Karnataka High Court
Smt.Sharada Chavan W/O Sri.Ram ... vs Bheemratna Seva Sangha on 19 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
-1-
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 200406 OF 2014
(DEC/POS)
BETWEEN:
1. SMT. SHARADA CHAVAN
W/O SRI RAM S.CHAVAN
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD,
R/O NRUPTUNGA COLONY,
SHAHBAD ROAD, GULBARGA-585102
BY HER POA SRI. SUNDAR
S/O SHANKAR CHAVAN,
AGE: 60 YEARS, OCC: SERVICE,
R/O AJ-2, KEB COLONY,
OLD JEWARGI ROAD,
Digitally signed by
RAMESH MATHAPATI GULBARGA-585102.
Location: HIGH COURT
OF KARNATAKA
...APPELLANT
(BY SMT NEEVA M. CHIMKOD, ADVOCATE)
AND:
1. BHEEMRATNA SEVA SANGHA
THROUGH ITS PRESIDENT
AMBARAYYA S/O NAGAPPA BABLAD
AGE: 43 YEARS, OCC: PVT. SERVICE,
R/O HOUSE NO.EWS-55
SARVODAYA NAGAR, RAJAPUR,
-2-
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
GULBARGA-585102
2. SRI. RAJENDRA
S/O NARAYANA GAYAKWAD
AGED ABOUT 36 YEARS,
OCC: PVT. SERVICE,
R/O H.NO.2-911/6/26,
BEHIND PETROL PUMP,
PRASHANTH NAGAR, RAJAPUR,
GULBARGA-585102.
3. SRI. GOUTAM BUDDHA
S/O GYANADEV KAMBLE
AGE: 36 YEARS, OCC: GOVERNMENT SERVANT
R/O H.NO.19-20, SARVODAYA NAGAR,
RAJAPUR, GULBARGA-585102.
4. SRI. MOHAN ANAND
S/O MAREPPA SUGANDHI
AGED ABOUT 25 YEARS,
OCC: BUSINESS,
C/O SUGANDHI PHOTO STUDIO
RAJAPUR, SHAHBAD ROAD.
GULBARGA-585102.
...RESPONDENTS
(NOTICE TO R2 & R3 ARE SERVED; V/O DATED 13.07.2021
SERVICE OF NOTICE TO R4 HELD SUFFICIENT;
V/O DATED 27.10.2021 THERE IS NO REQUIREMENT OF
TAKING STEPS IN R/O R1)
THIS RSA IS FILED U/S 100 CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 11.09.2013 IN
O.S.NO.206/2013 PASSED BY V ADDL. CIVIL JUDGE AND JMFC,
GULBARGA AND JUDGMENT AND DECREE DATED 09.09.2014
IN R.A.NO.127/2013 PASSED BY II ADDL. SR. CIVIL JUDGE,
GULBARGA AND DECREE THE SUIT FILED BY THE APPELLANT
AND GRANT COSTS OF THIS APPEAL AND GRANT SUCH OTHER
OR FURTHER RELIEF/S AS THIS HON'BLE COURT MAY DEEM
FIT IN THE CIRCUMSTANCES OF THE CASE.
-3-
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is an appeal by the plaintiff.
2. Sharada Chavan--the plaintiff instituted a suit
seeking for a declaration that she was the owner in
possession of the suit property (the open land measuring
10 feet x 8 feet).
3. Defendant Nos.1, 2 and 4 were served and were
placed ex parte. Defendant No.3, though entered
appearance, did not contest the suit.
4. The Trial Court, in view of the fact that there was no
contest, proceeded to decree the suit and held that the
plaintiff was the owner and possessor of the suit property.
An injunction was also granted restraining the defendants
from interfering with her possession.
5. However, since the prayer for mandatory injunction
i.e., to remove the platform was not granted, Sharada
Chavan preferred an appeal.
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
6. The Appellate Court, however, dismissed the appeal,
though it observed that the Trial Court had not stated
anything about the possession and also removal of the so
called illegal structures. The Appellate Court held that the
prayer of mandatory injunction could not be granted.
7. Being aggrieved by this judgment of the Appellate
Court insofar as it relates to the refusal of the mandatory
injunction, present second appeal has been preferred and
admitted to consider the following substantial questions of
law:
" 1. In the absence of the defendants
contesting the suit of the plaintiff by filing
written statement or by cross-examining
the plaintiff, whether the Trial Court and
the first appellate Court ought to have
drawn adverse inference against the
plaintiff for not examining any other
witnesses?
2. The defendants not having contested the
suit and having regard to the Order 8
Rule 10 of CPC, whether the prayer made
by the plaintiff in the suit ought not to
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
have been granted by the Trial Court and
the first appellate Court?
3. Whether the finding of the first appellate
Court that the case of the plaintiff that he
is running a petrol bunk is incorrect since
in the photographs produced at Exs.P19
and P20, the petrol bunk is clearly visible
and forthcoming and hence the finding of
the first appellate Court in that regard is
erroneous? "
8. An application has been filed in this second appeal
seeking to produce additional documents. The additional
document sought to be produced is a decision rendered by
this Court in Criminal Petition No.201054 of 2015, which
has been filed by the husband of Sharada Chavan and the
brothers-in-law of Sharada Chavan challenging the
registration of CC No.2078 of 2015 against them. This
Court while quashing the charge-sheet has held as follows:
" 17. While doing so, jurisdictional
police is hereby directed to provide
protection to the petitioners, their
family members and property in
question which is the private property
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
of wife of first petitioner viz.,
Smt.Sharda Chavan. They shall ensure
that no platform is either erected or
allowed to be standing on the said land
and that any flag or any other board,
sign shall be allowed to be erected or
standing thereon. Further, no one
should be permitted to put up photos
of Basavanna or Dr.Ambedkar or any
other religious leaders on the said
property.
18. The jurisdictional police shall
protect the enjoyment of ownership of
the said property by the rightful owner
as against the claim of second
respondent complainant and other
members of Bheemaratna Sevan
Sangha, Sarvodaya Nagar, Rajapur,
Gulbarga or any other persons claiming
any right or title over the said property
as against the title of Smt.Sharada
Chavan which is already recognized by
competent Court of law. "
9. As could be seen from the above order, this Court
has already granted the relief that Sharada Chavan was
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
seeking for and the prayer for mandatory injunction has
already been granted in the said Criminal Petition.
10. However, learned counsel for the appellant submits
that there is no formal decree enabling the plaintiff to
secure possession of the disputed portion and therefore it
would be necessary to clarify that the plaintiff would be
entitled to seek possession of the disputed portion and
also remove structures, if any existing on the disputed
portion.
11. It cannot be in dispute that once the Court declared
Sharada Chavan to be the rightful owner of the property,
it would also follow that she will be entitled to possession
of the said land. Keeping in mind, that the Courts below
have affirmed the order of injunction, it will be necessary
to clarify that Sharada Chavan would be entitled to
possession of the disputed portion over which a platform
has been constructed. She would also be entitled to
remove the structures, if they do exist.
NC: 2023:KHC-K:5543
RSA No. 200406 of 2014
12. In view of the above, the substantial questions of law
are answered in favour of the appellant and the appeal is
accordingly allowed.
Sd/-
JUDGE
RK
