Shri Iragouda Jinagouda Patil vs Shri Dilip Nemagouda Patil
2023 Latest Caselaw 3138 Kant

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                                                           RSA No. 2465 OF 2006




                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 12TH DAY OF JUNE, 2023

                                              BEFORE
                         THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                           REGULAR SECOND APPEAL NO. 2465 OF 2006
                   BETWEEN:

                           SHRI IRAGOUDA JINAGOUDA PATIL
                           SINCE DECEASED BY HIS LRS

                   1.      NALINI @ NILA IRAGOUDA PATIL
                           AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
                           R/O MANGUR-591201,
                           TALUK: CHIKODI, DIST: BELGAUM.

                   2.      MAHAVEER IRAGOUDA PATIL
                           AGE: 47 YEARS, OCC: AGRICULTURE,
                           R/O MANGUR-591201,
                           TALUK: CHIKODI, DIST: BELGAUM.

                   3.      VILAS IRAGOUDA PATIL
SUJATA
                           AGE: 39 YEARS, OCC: AGRICULTURE,
SUBHASH                    R/O MANGUR 591201,
PAMMAR                     TALUK: CHIKODI, DIST: BELGAUM.
Digitally signed
by SUJATA
SUBHASH
PAMMAR             4.      SUBSASH IRAGOUDA PATIL
                           AGE: 37 YEARS, OCC: AGRICULTURE,
                           R/O MANGUR 591201, TALUK: CHIKODI,
                           DIST: BELGAUM.

                   5.      SUREKHA ANANT PATIL
                           AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
                           R/O GIJAVANI-416502,
                           TALUK: GADHINGLAJ,
                           DIST: KOLHAPUR.
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                                       RSA No. 2465 OF 2006



6.    KALAGOUDA JINAGOUDA PATIL
      AGE: 50 YEARS, OCC: AGRICULTURE,
      R/O MANGUR-591201,
      TALUK: CHIKODI, DIST: BELGAUM.

                                               ...APPELLANTS

(BY SRI. B S KAMATE, ADVOCATE)

AND

      SHRI DILIP NEMAGOUDA PATIL
      SINCE DECEASED BY HIS LRS

1.    NALINI DILIP PATIL,
      AGE: 47 YEARS,
      OCC: HOUSEHOLD WORK,
      R/O MANGUR-591201,
      TALUK: CHIKODI, DIST: BELGAUM.

2.    PRASHANT DILIP PATIL
      AGE: 25 YEARS, OCC: STUDENT,
      R/O MANGUR-591201,
      TALUK: CHIKOD, IDIST: BELGAUM.

3.    PRAMOD DILIP PATIL
      AGE: 3 YEARS, OCC: STUDENT,
      R/O MANGUR-591201,
      TALUK: CHIKODI, DIST.BELGAUM.

                                              ...RESPONDENTS

(BY SRI. CHETAN MUNNOLI, ADVOCATE)

      THIS RSA IS FILED U/S 100 CPC PRAYING TO SET ASIDE THE
JUDGMENT     AND   DECREE    DATED:   17.6.2006  PASSED   IN
RA.NO.22/1999 PASSED BY THE LEARNED PRESIDING OFFICER,
(DISTRICT & SESSIONS JUDGE), FAST TRACK COURT-I, CHIKODI,
AND TO RESTORE THE JUDGMENT AND DECREE DATED:6.1.1999
PASSED IN OS.NO. 110/1996 BY THE ADDITIONAL CIVIL JUDGE
(JR.DN.) & JMFC, COURT, CHIKODI BY ALLOWING THIS RSA WITH
COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
30.05.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY COURT
DELIVERED THE FOLLOWING.
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                                          RSA No. 2465 OF 2006




                       JUDGMENT

This is defendants' appeal filed under Section 100 of

Cr.P.C., challenging the judgment and decree passed by

the Presiding Officer, Fast Track Court-I, Chikodi in

R.A.No.22/199 dated 17.06.2006 whereby the learned

District Judge has set aside the judgment and decree

passed by the Additional Civil Judge (Jr.Dn) and JMFC,

Chikodi in O.S.No.110/1996 dismissing the suit of the

plaintiff and decreed the suit of the plaintiff by granting

reliefs as prayed for by the plaintiff.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the Trial Court.

