Karnataka High Court
Sri S M Somashekar S/O Late Thoti Muneppa vs Sri V Narayanaswamy on 5 December, 2023
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RSA No. 106 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 106 OF 2012 (INJ)
BETWEEN:
1. SRI S M SOMASHEKAR
S/O LATE THOTI MUNEPPA
AGED ABOUT 47 YEARS
R/AT SUGATUR VILLAGE
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK 562 105
2. SRI S M NARAYANASWAMY
S/O LATE THOTI MUNEPPA
AGED ABOUT 46 YEARS
R/O SUGATUR VILLAGE
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK 562 105
Digitally signed 3. SRI S M SUBRAMANI
by R DEEPA S/O THOTI MUNEPPA
Location: High AGED ABOUT 38 YEARS
Court of
Karnataka R/O SUGATUR VILLAGE
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK 562 105
4. SMT KARAGAMMA
S/O NARAYANASWAMY
AGED ABOUT 48 YEARS
R/O NADIPINAYAKANAHALLI VILLAGE,
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK 562 105
...APPELLANTS
(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)
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RSA No. 106 of 2012
AND:
SRI. V NARAYANASWAMY
S/O EERAPPA
R/AT SUGATUR VILLAGE
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK 562 105
...RESPONDENT
(BY SRI. P L NANJUNDASWAMY, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 2.9.2011 PASSED IN
R.A.NO.110/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., CHINTAMANI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.2005
PASSED IN O.S.NO.45/2001 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) & JMFC., SHIDLAGHATTA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 02.09.2011,
passed in R.A.No.110/2005 by the Senior Civil Judge &
JMFC, Chintamani, confirming by the judgment and decree
dated 24.10.2005, passed in O.S.No.45/2001 by the
Principal Civil Judge (Jr.Dn.) & JMFC, Shidlaghatta.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
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appellants No.1, 2, 3, 4 are plaintiffs No.2, 1, 3, 4 and
respondent is the defendant.
3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiff filed a suit for permanent injunction against
the defendant in respect of suit schedule property. It is
the case of the plaintiff that the plaintiff is the absolute
owner and in possession of the suit property. The suit
property is the ancestral property of her husband Thoti
Muneppa, who died about 10 years back. The khata of the
property was changed in her name. Eight ankanams of
thatched house is situated in the suit property wherein the
plaintiff and her sons are residing towards western side of
the house tamarind trees are situated. The plaintiff's
husband had obtained a license for construction of
compound wall around the suit property. The defendant
has no right, title or interest over the suit schedule
property. The defendant tried to interfere with her
peaceful possession over the suit schedule property.
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Hence, cause of action arose for the plaintiff to file the suit
for permanent injunction.
4. Defendant filed written statement denying the
averments made in the plaint. It is contended that the suit
schedule property belongs to different persons of the
village and there is sarkari vacant land. The suit schedule
property belongs to Giriyamma and Venkataramanppa and
others. The Government vacant site was granted to the
defendant and he is in possession of the same. The
defendant obtained a license to construct a house in the
granted site and stored building materials. The plaintiff got
created the documents and filed the present suit and
prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that she is in
possession and enjoyment of the suit
schedule property as on the date of suit?
2. Whether the plaintiff further proves that the
alleged interference of the defendant over the
suit schedule property?
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3. Whether the plaintiff further proves that she
is entitled for the relief as sought in the
plaint?
4. What decree or order?
6. In order to prove the case of the plaintiffs, the
plaintiff No.2 examined himself as PW-1 and got examined
3 witnesses as PW-2 to PW-4 and got marked 10
documents as Exs.P1 to P10. Defendant examined himself
as DW-1 and got examined 2 witnesses as DW-2 & DW-3
and got marked 14 documents as Exs.D1 to D14. Court
Commissioner was examined as CW-1 and got marked 3
documents as Ex.C1 to C3. The trial Court considering the
oral and documentary evidence of the parties, answered
issue No.1 partly in affirmative; issue Nos.2 and 3 in
negative; and issue No.4 as per the final order and
consequently dismissed the suit of the plaintiffs.
7. The plaintiff No.2 aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.110/2005. The First Appellate Court, after hearing
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the parties, has framed the following points for
consideration:
1. Whether the trial Court is justified in holding
that the plaintiff has failed to prove the
factum of possession and interference of the
defendants with respect to the suit schedule
property?
2. Whether the judgment and decree of the trial
Court warrants interference?
3. What order?
8. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point No.1
in affirmative; point No.2 in negative and consequently
dismissed the appeal filed by the plaintiff No.2, confirming
the judgment and decree passed by the trial Court. The
plaintiffs, aggrieved by the judgments and decrees passed
by the courts below, have filed this second appeal.
9. This court admitted the appeal on the following
substantial questions of law :
1) Whether the lower courts below have
erred in law in holding that the plaintiff
has failed to prove his possession in
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respect of the suit property and the
findings of the courts below in this regard
are arbitrary, perverse and illegal have
opposed to the oral and documentary
evidence on record?
2) Whether the courts below have erred in
misreading the commissioner's report and
in ignoring the documentary evidence
Ex.P1 to P4 consisting of house list extract
and tax demand registers maintained by
the Panchayath showing the suit property
is in possession and enjoyment of the
plaintiff and Ex.P5 and P6 certificate
issued by the Secretary of the Grama
Panchayath, Ex.P7 and P8 the building
licence and commencement licence issued
by the panchayath in favour of the
plaintiff's husband?
