Karnataka High Court

Sri V Narayan Bhat vs Sri V Krishna Bhat on 7 August, 2024

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                                                     NC: 2024:KHC:31633
                                                     RSA No. 62 of 2015




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 7TH DAY OF AUGUST, 2024

                                      BEFORE

                     THE HON'BLE MR JUSTICE ASHOK S.KINAGI

                   REGULAR SECOND APPEAL NO.62 OF 2015 (INJ)

              BETWEEN:

              SRI V. NARAYAN BHAT
              S/O VENKATARAMANA BHAT
              AGED ABOUT 73 YEARS
              R/AT SAJANKUBETTU HOUSE
              AJJIBETTU VILLAGE AND POST
              BANTWAL TALUK, D K DIST.-574201
                                                           ...APPELLANT
              (BY SRI. NIKHIL K.N., ADVOCATE FOR
                  SRI. O SHIVARAMA BHAT, ADVOCATE)

              AND:

              1.     SRI V KRISHNA BHAT
Digitally            S/O VENKATRAMANA BHAT
signed by R          SINCE DEAD BY HIS LEGAL REPRESENTATIVES
DEEPA
              1(A) N. VENKATAKRISHNA SHARMA
Location:          S/O LATE V. KRISHNA BHAT
HIGH COURT
                   AGED ABOUT 58 YEARS
OF
KARNATAKA          R/AT MULIYA HOUSE
                   ALIKE POST, VIA VITTAL, BANTWAL TALUK

              1(B) N. MAHALINGA SHARMA
                   S/O LATE V. KRISHNA BHAT
                   AGED ABOUT 56 YEARS
                   R/AT SAJANKABETTU HOUSE
                   AJJIBETTU VILLAGE AND POST
                   VIA VAMADAPADAVU
                   BANTWAL TALUK - 574 324
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                                        NC: 2024:KHC:31633
                                        RSA No. 62 of 2015




1(C) JAYASHANKARA SHARMA
     S/O LATE V. KRISHNA BHAT
     AGED ABOUT 54 YEARS
     R/AT MELANTHABETTU HOUSE
     MELANTHABETTU VILLAGE ANDN POST
     BELTHANGADY TALUK

1(D) MOOKAMBIKA
     D/O LATE V. KRISHNA BHAT
     AGED ABOUT 52 YEARS

1(E)   JAYASHREE
       D/O LATE V. KRISHNA BHAT
       AGED ABOUT 50 YEARS

1(F)   SHYAMALA
       D/O LATE V. KRISHNA BHAT
       AGED ABOUT 48 YEARS
       RESPONDENTS No.4 TO 6 ARE R/AT
       SAJANKABETTU HOUSE
       AJJIBETTU VILLAGE AND POST
       VIA VAMADAPADAVU
       BANTWAL TALUK - 574 324

2.     THE STATE OF KARNATAKA
       REPRESENTED BY
       DEPUTY COMMISSIONER
       D K MANGALORE - 575 001

3.     THE ASSISTANT DIRECTOR OF LAND RECORDS
       NEAR DEPUTY COMMISSIONERS OFFICE
       MANGALORE-575001

                                        ...RESPONDENTS
(BY SRI. NEERAJA KARANTH, ADVOCATE FOR
    SRI. K SHRIHARI, ADVOCATE FOR R1
    SRI. R.A. MACHA KANUR, ADVOCATE FOR R2 & R3)

     THIS RSA IS FILED UNDER SEC.100 ORDER XLII RULE 1
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
27.9.2014 PASSED IN R.A.NO.93/2004 (RE-NUMBERED AS
R.A.NO.1/2007) ON THE FILE OF THE PRL. SR. CIVIL JUDGE &
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                                                    NC: 2024:KHC:31633
                                                    RSA No. 62 of 2015




JMFC., BANTWAL, D.K, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 30.3.2004
PASSED IN O.S.NO.111/1996 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) BANTWAL.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI


                         ORAL JUDGMENT

This regular second appeal is filed by the appellant

challenging the judgment dated 27.09.2014, passed in

R.A.No.93/2004 by the learned Prl. Senior Civil Judge &

JMFC, Bantwal, D.K., confirming the order dated

30.03.2004, passed on preliminary issue No.8 in

O.S.No.111/1996 by the learned Prl. Civil Judge (Jr.Dn.),

Bantwal, D.K.

2. For the sake of convenience, parties are

referred to as per their ranking before the trial Court. The

appellant is the plaintiff and respondents are the

defendants.

