Karnataka High Court
Parashivappa vs K C Mahadevappa on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:24770
RSA No. 1162 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1162 OF 2023 (INJ)
BETWEEN:
1. PARASHIVAPPA,
S/O LATE KALAPPA,
AGED ABOUT 61 YEARS,
R/O KONTAIATHNAHUNDI VILLAGE,
BILIGERE HOBLI,
NANJANGUD TALUKK-571301.
...APPELLANT
(BY SRI P. MAHESHA, ADVOCATE)
AND:
1. K.C.MAHADEVAPPA,
S/O LATE CHINNAPPA
AGED ABOUT 66 YEARS,
2. MAHADEVASWAMY
Digitally signed
by DEVIKA M S/O LATE K.C.MAHADEVAPPA
Location: HIGH AGED ABOUT 37 YEARS,
COURT OF
KARNATAKA ALL ARE RESIDING AT
KONTAIAHUNDI VILLAGE,
BILIGER HOBLI,
NANJANGUD TALUK-571129.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 23.03.2023
PASSED IN R.A.NO.21/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, NANJANGUD, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
-2-
NC: 2024:KHC:24770
RSA No. 1162 of 2023
DATED 28.06.2017 PASSED IN O.S.NO.482/2012 ON THE FILE
OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD.
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 the subject matter of the suit is a vacant
site bearing Janjar No.1567 and property No.3C measuring East
to West 36 feet and North to South 80 feet situated at
Kontheiahnahundi Village, Biligere Hobli, Nanjangud Taluk
which is morefully described in the schedule to the suit. It is
also pleaded that plaintiff is using the vacant site as hittalu for
his dwelling house. The khatha of the suit schedule site and
dwelling house stands in the name of plaintiff. The defendants
have site towards the western side of the suit vacant site. The
defendants deliberately started to interfere with the lawful
possession of the plaintiff over the suit vacant site. Therefore,
the plaintiff filed the suit bearing O.S.No.19/2001 for
permanent injunction against defendants before the Principal
Civil Judge and JMFC, Nanjangud. The defendants put their
NC: 2024:KHC:24770
appearance in the said suit and resisted the claim of plaintiff by
filing written statement and objections. The High Court was
pleased to grant temporary injunction against the defendants in
the said suit. Aggrieved by the order passed by the Principal
Civil Judge and JMFC, Nanjangud granting temporary
injunction, in favour of plaintiff, he preferred an appeal and the
appeal came to be allowed by the First Appellate Court. During
the pendency of the said suit, defendants also filed separate
suit bearing O.S.No.163/2001 in respect of their site and the
defendants have mentioned the boundaries of present suit
property as boundaries of their site. The plaintiff, to avoid
multiplicity of proceedings withdrawn his suit bearing
O.S.No.19/2001 and contested the suit filed by the defendants
i.e., O.S.No.163/2001 and the said suit was dismissed and
aggrieved by the same, the defendants filed the appeal and the
appeal was also dismissed. Thereafter, the defendants have
preferred R.S.A.No.511/2009 before this Court and the same
was also dismissed and when the claim of the defendants was
dismissed, the Trial Court ought to have granted the relief of
permanent injunction. Hence, he filed the suit.
NC: 2024:KHC:24770
3. The Trial Court taking note of the pleadings of the
parties, framed the issues and answered the issues as
'negative', in coming to the conclusion that plaintiff has not
proved possession and unless the possession is proved, the
question of granting permanent injunction does not arise.
4. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.21/2017. The First Appellate Court discussed in detail,
particularly taking note of the documents relied upon by the
plaintiff and the same also does not disclose boundary and the
same not tallies with the boundary shown in the schedule of the
plaint and dismissed the appeal. Being aggrieved by the said
judgment and decree, the present second appeal is filed.
5. Learned counsel for the appellant would vehemently
contend that both the Courts failed to consider the material on
record, particularly the judgment passed in the earlier suit filed
by the defendants and when the suit was filed, the same was
dismissed and even appeal was also dismissed and the same
was dismissed and regular second appeal filed before this Court
against the said judgment was also dismissed. When such
NC: 2024:KHC:24770
materials are available before the Court, the Trial Court ought
not to have dismissed the suit. Hence, this Court has to frame
the substantial question of law whether both the Courts were
justified in rejecting the suit of the plaintiff by ignoring the
earlier proceedings between the same parties in respect of the
same suit schedule property which had reached its finality.
6. Having heard the learned counsel for the appellant
and also on perusal of the material available on record, the suit
is filed for the relief of permanent injunction in respect of the
suit schedule property. No doubt, in the suit, description of the
property is also shown, the Trial Court having considered the
material on record, particularly taking note of the fact that
earlier suit filed by the defendants was dismissed, comes to the
conclusion that boundaries which they have mentioned in the
suit not tallies with each other and earlier suit was dismissed
only on that ground and even appeal was also dismissed. Now
the dispute exist in respect of property bearing Janjar No.1567
and property bearing No.3C which has been claimed by plaintiff
and defendants as their property.
NC: 2024:KHC:24770
7. In Paragraph No.17 of the judgment of the Trial
Court, it is observed that in order to prove possession over suit
schedule property, plaintiff heavily relied upon documentary
evidence at Ex.P2. No doubt, Ex.P2 reveals name of plaintiff,
but at the same time, it does not disclose actual measurement
of suit schedule property. The said observation of the Trial
Court and the First Appellate Court is correct, but the plaintiff
do not dispute the fact that no measurement is mentioned in
the document of Ex.P2. But, mere existence of name of
plaintiff in Ex.P2 is not enough to grant the relief of permanent
injunction and it should disclose the actual measurement of the
suit schedule property.
8. It is also the other contention of the learned
counsel for the appellant that when the suit of the plaintiff was
dismissed, the First Appellate Court ought to have granted the
relief of permanent injunction in favour of the plaintiff and the
said contention cannot be accepted and the earlier suit was also
dismissed for not proving the boundary of the plaintiff and
even, it has attained finality. The plaintiff has to prove his case
with regard to boundary which has been described in the
schedule and the same has not been proved.
NC: 2024:KHC:24770
9. The First Appellate Court also having reassessed the
material on record, particularly in Paragraph Nos.21 and 22,
taken note of the fact that in a suit for permanent injunction
not only extent of the suit schedule property, but also the
boundaries play prominent role in deciding the case of the
plaintiff. In the documents produced before the Trial Court, the
boundaries of the suit land shown in Ex.P2 do not tally with the
boundaries shown in the schedule to the plaint. When there is
no actual measurement in the document of Ex.P2, the question
of granting the relief of permanent injunction does not arise.
Hence, I do not find any ground to come a conclusion that both
the Courts committed an error in not granting the relief of
permanent injunction and therefore, it is not a fit case to
invoke Section 100 of CPC to admit the appeal and frame any
substantial question of law.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
