Sri R. Uday Kumar vs Smt. Alumelumangamma
2023 Latest Caselaw 1524 Kant

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                                                     RSA No. 2122 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 23RD DAY OF FEBRUARY, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                           REGULAR SECOND APPEAL NO.2122 OF 2017



                   BETWEEN:

                   SRI R UDAY KUMAR
                   S/O RAMAIAH
                   AGED ABOUT 47 YEARS
                   R/O DASAMUDDAIAHNAPALY
                   (D M PALYA), SIRA GATE
                   TUMKUR-572 106


Digitally signed                                            ...APPELLANT
by SHARANYA T      (BY SRI V B SIDDARAMAIAH, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
                   AND:

                   1.    SMT. ALUMELUMANGAMMA
                         W/O LATE GANGANNA
                         AGED ABOUT 70 YEARS
                         R/O DASAMUDDAIAHNAPALY
                         (D M PALYA), SIRA GATE
                         TUMKUR-572 106
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                                       RSA No. 2122 of 2017




2.   SRI T G MANJUNATH
     S/O LATE GANGANNA
     AGED ABOUT 55 YEARS
     R/O DASAMUDDAIAHNAPALY
     (D M PALYA), SIRA GATE
     TUMKUR-572 106

3.   SMT ANJINAMMA
     W/O CHANDRAPPA
     AGED ABOUT 52 YEARS
     R/AT LINGAPURA, SIRA GATE
     TUMKUR-572 106

4.   SRI T G VENKATESH
     S/O LATE GANGANNA
     AGED ABOUT 45 YEARS
     R/AT LINGAPURA, SIRA GATE
     TUMKUR-572 106



                                            ...RESPONDENTS

(RESPONDENTS SERVED AND UNREPRESENTED)

       THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 20.09.2017
PASSED    IN   R.A.NO.15/2017   ON   THE   FILE   OF   THE   II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU AND
ETC.


       THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                           RSA No. 2122 of 2017




                         JUDGMENT

This matter is listed for final hearing. Heard the learned

counsel appearing for the appellant.

2. The case of the appellant/plaintiff before the Trial

Court that they have purchased the suit schedule property

under a registered sale deed dated 08.09.2000 from his lawful

vendor for valuable consideration i.e., from

T D Hanumanthaiah. From the date of purchase, the plaintiff is

in possession of the suit schedule property. Even though the

defendants are utter strangers to the suit schedule property,

they are trying to interfere with the same, hence, the plaintiff

has filed the suit.

3. The defendants in pursuance of suit summons,

appeared and filed the written statement denying the plaint

averments and contended that the plaintiff is not in possession

of the suit schedule property and the katha number and

boundaries mentioned in the plaint are imaginary one and

denied the very title and possession of plaintiff over the suit

schedule property. The defendants further contended that the

written statement schedule property is the ancestral and joint

RSA No. 2122 of 2017

family property and they are in possession of the same. The

said property is surrounded by barbed wire fence. It is the

contention of the defendants that plaintiff is trying to interfere

with the written statement schedule property. Hence,

defendant No.2 filed a suit in O.S.No.772/2001 before the Trial

Court. The defendants further submits that there is a house

and vacant space belonged to the plaintiff and his brother

towards east of the written statement property and the plaintiff

taking advantage of the vacant space created the sale deed in

collusion with his henchmen.

4. Based on the pleadings, the Trial Court framed the

issues with regard to whether the plaintiff is in possession of

the suit schedule property and whether there is interference by

the defendants. In order to prove the case of the plaintiff, the

plaintiff examined himself as PW1 and also examined two

witnesses as PW2 and PW3 and got marked the documents at

Ex.P1 to P33. On the other hand, the defendants also

examined the second defendant as DW1 and another witness

as DW2 and got marked the document at Ex.D1 to D11. The

Court commissioner also examined as CW1 and got marked the

Commissioner's report as Ex.C1. The Trial Court after

RSA No. 2122 of 2017

considering both oral and documentary evidence placed on

record decreed the suit. Being aggrieved by the said judgment

and decree of the Trial Court, an appeal was filed before the

First Appellate Court. The First Appellate Court reversed the

finding of the Trial Court and set aside the judgment of the

Trial Court and consequently, dismissed the suit. Hence, the

present appeal is filed by the plaintiff before this Court.

5. This Court having heard the appellant counsel

admitted the appeal and framed the following substantial

question of law:

1. Having held that the plaintiff has proved his

lawful possession of the suit property except a

small bit of land, whether the first appellate

court was justified n reversing the judgment

and decree of the trial court in respect of the

entire suit property and dismissing the suit?

2. Having regard to Section 45 of the Indian

Evidence Act, 1872, whether the first

appellate court was right in relying solely on

the report of the Commissioner and his

RSA No. 2122 of 2017

evidence, ignoring the other evidence on

record?

