Sri K B Singregowda vs Sri Narayana
2023 Latest Caselaw 614 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 R.S.A.NO.1102/2022 (INJ)

BETWEEN:

1.     SRI K.B. SINGREGOWDA
       S/O LATE BETTEGOWDA
       AGED ABOUT 80 YEARS

2.     SRI MANJU
       S/O K.B. SINGEREGOWDA
       AGED ABOUT 45 YEARS

       BOTH APPELLANTS ARE
       R/AT KALLAHALLI VILLAGE
       JAYAPURA HOBLI, MYSURU TALUK
       MYSURU DISTRICT 571 105.             ... APPELLANTS

              [BY SRI KUMARA K.G., ADVOCATE]
AND:

SRI NARAYANA
S/O LATE BETTEGOWDA
AGED ABOUT 55 YEARS
R/AT KALLAHALLI VILALGE
JAYAPURA HOBLI
MYSURU TALUK-571 105                        ... RESPONDENT

     THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 06.04.2022
PASSED IN RA.No.129/2021 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
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10.08.2021 PASSED IN OS No.1777/2012 ON THE FILE OF THE
XI ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU.

    THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 06.04.2022 passed in R.A.No.129/2021 on the file

of the I Additional Senior Civil Judge and CJM at Mysuru.

3. The factual matrix of the case of the plaintiff before

the Trial Court in O.S.No.1777/2012 is that the plaintiff is the

absolute owner of the suit schedule property bearing Sy.No.86

measuring 4 acres and 1 gunta situated at Kallahalli Village,

Jayapura Hobli, Mysuru Taluk. The said property was the

ancestral property of plaintiff and defendant No.1, which was

fallen to the share of plaintiff in the partition. Since then the

plaintiff was in possession and enjoyment of the suit schedule

property and he was paying the revenue to the suit schedule

property. The defendants have no manner of right and title in

respect of the suit schedule property. The defendants have tried

to cut down the trees existing in the suit schedule property.

Hence, the plaintiff has lodged a complaint to the jurisdictional

Police. The Police have advised the plaintiff to approach the Civil

Court. Again on 05.04.2012, the defendants came to suit

schedule property and tried to cut down the tress. Hence, the

plaintiff approached the village panchayathdars, it went on vain.

Hence, the plaintiff without having any other alternative remedy,

he has approached the Court.

4. In pursuance of the suit filed by the plaintiff, notice

was ordered. The defendants have appeared before the Court

through their counsel and filed the written statement admitting

that the suit schedule property was the ancestral property of

their family. The suit schedule property fallen to the share of

defendant No.1 by virtue of panchayath palu parikath held on

23.07.2003. But the Khatha was standing in the name of the

plaintiff. Therefore, by taking the advantage of the same and in

order to snatch away the suit schedule property from the

defendants, the plaintiff has filed a false suit. It is contended

that from the year 1981, the defendants are in possession and

enjoyment of the suit schedule property. In view of the

pleadings, the Trial Court has framed the issues with regard to

whether the plaintiff is in possession and enjoyment of the suit

schedule property and whether there is interference.

5. The plaintiff in order to prove his case examined

himself as P.W.1 and got marked the documents as Exs.P1 to

P25. On the other hand, defendant No.1 has examined himself

as D.W.1 and got marked the documents as Exs.D1 to P10.

6. The Trial Court after considering both oral and

documentary evidence available on record, decreed the suit and

came to the conclusion that the plaintiff is in possession of the

suit schedule property and all the revenue documents are

standing in the name of the plaintiff and as on the date of filing

of the suit also, the documents are standing in the name of the

plaintiff. Hence, the plaintiff has made out a case to grant the

relief of permanent injunction and there was an interference at

the hands of the defendants. Hence, answered issue Nos.1 and 2

as 'affirmative'. Being aggrieved by the judgment and decree of

the Trial Court, the defendants have filed an appeal in

R.A.No.129/2021 before the First Appellate Court, wherein also,

they raised the very same grounds that P.W.1 in the cross-

examination admitted when suggestion was made that whether

the defendants are in possession of the suit schedule property.

P.W.1 has given the answer that 'no one is in possession'. The

learned counsel would submit that it is very clear that the

plaintiff is also not in possession. In spite of the said admission,

the Trial Court has committed an error in granting the decree.

The First Appellate Court also failed to take note of the said

admission and committed an error in coming to the conclusion

that the Trial Court has not committed any error in appreciating

both oral and documentary evidence. The learned counsel also

would submit that the First Appellate Court not properly re-

appreciated the evidence. Hence, it requires interference.

7. Having heard the learned counsel appearing for the

appellant and also on perusal of the material available on record,

it is the claim of the plaintiff that there was a partition in the

family and the suit schedule property is allotted to the share of

the plaintiff and he has been in possession of the suit schedule

property and all the revenue records are standing in his name.

