Mr Peter Danthi vs Mr Abraham Danthi
2023 Latest Caselaw 6462 Kant

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                                                         NC: 2023:KHC:33001
                                                       RSA No. 2043 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 12TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 2043 OF 2021 (INJ)

                   BETWEEN:

                   1.    MR. PETER DANTHI
                         S/O. LIGORY DANTHI,
                         AGED ABOUT 62 YEARS,
                         R/AT DANTHI NIKETHAN,
                         KURPUDEL, NINJOOR VILLAGE,
                         KARKALA TALUK,
                         UDUPI DISTRICT-574 244.
                                                                 ...APPELLANT

                                  (BY SRI V. ANAND, ADVOCATE)
                   AND:

                   1.    MR. ABRAHAM DANTHI
                         S/O. LIOGORY DANTHI,
                         AGED ABOUT 75 YEARS,
Digitally signed
by SHARANYA T            R/AT ANNERAKATTE KURPUDEL,
Location: HIGH           DARKASH, NINJOOR VILLAGE,
COURT OF                 KARKALA TALUK,
KARNATAKA
                         UDUPI DISTRICT-574 244.
                                                                ...RESPONDENT

                        THIS RSA IS FILED UNDER SECTION 100 OF CPC
                   AGAINST THE JUDGMENT AND DECREE DATED 25.01.2021
                   PASSED IN R.A.NO.33/2012 ON THE FILE OF THE SENIOR
                   CIVIL JUDGE AND ACJM, KARKALA, PARTLY ALLOWING THE
                   APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED
                   12.04.2012 PASSED IN O.S.NO.130/2010 ON THE FILE OF THE
                   PRINCIPAL CIVIL JUDGE, KARKALA.
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                                              NC: 2023:KHC:33001
                                           RSA No. 2043 of 2021




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

                           JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

2. The suit is filed for the relief of possession,

mandatory injunction and also for mesne profits. The defendant

took the defence in the written statement that suit is barred by

limitation and he has been in possession and enjoyment of the

suit schedule property continuously, openly, notoriously with

the knowledge of the plaintiffs' father and the plaintiff and

adverse to them, perfected his title over the suit property by

adverse possession. The Trial Court having taken note of the

pleadings of the parties, comes to the conclusion that adverse

possession cannot be claimed and answered issue Nos.1 and 2

as 'negative since, the defendant sought for the relief of

mandatory injunction and the issue that the claim made by the

plaintiff is barred by limitation is also answered as 'negative'

and the Trial Court comes to the conclusion that the plaintiff is

entitled for mandatory injunction. Hence, the plaintiff is entitled

for mesne profits and also the income from paddy fields and

NC: 2023:KHC:33001 RSA No. 2043 of 2021

decreed the suit and directed the defendant to pay the amount

of Rs.2,000/- per month.

3. Being aggrieved by the judgment and decree of the

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

R.A.No.33/2012 and the First Appellate Court having

considered the grounds urged in the appeal, on re-appreciation

of both oral and documentary evidence placed on record,

dismissed the appeal. However, modified the judgment and

decree of the Trial Court to the extent that plaintiff is entitled

for mesne profit at the rate of Rs.300/- per month for the past

three years prior to the filing of the suit and from the date of

the suit till the delivery of possession of the suit property and

also granted special damage to the tune of Rs.20,000/-. The

First Appellate Court also made it clear that the plaintiff is not

entitled for the relief No.(c) and (d) of the plaint i.e.,. income of

paddy field and income of fruit yielding trees. Being aggrieved

by the said judgment and decree of the First Appellate Court,

the present second appeal is filed before this Court.

4. Learned counsel for the appellant would vehemently

contend that it is not in dispute that property is granted in

NC: 2023:KHC:33001 RSA No. 2043 of 2021

favour of the father and the father was not having any right to

execute the settlement deed dated 02.08.2000 and the same is

void and settler has no rights to settle the properties under this

registered settlement deed. It is also contended that the Trial

Court and the First Appellate Court totally erred in arriving at a

conclusion with regard to the nature of possession of the

appellant and since the appellant is governed under Indian

Succession Act and also committed error in granting the relief

of mandatory injunction and the same is not maintainable. The

learned counsel appellant has also framed substantial question

of law in the appeal memo whether the Court below arrived at

a proper and correct conclusion with regard to the

maintainability of the suit since, the plaintiff had not sought for

and declaratory relief coupled with possession and whether the

Courts below arrived at a wrong conclusion with regard to

question of limitation despite the fact that the appellant has

taken the plea of adverse possession to the knowledge of the

respondent.

5. Having heard the learned counsel for the appellant

and also on perusal of the material available on record, it is not

in dispute that property is granted in favour of the father and

NC: 2023:KHC:33001 RSA No. 2043 of 2021

also a settlement deed is executed in favour of the plaintiff and

no dispute with regard to the relationship between the parties

that they are the brothers. But, the only contention is that

settler was not having any right to settle the property in favour

of the plaintiff and the very contention that father had no right

to settle the same cannot be accepted and the fact that the

property was granted in his favour is not in dispute and also

there is no dispute with regard to the document of execution of

settlement deed. But, the only contention is that he was not

having exclusive right to settle the same and the said

contention was not accepted by the Trial Court and the First

Appellate Court and both the Courts have given fact finding and

the question that arises before this Court is that whether any

substantial question of law arises for consideration before this

Court. I do not find any ground to frame substantial question of

law and the Trial Court as well as the First Appellate Court have

taken note of the relationship between the parties and the First

Appellate Court even modified the judgment and decree and

only ordered for Rs.300/- per month as mesne profits and

directed the defendant to deliver possession and till then, the

defendant has to pay the amount of Rs.300/- per month.

NC: 2023:KHC:33001 RSA No. 2043 of 2021

6. When such being the case and when the material

placed before the Court is very clear that settlement deed is

executed vide settlement deed dated 02.08.2000 and both the

Courts have not committed any error and taken note of the

material on record and also registered settlement deed dated

02.08.2000 executed in favour of the plaintiff. Hence, in the

absence of any perversity in the judgment passed by the Trial

Court and the First Appellate Court, invoking of Section 100 of

CPC does not arise. Therefore, I do not find any ground to

frame substantial question of law.

7. The learned counsel for the appellant would

vehemently contend that this Court can grant one year time to

vacate and handover possession of the suit property and when

the suit is of the year 2010 and now, we are in 2023 and the

Trial Court also granted two months time to deliver possession

of the suit property and mesne profits awarded is at the rate of

Rs.2,000/- per month, the First Appellate Court modified the

same as Rs.300/- per month and awarded Rs.20,000/- as

special damages, hence, it is not a fit case to grant a time of

one year. Hence, three months time is granted to handover

NC: 2023:KHC:33001 RSA No. 2043 of 2021

possession of the suit property to the plaintiff having

considered the fact that suit is of the year 2010.

8. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is dismissed.

(ii) The appellant is granted three months time to handover suit property to the plaintiff and to pay the mesne profits, forthwith.

Sd/-

JUDGE

ST