Karnataka High Court
Sri Chikkachennappa vs Smt Venkatamma on 28 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:8362
RSA No. 1340 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1340 OF 2019 (INJ)
BETWEEN:
SRI CHIKKACHENNAPPA
S/O LATE NARASAPPA
AGED ABOUT 49 YEARS
RESIDING AT DIBBURU VILLAGE
KASABA HOBLI
CHICKBALLAPURA TALUK
CHICKBALLAPUR DISTRICT
PIN CODE - 562 101.
...APPELLANT
(BY SRI. D L SURESH, ADVOCATE)
AND:
SMT VENKATAMMA
W/O DODDADASAPPA
Digitally signed AGED ABOUT 56 YEARS
by SUMA B N RESIDING AT
Location: High GOLLUCHINNAPPANAHALLI VILLAGE
Court of
Karnataka KASABA HOBLI
CHICKBALLAPURA TALUK
CHICKBALLAPUR DISTRICT
PIN CODE - 562 101.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:09.04.2019
PASSED IN R.A.No.129/2017 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHICKBALLAPUR, DISMISSING THE APPEAL AND CONFIRMING
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RSA No. 1340 of 2019
THE JUDGMENT AND DECREE DATED 25.02.2016 PASSED IN
O.S.No.200/2014 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, CHICKBALLAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the unsuccessful plaintiff aggrieved by
the Judgment and decree dated 25.02.2016 passed in
O.S.No.200/2014 on the file of II Additional Civil Judge and
JMFC, Chikkaballapura which is confirmed by the Judgment and
order dated 09.04.2019 passed in R.A.No.129/2017 on the file
of II Additional Senior Civil Judge and JMFC, Chikkaballapura.
2. The above suit is filed by the appellant/plaintiff for the
relief of permanent injunction in respect of property bearing
house list No.68/1 measuring East to West 40 feet and North to
South 30 feet situated at Gollu Chinnappanahalli Village,
Kasaba Hobli, Chikkaballapur Taluk and District.
3. The case of the plaintiff is that said property falls
within Dibbur Grama Panchayat. That the Dibbur Grama
Panchayat after inspection had confirmed possession of the
plaintiff and plaintiff had obtained permission in that regard.
Considering the possession of the plaintiff, Dibbur Grama
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Panchayat had issued house list number to the property and
also issued licence on 06.01.2014 permitting him to put up
construction. That on 03.01.2014 plaintiff had given complaint
before the Chikkaballapura Rural Police Station complaining
interference in his possession by the defendant. That on
10.01.2014 defendant along with his henchmen had trespassed
into the schedule property and had caused obstruction in
plaintiff laying the foundation. That defendant had already filed
suit in O.S.No.33/2004 before the Civil Judge, Junior Division
and said suit was dismissed against which regular appeal in
R.A.No.191/2006 was filed and same is also dismissed.
Thereafter after dismissal of the said proceedings, defendant
has illegally trespassed into the property of the plaintiff. Hence,
suit for permanent injunction.
4. Defendant in her written statement while denying the
plaint averments contended that plaintiff is not resident of
Dibbur Grama. It is contended that defendant has been in
possession of the suit schedule property from time immemorial.
Considering her possession over the property Dibbur Grama
Panchayat had issued "Hakku Patra" in her favour which is
entered in the register of Panchayat. That with an ulterior
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intention by creating house list document in collusion with
grama Panchayat officials, plaintiff is making a claim that the
property belongs to him and application in this regard has
already been filed by defendant which is pending enquiry.
Hence, seeks for dismissal of the suit.
4. Based on the pleading, trial Court framed following
issues:
"1. Whether the plaintiff proves that he is in lawful
possession and enjoyment of the suit schedule
property as on the date of this suit?
2. Whether the plaintiff proves the alleged
interference by the defendant?
3. Whether the plaintiff is entitled fro permanent
injunction as sought for?
4. What order or Decree?".
and recorded evidence and on appreciation of evidence, trial
Court answered issues 1 to 3 in the negative and consequently
dismissed the suit with cost. Aggrieved by the same, plaintiff
preferred regular appeal in R.A.No.129/2017 on the file of II
Additional Senior Civil Judge and JMFC, Chikkaballapura. The
first appellate Court framed following points for its
consideration:
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"1. Whether the judgment and decree passed by
Trial Court dated:25.02.2016 are capricious,
arbitrary, erroneous?
2. Whether the judgment and decree passed by
the trial court calls for interference from this
court?
3. What order or Decree?".
5. On reappreciation of evidence, the first appellate Court
dismissed the appeal confirming the Judgment and decree
passed by the trial Court. Being aggrieved by the same,
appellant/plaintiff is before this Court.
