Karnataka High Court
Shivappa S/O. Rayappa Amboji vs Veerupaxappa S/O. Huchappa ... on 5 July, 2023
Bench: Rajendra Badamikar
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NC: 2023:KHC-D:6707
RSA No. 5050 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5050 OF 2012 (DEC/INJ-)
BETWEEN:
1. SHIVARAYAPPA S/O RAYAPPA AMBOJI,
AGE: 65 YEARS, OCC: AGRICULTURE,
2. ADIVEPPA S/O RAYAPPA AMBOJI
AGE: 62 YEARS, OCC: AGRICULTURE,
3. LAKSHMIBAI W/O MANJAPPA AMBOJI
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
4. MAHAVEER S/O MANJAPPA AMBOJI
AGE: 10 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HIS NATURAL MOTHER LAKSHMIBAI AMBOJI.
5. SANTOSH S/O MANJAPPA AMBOJI
Digitally
signed by
AGE: 10 YEARS, OCC: STUDENT,
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.07.10
11:11:58 -
0700
SINCE MINOR REPRESENTED
BY HIS NATURAL MOTHER LAKSHMIBAI AMBOJI.
6. ANAND S/O MANJAPPA AMBOJI
AGE: 10 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED
BY HIS NATURAL MOTHER LAKSHMIBAI AMBOJI.
7. RAMACHANDRAPPA S/O RAYAPPA AMBOJI
AGE: 28 YEARS, OCC: AGRICULTURE,
8. IRANNA S/O HALAPPA HAUNSHI
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RSA No. 5050 of 2012
AGE: 29 YEARS, OCC: AGRICULTURE,
9. VADHARMAN S/O HALAPPA HAUNSHI
AGE: 32 YEARS, OCC: AGRICULTURE,
10. NAGARAJ S/O RAMACHANDRAPPA AMBOJI
AGE: 16 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY HIS FATHER
RAMACHANDRAPPA AMBOJI.
11. KIRAN S/O RAMACHANDRAPPA AMBOJI
AGE: 14 YEARS, OCC: STUDENT.
SINCE MINOR REPRESENTED BY HIS FATHER
RAMACHANDRAPPA AMBOJI.
ALL R/O: BANNIKOPPA,
TQ: SHIRAHATTI, DIST: GADAG-581135.
...APPELLANTS
(BY SRI. LAXMAN T MANTAGANI, ADVOCATE)
AND:
VEERUPAXAPPA S/O HUCHAPPA MAGADI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: BANNIKOPPA, TQ: SHIRHATTI,
DIST: GADAG-581135.
...RESPONDENT
(BY SRI. G.N.NARASAMMANAVAR FOR C/R1, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF C.P.C., AGAINST THE
JUDGEMENT & DECREE DTD:12.12.2011 PASSED IN
R.A.N0.37/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
LAXMESHWAR, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DTD:22.03.2011 AND THE DECREE PASSED IN OS
NO.17/2008 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND
JMFC., LAXMESHWAR, DECREEING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 5050 of 2012
JUDGMENT
This appeal is filed by the defendant challenging the
judgment and decree passed by the Civil Judge (Jr.Dn),
Laxmeshwar in O.S.No.17/2008 dated 22.03.2011, which is
confirmed in R.A.No.37/2011 by the Senior Civil Judge
Laxmeshar vide judgment dated 12.12.2011.
2. For the sake of convenience, the parties herein are
referred with the ranks occupied by them before the Trial
Court.
3. The brief factual matrix leading to the case are that
the suit schedule property is an agricultural land bearing
Survey No.209/3 measuring 2 acres 39 guntas with specific
boundaries shown in the schedule. It is the contention of the
plaintiff that on the southern side of the suit property, the land
of defendants is situated and in the sketch, the suit property is
shown by letters as "ABCD" and the land of the defendants is
shown by letters as "DEFG". It is further asserted that there are
three tamarind trees shown as "M", "N" and "O" and one
banyan tree shown as "P" in the suit schedule property of the
plaintiff. It is further asserted that there is a bund with height
of 10-15 ft in between the land of the plaintiff and defendants.
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It is asserted that the suit trees are old trees existing from the
time of plaintiff's ancestors and plaintiff is enjoying the fruits of
the trees all along. The defendants have no right, title or
interest over the same and defendants 1 to 8 are joint owners
in enjoyment of Survey No.212/4 and defendants 5 and 6 are
in possession of Survey No.212/3. It is alleged that the
defendants obstructed by trespassing into the suit property and
attempted to get the fruits from the suit properties. Hence, the
suit for injunction.
4. The defendants appeared through their counsel and
filed their written statement disputing the claim of the plaintiff.
They also disputed the hand sketch map produced by the
plaintiff. It is asserted that defendants 1 to 4 were separated
20-25 years back by dividing their lands bearing Survey
No.202/4, which is divided into four sub-divisions. They denied
the existence of 10-15 ft height bund between the properties.
It is asserted by the defendants that the tamarind tree shown
in letter "M" is situated in the land of defendants 5 and 6,
tamarind tree shown in letter "N" is situated in the land of
defendant No.4 and tamarind tree shown in letter "O" is
situated in the land of defendant No.2 and a banyan tree shown
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in letter "P" is situated in the land of defendant No.1. It is the
specific contention of the defendants that they have put up
bund long back in order to avoid soil errosion and they are in
possession and enjoyment of the same. They disputed the
other claims. Hence, they sought for dismissal of the suit.
