Karnataka High Court
D K Subbe Gowda vs M E Rudresh on 28 November, 2023
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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RSA No. 1127 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1127 OF 2009 (INJ)
BETWEEN:
D.K.SUBBE GOWDA
S/O LATE KUMAREA GOWDA,
AGED ABOUT 67 YEARS,
AGRICULTURIST,
HOUSING BOARD COLONY,
MUDIGERE TOWN & POST.
...APPELLANT
(BY SRI. PRADEEP NAIK.K., ADVOCATE)
AND:
1. M.E.RUDRESH
S/O ERE GOWDA,
AGED ABOUT 39 YEARS,
R/O MAGGALAMAKKI,
DARADAHALLI VILLAGE & POST,
Digitally signed by MUDIGERE TALUK.
THEJASKUMAR N
Location: HIGH
COURT OF 2. KARNATAKA ELECTRICITY BOARD,
KARNATAKA
MUDIGERE,
REPRESENTED BY
THE ASSISTANT EXECUTIVE ENGINEER,
K.E.B, MUDIGERE.
...RESPONDENTS
(BY SRI. H.N.M.PRASAD., ADVOCATE FOR R1;
SRI. H.V.DEVARAJU., ADVOCATE FOR
SRI. N.KRISHNANANDA GUPTA., ADVOCATE FOR R2)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
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RSA No. 1127 of 2009
THIS REGULAR SECOND APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Sri.Pradeep Naik.K., learned counsel for the appellant,
Sri.H.N.M.Prasad., learned counsel for respondent No.1 and
Sri.H.V.Devaraju., learned counsel on behalf of
Sri.N.Krishnananda Gupta., for respondent No.2 have appeared
in person.
2. This is an appeal from the Court of Principal District
Judge, Chikkamagalur.
3. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Trial
Court.
4. The plaint averments are these:
The plaintiff is the absolute owner in possession of the
suit schedule property bearing Sy.No.113/2 measuring 2.15
Acres situated at Maggalamakki Daradahalli Village. The
plaintiff acquired the title to the suit property under a
registered sale deed S.R.No.245/72-73. Ever-since the date of
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purchase, the plaintiff is in possession and enjoyment of the
said property. It is also contended that plaintiff has cultivated
the land with Banana Plants.
Towards the Northern side, there is a water tank situated
within the schedule property. The suit schedule property is fully
fenced all around except the area of the tank. The defendants
who have got no manner of right, title or interest in or over the
suit schedule property or in the said water tank, took
advantage of the close proximity of his land situated towards
the Northern side of the suit scheduled property, attempted to
trespass into the schedule property on the Northern side to
encroach upon the suit schedule property. It is said that the
plaintiff constructed a pump house in the suit land. The first
defendant tried to encroach the land, particularly the pump
house with the main idea of installing the pumpset to draw the
water from the tank. In this regard, plaintiff appraised the facts
to the second defendant through a representation and
requested not to give power supply.
Despite the same, the first defendant with his supporters
along with the second defendant on 28.08.1995, trespassed
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into the suit schedule property and tried to give power supply.
Hence, the plaintiff was constrained to take shelter under the
Court of law and filed a suit for permanent injunction
restraining the first defendant, his men or agents from
trespassing, encroaching upon the suit schedule property and
from drawing the water from the tank through the pump house
or in any way interfering with the peaceful possession and
enjoyment of the suit schedule property by the plaintiff and
also restraining the second defendant from giving power supply
or service through the pump house constructed by the plaintiff
in the suit schedule property.
After issuance of the suit summons, the first defendant
appeared through his counsel and filed written statement and
admitted the ownership of the plaintiff over the suit schedule
property. Among other grounds, he prayed for dismissal of the
suit. The second defendant also filed a detailed written
statement and prayed for dismissal of the suit.
Based on the above pleadings, the Trial Court framed
issues. The parties led evidence and got marked documents.
On the trial of the action, the Trial Court vide Judgment and
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Decree dated:13.04.1999 partly decreed the suit. Aggrieved by
the Judgment & Decree of the Trial Court, the first defendant
preferred an appeal before the First Appellate Court. On appeal,
the First Appellate Court vide Judgment & Decree
dated:06.06.2009 allowed the appeal and dismissed the suit.
Hence, this Regular Second Appeal is filed by the plaintiff under
Section 100 of CPC.
5. Learned counsel for the appellant and the
respondents have urged several contentions.
6. Sri.Pradeep Naik.K., learned counsel for the
appellant submits that the Judgment & Decree of the First
Appellate Court is illegal, arbitrary and the same is liable to be
set-aside.
