Karnataka High Court
Sri K H Narayana Reddy vs Smt. Chinnamma on 2 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1452 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1452 OF 2018 (INJ)
BETWEEN:
SRI. K.H. NARAYANA REDDY
@ K.H.NARAYANAPPA,
S/O LATE HANUMANTHAPPA @ HANUMANTHARAYAPPA,
AGED ABOUT 53 YEARS
R/AT KOLAVANAHALLI,
NANDI HOBLI,
CHIKKABALLAPURA TALUK
CHIKKABALLAPURA DISTRICT - 562 101.
...APPELLANT
(BY SRI. Y. NAGARAJ, ADVOCATE FOR
SRI. C. SHANKAR REDDY, ADVOCATE)
AND:
1. SMT. CHINNAMMA
1ST WIFE OF SRI. RAMANNA,
AGED ABOUT 78 YEARS
Digitally signed 2. SMT. MUNITHAYAMMA
by SUMA B N
2ND WIFE OF SRI. RAMANNA,
Location: High
Court of AGED ABOUT 68 YEARS
Karnataka
3. SRI. ASHWATHAPPA
S/O SRI. RAMANNA,
AGED ABOUT 49 YEARS
4. SRI. SRINIVAS
S/O SRI. RAMANNA,
AGED ABOUT 39 YEARS
RESPONDENTS NO.1 TO 4 ARE
R/AT KOLAVANAHALLI,
NANDI HOBLI,
CHIKKABALLAPURA TALUK-562 103.
5. SMT. RATHNAMMA
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RSA No. 1452 of 2018
W/O SRI. GOPALAPPA,
D/O SRI. RAMANNA,
AGED ABOUT 53 YEARS
6. SMT. GAYATHRI
W/O SRI. GOPALAPPA,
D/O SRI.RAMANNA,
AGED ABOUT 41 YEARS
RESPONDENTS NO. 5 TO 6 ARE
R/AT CHIKKA MARALI,
NANDI HOBLI,
CHIKKABALLAPURA TALUK-562 101.
7. SMT. MANJULA
W/O SRI. MUNIREDDY,
D/O SRI. RAMANNA,
AGED ABOUT 35 YEARS
R/AT GANDLA
HOSAHALLI, KASABA HOBLI,
CHIKKABALLAPURA TALUK-562 101.
8. THE TAHASILDAR
CHIKKABALLAPURA TALUK
CHIKKABALLAURA-562 101.
9. THE ASSISTANT
EXECUTIVE ENGINEER,
K.E.B. CHIKKABALLAPURA-562 101.
10. CHIEF SECRETARY
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BENGALURU-5600 01.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC., R/W ORDER
XLII RULE 1 OF CPC., AGAINST THE JUDGMENT DECREE DATED
03.11.2017 PASSED IN R.A.NO.90 OF 2015 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHICKBALLAPURA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 07.03.2015 PASSED IN OS.NO.484 OF 1996 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE AT CHICKBALLAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 1452 of 2018
JUDGMENT
This appeal is filed by the plaintiff aggrieved by the
judgment and decree dated 07.03.2015 passed in
O.S.No.484/1996 on the file of I Additional Civil Judge,
Chikkaballapur (hereinafter 'the Trial Court') and which is
confirmed by the judgment and order dated 03.11.2017 passed
in R.A.No.90/2015 on the file of I Additional Senior Civil Judge
and J.M.F.C, Chikkaballapur (hereinafter 'the First Appellate
Court').
2. The above suit is filed by the plaintiff seeking relief of
mandatory injunction and consequential relief of permanent
injunction directing the defendant No.1 to remove the bore-well
which is allegedly installed by the defendant No.1 on the land
of plaintiff bearing Sy.No.114 measuring 10.04 guntas out of 1
acre and 32 guntas, another property measuring 1 acre
situated at Kolavanahalli Village, Nandi Hobli, Chikkaballapura
Taluk another. It is the case of the plaintiff that he is the
absolute owner in possession and enjoyment of the schedule
land and has been enjoying the same by raising crops, drawing
water from his two bore-wells dug in the schedule property.
That the defendant No.1 without having any right, title and
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interest in the schedule land, has dug up a bore-well within the
land belonging to the plaintiff. Despite plaintiff causing issue
of notice dated 25.11.1996, defendant No.1 proceeded to
install the bore-well.
2.1 It is further alleged that the defendant No.1 after
installing the bore-well in the schedule property has been
attempting to obtain revenue certificate from the defendant
No.2-Tahildar for obtaining electric connection to the bore-well.
Despite request of the plaintiff, defendant Nos.2 and 3 not to
issue the revenue certificate or to provide electric connection,
there has been no favourable response constraining the plaintiff
to approach the Court for mandatory injunction and also for
permanent injunction.
2.2 On service of summons, defendant No.1 appeared
and filed written statement and the Defendant Nos.2 to 4 have
been placed ex-parte.
2.3. The defendant No.1 denied the case of the plaintiff
and contended that he has installed the bore-well within his
land and not on the land of the plaintiff. It is further contended
that after having installed the bore-well within his land he has
applied for grant of revenue certificate before the Tahsildar.
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2.4 The contention of defendant No.1 is that he is the
owner of a portion for land in Sy.No.114 of Kolavanahalli
Village, which he acquired under a registered deed of sale for
valuable sale consideration and he had also purchased another
portion of the said land. That the plaintiff had also got a portion
of this survey number measuring 33 guntas, on the eastern
side of the land of the defendant No.1. It is contended that the
land measuring 1 acre 33 guntas belonging to the defendant
No.1 and land measuring 33 guntas belonging to the plaintiff
have been separated by a ridge.
