Karnataka High Court
Balakrishna Ningappa Kusane vs Vaman Govind Yalaji on 1 July, 2024
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NC: 2024:KHC-D:9036
RSA No. 100206 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100206 OF 2016 (INJ-)
BETWEEN:
1. SHRI BALAKRISHNA NINGAPPA KUSANE
(SINCE DECEASED BY HIS LEGAL
REPRESENTATIVES)
1(A) SHRI. MADHAV
S/O BALAKRISHNA KUSANE,
AGE: 66 YEARS, OCC: SERVICE,
R/O: H.NO. 1247, BASAVAN GALLI
SHAHAPUR, BELAGAVI-590016.
1(B) SMT. LATA PRATAP DHUNDUM,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
R/O:H.NO. 1366, BASAVAN GALLI,
Digitally signed SHAHAPUR, BELAGAVI-590016.
by SAROJA
HANGARAKI
Location: HIGH 1(C) SHRI ANIL
COURT OF S/O BALAKRISHNA KUSANE,
KARNATAKA AGE: 60 YEARS, OCC: SERVICE,
DHARWAD
BENCH R/O:H.NO. 1247, BASAVAN GALLI,
DHARWAD SHAHAPUR, BELAGAVI-590016.
1(D) SHRI SUDHIR
S/O BALAKRISHNA KUSANE,
AGE: 56 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
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RSA No. 100206 of 2016
1(E) SHRI. SUNIL
S/O BALAKRISHNA KUSANE,
AGE: 54 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
2. SHRI SHANKAR NINGAPPA KUSANE,
AGE: 75 YEARS, OCC: SERVICE,
R/O:H.NO. 1247, BASAVAN GALLI,
SHAHAPUR, BELAGAVI-590016.
...APPELLANTS
(BY SRI SHAFIAHAMAD B. SHAIK &
SRI SANTOSH B. RAWOOT, ADVOCATES)
AND:
SHRI VAMAN GOVIND YALAJI,
AGE: 64 YEARS, OCC: BUSINESS,
R/O:H.NO.572, MATH GALLI,
BELAGAVI-590016.
...RESPONDENT
(BY SRI CHETAN MUNNOLI, ADVOCATE FOR
SRI R.M.KULKARNI & SRI PRATIK SHIPURKAR)
THIS RSA IS FILED U/SEC.100 R/W ORDER XLII RULE 1 OF
CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
13.03.2015 PASSED IN R.A.NO.128/2008 BY THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM, BELAGAVI, CONFIRMING THE JUDGMENT
AND DECREE PASSED IN O.S.NO.544/2006 BY THE I ADDITIONAL
CIVIL JUDGE (JR.DN.) & JMFC, BELAGAVI, DATED 26.05.2008, BY
DISMISSING THE SUIT OF THE RESPONDENT IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100206 of 2016
JUDGMENT
The above second appeal is filed under Section 100
of the Code of Civil Procedure1, by the legal heirs of the
original defendant No.1 and defendant 2 challenging the
judgment and decree dated 13.03.2015 passed in
R.A.No.128/2008 by the Principal Senior Civil Judge and
CJM, Belagavi2 and the judgment and decree dated
26.05.2008 passed in O.S.No.544/2006 by the I Additional
Civil Judge and JMFC, Belagavi3, whereunder the suit for
permanent injunction has been decreed by the Trial Court
which has been affirmed by the First Appellate Court.
2. The parties will be referred to as per their
ranking before the trial Court for the sake of convenience.
3. It is the case of the plaintiff that he is the
absolute owner of the property namely 1 acre of
agricultural land in R.S.No.659, Hissa No.4 of Macche
Hereinafter referred to as 'CPC'
Hereinafter referred to as 'First Appellate Court'
Hereinafter referred to as 'Trial Court'
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village, Belagavi4 having purchased the same vide
registered Sale Deed dated 21.04.1980 and that he is in
actual possession and enjoyment of the suit property by
cultivating various crops like paddy, etc. That the
defendants being the owner of neighboring agricultural
lands in R.S.No.659 itself, are interfering with the peaceful
possession and enjoyment of the suit property by the
plaintiff. Hence, the plaintiff filed a suit for injunction.
4. The defendants entered appearance and
contested the case of the plaintiff by filing written
statement. The defendants however admitted the Sale
Deed under which the plaintiff purchased the property.
However it is contended that the plaintiff is the subsequent
purchaser of the suit property and has never cultivated the
same and not grown any crops and hence is not in
possession of the suit property for about 12 years prior to
filing of the suit. The defendants contend that they have
purchased 26 acres and 12 gutnas in R.S.No.659 out of
Hereinafter referred to as 'suit property'
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the total extent of 29 cares of 12 guntas along with two
brothers namely Yallappa and Irappa under two registered
Sale Deeds in the year 1968. That although they have
purchased 26 acres 12 guntas, the vendor handed over
possession of the entire extent of R.S.No.659 totally
measuring 29 acres 12 guntas to the defendants and their
two brothers. That the defendants sold a portion of the
property owned by them vide two Sale Deeds dated
17.09.1968 and 04.10.1968 to an extent of 21 acres 12
guntas and 5 acres respectively. Hence, the plaintiff has
no right over the suit property.
5. Consequent to the pleadings of the parties, the
Trial Court framed five issues. The Trial Court upon an
appreciation of the oral and documentary evidence on
record, has noticed that the defendants have admitted
that the plaintiff purchased the suit property vide
registered Sale Deed dated 21.03.1980. Further, it was
noticed that the name of the plaintiff is mutated in the
revenue records vide M.E.No.3476 dated 22.04.1980. It
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has been held that the plaintiff is in actual possession of
the suit property and is cultivating various crops in the
same and that he has sold sugarcane to the sugar factory
by paying revenue to the Government.
6. The Trial Court, noticing the contention of the
defendants, has recorded a finding that the defendants
having greed of more extent of land, they tried to put
forth their claim over the suit property on the basis of the
registered document dated 21.02.1969 (Ex.D.4). That the
Trial Court has recorded a finding that the assertion of the
defendants that they are in possession of the suit property
has not been proved by producing adequate oral and
documentary evidence. Hence, the Trial Court having
recorded a categorical finding that the defendants were
attempting to interfere with the possession, has decreed
the suit.
7. Being aggrieved, the defendants preferred
R.A.No.128/2008. The plaintiff entered appearance before
the First Appellate Court and contested the same.
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8. The First Appellate Court upon a detail
reappreciation of the oral and documentary evidence on
record, has held that the case of the plaintiff that he is in
possession of the suit property is a more probable one
than the case of the defendants. Hence, the First Appellate
Court has affirmed the findings recorded by the Trial Court
and dismissed the appeal filed by the defendants.
9. Learned counsel for the respondent submitted
that both the plaintiff and the defendants have sold the
property.
10. It is forthcoming from the aforementioned that
both the Courts having recorded concurrent findings of
fact that the plaintiff is in possession of the suit property
and that the defendants are trying to interfere with the
same, the appellants have failed to demonstrate that the
said concurrent findings of fact are erroneous and is liable
to be interfered with by this Court in the present appeal.
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11. Hence, the present appeal is dismissed as being
devoid of merit at the stage of admission itself.
Sd/-
JUDGE
Sh CT:GSM
