Karnataka High Court
Sri. Arun S/O Siddannagouda Patil vs Dr. Pranesh S/O Madhav Rao Kulkarni on 18 December, 2023
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RSA No. 200300 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 200300 OF 2015 (INJ)
BETWEEN:
SRI ARUN S/O SIDDANNAGOUDA PATIL
AGED ABOUT: 48 YEARS,
OCC: LEGAL PRACTITIONER
R/O: PLOT NO.8, N.G.O. COLONY,
OPP. DATT NAGAR, HIGH COURT ROAD,
KALABURAGI-584103.
...APPELLANTS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
DR. PRANESH S/O MADHAV RAO KULKARNI
Digitally signed AGED ABOUT: 58 YEARS,
by SHILPA R OCC: MEDICAL PRACTITIONER
TENIHALLI
R/O: PLOT NO.9, OPP.P & T QUARTERS,
Location: HIGH
COURT OF GANESH NAGAR, OLD JEWARGI ROAD,
KARNATAKA KALABURAGI-585101.
...RESPONDENT
(BY SRI KUMAR M. N., ADVOCATE)
THIS RSA IS FILED U/S 100 OF CPC, PRAYING TO CALL
FOR RECORDS, SET ASIDE THE JUDGMENT AND DECREE
DATED: 02.07.2015, PASSED BY THE I ADDL. SENIOR CIVIL
JUDGE AT KALABURAGI IN R.A. NO. 65/2013, SET ASIDE TE
JUDGMENT AND DECREE DATED 28.03.2013 PASSED BY THE
III ADDL. CIVIL JUDGE AND JMFC AT GULBARGA IN O.S.NO.
298/2011 AND DISMISS THE SUIT OF THE PLAINTIFF BY
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RSA No. 200300 of 2015
ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant in O.S.No.298/2011 on the file of the
learned II Additional Civil and JMFC at Kalaburagi (hereinafter
referred to 'Trial Court' for short) is impugning the judgment
and decree dated 28.03.2013, decreeing the suit of the plaintiff
and granting permanent injunction restraining him from
interfering with the peaceful possession and enjoyment of the
suit property by the plaintiff, which was confirmed in
R.A.No.65/2013 on the file of the learned I Additional Senior
Civil Judge, Kalaburagi (hereinafter referred to 'First Appellate
Court' for short).
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Brief facts of the case are that the plaintiff filed the
suit for permanent injunction against the defendant in
O.S.No.298/2011. It is contended by the plaintiff that he is the
absolute owner in possession of open plot bearing No.14
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measuring 40' towards North; 56' towards South; 40' feet
towards East; 38' towards West, totally measuring 1872 square
feet, bearing CTS No.3100, Chalta No.16(part), Sheet No.135,
Block No.VIII, situated in Survey No.71/1 of Brahampur, near
Chitari Saw Mill Jewargi road, Kalaburagi with the following
boundaries:
East: Plot No.15
West: 150' wide Jewargi road
North: Plot No.12
South: 30' wide road
(hereinafter referred to as 'suit property' for brevity).
4. It is contended by the plaintiff that he had
purchased the suit property from its earlier owner one Gopilal
S/o. Sunderlal Tiwari, under the registered sale deed dated
17.11.1986 and since then he is in actual possession and
enjoyment of same and is paying revenue. He has put up
barbed wire fence around the suit property and obtained
construction permission from the City Corporation on
11.12.2009. However, he could not undertake construction
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work of the building and hence the suit property was kept
vacant.
5. It is contended that the defendant is no way
concerned to the suit property, but, he is trying to interfere
with the plaintiff's possession and enjoyment over the same.
He attempted to remove the fence. Therefore, the plaintiff filed
the suit for permanent injunction to restrain the defendant from
interfering with his peaceful possession and enjoyment of the
suit property.
6. The defendant appeared before the Trial Court and
filed his written statement denying the contentions taken by
the plaintiff. The description of the suit property is denied.
The purchase of the property from its earlier owner under the
registered sale deed is also denied. The measurement of the
suit property shown in the plaint stated to be is false and title
of the plaintiff itself is denied.
7. It is contended by the defendant that he had
purchased open plot No.38 measuring 40'x60' situated in
Survey No.71/1 of Brahmpur village from its earlier owner
Smt.Ansubai under the registered sale deed dated 07.03.2006.
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Since the measurement of plot No.38, which was produced by
the defendant as per the approved layout plan was odd, he
purchased the property measuring 40'x60' as per the advice of
the Vastu expert. Accordingly, the defendant is in possession
and enjoyment of the said property and the plaintiff is nothing
to do with plot No.38. It is denied that during February, 2011,
the defendant started interference with the plaintiff's peaceful
possession and enjoyment over the suit property. It is stated
that there is no cause of action for the plaintiff to file the suit.
Hence, prayed for dismissal of the suit.
8. On the basis of the pleadings of the parties, the
Trial Court framed the following issues:
1) Whether the plaintiff proves that he is in lawful
possession and enjoyment of the suit property as on
the date of filing of the suit?
