Karnataka High Court
Ganada Shivalingappa S/O Ningappa vs Smt. Marilingappanavar Ningavva W/O ... on 28 June, 2024
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RSA No. 100598 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100598 OF 2018 (INJ-)
(INJ
BETWEEN:
1. GANADA SHIVALINGAPPA S/O NINGAPPA
AGE: 46 YEARS, OCC: AGRICLTURE,
R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
2. GANADA RAMESH S/O NINGAPPA
AGE: 46 YEARS, OCC: AGRICLTURE,
AGRICLTURE
R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
...APPELLANTS
(BY SRI R.I. ZIRALI, SANDESH P. NADIGER
AND SHIVARAJ BALLOLI, ADVOCATES)
Digitally signed
by SAROJA AND:
HANGARAKI
Location: HIGH 1. SMT. MARILINGAPPANAVAR NINGAVVA
COURT OF W/O KENCHAPPA, AGE: 66 YEARS,
KARNATAKA OCC: AGRICLTURE, R/O: HOLALU,
DHARWAD
BENCH HUVINAHADAGALI TALUK,
DHARWAD DIST: BALLARI--583101.
2. SRI MARILINGAPPANAVAR ASHOKA
S/O KENCHAPPA, AGE: 45 YEARS,
OCC: AGRICLTURE, R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
3. SRI MARILINGAPPANAVAR MANJUNATH
S/O KENCHAPPA, AGE: 41 YEARS,
OCC: AGRICLTURE, R/O: HOLALU,
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RSA No. 100598 of 2018
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN
R.A.NO.82/2018 ON THE FILE OF ITINERATING SENIOR CIVIL JUDGE
AT
T HUVINAHADAGALI CONFIRMING THE JUDGMENT AND DECREE
DATED 14.12.2016 PASSED IN O.S.NO.108/2011 ON THE FILE OF
CIVIL JUDGE AND JMFC, HUVINHADAGALI BY ALLOWING THE TOP
NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSIO
ADMISSION,
N, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the plaintiffs under
Section 100 of Code of Civil and Procedure, 19081 challenging
the judgment and decree dated 28.04.2018 passed in R.A
No.82/2018 by the Itinerating Senior Civil Judge,
Huvinahadagali2 and the judgment and decree dated
14.12.2016 passed in O.S No.108/2011 by the Civil Judge and
JMFC3, Huvinahadagali, whereu
whereunder,
nder, the suit for injunction filed
by the plaintiffs has been dismissed with cost by the Trial
Court, which has been affirmed by the First Appellate Court.
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
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2) The parties will be referred to as per their ranking
before the Trial Court, for the sake of conven
convenience.
3) It is the case of the plaintiffs that the suit property is
an open site bearing door No.401/A situated at ward
ard Nos.7,
No 8
and 9 of Holalu village and was previously open site of
Government Paramboke land. That the head of the family of
the plaintiffs is Ganada Ningappa S/o Pakkerappa and was in
enjoyment of the property during his lifetime and his name was
entered in the records maintained by the Panchayath. That
after
fter his death, his wife Smt.Gananda Lakkavva continued the
possession of the property w
with
ith her sons and her name was
registered in the records of the panchayath. That Ganada
Lakkavva, mother of the plaintiffs is also deceased
deceased, but her
name continues in the panchayath records. That the plaintiffs
continued in possession and became absolute ow
owners
ners of the
suit property.
4) It is the further case of the plaintiffs that the door
number of the suit property has been changed by the PDO of
Gram Panchayath as 401/A in the general body meeting held
on 25.11.2013 and the resolution to this effect was passed.
passe
That previously due to a mistake of the panchayath, his
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number was given as 401 and later the number has been given
as 401/A. That the defendants door numbers are 401 and 402,
their houses are situated towards the eastern side of the suit
property. That the suit property is different from the property
of the defendants and that the defendants have no manner of
right or interest in the suit property. That on 06.10.2011 when
the plaintiffs went to the suit property to clear the dung pit, the
defendants all of a sudden came there and prevented the
plaintiffs from clearing the suit house. Since,, the defendants
are trying to disturb the plaintiffs possession of the suit
property, and in order to protect their possession, the plaintiffs
filed a suit for injunction.
5) The defendants entered appearance through their
counsel and defendants No.2 and 3 have filed separate written
statement. Defendant No.1 adopted the written statement of
defendant No.2.
6) The defendant No.2 denied the plaint averments and
contended that the plaintiffs are not the owners in possession
of the suit property and they have no rights in the same. That
the plaintiffs and their father Ganada Ningappa and panchayath
authorities have created panchayath records of site No.101
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without any title. That the defendants are having an open
house site bearing No.402 in ward Nos.7, 8 and 9 of Holalu
panchayath and it is standing in the name of their father
Marilinappanavar Kenchappa
Kenchappa and he is the owner of the said
suit property. That their father died about two years prior to
the suit leaving the defendants as his legal heirs and they have
succeeded to his properties including site No.402. That the
defendants are in possession of the said house. That the
plaintiffs are laying false claim over the open site bearing
No.402 which belongs to the defendants. Hence, the defendant
No.2 sought for dismissal of the suit.
