Karnataka High Court
Sri B P Rudraiah vs Smt Munivenkatamma on 13 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:6697
RSA No. 110 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 110 OF 2007 (INJ)
BETWEEN:
1. SRI B.P.RUDRAIAH
SINCE DEAD REP BY HIS LR
SRI B.R.VIJAYA KUMAR VODEYAR
S/O LATE B.P. RUDRAIAH
AGED ABOUT 46 YEARS
R/AT BIDADI VILLAGE AND HOBLI
RAMANAGARAM TALUK-573133
...APPELLANT
(BY SRI. SHREYAS B.S., ADVOCATE)
AND:
1. SMT. MUNIVENKATAMMA
SINCE DEAD BY LRS'
Digitally signed
by SHARANYA T
(a) B.M.NAGARAJAIAH
Location: HIGH
COURT OF SINCE DEAD REPRESENTED BY
KARNATAKA RESPONDENT NOS.1(b) AND 1(d)
(b) B.M.RAMACHANDRA
S/O B.M.NAGARAJAIAH
AGED ABOUT 50 YEARS,
R/AT KATHAGANAHALLI ROAD,
3RD MAIN, BIDADI-562109.
RAMANAGAR TALUK AND DISTRICT,
(c) SRI.KRISHNAMURTHY
S/O B.M.NAGARAJAIAH,
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NC: 2024:KHC:6697
RSA No. 110 of 2007
AGED ABOUT 45 YEARS,
R/AT KATHAGANAHALLI ROAD,
3RD MAIN, BIDADI-562109
RAMANAGAR TALUK AND DISTRICT,
(d) SMT.MEENA
W/O SRI.RAMAKRISHNA
D/O B.M.NAGARAJAIAH,
R/AT KATHAGANAHALLI
3RD MAIN, BIDADI-562109
RAMANAGAR TALUK AND DISTRICT,
(e) S.SRINIVAS
S/O B.M.NAGARAJAIAH
AGED ABOUT 50 YEARS,
4TH CROSS, BESIDE WODEYAR MANE,
11TH WARD, BIDADI TOWN,
RAMANAGARA DISTRICT-562109
2. SMT B.P.PUTTAMMA
W/O LATE B P RUDHRAIAH
AGED ABOUT 63 YEARS,
3. SRI B R BASAVARAJU
S/O LATE RUDHRAIAH
AGED ABOUT 48 YEARS
R1 TO R3 ARE
R/AT BIDADI VILLAGE AND POST,
BIDADI HOBLI,
RAMANAGARAM TALUK
4. SRI B R MANJUNATHA
S/O LATE B.P.RUDHRAIAH
AGED ABOUT 48 YEARS
II DIVISION CLERK
OFFICE OF THE TAHSILDAR
CHANNAPATNA TALUK
CHANNAPATTANA-571505.
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NC: 2024:KHC:6697
RSA No. 110 of 2007
5. SMT. RENUKAMBA @ REVAMMA
W/O REVAKUMAR
D/O LATE B.P. RUDHRAIAH
AGED ABOUT 51 YEARS
C/O JEEVANPRAKASH
NO.566, 2ND CROSS,
1ST MAIN, MOODALAPALYA
NEAR BAPUJI PRINTING PRESS
BANGALORE-72
6. SMT. KUMARAMMA W/O T.D.RAJU
D/O LATE B.P.RUDHRAIAH
AGED ABOUT 50 YEARS
SHOP NO.88, BALANA KATTI
BASAVESHWARA PAPER MERCHANT
TUMKUR-572101
7. SMT. B.R. UMADEVI
W/O LATE SHARTH KUMAR VODEYAR
S/O LATE B.P. RUDHRAIAH
AGED ABOUT 46 YEARS
R/AT NO.32, ANNASWAMY
MUDALIAR ROAD,
KODANDARAMA LAYOUT
BANGALORE- 42
8. SMT. B.R. SUSHEELA W/O UMESH
D/O LATE RUDRAIAH
C/O K.R.NAGARAJU
AGED ABOUT 43 YEARS
C/O K.R. NAGARAJU
RAMANAGARAM
...RESPONDENTS
(BY SRI. P.USMAN, ADVOCATE FOR PROPOSED R1(b - e),
R2, R3, R4 AND R8 - SERVED AND UNREPRESENTED;
VIDE ORDER DATED 29.08.2011,
APPEAL DISMISSED AGAINST R5 AND R6;
SRI C.R.SUBRAMANYA, ADVOCATE FOR R7,
VIDE ORDER DATED 13.03.2018,
R1(b - d) ARE TREATED AS LRS' OF DECEASED R1[a])
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NC: 2024:KHC:6697
RSA No. 110 of 2007
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.18.9.2006 PASSED IN
R.A.NO.31/2005 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN), RAMANAGARAM, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 18.12.2004
PASSED IN O.S.NO.70/94 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) AND ADDL. JMFC, RAMANAGARAM.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant and counsel for
respondents.
