Karnataka High Court
Shivasiddegowda vs Dali Boregowda on 29 July, 2024
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RSA No. 577 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.577 OF 2009 (INJ)
BETWEEN:
SHIVASIDDEGOWDA
S/O MADEGOWDA
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1. SMT LAKSHMAMMA
W/O LATE SHIVASIDDEGOWDA
DECEASED
(DELETED VIDE ORDER DATED 05.07.2024)
2. K S ASHWATHANARAYANA
S/O LATE SHIVASIDDEGOWDA
AGED ABOUT 45 YEARS
3. VIJAY KUMAR
Digitally signed S/O LATE SHIVASIDDEGOWDA
by R DEEPA AGED ABOUT 43 YEARS
Location: HIGH
COURT OF 4. MAHADEVA
KARNATAKA
S/O LATE SHIVASIDDEGOWDA
AGED ABOUT 40 YEARS
5. MANJULA
D/O LATE SHIVASIDDEGOWDA
R/AT D NO 27, 3RD CROSS, MAIN
KUMBARAKOPPA, MYSORE 570017
...APPELLANTS
(BY SRI. VELANKI RAVI, ADVOCATE FOR
SRI. P B RAJU., ADVOCATE
SRI. P.S. JAGADISH)
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RSA No. 577 of 2009
AND:
DALI BOREGOWDA
SINCE DECEASED BY HIS LRS
1. CHIKKATHAYAMMA
W/O LATE DALI BOREGOWDA
DECEASED REP. BY R4 (DAUGHTER)
2. SUBBEGOWDA
S/O LATE DALI BOREGOWDA
DECEASED REP. BY R5 TO R8 (WIFE AND SONS)
3. LAKSHMAMMA
D/O LATE DALI BOREGOWDA
DECEASED
4. BORAMMA
D/O LATE DALI BOREGOWDA, MAJOR
R/AT ANNAYYAPPANA BEEDI,
KUMBARAKOPPAL,
MYSORE
5. SMT JAYAMMA
W/O LATE SUBBEGOWDA
AGED ABOUT 63 YEARS
6. S ANNAIAH
S/O LATE SUBBEGOWDA
AGED ABOUT 47 YEARS
7. SHIVARAJ
S/O LATE SUBBEGOWDA
AGED ABOUT 42 YEARS
8. SHIVAKUMAR
S/O LATE SUBBEGOWDA
AGED ABOUT 40 YEARS
RESPONDENT Nos.5 TO 8 ARE
R/AT D.NO.33/16,
KEMPEGOWDA STREET
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RSA No. 577 of 2009
KUMBARAKOPPAL - 570 017
MYSURU.
...RESPONDENTS
(BY SRI. H C SHIVARAMU, ADVOCATE FOR R5 TO R8;
V/O DATED 28.11.2012 R4 IS LR OF R1 & R3;
R5 TO R8 ARE LRS OF R2;
R4 - SERVED, UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 28.2.2009 PASSED IN
R.A.NO. 116/1993 ON THE FILE OF THE II ADDL.CIVIL JUDGE
(SR.DN.), MYSORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 26.2.1993
PASSED IN OS.NO. 582/1982 ON THE FILE OF THE PRL.I
MUNSIFF, MYSORE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 28.02.2009,
passed in R.A.No.116/1993 by the II Addl. Civil Judge
(Sr.Dn.) & CJM, Mysore.
For the sake of convenience, parties are referred to
as per their ranking before the trial Court. The appellants
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are the legal representatives of plaintiffs and respondents
are the defendants.
2. The brief facts leading rise to filing of this
appeal are as under:
Plaintiff filed a suit for permanent injunction
restraining the defendants from interfering with the
possession and enjoyment of his site No.H8 situated in
Kumbarakoppal measuring East to West 60 feet and North
to South 50 feet. It is the case of the plaintiff that, the
plaintiff is the absolute owner of the suit site as he had
purchased the site from Mysore City Corporation on
29.08.1978 for a sum of Rs.362/-. The Mysore City
Corporation delivered possession of the site in favour of
the plaintiff. The plaintiff after obtaining the necessary
permission from the Corporation, has commenced
construction of a building over the aforesaid site. The
defendant has no right, title or interest over the suit
property. The defendant tried to interfere with plaintiff's
construction over the suit property on 13.11.1982 and
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17.11.1982. Hence cause of action arose for the plaintiff
to file the suit for permanent injunction.
