Karnataka High Court

Jeevappa vs Sahebgouda on 22 November, 2023

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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 22ND DAY OF NOVEMBER, 2023

BEFORE

THE HON'BLE MRS JUSTICE M G UMA

REGULAR SECOND APPEAL NO. 200379 OF 2019 (INJ)
C/W
REGULAR SECOND APPEAL NO. 200380 OF 2019(PAR/INJ)

IN RSA NO. 200379/2019:

BETWEEN:

JEEVAPPA S/O NEELAPPA KURAPI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: TIKOTA, TQ: DIST: VIJAYAPUR-586101.
...APPELLANT

(BY SRI D. P. AMBEKAR, ADVOCATE)

AND:
Digitally signed
by SHILPA R SAHEBGOUDA S/O BAPUGOUDA PATIL
TENIHALLI AGE: 65 YEARS, OCC: AGRICULTURE,
Location: HIGH R/O: TIKOTA, TQ: DIST: VIJAYAPUR-586101.
COURT OF
KARNATAKA ...RESPONDENT

(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

THIS RSA IS FILED U/S 100 READ WITH ORDER 42 OF
CPC, PRYING TO SET ASIDE JUDGMENT AND DECREE DATED
02.02.2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE AT VIJAYAPUR, IN R.A. NO.101/2015 CONFIRMING THE
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

JUDGMENT AND DECREE DATED: 27.11.2015 PASSED BY THE
II ADDL. CIVIL JUDGE AT VIJAYAPUR IN O.S. NO.702/2008.

IN RSA NO. 200380/2019:

BETWEEN:

JEEVAPPA S/O NEELAPPA KURAPI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: TIKOTA, TQ: DIST: VIJAYAPUR-586101.
...APPELLANT

(BY SRI D. P. AMBEKAR, ADVOCATE)

AND:

SAHEBGOUDA S/O BAPUGOUDA PATIL
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O: TIKOTA, TQ: DIST: VIJAYAPUR-586101.
...RESPONDENT

(BY SRI SANGANABASAVA B. PATIL, ADVOCATE)

THIS RSA IS FILED U/S 100 READ WITH ORDER 42 OF
CPC, PRYING TO SET ASIDE JUDGMENT AND DECREE DATED
02.02.2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL
JUDGE AT VIJAYAPUR, IN R.A. NO.100/2015 CONFIRMING THE
JUDGMENT AND DECREE DATED: 27.11.2015 PASSED BY THE
II ADDL. CIVIL JUDGE AT VIJAYAPUR IN O.S. NO.270/2010.

THESE APPEALS ARE COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

COMMON JUDGMENT

Though the appeals are listed for admission, with the

consent of learned counsel for the parties, they are taken up

for final disposal.

2. The plaintiff in O.S.No.702/2008 on the file of the

learned II Additional Civil Judge at Vijayapur (hereinafter

referred to as 'Trial Court' for brevity) is impugning the

common judgment and decree dated 27.11.2015, dismissing

his suit for permanent injunction, which was confirmed in

R.A.No.101/2015, on the file of learned III Additional Senior

Civil Judge at Vijayapur (hereinafter referred to as 'First

Appellate Court' for brevity), vide common judgment dated

02.02.2019 in RSA No.200379/2019.

3. The defendant in O.S.No.270/2010 is impugning the

said common judgment and decree of the Trial Court, partly

decreeing the suit granting permanent injunction, restraining

him from interfering with the peaceful possession and

enjoyment of the suit property, which was confirmed in

R.A.No.100/2015 in RSA No.200380/2019 vide common

judgment referred to above.
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RSA No. 200379 of 2019
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4. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court in

O.S.No.702/2008.