3) On the basis of Ex.D2 described the
property of the defendant on the northern
side of the plaint property, whether the
courts below have erred in law in holding
that the plaintiff is having certain property
instead of the plaint property?
10. Heard learned counsel for the plaintiffs.
11. Learned counsel for the plaintiffs submits that
the courts below committed an error in passing impugned
judgments and that the plaintiffs are in possession of suit
schedule property and produced the records in support of
their contention. He submits that courts below placing
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reliance on the commissioner report and ignoring the
documentary evidence Ex.P1 to P4 passed the impugned
judgments. He submits that the suit property was the
ancestral property of husband of plaintiff No.1 and father
of plaintiff Nos.2 to 4. After the demise of the husband of
plaintiff No.1 and father of plaintiff Nos.2 to 4 they have
inherited the property from Thoti muneppa. He submits
that the documents produced by the defendant do not
belong to suit schedule property. He submits that the
courts below have misread the commissioner report. He
submits that the judgments and decrees passed by the
courts below are arbitrary and erroneous. Hence, prayed
to allow the appeal.
12. Learned counsel for the defendant supports the
impugned judgments and decrees.
13. Perused the records and considered the
submissions of learned counsel for the parties.
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14. Substantial questions of law No.1 to 3:
substantial questions of law No.1 to 3 are interlinked with
each other and taken up for common discussion in order to
avoid repetition of facts.
15. Legal representatives No.2 of plaintiff was
examined as PW.1. He had reiterated the plaint averments
in the examination-in-chief and produced documents
marked as Ex.P.1 is the Kanishmari extract for the year
1974-75, Ex.P.2 is the house lease extract for the year
1995-96, Ex.P.3 is the demand register extract for the
year 2000-01, Ex.P.4 is the license obtained for the
construction of residential building in the suit property,
Ex.P.5 is the kandayam receipt. In the course of cross
examination he admits that in Ex.P.1, measurement and
boundaries are not mentioned. He admits that allotment
letter was not issued to him and he has not produced any
records to show that property was allotted. He has denied
that manure pit and property of Muni venkatamma falls
within the suit schedule property. The plaintiff also
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examined one witness namely Patel Narayanappa as PW.2,
he had deposed that the plaint schedule property is in
possession and enjoyment of legal representatives of
plaintiff and suit schedule property is surrounded by fence
and there are two tamarind trees, one coconut tree and 4
neem trees are situated in the suit schedule property and
there was a mud roof house which was collapsed due to
natural calamity. The defendants have no right over the
suit property. Examined witnesses namely S.N.Hanume
Gowda as PW.3 Ashwathappa as Pw4. They have
reiterated examination-in-chief of PW.2.
16. In rebuttal, the defendant was examined as
DW.1, he had reiterated the averments of the
examination-in-chief and produced documents Ex.D1 is
the grant certificate, Ex.D2 and D3 are the demand
register extracts, Ex.D4 is the license obtained from the
panchayat for the construction of building, Ex.D5 is the
kandayam paid receipt, Ex.D6 is the interim order granted
by the executive officer, Ex.D7 is the endorsement issued
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by the secretary gram panchayath, Ex.D8 is the
kaneshwari extract for the year 1970-71.
17. During the pendency of the suit, the Court
commissioner was appointed to inspect the suit property
and to submit a report. The Court Commissioner executed
a commissioner work and submitted a report. The
Commissioner was examined as CW.1 and got marked
three documents as Exs.C1 to C3. The Commissioner had
submitted a report stating that plaintiffs house and
defendants house, manure pit of defendant is shown in the
sketch and the said properties are within the boundaries of
the suit schedule property. The report of the
Commissioner and sketch supports the contention of the
defendant. In order to rebut the Commissioner report,
nothing has been elicited from the mouth of Court
Commissioner. Both the courts below have concurrently
recorded the finding of facts that the plaintiffs are not in
possession and enjoyment of the entire suit schedule
property. The courts below were justified in ignoring the
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documentary evidence produced by the plaintiffs i.e.,
Exs.P1 to P4 consisting of house list extract and tax
demand registers maintained by the Panchayath showing
the suit property is in possession and enjoyment of the
plaintiffs, Exs.P5 and P6 are the certificates issued by the
Secretary of Gram Panchayath, Exs.P7 and P8 are the
building license and commencement license issued by the
Panchayath in favour of the plaintiffs. The said documents
do not prove the possession of the plaintiffs over the suit
schedule property. Further, the plaintiffs have not
examined the author of the said document. Further, the
witnesses examined by the plaintiffs are not the adjacent
owners. They are the chance witnesses. Their evidence
cannot be looked into to hold that the plaintiffs are in
possession of the suit schedule property. The plaintiffs
have filed a suit for permanent injunction. It is for the
plaintiffs to establish their possession over the suit
schedule property as on the date of suit and alleged
interference. They cannot take the weakness of the
defendants. The courts below placing a reliance on Ex.D2,
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have recorded that the plaintiffs are having certain other
properties instead of plaint property. The burden of
proving is on the plaintiffs to establish that the property of
the defendant is situated on the northern side of the plaint
property and the plaintiffs are having property adjacent to
the property of the defendant. In view of the above
discussion, I answer substantial questions of law No.1 to 3
in the negative.
18. In view of the aforesaid facts and circumstances, I
proceed to pass the following:
ORDER
The appeal is dismissed.
Consequently, the judgments and decrees
passed by the courts below are hereby
confirmed.
No order as to the costs.
SD/-
JUDGE
sks
