Karnataka High Court
Havappala Thirukappa vs Smt B Annapurnamma on 27 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1877 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1877 OF 2018 (DEC/INJ)
BETWEEN:
1. HAVAPPALA THIRUKAPPA
S/O. LATE SRI HANUMAPPA,
AGED ABOUT 68 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TOWN,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
2. HAVAPALA BHARAMAPPA
S/O. LATE SRI HANUMAPPA,
AGED ABOUT 66 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TOWN,
HARAPANAHALLI TALUK,
Digitally signed DAVANAGERE DISTRICT-583131
by DEVIKA M ...APPELLANTS
Location: HIGH
COURT OF (BY SRI. RAGHAVENDRA RAO K., ADVOCATE)
KARNATAKA
AND:
1. SMT. B. ANNAPURNAMMA
W/O. LATE SRI BIDARI MALLIKARJUNAPPA,
AGED ABOUT 60 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
2. K.B. DEVARAJ
S/O. LATE SRI BIDARI MALLIKARJUNAPPA,
AGED ABOUT 43 YEARS,
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RSA No. 1877 of 2018
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
3. K.B. SURESH
S/O. LATE SRI BIDARI MALLIKARJUNAPPA,
AGED ABOUT 39 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
K.B.MAHESH
SINCE DEAD BY HIS LRS.,
RESPONDENT NO.4 & 5.
4. SMT. K.B.LATHA,
W/O. LATE SRI K.B. MAHESH,
AGED ABOUT 33 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
5. K B SANCHIT
S/O. LATE SRI K.B. MAHESH,
AGED ABOUT 13 YEARS,
R/AT KANCHIKERE VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT-583131
SINCE MINOR REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER SMT.K.B.LATHA,
WHO IS RESPONDENT NO.4
...RESPONDENTS
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 02.06.2018
PASSED IN R.A.NO.8/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., HARAPANAHALLI DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
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RSA No. 1877 of 2018
19.04.2014 PASSED IN O.S.NO.135/2008 ON THE FILE OF THE
CIVIL JUDGE, HARAPANAHALLI.
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 appellants.
2. Learned counsel appearing for the appellants would
submit that both the Courts have held that plaintiffs have not
proved the title and once the title has not been proved,
granting of injunction in favour of the plaintiffs is erroneous.
3. Learned counsel for the appellants, in support of
her argument, relied upon the judgment of the Apex Court in
PADHIYAR PRAHLADJI CHENAJI (DECEASED) THROUGH
LEGAL REPRESENTATIVES VS. MANIBEN JAGMALBHAI
(DECEASED) THROUGH LEGAL REPRESENTATIVES AND
OTHERS reported in (2022) 12 SCC 128. The counsel
brought to notice of this Court Para Nos.24 and 26 contending
that once the Court comes to the conclusion that title has not
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been proved, granting of injunction in favour of the plaintiffs is
not sustainable in law.
4. Having heard the learned counsel for the appellants
and the principles laid down in the judgment of the Apex Court
referred (supra) and also considering the material on record,
the Trial Court while answering issue Nos.2, 3 and 4 in Para
Nos.17 to 19 with regard to the possession, taken note of the
admission in the written statement as well as in the chief
evidence of D.Ws.2, 3 and 4, wherein categorical admission is
given with regard to the possession of the plaintiffs as well as
with regard to the fact that plaintiffs and their father were
looking after the suit schedule property. The Trial Court also
taken note of the documents at Exs.P1 to P8 i.e., RORs of the
suit land for the year 1968-69 to 2007-08. The said RORs are
standing in the name of Bidari Mallikarjunappa as cultivator of
the suit land. The documents at Exs.P18 and P19 also show
that plaintiffs have paid revenue kandayam to the Government
in respect of the suit land.
5. The Trial Court also taken note of both oral and
documentary evidence placed on record that plaintiffs are in
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exclusive possession and enjoyment of the suit schedule
property and while answering issue No.4, taken note of illegal
interference and obstruction caused by the appellants herein
over the suit land and at that time, complaint was also filed and
endorsements given by the concerned police are marked as
Exs.P13 to P16. The documents at Exs.P12 to 16 are also taken
note by the Trial Court while answering issue No.4 in the
'affirmative' and not granted the relief of declaration and
granted only permanent injunction, based on the admission as
well as the documentary evidence available on record as on the
date of filing of the suit.
6. The First Appellate Court also not committed any
error and confirmed the judgment of the Trial Court and while
confirming the same, extracted the admission on the part of
D.Ws.2 to 4 in Para No.22 and also taken note of the
documents at Exs.P1 to P8 as well as Exs.P18 and P19 i.e., the
tax paid receipts and considering the possession of the plaintiffs
from 1968 and also the documents at Exs.P13 to P16,
complaint regarding interference, confirmed the judgment of
the Trial Court and passed a well reasoned order stating that
plaintiffs' father was in possession of suit land since 1968 to
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their knowledge and they are well aware about this fact. They
are also well aware of the fact that RORs of the suit land are
also standing in the name of late Mallikarjunappa as cultivator
of the suit land which is evident from the documents at Exs.P8
and P9. The First Appellate Court also taken note of both oral
and documentary evidence placed on record that the plaintiffs
are in exclusive settled possession and enjoyment of the suit
land and taken note of the interference by the appellants herein
and at that time, complaint was given in terms of the
documents at Exs.P13 to P16 and not granted the relief of
declaration and granted only permanent injunction, based on
the admission as well as the documentary evidence available on
record as on the date of filing of the suit. They are also well
aware of the fact that RORs of the suit land are also standing in
the name of late Mallikarjunappa and no action was taken by
the defendants to delete the name of late Mallikarjunappa in
RORs of suit land and not taken any due course of law to take
possession of suit land neither from late Mallikarjunappa nor
from plaintiffs. Hence, concurred with the judgment of the Trial
Court.
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7. Even considering the principles laid down in the
judgment of the Apex Court referred by the learned counsel for
the appellants also, the same is with regard to the fact that
plaintiffs failed to prove the cancellation of the sale deed and
factual aspects of the present case is different from the
judgment referred by the learned counsel for the appellants.
When the material available on record clearly discloses that the
plaintiffs were having knowledge about the possession of the
suit land by their father and the defendants have not taken any
action to dispossess them i.e., neither the father of the
plaintiffs i.e., late Mallikarjunappa nor the plaintiffs, since oral
and documentary evidence discloses their settled possession
from 1968 onwards. Hence I do not find any error committed
by the Trial Court in granting the relief of permanent injunction
even though declaratory relief is not granted. Therefore, the
judgment of the Apex Court referred by the learned counsel for
the appellants will not come to the aid of the appellants and I
do not find any merit in the appeal to frame substantial
question of law against the concurrent finding which is given by
both the Courts based on the material available on record and
question of invoking Section 100 of CPC does not arise.
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8. In view of discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
ST
