Karnataka High Court
Sri Rudresh vs Smt Anasuyamma on 2 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 331 of 2024
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. 331 OF 2024 (INJ)
BETWEEN:
1. SRI RUDRESH
S/O DUMMAPPA,
AGED ABOUT 50 YEARS,
R/O KURABARA BEEDHI,
BEHIND BEERALINGESHWARA TEMPLE,
CHANNAGIRI TOWN AND TALUK-577213.
...APPELLANT
(BY SRI. SHRIDHAR NARAYAN HEGDE, ADVOCATE)
AND:
1. SMT. ANASUYAMMA
W/O LATE SREEKANTAIAH,
Digitally signed AGED ABOUT 75 YEARS,
by DEVIKA M OCC: AGRICULTURIST,
Location: HIGH
COURT OF 2. G.S. JAGANATH
KARNATAKA
S/O LATE SREEKANTAIAH,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
RESPONDENTS NO.1 AND 2 ARE
R/O. GOUDRA BEEDHI,
CHANNAGIRI TOWN AND TALUK-577213.
...RESPONDENTS
(BY SMT.G.M.SUMITHRA, ADVOCATE FOR
SMT. SARITHA KULKARNI, ADVOCATE)
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RSA No. 331 of 2024
THE RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED03.02.2024
PASSED IN R.A.NO.25/2023 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.08.2023 PASSED IN O.S.NO.127/2019 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.
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 and learned counsel for the
caveator-respondent Nos.1 and 2.
2. The factual matrix of the case of the plaintiffs
before the Trial Court in O.S.No.127/2019 while seeking the
relief of permanent injunction is that the plaintiff No.1 is the
mother of plaintiff No.2 and both are residents of Channagiri
Town. The plaintiffs claimed possession of the suit schedule
property through one Srikantaiah G.M., who was the husband
of plaintiff No.1, father of plaintiff No.2, who died on
19.06.2013 leaving behind the plaintiffs as his legal
representatives. Plaintiffs claimed title as well as possession of
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the suit schedule property of said Srikantaiah G.M. through a
registered family partition dated 25.04.1988. The plaintiffs
asserted that they are in actual, physical and peaceful
possession in and over the suit schedule property and all the
revenue records are standing in their names. It is contended
that the defendant is stranger to the family and suit property.
He attempted to intrude in its possession in 1st June 2019 and
the same was resisted. It is also contended that on 26.06.2019
at about 11.00 a.m., the defendant with his supporters came
near to the suit property by laying a false claim and tried to
stop the agricultural work which was being done by the plaintiff
through JCB and lorry in order to plant the coconut trees. The
same was resisted with all hectic efforts and they have the
complaint, but the complaint yield nothing and hence, filed the
suit for the relief of permanent injunction.
3. The defendant appeared and filed the written
statement denying the document of registered partition deed
dated 25.04.1988 and also denied the alleged interference. On
the other hand, it is the contention of the defendant that
grand-father, father of defendant were in actual possession of
suit schedule properties, since 1935. The defendant also
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continued such possession and he also made representation
before the concerned authority, in order to get some report
with regard to physical possession and enjoyment.
Consequently, the competent authority did spot mahazar and
gave report holding that the defendant is in possession of the
suit schedule property within the boundaries as is mentioned in
spot mahazar. It is contended that he is in possession of the
suit schedule property and is growing maize crop in it and he is
in possession of the suit schedule property from the date of
their ancestors and hence, prayed the Court to dismiss the suit.
4. The Trial Court having considered the pleadings of
the parties, allowed the parties to lead evidence and
considering both oral and documentary evidence placed on
record, accepted the contention of the plaintiffs that they got
the property through a registered partition deed of the year
1988 and they are in continuous possession and also did not
accept the contention with regard to the documents,
particularly which have been produced by the defendant before
the Court to evidence the fact that he in possession of the
property.
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5. Being aggrieved by the said judgment and decree of
the Trial Court, an appeal is filed before the First Appellate
Court in R.A.No.25/2023. The First Appellate Court also, having
considered the grounds urged and also considering both oral
and documentary evidence placed on record, formulated the
points whether the Trial Court committed an error in coming to
the conclusion that the plaintiffs are in possession of the suit
schedule property, whether there is interference. The First
Appellate Court also comes to the conclusion that the plaintiffs
have proved that they are in possession of the property and
answered the said points as 'negative'. Being aggrieved by the
said concurrent finding, the present second appeal is filed
before this Court.
6. Learned counsel for the appellant would vehemently
contend that both the Courts failed to consider the documents
which establishes the fact that from 1935 the appellant is in
continuous possession, including their ancestors. D.W.1, who
was examined categorically stated that in the year 1935, his
grand-father, his father and now he is in physical possession of
the suit schedule property. Inpsite of document, particularly
Ex.D1 which is the report given by the concerned Village
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Accountant, the same has not been considered by the Trial
Court. Learned counsel would vehemently contend that
Exs.D25 and D26 are the tax paid receipts in respect of the suit
schedule property and the same have not been considered by
the Trial Court. The defendant also produced Exs.D29, D30 and
D31 which are RTC Extracts of the year 1969-70 to 1972-73,
wherein the name of Dummappa was reflected and all these
documents have not been considered by the Trial Court as well
as the First Appellate Court. Hence, this Court has to admit the
appeal in not accepting the documents of Exs.D1 to D5 which
evidences the fact that the defendant and his ancestors were in
possession of the suit schedule property.