3. The brief factual matrix leading to the case are

that the plaintiff filed a suit against the defendants in

respect of suit property, which is a Gavathana plot No.1 of

Mangur village, measuring 45 x 15 ft shown by letters

'AEFD' in the hand sketch for the relief of permanent

injunction. According to the plaintiff, the entire property

RSA No. 2465 OF 2006

was initially measuring 45 ft east-west and 45 ft north-

south and for the family necessity, the grandfather of the

plaintiff has alienated a portion of the suit property to one

Bharma Appa Biraj under a registered sale deed dated

18.03.1932 measuring 45 x 30 ft and the grandfather of

the plaintiff continued to be in possession to the extent of

45 x 15 ft, which is the suit schedule property. It is

contended that after his death, the father of the plaintiff

has inherited the suit property and after his death, the

plaintiff and his brother are enjoying the suit property and

they have succeeded to the same. It is also alleged that

their names are mutated to the suit property and the

purchaser is in possession of the remaining portion of

property measuring 45 x 30 ft and the plaintiff is using the

suit property for tethering cattle and keeping fodder and

for other activities. It is asserted that the defendants

without having right, title or interest are interfering with

the plaintiff's peaceful possession and enjoyment over the

suit property by attempting to put up temporary shed over

RSA No. 2465 OF 2006

the same and their property is bearing VPC No.116, which

is no way concerned to the suit property. Hence, the suit.

4. The defendants appeared before the Trial Court

and filed their written statement denying the

measurement and location of the suit property as shown in

the hand sketch. It is asserted that the suit property is not

a part of Gavathana Plot No.1 and it is asserted that the

plaintiff is storing fodder and tethering his cattle in the

area adjoining to the house of the defendants wherein he

possesses backyard in Ward No.3 near the house property

bearing VPC No.577. The defendants assert that they are

owners in possession of area measuring 50 ft east-west

and 30 ft north-south adjoining to house property bearing

VPC No.117, which is ancestral property of the defendants

and the said property is bearing VPC No.116. The

defendants have disputed other grounds raised by the

plaintiff and sought for dismissal of the suit.

5. On the basis of the pleadings, the Trial Court

framed the following issues:

RSA No. 2465 OF 2006

1. Whether the plaintiff proves that he along with his brother are in lawful possession of the suit property shown by letters AEFD in the hand sketch map, as on the date of the suit?

2. Whether the plaintiff further proves the alleged obstruction caused by the defendants?

3. Whether the defendants prove that the description of the suit property is not correct?

4. What order or decree?

6. The plaintiff was examined as PW1 and three

witnesses were examined on his behalf as PW2 to PW4.

The plaintiff has placed reliance on six documents marked

at Ex.P1 to Ex.P6. Defendant No.1 was examined as DW1

and two witnesses were examined on their behalf as DW2

and DW3 and they placed reliance on twelve documents

marked at Ex.D1 to Ex.D12. After hearing the arguments

and after appreciating the oral and documentary evidence,

the Trial Court has answered issue No.1 to 3 in the

negative and ultimately dismissed the suit.

RSA No. 2465 OF 2006

7. Being aggrieved by this judgment and decree,

the plaintiff filed an appeal in R.A.No.22/1999 before the

Fast Track Court-I, Chikodi and the learned District Judge

after re-appreciating the oral and documentary evidence,

allowed the appeal by setting aside the judgment of

dismissal of the suit of the plaintiff and decreed the suit by

granting injunction against the defendants in favour of the

plaintiff as prayed for.

8. Being aggrieved by this divergent view taken by

the Appellate Court, the defendants are before this Court.

9. Heard the arguments advanced by the learned

counsel for the appellants and the learned counsel

appearing for the respondent and perused the records.

10. The learned counsel for the appellants would

contend that the parties are adjacent owners and the First

Appellate Court has erroneously reversed the finding of

the Trial Court, which is based on well reasonings. It is

also contended that the suit property is a part of the

property of defendants and the house of the plaintiff is far

RSA No. 2465 OF 2006

away from the suit property and they are tethering their

cattles and storing fodder in Ward No.3, which

presupposes that they are not in possession of the suit

property. It is also contended that the matter was

admitted in 2009 and no injunction was operating since

then and the plaintiff is not in possession. He would

submit that the appeal may be allowed by setting aside

the impugned judgment. He would further assert that the

parties are in settled possession.

11. Per contra, the learned counsel for respondent

would contend that the title of the plaintiff over the suit

property is not specifically denied. It is admitted that 30 x

45 ft area is alienated by the grandfather of the plaintiff

and remaining property is in his possession. He would also

contend that there is no dispute of the fact that Gavathana

Plot No.1 was measuring 45 x 45 ft, out of it only 30 x 45

ft was sold and remaining property is in possession of the

plaintiff. It is asserted that though the defendants assert

that suit property is part of their property bearing VPC

No.116, no document is produced and they have failed to

RSA No. 2465 OF 2006

substantiate the same as the said property bearing VPC

No.116 is not adjoining to the suit property. Hence, he

would contend that the Trial Court has failed to appreciate

oral and documentary evidence in proper perspective and

as such, the First Appellate Court has rightly allowed the

appeal by decreeing the suit of the plaintiff.