2.5. It is further contended that defendant No.1 has dug
up the bore-well within his land and which is situated at-least
twenty feet away from the said ridge separating the two lands.
2.6 While the defendant Nos.2 and 3 are about to issue
said certificate and electricity connection as sought for. The
plaintiff approached the Court only to harass the defendants.
Hence, sought for dismissal of the suit.
3. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1) Whether the plaintiff proves that he is the
absolute owner and in possession of suit schedule
land?
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2) Whether the plaintiff proves that the 1st
defendant dugged up bore well in the portion of
land belongs to him?
3) Whether the plaintiff is entitled for relief of
mandatory injunction against the 1st defendant to
remove the bore well dug up in the suit. schedule
property?
4) Whether the plaintiff proves the alleged
obstruction of defendants over the suit schedule
property?
5) What order or decree?"
4. The plaintiff examined himself as PW1 and exhibited 14
documents marked as Ex.P1 to Ex.P14. In order to prove their
defence, defendant No.1 examined himself as DW1. and
exhibited 13 documents marked as Ex.D1 to Ex.D13. On
appreciation of the evidence the Trial Court answered issue
No.1 in the affirmative to issue Nos.2 to 4 in the negative and
consequently dismissed the suit.
5. Being aggrieved by the aforesaid judgment and decree
plaintiff filed an appeal in R.A.No.90/2015 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
"1) Whether the appellant proves that the trial
court has erred in consideration of the proposition
of law and facts and passed incorrect judgment?
2) Whether the judgment of the trial court calls for
interference ?
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3) What order or decree ?"
6. On re-appreciation of the evidences, the First Appellate
Court answered point No.1 in the affirmative and point No.2 in
the negative and consequently dismissed the appeal confirming
the judgment and decree passed by the Trial Court. Being
aggrieved by the same plaintiff filed the present appeal.
7. Sri.Y.Nagaraj, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submits that the Trial Court having answered the issue
No.1 in the affirmative holding that the plaintiff is the absolute
owner of the suit schedule property aught to have held that
plaintiff is entitled for relief of mandatory injunction against the
defendants directing him to remove the bore-well installed. He
submits that since there is no dispute with regard to the
entitlement of the land belonging to the plaintiff, the Trial Court
and the First Appellate Court have erred in declining the grant
of relief of injunction though there is threat of interference by
the defendant No.1. Hence he submits that this gives raise to
substantial question of law requiring consideration at the hands
of this Court.
8. Heard. Perused the records.
9. The suit filed by plaintiff is for a mandatory injunction
directing the defendant to remove the bore-well allegedly
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installed within the land belonging to the plaintiff. It is not the
case of the plaintiff that he has been dispossessed or any
portion of his land has been encroached upon by the defendant
No.1. Issue No.2 is framed by the Trial Court specifically with
regard to contention of the plaintiff of defendant No.1 installing
the bore-well within his land. Adverting to the said issue the
Trial Court at para No.24 to 29 has dealt with the pleadings of
the parties and the evidence led thereon. The Trial Court has
also taken into consideration of the report submitted by the
Commissioner. Based on this material evidence the Trial Court
has found that the land belonging to the plaintiff and the
defendant No.1 is separated by a ridge the suit property being
claimed by the plaintiff measuring 33 guntas is bounded on
East by K.B.Pille Gowda's Land, West by Ramanna's land,
North by Government Halla and South by Ramanna's land.
Another portion measuring 1 acre bounded by East by K.B.Pille
Gowda's land, West by Narasamma's Land, North by
Government Halla and South by the plaintiff's own property.
The land claimed by the defendant No.1 has been purchased by
him in terms of deed of sale, which is bounded on East by
Hanumanthaiah's Land, West by Bachappa's land, North by
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Kothanur border and South by Sy.No.108 to an extent of 33
guntas of land. Further, the boundaries to 1 acre 9 guntas of
the property towards East by same Survey number fallen to the
share of Venkatarayappa, West by Bachappa's land, North by
Kothanur border and South by Pothalappa, Nanjappa and
others properties.
10. The Trial Court has also taken into consideration of
the fact that apart from the aforesaid lands having distinctive
boundaries showing their separate existence, the same are
separated by a ridge. The Trial Court has found that the land
belonging to the plaintiff is situated towards western side of
land of the defendant No.1. At para No.27 of the judgment of
the Trial Court has noted that as per third memo of instruction
the Commissioner had stated that he had measured the
existence of bore-well from the ridge which is about 17.5 feet
away from the said ridge and that the said bore-well has been
closed down many years ago. Another bore-well which has
been dug up by the defendant No.1 is towards the western side
and the same is far away from the plaintiff's land. To the 11th
memo of instruction the Commissioner has opined that the
bore-well existing between the land of the plaintiff and the
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defendant No.1 is about 17.5 feet away and it is within the land
of the defendant No.1. As such the Commissioner has stated
that he is unable to find out any encroachment made by the
defendant as no documents were furnished. Based on these
material evidence, the Trial Court has come to the conclusion
that the plaintiff failed to prove the defendant having installed
the bore-well within the boundaries of plaintiff's property as
claimed in the plaint. The Commissioner report has not been
challenged and same forms part of the record. The First
Appellate Court taking note of the aforesaid factual aspects of
the matter has concurred with the reasoning and conclusion
arrived at by the Trial Court.
In view of the above, no substantial question of law
would arise in this appeal requiring consideration. Accordingly,
appeal is dismissed.
Sd/-
JUDGE
RL
