Karnataka High Court
Sri M M Sarvothamagowda vs Sri Prabhakara M C on 16 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 152 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.152 OF 2012 (INJ)
BETWEEN:
1. SRI M.M. SARVOTHAMAGOWDA,
S/O LATE MEENAKSHIGOWDA,
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE,
R/O. MELINAKOPPA
SIRIGARU VILLAGE,
NONABUR POST,
AGRAHARA HOBLI,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577432.
...APPELLANT
(BY SRI. S.V. PRAKASH, ADVOCATE)
AND:
Digitally signed
by SHARANYA T
Location: HIGH 1. SRI PRABHAKARA M.C.
COURT OF S/O CHOODEGOWDA,
KARNATAKA AGED ABOUT 42 YEARS
OCC: AGRICULTURE,
R/O MELINAKOPPA,
SIRIGARU VILLAGE,
NONABUR POST,
AGRAHARA HOBLI,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577432.
...RESPONDENT
(BY SRI. NATARAJA BALLAL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 19.09.2011
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RSA No. 152 of 2012
PASSED IN R.A.NO.24/2010 ON THE FILE OF THE I ADDL.
SENIOR CIVIL JUDGE AND C.J.M, SHIVAMOGGA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11.2.2010 PASSED IN O.S.NO.155/2005 ON THE FILE OF
THE CIVIL JUDGE (JR.DN) AND JMFC, THIRTHAHALLI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and the
learned counsel for the respondent.
2. This appeal is filed by the defendant challenging the
judgment and decree passed by the Trial Court in granting the
relief of permanent injunction in O.S.No.155/2005 and also the
judgment and decree passed in R.A.No.24/2010 confirming the
judgment and decree of the Trial Court granting the relief of
permanent injunction.
3. The case of the plaintiff in O.S.No.155/2005 is that
the plaintiff is the owner in lawful possession and enjoyment of
the garden land measuring 32 guntas out of the land bearing
Sy.No.208 of Sirigaru Village and the said property was
purchased from his vendor Nagappagowda for a valuable sale
consideration through a registered sale deed dated 11.08.2003
and after the said purchase, the khatha has been mutated in his
name and he has been enjoying the suit property without any
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interference by anybody. When the defendant interfered, he
filed a suit for the relief of permanent injunction and the said
suit was dismissed as not pressed in O.S.No.8/2004. The
defendant is again trying to interfere with the possession and
enjoyment of the plaintiff in respect of the suit property. Hence,
once again he had filed the suit for the relief of bare injunction.
4. In pursuance of the suit summons, the defendant
appeared and filed the written statement contending that the
land bearing Sy.No.208 of Sirigaru Village is totally measuring 4
acres 31 guntas and the entire extent of land was originally
belonging to one Bhavani Shankara Devaru. The Land Tribunal,
Thirthahalli, has granted the said portion of the land to him and
other tenants. As per partition dated 18.04.1957 among the
family members, the father of the defendant by name
Meenakshigowda was allotted 1 acre 24 guntas, the brother of
Meenakshigowda by name Sheshaiangowda @ Sheshannagowda
was allotted 1 acre 24 guntas and his another brother
Subbaiahgowda was allotted 1 acre 23 guntas. The vendor of
the plaintiff Subbaiah Gowda is the son of Sheshaiah Gowda.
The said Sheshannagowda had three sons by name
Veerappagowda, Nagappagowda and Subbaiahgowda. After the
death of Sheshannagowda, his sons divided the family property
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measuring 1 acre 24 guntas under a registered partition deed
dated 12.06.1961. In the said partition, Nagappagowda was
allotted 32 guntas and Subbaiahgowda was allotted 32 guntas
and on their application in Form No.7, the Land Tribunal,
Thirthahalli has granted the occupancy right to them subject to
measurement.
