Chikkananjegowda vs Javaregowda B. N
2023 Latest Caselaw 7041 Kant

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                                                             NC: 2023:KHC:36251
                                                          RSA NO.1231 OF 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 06TH DAY OF OCTOBER, 2023

                                                BEFORE
                               THE HON'BLE MR. JUSTICE H.P. SANDESH
                      REGULAR SECOND APPEAL NO.1231 OF 2018 (DEC/INJ)
                      BETWEEN:

                      1.      CHIKKANANJEGOWDA
                              S/O JAVAREGOWDA
                              AGED ABOUT 68 YEARS.

                      2.      SHIVANNAGOWDA
                              W/O JAVAREGOWDA
                              AGED ABOUT 66 YEARS

                      3.      NANJEGOWDA
                              SINCE DEAD BY LR'S.
                      3(a). SMT. MANJULAMMA
                            W/O LATE NANJEGOWDA
                            AGED ABOUT 59 YEARS.

                      3(b). SHANTHOSH
                            S/O LATE NANJEGOWDA
Digitally signed by
                            AGED ABOUT 42 YEARS.
ARUN KUMAR M S
Location: High
Court of Karnataka    3(c).   SHEELA
                              W/O ANANDA
                              D/O LATE NANJEGOWDA
                              AGED ABOUT 40 YEARS
                              R/AT NANDHALLI VILLAGE,
                              BASARALU HOBLI,
                              MUDAGANDURU POST,
                              MANDYA TALUK AND DISTRICT - 571 401.

                      4.      SHANKAREGOWDA
                              S/O JAVAREGOWDA
                              AGED ABOUT 58 YEARS
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                                          NC: 2023:KHC:36251
                                       RSA NO.1231 OF 2018




       APPELLANTS NO.1, 2, 3(a), 3(b) AND 4 ARE
       R/O BOLENAHALLI VILLAGE,
       MELUKOTE HOBLI,
       PANDAVAPURA TALUK,
       MANDYA DISTRICT - 571 438.
                                              ...APPELLANTS
(BY SRI. K.L. SREENIVAS, ADVOCATE)

AND:
JAVAREGOWDA B.N.
S/O NANJEGOWDA,
AGED ABOUT 49 YEARS
R/O BOLENAHALLI VILLAGE,
MELUKOTE HOBLI,
PANDAVAPURA TALUK,
MANDYA DISTRICT - 571 438.
                                              ...RESPONDENT
(BY SRI. JAGADISH N., ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, AGAINST
THE JUDGMENT AND DECREE DATED 27TH FEBRUARY, 2018
PASSED IN REGULAR APPEAL NO.5060 OF 2014 ON THE FILE
OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA SITTING AT SRIRANGAPATNA, PARTLY ALLOWING
THE APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 14TH FEBRUARY, 2013 PASSED IN ORIGINAL
SUIT NO.59 OF 2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC AND MACT, PANDAVAPURA.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                      JUDGMENT

This matter is listed for admission and I have heard

learned counsel for appellants and learned counsel for the

respondent.

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

2. The case of the respondent/plaintiff before the Trial

Court is that the suit schedule property bearing Survey No.88

measuring 4 acres of Bolenahalli was in possession and

enjoyment of the ancestors of the plaintiff, subsequently, it was

granted to the plaintiff on 20th March, 2002 by the

Government. From the date of issuance of saguvali chit, the

plaintiff is in possession of the suit property as full owner of the

same. Even if, so many persons raised several litigations in

respect of the suit property, same are ended in favour of the

plaintiff. Defendants are the brothers and they are having their

own land towards east of the suit property. But they have no

right, title or interest over the suit property, inspite of it they

are interfering with the possession of the plaintiff over the suit

property. Hence, the plaintiff filed suit for relief of declaration

and permanent injunction.

3. After service of suit summons, defendants appeared

and filed written statement, denying the averments made in

the plaint. It is contended that the very claim of the plaintiff

that the ancestors of the plaintiff were in possession of the suit

property is not correct. It is also contended in fact, the Survey

No.88 of Bolenahalli is the Government Gomala land, same is

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

measuring 400 to 450 acres, villagers of Bolenahalli obtained

the land in the said survey number by the Government grant

and accordingly, as the mother of defendants was in possession

of 4 acres in the said survey number from the year 1945, it was

granted to her and same is renumbered as Survey No.138, now

defendants became the owner of the said land and they are in

possession of the same. The suit schedule property is situated

towards the west of the land granted to the mother of

defendants, defendants ancestors were in possession of the

same and now defendants are cultivating the said land.

Defendants have filed an application for grant of the land and

same is pending. The plaintiff is not in possession of the suit

property at any time and he created the documents in collusion

with the revenue officers. The defendants filed appeal to the

Karnataka Appellate Tribunal and matter is pending. In fact, on

the basis of the created document, the plaintiff is interfering

with the possession of defendants over the suit property and

trying to encroach upon the same.

4. The Trial Court, having considered both oral and

documentary evidence, dismissed the suit of the plaintiff by

judgment and decree dated 14th February, 2013.

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

5. Being aggrieved by the judgment and decree of the

Trial Court, an appeal is filed before the First Appellate Court in

Regular Appeal No.5060 of 2014 and the First Appellate Court,

after considering the grounds urged in the appeal, has

formulated the following points for consideration:

"1. Whether the Court below erred in rejecting the relief of declaration and injunction prayed by the plaintiff?

