Karnataka High Court
Smt. Benny D'Souza vs Melwin D'Souza on 15 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:6530
RSA No. 196 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 196 OF 2022
BETWEEN:
1. SMT. BENNY D'SOUZA
W/O SRI ANTONY D'XOUZA
AGED ABOUT 65 YEARS
R/AT 3-34/17(1), FATHIMA
HILLS PACHANADY BONDEL
MANGALURU - 575 008.
2. SRI OSWALD D'SOUZA
S/O LATE SIMON D'SOUZA
AGED ABOUT 60 YEARS
R/AT 3-34 (150), FATHIMA HILLS
PACHANADY, BONDEL
MANGALURU - 575 008.
3. SMT. IRINE D'SOUZA
D/O LATE SIMON D'SOUZA
AGED ABOUT 52 YEARS
R/AT BISHOPS COMPOUND
VELANCIA KANKANADY
Digitally signed MANGALURU - 575 002.
by SUMA B N
Location: High 4. SRI STANISLAUS ALEX D'SOUZA
Court of S/O JOSEPHINE D'SOUZA
Karnataka
AGED ABOUT 64 YEARS
R/AT 3-34 (15) FATHIMA HILLA
PACHANADY BONDEL
MANGALURU - 575 008.
ALL ARE REPRESENTED BY
THEIR GPA HOLDER
SRI ANTONY D'SOUZA
S/O IRUDAYARAJ
AGED ABOUT 70 YEARS
FATHIMA HILLS, PACHANADY
BONDEL, MANGALURU - 575 008.
...APPELLANTS
-2-
NC: 2024:KHC:6530
RSA No. 196 of 2022
(BY SRI M.S. BHAGWAT, SR. COUNSEL FOR
SRI PRASHANTH U.T, ADV. AND
SMT. MALAVIKA B. SWAMY, ADV.)
AND:
1. MELWIN D'SOUZA
S/O LATE PAUL D'SOUZA
AGED ABOUT 52 YEARS
R/AT PILIKUMERI HOUSE
KADPU POST AND VILLAGE
MANGALURU - 575 028.
2. SRI IVAN D'SOUZA
S/O LATE PAUL D'SOUZA
AGED ABOUT 50 YEARS
R/AT PILIKUMERI HOUSE
KUDPU POST AND VILLAGE
MANGALURU - 575 028.
3. SMT BRIDGIT D'SOUZA
W/O LATE PAUL D'SOUZA
AGED ABOUT 82 YEARS
R/AT PILIKUMERI HOUSE
KUDPU POST AND VILLAGE
MANGALURU - 575 028.
...RESPONDENTS
(BY SRI ROHITH GOWDA, ADV.)
THIS RSA FILED UNDER SECTION 100 OF CPC PRAYING
AGAINST THE JUDGMENT AND DECREE DATED 21.01.2021 PASSED
IN RA.No.144/2017 ON THE FILE OF THE II ADDITIONAL SENIOR
ICVIL JUDGE, AND CJM MANGALURU.D.K, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.07.2017
PASSED IN OS No.205/2011 ON THE FILE OF THE ADDITIONAL CIVIL
JDUGE AND JMFC, MANGALORU.DK.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:6530
RSA No. 196 of 2022
JUDGMENT
1. This appeal is by the plaintiffs aggrieved by the judgment
and decree dated 15.07.2017 passed in O.S.No.205/2011 on
the file of the I Addl. Civil Judge & JMFC, Mangaluru, D.K.
(hereinafter referred as 'Trial Court'), which is confirmed by the
judgment and order dated 21.01.2021 passed in
R.A.No.144/2017 on the file of the II Additional Senior Civil
Judge & CJM, Mangaluru, D.K. (hereinafter referred as 'First
Appellate Court').
2. The above suit in O.S.No.205/2011 is filed by the
plaintiffs for the relief of prohibitory injunction and mandatory
injunction contending inter alia that the suit schedule properties
were originally granted in the name of their father one Sri
Simon D'Souza under the provisions of the Karnataka Land
Tribunal Reforms Act, 1961, by the Land Tribunal, Mangaluru,
in LRT.No.8/1978-79 vide order dated 28.10.1978. Upon the
demise of the said Simon D'Souza, plaintiffs being his children
succeeded to the said suit schedule properties. The plaintiffs
have been in possession and enjoyment of the suit schedule
properties eversince then. It is the case to the plaintiffs that in
the suit schedule properties there existed a cow shed and a
NC: 2024:KHC:6530
toilet belonging to the plaintiffs which was in existence for more
than 60 years. That on 23.02.2011, defendants who ere the
owners of the properties adjoining to the property of the
plaintiff, taking advantage of the absence of the plaintiffs in the
plaint schedule property, brought workers and machineries and
illegally demolished the cow shed and the toilet and also closed
the rain water channel by dumping mud on the same. On
learning about the said illegal acts of the defendants, plaintiffs
rushed to the spot and resisted the illegal acts of the
defendants. Plaintiffs also lodged a police complaint against the
defendants, based on which, the police visited the spot and also
summoned the defendants to the police station and directed
the plaintiffs to approach the Civil Court for appropriate reliefs
which constrained the plaintiffs to approach the Court by filing
the above suit.
