Karnataka High Court
N S Jayantha Kumar vs N S Sukumar on 27 February, 2024
-1-
NC: 2024:KHC:8124
RSA No. 472 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.472 OF 2013 (INJ)
BETWEEN:
N.S. JAYANTHA KUMAR,
S/O N.S. RAMAKRISHNA RAO,
AGED ABOUT 67 YEARS,
R/O NEAR SUSHRUTHA HOSPITAL,
PUTTUR KASABA VILLAGE, PUTTUR TALUK,
D.K. DISTRICT.
...APPELLANT
(BY MR. RAVI PRAKASH V., ADVOCATE)
AND:
N.S. SUKUMAR,
S/O LATE JAGADHEESH RAO,
AGED ABOUT 41 YEARS,
R/AT 'SHARA HOUSE'
Digitally signed KODIPPADY VILLAGE, PUTTUR TALUK,
by R DEEPA D.K. DISTRICT - 574 204.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY MR. ASHISH RAM D., ADVOCATE FOR
MR. KRISHNAMOORTHY D., ADVOCATE FOR C/R)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED: 13.12.2012 PASSED IN
R.A.NO.3/2012 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE AND JMFC., PUTTUR, D.K, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE
DATED:18.1.2012 PASSED IN OS.NO.199/2007 ON THE FILE
OF THE PRL. CIVIL JUDGE & JMFC., PUTTUR, D.K.
-2-
NC: 2024:KHC:8124
RSA No. 472 of 2013
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 13.12.2012,
passed in R.A.No.3/2012 by the Additional Senior Civil
Judge and JMFC, Puttur, D.K., setting aside the judgment
and decree dated 18.01.2012 passed in O.S.No.199/2007
by the Principal Civil Judge and JMFC, Puttur, D.K.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellant is the plaintiff and respondent is the defendant.
3. The brief facts leading to filing of this appeal are
as under:
Plaintiff filed a suit for permanent injunction against
the defendant. It is the case of the plaintiff that the
plaintiff is the owner of 'A' Schedule property by virtue of
registered partition deed dated 18.09.1969, in the said
partition area of 4.62 acres in Sy.No.103/1A2 fell to the
NC: 2024:KHC:8124
share of plaintiff. However, the entire property
constituting, 4.38 acres of land was mutated in the name
of plaintiff. The plaintiff restricted the suit claim to an
extent of 4.38 acres. It is contended that the property of
the defendant is situated on the western side of the A
Schedule property. On 19.12.2007, the defendant broke
open the barbed wire on the Western boundary of the A
Schedule property and threatened that he will come with
more men to destroy the barbed wire fence and to take
the possession of the Western portion of A schedule
property. Thus, the plaintiff aggrieved by the action on
the part of the defendant interfering into the peaceful
possession and enjoyment of the plaintiff over the suit
schedule property, filed suit for permanent injunction.
4. Defendant filed written statement denying the
ownership of the defendant in respect of land bearing
Sy.No.103/1A1 on the Western side of A schedule property
and it is denied that the defendant is trying to destroy the
barbed wire fence and trespass and the defendant has
NC: 2024:KHC:8124
never trespassed or intended to trespass into the A
schedule property. It is contended that the defendant's
land is situated in Sy.No.103/1A1 and their existed 20 ft.
link wide road in the plaint A schedule property and
proceeds to the West and land bearing Sy.No.103/1A1 and
other lands. It is contended that 20 ft. link wide road is
absolutely necessary for the defendant to reach his house
and holdings. It is contended that the defendant is not
having alternative road to reach his holdings. On these
grounds sought for dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1) "Whether the plaintiff proves that he is in
peaceful and lawful possession of plaint A
schedule property?
2) Whether the alleged interference is true?
3) Whether the defendant proves that there
exists a 20 link wide roadway in the plaint A
schedule property and it proceeds to his land
and he is entitled to use that roadway?
4) Whether the plaintiff is entitled to suit relief?
5) What decree or order?"
NC: 2024:KHC:8124
6. The plaintiff, in order to substantiate his case,
examined himself as PW-1 and got marked 5 documents
as Ex.P-1 to Ex.P-5 and defendant examined himself as
DW-1 and got marked 3 documents as Ex.D-1 to Ex.D-3.
