
S/O LATE S BASAPPA
AGED MAJOR
R/O NO 18, WEITERIA COURT
PINCATAWAY, NEW JERSY
N J 008854 USA
5. VIJAY KUMAR HANJI
S/O VEERABHADRA HANJI
BY HIS LRS
SMT GOWRAMMA
W/O LATE VIJAY KUMAR HANJI
AGE MAJOR
R/AT NO 23, SRI VEERABHADRA
1ST MAIN, II STAGE
DEVARAJ URS NAGARA
SHIVAMOGGA-577201
6. SMT REKHA HANJI
MAJOR
R/O NO 422, GANGA, 22ND MAIN
II STAGE, J P NAGARA
MSYORE-570008
7. SMT LEELA HANJI
W/O LATE S BASAPPA
MAJOR
8
R/AT NO 32, GANGA 1ST CROSS
1ST MAIN, BASAVESHWARA NAGARA
KENGERI, NEAR CHECK POST
MYSORE ROAD
BANGALORE-560039
8. SMT PARVATHAMMA HANJI
MAJOR
C/O REKHA HANJI
R/O NO 422, GANGA 22ND MAIN,
II STAGE, J P NAGAR
MYSORE-570008
9. SHAKUNTALA HANJI
MAJOR
R/AT NO 879, AASKHSITHA NILAYA
23RD MAIN, II STAGE
J P NAGARA, MSYSORE-570008.
10 . PRAFULLACHANDRA HANJI
MAJOR
R/O NO 23, SRI VEERABHADRA
1ST MAIN, II STAGE
DEVARAJ URS NAGARA
SHIVAMOGGA-577201
11 . H V ANANDKUMAR
S/O VEERABHADRA HANJI
AGED ABOUT 80 YEARS
RTD KPTCL, MIG 21
KHB COLONY, 1ST STAGE
GOPALA, SHIVAMOGGA-577201
12 . SMT SHARADAMMA
W/O DINAKARA HANJI
AGED ABOUT 62 YEARS
13 . NATARAJA HANJI
9
S/O LATE DINAKARA HANJI
AGED 38 YEARS
14 . ASHOK HANJI
S/O LATE DINAKARA HANJI
AGED 36 YEARS
RESPONDENT 12 & 14 ARE
R/AT LAXMIPURA VILLAGE
HOSAHALLI THANDA,
THIRTHAHALLI ROAD
SHIVAMOGGA-577201
15 . H V SHIVASHANKAR
S/O LATE SRI VEERABHADRA HANJI
SINCE DEAD BY HIS LRS
SMT DR S ANITHA HANJI
D/O SHIVASHANKARA
AGED ABOUT 51 YEARS
R/O 177/4, MANDARA NILAYA
2ND CROSS, 1ST MAIN
VINAYAKA EXTENSION
NEAR VIDYANAGAR
DAVANAGERE-577205
16 . SMT. DR S SNEHA HANJI
D/O SHIVASHANKARA
AGEDA BOUT 41 YEARS
R/OF 5658/0-15, 1ST FLOOR
LIC COLONY
BEHIND NUTHAN COLLEGE
DAVANAGERE-577005
17 . SMT ASHWINI SHARATH
D/O CHANDRASHEKARA HANJI
AGED 45 YEARS
C/O SIDDAPPA RTD R F O, 6TH CROSS
10
1ST STAGE, VINOBHA NAGARA
SHIVAMOGGA-577201
18 . SMT ANURADHA KUMARA SWAMI
W/O KUMARA SWAMI
D/O CHANDRASHEKR HANJI
AGED 31 YEARS
NO 395, CRPF COLONY
YELAHANKA
DODDABALLAPURA ROAD
BANGALORE-560095
19 . SMT. GIRIJA ESHWAR
D/O VEERABHADRA HANJI
W/O DR G H ESHWARAPPA
AGED ABOUT 62 YEARS
D NO 137, DEEPASHRI
RAMAKRISHNA NAGAR
MAZDOOR EMPLOYEES LAYOUT
SHIVAMOGGA-577201
20 . SMT SAROJAMMA
W/O LATE CHANDRASHEKARA HANJI
AGED ABOUT 63 YEARS
R/O HANJI CHANDAN
SHEKARA NIVAS, GANDHARAVA NAGARA
NEW MANDALI, SHIVAMOGGA-577201
21 . ARAVINDA HANJI
AGED 42 YEARS
R/O OF HANJI CHANDAN SHEKHAR NIVASA
GANDHARVA NAGARA
NEW MANDALI, SHIVAMOGGA-577201
...RESPONDENTS
(BY SRI.R GOPAL, ADVOCATE FOR R1 TO 4;
SRI.H.T.VASANTH KUMAR, ADVOCATE FOR R20 & 21)
11
THIS RSA IS FILED UNDER ORDER SECTION 100 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED
17.12.2022 PASSED IN RA.No.57/2015 ON THE FILE OF
THE I ADDITIONAL DISTRICT JUDGE, C/c III ADDITIONAL
DISTRICT JUDGE, SHIVAMOGGA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 15.10.2015 PASSED IN OS No.98/2011 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
SHIVAMOGGA.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.11.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by defendants 7 and
preferred RSA.No.531/2023 and defendant No.11 has
preferred an appeal in RSA.No.853/2023. It is
relevant to note that defendant No.11 has not
contested the suit by filing the written statement nor
has challenged the judgment and decree rendered by
the trial Court in O.S.No.98/2011.
