Karnataka High Court
Sri Mahalinga Bhat vs Giriyappa Gowda on 15 December, 2023
-1-
NC: 2023:KHC:45842
RSA No. 2399 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2399 OF 2007 (INJ)
BETWEEN:
1. SRI MAHALINGA BHAT
S/O LATE. THIMAYYA BHAT,
HINDU, AGED ABOUT 77 YEARS,
R/O. KATTETHILA HOUSE,
VITTAL MUDNUR VILLAGE,
BANTWAL TALUK, D.K.
SINCE DECEASED BY HIS LR'S
1A. SMT. PARVATHI
W/O LATE MAHALINGA BHAT
AGED ABOUT 85 YEARS
R/AT KATTETHILA VILLAGE
BANTWAL TALUK
Digitally signed D.K. DISTRICT - 574 211
by R DEEPA
Location: High 1B. SMT. SHANKARI
Court of
Karnataka W/O B. ESHWARA BHAT
AGED ABOUT 65 YEARS
R/AT BALLAMBETTU HOUSE
UKKINADKHA POST
VIA PERLA
KASARGOD
KERELA - 671 351
1C. SMT. MALATHI
W/O GOVINDA BHAT
AGED ABOUT 63 YEARS
-2-
NC: 2023:KHC:45842
RSA No. 2399 of 2007
BOLUBAILU HOUSE
KATUKUKKE POST
KASARGOD
KERALA - 671 351
1D. SMT. SUSHEELA
W/O GOPALAKRISHNA BHAT
AGED ABOUT 57 YEARS
R/AT No. 1348, GROUND FLOOR
8TH MAIN, 6TH CROSS
BEML 3RD STAGE
RAJARAJESHWARI NAGAR
BENGALURU - 560 098
1E. SRI. BALAKRISHNA
S/O LATE MAHALINGA BHAT
AGED ABOUT 52 YEARS
R/AT KATTETHILA HOUSE
VITTAL MUDNOR VILLAGE
BANTWAL TALUK
D.K. DISTRICT - 574 211
1F. SMT. PRASANNA KUMARI
W/O GOPALAKRISHNA BHAT
AGED ABOUT 45 YEARS
R/AT BOLLECHALU HOUSE
KUDTHA MOGERU POST
BANTWAL TALUK
D.K. DISTRICT - 574 211
1G. SMT. SAROJA
W/O RAVISHANKARA SHASTRY
AGED ABOUT 43 YEARS
R/AT MANILA HOUSE
PUNCHA POST
BANTWAL TALUK
D.K. DISTRICT - 574 211.
...APPELLANTS
(BY SRI. O. SHIVARAMA BHAT, ADVOCATE)
-3-
NC: 2023:KHC:45842
RSA No. 2399 of 2007
AND:
1. GIRIYAPPA GOWDA
S/O. PAKRU GOWDA,
AGED ABOUT 70 YEARS,
R/AT VITTAL MUDNUR ROAD,
VITTAL MUDNUR POST,
BANTWAL TALUK, D.K.
2. KUTTI POOJARY
S/O PADIYA POOJARY
2A. SANKAMMA
W/O LATE KUTTI POOJARY
AGED ABOUT 65 YEARS
2B. MONAPPA POOJARY
S/O LATE KUTTI POOJARY
AGED ABOUT 45 YEARS
2C. JAYANTH
D/O LATE KUTTI POOJARY
AGED ABOUT 43 YEARS
2D. MOHINI
D/O LATE KUTTI POOJARY
AGED ABOUT 41 YEARS
2E. LEELA
D/O LATE KUTTI POOJARY
AGED ABOUT 38 YEARS
ALL ARE R/AT
KATTETHALA HOUSE
BANTWALA TALUK
DAKSHINA KANNADA DISTRICT.
3. SESAPPA GOWDA
S/O BATYAPPA GOWDA
R/AT VITTAL MUDNUR ROAD AND POST,
BANTWAL TALUK, D.K.
