Sri Puttaiah vs Sri Lingaraju
2023 Latest Caselaw 1800 Kant

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                                                     RSA No. 1263 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 13TH DAY OF MARCH, 2023

                                          BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO.1263 OF 2019 (DEC/INJ)

                   BETWEEN:

                   1.    SRI PUTTAIAH
                         S/O LATE SUBBAIAH
                         AGED ABOUT 67 YEARS

                   2.    SRI. NAGA @ NAGENDRA
                         S/O PUTTAIAH
                         AGED ABOUT 32 YEARS

                         BOTH ARE R/AT
Digitally signed         SHIVAKAHALLI VILLAGE
by SHARANYA T            KASABA HOBLI
Location: HIGH
COURT OF                 YELANDUR TALUK
KARNATAKA                CHAMARAJANAGAR DISTRICT-571441

                                                           ...APPELLANTS
                   (BY SRI. RAVISHANKAR S, ADVOCATE)

                   AND:

                   1.    SRI LINGARAJU
                         S/O LATE BASAVAIAH @
                         DONNE BASAVAIAH
                         AGED ABOUT 52 YEARS
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                                              RSA No. 1263 of 2019




2.   SRI B NANJUNDASWAMY
     S/O LATE BASAVAIAH @
     DONNE BASAVAIAH
     AGED ABOUT 47 YEARS

3.   SMT. PUTTAMADAMMA
     W/O LATE BASAVAIAH @
     DONNE BASAVAIAH
     AGED ABOUT 72 YEARS
     ALL ARE R/O
     SHIVAKAHALLI VILLAGE
     KASABA HOBLI
     YELANDUR TALUK
     CHAMARAJANAGAR DISTRICT-571441
                                                  ...RESPONDENTS

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.06.2019
PASSED IN R.A.NO.55/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND CJM, CHAMARAJANAGAR AND ETC.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellants.

2. This appeal is filed challenging the judgment

and decree dated 12.06.2019 passed in R.A.No.55/2017

on the file of the Senior Civil Judge and CJM,

Chamarajanagar.

RSA No. 1263 of 2019

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that plaintiff Nos.1 and 2 are the

sons of plaintiff No.3 and the plaintiffs are in joint

possession and enjoyment over the suit schedule property

and they are paying the taxes to the government. The

plaintiffs have also growing paddy crop in the suit

schedule property. Originally, the Sy.No.120/1 of

Shivakahalli village is measuring 2 acres 1 gunta and out

of the said extent, 1 acre 20 is in the name of the

plaintiffs. The revenue records are standing in the name

of the plaintiffs and therefore, they are in possession and

enjoyment over the said property by paying the taxes to

the concerned authority. The defendants are interfering

with the possession and enjoyment of the suit schedule

property hence, the plaintiffs have filed a police complaint

but the police have not issued NCR hence, the suit was

filed.

4. In pursuance of the suit summons, the

defendants have appeared and filed the written statement

RSA No. 1263 of 2019

admitting the contention of the plaintiffs about

Sy.No.120/1 measuring 2 acres 1 guntas as true. The

defendants have denied the contention of the plaintiffs

about possession of 1 acre 20 guntas in the said survey

number. It is further submitted that originally Sy.No.120/1

was measuring 2 acres 1 gunta. Out of the said land, the

first defendant's father and second defendant's

grandfather by name Subba @ Subbaiah had purchased

east to west 65 yards and north to south 44 yards from

Kulli W/o Basava under a registered sale deed dated

27.01.1952. From the date of purchase, they have been

in continued possession of the suit schedule property

without any interference. After the death of said

Subbaiah, the first defendant had obtained change of

khatha by inheritance and continued its cultivation. But at

the time of change of khatha by inheritance, due to the

mistake of revenue officials, only 21 guntas was entered in

the name of first defendant instead of 23.08 guntas.

RSA No. 1263 of 2019

5. The Trial Court based on the pleadings of the

parties framed the issues. The plaintiffs in order to prove

their case, examined plaintiff No.2 as PW1 and got marked

the documents at Ex.P1 to P13. On behalf of the

defendants, the first defendant was examined as DW1 and

got marked the documents at Ex.D1 to D6. The Trial

Court after considering both oral and documentary

evidence placed on record answered all the issues in the

affirmative and granted the relief of permanent injunction

in favour of the plaintiffs. Being aggrieved by the

judgment and decree of the Trial Court, an appeal was

preferred wherein also similar grounds of written

statement have been urged. The First Appellate Court on

perusal of the grounds urged in the appeal, formulated the

points that whether the Trial Court is justified in decreeing

the suit of the plaintiffs and whether it requires

interference of this Court in the impugned judgment and

decree. The First Appellate Court on re-appreciation of

both oral and documentary evidence placed on record

comes to the conclusion that the Trial Court is justified in

RSA No. 1263 of 2019

granting the relief of permanent injunction in favour of the

plaintiffs and the same does not requires interference and

dismissed the appeal. Hence, the present appeal is filed

before this Court.

