Karnataka High Court
Basaveshwara Kumar vs Mahadevaiah on 9 March, 2023
Bench: H.P.Sandesh
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RSA No. 1974 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1974 OF 2018 (INJ)
BETWEEN:
1. BASAVESHWARA KUMAR
S/O. LATE SHIVANNA,
AGED ABOUT 54 YEARS
2. JAYADEVAPPA
S/O. LATE REVANASIDDAIAH,
AGED ABOUT 74 YEARS
3. SHIVANNA
SINCE DECEASED,
REPRESENTED BY HIS LRS
3(a) K.B.SARVAMANGALA
W/O. SHIVANNA,
Digitally signed AGED ABOUT 70 YEARS,
by SHARANYA T
Location: HIGH
COURT OF 3(b) K.S.VISWANATH
KARNATAKA
S/O. SHIVANNA,
AGED ABOUT 47 YEARS
3(c) K.S. ANNAPURNA
D/O. SHIVANNA,
AGED ABOUT 50 YEARS
3(d) K.S.VASANTHA KUMARI
D/O. SHIVANNA,
AGED ABOUT 52 YEARS
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RSA No. 1974 of 2018
ALL ARE R/O. KADABA,
GUBBI TALUK,
TUMKUR DISTRICT-572 101.
...APPELLANTS
(BY SRI. M.V.HIREMATH, ADVOCATE FOR
SRI NIRANJANA SWAMY H.M., ADVOCATE)
AND:
1. MAHADEVAIAH
S/O. NARASIMHAIAH,
AGED ABOUT 64 YEARS
R/O. KADASHETTIHALLI,
KADABA HOBLI,
GUBBI TALUK-572 101.
...RESPONDENT
(BY SRI. M.B.CHANDRA CHOODA, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 09.07.2018 PASSED IN
R.A.NO.50/2014, ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE AND JMFC, GUBBI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
20.10.2014 PASSED IN O.S.NO.55/2010 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, GUBBI.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondent.
2. This appeal is filed challenging the judgment and
decree passed in R.A.No.50/2014 dated 09.07.2018 on the file
of the Additional Senior Civil Judge and JMFC, Gubbi, reversing
RSA No. 1974 of 2018
the judgment and decree dated 20.10.2014 passed by the
Court of Principal Civil Judge, (Junior Division) and JMFC,
Gubbi decreeing the suit in O.S.No.55/2010 seeking the relief
of permanent injunction.
3. The factual matrix of the case of the plaintiff before
the Trial Court in O.S.No.55/2010 is that he has filed the suit
against the defendants for permanent injunction in respect of
property bearing Sy.No.18/1, totally measuring about 5 acres,
11 guntas, out of which, 20 guntas of land situated at
Kadashettihalli, Kasaba Hobli, Gubbi Taluk, which is morefully
described in the schedule. It is stated in the plaint that the
plaintiff is the absolute owner in possession of the suit schedule
property, having acquired the same through family partition
and all the revenue documents stands in the name of plaintiff
and he has raised crops regularly and paying kandayam to the
Government. Except plaintiff, no one has got right in respect of
the suit schedule property and the defendants are the
strangers, who have no manner of right, title or interest over
the suit schedule property. Hence, prayed the Court to grant
the relief of permanent injunction.
RSA No. 1974 of 2018
4. In pursuance of the suit summons, the defendants
appeared and filed the written statement contending that the
suit schedule property originally belongs to one Rudramma
measuring total 6 acres, 17 guntas and the plaintiff is utter
stranger not only to family of defendant No.1 and also to suit
schedule property and he played fraud before revenue
authority, by giving false declaration to the effect that suit
schedule survey number is ancestral property of him and other
members of the family and he got succeeded to obtain khata
and pahani into his name illegally without any authority, in
respect of suit schedule property and trying to interfere with
peaceful possession and enjoyment of the suit schedule
property by the defendant No.1. It is also their contention
that, with regard to the revenue entries is concerned, an appeal
is filed before the Assistant Commissioner and the same is
pending.
5. Based on the pleadings of the parties, the Trial
Court has framed the issues with regard to possession and
interference and the plaintiff examined himself as P.W.1 and
got marked the documents as Exs.P1 to P4. On the other
hand, the defendant No.1 examined himself as D.W.1 and
RSA No. 1974 of 2018
examined one witness as D.W.2 and got marked the documents
as Exs.D1 to D9.
6. The Trial Court, after considering both oral and
documentary evidence placed on record, comes to the
conclusion that the plaintiff has not made out the case to grant
the relief of permanent injunction and dismissed the suit.