2) Whether the plaintiff further proves alleged
interference by the defendant over the suit property?
3) Whether the plaintiff is entitled for the relief as
sought for ?
4) What order or decree?
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9. The plaintiff examined himself as PW.1, got
examined PW.2 and got marked Exs.P1 to P9 in support of his
contentions. The defendant examined himself as DW.1,
examined DW.2 and got marked Exs.D1 to D7 in support of his
defence. The Trial Court after taking into consideration all
these materials on record answered issue Nos.1 to 3 in the
affirmative. Accordingly, the suit of the plaintiff was decreed
granting perpetual injunction against the defendant.
10. Being aggrieved by the same, the defendant has
preferred R.A.No.65/2013. The First Appellate Court on re-
appreciation of the materials on record dismissed the appeal
and confirmed the impugned judgment and decree passed by
the Trial Court. Being aggrieved by the same, the defendant is
before this Court.
11. Heard learned counsel Sri Sanjeev Kumar C. Patil
for the appellant/defendant and learned counsel Sri Kumar
M.N. for the respondent/plaintiff.
12. Learned counsel for the appellant contended that
the plaintiff even though purchased plot No.14, is laying his
claim over plot No.38 belonging to the defendant. The
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description of the property of the plaintiff is not admitted by the
defendant. The plaintiff purchased the property under Ex.P1 on
17.11.1986, but the layout plan was approved on 09.03.1981.
The description of the suit property in the sale deed dated
11.12.1979 under which the vendor of the plaintiff has
purchased was entirely different. The plaintiff has given a fatal
admission that he is claiming the property belonging to the
defendant. The identification of the property is itself in dispute.
13. Learned counsel submitted that the defendant had
filed an application I.A.2 before the First Appellate Court
seeking appointment of Commissioner to identify the suit
property. The said application was came to be dismissed.
Challenging the same, the defendant had filed
W.P.No.102243/2013 before this Court. The said writ petition
was came to be allowed vide order dated 05.11.2013 directing
the Trial Court to consider the said application along with main
appeal. In spite of that, the First Appellate Court had not
considered the said application.
14. Learned counsel further submitted that he has
produced one additional document along with his application
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under Order 41 Rule 27 of CPC. If the said additional document
is taken into consideration, it is clear that the plaintiff is laying
hands on plot No.38 belonging to the defendant. Therefore,
the matter is required to be remitted back to the Trial Court for
considering the additional document and also for appointment
of Commissioner for identification of the suit property.
Accordingly, he prays for allowing the appeal in the interest of
justice.
15. Per contra, learned counsel for the respondent
opposing the appeal submitted that it is a suit for bare
injunction. Ex.P9 is an admitted document, which is the
approved layout plan. As per this document, 30' wide road
demarked plot No.14 belonging to the plaintiff and plot No.38
belonging to the defendant. Under such circumstances, there
cannot be any dispute regarding identity of the property. When
the suit property is demarked from the defendant's plot by a
public road measuring 30', the defendant cannot contend that
there is a dispute regarding identification of the suit property.
16. Learned counsel further submitted that even though
the First Appellate Court had not passed any order in the
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operative portion regarding disposal of I.A.2 filed under Order
26 Rule 9 of CPC praying for appointment of Commissioner, the
plaintiff in the said suit filed an application under Section 152 of
CPC seeking correction of the judgment after considering the
said I.A.2. Therefore, the Trial Court after taking into
consideration the apparent mistake of not disposing of I.A.2
passed a necessary order dismissing I.A.2 on 16.07.2015.
Learned counsel further submitted that, even though an
additional document is produced before this Court, the same is
no way concerned to the suit property or to the property
belonging to the defendant. Accordingly, the defendant refers
to plot No.4, which is laying even after another road demarking
plot No.38 of the defendant. Therefore, the said document has
no relevance to be considered. The appointment of Court
Commissioner is also unnecessary since there cannot be any
dispute with regard to identity of the suit property.
17. Learned counsel further submitted that the Trial
Court as well as the First Appellate Court on proper
appreciation of the materials on record recorded a concurrent
finding. Hence, the appeal is liable to be dismissed.
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18. This Court vide order dated 16.01.2017 framed the
following substantial questions of law:
"1. Whether in the nature of the claim as put
forth in the suit and the defence taken by the
defendant with regard to the identity of the plot as
claimed by the plaintiff, a suit for bare injunction
could have been ultimately considered by the Courts
below?
2. Whether in the facts and circumstances as
arisen in the instant case, the Lower Appellate Court
was justified in proceedings to dispose of the appeal
without deciding application filed seeking
appointment of the Commissioner one way or the
other, prior to disposal of the appeal?
3. Whether in the fact and circumstances of the
case of the case the Courts below were justified in
accepting the case of the plaintiff based on the
description as indicated in the plaint and not being
similar to the description as contained in the
document at Ex.P1 under which the plaintiff is said to
have acquired title to the property?"