6. Sri.D.L.Suresh, learned counsel for the appellant
reiterating the grounds urged in the memorandum of appeal
submitted that trial Court and first appellate Court erred in
dismissing the suit without appreciating the fact that plaintiff
had produced documentary evidence in the nature of production
of house list, tax paid receipt, licence for construction which
were sufficient enough to hold ownership and possession of the
plaintiff over the suit schedule property. He submits that
despite the plaintiff producing oral and documentary evidence
in support of his case, the same has been erroneously negated,
resulting in perversity in the impugned Judgments. Thus, he
NC: 2024:KHC:8362
submits substantial question of law arises for consideration by
this Court.
7. Heard and perused the records.
8. Plaintiff has failed to prove his possession over the suit
property. The trial Court and first appellate Court have taken
into consideration the deposition of the plaintiff. In the cross
examination plaintiff has admitted that he is not in possession
of the property and that defendant has encroached upon the
said property by installing stone slabs (PÀ®ÄèPÀÆZÀPÀUÀ¼À£ÀÄß) and that
defendant has been in possession of the property over eight
years. The said finding is noted by the trial Court while
answering issue No.3 at paragraph No.19 of its judgment.
Deposition of the plaintiff as extracted at paragraph 18 of first
appellate Court Judgment reads thus:
"zÁªÁ C£ÀĸÀÆa D¹ÛAiÀÄ ºË¸ï°¸ïÖ £ÀA.68-1. ºË¸ï°¸ïÖ £ÀA.68 £ÀªÄÀ ä
PÀÄlÄA§PÉÌ ¸ÉÃj®è, ºË¸ï °¸ïÖ £ÀA.68-1 AiÀiÁªÁUÀ ¨sÁUÀ ªÀiÁr 68-1 JAzÀÄ
¤ÃrgÀÄvÁÛgÉ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è ºË¸ï°¸ïÖ £ÀA.68 ªÀÄÆ®ªÁV AiÀiÁjUÉ
¸ÉÃjvÀÄÛ JA§ÄzÀÄ £À£ÀUÉ UÉÆwÛ®è. ¤¦1gÀ zÁR¯ÉAiÀÄ£ÀÄß £À£ÀUÉ ¤ÃqÀĪÀ
ªÀÄÄAavÀªÁV ¸ÀzÀj D¹ÛAiÀÄÄ AiÀiÁgÀ ºÉ¸ÀjUÉ ªÉÆzÀ®Ä EvÀÄÛ JA§ÄzÀ£ÄÀ ß £Á£ÀÄ
w½zÀÄPÉÆAr®è. ¤¦1 gÀ ºË¸ï°¸ïÖ£ÄÀ ß ¥ÀAZÁ¬ÄwAiÀĪÀgÀÄ ¤ÃrzÀ £ÀAvÀgÀ
£À£ÀUÉ ¸Áé¢üãÀªÀ£ÀÄß ©r¹PÉÆnÖgÄÀ ªÀÅ¢®è. ¸Áé¢üãÀ ©r¹PÉÆnÖ®è JA§
PÁgÀt¢AzÀ¯Éà F zÁªÉ ¸À°è¹gÀÄwÛÃgÁ JAzÀgÉ ¸ÁQëAiÀÄÄ ºËzÀÄ CªÀgÀ «gÀÄzÀÝ
zÀÆgÀ£ÀÆß ¸ÀºÀ ¤ÃrgÀÄvÉÛãÉAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. zÀÆgÀÄ ¤ÃrzÀ ªÉÄÃgÉUÉ
¥ÉÆðøÀgÀÄ ¸ÀܼÀPÉÌ §AzÀÄ ¸Áé¢üãÀªÀ£ÄÀ ß ¥ÀæwªÁ¢UÀ½AzÀ PÉÆr¹PÉÆqÀ®Ä
DUÀĪÀÅ¢®è. ¹«¯ï zÁªÉ ¸À°è¸ÄÀ ªÀAvÉ ºÉýzÀ PÁgÀt F ¥ÀæPÀgÀt
zÁR°¹gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. D jÃw zÁªÁ ¸ÀéwÛ£À°è ¥ÀæwªÁ¢UÀ¼ÀÄ
NC: 2024:KHC:8362
PÁA¥ËAqï ºÁQPÉÆAqÀÄ ¸ÀĪÀiÁgÀÄ 15-20 ªÀµÀð DVzÉ JAzÀgÉ ¸ÁQë 8
ªÀµÀðUÀ¼ÀÄ DVªÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
Thus, in view of the categorical admission by plaintiff
himself of he not being in possession of the property as on the
date of filing of the suit and documents produced by the plaintiff
at Exhibits P-1 to 9 not disclosing possession of the plaintiff, the
trial Court and first appellate Court declined to grant the relief
of permanent injunction as sought for. In the light of the
above, no substantial question of law would arise for
consideration in this appeal. Accordingly, appeal is dismissed.
Sd/-
JUDGE
SBN
