Karnataka High Court
Ganesh vs Ramayya on 15 February, 2024
-1-
NC: 2024:KHC-D:3600
RSA No. 100524 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100524/2016(INJ)
BETWEEN:
GANESH S/O. SHESHAGIRI HEBBAR,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: MOODALKERI, POST: KONAR,
TQ: BHATKAL, DIST: UTTARA KANNADA,
PIN - 581 320.
...APPELLANT
(BY SMT. POOJA SOUDATTI, ADVOCATE FOR
SRI R.H.ANGADI, ADVOCATE)
AND:
1. RAMAYYA S/O. SOMAYYA GONDA,
AGE: 62 YEARS, OCC: AGRICULTURE.
2. KRISHNA S/O. SOMAYYA GONDA,
AGE: 60 YEARS, OCC: AGRICULTURE.
Digitally
signed by 3. SMT. MANGALA D/O. SOMAYYA GONDA,
VINAYAKA AGE: 58 YEARS, OCC: AGRICULTURE,
BV ALL R1 TO R3 R/O: MOODALKERI,
POST KONNUR, TQ:BHATKAL (U.K.) - 581 320
...RESPONDENTS
(BY SRI VISHWANATH K. BHAT, ADVOCATE FOR
SRI PRASHANT T. AREGULI, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41 RULE
1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED
26.02.2016 PASSED IN R.A.NO.24/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE, HONAVAR, ITINERARY COURT AT BHATKAL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 28.04.2015, PASSED IN O.S.NO.65/2014 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE, BHATKAL, DISMISSING THE
SUIT FILED FOR PERPETUAL INJUNCTION.
-2-
NC: 2024:KHC-D:3600
RSA No. 100524 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff in O.S No.65/2014 on the file of
Principal Civil Judge at Bhatkal has filed this Regular Second
Appeal challenging the judgment and decree dated 28.04.2015
passed therein as well as the judgment and decree passed by
the first appellate court (Senior Civil Judge at Honnavar
(itinerary Court at Bhatkal)) dated 26.02.2016 in R.A
No.24/2015 by which, the judgment and decree of the trial
court was confirmed.
2. The suit in O.S No.65/2014 was filed for perpetual
injunction restraining the defendants from interfering or
claiming any right or trespassing into or encroaching over any
portion of the 'B' Schedule property. The plaintiff claimed that
he was the full and absolute owner of the 'A' schedule property,
which he inherited from his father. He claimed that the 'B'
schedule property lay adjacent to the 'A' schedule property
where the family of the plaintiff held a Kumki privilege. The
plaintiff claimed that both the 'A' and 'B' schedule properties
formed a compact block and that the family of the plaintiff had
NC: 2024:KHC-D:3600
raised cashew nut trees in both the properties and were
enjoying usufructs for more than 50 to 60 years. The plaintiff
claimed that the defendants were also in occupation of a
portion of the same survey number on the eastern side of the
'B' schedule property. The plaintiff claimed that both 'A' and 'B'
schedule properties were enclosed by a barbed wire fence
supported on stone pillars. He further claimed that the
defendants illegally tried to encroach and trespass into 'B'
schedule property and remove a portion of the barbed wire
fence. Therefore the plaintiff sought for perpetual injunction
against the defendants.
3. The defendants contested the suit and claimed and
that they too were in possession of 2 acre 12 guntas being the
eastern portion of the 'B' schedule property and beyond that
they also possessed certain other properties which they had
fenced with a barbed wire. They contended that they were the
owners of land bearing survey Nos.56/2, 56/3, 56/4, 56/5, and
56/6 which abutted the 'B' schedule property and they too had
Kumki privilege in the 'B' schedule property claimed by the
plaintiff. They claimed that their family also put up a fence
NC: 2024:KHC-D:3600
enclosing 2 acres 12 guntas in the 'B' schedule property and
that it was in their possession from a long time.
4. Based on these contentions the suit was set down
for trial.
5. The plaintiff was examined as PW-1 and he marked
EXs-P1 to P6. The defendant No.2 was examined as DW-1 and
he marked EXs-D1 to D10.
6. Based on the oral and documentary evidence, the
trial court held that the 'B' schedule property was admittedly a
Government land and as per the case of the plaintiff, it was to
be used for better cultivation of the 'A' schedule property and
therefore the plaintiff could not claim any exclusive right of
ownership or possession and enjoyment of the 'B' schedule
property. The trial court therefore dismissed the suit in terms
of the judgment and decree dated 28.04.2015.
7. Being aggrieved by the said judgment and decree,
the plaintiff filed R.A No.24/2015, the first appellate court also
noticed that the plaintiff was claiming a Kumki privilege in
respect of the 'B' schedule property, while the defendants were
also claiming Kumki privilege in respect of the very same
survey number, which was the 'B' schedule property. Therefore
NC: 2024:KHC-D:3600
the first appellate court held that the plaintiff is not entitled to
the relief as sought for and consequently, dismissed the appeal.
8. Being aggrieved by the said judgments and decrees
of both the Courts the plaintiff has filed this Regular Second
Appeal.
9. Learned counsel for the plaintiff contended that the
suit was for perpetual injunction in respect of the 'B' schedule
property, where plaintiff and his family had raised cashew nut
trees and had enclosed it by a barbed wire fence. Therefore all
that the trial court and the first appellate court were required to
consider was whether the plaintiff was in possession and not
whether plaintiff had any title to the 'B' schedule property. She
contended that the plaintiff had established his possession of
the 'B' schedule property and therefore, the Courts below must
have granted perpetual injunction restraining the defendants
from interfering with his possession.
10. Per contra, learned counsel for the defendants
submitted that suit 'B' property is admittedly the property
which belongs to the Government where plaintiff claimed Kumki
privilege. He submits that the defendants were also having the
land bearing survey Nos.56/2, 56/3, 56/4, 56/5 and 56/6 which
NC: 2024:KHC-D:3600
abuts the land bearing survey No.100, which is the 'B' schedule
property. He therefore contends that the 'B' schedule property
was also the Kumki privilege of the defendants and therefore
there could be no injunction restraining the defendants from
entering or from collecting green manure from the 'B' schedule
property.
11. I have considered the submissions of the learned
counsel for the plaintiffs as well as the learned counsel for the
defendants.
12. A perusal of the relief sought for in the plaint
discloses that the plaintiff claimed Kumki/hadi privilege over
the 'B' schedule property. Though the plaintiff claimed that his
family had raised cashew nut trees over the 'A' and 'B' schedule
properties and that they were enjoying usufructs of the same,
all that he was entitled to use 'B' schedule property to gather
dry leaves/green manure for better cultivation of the 'A'
schedule property. It is not in dispute that the defendants also
owned the land adjacent to the 'B' schedule property on the
other end and therefore the 'B' schedule property constituted
the Kumki privilege of the defendants. In that view of the
matter, the plaintiff cannot claim exclusive possession of the 'B'
NC: 2024:KHC-D:3600
schedule property and therefore the trial court and the first
appellate court were right in dismissing the suit.
13. There is no error apparent on the face of the record
warranting interference in this Regular Second Appeal. Hence,
the appeal is dismissed.
14. In view of disposal of the appeal on merits,
pending IAs, if any, also stand disposed off.
SD/-
JUDGE
PMP
CT-ASC