7. Per contra, learned counsel for the respondents
would vehemently contend that both the Trial Court and the
First Appellate Court, taking into note of the registered partition
deed of the year 1988, immediately changed the khatha in the
name of the plaintiffs and revenue documents are standing in
the name of the plaintiffs and though some of the documents
are relied upon by the defendant, they are created document
and there is no basis for claiming possession and possession
has not been established, the Court has to take note of lawful
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possession and hence, the Trial Court and the First Appellate
Court rightly not considered the tax paid receipts which came
into existence after filing of the suit and not committed any
error.
8. Having heard the learned counsel for the appellant
and learned counsel for the caveator-respondent Nos.1 and 2,
particularly the contention of the plaintiffs before the Trial
Court is that they were in possession of the suit schedule
property as on the date of the suit and they got the property
through partition deed of the year 1988 and even subsequent
to partition also, the revenue entries are made in favour of the
plaintiffs and all the documents clearly disclose the possession
of the plaintiffs. The Trial Court also particularly taken note of
the document at Ex.P2 i.e., the copy of the partition deed which
is a registered document dated 25.04.1988 and also taken note
of the RTC Extracts from the year 1985-89 and throughout till
filing of the suit which are marked as Exs.P4 to P24 and also
taken note tax paid receipts which are prior to filing of the suit
from 1994 onwards and M.R.No.4/1992-93 is also produced
and Encumbrance Certificate issued in Form No.15 is produced
from 01.04.1969 to 13.02.2020 and complaint lodged is also
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relied upon as Ex.P36. These are the documents which are
considered by the Trial Court while passing the judgment and
both the Courts comes to the conclusion that though the
defendant claims possession from 1935 onwards, there is no
basis for claiming the said possession and also did not accept
the contention of the defendant, since tax paid receipts are also
subsequent to filing of the suit in the year 2019 and tax paid
receipts, particularly Exs.D25 and D26 both dated 05.02.2020
are subsequent to filing of the suit. No doubt, Exs.D13 to D22
i.e., photographs are relied upon, the photographs not disclose
that who are in possession and the Court has to look into the
material on record as on the date of filing of the suit and all the
documents of RTC Extracts i.e., Exs.P4 to P24 shows that from
the year 1985-89, till filing of the suit i.e., 2018-2019, tax paid
receipts are also produced. Having considered these material
on record, the Trial Court comes to the conclusion that the
plaintiffs have established their possession.
9. Even the First Appellate Court also while re-
appreciating the material on record taken note of the very case
of the plaintiffs and defendant and also taken note of the fact
that the defendant only relies upon the report of the Revenue
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Officer and also taken note of the documents at Exs.D7 and
Ex.D27, whereby the name of one Dummappa is mutated in the
revenue records of Sy.No.99/3 and the same is not supported
by any document, which has been observed in Paragraph No.21
of the judgment. In Paragraph Nos.23, 24 and 25 of the
judgment, it is observed that the plaintiffs mainly relied upon
the document of Ex.P2-partition deed and immediately after
execution of the partition deed, khatha was changed in the
name of plaintiff No.1 by making entry in M.R.No.2/1988-89.
The defendant though tried to maintain his claim of possession
over the suit schedule property on the basis of Ex.D7 and D27,
but failed in his attempt by virtue of Exs.D33 and D38. Since,
the revenue records so placed by the plaintiffs are fetching
presumptive value of possession over the suit schedule
property and the documents which have been relied upon by
the defendant not proves his continuous possession from 1935.
10. The learned counsel for the appellant also relied
upon the judgment in ANATHULA SUDHAKAR VS. BUCHI
REDDY (DEAD) BY LRS & ORS. in CIVIL APPEAL NO.6191
OF 2001 dated 25TH MARCH, 2008 and contend that, if there
is dispute in title, the plaintiffs ought to have filed the suit for
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the relief of declaration and permanent injunction and the said
contention cannot be accepted, since the appellant/defendant is
not claiming any title in respect of the suit schedule property,
but his contention is that he is in settled possession from 1935
onwards. When such being the case, the principle laid down in
the said judgment is not applicable to the facts of the case on
hand and there is no cloud on the title of the plaintiffs, since
the defendant is not claiming any title, except claiming
possession.
11. When both the Courts have applied their mind and
given anxious consideration to the material on record,
particularly oral and documentary evidence and when the case
of the plaintiffs is more probable than the defendant and in the
civil case, the Court has to take note of preponderance of
probabilities and the same has been considered by the Trial
Court and the First Appellate Court. Hence, I do not find any
force in the contention of the learned counsel for the appellant
that matter requires to be admitted and substantial question of
law needs to be framed and the both the Courts have given
concurrent finding based on the material available on record
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and there is no substantial question of law to be framed by
admitting the appeal.
Accordingly, the regular second appeal is dismissed.
Sd/-
JUDGE
ST