2. For the sake of convenience the parties are
referred to as per their rank before the trial Court.
3. The facts leading to the case are as under:
Plaintiff has instituted the suit seeking the relief
of declaration that the suit schedule property is the
part and parcel of the property purchased by her
through registered sale deed dated 4.12.1953.
Plaintiff has specifically pleaded that the suit property
which comprises of a farm house with kana (thrashing
field) situated in Survey No.293 of Lakshmipura
Thanda, Hosahalli Village, measuring East 181 feet
North-South, West 159 feet North-South, North 228
Feet East-West, South 145 feet East-West is part and
parcel of Survey No.293. The present suit is filed
seeking declaration and possession of suit schedule
property. It is the specific case of the plaintiff that she
had permitted her brother Veerabhadra Hanji to
manage the agricultural lands owned by her totally
measuring 10 acres 25 guntas and the said
Veerabhadra Hanji, who was managing the lands was
residing in the suit farm house. Therefore, plaintiff
has contended that she has constructed farm house in
the suit schedule property and hence, sought for
recovery of possession which is based on title.
4. Defendants 7 and 8 on receipt of summons
contested the proceedings and stoutly denied the
averments made in the plaint. Defendants 7 and 8
disputed the claim of plaintiff that farm house is part
and parcel of Survey No.293. Defendants 7 and 8 on
the contrary contended that the farm house is situated
in panchayath area bearing No.132. The defendants
also contended that the present suit filed by the
plaintiff is barred by limitation as plaintiff has lost her
right over the property under Section 27 of the
Limitation Act.
5. Defendants 3 to 5 claimed that they have
perfected their title by way of adverse possession and
hence, sought for dismissal of the suit.
6. Plaintiff and defendants to substantiate
their respective claims have let in oral and
documentary evidence.
7. Trial Court having taken cognizance of
judgment rendered in O.S.No.926/1992 which was
filed by Veerabhadra Hanji, who is admittedly the
ancestor of defendants and also the judgment
rendered by the appellate Court in R.A.No.9/2004 has
negatived the contentions raised by the defendants.
While examining the findings recorded by the Court in
the earlier round of litigation in O.S.No.926/1992, the
trial Court took cognizance of the finding of fact
recorded in the said suit. In the said suit, the Court
referring to the evidence and pleadings found that
defendants' ancestor Veerabhadra Hanji while
admitting the defendants' title claimed adverse
possession. The trial Court referring to Ex.P19 which
is the copy of the plaint in O.S.No.926/1992 found
that the schedule in the said suit tallies with the
present suit schedule. The trial Court having taken
cognizance of several admissions elicited in the cross-
examination of Defendant No.8 in the earlier suit
bearing No.926/1992, who appears to be the grand
son of Veerabhadra Hanji found that defendant No.8
has admitted the existence of farm house in Survey
No.293. The trial Court also found that several
admissions were elicited in the earlier suit where it
was admitted that Veerabhadra Hanji was looking
after the land of Suvarnamma. Referring to the
judgment rendered in O.S.926/1992 and the
judgment rendered in R.A.No.9/2004, the trial Court
found that plea of adverse possession raised by
Veerabhadra Hanji was negatived. Though trial Court
held that Veerabhadra Hanji is entitled for protection
till possession is taken under due process of law, the
appellate Court reversed the said finding in
R.A.No.9/2004 and the suit filed by Veerabhadra Hanji
was dismissed by allowing the appeal filed by the
present plaintiff in R.A.No.9/2004. The trial Court has
also taken cognizance of Ex.P18 wherein Form No.7A
filed by husband of defendant No.7 and father of
defendant No.8 is rejected. Referring to this
document, trial Court found that existence of farm
house in Survey No.293 also stand substantiated.
in the negative and issue Nos. 1 to 3 in the affirmative
and decreed the suit thereby declaring plaintiff as
absolute owner and defendants were directed to hand
over vacant possession of the suit schedule property.