3. In response to the summons issued, defendant no.2
appeared and filed written statement and denied the plaint
averments and also denied that they had demolished the cow
shed and the toilet as claimed by the plaintiffs. They also
denied the plaintiff lodging a police complaint and the police
visiting the spot and summoning the defendants. It is also
NC: 2024:KHC:6530
contended that the plaintiffs are in the habit of filing false suits
and complaints against the defendants and all such suits which
were filed by the plaintiffs and their father against the
defendants have been dismissed by the Courts. It is contended
that the plaintiffs have not mentioned the boundaries in the
plaint schedule property and the suit is one in the light of
harassing the defendants. Hence, sought for dismissal of the
suit by imposing cost.
4. Based on the pleadings, the Trial Court framed the
following issues:-
"1. Whether the plaintiffs prove that, they are in
lawful possession and enjoyment of suit
properties as averred in the plaint?
2. Whether the plaintiffs prove that, on 23.02.2011
the defendants illegally and high handedly
demolished the cattle shed and toilet situated in
the plaint scheduled property as alleged in the
plaint?
3. Whether the plaintiffs are entitled for the relief of
permanent injunction as sought for?
4. Whether the plaintiffs are entitled for the relief of
mandatory injunction as sought for?
5. Whether the defendants are entitled for
compensatory costs as prayed for?
NC: 2024:KHC:6530
6. What order or decree?"
5. One Antony D'Souza - General Power of Attorney holder
of the plaintiffs has been examined as PW-1. One Melwyn
D'Souza - defendant No.1 has been examined as DW-1.
Plaintiffs exhibited 54 documents marked as Exs.P-1 to P-54.
Defendants exhibited 24 documents marked as Exs.D-1 to D-
24. On appreciation of the pleadings and evidence led by the
parties, the Trial Court found that though the plaintiffs are in
possession of the suit schedule property, failed to prove the
allegation of interference and demolition of the sheds by the
defendants and consequently dismissed the suit by the
impugned judgment and decree dated 15.07.2017. Aggrieved
by the same, plaintiffs preferred R.A.No.144/2017 on the file of
the First Appellate Court. Considering the grounds urged, the
First Appellate Court framed the following points for its
consideration.
"1. Whether the plaintiffs prove that they are
in lawful possession and enjoyment of suit
properties and the defendants illegally and high-
handedly demolished the cattle shed and toilet
situated in the plaint schedule property as alleged
in the plaint?
NC: 2024:KHC:6530
2. whether the defendants are entitled for
compensatory costs as prayed for?
3. Whether the impugned judgment of the
trial court is against law, fact, evidence and
probabilities of the case and liable to be intervened
by this court?
4. What order or decree?"
6. On re-appreciation of the evidence, the First Appellate
Court not only confirmed the judgment and decree passed by
the Trial Court, but also found that the suit filed by the
plaintiffs is one in the series of several suits/complaint filed
filed against the defendants, and accordingly dismissed the
appeal by imposing the cost of Rs.10,000/-. Being aggrieved by
the same, the plaintiffs are before this Court.
7. It is relevant at this juncture to note that this Court on an
earlier occasion by order dated 26.09.2023 had dismissed the
appeal as there were no grounds for interference. Being
aggrieved by the same, appellants herein approached the Apex
Court contending that time was sought by the junior counsel of
the Counsel for the appellants and this Court while declining to
grant any adjournment, had dismissed the appeal. Taking note
NC: 2024:KHC:6530
of the said submission, the Apex Court remanded the matter
for hearing afresh. Accordingly, the matter is taken up for
consideration.
8. Heard Sri M.S.Bhagwat, learned Senior Counsel appearing
for the Counsel for the appellants and Sri Rohith Gowda,
learned Counsel for the respondents.
9. Learned Senior Counsel Sri Bhagawat appearing for the
appellants reiterating the grounds urged in the Memorandum of
Appeal and submitted that the Trial Court and the First
Appellate Court grossly erred in dismissing the suit of the
plaintiffs despite coming to the conclusion that the plaintiffs are
the owners in possession of the schedule property. It is further
submitted that when the plaintiffs have filed the complaint at
Ex.P-32 which is a public document, the Trial Court and the
First Appellate Court were not justified in doubting the veracity
of the said complaint. He submits that the defendants have
admitted about the demolition of the shed in the evidence,
though they had completely denied the averment of the
plaintiffs contained in the complaint. Non-appreciation of these
aspects of the matter gives rise to substantial question of law
to be considered by this Court.