Being aggrieved by the judgment and decree of the Trial Court,
an appeal is filed by the plaintiff and the same is numbered as
R.A.No.50/2014, wherein the contention of the plaintiff before
the First Appellate Court is that the Trial Court has committed
an error in coming to the conclusion that the plaintiff has not
been in possession, inspite of the revenue documents being
produced before the Court which evidence the fact that the
plaintiff is in possession of the property. The First Appellate
Court also, on considering the material available on record,
formulated the point whether the plaintiff proves that he is in
lawful possession over the suit schedule property as on the
date of the suit, whether the plaintiff proves the alleged
interference by the defendants and whether the plaintiff is
entitled for the relief of injunction. The First Appellate Court
also formulated the points whether the Trial Court has erred in
RSA No. 1974 of 2018
coming to the conclusion that the plaintiff was not in possession
and enjoyment of the suit schedule property by wrongly relying
on the oral evidence adduced by the defendants. The plaintiff
has also sought to produce additional evidence before the First
Appellate Court by filing an application which is numbered as
I.A.No.III and whether the findings of the Trial Court is
perverse.
7. The First Appellate Court, considering the material
available on record, answered issue Nos.1 to 3 in 'negative' and
point No.4 as 'affirmative', in coming to the conclusion that the
judgment is perverse, illegal and contrary to law. Hence, it
requires interference and granted the relief as sought in the
plaint restraining the defendants from interfering with
possession of the plaintiff. Hence, the present second appeal is
filed.
8. Learned counsel appearing for the appellant would
vehemently contend that the First Appellate Court has
committed an error in not appreciating the material on record
and ought to have appreciated the factum that P.W.1 has
admitted that suit schedule property belongs to one Rudramma
RSA No. 1974 of 2018
and plaintiff, did not produce any document to show as to how
he acquired the title or possession in respect of the suit
schedule property and merely because, there is an entry in the
revenue records, the First Appellate Court granted the relief
and revenue records are under challenge before the Assistant
Commissioner and no presumption can be raised in favour of
the plaintiff. The counsel also would vehemently contend that,
this Court having heard the arguments, framed the substantial
question of law with regard to the admission given by P.W.1
whether the First Appellate Court was right in decreeing the
suit for injunction, only based on the mutation entries. Hence,
it requires interference.
9. Learned counsel appearing for the respondent
would vehemently contend that, while granting the relief of
injunction, the Court has to see whether the plaintiff has been
in possession of the property as on the date of filing of the suit.
If the plaintiff establishes the possession and without looking
into the title, the Court has to grant the relief of permanent
injunction and when the Trial Court failed to exercise the
discretion while granting the relief of permanent injunction and
ignored the material on record, the First Appellate Court,
RSA No. 1974 of 2018
having re-appreciated the material on record, rightly comes to
the conclusion that the Trial Court has committed error in
dismissing the suit, when the documentary evidence clearly
shows that as on the date of filing the suit, revenue entries
stands in the name of the plaintiff and rightly invoked
presumption under Section 133 of Karnataka Land Revenue
Act. Hence, the First Appellate Court has not committed any
error in granting the relief of permanent injunction and basic
principles of possession as well as interference is taken note of
by the First Appellate Court and granted the relief. The counsel
also would submit that property belongs to one Rudramma and
the same is also no doubt admitted by P.W.1 in the cross-
examination, but, the family of the plaintiff is taken care of by
Rudramma and she was given property to the extent of 2 acres
and the same was got divided by the family members and this
plaintiff has got 20 guntas of land and the same was partitioned
among the family in the year 1993-94 and mutation was
transferred in 1993-94 and thereafter also, entire revenue
records in respect of the suit schedule property stands in the
name of the plaintiff. Hence, the First Appellate Court has
taken note of all the material and rightly granted the relief of
RSA No. 1974 of 2018
permanent injunction. Therefore, the question of interfering
with the findings of the First Appellate Court invoking Section
100 of C.P.C. does not arise and the suit is not for the relief of
declaration and the same is filed for the relief of permanent
injunction and cardinal principles of possession and interference
has been proved. Hence, this Court has to answer the
substantial questions of law as 'negative'.
10. Having considered the submissions of respective
counsel, this Court has to re-analyze the material on record, in
view of substantial question of law framed by this Court at the
time of admitting the appeal, which reads as follows:
1) In the light of admission of P.W.1 that suit
schedule property initially belonged to
Rudramma and the plaintiff not adducing any
evidence regarding basis for entry of name of
his mother in the record of rights of suit
property, whether the First Appellate Court was
right in decreeing the suit for injunction only
based on mutation entries?