9. Appellate Court has independently
assessed the entire evidence on record. While
reassessing the entire evidence let in by plaintiff, the
appellate Court has concurred with the reasons and
conclusions arrived at by the trial Court in regard to
existence of farm house in the land bearing No.293
and the finding recorded in the earlier round of
litigation where defendants' ancestor was held to be
only in permissive possession of Survey No.293 which
includes farm house and kana.
10. Heard the learned counsel appearing for
defendants 7 and 8 and defendant No.11 and learned
counsel appearing for plaintiffs. I have given my
anxious consideration to the voluminous documents
produced by plaintiff.
11. Having examined the records, this Court
would find that the case has a checkered history and
defendants on frivolous grounds have succeeded in
denying the plaintiff from recovering possession of the
suit property. Feeble attempt is made by defendants
7 and 8 by contending that the farm house
constructed is in their agricultural land and not in
Survey No.293. This contention does not detain this
Court for long as this issue is dealt by the Courts in
earlier round of litigations. It would be useful for this
Court to cull out Paragraphs 19 and 22 of the
judgment rendered in O.S.No.926/1992, which reads
as under:
"19. Ex.D.3 to D.8 are important documents,
which throws light upon the type of possession of
the plaintiff and the relationship between the
plaintiff and the defendant. These letters are
written at an undisputed point of time. Ex.D.3 is
dated 7.6.58, it is written by the plaintiff
Veerabhadra Hanji to the defendant. In which it is
stated that the defendant should send some
money to the plaintiff if it is convenient. Ex.D.4 is
dated 14.8.58, in this letter it is stated by the
plaintiff to the defendant that at for the present
field work is over and other works have to be
done in respect of the land of the defendant and it
is also stated that the defendant should give
consent signature to obtain loan for cultivation.
Ex.D.5 is dated 26.2.60, in which the defendant
has been called upon by the plaintiff to send a
signed application. Ex.D.6 is dated 21.2.61, in
this letter the plaintiff has stated about the
Tahsildar's visit in respect of survey of the
defendants' land. Ex.D.7 is dated 6.8.64 in which
the plaintiff has stated to send some money to
him by the defendant. These letters indicate that
the plaintiff was looking after the property of the
defendant and that he was depending upon the
defendant. The plaintiff has suppressed these
facts in this plaint. These document which are
more than 30 years old, supports the defendants'
version and probablises the defendants'
contention. DW-1 has also spoken to this fact.
Though the plaintiff has produced some revenue
documents, showing his name, it cannot be held
that he is in possession adverse to the defendant.
It could be seen from the letters Ex.D.3 to D.8
that the plaintiff also used to get applications
signed from the defendants. It is probable that
the plaintiffs might have got the revenue
documents in his name without knowledge of the
defendant. Some of the documents which are
produced by the plaintiff itself shows the house as
a Farmhouse. Under such circumstances the
theory of adverse possession putforth by the
plaintiff does not sound reasonable.
22. Though the plaintiff has not been able to
show his adverse possession, there is evidence to
show that PW-1 and his mother is in possession of
suit schedule property belonging to the
defendant. This court is of the opinion that the
possession of Veerabhadra Hanji was only by way
of permission given and the PW-1and his mother
i.e., the wife of Veerabhadra Hanji were residing
in the said property, along with Veerabhadra
Hanji. There is no evidence to show the
termination of the permission. The defendants
counsel submitted that the averment in the plaint
that the defendant tried to remove coconut and
start Guddali Pooja itself shows that the
permission has been terminated impliedly. But
this court is of the opinion that such inference of
implied termination cannot be drawn. The Voters
list marked as Ex.P.7 shows the name of
Veerabhadra Hanji, his wife, Chandrashekar
(father of PW-1) and wife of Chandrashekar. This
document supported by evidence of PW-1can be
relied to show that PW-1 and his mother are in
possession of the house and the property as
shown in the suit schedule. Ex.P.13 is the
certificate given by the Secretary, Gajanur Mandal
Panchayath in respect of the possession by
Veerabhadra Hanji, the boundaries shown in this
document tallies with the suit schedule property.
Under such circumstances this court is of the
opinion that the original plaintiff was in
possession of the suit schedule property as on the
date of the suit by way of permission of the
defendant and only PW-1 and his mother who
were along with the original plaintiff are now in
possession.
