Karnataka High Court
Smt S S Parvathy vs Sri K P Thammaiah on 14 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1819 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1819 OF 2023 (POS)
BETWEEN:
SMT. S. S. PARVATHY,
W/O. LATE SHIVAKUMAR,
AGED 66 YEARS,
R/AT T. SHETTIGERI VILLAGE,
VIRAJPET TALUK,
SOUTH KODAU-571 218.
...APPELLANT
(BY SRI. A.S. MAHESH, ADVOCATE FOR
SRI. SHIVARAJU H. B.,ADVOCATE)
AND:
1. SRI. K. P. THAMMAIAH,
THE PRESIDENT,
GOVERNING COUNCIL,
SRIMANGALA JUNIOR COLLEGE,
Digitally
signed by SRIMANGALA-571 217.
SUMA B N
Location: SRI. AJJAMADA NACHAPPA,
High Court of
Karnataka (SINCE DECEASED)
2. SRI. MADRIRA VISHNU,
S/O. POONACHA,
SECRETARY SES, KURCHI VILLAGE,
KURCHI POST, VIRAJPET TALUK-571 218.
3. SRI. M. M. CHENGAPPA,
S/O MONNAPPA, MEMBER,
SES KAKOOR POST,
VIRAJPET TALUK-571 218.
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RSA No. 1819 of 2023
4. SRI. S. P. GOPALA,
S/O. POOVAIAH,
MEMBER SES R/AT
NALKERY VILLAGE AND POST,
VIRAJPET TALUK-571 218.
5. SRI. K. N. UTHAPPA,
MEMBER SES SRIMANGALA
VILLAGE AND POST,
VIRAJPET TALUK,
S. KODAUGU-571 218.
...RESPONDENTS
THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 23.06.2023 PASSED IN
RA.NO.4/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE,
VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 20.03.2017 PASSED IN
O.S.NO.36/2010 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
PONNAMPET.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Accepting the cause shown in the affidavit along with
the application, the delay of 17 days is condoned.
I.A.No.1/2023 is allowed.
2. This appeal is against the judgment and decree
dated 20.03.2017 passed in O.S.No.36/2010 on the file of
the Civil Judge and JMFC, Ponnampet which is confirmed
by the judgment and order dated 23.06.2023 passed in
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R.A.No.4/2017 on the file of the Senior Civil Judge,
Virajpet.
3. The above suit is filed by the plaintiff seeking
for a direction to defendants to vacate and deliver a
vacant possession of the schedule property which is 14.70
acres of coffee lands situated in Sy.No.192/79 of
T.Shettigeri Village, Virajpet Taluk, Kodagu.
4. It is the case of the plaintiff that she is the
absolute owner in possession and enjoyment of the
schedule property which originally belonged to one
Shivacharara Nanjamma, who is the mother of the
plaintiff. Since 1962 she has been in exclusive possession
and enjoyment of the paisary land of 14.70 acres bearing
Sy.No.192/79 of T.Shettigeri Village. Due to her old age
she had given the schedule property to the plaintiff. Ever
since then the plaintiff has been in possession and
enjoyment of the property. The defendants are the
adjacent land owners. Without having right, title and
interest over the schedule property the defendants tried to
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trespass in to the property of the plaintiff constraining her
to file a suit in O.S.No.161/1992 for a relief of permanent
injunction which was granted in her favour. As against the
said judgment and decree, the defendants preferred a
regular appeal in R.A.No.7/2002 which was dismissed. It is
the further case of the plaintiff that in the meanwhile the
defendants had illegally trespassed in to the schedule
property and had encroached portion of same constraining
her to file the present suit.
5. Defendants on appearance filed the written
statement contending that the plaintiff is not the owner of
the schedule property. That the defendants are the officer
bearers of Srimangala Education Institute which is situated
adjacent to the property of the plaintiff. They have never
trespassed into the property claimed by the plaintiff. They
have also contended that the plaintiff has also not pleaded
the date and time of alleged encroachment in the plaint. It
is also contended that the defendant No.8 had filed the
suit in O.S.No.33/2002 against the plaintiff for relief of
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injunction restraining her from interfering with peaceful
possession of the land in Sy.Nos.192/64, 192/65 and
192/21 of T.Shettigeri Village which was decreed. It is
contended that the plaintiff on the other hand had
encroached upon the large area of the Government
paisary illegally and is now trying to encroach upon the
property of the defendants. Hence, sought for dismissal of
the suit.