11. Having heard the respective counsel and also on
perusal of the material available on record, the plaintiff claims
that he is in possession of the property. In order to prove the
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RSA No. 1974 of 2018
same, he has produced RTC extracts which is marked as Exs.P1
and P2, Ex.P3-M.R. Extract and Ex.P4-pattabook. On the other
hand, the defendant No.1 examined himself as D.W.1 and
examined one witness as D.W.2 and relied upon the documents
Exs.D1 to D6-Pahanies, Ex.D7-M.R. extract, Ex.D8-Kandayam
paid receipts and Ex.D9-pattabook. The Trial Court, while
dismissing the suit, in Para No.10, taken note of the material on
record and the case of the parties and observed that, no doubt,
revenue entries entered in the name of plaintiff to an extent of
20 guntas as per M.R.No.11/92-93 and revenue entries entered
in the name of plaintiff, but the plaintiff has not placed any
material before the Court that how he acquired title or
possession over the suit schedule property and also. The Trial
Court also extracted the answer given by P.W.1 that property
originally belongs to Rudramma and defendants belong to
'Lingayat' community and he belongs to 'Vokkaliga' community
and comes to the conclusion that, admission of P.W.1 is crystal
clear that suit schedule property originally belongs to
Rudramma and the Trial Court also discussed with regard to
presumption under Section 133 of Karnataka Land Revenue Act
regarding entries in favour of the plaintiff. But, comes to the
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RSA No. 1974 of 2018
conclusion that the plaintiff has not placed any material before
the Court to show that how he acquired the property and
discussed in detail that suit is filed for the relief of declaration
and failed to take note of the fact that suit is filed for the relief
of permanent injunction.
12. It is also the claim of the defendant No.1 that he is
an adopted son of one Sadashivaiah and Sadashivaiah was
adopted son of Rudramma and claims that he has been in
possession of the suit schedule property and plaintiff is
interfering with the enjoyment of the suit schedule property. In
order to substantiate his contention that he is the adopted son,
no documentary evidence is placed before the Court and to
prove the fact that he has been in possession of the property
also, no document is placed before the Court, except the oral
contention that he is the adopted son. While considering the
relief of permanent injunction, the Court has to see two
important aspects i.e., one with regard to possession and
another with regard to interference. It is the claim of the
plaintiff that property originally belongs to Rudramma, who was
given the property to the extent of 2 acres and they got
partitioned the property at 20 guntas each but, M.R extract viz.,
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RSA No. 1974 of 2018
M.R.No.11/92-93 discloses that, there was a partition among
them and this 20 guntas of property fallen to the share of the
plaintiff. No doubt, no documentary evidence is placed before
the Court, in order to make an entry in the name of his mother,
however, the document at Ex.D3 discloses that khatha was
transferred in the name of his mother in M.R.No.4/89-90 and
subsequently, the same was transferred in the name of the
plaintiff in the year 93-94 but, no basis for transferring the
property in favour of his mother. But, the Court has to take
note of the fact that, as on the date of filing the suit, whether
the plaintiff is in possession of the suit schedule property.
13. It is not in dispute that, all the revenue records are
standing in the name of the plaintiff from 1989-90 onwards i.e.,
in the name of mother as well as the family members and
subsequently, they got partitioned the property and as on the
date of filing the suit in the year 2010, all the revenue records
stands in the name of the plaintiff. The First Appellate Court
also, while reversing the findings of the Trial Court, taken note
of presumption under Section 133 of Karnataka Land Revenue
Act and the Court cannot consider the title of the parties in a
suit for bare injunction and no doubt, substantial question of
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RSA No. 1974 of 2018
law is framed by this Court whether the First Appellate Court
was right in dismissing the suit for injunction, only based on
mutation entries, but the same is not the only basis for
dismissing the suit. Apart from mutation entries, all the RTC
Extracts clearly disclose that, as on the date of filing of the suit,
the plaintiff is in possession of the suit schedule property and
the defendants have not placed any material before the Court
to show that they are in possession of the suit schedule
property. Both the plaintiff and the defendants are not
disputing the fact that property originally belongs to
Rudramma. But, when the suit is filed for the relief of
permanent injunction, the Court has to look into the aspect of
interference as well as the possession. The defendant No.1 also
not produced any material that he is in possession and claims
that he is an adopted son of Sadashivaiah, who is the adopted
son of Rudramma and no such material is placed before the
Court.
14. When such being the case, I do not find any error
committed by the First Appellate Court in relying upon the
revenue documents to come to the conclusion that the plaintiff
is in possession of the suit schedule property as on the date of
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RSA No. 1974 of 2018
filing of the suit. Hence, the very contention of the learned
counsel for the appellants that the First Appellate Court
committed an error in reversing the findings of the Trial Court,
only based on mutation entries cannot be accepted and the
appellants can seek for the relief of declaration as contended in
the written statement, by filing a comprehensive suit. Hence, I
do not find any force in the contention of the learned counsel
for the appellants and the substantial question of law framed by
this Court is answered as 'negative'.
15. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