5. Brief facts of the case are that, the plaintiff filed the

suit O.S.No.702/2008 against the defendant before the Trial

Court seeking grant of permanent injunction in respect of

property bearing VPC No.258 of Tikota village, Vijayapur taluka

(hereinafter referred to as suit property of the plaintiff). It is

contended that the plaintiff is the exclusive owner in possession

of the suit property of the plaintiff, as the same was acquired

along with other properties by his father Neelappa Khurpi. The

father of the plaintiff died on 24.08.1999 leaving behind his

wife and son Smt.Bhagirathi and the plaintiff. Therefore, the

plaintiff and his mother inherited the suit property. The mother

of the plaintiff orally relinquished her rights in respect of the

suit property of the plaintiff and thus, the plaintiff is the

absolute owner in possession of the same. The revenue

records were mutated in his name and he is paying the

property tax.
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

6. It is contended that the defendant, who is not

having any right, title or interest over the suit property of the

plaintiff, started causing obstruction to his peaceful possession

and enjoyment of the property. On 20.11.2008, there was a

threat of dispossessing the plaintiff and therefore, he prayed for

grant of permanent injunction restraining the defendant from

interfering with the peaceful possession and enjoyment of the

suit property of the plaintiff.

7. The defendant has appeared before the Trial Court

and filed his written statement denying the contentions taken

by the plaintiff. The ownership of the plaintiff over his suit

property is admitted. It is contended that the defendant had

never caused obstruction to the possession and enjoyment of

the plaintiff. Therefore, prayed for dismissal of the suit.

8. On the basis of the pleadings of the parties, the

Trial Court framed the following issues in O.S.No.702/2008:

1) Whether the plaintiff proves that, he is in
possession and enjoyment of VPC No.258 situated at
Tikotaa village?
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

2) Whether the plaintiff proves that, defendant has
obstructed and disturbed peaceful possession and
enjoyment of plaintiff over the suit property?

3) What order or decree?

9. In the mean time, the defendant in

O.S.No.702/2008 filed the suit O.S.No.270/2010 against the

plaintiff in the said suit in respect of the property bearing VPC

No.259/2 with open space (hereinafter referred to as 'suit

property of the defendant) claiming similar relief of permanent

injunction restraining the plaintiff from interfering with his

peaceful possession and enjoyment of his suit property. It is

contended by the defendant that he is the absolute owner in

possession of the suit property of the defendant as shown in

the sketch appended to the plaint, identified with the letters as

'ABCDEF' and the open space shown as 'BGHI', which measures

10'x10'. The plaintiff in O.S.No.702/2008 being the defendant

in O.S.No.270/2010 closed the door, which was existed on 'LB'

wall to reach his property shown as 'ABJK' and trying to fix the

door on 'BI' wall and thereby threatening to interfere with the

possession and enjoyment of the suit property of the

defendant. Therefore, he sought for permanent injunction.
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

10. The plaintiff in O.S.No.702/2008 had appeared

before the Trial Court in O.S.No.270/2010 as defendant and

filed his written statement denying the contentions taken by

the defendant. He contended that the open space shown as

'BGHI' was not belonging to the defendant but it belongs to the

Panchayat. The public at large are enjoying the said portion of

the property and hence, the defendant is not entitled for any

relief. It is denied that the plaintiff is even trying to interfere

with the defendant's enjoyment of his suit property and

therefore, prayed for dismissal of the suit.

11. On the basis of the pleadings of the parties, the

Trial Court framed the following issues in O.S.No.270/2010:

1) ªÁ¢AiÀÄÄ vÁ£ÀÄ zÁªÁ ¢£ÁAPÀzÀAzÀÄ zÁªÁ¹Û VPC

No.259/2 gÀ ªÁzÀ¥ÀvÀæ ¸ÉÌZïzÀ°è vÉÆÃj¹gÀÄªÀ "BGHI"
¨sÁUÀzÀ PÁ£ÀÆ£ÀÄ§zÀÞ ¸Áé¢Ã£Á£ÀÄ¨sÀªÀzÀ°è EgÀÄªÀÅzÁV
gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀgÉÃ?

2) ªÁ¢ vÀ£Àß ¸Áé¢Ã£Á£ÀÄ¨sÀªÀzÀ°ègÀÄªÀ zÁªÁ ¸ÉÌZï "BGHI"
¨sÁUÀzÀ°è ¥ÀæwªÁ¢ PÀmÉÖ ªÀÄvÀÄÛ ¸Áß£ÀUÀæºÀ PÀlÖ®Ä ¥ÀæAiÀÄwß¹ vÀ£Àß
"ABJK" eÁUÀPÉÌ vÀ®Ä¥À®Ä "BI" ¨ÁV®Ä C¼ÀªÀr¸À®Ä
¥ÀæAiÀÄwß¸ÀÄwÛzÁÝ£ÉAzÀÄ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀ£ÉÃ
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RSA No. 200379 of 2019
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3) ªÁ¢ ¥Áæyð¹zÀAvÉ ¥ÀjºÁgÀPÉÌ CºÀðgÉÃ?

