Karnataka High Court
Sri Basavaraj Madivalappa Kotagi vs Sri Basavanneppa Ramappa Kotagi on 1 July, 2024
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RSA No. 101113 of 2023
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. 101113 OF 2023 (INJ-)
BETWEEN:
SRI BASAVARAJ MADIVALAPPA KOTAGI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O VAKUND, TQ. BAILHONGAL,
DIST: BAILHONGAL.
...APPELLANT
(BY SRI G.S. SAVADATTI, ADVOCATE)
AND:
SRI BASAVANNEPPA RAMAPPA KOTAGI
AGE: 78 YEARS, OCC: AGRICULTURE,
R/O VAKUND, TQ: BAILHONGAL
DIST: BAILHONGAL-591102.
...RESPONDENT
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING THAT THE
Digitally signed
by SAROJA
HANGARAKI JUDGMENT AND DECREE IN R.A.NO.29/2022 PASSED BY THE
Location: HIGH
COURT OF SENIOR CIVIL JUDGE, BAILHONGAL DATED 04.10.2023 MAY PLEASE
KARNATAKA
DHARWAD TO BE SET ASIDE BY ALLOWING THIS APPEAL AND THE JUDGMENT
BENCH
DHARWAD AND DECREE PASSED IN O.S.NO.17/2018 DATED 25.05.2022 BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, BAILHONGAL BE SET ASIDE AND
REMAND THE MATTER FOR FRESH DISPOSAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 101113 of 2023
JUDGMENT
The present second appeal is filed under Section 100
of the Code of Civil Procedure, 19081 by the defendant
challenging the judgment and decree dated 04.10.2023
passed in R.A.No.29/2022 by the Senior Civil Judge,
Bailhongal2 and the judgment and decree dated
25.05.2022 passed in O.S.No.17/2018 by the Principal
Civil Judge and J.M.F.C., Bailhongal3 wherein the suit for
injunction has been decreed by the Trial Court and
affirmed by the First Appellate Court.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of
convenience.
3. It is the case of the plaintiff that the suit
properties were granted to the plaintiff under the
Malaprabha River Rehabilitation Scheme and the plaintiff
is in possession and enjoyment of the same. That the
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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plaintiff has purchased the property bearing No.39
situated on the southern side of the suit properties in the
year 1987 for a total sale consideration of ₹4,000/- and
demolished the old house situated in the said property
bearing No.39. That the plaintiff has constructed a house
measuring east-west 60 feet and north-south 40 feet and
while constructing the house he has constructed a portion
of the house to an extent of 5 feet in property bearing
No.38B. That the defendant was unnecessarily interfering
with the peaceful possession and enjoyment of the
plaintiff over the suit properties. That the plaintiff and his
family members are residing in the house situated in the
suit properties and they are using the open space for
placing fodder. That since the defendant was interfering
with the plaintiff's possession of the suit properties, the
plaintiff filed the suit for injunction.
4. The defendant entered appearance and filed
written statement denying the case of the plaintiff and
contended that the boundaries of the suit properties and
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the boundaries of the property held and possessed by the
defendant in property bearing GP No.143 of Wakkund
village within the limits of Gram Panchayat, Wakkund are
similar. That the ancestors of defendant were displaced
persons under the Malaprabha River Rehabilitation
Scheme of the Government of Karnataka and open space
measuring 19x50 feet was granted to the possession of
the ancestors of the defendant in the year 1972-73 and
hence open space has been succeeded by the defendant.
That the ancestor of the defendant was an illiterate and
rustic villager and in view of the settled possession and
enjoyment, he had no occasion to verify the Gram
Panchayat register with regard to entry of his name in the
said records. That in the year 1987 he learnt that his
name was not entered in the records of the Gram
Panchayat and hence the defendant applied to the Gram
Panchayat to enter his name. That consequent to an
enquiry, the panchayat accepted the claim of the
defendant and vide resolution dated 26.02.1987 allotted
property No.143 and hence the name of the defendant
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has been entered in the register which has been
maintained.
5. It is the further case of the defendant that he
has constructed a residential house measuring north-
south 43 feet, east-west 43 feet within two years of
entering his name in the register of the Gram Panchayat.
That while defendant constructed his house, he has left
some open space towards northern side, southern side
and western side. That the defendant has put up cattle
shed, raised tamarind tree and used to keep fodder
towards northern side of the constructed house. That the
defendant for 10-12 years prior to the suit has let out the
property bearing Gram Panchayat No.143 with all its
belongings and amenities to his uncle and his brother on
leave and license basis and therefore he had no occasion
to visit the property. As such, the question of interfering
with the possession of the plaintiff does no arise.