The Trial Court on the assessment of oral and
documentary evidence, answered issue Nos.1, 2 and 4 in
the Affirmative and issue No.3 in the negative and issue
No.5 as per the final order. It is ordered and decreed that
the defendant and his men, servants, agents of LR's are
hereby restrained by way of permanent injunction from
trespassing into or encroaching plaint A schedule property
in any manner.
7. The defendant, aggrieved by the judgment and
decree dated 18.01.2012 passed in O.S.No.199/2007 by
the Principal Civil Judge and JMFC, Puttur, D.K., filed
appeal in R.A.No.3/2012 on the file of Additional Senior
Civil Judge and JMFC, Puttur, D.K.
8. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
NC: 2024:KHC:8124
1) "Whether the plaintiff is in exclusive
possession and enjoyment of the suit
schedule property as on the date of the
suit?
2) Whether the plaintiff proves that the
defendant illegally attempted to encroach by
break open the western barbed wire fence
exiting as a boundary to the A schedule
property as alleged?
3) Whether the plaintiff is entitled for
permanent injunction against the defendant
as prayed for?
4) Whether the judgment and decree of the
trial court requires interference?"
9. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1 to 3
in the negative and point No.4 as per the final order and
consequently allowed the appeal, the judgment and decree
dated 18.01.2012 passed in O.S.No.199/2007 by the
Principal Civil Judge and JMFC, Puttur, D.K. was set aside
and suit of the plaintiff was dismissed with cost. The
plaintiff, aggrieved by the judgment and decree passed by
the First Appellate Court in R.A.No.3/2012, has filed this
second appeal.
NC: 2024:KHC:8124
10. Heard the learned counsel for the plaintiff as
well as learned counsel for the defendant.
11. Learned counsel for the plaintiff submits that
the plaintiff is the absolute owner of suit schedule property
by virtue of registered partition deed and also submits that
the defendant is trying to interfere with the peaceful
possession and submits that the defendant gave complaint
against the plaintiff as per Ex.D-2. The First Appellate
Court, has recorded a finding that there is a 20 link wide
road approached the holdings of the defendant. He
submits that the said findings are recorded by the First
Appellate Court without jurisdiction and submits that in a
suit for bare injunction, the First Appellate Court was
required to consider whether the plaintiff was in
possession of the suit schedule property as on the date of
instituting the suit and interference but, the First Appellate
Court has recorded the finding which was un-warranted.
Hence, on these grounds, he submits that the First
NC: 2024:KHC:8124
Appellate Court has committed an error in passing the
impugned judgment and prays to allow the appeal.
12. Per contra, learned counsel for the defendant
submitted that though there was partition between the
plaintiff and defendant as per Ex.P-3, it is submitted that
there is a reference of about 20 link wide road to the
holdings of the defendant. He submits that the plaintiff is
trying to close the said 20 link wide road hence, the
defendant has lodged a complaint against the plaintiff for
closing the said 20 link wide road and submitted that the
defendant has no other alternate way to approach his
holdings except the 20 link wide road. Hence, he submits
that the First Appellate Court has considered Ex.P-3 and
recorded the finding that the defendant has no other way
except 20 link wide road. Therefore, he submitted that
the First Appellate Court was justified in passing impugned
judgment and prays to dismiss the appeal.
13. This Court admitted the appeal on the basis of
following substantial question of law :
NC: 2024:KHC:8124
i. Whether the Lower Appellate Court has
committed an error in the manner of re-
appreciation of evidence to arrive at a
different conclusion against the one
found by the trial Court based on the
same set of evidence?
ii. Whether the Lower Appellate Court has
committed an error in relying on the
report of the Commissioner and on the
recitals in Ex.P-3 and thereafter arriving
at a conclusion with regard to the
existence of 20ft road?