My answer to the above substantial questions of law in
the 'Affirmative' for the following:
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REASONS
19. It is the specific contention of the plaintiff that he is
the owner in possession and enjoyment of the suit property
bearing plot No.14 in Survey No.71/1. It is the defence taken
by the defendant that he is the owner in possession of plot
No.38 in Survey No.71/1. It is pertinent to note that the
defendant admits Ex.P9 - copy of the approved layout plan
formed in Survey No.71/1A of Brhampur village. Since both
learned counsel admit this Ex.P9, I have considered the
contention of the plaintiff and defence taken by the defendant
with reference to Ex.P9.
20. Ex.P1 is the registered sale deed under which the
plaintiff purchased plot No.14, which was described as the suit
property. Admittedly, the defendant has purchased plot No.38
under Ex.D4 dated 07.03.2006. The description of the property
i.e., plot No.14 with the boundaries on East: Plot No.15, West:
150' wide Jewargi road, North: Plot No.12 and South: 30' wide
road, which corresponds with plot No.14 as marked in Ex.P9.
Similarly, the boundaries of plot No.38 mentioned in Ex.D4
registered sale deed of the defendant dated 07.03.2006 i.e., on
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East: Plot No.37, West: Government road, North: Plot No.33
and South: Government Road, which corresponds with Ex.P9.
Even both the Exs.P1 and D4 - registered sale deeds of the
plaintiff and defendant respectively are considered in the light
of Ex.P9, there is absolutely no dispute with regard to the
identity of the property. Admittedly, the plaintiff and the
defendant are not the owners of the adjoining plots. In
between plot No.14 belonging to the plaintiff and plot No.38
belonging to the defendant, there is a road measuring 30' wide.
Under such circumstances, I do not find any merit in the
contention taken by the defendant that there is serious dispute
with regard to the identity of the suit property.
21. Even though the learned counsel for the defendant
contended that the plaintiff has given a fatal admission
regarding dispute about the suit property, on consideration of
the entire evidence of PW.1 with reference to Ex.P1 - the sale
deed, Ex.P9 - approved layout plan and Ex.D4 - sale deed of
the defendant, there is no such admission that could be termed
as fatal to the case of the plaintiff. Even if the entire cross-
examination of PW.1 is taken into consideration, I do not find
any reason to form an opinion that there is a dispute regarding
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identity of the suit property. On the other hand, the evidence
of DW.1 discloses that he categorically admits the approved
layout plan at Ex.P9. The witness categorically stated that the
measurement of his plot No.38 was varied when he purchased
the same under Ex.D4. Even in the written statement, the
defendant had categorically stated that since the measurement
of plot No.38 was odd, he purchased only 60'x40' site. He
further admits that on the western side, there is a road.
22. If the evidence of the witnesses examined on behalf
of the plaintiff and defendant are considered in the light of the
admitted documents i.e., Ex.P9 and Ex.D4, there cannot be any
dispute with regard to the identity of the property as tried to be
made out by the learned counsel for the appellant. When there
is no dispute regarding identity of the property, appointment of
Court Commissioner is absolutely not necessary. Hence, the
said application is liable to be dismissed as it was rightly
dismissed by the First Appellate Court.
23. The learned counsel for the appellant has drawn by
attention to I.A.1/2023 filed for production of additional
document. The said document is in respect of plot No.4 and
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the document is the licence issued by the Deputy
Commissioner. Admittedly, plot No.4 referred to in the
additional document lies on the eastern side of plot No.38
belonging to the defendant and there is 30' wide road
demarking plot No.38 and plot No.4. The suit property lies
towards the South western side of plot No.38, which was again
demarked by another road measuring 30' wide. The contention
of the appellant/defendant that the evidence of PW.1 is
considered along with additional document, it creates doubt
regarding identity of the property, cannot be accepted. Under
such circumstances, I am of the opinion that the defendant has
not made out any ground either to produce the additional
document or to seek appointment of the Commissioner. Hence,
both the applications are liable to be dismissed.
24. The suit of the plaintiff is for permanent injunction
and an attempt was made to contend that the plaintiff himself
is laying hands on plot No.38 belonging to the defendant and
there is a dispute regarding identity of the suit property. When
the contention of the parties are considered in the light of the
admitted documents and the oral evidence that are placed on
record, I do not find any merit in the contention taken by the
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defendant. The defendant has not made out any ground to
answer the substantial questions of law in his favour. The
concurrent findings of fact recorded by the Trial Court as well
as First Appellate Court are just and proper and I do not find
any reason to interfere with the same. Hence, the substantial
questions of law are answered against the defendant and in
favour of the plaintiff and I proceed to pass the following:
ORDER
A. I.A.2/2015 and I.A.1/2023 are dismissed.
B. The appeal is dismissed with costs.
C. The impugned judgment and decree dated
28.03.2013 on the file of the learned III Additional
Civil Judge and JMFC at Kalaburagi in
O.S.No.298/2011 confirmed in R.A.No.65/2013
vide judgment and decree dated 02.07.2015 on the
file of the learned I Additional Senior Civil Judge at
Kalaburagi, are hereby confirmed.
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Registry to send back the Trial Court and the First
Appellate Court records along with copy of this judgment.
Sd/-
JUDGE
SRT
CT-VD