6. This Court issued notice against the respondents

and the respondents though served with the notice and they

were unrepresented. The counsel for the appellant would

vehemently contend that the property originally belongs to

Hanumanthaiah, Ganganna and Venkatappa and they are the

brothers. The Ganganna had sold his share of the property in

favour of Hanumanthaiah who is the vendor of the plaintiff and

other brother Venkatappa also sold his property in favour of

Hanumanthaiah in terms of Ex.P5 and P6 and the said

Hanumanthaiah sold the property in favour of the plaintiff in

terms of Ex.P1 i.e., measuring 90 x 150 feet. The

appellant/plaintiff has given an application on 15.01.2000 to

the city municipality and in pursuance of the said request,

revenue inspector has given the report on 22.01.2001 and the

request of the plaintiff was considered stating that they have to

leave 10 x 180 feet for the road and they can put the fence to

the extent of 80 x 180 in terms of Ex.P13 dated 23.01.2001.

RSA No. 2122 of 2017

7. The counsel for the appellant would submit that no

dispute with regard to the fact that Ganganna and Venkatappa

have sold the property in favour of Hanumanthaiah in terms of

Ex.P5 and P6 and also no dispute for having purchased the

property by the plaintiff in terms of Ex.P1 on 08.09.2000 from

said Hanumanthaiah. Though the defendants have denied the

title and possession of the plaintiff, the Commissioner was

appointed before the Trial Court. The Trial Court having

considered the Commissioner's report in terms of Ex.C1

granted the decree. However, the First Appellate Court

committed an error in coming to the conclusion that the

plaintiff has not proved the possession over the suit schedule

property as claimed in the plaint. Having considered the

material available on record, it is not in dispute that the

Commissioner was appointed and he has been examined as

CW1 and the Commissioner given the report in terms of Ex.C1

wherein the possession of the plaintiff as measured as per the

survey report to the extent of (87.1+77.2)/2+

(171.8+175.8)/2 and the same is excluding the possession

which was taken by the municipality for formation of road to

the extent of 10 x 180 feet and the same is also elicited in the

RSA No. 2122 of 2017

cross-examination of CW1 who is the ADLR who gave the

report based on the survey report and no doubt she admitted

that she has not inspected the property but surveyor surveyed

the same. But the fact that Ex.C1 is not disputed either by the

plaintiff or by the defendants. However, the Court has

examined the Commissioner. The Trial Court granted the relief

of permanent injunction in respect of the remaining extent of

land measuring 80 x 180 feet. No doubt, the First Appellate

Court taken note of the measurement of the property as

mentioned in the Commissioner's report but committed an error

in dismissing the suit in its entirety in coming to the conclusion

that possession has not been proved. But the Commissioner's

report is very clear that the plaintiff is in possession in respect

of property which is marked in the sketch i.e., A, B, C, D, E and

they have fenced the same and also it consists of tiled house

and also toilet. The defendants property is also measured and

shown as D, E, F, G, H, I in the report and in the sketch. The

Commissioner went and inspected the property, measured the

property and given the report and the defendants have also not

disputed the title but only their contention that the plaintiff is

not in possession. But in the cross-examination of CW1, except

RSA No. 2122 of 2017

eliciting the measurement as mentioned in the Commissioner's

report not disputed that the plaintiff is not in possession and

nothing is suggested to the Commissioner that the plaintiff is

not in possession of the suit schedule property. When such

being the material available on record, the First Appellate Court

ought not to have set aside the judgment and decree of the

Trial Court in its entirety and ought to have granted the relief of

permanent injunction in respect of suit schedule property in

terms of the report of the Commissioner. Hence, the judgment

and decree of the First Appellate Court requires to be set aside

and consequently the plaintiff is entitled for the relief of

permanent injunction in terms of the Commissioner's report as

earmarked in the sketch as A, B, C, D, E to the extent which

has been shown in the Commissioner's report. Thus, this Court

is of the opinion that the plaintiff has proved his lawful

possession over the suit schedule property except a small bit of

land and the First Appellate Court has committed an error in

reversing the judgment and decree of the Trial Court and in

terms of the sketch prepared by the Commissioner, the plaintiff

is entitled for a decree. Though the First Appellate Court relied

upon the Commissioner's report, not justified in reversing the

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RSA No. 2122 of 2017

finding of the Trial Court and the First Appellate Court ignored

the other evidence available on record with regard to the title

of the plaintiff in respect of Ex.P1 under which he had

purchased the property and also failed to take note of Ex.P13

wherein even municipality also given permission to fence the

land to the extent of 80 x 180 feet but actual possession of the

plaintiff is, in terms of sketch i.e., A, B, C, D, E. Hence, I

answer both the substantial question of law as affirmative.

8. In view of the discussions made above, I pass the

following:

ORDER

The appeal is allowed.

The impugned judgment and decree dated 20.09.2017

passed in R.A.No.15/2017 by the First Appellate Court is set

aside. The plaintiff is granted the relief of permanent injunction

in terms of Commissioner's report to the extent of

(87.1+77.2)/2+(171.8+175.8)/2.

Sd/-

JUDGE

SN