6. It is the further contention of the defendant
that the plaintiff while making construction of house shed
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in property No.38A, 38B and 39 totally measuring north-
south 50 feet and east-west 90 feet has constructed
house measuring 40x60 feet about 6-7 years ago. When
all the family members including the defendant were out
of station for 15 days on a pilgrimage, taking advantage
of the same, the plaintiff encroached north-south 7 feet
and east-west 6 feet in property No.143. That the
defendant upon coming to know of the encroachment,
requested the plaintiff to vacate the possession of the
encroached area but the plaintiff in turn postponed the
same on one pretext or the other. That the elders asked
the plaintiff to pay ₹90,000/- to the defendant and the
same was agreed. But in order to avoid payment, he has
filed the present suit. Hence, the defendant sought for
dismissal of the suit.
7. The Trial Court consequent to the pleadings of
the parties, framed the following issues:
"1. Whether plaintiff proves that he is in possession
of the suit schedule property as on the date of suit?
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2. Whether plaintiff further proves that the alleged
interference caused by the defendant?
3. Whether plaintiff is entitled for the relief as
sought for in the plaint?
4. What order or decree?"
8. Plaintiff examined himself as PW.1 and another
witness as PW.2. Exs.P.1 to P.10 have been marked in
evidence. The defendant did not lead any evidence.
9. The Trial Court by its judgment an decree dated
25.05.2022 has recorded a finding that the plaintiff has
produced the property extract of the suit properties
(Exs.P.1 and P.2) as also the tax paid receipts (Exs.P.3
and P.4) reflecting his name as well as tax payment
register (Ex.P.5). The plaintiff has also produced
panchanama pertaining to the suit properties (Exs.P.6 and
P.7), wherein the boundaries of the suit properties are
clearly mentioned and the said documents bear the
signatures of panchas and the Panchayat Development
Officer.
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10. It is further noticed that although the defendant
contended that the boundaries of the suit property
resemble boundaries of property bearing Gram Panchayat
No.143, he has not produced any documents to
substantiate his contention. The Trial Court has also
noticed the contention of the defendant that there was
variation in the boundaries and upon appreciation of the
material on record has held that variation of the
boundaries in the cross-examination cannot be attributed
with any significance. Hence, the Trial Court has
answered issue No.1 in the affirmative that the plaintiff is
in possession of the suit property as on the date of the
suit.
11. Further, upon noticing that the defendant has
not produced any documents to show that he is in
possession of the suit property or that property No.143 is
situated within the boundaries of the suit properties or
even to show encroachment made by the plaintiff as
alleged by him, the Trial Court has also answered issue
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No.2 in the affirmative. The Trial Court has decreed the
suit with cost and restrained the defendant from
interfering with peaceful possession and enjoyment of the
suit property of the plaintiff.
12. Being aggrieved, the defendant preferred
R.A.No.29/2022. The plaintiff entered appearance in the
said proceedings and contested the same. The First
Appellate Court framed the following points for
consideration:
"1) Whether the trial court was justified in holding
that plaintiff proved actual possession and
enjoyment of the suit property as on the date of
suit?
2) Whether the trial court was justified in holding
that there was interference by the defendant?
3) Whether the impugned judgment and decree is
perverse capricious illegal and calls for interference
of this court? If so, to what extent?
4) What order or direction?"
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13. The First Appellate Court upon reappreciation of
oral and documentary evidence on record, has noticed
that the boundaries stated by PW.1 in the evidence are
the same boundaries as stated in the plaint. It is further
noticed that the witness PW.2 has supported the case of
the plaintiff. That the defendant has not produced any
oral or documentary evidence. It is further noticed that
the boundaries mentioned in the panchanamas (Exs.P.7,
P.8 P.9) tallies with suit boundaries. The First Appellate
Court upon a detailed reappreciation of the oral and
documentary evidence on record, dismissed the appeal
filed by the defendant and confirmed the judgment and
decree passed by the Trial Court.
14. It is forthcoming from the aforementioned that
both the Courts have recorded concurrent findings of fact
that the plaintiff is in possession of the suit property and
since the defendant is attempting to interfere with the
same, the Trial Court has decreed the suit which has been
upheld by the First Appellate Court.
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15. Although the defendant took various
contentions regarding the identity of the suit property as
also contended that the plaintiff has encroached the
property of the defendant, it has been noticed by both the
Courts that apart from making suggestions to the
witnesses examined on behalf of plaintiff which
suggestions have been denied, the defendant has not
adduced any oral or documentary evidence on record in
order to demonstrate his case. The concurrent findings
recorded by both the Courts are by taking into
consideration the oral and documentary evidence on
record.
16. The appellant has failed in demonstrating that
the said concurrent findings are in any manner erroneous
and that any substantial question of law arises for
consideration in the present appeal.
17. Hence, the present appeal is dismissed as being
devoid of merit at the stage of admission itself.
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18. In view of the dismissal of the appeal,
I.A.No.1/2023 for stay is also dismissed.
Sd/-
JUDGE
Sh
CT:GSM