NC: 2024:KHC:6530
10. On the other hand, learned Counsel appearing for the
respondents justifying the judgment and decree and order of
the Trial Court and the First Appellate Court submitted that the
plaintiffs have not led any acceptable evidence to substantiate
their allegation of defendants trespassing and demolishing the
shed. He points out that the deposition of the plaintiffs witness
which is admitted to the existence of two sheds on the schedule
property. He also submits that the First Appellate Court has
taken note of series of complaints and the cases filed by the
plaintiffs and their father against the defendants. He insists that
imposition of cost by the First Appellate Court while dismissing
the appeal is justified and no substantial question of law would
arise for consideration. Hence, seeks for dismissal of the
appeal.
11. Heard. Perused the records.
12. While answering Issue no.1, the Trial Court has held that
the plaintiffs have proved to be the owners in possession of the
schedule property. However, while answering Issue no.2, the
Trial Court has found that the plaintiffs have not adduced any
evidence to substantiate the allegation of defendants
- 10 -
NC: 2024:KHC:6530
trespassing into their property and demolishing the sheds that
existed. The Trial Court has also taken note of the fact that the
plaintiffs never entered the witness box, instead have examined
their general power of attorney holder. Though it was pleaded
that one George Pinto had informed the plaintiffs about the
illegal act of demolition being carried by the defendants, the
said witness has not been examined by the plaintiffs. Thus,
when the plaintiffs have categorically pleaded that they were
not present at the spot when the alleged demolition was carried
out by the defendants, and that they were informed by the said
George Pinto, the plaintiffs have neither entered the witness
box nor they have examined the said George Pinto. The power
of attorney holder of the plaintiffs is not a compintant witness
to the said aspect of allegation. Taking note of this aspect of
the matter, the Trial Court has declined to consider the case of
the plaintiffs regarding trespass and demolition by the
defendants. The Trial Court has also taken note of the fact that
PW-1 when in the cross-examination was confronted with
Exs.D-23 & D-24 photographs, has admitted to the existence of
two sheds on the schedule property. If the sheds which were
existing on the schedule property were demolished, question of
- 11 -
NC: 2024:KHC:6530
they existing again on the schedule property as shown in
Exs.D-23 & D-24 would not arise.
13. As regards the police complaint produced at Ex.P-32, the
Trial Court has taken note of the fact that the said complaint
was filed on 23.02.2010 at about 10.40 p.m., while it is the
case of the plaintiffs that immediately on learning about the
incident, they lodged the complaint. Since the plaintiffs have
not mentioned about the timing of filing the complaint and had
merely stated that immediately on learning about the incident
they had filed the complaint, the Trial Court found it unreliable.
No oral and documentary evidence has been produced by the
plaintiffs with regard to the police summoning the defendants.
Taking into consideration the aforesaid evidence and the
admission made by PW-1 during the course of cross-
examination regarding existence of two sheds on the schedule
property, the Trial Court has negated the case and allegations
of the plaintiff and consequently has dismissed the suit.
14. The First Appellate Court, in addition to re-appreciating
the evidence and concurring with the reasoning and conclusion
arrived at by the Trial Court, also has appreciated the
contention of the defendants, in that the defendants have
- 12 -
NC: 2024:KHC:6530
alleged that the plaintiffs have been harassing by filing cases
against them and also giving unnecessary trouble to defendant
no.3 who is a 76 years aged lady. Hence, they have sought for
compensation by way of payment of cost.
15. Defendants in order to prove the said stance, had
produced certified copy of the plaint in O.S.Nos.144/2006 and
78/2006. Plaintiffs had produced certified copy of the judgment
in R.A.No.68/2009 as per Ex.P-38, certified copy of the decree
in R.A.No.68/2009 as per Ex.P-39, certified copy of the order
passed in Crl.R.P.No.129/2009 as per Ex.P-40, certified copy of
the complaint in P.C.No.29/2009 as per Ex.P-41, certified copy
of the judgment in C.C.No.126/2007 as per Ex.P-43. Taking
note of these documents, the First Appellate Court found that
since 2004, plaintiffs and their general power of attorney holder
have been going on filing various complaints and litigations.
Accepting the same, the First Appellate Court proceeded to
impose cost on the plaintiff for having subjected the defendants
for unnecessary harassment by filing the instant suit.
16. Adverting to the above, learned Senior Counsel pointed
out that the said proceedings in R.A.No.68/2009 is still pending
consideration and as regards Crl.R.P.No.129/2007 is concerned,
- 13 -
NC: 2024:KHC:6530
cognizance has been taken. Be that as it is, as regards the
issue on hand is concerned, the plaintiffs have not been able to
establish the allegation of defendants trespassing into the said
land and interfering in their possession and demolishing the
sheds. On the contrary, it is established that the sheds which
were alleged to have been demolished by the defendants are
existing on the schedule property even as admitted by the
plaintiffs' witnesses. In that view of the matter, this Court do
not see any grounds to interfere with the judgment and decree
passed by the Trial Court and confirmed by the First Appellate
Court.
17. No substantial question of law arises for consideration in
this appeal. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
KK