6. The learned counsel for the appellants would

vehemently contend that both the Courts have committed

an error in granting the relief of permanent injunction to

the extent of 1 acre 20 guntas and admittedly out of 2

acres 1 gunta of land, 2860 yards was sold by the father

and grandmother of the plaintiffs in favour of the father of

the first defendant and grandfather of the second

defendant under a registered sale deed. When such being

the case, the Trial Court ought to have taken note of the

document at Ex.D6 and rejecting the same is not relevant

to decide the claim of appellants and the same is highly

illegal and perverse and both the Courts have committed

an error in granting the relief of permanent injunction

against the material available on record particularly

against Ex.D6. hence, it requires interference.

RSA No. 1263 of 2019

7. Having heard the counsel for the appellants and

also on perusal of the material available on record and

also on perusal of the grounds urged in the appeal memo

it is not in dispute that total extent of land is 2 acres 1

gunta and out of that in respect of 21 guntas sale deed

was executed in favour of the defendants. It is not in

dispute that after the sale also the documents came in

existence in the name of the defendants to the extent of

21 guntas and also in the name of the plaintiffs to the

extent of 1 acre 20 guntas. When PW1 and DW1 were

examined before the Trial Court, PW1 relies upon the

document to the extent of 1 acre 20 guntas and 21 guntas

in respect of defendants' property. The Trial Court having

considered both oral and documentary evidence placed on

record and also taking into note that the total extent of

Sy.No.120/1 is 2 acres 1 gunta and also taken note of the

sale deed in terms of Ex.D6 executed in favour of the

defendants and apart from that M.R.No.28/1980-81 was

also recorded on account of the sale made in favour of the

RSA No. 1263 of 2019

defendants wherein Ex.P11 also shows that the change of

katha to the extent of 21 guntas in the name of defendant

No.1 was made on his own statement as per

M.R.No.28/1980-81 and Ex.P12 is the index of land which

also shows that 21 guntas in Sy.No.120/1 was entered in

the name of the defendant on his own statement. The Trial

Court also taken note of Ex.P13 - mutation order which

shows that 1 acre 21 guntas in Sy.No.120/1 and 1 acre 19

guntas in Sy.No.3/2 are changed to the name of the

plaintiff Nos.1 and 2 after the death of their father. The

Trial Court also having taken note of the answer elicited

from the mouth DW1 wherein he categorically admitted

that he was aware of the entries made in his favour in the

katha from past 25 years and revenue entries also clearly

shows that 21 guntas was in the name of defendants and

remaining 1 acre 20 guntas in the name of the plaintiffs. It

is the contention of the defendants that the revenue

officials have committed the mistake but DW1 has

admitted before the Court that he was never allowed the

surveyor to survey the land.

RSA No. 1263 of 2019

8. The counsel brought to notice of this Court that

the Trial Court also observed in the cross-examination of

DW1 that he was not allowed the surveyor to survey the

land and apart from that the Trial Court also taken note of

the answer given by DW1 in the cross-examination that he

was aware of change of katha in his name to the extent of

21 guntas about 25 years back and also he categorically

admits that as per the request of the plaintiffs, the survey

people came near the land but he did not allow them to

survey the land. When the suggestion was made that the

plaintiffs are in possession to the extent of 1 acre 20

guntas and he is in occupation only to the extent of 21

guntas, the witness denies the same and claims that he is

in possession to the extent of 27 guntas. He also admits

that, if he is in possession more than 23 guntas, he is

ready to give the same. It is suggested that, whether he

has produced any document to show that he is in

possession to the extent of 27 guntas and witness says

that he has given instructions to the counsel to prepare

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RSA No. 1263 of 2019

the written statement to the extent of 27 guntas and that

itself is a document and all these admissions by D.W.1 is

taken note by the Trial Court and the First Appellate Court

also, on re-appreciation of both oral and documentary

evidence placed on record, comes to the conclusion that,

in terms of documentary evidence, the defendants are in

possession to the extent of 21 guntas and in terms of

revenue documents, the plaintiffs are in possession to the

extent of 1 acre, 20 guntas. While considering the suit for

bare injunction, the Court has to take note whether the

plaintiffs are in possession of the property to the extent

what is claimed in the suit and in order to substantiate the

said contention, the plaintiffs relied upon the documents of

Exs.P1 and P2 which discloses the possession to the extent

of 1 acre, 20 guntas.

9. No doubt, it is the very contention of the

learned counsel appearing for the appellants that in terms

of sale deed dated 27.01.1952, 23.8 guntas was sold, but

revenue entries are found only to the extent of 21 guntas

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RSA No. 1263 of 2019

and they have no right to 23.8 guntas though they seek

for the relief of partition to the extent of 23.8 guntas in

terms of the sale deed and both the Courts have taken

note of the admission as well as the material on record

and concurrently given the finding giving anxious

consideration to both oral and documentary evidence

placed on record and the said finding is not perverse and

the same is based on the oral and documentary evidence

placed on record. Hence, I do not find any merit in the

appeal to admit the same and frame substantial question

of law invoking Section 100 of C.P.C.

10. In view of the discussions made above, I pass

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN/ST