Karnataka High Court
Sri. Thippeswamy vs Sri H.N. Revanasiddappa on 18 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:15218
RSA No. 372 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL No. 372 OF 2023 (DEC/INJ)
BETWEEN:
1. SRI. THIPPESWAMY,
S/O.SIDDAPPA,
AGED ABOUT 69 YEARS,
2. SRI DEVARAJ,
S/O THIPPESWAMY,
AGED ABOUT 45 YEARS,
3. SRI MAHESHWARAPPA,
S/O VISHWANATHAPPA,
AGED ABOUT 61 YEARS,
4. SRI YOGESH
S/O MAHESWARAPPA,
AGED ABOUT 39 YEARS,
Digitally signed
by SUMA B N
Location: High 5. SRI SANTOSH
Court of S/O MAHESWARAPPA,
Karnataka
AGED ABOUT 38 YEARS,
6. SRI LINGARAJU
S/O HAMPANNA,
AGED ABOUT 47 YEARS,
APPELLANTS No.1 TO 6 ARE
R/A GAGANAKATTE VILLAGE 577556,
DAVANAGERE TALUK AND DISTRICT.
...APPELLANTS
(BY SRI. V. B. SIDDARAMAIAH, ADVOCATE)
-2-
NC: 2024:KHC:15218
RSA No. 372 of 2023
AND:
1. SRI H.N. REVANASIDDAPPA,
S/O H.NAGAPPA,
AGED ABOUT 56 YEARS,
2. SRI VEERABHADRAPPA
S/O VEERABASAPPA,
AGED ABOUT 53 YEARS,
RESPONDENTS No.1 & 2 ARE
R/O GAGANAKATTE VILLAGE 577556,
DAVANAGERE TALUK AND DISTRICT.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 30.11.2022
PASSED IN RA.No.53/2022 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.01.2022 PASSED IN OS No.677/2012
ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC,
DAVANAGERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the defendants aggrieved by the
judgment and decree dated 27.01.2022 passed in
O.S.No.677/2012 on the file of the I Additional Civil Judge and
JMFC, Davanagere, which is confirmed by the judgment and
decree dated 30.11.2022 passed in R.A.No.53/2022 on the file
of the II Additional Senior Civil Judge and JMFC, Davanagere.
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2. The above suit is filed by the plaintiff seeking the
relief of permanent injunction restraining the defendants from
interfering with his peaceful possession and enjoyment of the
suit schedule property and also to prevent them from using any
portion of the property for the purpose of running cart and
truck etc.
3. The case of the plaintiff is that his father one
Nagappa purchased the suit schedule property in terms of a
deed of sale dated 05.10.1977 from one Siddalingappa S/o
Kayakada Revappa. Ever since then, he was in possession and
enjoyment of the property. Upon his demise, plaintiff being his
son succeeded to the same. There is no property belonging to
the defendants anywhere situated abutting the suit schedule
property. However, defendants are trying to take their bullock
carts and tractors through the land of plaintiff thereby
interfering with his peaceful possession and enjoyment of the
suit schedule property constraining him to file the suit.
4. The defendants in their written statement
contended that they are in possession of the land in
Ganganakatte Village, Davanagere Taluk, which is their
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ancestral property and they have been cultivating the same.
The suit schedule property is a gomala land. Later on,
Siddalingappa S/o Revappa Kayakada, had obtained the said
land in a grant on 19.12.1969. The grant was subject to
certain conditions. One of the conditions imposed in the said
grant was that the same was subject to right, interest created
in favour of the owners of adjacent lands to use the same for
the purpose of ingress and egress. Thus, it was contended that
right of the plaintiff to the suit schedule property is subject to
right to use the road through the said property by the
defendants. Hence, they sought for dismissal of the suit.
5. The Trial Court based on the pleadings framed the
following issues:-
"i) Whether the plaintiff proves that he is in
lawful possession of the suit schedule
property as on the date of suit?
ii) Whether the plaintiff proves the alleged
interference and acts of the defendants as
pleaded in the plaint Para No.22?
iii) Whether the plaintiff is entitled for the reliefs
as sought for?
iv) What order or decree?"
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6. The plaintiff examined himself as PW.1 and
exhibited six documents marked as Exs.P.1 to P.6. Two
witnesses were examined on behalf of the defendants as DWs.1
and 2 and exhibited 16 documents as Exs.D.1 to D.16.
7. On appreciation of evidence, Trial Court decreed the
suit. Aggrieved by the same, defendants preferred an appeal.
Considering the grounds urged in the appeal, the First Appellate
Court framed the following points for its consideration:
"i) Whether the appellant establishes that the
impugned judgment and decree passed by the
Additional Civil Judge, Davanagere, in
O.S.677/2012 dated 27.01.2022 is illegal, perverse
and liable to be set-aside?
ii) What order or decree?"
8. On re-appreciation of the evidence, the First
Appellate Court dismissed the appeal confirming the judgment
and decree passed by the Trial Court. Aggrieved by the same,
appellants are before this Court.
9. Sri.V.B.Siddaramaiah, learned counsel for the
appellants reiterating the grounds urged in the memorandum of
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appeal submitted that the Trial Court and the First Appellate
Court have grossly erred in not noticing the fact that on the
Western side of the suit schedule property, lands in Survey
Nos.33 and 34 are situated, which belonged to the defendants.
It is his contention that as per the documents produced by
defendants at Ex.D.2-Tahsildar Endorsement, Ex.D.3-R.I.
Report, Ex.D.4-Village Report and Ex.D.5-Panchanama, there is
a clear depiction of existence of road passing through the suit
schedule property which is being used by the defendants.
Thus, he submits that while granting the relief of injunction,
Trial Court and the First Appellate Court ought to have
appreciated existence of right of the defendants to use the suit
schedule property for the purpose of ingress and egress to
reach their land. He further submits that a representation was
made to the Tahsildar by the defendants, who had issued an
endorsement as per Ex.D.2 stating that since the suit is
pending consideration, the representation would not be
considered. Thus, he submits that the grant of permanent
injunction by the Trial Court confirmed by the First Appellate
Court has adversely affected the substantive rights of the
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defendants to use the suit schedule property to have ingress
and egress to their land.
10. Heard learned counsel appearing for the appellants
and perused the records.
11. The suit is one for permanent injunction based on
the deed of sale. The defendants have not denied the right,
title and interest of the plaintiff. Their case simpliciter is that
they have their right over the suit schedule property for ingress
and egress to reach to their lands. Since the plaintiff has
established his right, title and possession, which is admitted by
the defendants, the finding arrived at by the Trial Court and the
First Appellate Court cannot be found fault with.
12. The defendants, on the other hand, have not sought
any counter-claim in the suit. If the defendants had any
substantive right, they ought to have established the same and
sought for necessary relief in a manner known to law. That not
having been done, no fault or illegality can be found with the
reasoning and conclusion arrived at by the Trial Court. Since
the Trial Court and the First Appellate Court have decreed the
suit based on appreciation of the factual evidence, the same
cannot be interfered in the Second Appeal.
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13. Accordingly, the appeal is dismissed as no
substantial question of law would arise for consideration.
14. Needless to state, notwithstanding dismissal of the
appeal, defendants are at liberty to seek such relief as may be
permissible and available in law.
In view of dismissal of main appeal, pending
I.A.No.1/2023 does not survive for consideration and the same
is also disposed.
Sd/-
JUDGE
MV