3. Defendants filed written statement stating that
the suit property is not a site. The boundaries furnished to
the suit property refers to Sy.No.182/1 of Hebbal Village,
Mysore Taluk which belongs to the defendant. It is
contended that, Sy.No.182 measures 1 acre 33 guntas and
out of that defendant purchased 1 acre 13 guntas from
one Thippegowda under a registered sale deed. Now the
said land is re-numbered as Sy.No.182/1. Out of that
land, the defendant sold 18 guntas to different persons
and the same has been acquired and further once 2½
guntas and again 20½ guntas was acquired and the
defendant received compensation in respect of the said
acquired land. It is contended that the plaintiff has no
right, title or interest over the suit schedule property.
Hence prayed to dismiss the suit.
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4. The Trial Court, on the basis of the above said
pleadings, framed the following issues and additional
issue:
Issues:
(1) Whether the plaintiff proves the
interference by the defendant?
(2) Whether he is entitled for permanent
injunction?
(3) To what decree is the plaintiff entitled?
Addl. Issue:
"Whether the plaintiff proves that he is in
possession of the suit property?"
5. In order to prove the case of the plaintiffs, the
plaintiff examined himself as PW-1 and got marked 22
documents as Exs.P1 to P22. In rebuttal, defendant
examined two witnesses as DW-1 and DW-2 and got
marked 14 documents as Exs.D1 to D14. The trial Court
after assessing the oral and documentary evidence of the
parties, answered issue Nos.1 and 2 and additional issue
in the affirmative and issue No.3 as per the final order.
The suit of the plaintiff was decreed and permanent
injunction was granted restraining the defendants from
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interfering with the possession of the suit property by the
plaintiff.
6. The defendants aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.116/1993. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
(1) Whether the learned Civil Judge is justified
in decreeing the suit filed by the plaintiff in
O.S.No.582/82 against the defendant for
grant of permanent injunction?
(2) Whether the judgment and decree passed
by the trial Court in O.S.No.582/82 is
capricious, perverse and arbitrary which
needs interference of this Court?
(3) What order?
7. Further, the defendants filed an application for
production of additional evidence. The said application
came to be allowed and the first Appellate Court has
marked the documents as Exs.A1 to A6. The first
Appellate Court placing reliance on the documents
produced before it and on re-assessing the oral and
documentary evidence, answered point No.1 in negative
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and point No.2 in affirmative and point No.3 as per the
final order and consequently allowed the appeal filed by
the defendants and the judgment and decree passed in
O.S.No.582/1982 dated 26.02.1993, was set aside and the
suit of the plaintiff was dismissed. The plaintiff aggrieved
by the judgment and decree passed by the first Appellate
Court, has filed this second appeal.
8. Heard learned counsel for the parties.
9. Learned counsel for the plaintiff submits that
the first Appellate Court has passed the impugned
judgment only on the ground that the demand register
extract issued by the Tahsildar for the year 1961-1970
states that 1 acre 10½ guntas of land in bearing
Sy.No.182 of Hebbal Village, Mysuru Taluk has been
dropped from the acquisition proceedings. The said finding
recorded by the first Appellate Court is without any basis.
He submits that the plaintiff has produced Ex.P16, which
discloses that the said land was acquired under the
Gazette Notification dated 30.11.1967, and that the
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defendants have not produced any records to establish
that the acquisition proceedings were dropped in respect
of Sy.No.182. He submits that the defendants have not
produced any records to show that 12 guntas of land in
Sy.No.182/1 was in possession and enjoyment of the
defendants. The first Appellate Court dismissed the suit.
The plaintiff has shown the boundaries of the suit schedule
property and the first Appellate Court has also dismissed
the suit on the ground of identity and possession of the
property. The first Appellate Court has not properly
appreciated the material on record and passed the
impugned judgment. Hence, the impugned judgment is
arbitrary and erroneous. Accordingly, he prayed to allow
the appeal.