The plaintiff has relied upon the decision of our
Hon'ble High Court of Karnataka in the case
Sathyam@ Ramaiah Vs. K.M.F. Co-operative Ltd.,
reported ILR 1999 KAR 1451 in which it has been
held that where a trespasser is in settled
possession of the land he is entitled to resist or
defend his possession as against the rightful
owner who tries to dispossess him. Another
decision as to the same effect has been relied,
which is of the Hon'ble Supreme Court in the case
Krishna Ram Mahale Vs. Shoba Venkat Rao
reported in AIR 1989 SC 2097. Therefore, even a
tresspasser who is in settled possession cannot be
dispossesed without recourse to law, even by the
owner. The defendant in this case cannot
dispossess the plaintiff without recourse to law,
though his possession may be equivalent or lesser
than that of a licensee. The defendant relied on
the decision of the Hon'ble Supreme Court in
Premji Ratansey Shah Vs. U.O.I, where it has
been held that injunction cannot be issued against
a trespasser or a person who gained unlawfully as
against the owner. But this decision does not
state about 'settled" possession.
The other decisions relied on by the plaintiff are
not applicable to this case as the set of facts are
quiet different in those cases.
The defendant among other decision also relied
on the decision of the Hon'ble High Court of
Karnataka in the case Mirza Mohamed Yusuf Baig
Vs. M/s.Deccan Enterprises reported in 1996 (2)
KLJ 109 wherein it is held that the party seeking
relief on basis of settled possession must show in
what capacity he came into possession of
property. In the case on hand though the plaintiff
has failed to establish adverse possession, the
plaintiff is able to show possession. The capacity
in which be came into possession of the property
is found by this court as that by way of
permission.
The defendant also relied upon the decision of
the Hon'ble Supreme Court in the case Vinod
Kuma Arora Vs. Surjit Kaur reported in 1987 (3)
SCC 711 in which it is held that the parties cannot
give up the case set out in the pleadings and
propound a new and different case. In the instant
case, the plaintiff has not given up their case set
out in the pleadings and no new or different case
has been propounded.
Hence, plaintiff No.1(e) I & II are entitled for
permanent injunction from trespassing or
interfering with the peaceful possession and
enjoyment of the suit schedule property till the
dispossession by due process of law. However the
plaintiffs are not entitled for injunction restraining
the defendant and her men, from claiming any
right, title or interest in the suit schedule property
and such relief is also not in consonance with the
spirit of law. Hence, the Recasted Issue No.1 is
answered in the Affirmative, and Addl. Issue No.1
is also answered in the Affirmative. Issue No.3 is
answered partly in the Affirmative. Only to extent
of interference and trespass over possession of
plaintiff No.1(e) I & II are entitled for permanent
injunction only till the dispossession by due
process of law."
12. The deposition of defendant No.8 would
also clinch the controversy in regard to existence of
farm house in Survey No.293, the relevant portion of
which is culled out as under:
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13. Ex.P18 which is the Form No.7A filed by
husband of first defendant and father of defendant
No.2 claiming occupancy rights against the plaintiff
also clinches existence of form house in Survey
No.293. Relevant portion is culled out as under:
"«ZÁgÀuÉ ªÀÄvÀÄÛ zÁR¯ÉUÀ¼À C£ÀéAiÀÄ ¤¢üUÉ ºÉÆç½ gÁd¸Àé
¤ÃjPÀëPÀgÀªÀgÀ UÁæªÄÀ ¸ÀÜgÀ ªÀĺÀdj£ÉÆA¢UÉ ªÀgÀ¢ ¤ÃrgÀÄvÀÛzÉ.
SÁvÉ ¥ÀºÀt ²æêÀÄw. ¸ÀĪÀtðªÀÄä PÉÆÃA §¸À¥àÀ JA§ÄªÀªÀgÀ
ºÉ¸Àj£À°èzÀÄÝ 1973-74jAzÀ F 2011gÀªÀgÉUÉ ¸À¢æAiÀĪÀgÉà ¸ÀéAvÀ
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ºÉÆgÀzÉñÀzÀ°èzÀÄÝ EªÀgÀ ªÀÄUÀ£Éà EªÀgÀ ¥ÀgÀªÁV ¸ÁUÀĪÀ½
ªÀiÁqÀÄwÛzÁÝgÉ. ¸À.£ÀA.293gÀ°è 1-35JPÀgÉ d«Ää£À°è 30'*20'
Cr C¼ÀvÉAiÀÄ ºÀAZÉ ªÀÄ£É EzÀÄÝ, F ªÀÄ£ÉAiÀÄ°è CgÀ«AzÀ
ºÀAf JA§ÄªÀgÀÄ F »AzÉ ªÁ¸À«zÀÄÝ ºÁ° ²ªÀªÉÆUÀÎzÀ
ªÁ¸ÀªÁVgÀÄvÁÛgÉ."