...RESPONDENTS
[BY SRI. V R PRASANNA, ADVOCATE FOR C/R1
R2, R2(A-E) & R3 ARE SERVED]
-4-
NC: 2023:KHC:45842
RSA No. 2399 of 2007
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT. 27.07.2007 PASSED IN
RA.NO.319/2002 (RE-NUMBERED AS RA.NO.56/2006) ON THE
FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC., BANTWAL,
D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AN DDECREE DT. 04.09.2002 PASSED IN
OS.NO.53/1990 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.) BANTWAL, D.K.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 27.07.2007,
passed in R.A.No.56/2006 by the Civil Judge (Sr.Dn.) &
JMFC, Bantwal, D.K.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is the plaintiff and respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for permanent injunction
restraining the defendants from interfering into the
NC: 2023:KHC:45842
peaceful possession of plaint 'B' schedule property. It is
the case of the plaintiff that he is the owner of 'A' schedule
property and he became the owner of 'A' schedule
property on the strength of the registered sale deed dated
31.12.1978. On the strength of the registered sale deed,
name of the plaintiff was entered in the revenue records
by mutation order dated 31.01.1979. The plaintiff is in
possession of 'A' schedule property. It is contended that
land bearing Sy.No.182, portion of survey numbers 183,
153, 155 and 156 of Vittal Mudnur Village are some of the
lands surrounding 'A' schedule property and they are
kumki lands attached to the kadim warga land of plaintiff
as described in schedule 'B' of the plaint. It is contended
that the plaintiff is in possession of the schedule 'A' and 'B'
properties and the plaintiff had effected improvement over
the said lands by raising trees. Defendants made an
attempt to interfere with the possession of kumki lands of
the plaintiff which is described in 'B' schedule. Hence
plaintiff approached the Tahsildar for appropriate action
against the defendants. The Tahsildar passed an order
NC: 2023:KHC:45842
confirming possession of kumki land with the plaintiff,
except 26 cents in Sy.No.182. Inspite of the order of
Tahshildar the defendants are trying to trespass the said
kumki lands. Hence prayed to decree the suit.
4. Defendants filed written statement. In the
written statement, defendant No.1 contended that the suit
filed by the plaintiff is not maintainable in law and on facts
of the case. It is also denied that the plaintiff is the owner
of 'A' schedule property. It is contended that the
defendant No.1 is in possession and enjoyment of the land
lying to the west of agalu, which is in possession and
enjoyment of one Kutti Poojary. Further in the western
portion of Sy.No.182, there exist a public 'bana' and yearly
'nemas' were performed by the villagers and defendant
No.1 had effected valuable improvements like growing
cashew, mango and other trees. It is contended that the
plaintiff is not in possession of 'B' schedule property.
Hence the question of trespassing with the plaintiff's
possession would not arise. It is contended that the
NC: 2023:KHC:45842
defendant is in possession of portion of 'B' schedule
property. On these grounds sought for dismissal of the
suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) Whether plaintiff proves that the plaintiff is
the absolute owner and in lawful
possession and enjoyment of plaint
schedule properties?
2) Whether plaintiff proves that there is
interference and obstructions by the
defendants over the plaint schedule
properties?
3) What order and relief?
6. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW-1 and got examined one
witness as PW-2 and got marked 22 documents as Exs.P1
to P22. In rebuttal, defendant No.1 examined himself as
DW-1 and got examined two witnesses as DW-2 & DW-3
and got marked 4 documents as Exs.D1 to D4. The trial
Court after assessing the oral and documentary evidence
of the parties, answered issue Nos.1 and 2 in affirmative
and decreed the suit of the plaintiff by permanently
NC: 2023:KHC:45842
restraining the defendants from interfering with the
peaceful possession of the plaintiff of plaint 'B' schedule
property and kumki privilege of plaint 'B' schedule
property.
7. Defendant No.1 aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.319/2002 (re-numbered as R.A.No.56/2006). The
First Appellate Court, after hearing the parties, has framed
the following points for consideration:
1) Whether the issues framed by the trial
Court and the findings and reasons given
are harmonious with each other?
2) Whether the appellant makes out the
grounds as set out in the appeal memo?
3) Whether the judgment and decree passed
by the trial Court is illegal requiring my
interference to be set aside?
4) What order?
8. The First Appellate Court, on re-assessing the oral
and documentary evidence, answered point Nos.1 to 3 in
affirmative and allowed the appeal with cost and set aside
the judgment and decree passed by the trial Court and
consequently dismissed the suit of the plaintiff. The
NC: 2023:KHC:45842
plaintiff aggrieved by the judgment and decree passed by
the First Appellate Court, has filed this second appeal.
9. This court admitted the appeal on the following
substantial question of law :
"Whether the lower appellate court is
justified in reversing the judgment and decree
of the trial Court and dismissing the suit?"
10. Heard learned counsel for the parties.
11. Learned counsel for the plaintiff submits that the
plaintiff has produced records to show that the plaintiff is
in possession of schedule 'B' property. The First Appellate
Court has not properly appreciated the documents placed
on record. He submits that the First Appellate Court has
committed an error in recording a finding that land bearing
Sy.No.153 measures 6 acres 86 cents. Insofar as
Sy.No.183 is concerned, the entire extent of land is 16
acres 38 cents and plaintiff claims kumki right to an extent
of 1 acre 25 cents and when the extent of entire land of 'B'
schedule property and their survey numbers is in excess of
- 10 -
NC: 2023:KHC:45842
the portion claimed by the plaintiff as his kumki right, he
submits that the said observation is contrary to the
records produced by the plaintiff. Hence he submits that
the judgment and decree passed by the First Appellate
Court is perverse, arbitrary. Hence prays to allow the
appeal.
