Karnataka High Court
Mr. Ramanna Gowda vs Mr. Srinivasa Gowda on 5 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 351 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.351 OF 2018 (INJ)
BETWEEN:
1. MR. RAMANNA GOWDA
S/O LATE SESA GOWDA,
AGED ABOUT 70 YEARS,
KELAGINA KALLAJE,
INDUBETTU VILLAGE,
P.O: BANGADY-574 272,
BELTHANGADY TALUK.
2. MR. CHANANA GOWDA
S/O. LATE SESA GOWDA,
AGED ABOUT 64 YEARS,
KELAGINA KALLAJE,
Digitally signed
by DEVIKA M INDUBETTU VILLAGE,
Location: HIGH P.O BANGADY-574 272,
COURT OF BELTHANGADY TALUK.
KARNATAKA
...APPELLANTS
(BY SRI K SHASHIKANTH PRASAD, ADVOCATE)
AND:
MR. SRINIVASA GOWDA
S/O MR. BABU GOWDA,
AGED ABOUT 66 YEARS,
MANNADKA HOUSE,
INDUBETTU VILLAGE,
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RSA No. 351 of 2018
P.O: BANGADY-574 272,
BELTHANGADY TALUK.
...RESPONDENT
THIS RSA IS FILED U/S. 100 OF CPC. AGAINST THE
JUDGEMENT AND DECREE DTD 10.11.2017 PASSED IN
R.A.NO.90/2010 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, AND JMFC., BELTHANGADY AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the appellants.
2. The factual matrix of the case of the plaintiffs
before the Trial Court is that item No.1 of the 'A' schedule
property is belongs to their father - Sesa Gowda and same
is granted by the Land Tribunal and item No.2 of 'A'
schedule is registered in the name of plaintiff No.2
Chanana Gowda by the Land Tribunal. 'A' schedule
properties are the lease hold properties of late Sesa
Gowda and he was in possession of the said properties
along with kumki comprise with Sy.No.240/P1 of
Indabettu village. The said kumki property described as
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'B' schedule property in the plaint. The said kumki land
was fenced as shown in the sketch. The said Sesa Gowda
was enjoying 'B' schedule property as a kumki to 'A'
schedule properties. The plaintiffs are in possession of 'A'
and 'B' schedule properties since from grant. The kumki
land is essential for the convenient enjoyment of the warg
land and also it is necessary to take green leaves and
firewood for day-to-day necessities. The house of the first
plaintiff was situated in the said kumki land and he was
paying the tax to the Indabettu panchayath. The plaintiff's
father built one Nagara Katte and one Temple of
Pilichamundi Daiva in the kumki land about 26 years back.
The Government road was running from Indabettu towards
Ujire passing through plaintiffs warg land comprised in
Sy.No.179/3. The defendant is having land comprised in
Sy.No.189 adjacent to their kumki land and he having
greedy eyes on the plaintiffs' kumki land. On 26.06.2001
at about 9.00 a.m., the defendant and his son trespassed
into the 'B' schedule property and started to remove the
green leaves from the land. The plaintiffs have objected
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to said act and lodged the complaint before Belthangady
police and police have warned to them for not to interfere
with the plaintiffs' possession over the 'A' and 'B' schedule
properties but they did not stop their act. Hence, filed the
suit.
3. In pursuance of the suit summons, the
defendant appeared and filed his written statement
contending that Belthangady police have settled the
matter by compromising as per the agreement dated
11.07.2001 between them. Inspite of the agreement,
now, the plaintiffs have colluded together and tried to grab
the land which is in his possession. After filing the suit also
the plaintiffs have tried to take the possession of his
property. It is contended that the land described in 'X'
schedule of his written statement was in his possession.
Now, the plaintiffs have obstructing his peaceful
possession and enjoyment of 'X' schedule property.
Hence, he was sought for counter claim in respect of 'X'
schedule property and there is no cause of action to file
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the suit. It is further contended that the defendant is the
owner of Sy.No.192/3P3 measuring 1.58 acres of
Indabettu village. Adjacent to said land, he is enjoying
kumki privilege over the portion of Sy.No.240/P1. Some
portion of Sy.No.240/P1 was granted in his name under
akrama sakrama and from the date of grant he was in
possession of the said land.
