Karnataka High Court
Sangappa S/O Basavanneppa Mudennavar vs Sangamesh S/O Hanumantappa ... on 8 January, 2024
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NC: 2024:KHC-D:342
RSA No. 100513 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100513/2020(INJ)
BETWEEN:
1. SANGAPPA S/O. BASAVANNEPPA MUDENNAVAR,
AGE: 61 YEARS, OCC: AGRICLTURE.
2. SOMAPPA S/O. VEERUPAXAPPA KUNDGOL,
AGE: 54 YEARS, OCC: AGRICLTURE.
3. MAHADEVAPPA S/O. SANGAPPA MUDENNAVAR,
AGE: 51 YEARS, OCC: AGRICLTURE.
4. CHANAPPA S/O. CHANNABASAPPA KANTEPPANAVAR,
AGE: 64 YEARS, OCC: AGRICLTURE,
THE APPELLANTS ALL ARE
R/O: SANGEDEVARKOPPA VILLAGE,
TQ: KALAGHATAGI, DIST: DHARWAD-581204.
...APPELLANTS
(BY SRI NANDEESH H. PATIL, ADVOCATE)
Digitally
AND:
signed by
VINAYAKA SANGAMESH S/O. HANUMANTAPPA NIMBANNAVAR,
BV
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: SANGEDEVARKOPPA VILLAGE,
TQ: KALAGHATAGI, DIST: DHARWAD-581204.
...RESPONDENT
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 30.11.2019 PASSED IN
R.A.NO.20/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, KALAGHATAGI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD.15.04.2019, PASSED IN O.S. NO.37/2013 ON THE FILE OF THE
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
KALAGHATAGI, DECREEING THE SUIT FILED FOR PERMANENT
INJUNCTION.
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NC: 2024:KHC-D:342
RSA No. 100513 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed challenging the
concurrent finding of the fact by the Civil Judge & JMFC.,
Kalaghatagi (hereinafter referred to as the 'trial Court') in
O.S.No.37/2013 as well as by the Senior Civil Judge &
JMFC., Kalaghatagi (hereinafter referred to as the 'first
appellate Court') in R.A.No.20/2019 by which it was held
that the plaintiff was in possession of the suit schedule
property and therefore was entitled for perpetual
injunction restraining the defendants from interfering with
his possession.
2. The plaintiff claimed title to the suit property
through his father who purchased it in terms of the sale
deed dated 28.06.1975. He claimed that the defendants
who had no manner of right, title or interest in the suit
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property, vandalized the shed and foundation put up by
him in the suit property.
3. Defendant No.3 contested the suit by filing his
written statement and he claimed that the suit property
was a public road between the residential plot bearing
Nos.5 & 16 and 6 & 15 in Ward No.3 of Sangdevarkoppa.
4. The trial Court after considering the oral and
documentary evidence held that the plaintiff had proved
his title to the property and therefore was entitled to
perpetual injunction and that the defendants failed to
establish that the suit property was a public road. An
appeal preferred by the defendants in R.A.No.20/2019 was
also dismissed.
5. Being aggrieved by the said finding this regular
second appeal is filed.
6. The learned counsel for the appellants
contended that the trial Court did not consider the fact
that the father of the plaintiff was employed as Secretary
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at Madaki Honnalli Grama Panchayath and he abusing his
position had brought about an illegal sale deed and
assigned property No.7 to the property. He contended that
some like minded persons including the father of the
plaintiff had purchased land in the name of the President
of Madaki Honnalli Panchayath and got it converted for
non-agricultural residential use and formed 20 plots by
forming a road in the middle and at the eastern end on the
northern side a road abutting the main road running east
to west towards southern side. Separate sale deeds were
executed in favour of each of those who joined in the
project. He submitted that all of them had constructed
their houses by having a backyard on the northern side.
He claimed that the father of the plaintiff created a sale
deed as if he had purchased the road that ran between the
sites so formed. He contended that the mutation in
ME.868 obtained by the father of plaintiff on the basis of
such a sale deed was cancelled by the revenue inspector
on 20.09.1980 after conducting a spot inspection and after
being satisfied that what was purchased was not a site but
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a road. He contends that the father of plaintiff taking
advantage of his name being continued in the records of
the Panchayath, assigned property No.7 and created
documents in the name of plaintiff. He contends that the
photograph of the suit property marked as Ex.P-2 and 3
confirmed that the property was not a site but a road. He
submits that several owners of the plots have filed a suit
for declaration that the property claimed by plaintiff is not
a site but a road and that the said suit is pending
consideration.
7. I have considered the submissions of the
learned counsel for the appellants and perused the
judgments of both the Courts.
8. The sale deed in favour of the father of plaintiff
was executed on 28.06.1975. The boundaries mentioned
in the sale deed tallies with the boundaries mentioned in
the suit. Though the appellants claimed that what was
purchased by father of plaintiff was not a site but a road,
no documents were produced to establish it. Since the sale
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deed in favour of father of plaintiff was more than 30
years old, a presumption about the valid execution of the
document had to be drawn. Since the suit was for
perpetual injunction based on title, the Court was only
bound to look into the question regarding possession of
the suit property and nothing else. Since the appellants
did not deny the existence of the suit property but claimed
that it was a road, the Courts were right in holding that
the suit property existed and the title stood in the name of
the father of plaintiff. Therefore the appellants failed to
establish that the suit property was a road by producing
convincing material. In such a situation the Court had no
other alternative than to apply the best evidence rule and
decree the suit. This would certainly not come in the way
of the appellants to sue for a declaration that the suit
property was a road and therefore the sale deed in favour
of the father of plaintiff is illegal or unenforceable. Now
that other residents of the locality have filed such a suit it,
is open for the appellants to join in the suit and establish
their case.
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9. As no substantial question of law arises in this
appeal, it stands dismissed. However the judgement and
decree passed by the Trial Court, Appellant Court and this
Court in this appeal, shall always be subject to the
outcome of such suit filed by the other residents of the
locality.
10. I.A's, if any, do not survive for consideration.
SD/-
JUDGE
RH
CT-ASC
