Karnataka High Court
Sheenappa Gowda vs Radhakrishna N on 1 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:24389
RSA No. 1035 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1035 OF 2018 (DEC/INJ)
BETWEEN:
1. SHEENAPPA GOWDA
S/O ANNAPPA GOWDA,
AGED ABOUT 50 YEARS,
R/AT NADUMANE HOUSE,
YEDAMANGALA VILLAGE & POST,
SULLIA TALUK,
D.K.DISTRICT-574230.
...APPELLANT
(BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE)
AND:
1. RADHAKRISHNA N.,
S/O DUGGAPPA @ JANARDHANA
Digitally signed
by DEVIKA M AGED ABOUT 41 YEARS,
Location: HIGH R/AT NADUMANE HOUSE,
COURT OF YEDAMANGALA VILLAGE & POST,
KARNATAKA SULLIA TALUK,
D.K.DISTRICT-574230.
...RESPONDENT
(RESPONDENT SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.01.2018
PASSED IN R.A.NO.9/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, SULLIA, D.K. DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 24.11.2007
PASSED IN O.S.NO.5/2004 ON THE FILE OF THE CIVIL
JUDGE(JR.DN) AND JMFC, SULLIA, D.K.
-2-
NC: 2024:KHC:24389
RSA No. 1035 of 2018
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that he is in possession of plant 'B' schedule
property and he has perfected his title to the plaint 'B' schedule
property by way of adverse possession and it is also an
allegation that the defendant is trying to interfere with the
possession over the plaint 'B' schedule property and suit is filed
for the relief of declaration of adverse possession of title and
permanent injunction and the same was dismissed by the Trial
Court having considered both oral and documentary evidence
placed on record and comes to the conclusion that, in order to
prove the possession, particularly adverse possession, animus
has to be proved and the same has not been proved. Hence,
the suit was dismissed.
3. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.9/2008, wherein the
prayer to declare that plaintiff is in adverse possession is
NC: 2024:KHC:24389
waived off and only restricted the prayer for the relief of
permanent injunction and First Appellate Court also formulated
the point in the appeal whether the plaintiff has established
that he is in lawful possession of the plaint 'B' schedule
property and whether the defendant is trying to interfere with
his possession. The First Appellate Court also on re-
appreciation of both oral and documentary evidence placed on
record, comes to the conclusion that possession has not been
established and the contention of interference is also not
established. Hence, dismissed the appeal confirming the
judgment of the Trial Court. Being aggrieved by the concurrent
finding of the Trial Court and the First Appellate Court, the
present second appeal is filed before this Court.
4. Learned counsel appearing for the appellant would
vehemently contend that it is the pleaded case of the plaintiff
that item No.2 of the plaint 'A' schedule property and plaint 'B'
schedule properties are adjacent to each other and are in same
level is admitted by defendants. It was also admitted by D.W.1
that when there was no survey at the time of partition deed
dated 14.11.1961 and that the land in dispute was not
identified till date. Learned counsel would submit that even
NC: 2024:KHC:24389
though registered document came into existence, there is no
delivery of possession in terms of the said document and both
the Courts failed to take note of said fact into consideration.
The very approach of both the Trial Court and the First
Appellate Court is erroneous and on the other hand, the recital
of Ex.D1 speaks that if there are any dispute in respect of the
lands sold, the seller will be liable to satisfy damage caused by
virtue of such dispute. D.W.2 also during cross-examination has
stated that possession of the properties sold under Ex.D1 were
delivered to defendant on the next day of the sale deed. To
prove such fact, no document is placed before the Courts
below. The Trial Court and the First Appellate Court have
committed an error and not considered both oral and
documentary evidence placed on record and this Court has to
frame substantial question of law that the judgment and decree
of the Trial Court and the First Appellate Court are vitiated for
non-appreciation of admission of D.Ws.1 and D.W.2. Hence,
this Court has to frame substantial question of law.
5. Having heard the learned counsel for the appellant
and also on perusal of the material on record, at the first
instance, the suit is filed for the relief of declaration of adverse
NC: 2024:KHC:24389
possession and consequential relief of injunction. The Trial
Court having considered the material on record, comes to the
conclusion that the very contention of the plaintiff that he has
perfected his title by way of adverse possession has not been
proved and the First Appellate Court also when the prayer was
restricted only for permanent injunction, comes to the
conclusion that lawful possession has not been established. It
is important to note that, in order to prove the factum of
possession as on the date of suit, no documents are placed by
the appellant before the Trial Court and only relied upon the
evidence of D.Ws.1 and 2 and particularly the document at
Ex.D1 i.e., the sale deed executed in favour of the defendant
by one Thimappa Gowda, son of Babugowda and when the suit
is filed for the relief of declaration and injunction and the relief
is also with regard to adverse possession, while granting the
relief of adverse possession, animus has to be proved and the
same has not been established. When the relief is restricted in
the appeal only for permanent injunction, the plaintiff has to
prove the factum of possession as on the date of filing of the
suit and in order to substantiate the said contention, no
material is placed before the Court i.e., either oral or
NC: 2024:KHC:24389
documentary evidence. When such being the case, while
granting the relief of permanent injunction, if lawful possession
and also interference is not established, the question of
granting any permanent injunction does not arise. Hence,
having considered the reasoning of the Trial Court and the First
Appellate Court and when the plaintiff has not proved the
factum of possession in respect of plaint 'B' schedule property
as contended in the plaint, the question of exercising the power
under Section 100 of C.P.C. does not arise. Hence, I do not
find any ground to invoke Section 100 of C.P.C. to admit the
appeal and frame any substantial question of law.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
