Smt. B Gowramma vs R T Thimmappa
2023 Latest Caselaw 7269 Kant

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                                                        NC: 2023:KHC:37506
                                                       RSA No. 984 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 13TH DAY OF OCTOBER, 2023

                                           BEFORE

                            THE HON'BLE MR. JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.984 OF 2022 (INJ)

                   BETWEEN:

                   1.    SMT. B. GOWRAMMA
                         W/O G. THIPPESWAMY,
                         AGED ABOUT 46 YEARS,
                         AGRICULTURIST,
                         R/AT NANDANAHOSUR VILLAGE
                         TALYA HOBLI,
                         HOLALKERE TALUK-577 526.
                                                              ...APPELLANT
                              (BY SRI RAMACHANDRA N., ADVOCATE)
                   AND:

                   1.    R.T. THIMMAPPA
                         S/O LATE THIMMABHOVI,
                         AGED ABOUT 69 YEARS,
                         AGRICULTURIST,
Digitally signed
by SHARANYA T            R/AT NANDANAHOSUR VILLAGE
Location: HIGH           TALYA HOBLI,
COURT OF                 HOLALKERE TALUK-577 526.
KARNATAKA
                                                            ...RESPONDENT

                         THIS RSA IS FILED UNDER SECTION 100 OF CPC,
                   AGAINST THE JUDGMENT AND DECREE DATED 17.02.2022
                   PASSED IN R.A.NO.7/2021 ON THE FILE OF THE SENIOR CIVIL
                   JUDGE AND JMFC, HOLALKERE . DISMISSING THE APPEAL AND
                   CONFIRMING THE JUDGMENT AND DECREE DATED 17.03.2021
                   PASSED IN O.S.NO.239/2015 ON THE FILE OF THE SENIOR
                   CIVIL JUDGE AND JMFC, HOLALKERE.

                        THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
                   THE COURT DELIVERED THE FOLLOWING:
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                                             NC: 2023:KHC:37506
                                            RSA No. 984 of 2022




                         JUDGMENT

This matter is listed for admission.

I have heard the learned counsel for the appellant.

2. The case of the plaintiff before the Trial Court that

he is in lawful possession and enjoyment of the suit schedule

property as on the date of institution of the suit and alleged

interference of the defendant. In order to substantiate his

contention the plaintiff has examined himself as PW1 and got

marked the document Exs.P1 to P6 i.e. Mutation Register, RTC,

Crop Certificate, Rough Sketch map, Patta receipt book and tax

paid receipts. On the other hand defendant also examined four

witnesses as D1 to D4 and they have also relies upon the

documents Exs.D1 to D13, Certified Copy of Registered Sale

Deed, 03 mutations, Survey sketches, manual Record of Rights,

computerized Record of Rights and certified copy of the

Registered sale deed. The Trial Court having considered both

oral and documentary evidence available on record and

particularly the documents which have been filed by the

plaintiff i.e. Exs.P1, P2, P5 and P6 and the same is taken note

of in paragraph 15 that he has been in possession over the suit

NC: 2023:KHC:37506 RSA No. 984 of 2022

schedule property and also taken note of the answer elicited

from the mouth of DW2 who categorically admitted that the

plaintiff in the suit schedule property has grown Aracanut,

coconut trees and installed the Borewell and also suggestion

was made that the same was mentioned in the pahani. But

though the same was denied, but categorically admission was

given that the plaintiff is in possession of the suit schedule

property and grown Aracanut and coconut tree and also even

put the Borewell and having considered the admission granted

the relief of permanent injunction. Being aggrieved by the

judgment and decree an appeal is filed in R.A.7/2021 and the

First Appellate Court on re-appreciation of evidence available

on record since the grounds urged in the appeal memo that the

Trial Court has committed an error in not considering the

documents Exs.D1 to 13 even though those documents clearly

establishes that case of the appellant and the judgment and

decree is perverse and whether it requires interference,

formulated the point having reassessed the material available

on record, answered all the points as negative in coming to the

conclusion that the documents which have been placed by the

plaintiff and also the admission on the part of the witnesses

NC: 2023:KHC:37506 RSA No. 984 of 2022

which have been examined before the Court i.e. DW2

categorically admitted that plaintiff is in possession of the

property and grown Aracanut and coconut trees and in detail

discussed that Trial Court has not committed any error in

appreciating and also not found any illegality could be seen

though out the judgment and also taken note of the boundaries

in which defendant claims to be the owner and in possession is

concerned, has pleaded and also deposed in examination in

chief and confirmed the judgment of the Trial Court. Being

aggrieved by the judgment and decree of the Trial Court as

well as the First Appellate Court the present second appeal is

filed.

3. The main contention of the counsel before this

Court is that the Trial Court and First Appellate Court have

relied upon the document Exs.D1 to D4 which related to the

payment of revenue tax to the Government and mere payment

of tax does not indicate the possession of suit schedule

property. The conclusion drawn by both the Courts that

documents related to payment of tax would cover the

possession of the suit schedule property is misconceived and

fails to take note of the documents which have been relied

NC: 2023:KHC:37506 RSA No. 984 of 2022

upon by the defendant. The counsel also vehemently contend

that this Court has to frame substantial questions of law that

both the Courts have considered the material contrary to the

evidence on record and erred in not considered the entire

evidence on record and documents produced by the appellant

and hence, answered substantial question of law.

4. Having heard the appellant's counsel and also on

perusal of the reasoning of the Trial Court, the Trial Court

having taken note of the documents which have been placed

before the Court by the plaintiff i.e. mutation register, RTC,

land holding Certificate as well as sketch of boundaries and

Patta receipt book, tax paid receipts taken note of oral evidence

and also the evidence of DW1 who categorically admitted in the

cross examination that plaintiff is in possession of the property

and he has grown Aracanut and coconut trees and also installed

the Borewell and in detail discussed regarding possession as

well as the boundaries is concerned, since the document of

sketch and boundary is also placed before the Court with

regard to the identity of the property and First Appellate Court

also on re-consideration of the material on record in view of the

NC: 2023:KHC:37506 RSA No. 984 of 2022

grounds urged by the appellant comes to the conclusion that

Trial Court has not committed any error.

5. When the suit is filed for the relief of permanent

injunction and when the defendant appeared and filed written

statement denying the possession, but in the cross examination

categorically admitted that plaintiff is in possession and grown

Aracanut and coconut trees in the suit schedule property and

even installed the Borewell and when such admission is given

and possession is established by the plaintiff, both the Courts

have not committed any error.

6. The main contention of the appellant's counsel that

ought to have filed comprehensive suit and no need to file

comprehensive suit when the categorical admission was given

with regard to the possession of the plaintiff and growing of

Aracanut and coconut trees in the suit schedule property and

only requires when there is a cloud on the title, comprehensive

suit has to be filed and hence, I do not find any ground to

invoke Section 100 of CPC to admit and to frame substantial

question of law.

NC: 2023:KHC:37506 RSA No. 984 of 2022

7. In view of the discussions made above, I pass the following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE

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