5. On the basis of the pleadings, the Trial Court
framed following five issues.
1. Whether the plaintiffs prove that he is the
absolute owner in possession of the trees?
2. Whether the plaintiffs prove that the defendants
made an attempt to interfere with his peaceful
possession and enjoyment of suit tamarind
trees?
3. Whether the plaintiff is entitle for the relief of
declaration as prayed in the suit?
4. Whether the plaintiff is entitle for the relief of
permanent injunction as prayed in the suit?
5. What order or decree?
6. The plaintiff was examined as PW1 and one witness
was examined on his behalf as PW2. Further, the plaintiff relied
on seven documents marked at Ex.P1 to Ex.P7. Defendant No.1
was examined as DW1 and two witnesses were examined as
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DW2 and DW3. The defendants relied on documents marked at
Ex.D1 to Ex.D7 and Ex.D1(a) to Ex.D7(a).
7. After hearing the arguments and appreciating the
oral as well as documentary evidence, the trial Court has
answered Issue Nos.1 to 4 in the affirmative and ultimately
decreed the suit. Being aggrieved by the said judgment and
decree, the defendants approached the Senior Civil Judge
Laxmeshwar in R.A.No.37/2011 and the learned Senior Civil
Judge, after re-appreciating the oral as well as documentary
evidence, dismissed the appeal vide judgment dated
12.12.2011 by confirming the judgment and decree of the Trial
Court. Being aggrieved by these concurrent findings, the
defendants are before this Court.
8. Heard the arguments advanced by the learned
counsel for the appellants.
9. This Court by order dated 21.01.2014 has framed
the following substantial question of law:
"Whether the trial Court and the first appellate Court
have committed a serious error in giving much
importance to Ex.P7, the sketch prepared by the
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surveyor, when the authenticity of the same being
not vouchsafed by examining its author?"
10. The learned counsel for the appellants would
contend that both the Courts below have failed to appreciate
the admissions given by the plaintiff and his witnesses and only
placed reliance on the admissions given by the defendant in the
cross-examination. He would also contend that the Trial Court
has failed to appreciate the oral and documentary evidence in
proper perspective and the First Appellate Court has not re-
appreciated the evidence in proper way. He would also contend
that both the Courts below have proceeded to decree the suit
only on the basis of survey sketch and report under Ex.P7,
which is not authenticated. Hence, he would seek for setting
aside the impugned judgment and decree of the Trial Court
which is confirmed by the First appellate Court by allowing the
appeal.
11. Per contra, learned counsel for the respondent
would support the judgment and decree of the Trial Court and
he would invite the attention of the Court to the admissions
given by DW1 in his cross-examination wherein he has
admitted specifically that suit trees are situated in the land of
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the plaintiff and he has also obstructed for survey and putting
up boundary stones. He would also contend that both the
Courts below have not only relied on Ex.P7 but the admission
given by DW1 was also properly appreciated and hence, he
would assert that both the Courts are justified in decreeing the
suit and the judgments and decrees of both the Courts below
do not suffer from any infirmity or illegality so as to call for
interference by this Court.
12. Having heard the arguments and perusing the
records, it is evident that the plaintiff has filed this suit for bare
injunction. The plaintiff has not sought the relief of declaration
of his title. The contention of the learned counsel for the
appellants that the suit cannot be entertained in view of non
seeking relief of title by the plaintiff, holds no water as the
relief is restricted to injunction based on lawful possession. The
learned counsel for the appellants has invited the attention of
the Court towards cross-examination of PW1, but that cross-
examination only reveals the situation of existing bund.
Interestingly, during the course of cross-examination of PW1,
there was a suggestion regarding existence of bund measuring
about 10-15 ft height between the property of the plaintiff and
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defendants. However, in the written statement, the very
existence of the bund is disputed by the defendants and in the
subsequent portion of the written statement, they asserted that
the bund is put up by them, which is inconsistent and contrary.
13. Ex.P7 is the sketch and no doubt the author of the
said document is not examined. However, Ex.P7 coupled with
the cross-examination of DW1 wherein he has admitted that
two surveyors visited the land twice and measured the lands
and he objected for putting up boundary stones. He has also
admitted that there are three tamarind trees and one banyan
tree in the land of the plaintiff. He admits that, there was a
mango tree in his land, which he has uprooted. He further
admits that the ancestors of the plaintiff have put the bund in
order to avoid errosion of soil. He further admits that on the
southern side of the bund, their land is situated and there is a
road measuring about 15 feet adjoining to the bund and after
that road, he is cultivating his land. This admission on the part
of the defendants goes to the very root of the case wherein he
admits that suit trees are situated in the land of the plaintiff.
Under such circumstances, now the arguments that Ex.P7
cannot be looked into, holds no water in view of the fact that
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the DW1 himself admitted the survey of the land. Even ignoring
Ex.P7, the admission given by the DW1 clearly establishes that
the suit trees are situated in the land of the plaintiff.
14. Both the courts below have appreciated all these
aspects in proper perspective by analyzing the oral and
documentary evidence in accordance with law. The judgment
and decree of the Trial Court, confirmed by the First Appellate
Court, does not suffer from any infirmity or arbitrariness so as
to call for interference. Considering these facts and
circumstances, the substantial question of law framed is
answered in the negative and as such, the appeal fails.
Accordingly, I proceed to pass the following:
ORDER
The appeal stands dismissed. No order as to
costs.
In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
JUDGE