6. The trial Court based on the pleadings framed
the following issues and recorded the evidence of the
parties:
1. Whether the plaintiff proves that she is the
absolute owner and in exclusive possession
of the suit schedule property as contended
in the plaint?
2. Whether the plaintiff proves that alleged
encroachment of suit property by the
alleged interference by the defendant?
3. Whether the plaintiff is entitled for relief as
sought in the plaint?
4. Whether the plaintiff proves that the suit
property valued and court fee paid is
correct?
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5. What order or decree?
7. On appreciation of pleadings and evidence, the
trial Court answered issue Nos.1 to 3 in negative and issue
No.4 in the affirmative. Consequently, dismissed the suit.
Aggrieved by the same, the plaintiff preferred regular
appeal in R.A.No.4/2017. Considering the grounds urged
in the appeal memorandum, the First Appellate Court
framed the following points for its consideration:
1. Whether the plaintiff has proved that she is
the absolute owner of the suit schedule
property as contended in the plaint?
2. Whether the plaintiff is entitled for
possession of the suit schedule property
from the defendants?
3. Whether the interference of this court is
called for in the impugned Judgment and
Decree?
4. What Order or decree?
8. On re-appreciation of the matter, dismissed the
appeal confirming the judgment and decree passed by the
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trial Court. Aggrieved by the same, the appellant is before
this Court.
9. Learned counsel for the appellant reiterating the
grounds urged in the memorandum of appeal, the trial
Court and First appellate Court grossly erred in dismissing
the suit of the plaintiff merely because she did not have
title of the property without adverting to the fact that the
plaintiff was granted relief of permanent injunction in
earlier suit and that by virtue of said decree she has been
enjoying her ownership and possession over the property.
It is his further contention that the only a portion of the
suit property has been encroached upon by the defendants
which she sought to recover from the defendants by
removing the encroachment. He submits that the suit
therefore, was maintainable and the plaintiff was entitled
for relief as sought for. He submits that this aspect of the
matter gives rise to substantial question of law to be
considered by the Court.
10. Heard. Perused the records.
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11. The trial Court and the First Appellate Court
have taken note of the fact that the plaintiff is seeking
possession of the property based on her purported title
and based on her prior possession. Though the plaintiff
has claimed that the property was in possession of her
mother and due to her old age she had given this property
to the plaintiff and plaintiff continued with the possession
and enjoyment of the suit property, the plaintiff has
neither stated nor produced any material to substantiate
her claim of transfer of right in respect of property in her
favour except producing the judgment and decree passed
in O.S.No.161/1992. The plaintiff has not produced any
other material evidence. The trial Court and First Appellate
Court have also taken note of the fact that the plaintiff had
made a representation before the Deputy Commissioner,
Kodagu District in the month of September 2007. In the
said representation the plaintiff has claimed despite there
being decree in her favour, the defendants have
encroached upon the property. The trial Court and First
Appellate Court have also taken into consideration that the
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plaintiff had examined Pw.1 who in her cross examination
has stated that defendant had put up construction of the
college over her property in the year 1992. Taking note of
these aspects of the matter, the trial Court and First
Appellate Court have come to a conclusion that even
according to the plaintiff defendants have allegedly
encroached upon the property of the plaintiff and had put
up construction even as in the year 1992. There is no
explanation from the plaintiff as to the delay in she taking
any action for violation or non-compliance of the decree
that she had obtained in O.S.No.161/1992. The present
suit has been filed in the year 2010. Thus the trial Court
and First Appellate Court have declined to accept the case
of the plaintiff that the defendants have encroached upon
the property of the plaintiff as claimed. That apart the trial
Court and First Appellate Court have also taken note of the
fact that plaintiff has not produced any document to show
her title or ownership over the schedule property. She has
also not produced any documents that her mother was in
possession of the property except relying upon the
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judgment and decree passed in O.S.No.161/1992 which
was confirmed in R.A.No.7/2002. Since the plaintiff had
claimed the possession of the property based on her
purported title and the same not having been proved the
trial Court and First Appellate Court declined to grant the
relief as sought for and consequently, dismissed the suit
and appeal.
12. In view of the aforesaid reasoning and
conclusion by the trial Court and First Appellate Court, no
substantial question of law is involved in the matter
warranting consideration. The appeal is accordingly
dismissed.
Sd/-
JUDGE
NS
CT:TSM
