Karnataka High Court
Siddayya vs Bhoruka Power Corporation on 29 February, 2024
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NC: 2024:KHC-K:1843
RSA No. 200338 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.200338 OF 2023 (INJ)
BETWEEN:
SRI. SIDDAYYA
S/O SHARAYANAYYA BANDEGOL
AGE: 64 YEARS, OCCU: AGRICULTURE
R/O. GOGI K, TQ: SHAHAPURA,
DIST: YADAGIR-585309.
...APPELLANT
(BY SRI. B. BHIMASHANKAR, ADVOCATE)
AND:
BHORUKA POWER CORPORATION
BY ITS MANAGER NEAR BHEEMARAYANAGUDI
TQ: SHAHAPURA,
Digitally signed DIST: YADAGIR-585223.
by RAMESH
MATHAPATI
Location: High ...RESPONDENT
Court of
Karnataka
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE PASSED
BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC SHAHAPUR
IN R.A. NO.12/2020 DATED: 13.04.2023 WHILE CONFIRMING
THE JUDGMENT AND DECREE PASSED IN O.S. NO.47/2015,
DATED:31.01.2020 BY THE LEARNED PRINCIPLE CIVIL JUDGE
SHAHAPUR AND DISMISS THE SUIT AS PRAYED FOR TO MEET
THE ENDS OF JUSTICE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 200338 of 2023
JUDGMENT
Heard the learned counsel for appellant on
admission.
2. The present appeal is filed by the defendant
being aggrieved by the judgment and decree dated
13.04.2023 on the file of the Senior Civil Judge Shahapur,
(hereinafter referred to as "First Appellate Court") by
which the First Appellate Court dismissed the appeal filed
by the defendant and confirmed the judgment and decree
dated 31.01.2020 passed in O.S.No.47/2015 on the file of
the Principal Civil Judge, Shahapur (hereinafter referred to
as 'trial Court').
3. Parties herein are referred to as per their rank
and status before the trial Court.
4. The essential facts of the case leading up to this
appeal are as follows:
The plaintiff/respondent-company is the owner in
possession of the suit land which is purchased from the
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defendant through the registered sale deed dated
07.10.1999. His name was mutated in the concerned
records. The defendant without having any right, interest
and title over the same, is trying to interfere with the
peaceful possession and enjoyment of the suit property.
Hence, he sought for decree the suit.
5. The defendant has filed the written statement
admitting the sale made by him however specifically
contended that the plaintiff is not in possession of the suit
land as on the date of the as he has not delivered the
possession of the suit land in favour of the plaintiff.
Further, it is contended that the plaintiff agreed to resale
the suit land on market price, if the suit land has not been
used for the intending purpose. Since the suit land has not
been used for intended purpose, he is bound to resale the
same for market price and defendant has also filed an
application for resale of the suit land in his favour and till
today the defendant is in possession of the suit land by
growing crops. It is further contended that the possession
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has been admitted by the plaintiff company during the
evidence in O.S.No.285/2013 which is filed by the
defendant and one Channappa for damages, which is
caused by the negligence of the plaintiff due to leakage of
water from KBJNL canal for loss of defendant's crops. It is
further contended that the defendant and other farmers
gave an application to the plaintiff to resale of the suit
lands on 23.10.2009, the plaintiff with an intention to take
revenge, has filed this suit against the defendant. On
these grounds sought for dismissal of the suit.
6. Based on the pleadings, the trial court framed
the appropriate issues and on appreciation of evidence on
record by both the parties, the trial Court decreed the suit
in favour of the plaintiff. Being aggrieved by the same,
the plaintiff preferred the regular appeal in
R.A.No.12/2020 before the First Appellate Court, which
came to be dismissed. Being aggrieved by the judgment
and decree by both the Courts, the appellant has preferred
this appeal.
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7. Learned counsel appearing for the appellant
submits that the defendant has executed the sale deed in
favour of the plaintiff without delivering the possession to
the plaintiff. It is contended that earlier to the filing of the
suit by this plaintiff, the defendant had filed a suit in
O.S.No.285/2013 on the file of the Addl. Civil Judge,
Shahapur for damages caused by the plaintiff in the suit,
wherein the present plaintiff adduced evidence and
admitted the possession of the plaintiff. The trial Court
ignored this admission and decreed the suit in favour of
the plaintiff which is contrary to law. Further it is
submitted that as on the date of the filing of the suit, the
plaintiff was in possession of the suit property. Hence, he
is not entitled for permanent injunction in respect of the
suit schedule property as sought for. On these grounds, he
seeks to allow the appeal.
8. It is not in dispute that prior to execution of the
sale deed dated 07.10.1999 the defendant was the owner
of the suit schedule property. It is not in dispute that the
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defendant had sold the suit schedule property through
registered sale deed in favour of the plaintiff and the same
is marked as Ex.P1. It is also not in dispute that the
revenue entries are mutated in the name of plaintiff. The
only defence set up by the defendant is that he has
executed the sale deed dated 07.10.1999 in favour of the
plaintiff but he has not delivered the possession to the
plaintiff. In this regard, he relied on the admission of the
deposition of PW.1 in O.S.No.285/2013 on the file of the
Additional Civil Judge, Shahapur. That the contents of the
sale deed at Ex.P1 has not been disputed by the
defendant. When the defendant has not disputed the
contents of the registered sale deed, he has estopped from
saying that he has not delivered the possession of the suit
schedule property. The contents of the sale deed reveals
that the defendant has delivered the possession of the suit
schedule property. Hence, the defendant is precluded from
saying that he has not delivered the possession of the suit
schedule property in view of Section 91 and 92 of the
Indian Evidence Act, 1872. Apart from this, both the
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Courts have elaborately discussed with regard to the oral
and documentary evidence placed by both the parties and
came to the conclusion that plaintiff was in possession of
the suit schedule property as on the date of the filing of
the suit. No substantial question of law arises for
consideration before this Court, the appeal deserves to be
dismissed. Hence, I proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MSR