10. Learned counsel for the defendants submits
that the land acquisition initiated by the acquiring
authority was dropped and further, the defendants are in
possession and enjoyment of the suit schedule property.
He submits that the boundaries mentioned in the plaint is
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part and parcel of Sy.No.182/1 of Hebbal village. He
submits that the said land belongs to the original
defendant as he had purchased the said land measuring 1
acre 13 guntas from one Thippegowda and after purchase,
the said land was renumbered as Sy.No.182/1 and out of
the said land, the defendants sold 18 guntas in favour of
different persons and some portion of the land was
acquired by the acquiring authority. He also submits that 2
½ guntas and 20 and ½ guntas was acquired and the
defendants received the compensation amount and
remaining land i.e., 12 guntas is in possession and
enjoyment of the defendants. Hence, he submits that
there is a dispute in regard to the identity and boundaries
of the suit property. The first Appellate Court considering
that there is a dispute in regard to the boundary and
identity, has rightly passed the impugned judgment. The
first Appellate Court after re-appreciating the entire
material on record was justified in passing the impugned
judgment. He submits that the impugned judgment passed
by the first Appellate Court is just and proper and does not
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call for any interference. Hence, he prayed to dismiss the
appeal.
11. Perused the records and considered the
submissions of learned counsel for the parties.
12. This court admitted the appeal on 10.12.2012,
to consider the following substantial question of law :
"Whether the lower appellate court is
justified in allowing the appeal preferred by the
defendant and setting aside the judgment and
decree passed by the trial Court wherein it has
decreed the suit of the plaintiff and granted
permanent injunction restraining the defendant
from interfering with the possession and
enjoyment over the suit schedule property on
the ground that the plaintiff has failed to prove
that the suit site is carved out of the acquired
land of the defendant ignoring the admission
made by the defendant in his written statement
that out of 1 acre 13 guntas purchased by him,
an extent of 0.23 guntas has been acquired by
CITB?"
13. Substantial question of law: It is the case of
the plaintiff that, the plaintiff is the absolute owner of the
suit schedule property as the same was purchased by him
from the Mysuru City Corporation on 29.08.1978 for
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valuable consideration and possession was delivered by
Mysuru City Corporation in favour of the plaintiff and name
of the plaintiff is appearing in the Corporation record. The
plaintiff applied for license for construction of a building on
the site. The corporation authorities after due enquiry
granted license for construction of building on the said site
and approved the plan. The plaintiff in order to establish
his case examined himself as PW.1 and he has reiterated
the plaint averments in the examination-in-chief and in
order to establish that he is the owner of the suit schedule
property produced allotment letter marked as Ex.P1, Ex.P2
is the possession certification which discloses that Mysuru
City Corporation delivered the possession of the suit
property in favour of plaintiff, Ex.P3 is the receipt for
having paid the property tax, Ex.P4 is the endorsement,
Ex.P5 is the tax paid receipt, Ex.P6 is the plan, wherein
the authorities have approved the proposed sanction plan,
Ex.P7 is the copy of affidavit of the plaintiff, wherein he
has stated in the said affidavit that he had acquired the
ownership and possession of site No.H8 measuring 60 feet
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X 50 feet and stated that he has not holding any other
vacant land or any other land with a building with a
dwelling unit covered under the Urban Land (Ceiling and
Regulation) Act, 1976 and Ex.P8 is the license issued to
the plaintiff for constructing building specified in the
sanctioned plan on site No.H-8, block No.5 situated at
Kumbar Koppal Devaraj Mohalla Mysuru, Exs.P9 to P14 are
the photographs which discloses that the plaintiff
commenced construction by digging pits, Ex.P9(a) to 14(a)
are the negatives, Ex.P15 is the gazette notification which
discloses that acquiring authority acquired the lands vide
notification dated 30.11.1967 which discloses that land
bearing Sy.No.182/1 was acquired under the said
notification, Ex.P16 is the award passed under Section 11
of the Land Acquisition Act, 1894, which discloses that the
land bearing Sy.No.182/1 measuring 1 acre 10 ½ guntas
was acquired and name of the defendants are shown as
kathedar and anubhavadar, Ex.P17 is the list of properties
acquired by the acquiring authority, Ex.P18 is the layout
plan, Ex.P18(a) is the H, block portion, Ex.P19 and 21 are
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the possession certificates, Ex.P20 is the allotment order,
Ex.P22 is the endorsement. Nothing has been elicited in
the course of cross examination except suggesting the
plaintiff is not the owner and in possession of the suit
schedule property. The said suggestion was denied by
PW.1 and further, the plaintiff has examined two witness
as PW.2 and PW.3, who have deposed that the plaintiff is
in possession and enjoyment of the suit schedule property
and the defendant has no concern over the suit schedule
property.