2. Whether there are grounds to interfere in the impugned judgment and decree?

3. What Order?"

6. The First Appellate Court, on re-appreciation of both

oral and documentary evidence placed on record, allowed the

appeal in-part and granted the relief of permanent injunction in

favour of the plaintiff. Being aggrieved by granting of

permanent injunction, the defendants filed present second

appeal before this Court.

7. The contention of the learned counsel for the

appellant/defendants is that the First Appellate Court

committed an error in granting the relief of permanent

injunction in favour of the planitiff. He vehemently contended

that the grant was made in favour of the plaintiff and same was

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

challenged before the Karnataka Appellate Tribunal and the

Karnataka Appellate Tribunal, set-aside the order and

remanded the matter to the concerned authority and same is

pending. Learned counsel also vehemently contended that the

document Exhibit P15-Mutation Register would clearly disclose

the fact that the appellants were in possession and same has

not been considered by the First Appellate Court. The First

Appellate Court, erroneously come to the conclusion that the

plaintiff is in possession of the suit property. The very

approach of the First Appellate Court is erroneous, and hence,

this Court has to admit the appeal and frame substantial

question of law as the First Appellate Court erred in granting

the relief of permanent injunction in favour the

respondent/plaintiff. Learned counsel would also contend that,

inspite of there being no evidence to show that the plaintiff was

in possession and enjoyment of the suit schedule property, the

judgment and decree passed by the First Appellate Court is not

correct.

8. Learned counsel for the respondent/plaintiff

vehemently contended that the Trial Court, not considered both

oral and documentary evidence, while dismissing the suit, when

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

the relief is sought for declaration and injunction and in two

pages, judgment was passed by the Trial Court, by answering

issue Nos.1 to 3 as negative and same has been reassessed by

the First Appellate Court. The First Appellate Court, having

taken note of the material available on record, particularly in

paragraph 17, comes to the conclusion that there is an ample

evidence on record to show that the plaintiff is in possession of

the suit property. The documents produced by the plaintiff

reveal that the father of the plaintiff-Kaverigowda was in

possession of the suit schedule property, as grantee and the

name of the plaintiff is mentioned as per Exhibit P1-Grant

Certificate. The plaintiff was put to cross-examination by the

learned counsel for the defendants but nothing elicited to show

that the plaintiff is not in possession of the suit schedule

property. The evidence of DW-4, who is the witness of the

defendants itself categorically admitted that there is a land of

Kaverigowda towards North of his property and therefore, same

has to be taken note of the fact that the plaintiff is in

possession of the suit schedule property. Hence, First Appellate

Court, not committed any error and defendants have not

produced any document to show that they are in possession of

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

the suit schedule property. Learned counsel also brought to the

notice of this Court to the document of the year 1953, wherein

the name of Kaverigowda is found in the year 1953, which is

marked as Exhibit P25. Accordingly, he sought for interference

of this Court.

9. Having heard the learned counsel for appellants and

learned counsel for the respondent and also on perusal of the

material on record would indicate that, in respect of the very

same property, both are making rival claim. It is also not in

dispute that, earlier the grant was made in favour of the

respondent/plaintiff and also the application filed by the

appellants herein was not disposed of. The fact that the

Karnataka Appellate Tribunal, set-aside the order and

remanded the matter to the concerned authority is not disputed

by both the parties. The learned Court also not granted the

relief of declaration in view of sending the matter to the

concerned authority with regard to declaration is concerned.

The First Appellate Court, taken note of, particularly the record

of the year 1953 which is marked as Exhibit P25, wherein,

specifically mentioned that, Kaverigowda has grown Ragi as

well as Paddy and extent is also mentioned in the said

NC: 2023:KHC:36251 RSA NO.1231 OF 2018

document. Apart from that, other documents are also placed

before the Court i.e. RTC Extract, Grant certificate and other

documents in favour of the plaintiff and also taken note of the

admission given by the DW-4, who is the witness of the

defendants, who categorically deposed that the plaintiff is in

possession of the his property, on the east of his property, the

property of one Srikante Gowda; on the west, the property of

one Ninge Gowda; on the north, the property of Kaveri Nanje

Gowda; and on the south, the property of Ninge Gowda is

available. The fact that the land has been granted in favour of

the appellants to an extent of 4 acres was not in dispute and

also there is a land to an extent of 4 acres, which is adjacent to

their land. The First Appellate Court taken note of the evidence

available on record both oral and documentary evidence,

wherein, the appellants have not placed any material and the

plaintiff has relied upon the documents to show that he is in

possession. Accordingly, the First Appellate Court come to the

conclusion that the case of the respondent/plaintiff is probable.

When such finding is given, having taken note of the admission

of the DW-4, who is the witness of the appellants and also

documentary evidence placed on record, I do not find any error

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NC: 2023:KHC:36251 RSA NO.1231 OF 2018

committed by the First Appellate Court in granting the relief of

permanent injunction in favour of the plaintiff as the same is

considered based on the merit and finding given by the Trial

Court, however failed to consider the same by the Trial Court. I

have already pointed out that the suit is filed for relief of

declaration and permanent injunction and the Trial Court in two

page judgment, disposed of the same by not considering the

document produced at Exhibit P25 and such other documents

and not even relied upon the evidence of DW-4 and same has

been considered and reassessed by the First Appellate Court

taking into account the grounds urged therein. Hence, no

grounds are made out to invoke Section 100 of the Code of Civil

Procedure to admit the appeal and frame any substantial

question of law. In view of the discussion made above, I pass

the following:

ORDER Appeal is dismissed.

SD/-

JUDGE

ARK