14. One more relevant aspect which would give
a quietus to the dispute in regard to the description of
the suit property and existence of a farm house in
Survey No.293 is the finding recorded by the trial
Court on additional issue No.1 in O.S.No. 926/1992,
which relates to proof of description of the suit
property and boundaries. The said issue is answered
in the affirmative and the Court has held that the suit
schedule property comprising of a farm house and
open space is substantiated by the plaintiff in the
earlier round of litigation.
15. Ex.D29 is a tippani copy produced by
defendants. Defendant No.4 has admitted the
existence of farm house in Survey No.293 when this
Ex.D29 was confronted to him.
16. The paragraphs 19 and 22 of the judgment
rendered in O.S.No.926/1992 which is culled out
(supra) estop defendant from asserting title and
resisting delivery of possession. If the Courts have
recorded a finding of fact in the earlier round of
litigation to the effect that defendant's ancestor was in
permissive possession over the suit land and if further
identity of the property is also adjudicated, the
significance of these findings/legal tenet will not only
impact upon the litigants involved in the antecedent
litigation but extends its authoritative reach to
encompass their successors-in-interest. The solemnity
and gravity of a Court's pronouncement imbue it with
a character of irrefutable evidentiary value, rendering
it binding upon the parties and their progeny in
subsequent legal contests. The Courts, as custodians
of justice, are entrusted with the duty to safeguard
the sanctity of prior adjudications, fostering a legal
landscape characterized by coherence and
consistency. This obligation serves not merely as a
legal formality but as an indispensable mechanism to
fortify the edifice of justice, wherein the echoes of
past pronouncements resonate with authoritative
import, guiding the trajectory of legal deliberations.
17. In the earlier suit, the Courts have
concurrently held that Veeerabhadra Hanji was in
permissive possession, he being the elder brother of
original plaintiff Suvarnamma and the plaintiff has to
seek possession by initiating appropriate proceedings.
If these significant details are looked into, no
substantial question of law arises for consideration in
both the appeals.
18. The ancestors of defendants namely
Veerabhadra Hanji filed a bare suit for injunction in
O.S.No.926/1992. In the said suit, the ancestor of
defendants asserted title by way of adverse
possession. The said suit was dismissed and the trial
Court held that Veerabhadra Hanji is in permissive
possession. The appeal filed by the present plaintiff in
RA.No.9/2004 was allowed and the relief of perpetual
injunction granted in O.S.No.926/1992 was reversed.
The defendants having suffered a decree in
R.A.No.9/2004 again filed O.S.No.140/2005. The
application filed by defendants seeking temporary
injunction was dismissed on 10.8.2005 and
M.A.No.46/2005 was also dismissed. The husband
and father of defendants 7 and 8 respectively filed
Form No.7A claiming occupancy rights in Survey
No.293. The series of litigations are imposed on
plaintiff, who is the lawful owner and has been
harassed by the defendants. The original plaintiff
Suvarnamma has been litigating this lis since 1992.
19. The Apex Court has held that it is the
Courts and not in the legislature that our citizen
primarily feel the keen, the cutting edge of Law. The
faith of the people is the source and succor to
invigorate justice intertwined with the efficacy of Law.
It is primary duty and highest responsibility of the
Court to impose exemplary cost to restore the
confidence of the Litigant Public. The Court must be
vigilant against any camouflage or suppression and
determine whether the litigation is utterly vexatious
and an abuse of the process of the Court. Being sued
can be incredibly frustrating. Even if the case is merit
less, the defendant has to expend time, energy and
financial resources to have the suit dismissed. The
downside of such a system is that it can be abused.
The turmoil and expense of litigation can cause
significant harm. The defendants by resisting present
suit have in all probability used judicial process to
inflict injury on plaintiff. The case itself has become a
tool to harm plaintiff.
20. Therefore, this is a fit case to impose
exemplary cost on defendants 7 and 8 as well as
defendant No.11.
21. Accordingly, I proceed to pass the
following:
ORDER
The appeals are dismissed by imposing cost of
Rs.25,000/- each on defendants 7, 8 and 11 payable
to plaintiff.
Sd/-
JUDGE
*alb/-