2. Both the parties have initiated the suit in
O.S.No.66/1994 and O.S.No.70/1994 and Trial Court has
granted the relief in favour of both the parties in decreeing
the O.S.No.66/1994 and O.S.No.70/1994. The appellant
herein has filed O.S.No.66/1994 and relief of permanent
injunction is granted in respect of D schedule property
which is in respect of sump measuring 50 x 46 ½ feet. The
said judgment and decree has not been challenged by the
respondent. But, the judgment and decree passed in
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O.S.No. 70/1994 is challenged before the First Appellate
Court in R.A.No.31/2005 by the appellant contending that
the judgment and decree passed by the Trial Court in
O.S.No.70/1994 is erroneous.
3. The counsel would vehemently contend that
respondents herein while putting up construction
encroached upon the property of appellant herein. The
Trial Court while granting the relief of the permanent
injunction against the appellant herein also taken note of
the fact that respondents who are the plaintiffs in
O.S.No.70/1994 when they have taken up the construction
in their property, the appellant herein tried to interfere
with the same. Hence, comes to the conclusion that there
is a threat of interference by the appellant herein.
4. The Trial Court has also taken note of the fact
that when the dispute was raised before the Trial Court
with regard to the encroachment is concerned,
commissioner was appointed and the commissioner has
also filed the report stating that no such encroachment as
alleged by the appellant herein. This appellant has not
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filed any objections to the commissioner report. The
respondents are also not filed any commissioner report,
the same also taken note of by the Trial Court while
granting the relief in favour of the respondents by granting
permanent injunction in O.S.No.70/1994.
5. The First Appellate Court has also taken note of
the grounds which have been urged in the appeal in
R.A.No.31/2005 and formulated the points as whether the
Trial Court erred in granting the relief of permanent
injunction in favour of the plaintiff and First Appellate
Court also taken note of the grounds urged in the appeal
as well as both oral and documentary evidence available
on record. The First Appellate Court in paragraph No.13 in
detail discussed that it is the specific contention of the
plaintiff that as her house situated in the suit property
started to fall down, she obtained license for
reconstruction of that building and that at that time, the
defendants obstructed that construction, the same is
deposed by the PW1 in his evidence. The PW2 has also
examined. Both the evidence of the PW1 and PW2 are
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corroborates with regard to the interference by the
appellant herein. The First Appellate Court has also taken
note of Ex.D7 to Ex.D10 also fortify the obstruction by the
defendants for construction of building by the plaintiff in
her property. The appellate Court has also taken note of
paragraph No.14 that commissioner was appointed and
the commissioner has also given report and no such any
report contains about the alleged encroachment by the
plaintiff. Both the parties also did not choose to file any
objections to the report submitted by the Commissioner.
The appellate Court has also taken note of the said report
does not show that the plaintiff has encroached upon the
property of the defendants. On the other hand, as per the
report, the plaintiff is constructing building in her own
property, when such material is considered by the First
Appellate Court and also in paragraph No.15 comes to the
conclusion that the defendants were interfering with the
possession of the plaintiff.
6. The very contention of the appellant's counsel
that the respondents have encroached the property while
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constructing the house and also making an attempt to
encroach upon the property of the defendant. The said
submission cannot be accepted. Both the Trial Court as
well as the First Appellate Court considered both oral and
documentary evidence available on record. On the other
hand, the Trial Court comes to the conclusion that there is
an interference by the appellant herein. The Commissioner
report does not disclose any encroachment as alleged by
the appellant herein. When such finding is given based on
both oral and documentary evidence available on record, I
do not find any perversity in the finding of the Trial Court
and appellate Court. Hence, I do not find any ground to
invoke Section 100 of CPC to frame any substantial
question of law as contended by the Counsel for
appellant's counsel.
7. In view of the discussions made above, I pass
the following:
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ORDER
The Regular Second Appeal is dismissed.
Sd/-
JUDGE
RHS