12. Learned counsel for the defendant No.1 submits
that the First Appellate Court on re-assessment of the oral
and documentary evidence, has rightly passed the
impugned judgment. He submits that the plaintiff has not
shown the boundaries of 'B' schedule property. Though
land in Sy.No.183 measures 16 acres 38 cents, but
plaintiff has not produced any records to show that the
plaintiff is in possession of 1 acre 25 cents and further the
said 'B' schedule property is not identifiable. The First
Appellate Court was justified in passing the impugned
judgment. Hence on these grounds, prays to dismiss the
appeal.
- 11 -
NC: 2023:KHC:45842
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. SUBSTANTIAL QUESTIONS OF LAW: In order to
prove the case of the plaintiff, he examined himself as PW-
1 and he has reiterated the plaint averments in the
examination-in-chief. Further plaintiff has produced
documentary evidence in support of his case. Ex.P1 is the
certified copy of the sale deed dated 26.12.1978; Ex.P2 to
P12 are the RTC extracts in respect of 'A' schedule
property which discloses that the plaintiff is in possession
of 'A' schedule property; Ex.P13 is the copy of plaint
sketch produced in O.S.No.53/1990; Ex.P14 and P15 are
the certified copies of revenue sketches; Ex.P16 is the
order passed by the Tahsildar; Ex.P17 to P19 are the RTC
extracts in respect of 'A' schedule property; Ex.P20 is the
statement of objections; Ex.P21 is the notes of
arguments; Ex.P22 is the copy of sketch. During the
course of cross-examination, PW-1 has admitted that a
dispute was raised before the Tahsildar between the
- 12 -
NC: 2023:KHC:45842
plaintiff and defendant and the Tahsildar has passed an
order in favour of plaintiff. Further PW-1 has admitted
that against the said order, defendant had preferred an
appeal before the Assistant Commissioner and the
Assistant Commissioner had set aside the order passed by
the Tahsildar which is confirmed by the Deputy
Commissioner and the Karnataka Appellate Tribunal. The
said order has attained finality. PW-2 has also reiterated
the examination-in-chief of PW-1.
15. In rebuttal, defendant No.1 has examined
himself as DW-1. He has reiterated the written statement
averments in the examination-in-chief. It is denied that
the plaintiff is in possession of the portion of 'B' schedule
property. It is contended that defendants are in
possession of portion of 'B' schedule property and it is
contended that portion of 'B' schedule property was
allotted to the defendant by a grant. On the basis of the
grant order, name of the defendant was entered in the
revenue records. The said revenue entries were
- 13 -
NC: 2023:KHC:45842
challenged by the plaintiff. But the grant order was not
challenged by the plaintiff. In order to substantiate the
defence of the defendant No.1, he has produced
documents. Ex.D1 is the sketch of Sy.No.183 of Vittal
Mudnur Village; Ex.D2 is the RTC extract which stands in
the name of son of defendant No.1; Ex.D3 is the RTC
extract in respect of 'B' schedule property which stands in
the name of son of defendant No.1; and Ex.D4 is the copy
of the plaint in O.S.No.53/1990 filed by the plaintiff
against the defendants. Further, defendant No.1 in order
to prove his possession, examined two witnesses as DW-2
and DW-3. They have deposed that the defendant No.1 is
in possession of portion of 'B' schedule property.
16. From the perusal of the records, it is clear that
though the plaintiff is claiming kumki right to an extent of
1 acre 25 cents, the plaintiff has not produced any record
to show where exactly 1 acre 25 cents land is situated in
the entire extent of 16 acres 38 cents and further the
plaintiff has also not shown the boundaries of 'B' schedule
- 14 -
NC: 2023:KHC:45842
property. The First Appellate Court was justified in
recording a finding that the plaintiff has not shown the
boundaries of 'B' schedule property. As per Order VII Rule
3 of CPC, where the subject-matter of the suit is
immovable property, the plaint shall contain a description
of the property sufficient to identify it, and, in case such
property can be identified by boundaries or numbers in a
record of settlement or survey, the plaint shall specify
such boundaries or numbers.
17. Admittedly in the instant case, Sy.No.183
measures 16 acres 38 cents, but the plaintiff is claiming
portion of land in Sy.No.183. Plaintiff has not shown the
boundaries of plaint 'B' schedule property in the suit. The
said property is not identifiable. The First Appellate Court,
considering the material on record, was justified in holding
that the plaintiff has failed to establish that the plaintiff is
in possession of 'B' schedule property. Hence I answer
substantial questions of law in affirmative.
- 15 -
NC: 2023:KHC:45842
18. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgment and decree
passed by the First Appellate Court is hereby
confirmed.
No order as to the costs.
SD/-
JUDGE
RD
