Karnataka High Court
Smt Julekabiyamma vs Sri Doreswamy on 27 November, 2023
-1-
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RSA No. 1113 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1113 OF 2016 (INJ)
BETWEEN:
SMT. JULEKABIYAMMA,
W/O SYED RIYASATH HUSSAIN,
AGED ABOUT 69 YEARS,
R/A 1ST DIVISION, NEAR SBM,
CHIKKANAYAKANAHALLI TOWN - 572 214.
...APPELLANT
(BY SRI. LOKESH K, ADVOCATE)
AND:
1. SRI. DORESWAMY,
S/O HOBALDAR ANJANAPPA,
AGED ABOUT 62 YEARS,
SANTHEPET, BEHIND SBM,
Digitally signed
by SUCHITRA CHIKKANAYANAKANAHALLI TOWN - 572 214.
MJ
Location: HIGH
COURT OF 2. CHIEF OFFICER,
KARNATAKA TOWN MUNICIPALITY,
CHIKKANAYAKANAHALLI TOWN - 572 214.
...RESPONDENTS
(R2 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 18.03.2016 PASSED IN
R.A.NO.55/2012 ON THE FILE OF SENIOR CIVIL JUDGE,
ITINERATE COURT, C.N.HALLI, ALLOWING THE APPEAL AND
-2-
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RSA No. 1113 of 2016
SETTING ASIDE THE JUDGMENT AND DECREE DATED
29.05.2012 PASSED IN O.S.NO.196/1998 ON THE FILE OF THE
PRL.CIVIL JUDGE & JMFC, CHIKKANAYAKANAHALLI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the plaintiff,
assailing the judgment and decree rendered by the
Appellate Court, wherein the Appellate Court has allowed
the appeal filed by the defendant and the suit filed by the
plaintiff seeking injunction simpliciter is dismissed by the
Appellate Court.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The plaintiff has instituted a suit seeking an
injunction against the defendant. The plaintiff claimed that
he is the absolute owner of the property bearing No.90/1.
Plaintiff claimed that the property was originally owned by
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one Rajashekaraiah, who executed an agreement to sell
and since the original owner, Rajashekaraiah, did not
complete the transaction, the plaintiff was compelled to
file a suit for specific performance of contract in
O.S.No.204/1983, which came to be decreed. Plaintiff
asserts that he is in peaceful possession and enjoyment
over the suit schedule property based on decree. Plaintiff
alleged that, towards the north side of the suit property,
defendant owns a vacant site measuring 32 x 18 feet. The
present suit is filed alleging that the defendant is
interfering with plaintiff's possession.
4. Defendant No.1 on receipt of summons,
tendered appearance, filed written statement and stoutly
denied the entire averments made in the plaint. Defendant
No.1, on the contrary, claimed that the suit property
measures only 25 x 30 feet and therefore disputed
plaintiff's title over the vacant portion measuring 32 x 18
feet. Defendant No.1 claimed that he has purchased the
property bearing No. 81, which measures 50 feet east-
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west and 45 feet north-south. Defendant No.1 traced his
title over the property bearing No.81 based on a
registered sale deed executed by one H.N.Shivanna. On
this set of pleadings in the written statement, defendant
No.1 seriously disputed the alleged possession claimed by
the plaintiff and sought for dismissal of the suit.
5. Plaintiff and defendant, to substantiate their
respective claims, have let in oral and documentary
evidence. Defendant No.1 to substantiate his title over the
property bearing No.81, has produced a sale deed, which
is marked as Ex.D.2. The defendant No.1 has also
produced a partition deed of his vendor's family, which is
marked as Ex.D.3.
6. The Trial Court referring to the evidence let in
by the plaintiff and defendant, held that the
commissioner's report does not indicate the actual
measurements of plaintiff and defendant's property. The
Trial Court was of the view that plaintiff, even in absence
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of a sale deed, has succeeded in substantiating her
possession over the suit property. The Trial Court applying
the doctrine of boundaries prevailing over measurement,
decreed the suit and granted an injunction against the
defendant.
7. Defendant No.1 feeling aggrieved by the
judgment and decree of the Trial Court, preferred an
appeal before the appellate Court. The Appellate Court, as
a final fact-finding authority, has independently assessed
the entire material on record. The Appellate Court has
gone one step further and has meticulously examined
several admissions elicited in cross-examination of
plaintiff. The relevant admissions are culled out in
paragraph No.16 of the Appellate Court judgment.
Referring to these admissions, the Appellate Court was of
the view that plaintiff has admitted in unequivocal terms
that defendant's property is situated on the north side of
her property and that defendant's property is fenced. The
Appellate Court held that plaintiff cannot allege
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interference by the defendant when defendant's property
is clearly fenced by barbed wire. The Appellate Court has
further taken note of the admission elicited in cross-
examination of P.W.2. P.W.2, in cross-examination, has
admitted that the portion that is fenced where flower
plants are grown by the defendant, plaintiff, is asserting
that portion. Referring to this relevant evidence on record,
the Appellate Court was of the view that it is the plaintiff
who is falsely asserting possession over the property
owned by defendant, which is fenced by barbed wire and
is found to be in the possession of defendant. Referring to
these significant details, the Appellate Court reversed the
reasons and conclusions recorded by the Trial Court.
Appeal is allowed by the Appellate Court and the suit filed
by the plaintiff is dismissed.
8. Heard learned counsel appearing for the
plaintiff and learned counsel appearing for the defendant.
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9. The defendant has resisted the suit by
producing a copy of the registered sale deed obtained by
him, which is marked as Ex.D.2. Plaintiff, to substantiate
his vendor's title, has also placed on record the partition
deed dated 31.03.1971. The Trial Court, ignoring the
clinching rebuttal evidence, has decreed the suit. The
finding of the Trial Court that plaintiff is found to be in
possession is not supported by any documentary evidence.
The connected suit filed by defendant in O.S.No.322/2009,
seeking injunction against the present plaintiff herein, is
decreed and confirmed by this Court in
RSA.No.1112/2016. The defendant, apart from producing
title documents by way of rebuttal evidence, has not only
succeeded in establishing his peaceful possession over the
property owned by him on the northern side of the
plaintiff's property but also succeeded in substantiating
that plaintiff is falsely laying a claim over the vacant
portion owned by defendant No.1, which is fenced by a
barbed wire. The Appellate Court has rightly taken note of
the clinching rebuttal evidence and has rightly reversed
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the findings recorded by the Trial Court. The judgment and
decree rendered by the Appellate Court are based on
clinching rebuttal evidence let in by defendant No.1. I do
not find any infirmities in the judgment and decree
rendered by the Appellate Court. Therefore, no substantial
question of law would arise for consideration. The regular
second appeal is devoid of merits and accordingly stands
dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