14. In rebuttal, the legal heir of the defendants was
examined as DW.1 and he has reiterated the written
statement averments in the examination in chief and
produced the documents i.e., Ex.D1 is the index of lands,
Ex.D2 is the copy of record of right, Ex.D3 and D4 are the
photographs, Exs.D5 to D7 are the tax paid receipts,
Ex.D8 and D9 are the RTC copies, Exs.D10 and 11 are the
photographs, Exs.D12 and D13 are N.C.R, Ex.D14 is the
photographs 6 in numbers. From the evidence of DW.1
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that defendants have purchased 1 acre 13 guntas and out
of the said extent 2½ guntas and another 20½ guntas was
acquired and the defendants sold 18 guntas to different
persons and the defendants are in possession to the
extent of 12 guntas of land in SY.No.182/1. But from the
perusal of Ex.P16 it discloses that the land was acquired
by the Government for Kumbar Koppal Layout measuring
1 acre 10 ½ guntas. If Ex.P16 is looked into and the
defence of the defendants that he has sold 18 guntas to
different persons and 2½ guntas and 20½ guntas were
acquired, the said defence does not matches with Ex.P16.
Further, the defendants have not produced any record to
show that the acquiring authority had dropped the
acquisition proceedings. From the perusal of the
documents produced by the plaintiff it discloses that the
site was granted in favour of the plaintiff by CITB under
Ex.P1 and possession certificate was issued as per Ex.P2,
which discloses that the plaintiff is in possession and
enjoyment of the suit schedule property. The defendants
have not challenged the award passed by the land
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acquisition officer acquiring Sy.No.182/1 measuring 1 acre
10½ guntas. The trial Court considering the over all
material evidence has rightly held that the plaintiff has
proved that he is in possession and enjoyment of the suit
schedule property and the defendants obstructed the
construction of the plaintiff over the suit schedule
property. The plaintiff has produced the license issued by
the competent authority granting a permission to the
plaintiff to construct building over site No.8 and plan was
approved. The defendants have not challenged the
construction permission issued to the plaintiff. The trial
Court was justified in decreeing the suit of the plaintiff.
The first Appellate Court considering the demand register
extract issued by the Tahsildar for year 1961 to 1970 has
come to a conclusion that the acquisition proceedings were
dropped. The said finding recorded by the first Appellate
Court is contrary to the records. The defendants have not
produced any record to establish that the acquisition
proceedings in respect of Sy.No.182/1 was dropped and in
the absence of the documents, the first Appellate Court
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has committed an error in recording the said finding and
passed the impugned judgment. Though the defendants
have denied the identity and possession of the suit
schedule property. The plaintiff has shown the boundaries
and site number in the suit schedule property. The said
boundary shown in the plan tallies with Ex.P2 i.e., the
possession certificate issued on 29.08.1978. The
defendants have not denied the contents of Ex.P2. Thus,
the suit schedule property can be identified by the
boundaries and site numbers in terms of Order VII Rule 3
of CPC. The first Appellate Court committed an error in
passing the impugned judgment. In view of the above
discussion, I answer substantial question of law in
negative.
15. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is allowed.
The judgment and decree passed by the
first Appellate Court in R.A.No.116/1993 dated
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28.02.2009, is set aside. Consequently, the
judgment and decree passed by the trial Court
in O.S.No.582/1982 dated 26.02.1993, is
restored.
No order as to the costs.
SD/-
(ASHOK S. KINAGI)
JUDGE
RD/ssb