4) AiÀiÁªÀ DzÉÃ±À CxÀªÁ rQæ?

12. Both the suits were taken together and common

evidence was came to be recorded in O.S. 702/2008. The

plaintiff examined PWs.1 to 3 and got marked Exs.P1 to P12 in

support of his contentions. The defendant got examined DWs.1

and 2 and got marked Exs.D1 to D7 in support of his defence.

The Trial Court after taking into consideration all these

materials on record, answered issue No.1 in O.S.No.702/2008

in the affirmative, but held issue No.2 in the negative.

Accordingly, the suit O.S.No.702/2008 filed by the plaintiff was

decreed in part holding that the plaintiff is in peaceful

possession and enjoyment of VPC No.258 of Tikota village,

Vijayapur taluka, but, has not granted decree for permanent

injunction against the defendant. The Trial Court answered

issue No.1 in O.S.No.270/2010 in the negative and issue Nos.2

and 3 partly in the affirmative and accordingly, the suit

O.S.No.270/2010 was decreed in part restraining the defendant

from interfering with the peaceful possession and enjoyment of

the plaintiff in respect of VPC No.259/2. The Trial Court also
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C/W RSA No. 200380 of 2019

ordered that the defendant is restrained from using the main

door situated on 'BI' wall as shown in the plaint sketch.

13. Being aggrieved by the same, the plaintiff in

O.S.No.702/2008 and defendant in O.S.No.270/2010 preferred

R.A.Nos.100 and 101/2015 respectively. The First Appellate

Court on re-appreciation of the materials on record dismissed

both the appeals, confirming the impugned judgment and

decree passed by the Trial Court. Being aggrieved by the

same, the appellants in R.A.Nos.100 and 101/2015 have

preferred RSA Nos.200380/2019 and RSA No.200379/2019

respectively.

14. Heard learned counsel Sri D.P.Ambekar for the

appellant/plaintiff and learned counsel Sri Sanganabasava B.

Patil for the respondent/defendant.

15. Learned counsel for the appellant contended that in

O.S.No.702/2008, the Trial Court has recorded a categorical

finding that the plaintiff has proved his possession and

enjoyment over VPC No.258 of Tikota village, Vijayapur taluka,

but, answered issue No.2 in the negative, holding that the
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plaintiff has not proved the interference or threat of

interference on the part of the defendant.

16. Learned counsel placed reliance on the decision of

this Court in the case of Smt.Lakshamma vs.

M.P.Krishnappa and Others1 and in the case of Romeo M.F.

Aquinas and Others vs. Florina Mothias and Another2, in

support of his contention that once the Court comes to the

conclusion that the plaintiff is in possession and enjoyment of

his property, he is entitled for permanent injunction against the

defendant restraining him from actual inference or by the

intended interference. Therefore, he prays for allowing the

appeal and decreeing the suit O.S.No.702/2008 in the interest

of justice.

17. Learned counsel further submitted that in

O.S.No.270/2010, the plaintiff therein filed the plaint sketch

showing the exact location of the properties bearing VPC

Nos.258 and 259/2. The plaintiff being the appellant herein

filed the memo to the effect that he is not pressing his claim

1
(1999) 1 KLJ 536
2
(1998) 5 KLJ 168
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C/W RSA No. 200380 of 2019

over 'BI' wall as shown in the plaint sketch and does not also

challenge the finding of the Trial Court as well as the First

Appellate Court in respect of the open space identified as

'BGHI'. He further submits that the respondent is not having

any threat of interference in enjoying the eastern wall marked

as 'BI' in the hand sketch. Learned counsel submitted that the

Trial Court has recorded its finding that the open space marked

as 'BGHI' in the hand sketch is not belonging to the plaintiff in

O.S.No.270/2010. Accordingly, it answered issued No.1 in the

negative. This finding of the Trial Court was never challenged

by the respondent, but, the First Appellate Court made an

observation that the oral and documentary evidence discloses

that 'BGHI' portion belongs to the plaintiff. It also observed

that the Trial Court has rightly recorded its finding and there is

nothing to be interfered with. Therefore, the finding of the First

Appellate Court regarding the ownership of the plaintiff in

O.S.NO.270/2010 on 'BGHI' portion is erroneous. Hence, he

prays for modifying the judgment and decree passed by the

First Appellate Court in the interest of justice.