12. Having heard the arguments and perusing the

records, this Court by order dated 06.03.2009 has framed

following substantial questions of law:

Whether in a suit for bare injunction, the lower Appellate Court can reverse the finding of the Trial Court merely relying on the revenue entries while the Trial Court had referred to the oral evidence as well as the documentary evidence available on record relating to the possession of the property in question?

13. It is an undisputed fact that Gavathana Plot

No.1 was originally measuring 45 x 45 ft and owned by

plaintiff's grandfather. This aspect is undisputed. It is also

not under serious dispute that the grandfather of the

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RSA No. 2465 OF 2006

plaintiff has sold 45 x 30 ft on the southern side to one

Bharma Biraj on 18.03.1932 and this fact is evidenced by

sale deed at Ex.P6. Further, the legal heir of said

purchaser is also examined as PW4, who has also

supported the claim of the plaintiff. The assertion of the

defendants is that the suit property is a part of VPC

No.116 and it belongs to them and they are the owners of

the suit property. But absolutely no documents have been

produced by the defendants to show that suit property is

part of property bearing VPC No.116.

14. It is also undisputed fact that the property sold

by the grandfather of the plaintiff measuring 30 x 45 ft is

bearing VPC No.117. Records also disclose that the name

of the plaintiff is mutated to the suit property all along.

Interestingly, the Trial Court in Page No.22 of the

impugned judgment has observed that the open space

belonging to the plaintiff measuring 45 x 15 ft is there to

the northern side of the property sold to Bharma Biraj. But

again it has gone to observe that the property of the

defendants is bearing VPC No.116 and presumed that

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RSA No. 2465 OF 2006

there is an open space on the northern side measuring 45

x 15 ft. What was the basis for this observation is not at

all forthcoming as VPC No.116 is not at all adjoining to

Gavathan Plot No.1.

15. Admittedly, the southern portion of Gavathan

Plot No.1 was sold to Bharma Biraj i.e. the father of PW4

and northern portion continued to be in possession of the

plaintiff's family. In what way the defendants are claiming

possession over the suit property is not at all forthcoming.

They have not produced any documents to show that the

suit property is part of VPC No.116 so as to claim that they

are in possession of the suit property as owners. Further,

the main presumption raised by the Trial Court and

arguments of the learned counsel for the appellant is that

the plaintiff is having a cattle shed and storing fodder in

an open space in Ward No.3 adjoining to VPC No.116.

Admittedly, the house of the plaintiff is not adjoining to

the suit property. The suit property is an independent

open space of Gavathana plot No.1, a part of which was

sold to Bharama Biraj under Ex.P6. The property of the

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RSA No. 2465 OF 2006

defendants bearing VPC No.116 is not adjoining to the suit

property. Merely because the plaintiff is tethering their

cattle in backyard of their house and storing fodder there,

it cannot be presumed that they are not in possession of

the suit property. The plaintiff is using the suit property in

different ways and it is his discretion. The title of the

plaintiff over the suit property is not seriously challenged

and only halfhearted attempt has been made. Even on

perusal of the oral and documentary evidence and

admissions given by defendants clearly establish that the

defendants are not in possession of the suit property and

in what way they are laying their claim over the suit

property is not at all forthcoming. The oral and

documentary evidence produced by the plaintiff establish

that it is the plaintiff, who is in possession of the suit

property along with his brother.

16. Ex.D7 to Ex.D10 are not the documents

pertaining to the suit property and Ex.D1 to Ex.D6

photographs does not prove the possession of the

defendants.

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RSA No. 2465 OF 2006

17. The Trial Court only on the basis of presumption

and assumption proceeded to dismiss the suit without

appreciating the oral and documentary evidence placed on

record. It has misread the evidence and the First Appellate

Court has appreciated the oral and documentary evidence

in detail and has rightly allowed the appeal by decreeing

the suit of the plaintiff. There is no bar for the First

Appellate Court to reverse the finding of the Trial Court

and records also disclose that it is not only on the basis of

revenue entries but on proper appreciation of oral as well

as documentary evidence and hence, the judgment and

decree of the First Appellate Court cannot be said to be

erroneous or arbitrary so as to call for any interference.

The arguments that the parties are in settled possession

has no base at all and the arguments that there was no

injunction operating as against the defendants since long

time, does not give any legal rights to the defendants.

Accordingly, the substantial question of law is answered in

favour of the plaintiff-respondent herein and hence, the

appeal being devoid of any merits, does not survive for

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RSA No. 2465 OF 2006

consideration. Accordingly, I proceed to pass the

following:

ORDER

The appeal stands dismissed with 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

YAN