Next, he submits that First Appellate Court has not
properly appreciated that the Commissioner Report is in favor
of the plaintiff and none of the parties to the suit filed
objections to the said report.
A further submission is made that the Trial Court rightly
relied upon the report of the Commissioner and decreed the
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suit. However, the First Appellate Court without appreciating
the fact, reversed the Judgment and Decree of the Trial Court.
Lastly, he submits that viewed from any angle, the
Judgment & Decree of the First Appellate Court is unsustainable
in law and hence the same is liable to be set-aside. Counsel
therefore, submits that the Regular Second Appeal may be
allowed.
7. Sri.H.N.M.Prasad., learned counsel for respondent
No.1 justified the Judgment and Decree of the First Appellate
court. He argued by saying that the appellant has not made
any grounds to interfere with the Judgment and Decree of the
First Appellate Court. The appeal is devoid of merits. Hence, the
same may be dismissed.
8. Heard, the contentions urged on behalf of the
respective parties and perused the appeal papers and also the
records with utmost care.
This Court vide order dated:29.05.2012 admitted the
appeal and framed the following substantial questions of law:
1. Whether the First Appellate Court is justified in
reversing the Judgment & Decree passed by the
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Trial Court, despite the dismissal of
O.S.No.188/1995 filed by the first respondent
herein, seeking declaratory and injunctive relief?
2. Whether the appreciation of Commissioners
report by the First Appellate Court is just and
proper?
9. The facts are sufficiently stated and do not require
reiteration. The suit giving rise to this appeal was brought by
plaintiff seeking relief of permanent injunction. As could be
seen from the nature of lis between the parties, the suit is one
for bare injunction based on possession as of the date of filing
of the suit. The right to injunction is based on prima facie right.
Since there was a dispute with regard to location of the pump-
house and water tank, the parties to the lis requested the Trial
Court for appointment of the Commissioner. Based on the
request made by the parties, the Trial Court appointed
Commissioner and accordingly, the Court Commissioner made a
local inspection by measuring the land of the plaintiff and the
first defendant and submitted a report in favor of the plaintiff.
It is pivotal to note that none of the parties to the lis disputed
the report submitted by the Commissioner.
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Taking note of the report of the Commissioner and also
the material evidence on record, the Trial Court concluded that
the water tank and pump-house is situated within the suit
schedule property and partly decreed the suit. However, on
appeal, the First Appellate Court on misconception erroneously
proceeded and concluded that the Commissioner's report has
not been marked and Commissioner has not been examined
and hence, set-aside the Judgment and Decree of the Trial
Court. This is incorrect. The law is well settled that as and when
a Commissioner is appointed and when there is no dispute with
regard to his report, the question of marking of the
Commissioner's report and examination of the Commissioner
does not arise. This aspect of the matter has been over-looked
by the First Appellate Court.
Furthermore, it is relevant to note that the first defendant
had filed a suit seeking permanent injunction against the
plaintiff in O.S.No.188/1995 in respect of same water tank and
pump-house. The Trial Court dismissed the suit vide Judgment
and Decree dated 13.12.2000 and it has attained finality. There
is no further appeal as against the dismissal of the said suit.
However, the First Appellate Court on misconception, concluded
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that the parties to the lis have not brought to the notice of the
Trial Court about the dismissal of the suit filed by the first
defendant. This reasoning is also unsustainable in law. The
reason is quite simple and apparent. The Original Suit filed by
the first defendant in O.S.No.188/1995 was dismissed on
13.12.2000. Whereas, the present suit was decreed on
13.04.1999 i.e., much earlier to the dismissal of the suit in
O.S.No.188/1995. Therefore, the question of bringing to the
notice of the Trial Court about dismissal of the suit filed by the
first defendant does not arise.
10. The substantial questions of law framed by this
Court are answered accordingly. For the reasons stated above,
the Judgment & Decree of the First Appellate Court is liable to
be set-aside. Accordingly, it is set-aside.
11. The Judgment & Decree dated:06.06.2009 passed
by the Principal District Judge, Chikmagalur in
R.A.No.182/2004 is set-aside. The Judgment & Decree
dated:13.04.1999 passed by the Addl. Civil Judge (Jr.Dn) &
J.M.F.C., Mudigere in O.S.No.190/1995 is confirmed.
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12. Resultantly, the Regular Second Appeal is allowed.
In view of disposal of the Regular Second Appeal, all the
pending interlocutory applications if any are disposed of.
Sd/-
JUDGE
TKN