5. The father of the defendant also acquired the landed
properties in Sy.No.207 of Sirigaru Village in the partition dated
18.04.1957 and as per the said partition, 1 acre 24 guntas of
land in Sy.No.208 is situated on the eastern side of the land in
Sy.No.207. The property that is wet land allotted to the share
of Sheshaiahgowda measuring 1 acre 24 guntas is situated on
the eastern side of the property of the father of the defendant,
late Meenakshigowda and the property of Subbaiahgowda M.S.
is situated between the lands of late Meenakshigowda and
Nagappagowda and the land of Nagappagowda measuring 32
guntas is situated on the eastern side of the wet land of
Subbaiahgowda M.S. Nagappagowda and Subbaiahgowda gave
a declaration for occupancy right on the basis of the partition
deed dated 12.06.1961 and thereafter Nagappagowda is not
having any property adjacent to the property of late
Meenakshigowda. After the partition dated 18.04.1957, the
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father of the defendant raised areca plants in the land of his
share and except the garden land of the defendant, no other
persons have raised the garden in Sy.No.208. As no garden
land was possessed by Nagappagowda in Sy.No.208, he cannot
sell the areca garden to the plaintiff as alleged in the plaint. The
plaint schedule boundaries do not tally with the boundaries
mentioned in the sale deed dated 11.08.2003 and also with the
schedule in the partition deed. The plaintiff has given wrong
boundaries with an intent to knock off the property of the
defendant. The revenue records show that the vendor of the
plaintiff was having 32 guntas of wet land. The plaintiff is not
entitled for any right or possession in respect of the garden land
in Sy.No.208, merely on the basis of the sale deed dated
11.08.2003. The land allotted to Nagappagowda in the partition
is not yet measured since the date of tenancy and the grant of
occupancy right by the Land Tribunal. The possession of the
respective parties under the partition deeds over their respective
shares is as per the recitals and boundaries specified in the
partition deed.
6. The Trial Court having taken note of the pleadings of
both the parties, framed the issues and the suit filed by the
appellant in O.S.No.18/2005 was dismissed and the suit filed by
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the respondent herein in O.S.No.155/2005 is decreed. Being
aggrieved by the judgment and decree of the Trial Court, an
appeal is filed and the appeal is also dismissed and hence the
present second appeal is filed before this Court.
7. This Court when the matter was listed for admission,
ordered to survey the land and get the report from the ADLR
and the ADLR has filed the report and the Commissioner report
is very clear in mentioning three blocks. In one block, to the
extent of 2 acres 6 guntas, the appellant is in possession and in
respect of second block is concerned 27 guntas of land, the
same was claimed by the appellant that he is cultivating the said
land and the defendant claim that he had purchased the said
property to the extent of 27 guntas, which has been shown in
Block II. But he had purchased the property to the extent of 32
guntas and Block III is in respect of 15 guntas, but in the
pahani, it is shown as 20 guntas.
8. Having considered this Commissioner report, it is
clear that though the appellant claims that he has got the
property to the extent of 1 acre 24 guntas in Block-I, he is in
possession to the extent of 2 acres 6 guntas and in respect of
Block-II, both of them are claiming right in respect of the same.
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The Commissioner report also not helps the respondent and
apart from that, though there was a sale deed in favour of the
respondent of the year 2003 purchasing to the extent of 32
guntas, no document is produced before the Trial Court except
Ex.D.2 mutation to show that the respondent is in possession of
the property, even tax paid receipts and pahani also not
produced. In Ex.P.13 in O.S.No.155/2005, only the name of the
respondent is shown as Prabhakar and except that document,
nothing is on record. Having taken note of the possession is
concerned in view of the Commissioner report, the appellant is
in possession of more than the extent to what he had
purchased. It clearly discloses that he has been in possession of
the property and though the respondent claims that he had
purchased the property which is in Block II, the same is also
claimed by the appellant that he is cultivating the land. The
respondent has not produced any document to show that even
the vendor was in possession of the property prior to purchasing
the property. When such being the case, the Trial Court ought
not to have granted the relief of permanent injunction. While
granting the relief of permanent injunction, the Court has to
take note of as on the date of filing of the suit, the plaintiff who
seeks the relief of permanent injunction, must establish that he
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has been in possession of the property. When such material is
not placed before the Court, the Trial Court committed an error
in granting the relief of permanent injunction. I have already
pointed out that the Commissioner report clearly discloses the
possession of the appellant excess to what he had purchased.
When such being the case, liberty is given to the respondent to
seek the appropriate relief seeking the comprehensive relief in
the suit to be filed.
9. With these observations, the second appeal is
disposed of.
Sd/-
JUDGE
MD