18. Per contra, learned counsel for the respondent

opposing the appeal submitted that the Trial Court and the First
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C/W RSA No. 200380 of 2019

Appellate Court on appreciation of the materials on record,

recorded concurrent findings. There are no reasons to interfere

with the same. Even though the First Appellate Court has

confirmed the judgment and decree passed by the Trial Court in

O.S.No.270/2010, it categorically recorded a finding that the

open space marked as 'BGHI' belongs to the plaintiff therein.

However, the learned counsel fairly conceded that in view of

the memo filed by learned counsel for the appellant to the

effect that he does not press his claim over 'BI' wall as shown

in the hand sketch, prays for passing necessary orders.

19. Perused the Trial Court records including the First

Appellate Court. In view of the submissions made by learned

counsel for the parties, the following substantial question of law

arises for consideration in RSA No.200379/2019:

"Whether the Trial Court and the First
Appellate Court committed an error by rejecting the
claim by the plaintiff for permanent injunction after
answering issue No.1 regarding his possession and
enjoyment of the suit property in the affirmative?"

20. The following substantial question of law arises for

consideration in RSA No.200380/2019:
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C/W RSA No. 200380 of 2019

"Whether the First Appellate Court has
committed an error in observing that the open space
marked as 'BGHI' in the plaint sketch belongs to the
plaintiff, when it has accepted the finding recorded
by the Trial Court and confirmed it?"

My answer to the above substantial question of law in

RSA No.200379/2019 is in the Affirmative and in RSA

No.200380/2019 in the Affirmative for the following:

REASONS

21. The short point that is involved in RSA

No.200379/2019 is with regard to the finding of the Trial Court

on issue No.2 that the plaintiff has not proved the actual

interference or threat of interference and therefore, the plaintiff

is not entitled for decree for permanent injunction even though

he is successful in proving his possession of the suit property.

But, the Trial Court recorded categorical finding on issue No.1

i.e., whether the plaintiff proves that he is in possession and

enjoyment of VPC No.258, situated at Tikota village and

answered it in the affirmative, however, it answered issue No.2

regarding proof of obstruction or disturbance on the part of the
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defendant, in the negative and therefore, the claim of the

plaintiff for permanent injunction was rejected.

22. The learned counsel for the appellant has placed

reliance on the decision of Coordinate Bench of this Court in the

case of Smt.Lakshamma (Supra). In the said judgment, this

Court at paragraph No.3 held as under:

"3. Once the Appellate Court finds the
possession is with the plaintiff, thus rendering a
concurrent finding with the Trial Court, there should
not be any hesitation on the part of the Appellate
Court to grant injunction. An aggrieved person
comes to the Court complaining of interference of the
defendant, may be at a particular point of time the
defendant has not caused interference, but once the
fear stands heavily in the mind of the aggrieved
person, there shall be no difficulty for the Court to
grant injunction, especially when it is found that
particular person is in possession. The fact that the
plaintiff is in possession of the property has not been
disputed. On the other hand, the Courts below
rendered concurrent finding on such possession. It is
a fit case wherein injunction ought to have been
granted, by the First Appellate Court."
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RSA No. 200379 of 2019
C/W RSA No. 200380 of 2019

23. Similarly, the Coordinate Bench of this Court in the

case of Romeo M.F. (Supra) in paragraph Nos.4 and 5 held as

under:

"4. The Trial Court accepting the case of the
plaintiffs decreed the case as against the first
defendant. However, the case of D. 2 was
dismissed, as it was not shown by the plaintiffs that
the second defendant also caused any obstruction.
The Appellate Court holding that there is absence of
actual interference or the threat of interference the
plaintiffs are not entitled to any decree.