4. The Trial Court having considered the pleadings
of the parties framed the Issues and allowed them to lead
their evidence. In order to prove the case of the
respective parties, plaintiffs examined themselves as PW1
and PW2 and also examined one witness as PW3 and got
marked the documents at Ex.P1 to P19. On the other
hand, the defendant examined one witness as DW1 and
got marked the documents at Ex.D1 to D10. The Trial
Court considered the answer elicited from the mouth of
PW1 and DW1 with regard to granting of land in their
favour. With regard to the claim of the plaintiffs is
concerned, they categorically admitted that they have filed
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the suit for the relief of permanent injunction to the extent
of 5 acres and they does not know what extent of land was
granted in favour of the defendant and they also admits
that they have filed an appeal against the grant made in
respect of the defendant. The Trial Court having taken
note of the material available on record particularly, the
evidence of witness i.e., PW3 who has been examined in
support of the case of the plaintiffs wherein he
categorically deposed with regard to the Kumki land is
concerned which is described as 'B' schedule property that
he does not know anything about the extent of land and
he also does not know about the survey number of kumki
land and he never stated with regard to the interference
by the defendant over the suit 'A' and 'B' schedule
properties. Hence, the Trial Court considering material
available on record comes to the conclusion that to show
that the defendant is interfering with the possession and
enjoyment of 'B' schedule property, nothing is placed on
record. Even taken note of the fact that the plaintiffs
themselves have admitted that some portion of
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government land was granted in the name of the
defendant but they failed to prove that they are not in
possession of 5 acres of government is the kumki land to
their land. The Trial Court also an observation is made
that the plaintiffs have not produced any material to show
that 'B' schedule property was kumki land to their 'A'
schedule property and also nothing is placed on record to
show with regard to the interference of the defendant in
respect of 'B' schedule property and comes to the
conclusion that plaintiffs have not entitled for the relief as
sought and dismissed the suit of the plaintiffs as well as
the counter claim of the defendant.
5. Being aggrieved by the judgment and decree of
the Trial Court, an appeal was preferred in
R.A.No.90/2010. The First Appellate Court also on
consideration of grounds urged in the appeal memo
formulated the points and having reassessed both oral and
documentary evidence placed on record comes to the
conclusion that the plaintiffs have contend that they are in
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possession of 5 acres of 'B' schedule property and entire
land forms kumki to their work land and also an
observation is made that even as per the Madras Standing
Borard Rules, kumki land is a government waste land
within 100 yards of assessed land included in a holding
formed prior to fasli 1276. A kumki privilege is a privilege
of kadim wargdar to enjoy the adjacent government waste
land within 100 yards for the purpose of grazing cattle,
collecting leaves, firewood. Therefore, in this case,
plaintiff No.1 has failed to prove that item No.1 has the
kumku privilege over the 'B' schedule, similarly plaintiff
No.2 having failed to prove that 'B' schedule is abutting
and is within 100 yards of item No.2 has also failed to
prove that he has got kumki privilege over 'B' schedule
property. The First Appellate Court on re-appreciating both
oral and documentary evidence placed on record accepted
the reasoning given by the Trial Court and confirmed the
judgment and decree of the Trial Court. Being aggrieved
by the said concurrent finding of the both the Courts, the
present second appeal is filed.
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6. The counsel for the appellants would
vehemently contend that both the Courts have committed
an error in coming to the conclusion that the plaintiffs
have not proved that 'B' schedule property is kumki land
of 'A' schedule property and hence, very approach of both
the Courts is erroneous, Once the First Appellate Court
comes to the conclusion that the plaintiffs are in actual
possession and they are entitled for injunction, ought to
have granted the relief of injunction but not granted the
relief as sought and erroneously confirmed the judgment
of the Trial Court. Hence, this Court has to frame the
substantial questions of law and admit the appeal.
7. Having heard the learned counsel appearing for
the appellants and on perusal of the material available on
record and also considering the admission regarding grant
and question made by in respect of the grant in favour of
both the plaintiffs and defendant it is clear that the Trial
Court rightly comes to the conclusion that the plaintiffs
fail to prove that suit 'b' schedule property was kumki to
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their 'A' schedule property and also not proved the
interference by the defendant. The Trial Court even relied
upon the evidence of PW3 wherein he deposed that he
does not know anything about the fact that in which
survey number kumki land is located. The First Appellate
Court also having taken note of the material available on
record, reassessed the same. In paragraph 16 discussed
with regard to the possession of the plaintiffs in respect of
kumki land is concerned and in paragraph 17, taken note
of the fact that the question arises as to whose warg land
the plaint 'B' schedule survey number forms kumki. From
the rough sketch produced by the plaintiff himself as
Ex.P13, it is seen that in between the land of the
defendant in Sy.No.189 and 'B' schedule property, there
lies a road. Item No.1 of 'A' schedule properties are not
kadim warg land and hence not entitled for kumki
privilege. Hence, the First Appellate Court in detail
discussed the material available on record and comes to
the conclusion that Sy.No..179/2 which has been granted
in favour of plaintiff No.2 is not abutting to 'B' schedule
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property and therefore cannot be considered that 'B'
schedule property has formed kumki to item No.2 of 'A'
schedule. Thus, the First Appellate Court given the reasons
while accepting the finding of the Trial Court and comes to
the conclusion that the plaintiffs have failed to prove that
the said 'B' schedule property is a kumki land of 'A'
schedule property and also comes to the conclusion that
there is no interference by the defendant and hence, not
granted the relief of permanent injunction. Unless the
plaintiffs make out a case with regard to claiming of
possession in respect of 'B' schedule property is
concerned, nothing is placed on record except the
suggestion house is situated in kumki land and in order to
prove the fact that in kumki land only house is situated, no
material is placed except rough sketch at Ex.P13. Hence, I
do not find any ground to interfere with the finding of the
Trial Court and First Appellate Court. When such being the
case, there are no grounds made out to invoke Section
100 of CPC to frame the substantial questions of law and
to admit the appeal.
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8. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
SN