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3. The brief facts leading rise to filing of this

appeal are as under:

Plaintiff filed a suit for mandatory injunction against

the defendant No.3 to rectify the FMB sketch in respect of

Sy.No.43/7B1 and Sy.No.43/7B2 situated at Ajjibettu

Village, Bantwala Taluk, D.K. It is the case of the plaintiff

that, himself and defendant No.1 are the brothers and

jointly owned certain immovable properties in Ajjibettu

Village and the said properties were divided as per the

partition deed dated 03.06.1983. Under the said partition

deed, apart from other properties, the property described

in 'X' schedule was allotted to the plaintiff and the

property described under 'Y' schedule along with certain

other properties comprised under schedule 'A' to the

partition deed were allotted to the share of defendant

No.1. The RTC in respect of 'X' schedule property stands

in the name of the plaintiff and the RTC in respect of 'Y'

schedule property stands in the name of defendant No.1.

It is contended that, in the first week of February 1995,

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the plaintiff applied for certified copy of the sketch in

respect of Sy.No.43/7B for filing a suit in O.S.No.41/1996.

The certified copy was issued to the plaintiff on

05.02.1996. On perusing the said sketch, plaintiff found

out that the said sketch is not in accordance with the

allotment of the shares under the partition deed. It is

contended that, no notice was issued to the plaintiff by

defendant No.3. Hence it is contended that, the sketch

was prepared behind the back of the plaintiff. Hence,

plaintiff filed the suit for mandatory injunction.

4. Defendant No.1 filed written statement denying

the allegations made in the plaint and contended that the

defendant No.3 has prepared the sketch as per the

partition deed. It is contended that the suit filed by the

plaintiff is not maintainable. The plaintiff has got an equal

efficacious remedy. On these grounds, sought for

dismissal of the suit.

5. Defendant No.3 filed written statement denying

the averments made in the plaint and contended that the

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suit is not maintainable in view of Section 49 of the

Karnataka Land Revenue Act, 1964. Hence, prayed to

dismiss the suit.

6. The Trial Court, on the basis of the above said

pleadings, framed issues and issue No.8 was treated as

preliminary issue. The trial Court after hearing the learned

counsel for the parties, answered issue No.8 in affirmative

holding that the suit filed by the plaintiff is not

maintainable as the plaintiff has got an equal efficacious

remedy and consequently dismissed the suit of the plaintiff

vide order dated 30.03.2004.

7. The plaintiff aggrieved by the order passed on

preliminary issue No.8 in the above said suit, filed an

appeal in R.A.No.93/2004, renumbered as R.A.No.1/2007.

The First Appellate Court, on re-appreciation of the

material evidence on record, dismissed the appeal with

costs, confirming the order passed by the trial Court on

preliminary issue No.8. The plaintiff aggrieved by the

same, has filed this second appeal.

NC: 2024:KHC:31633

8. Heard learned counsel for the plaintiff.

9. Learned counsel for the plaintiff submits that

the suit filed by the plaintiff is maintainable and the trial

Court has committed an error in treating issue No.8 as

preliminary issue and the plaintiff has filed the suit for

rectification of FMB sketch. Hence the suit filed by the

plaintiff is maintainable and prayed to allow the appeal.

10. Perused the records and considered the

submissions of learned counsel for the plaintiff.

11. Admittedly, the plaintiff has sought for the relief

of mandatory injunction against defendant No.3 to rectify

the FMB sketch in respect of Sy.No.43/7B1 and 43/7B2 in

accordance with the sketch produced along with the plaint.

According to the plaintiff, the sketch is not prepared in

accordance with the provision of law and as per the

partition deed. If at all if the plaintiff is aggrieved by the

FMB sketch, the plaintiff has got an equal efficacious

remedy under Section 49 of the Karnataka Land Revenue

Act, 1964. The plaintiff without exhausting the said

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alternative remedy, has filed the suit for mandatory

injunction. As per Section 41(h) of the Specific Relief Act,

1963, which provides that an injunction can be refused

when equal efficacious relief can certainly be obtained by

any other usual mode of proceeding except in case of

breach of trust. The plaintiff has got equal efficacious

remedy under Section 49 of the Karnataka Land Revenue

Act, 1964. Hence, under Section 41(h) of the Specific

Relief Act, 1963, the suit of the plaintiff is not

maintainable and the same is filed without exhausting

efficacious remedy. The trial Court was justified in

answering preliminary issue No.8 in affirmative and

consequently dismissing the suit as not maintainable. The

first Appellate Court on re-appreciation of the material on

record, was justified in confirming the order passed by the

trial Court on preliminary issue No.8. Hence, I do not find

any substantial question of law that arise for consideration

in this appeal.

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12. In view of the above discussion, I proceed to

pass the following:

ORDER

The appeal is dismissed.

Consequently, the judgment and order passed by the courts below are hereby confirmed. Liberty is reserved in favour of the plaintiff to challenge the FMB sketch before the appropriate forum.