7) The defendant No.3 filed a separate written statement
and also denied the plaint averments as also the case of the
plaintiffs that they are the owners of the suit property. It is the
case of the defendant that she along with her husband, the 1st
defendant and their father Marilingappanavar has been in
possession of the property
prop bearing No.402 since 50-60
60 years
and about two years ago the said Kenchappa having died
leaving behind the defendants as his legal heirs,
heirs they have
succeeded to the said properties along with the other
properties. That the plaintiffs have no right ove
overr the property of
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the defendants. That during pendency of the suit, the plaintiffs
have created property No.401 with the assistance of the
panchayath legal officers and in order to harass the defendants
they filed the suit. Hence, defendant No.3 also sought
sough for
dismissal of the suit.
8) The Trial Court
Court, consequent to the pleadings of the
parties framed the following issues:
i. "Whether the plaintiffs prove that they are in lawful
possession and enjoyment of the suit schedule
property as on the date of the suit?
ii. Whether
hether the plaintiffs further prove that the
defendants
nts are interference
rence into the suit schedule
property?
iii. Whether the plaintiffs prove that they are entitled for
the relief as sought for?
iv. What order or decree?"
9) The plaintiff No.2 has been examined as PW.1 and two
witnesses as PW.2 and PW.3. Ex.P1 to Ex.P14 have been
marked in evidence. Defendant No.3 has been examined as
DW.1. Ex.D1 to Ex.D26 have been marked in evidence.
10) The Trial Court by its judgment and decr
decree
ee dated
14.12.2016, dismissed the suit with cost of ₹1,000/-.. Being
aggrieved, the plaintiffs preferred R.A No.82/2018.
No.82/2018 The
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defendants entered appearance in the same and contested the
said proceedings.
11) The First Appellate Court framed the following points
for consideration:
i. Whether the appellants/plaintiffs have proved that
their factum of the possession over the suit
property as well as alleged interference by the
defendants?
ii. Whether the impugned judgement and decree is
capricious, perverse, illegal and calls
calls the
interference by this court?
iii. What order?
12) The First Appellate Court by its judgment dated
28.04.2018, dismissed the appeal and confirmed the judgment
and decree passed by the Trial Court. Being aggrieved, the
present second appeal is filed.
13) Learned counsel for the appellants vehemently
contends that both the Courts have concurrently erred in
dismissing the suit and that the plaintiffs having produced the
tax paid receipt and photographs as also adduced the
testimony of DW.3-- the Panchayath Development
nt Officer, which
has not properly been considered by both the Courts which
ought not to have dismissed the suit.
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14) The submission of the learned counsel for the
appellants has been considered and material on record has
ha
been perused.
15) It is forthcoming that the Trial Court, upon an
appreciation of the oral and documentary evidence, has noticed
that the measurements and boundaries are not tallying and the
description of the suit property in the documents produced by
the plaintiffs are different from the description of the suit
property described in the plaint. Hence, the Trial Court has
recorded a finding that the plaintiffs have failed to demonstrate
that they are in possession of the suit property.
16) The First Appellate Court upon a re
re-appreciation
appreciation of
orall and documentary evidence on record has noticed that the
documents produced by the plaintiffs reflect a different
property number whereas the description of the suit property
and case of the plaintiffs do not tally. The First Appellate Court
has noticed that
hat in Ex.P1, the property number is shown as
No.23 whereas the suit property No.401/A; that in Ex.P9 and
Ex.P10, the property number is shown as 6/401 and however
the suit properties is 401/A. In the said manner, the First
Appellate Court has also recorde
recorded
d findings that the documents
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produced by the plaintiffs themselves do not demonstrate that
they are in possession of property bearing No.401/A and hence,
the question of granting an order of injunction as sought for by
the plaintiff does not arise.
17) Both the
he Courts having recorded concurrent findings
of fact that the document
documents produced by the plaintiffs
themselves does not state the exact number of the suit
property and the plaintiffs having not adduced any evidence
with regard to explaining
expl the said property
ty number. Hence,
both the Courts are justified in holding that the plaintiffs have
not demonstrated that they are in possession of the suit
property. Having regard to the fact that the plaintiffs have not
demonstrated that they are in possession of the su
suit
it property,
both the Courts have rightly refused to grant an injunction as
sought for by the plaintiffs.
18) The Trial Court has appreciated the records produced
by the plaintiffs including the oral evidence of PW.3, the Officer
of the Panchayath while considering the case of the plaintiff
plaintiff.
There
here is no material to substantiate the contention that the
finding of the Trial Court is contrary to the oral or documentary
evidence on record.
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19) In view of the aforementioned, the appellants have
failed in demonstra
demonstrating
ting that any substantial question of law
arises for consideration in the present appeal. Hence, the above
appeal is dismissed as being devoid of merit at the stage of
admission itself.
Sd/-
JUDGE
PMP
CT:GSM
