Sri Singegowda vs Sri Ningegowda @ Devaraja
2023 Latest Caselaw 4047 Kant

                                                   -1-
                                                          NC: 2023:KHC:23269
                                                             RSA No. 1267 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 6TH DAY OF JULY, 2023

                                                BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                              REGULAR SECOND APPEAL NO.1267 OF 2022
                      BETWEEN:

                      SRI SINGEGOWDA
                      S/O LATE KRISHNEGOWDA,
                      AGED ABOUT 63 YEARS,
                      R/A BEECHANAHALLIPURA,
                      DABBEGHATTA HOBLI,
                      TURUVEKERE TALUK,
                      TUMAKURU DISTRICT - 572 227.
                                                                      ...APPELLANT
                      (BY SRI. BHARGAV G., ADVOCATE)
                      AND:

                      SRI NINGEGOWDA @ DEVARAJA
                      S/O JAVAREGOWDA,
                      AGED ABOUT 46 YEARS,
                      R/A BEECHANAHALLI VILLAGE,
                      DABBEGHATTA HOBLI,
Digitally signed by
THEJASKUMAR N         TURUVEKERE TALUK,
Location: HIGH        TUMAKURU DISTRICT - 572 227.
COURT OF                                                            ...RESPONDENT
KARNATAKA

                           THIS REGULAR SECOND APPEAL IS FILED UNDER
                      SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

                           THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
                      THE COURT DELIVERED THE FOLLOWING:

                                               JUDGMENT

Sri.Bhargav.G., learned counsel for the appellant has

appeared in person.

NC: 2023:KHC:23269 RSA No. 1267 of 2022

2. This is an appeal from the Court of Senior Civil

Judge & JMFC, Turuvekere.

3. For the sake of convenience, the status of the

parties shall be referred to as per their rankings before the Trial

Court.

4. The brief facts of the case are stated as under:

The plaintiff filed a suit for the relief of declaration that he

is the owner in possession of the suit schedule land and also for

permanent injunction restraining the defendants from

interfering with the suit land. The plaintiff described the suit

schedule land as land situated at Beechanahalli, Dabbeghatta

Hobli, Turuvereke Taluk bearing Sy.No.153 (Old 63/17),

measuring 2-19 guntas. It is the contention of the plaintiff that

he is the owner in possession the suit schedule property

measuring to an extent of 02 Acre 20 Guntas and the same was

granted to him under Grant Certificate dated 31.08.1994 in

Sy.No.63/17. At the time of the grant, the property was in

Sy.No.63/17 and after Durasth, it is assigned as Sy.No.153

measuring 02 Acre 20 Guntas. It is said that since the date of

the grant, he is in peaceful possession and enjoyment of the

NC: 2023:KHC:23269 RSA No. 1267 of 2022

said property. It is further contended that the defendant has no

manner of right, title, or interest over the suit land and caused

obstruction. The cause of action arose on 01.07.2011 and he

filed a suit against the defendant.

After the service of the suit summons, the defendant

appeared through his counsel, filed a detailed written

statement and denied the plaint averments. It is contended

that the land bearing Old Sy.No.63/4, New Sy.No.126

measuring to an extent of 01 Acre 03 Guntas situated at

Beechanahalli Village was granted to his father Javaregowda on

01.09.1977. The Grant Certificate was issued in the name of his

father, and he became the absolute owner in possession of the

said property. After the death of his father, he and his brother

succeeded to the said property. It is contended that towards

the eastern side of the property of the defendants, the property

of the plaintiff is situated and the same is less than 1½ Acre

and not 2½ Acre as contended by the plaintiff. It is also

contended that towards the southern side of the property of the

defendants, another property bearing Sy.No.96 measuring to

an extent of 38 Guntas which belongs to them is existing. The

defendant specifically contended that the suit schedule property

NC: 2023:KHC:23269 RSA No. 1267 of 2022

is not in existence. Among other grounds, he prayed for the

dismissal of the suit.

5. Based on the above pleadings, the Trial Court

framed Issues. To substantiate their contention, the respective

parties led evidence and the Court Commissioner also led

evidence as CW1, and documents were marked and exhibited.

On the trial of the action, the Trial Court dismissed the suit.

Aggrieved by the Judgment & Decree of the Trial Court the

plaintiff preferred an appeal before the First Appellate Court.

On appeal, the First Appellate Court confirmed the Judgment &

Decree of the Trial Court and dismissed the appeal. Hence, the

plaintiff has filed this Regular Second Appeal under Section 100

of CPC.

6. Sri.Bhargav.G., learned counsel for the appellant

submits that the Judgments & Decrees of both Courts are

erroneous and illegal. Hence, the same are liable to be set

aside.

Next, he submits that the Trial Court appointed Court

Commissioner to measure the extent of land occupied by both

parties.

NC: 2023:KHC:23269 RSA No. 1267 of 2022

He made a further submission that a Licensed Surveyor

was appointed as Commissioner and in the presence of both

parties and other witnesses, the Surveyor has given clear

findings that the defendant has encroached on the land of the

plaintiff to an extent of 30 Guntas. But both Courts failed to

notice the Commissioner's report.