5. This view of the appellate Court is prima
facie wrong. The plaintiff has specifically claimed
right over 3' passage. This right is not disputed by
both the parties. Now the plaintiffs' allegation was
that there was an interference or at least
apprehended that there is likelihood of interference.
For a man to live in peace he resorts to Court and
seeks an order of injunction. When the defendant
admits the claim of the plaintiffs nobody will be
prejudiced by granting the decree for injunction.
After all at best may be the security that is granted
by the Court to the plaintiffs. If there is going to be
no interference the defendant is not prejudiced and
passing of such an order of injunction is not going to
affect the defendant at all. Once the matter has
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been seized by the Court it is for the Court to grant
the relief, the parties desire to get and when the
relief is available on the basis of the averments
made in the plaint and grantable on the basis of the
written statement there can be no impediment for
granting such a relief at all. The non-grant of the
relief by the Appellate Court is error apparent on the
face of the record. The lower Court has also declined
to grant such a relief on the ground that there is no
interference by the second defendant. A man may
not know the mind of another. When the fear is in
the minds of plaintiffs the Courts must dispel the
fear and when admissions are made they should be
made matured into a decree."

24. Thus, the position of law is very well settled that

once the plaintiff is successful in proving his possession and

enjoyment of the suit property and when the defendant has

chosen to contest the suit, the interference on the part of the

defendant could be inferred and the plaintiff is entitled for

permanent injunction. Since the Trial Court and the First

Appellate Court have not considered this position of law and

rejected the claim of the plaintiff for permanent injunction, I

am of the opinion that the substantial question of in that regard

has to be answered in the affirmative.
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25. In RSA No.200380/2019, the Trial Court considered

issue No.1 i.e., proof of possession of the plaintiff over the

open space marked as 'BGHI' in the plaint sketch amd held that

the said portion does not belongs to the plaintiff in

O.S.No.270/2010. Accordingly, issue No.1 was answered in the

negative. Admittedly, the plaintiff has not challenged the said

finding recorded by the Trial Court. Even though issue No.1

was held in the negative, the suit of the plaintiff in

O.S.No.270/2010 was decreed in part. Therefore, the

defendant has challenged the said judgment and decree before

the First Appellate Court in R.A.No.100/2015. The First

Appellate Court on re-appreciation of the materials on record

held that the Trial Court has rightly appreciated the oral and

documentary evidence placed before it and exercised its

discretion judiciously, observed that the portion of the land

marked as 'BGHI' in the sketch belongs to the plaintiff, which is

quite contrary to the observations made by the Trial Court.

Under such circumstances, the said observation of the First

Appellate Court made in paragraph No.23 of its judgment is

liable to be ignored as in the operative portion, it has only

dismissed both the appeals filed by the appellate herein.
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26. It is pertinent to note that the learned counsel for

the appellant filed the memo to the effect that the

appellant/defendant in RSA No.200380/2019 does not press his

claim over 'BI' wall, which belongs to the respondent/plaintiff.

When it is the finding of the Trial Court that the open space

marked as 'BGHI' does not belong to the plaintiff and when the

defendant had given up his claim over 'BI' wall, I am of the

opinion that while clarifying about the observation made by the

First Appellate Court regarding ownership of the disputed

'BGHI' portion in the plaint sketch, the impugned judgment and

decree passed by the Trial Court is liable to be confirmed.

Hence, I answer substantial question of law formulated in both

the appeals in the Affirmative and proceed to pass the

following:

ORDER

In RSA No.200379/2019:

(i) The appeal is allowed with costs.

(ii) The impugned judgment and decree passed in O.S.No.702/2008 dated 27.11.2015 on the file of II Additional Civil Judge at Vijayapur and R.A.No.101/2015 dated 02.02.2009 on the file of III Additional Senior Civil Judge at Vijayapur are

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modified. The suit of the plaintiff in O.S.No.702/2008 is decreed as prayed for with costs.

(iii) The defendant is restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.

(iv) Office is directed to draw the decree accordingly.

In RSA No.200380/2019:

(i) The appeal is dismissed.

(ii) The judgment and decree dated 27.11.2015 passed on O.S.No.270/2010 on the file of the learned II Additional Civil Judge, Vijayapur, which is confirmed in the judgment and decree dated

02.02.2019 passed in R.A.No.100/2015 on the file of the III Additional Senior Civil Judge, Vijayapur are confirmed.

(iii) It is clarified that the defendant in O.S.No.270/2010 before the Trial Court is not having any claim over 'BI' wall as shown in the plaint and sketch

(iv) No order as to costs.

Sd/-

JUDGE Srt CT-VD