14. Substantial questions of law Nos.1 and 2:
These questions are interlinked with each other and are
taken for common discussion in order to avoid repetition of
facts. The plaintiff, in order to prove his case, examined
himself as PW-1 and he has reiterated plaint averments in
the examination-in-chief and in order to establish his case,
the plaintiff has produced the documents marked as Ex.P1
which is the RTC extract in respect of land bearing
Sy.No.103/1A2 which reflects that the plaintiff is the
absolute owner of suit land, Ex.P-2 is the copy of the
sketch which discloses the location of the property
No.103/1A2 of the plaintiff as well as defendant, Ex.P-3 is
the certified copy of partition deed which discloses that
- 10 -
NC: 2024:KHC:8124
there was partition between the plaintiff and defendant.
In the said partition the suit schedule property has fallen
to the share of plaintiff and the plaintiff was put in
possession of the suit schedule property, Ex.P4 and Ex.P5
are the photographs which disclose that the plaintiff has
fenced the entire suit property with the barbed wire. In
the course of cross examination except suggesting that
the defendant had never interfered or trespassed into the
suit schedule property nothing more elicited and further it
was suggested to PW-1 there existed 20 ft. link wide road
to reach the holdings of defendant and the said fact has
been denied by the PW-1.
15. Further, in rebuttal, the defendant has
examined himself as DW-1 and reiterated the written
statement averments in the examination-in-chief and
further the defendant has produced the documents
marked as Ex.D-1-eye sketch, Ex.D-2 is the office copy of
the Police Complaint dated 02.01.2008, wherein the
defendant had lodged the complaint against the plaintiff,
- 11 -
NC: 2024:KHC:8124
Ex.D-3 is the endorsement issued for directing them to
settle the grievance in the instant suit.
16. Perused the records and considered the
submissions of learned counsel for the parties. It discloses
that the defendant has not denied the ownership of the
plaintiff over the suit schedule property the only grievance
of the parties is regarding the existence of 20 ft. link wide
road to approach the holdings of the defendant. Though
the defendant has taken the defence that the defendant
has no alternative way to approach his holding except the
20 ft. link wide road. In order to substantiate the said
fact, the defendant has not produced any records.
However, if the defendant is having any easementary
right, the defendant has to approach competent Court and
seek proper relief. But in instant case, the grievance of
the plaintiff is that the defendant is trying to interfere and
encroach upon the suit schedule property. In order to
substantiate case of the plaintiff, the defendant has
produced the copy of the complaint which discloses that
- 12 -
NC: 2024:KHC:8124
the defendant had lodged the complaint against the
plaintiff, that itself is sufficient to hold that the defendant
was trying to interfere with the peaceful possession and
enjoyment of the suit schedule property.
17. The Trial Court considering the material on
record was justified in holding that the plaintiff has proved
that the defendant is interfering with the peaceful
possession of plaintiff over A schedule property. The First
Appellate Court had committed an error in enlarging the
scope of appeal and recording a finding that there is clear
existence of 20 ft. link wide road in the suit property and
the same is used as "Mamulu road" by the plaintiff and
defendant by virtue of their family partition as a necessity.
Though the defendant has not made any counter claim in
the written statement, the First Appellate Court has
recorded the said finding contrary to the pleadings and
without examining the scope of suit for bare injunction. It
is well established principle of law that in a suit for bare
injunction, Court is required to consider the possession
- 13 -
NC: 2024:KHC:8124
and interference in that possession as on the date of suit.
On the contrary, the First Appellate Court without
considering the said aspect has recorded that there
existed 20 ft. link wide road in the suit property and the
said finding was unwarranted in a suit for bare injunction.
The First Appellate Court has committed an error in
passing the impugned judgment.
18. In view of the above discussion I answer
substantial question Nos.1 and 2 in the affirmative and
accordingly, proceed to pass the following order:
ORDER
i. The appeal is allowed.
ii. The impugned judgment dated
13.12.2012 passed in R.A.No.3/2012
by the Second Additional Senior Civil
Judge, JMFC, Puttur, D.K. is set aside.
iii. Judgment and decree passed by the
Trial Court is restored. However,
liberty is reserved in favour of
defendant to approach the appropriate
forum and seek appropriate relief.
- 14 -
NC: 2024:KHC:8124
iv. In view of disposal of appeal
I.A.No.1/2010 does not survive for
consideration.
Sd/-
JUDGE
SRA
CT:SNN