Sri.Bhargav.G., learned counsel vehemently contended

that the Commissioner's report is neither challenged nor has

been disputed. Hence, both Courts ought to have passed the

Judgment & Decree in favor of the plaintiff.

It is also contended that the plaintiff filed an amended

plaint on 11.11.2013 wherein he pleaded that the defendant

has encroached on his land during the pendency of the suit.

The Commissioner's report also supports the pleadings of the

plaintiff. Therefore, he submits that the reasoning of both

courts is bad in law.

Lastly, he submits that the Judgments & Decrees of both

Courts lack judicial reasoning. Therefore, he submitted that the

second appeal may be admitted, by framing substantial

questions of law.

NC: 2023:KHC:23269 RSA No. 1267 of 2022

7. Heard, the contentions urged on behalf of the

appellant and perused the Judgments & Decrees of both Courts

with utmost care.

The facts have been sufficiently said and the same does

not require reiteration.

The suit giving rise to this appeal was brought by the

plaintiff seeking the relief of declaration, possession and also

for permanent injunction. In the present case, the first question

relates to the extent of the land and the second is about the

Commissioner's report. In my view, what must be considered is

whether the claim of the plaintiff is sustainable in law.

The plaintiff contended that the land bearing Sy.No.153

measures 02 Acre 20 Guntas and he has specifically contended

that the defendant has encroached 30 Guntas of the land,

hence he prayed for a declaration, recovery of possession and

for a permanent injunction. Before this Court also, he has

adhered to the said contention. To substantiate the said

contention, he produced a Grant Certificate dated 31.08.1994.

8. Ex.P.3 is the Phodi Sketch of old Sy.No.63/17 New

Sy.No.153. It is dated 21.04.1999. In the phodi sketch, the

NC: 2023:KHC:23269 RSA No. 1267 of 2022

extent of the land is shown as 01 Acre 04 Guntas including 04

Guntas of karab land. It is relevant to note that the plaintiff has

accepted the extent of the land shown in the phodi report.

Strangely, he is contending that he is the owner and in

possession to an extent of 02 Acres and 20 Guntas and initiated

action against the defendant alleging that the defendant has

encroached on his land to an extent of 30 Guntas.

An attempt is made on behalf of the appellant to contend

that a Licensed Surveyor was appointed to measure the extent

of land occupied by both parties. Learned counsel for the

appellant in presenting his argument strenuously urged that

Commissioner's report reveals that the defendant has

encroached to an extent of 30 Guntas of the land of the

plaintiff. A further attempt is made to contend that in the Phodi

sketch, the extent of land is not properly shown and the same

is incorrect. The said contention cannot be accepted. The

reason is quite simple. After the phodi, the extent of land is

only 01 Acre 04 Guntas including 04 Guntas of karab land and

as already noted above, the plaintiff has accepted the same.

The plaintiff has not made any efforts to rectify the same.

NC: 2023:KHC:23269 RSA No. 1267 of 2022

Hence, the contention that the extent of the land shown in the

phodi is incorrect is satisfactorily hopeless.

It is pivotal to note that plaintiff is not clear about the

extent of the land. The plaintiff contends that land to an extent

of 02 Acre 20 Guntas is granted under the Grant Certificate.

However, in the plaint schedule he has shown the extent of

land as 02 Acre 19 Guntas and he has made an allegation that

defendant has encroached 30 Guntas of land. In my opinion,

the plaintiff is not clear about the extent of land. As already

noted above, after the phodi, the extent of land is shown as 01

Acre 04 Guntas including 04 Guntas of karab land. Plaintiff has

not proved that he is the absolute owner in possession of the

property either to an extent of 02 Acre 20 Guntas or 02 Acre 19

Guntas.

Furthermore, the plaintiff has specifically pleaded that the

defendant has encroached on 30 Guntas of land and sought the

relief of declaration, recovery of possession, and a permanent

injunction restraining the defendant from interfering with his

peaceful possession and enjoyment of 30 Guntas of land. A

careful perusal of the plea would reveal that he is not in

NC: 2023:KHC:23269 RSA No. 1267 of 2022

possession of 30 Guntas of land. When the plaintiff is not in

possession of the property, the question of grant of a

permanent injunction also does not arise.

The right to an injunction is based on a prima-facie right.

whenever a prayer is sought for a permanent injunction, the

plaintiff is liable to prove his lawful possession and enjoyment

of the suit schedule property as on the date of filing of the suit.

The object of injunction is prevention, and the aim is to

maintain status-quo ante. The plaintiff claiming the relief of

perpetual injunction must prove the breach of an obligation or

infringement of a legal right.

It is pivotal to note that the plaintiff has failed to prove

that he is the owner in possession of the suit property as of the

date of filing of the suit.

9. No substantial question of law arises for

consideration in this appeal. As a result, I find no merit in this

appeal, and so, it is dismissed at the stage of admission.

Sd/-

JUDGE TKN