No doubt, in the cross examination of P.W.1, when suggestion

was made that whether the defendants are in possession, he has

given the reply that 'no one is in possession'.

8. The learned counsel appearing for the appellants

would vehemently contend that the very answer itself is clear

that the plaintiff is also not in possession. But it has to be noted

that in the written statement, a specific defense was taken by

the defendants that the suit schedule property was fallen to the

share of the defendants in terms of the partition entered into

between the parties on 23.07.2003. The only contention of the

appellants/defendants is that the Khatha is standing in the name

of the plaintiff. Taking the advantage of the same, the plaintiff

contends that he has been in possession. When the defendants

took the defense that the partition was effected on 23.07.2003

and by virtue of panchayath palu parikath, the property allotted

to him. Neither the defendants nor the plaintiff have produced

the panchayath palu parikath. Hence, the Trial Court also while

considering the material on record in paragraph No.26 made an

observation that, non production of panchayath palu patti by

plaintiff itself does not take away the fact of possession of

plaintiff in the suit schedule property since all the documents are

standing in the name of the plaintiff. The defendant No.1 having

custody of the panchayath palu patti with-held it and he did not

produce the same. Hence, adverse inference also drawn in

favour of the plaintiff by the Trial Court. Apart from that, the

Trial Court in paragraph No.23 taken note of the documents -

Exs.P1, P2, P8, P9 and P10 RTCs and Ex.P5 Patta Book, all the

revenue records are standing in the name of the plaintiff, the

same is not disputed by the defendants. The only contention is

that taking the advantage of the revenue entries standing in his

name, he is claiming the right. The Trial Court in paragraph

No.23 taken note of Exs.D3 to D5, which clearly discloses the

name of the plaintiff as owner and cultivator of the suit schedule

property effected from the year 1986 as per I.H.R.6/84-85 and

also taken note of Section 133 of the Karnataka land Revenue

Act and the genuineness of such entry can also be presumed

true under Section 79 of the Evidence Act. The First Appellate

Court on perusal of the material available on record and also the

grounds urged in the appeal formulated two points viz., whether

the Trial Court committed an error in granting the decree and

taken note of the documents which have been produced by the

plaintiff in paragraph No.18 and also taken note of an answer

elicited from the mouth of D.W.1 in paragraph No.23, wherein,

D.W.1 admitted that the schedule property standing in the name

of the plaintiff and also admits that he himself and the plaintiff

are residing separately from the last 20 years. Hence, came to

the conclusion by taking note of the admission that the plaintiff

and defendants in the suit have partitioned their properties.

When the defendants claim that in the partition, the suit

schedule properties allotted in his favour, he has not made any

efforts to change the revenue records to his name, also not

disputes the fact that all the revenue records are standing in the

name of the plaintiff. In the further cross-examination he

admits that all the revenue records are standing in his brother's

name and also the plaintiff has obtained the loan from the Axis

Bank. Hence, taking into note of the same, in paragraph No.24,

the First Appellate Court discussed the same that all the revenue

records are standing in the name of the plaintiff and also the

plaintiff has obtained the loan from the Axis Bank based on the

documents standing in his name and taken note of Section 133

of the Karnataka land Revenue Act and considering all these

materials available on record, in detail discussed in the appeal

and came to the conclusion that the Trial Court has not

committed any error. Both the Courts have given the finding that

all the revenue entries are standing in the name of the plaintiff

and the same is admitted by D.W.1. D.W.1 also admitted in the

cross-examination that his brother had availed the loan from

Axis Bank. The only contention raised by the learned counsel for

the appellants is that in the cross-examination when the

suggestion was made to P.W.1 that whether defendant is in

possession and he has given the answer that 'no one is in

possession', that amounts, the plaintiff also not in possession.

The said contention cannot be accepted.

9. Taking into note of the evidence of P.W.1 and D.W.1,

both the Courts have given the finding that the plaintiff is in

possession of the property and all the revenue records are

standing in the name of the plaintiff, the same is also not

disputed and the same is admitted by the first defendant in the

cross-examination that all the revenue records are standing in

the name of the plaintiff and also the plaintiff has availed the

loan from the Axis Bank. When such being the material available

on record and both the Courts have taken note of Section 79 of

the Evidence Act and Section 133 of the Karnataka land Revenue

Act, given the finding both on the question of fact and question

of law and came to the conclusion that the plaintiff has proved

the possession. When such being the material available on

record, I do not find any error committed by the Trial Court as

well as the First Appellate Court and I do not find any ground to

invoke Section 100 of CPC., to frame any substantial question of

law and also I do not find any perversity in the order of the Trial

Court as well as the First Appellate Court. When the finding is

not perverse, the question of invoking the jurisdiction by framing

the substantial question of law does not arise.

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

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.As, if any, do not

survive for consideration, the same stand disposed of.

Sd/-

JUDGE

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