Karnataka High Court
Mr Jeenaraj vs Nazeer Ahamed on 29 May, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC:18049
RSA No. 1387 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 1387 OF 2014 (DEC/INJ)
BETWEEN:
1. MR JEENARAJ
S/O VARADAPPAIAH
AGED ABOUT 51 YEAS
2. DHARMAPAL SINCE DECEASED BY HIS LRS
2(a) SMT PADMASHREE
W/O LATE DHARMAPAL
AGED ABOUT 56 YEARS
2(b) SRI VIDHYANANDA
S/O LATE DHARAMAPAL
AGED ABOUT 38 YEARS
2(C) SMT PADMAJA @ PADMAVATHI
Digitally signed
D/O LATE DHARMAPAL
by AGED ABOUT 41 YEARS
NARAYANAPPA
LAKSHMAMMA
APPELLANTS 1 TO 2(C)
Location: HIGH
COURT OF R/O SOMPURA VILLAGE
KARNATAKA HALSOR POST
TARIKERE TALUK-577228.
CHIKMAGALUR DISTRICT.
...APPELLANTS
(BY SRI. UMESH B.N., ADVOCATE)
AND:
1. NAZEER AHAMED
S/O LATE MOHAMMED HAYATH
-2-
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RSA No. 1387 of 2014
AGED ABOUT 68 YEARS
R/A KESARAGOPPA GATE
HALSOR POST
TARIKERE TALUK-577228.
CHIKMAGALUR DISTRICT
...RESPONDENT
(BY SRI. Y.S.SATHISH CHANDRA, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 16.7.2014 PASSED IN
R.A.NO.28/2008 ON THE FILE OF I ADDL. DISTRICT JUDGE,
CHIKMAGALUR, PARTLY ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 16.4.2008 PASSED
IN O.S.NO.40/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN)
& PRL. JMFC., TARIKERE.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The defendants in O.S.No.40/2004 who were the
respondents in R.A.No.28/2008 are before this Court in
second appeal seeking the following reliefs:
a) Set aside the judgment and decree dated
16th July 2014 passed by the 1st Additional
District Court Chikmagalur in RA
No.28/2008, and be pleased to confirm the
dismissal of suit vide judgment and decree
dated 16/04/2008 passed in OS No.
40/2004 by the Civil Judge (Sr.Dn) & PRL
JMFC at Tarikere.
b) Pass any such other orders/reliefs as deems
fit under the facts and circumstances of the
case.
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2. The suit in O.S.No.40/2004 had been filed by the
respondent herein seeking for the following reliefs:
a) For declaration to declare that the plaintiff is
the absolute owner of the 'B' schedule property
b) For consequential relief of permanent injunction
against the defendants, their men or agents,
restraining them from trespassing or interfering
with the peaceful possession and enjoyment of
the "B" schedule property by the plaintiff and
disturbing plaintiff's possession over the same.
c) For court costs and such other reliefs as this
Hon'ble court may deem fit to grant.
3. The aforesaid declaration was sought for in respect of 25
guntas of kharab land said to be abutting and forming
part of land in Survey No.87 situated at Lakkavalli Hobli,
Tarikeri Taluk, Bengaluru which measured 4 acres.
Consequent to the relief for declaration of title, a relief for
injunction restraining the defendants was sought for.
4. The trial Court vide its judgment dated 16.04.2008
dismissed the suit by holding that the plaintiff had not
established any title over the alleged 25 guntas of kharab
land and they have not even established the existence of
the kharab land abutting and forming part of the land in
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Survey No.87 and as such came to a further conclusion
that there being no kharab land and there being no
documents which had been produced to establish either a
title or possession of a plaintiff the suit was not
maintainable and as such dismissed the suit.
5. Challenging the same, the plaintiff filed an appeal in
R.A.No.28/2008 the first appellate Court vide its order
dated 16.07.2014 partly allowed the appeal granting an
order of injunction restraining the defendants from
interfering with the possession of the plaintiff as regard
20 guntas of land said to be kharab land situated on
eastern side of Survey No.87.
6. The first appellate Court based the same on Ex.P8 being a
survey sketch prepared by the surveyor indicating that
the plaintiff was in possession of 20 guntas of land
situated on the Eastern side of Survey No.87. It is
challenging the same, the defendants are before this
Court.
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7. The submission of Sri.Narayanareddy, learned counsel for
the appellant is that the First Appellate Court could not
have granted a relief of injunction by relying on Ex.P8
which came into existence subsequent to filing of the suit.
Ex.P8 refers to alleged kharab land situated on the
eastern side when the basis of the claim made by the
plaintiff in the suit was that the kharab land was situated
on the Northern and southern side of the land purchased
by the defendants which has been subsequently
partitioned between defendant Nos.1 and 2. It is further
contended that all the averments made by the plaintiffs
being with regard to the alleged kharab land on the
Northern and southern side and possessory right has
been alleged in respect of this Northern and southern side
and no averment has been made as regard either
possession or interference with 20 guntas of land on the
eastern side. The First Appellate Court ought not to have
considered Ex.P8 to partly allow the appeal and ought to
have dismissed the appeal.
8. The contention of the learned counsel for the respondent
is that Ex.P8 would establish the possession of the
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plaintiff in respect of 20 guntas of land. There being no
right with the defendants either as regard to ownership or
possession in respect of 20 guntas situated on the
eastern side of Survey No.87, there can be no grievance
of the appellant in respect of the said land.
9. Having heard both the counsels, I am of the considered
opinion that there is no substantial question of law which
arises for being framed or considered by this Court in this
second appeal. Though there are divergent findings by
the trial Court and the First Appellate Court, the finding is
with respect to the fact of possession and not as regard
to any legal issue. Any aspect which does not give rise to
a substantial question of law, any divergence in respect
of a finding of fact cannot give rise to a second appeal,
which can only be restricted to one which rises a
substantial question of law.
10. In the present appeal, the only grievance that could be
made out of the appellants/defendants is that the claim of
the plaintiff being as regard possessory right on Northern
and Southern side there being no kharab lands situated
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at Northern and Southern side, there may be a possibility
of the plaintiff at a later point of time by relying on the
judgment of the First Appellate Court in R.A.No.28/2008
rise a claim as regard to the land which is owned and
possessed by the defendants.
11. This grievance or apprehension on part of the
defendants/appellants would have no basis. Since, the
first appellate Court has categorically held that the
injunction is with respect to the 20 guntas situated on the
eastern side of the land of the respondent/plaintiff of
Survey No.87. The land of the appellants/defendants
being situated on the western side of the land of the
plaintiff/respondent. The defendants not having any right
as regard any land situated on the eastern side of the
land of the plaintiff, the plaintiff cannot have any
grievance nor can the plaintiff assert any right on
northern or southern side of the land of the
appellants/defendants on the basis of any kharab land
since the plaintiff has failed to establish any kharab land.
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12. With the above observation, the appeal stands
disposed at the admission stage.
Sd/-
JUDGE
HB
