Karnataka High Court
Shesha Bhatt vs Gajanana Narayana Bhatta H N on 30 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 364 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 364 OF 2018 (INJ)
BETWEEN:
1. SHESHA BHATT
S/O VENKATARAMANA BHATTA
AGED ABOUT 60 YEARS,
AGRICULTURIST,
R/O NAGARAHALLI,
BANANTHIKERE VILLAGE,
HUMCHA POST - 577 436
SHIVAMOGGA TALUK AND DISTRICT
...APPELLANT
(BY SRI UMESH MOOLIMANI FOR
SRI S.V.PRAKASH, ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. GAJANANA NARAYANA BHATTA H.N.
Location: HIGH S/O NAGENDRA BHATTA
COURT OF AGED ABOUT 75 YEARS,
KARNATAKA R/O HANIYA AT POST
HOSANAGARA TALUK-577 418
SHIVAMOGGA DISTRICT.
...RESPONDENT
(BY SRI N.G.SREEDHAR, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED 04.10.2017 PASSED IN
R.A.NO.54/2013 ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, SAGAR, DISMISSING THE APPEAL
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RSA No. 364 of 2018
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
28.02.2013 PASSED IN O.S.NO.100/2000 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, HOSANAGARA.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and also the learned counsel for
the respondent.
2. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of mandatory and
permanent injunction against the defendant that it is
contended that the plaintiff and defendant's father by
name Venkataramana Bhatta are the brothers. Further,
the plaintiff is the owner in possession and enjoyment of
the Nagarahalli (Bananthikere), Humcha Hobli,
Hosanagara Taluk measuring 2.27 acres. It is also
contended that in the year 1958, the plaintiff and
defendant's father have jointly purchased the suit schedule
property and other properties in Sy.No.20 and 21 of
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Nagarahalli village. It is contended that till 1977 they have
been jointly cultivating the said lands and after 1977 they
started to cultivate the said lands in the year 1999. The
plaintiff and defendant's father have executed a Jubani
Hissa Pathra and an extent of 2.27 acres in Sy.No.20 has
been fallen to the share of the plaintiff and an extent of 2
acres in the same survey number which is fallen to the
share of the defendant's father. It is contended that in the
plaintiff's property he has raised areca garden and on the
northern side he has raised paddy crops in the wet land.
The plaintiff's land is totally described as ABCD in the
rough sketch, ABEF is the wet land and CDEF is the areca
garden and open well in the plaintiff's property is
described as GHEF. It is contended that after the said
partition, the revenue records got mutated in the name of
the plaintiff. The Defendant's areca garden is shown as
RSTU, wet land is shown as PQTU in the rough sketch
annexed to the plaint. It is contended that there is a main
water channel in between the plaintiff and defendant's
property shown as ADSQ and that runs from Bhanatikere
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which is situated on the southern side of the lands of both
the parties. It is contended that the water channel flows
from south to north measuring 3 feet width and 4-5 feet
depth. It is also contended that the defendant's land is
situated at a higher level than the land of the plaintiff. It is
contended that the defendant has taken up the work of
leveling his property and in the event, he has encroached
the channel as well as plaintiff's property to raise areca
plant by covering mud over the water channel, the
plaintiff's wet land including the open well situated
adjacent to the water channel. It is contended that the
defendant has put the mud on the channel which is
described as OUMN and the plaintiff has resisted the said
act of the defendant. It is contended that if the defendant
continued his illegal act, the plaintiff will be put to great
loss, hardship and inconvenience as the plaintiff will loose
his open well. It is contended that if the channel is closed,
excess waster during the rainy season will flow over the
land of the plaintiff and then the entire land of the plaintiff
will be damaged and ruined. Hence, the plaintiff has filed
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the suit seeking the relief of mandatory injunction against
the defendant. In pursuance of the suit summons, the
defendant appeared and filed written statement denying
all document claimed in the plaint. Even deny the
contention of land of the defendant in the higher level as
well as disputed the claim of the defendant.
3. The Trial Court having considered the pleadings
of the parties, formulated the point with regard to
whether the defendant had shift the mud on the channel
and plaintiff's land to some extent. Whether there is any
interference and allowed the parties to lead evidence and
accordingly PW1/plaintiff has been examined and got
marked the document Ex.P1 to Ex.P4. On the other hand
the defendant himself has been examined as DW1 and got
marked Ex.D1 to Ex.D4. The Trial Court also appointed the
Court commissioner and commissioner report is produced
before the Court and the same is also marked through the
Court Commissioner by name Sri.K.N.Prasanna who is the
surveyor. The Trial Court considering both oral and
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documentary evidence particularly the evidence of PW1 as
well as DW1, the admission of DW1 with regard to the
existence of channel and so also taken note of the
commissioner report particularly Ex.C9 and also Ex.C4-
Sketch and granted the relief of removing of mud which
was put in the channel and suit is decreed only in part and
also the defendant restrained by order of permanent
injunction from encroaching to the suit schedule property
in interfering with peaceful possession and enjoyment of
the specific performance in any manner marked as ADSQ
in the rough sketch and the plaintiff's land is shown as
ABCD of the suit sketch. Being aggrieved by the judgment
and decree of the Trial Court, an appeal is filed in
R.A.No.54/2013.
4. Having considered the grounds urged in the
appeal memo, the First Appellate Court also formulated
the point with regard to whether the plaintiff has proved
that the defendant had put mud on item No.1 of the plaint
schedule property and to the portion of the item No.2 of
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the plaint schedule property and also formulated the point
with regard to the lawful possession and enjoyment of the
item No.2 of the plaint schedule property as on the date of
the suit, whether the plaintiff has proved the alleged
interference by the defendant and answered the point
No.1 as partly in the affirmative and point Nos.2 and 3 as
affirmative and also comes to the conclusion that it does
not requires any interference of the Trial Court. Being
aggrieved by the concurrent finding, the present second
appeal is filed before this Court.
4. The main contention of the appellant's counsel
before this Court is that very suit itself is not maintainable.
The suit is filed for the relief of mandatory injunction and
ought to have filed the suit for the relief of declaration,
when the very item No.1 property is disputed. The counsel
would vehemently contend that both the Courts have
committed an error, hence this Court has to frame
substantial question of law with regard to non-
consideration of material on record and also the question
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of law with regard to filing of suit for declaration. In the
absence of declaration, there cannot be any order of
mandatory injunction. Hence, it requires interference and
frame the substantial question of law.
5. Per Contra, the counsel appearing for the
respondent/plaintiff would vehemently contend that the
Trial Court having taken note of particularly the admission
on the part of DW1 wherein he categorically admitted with
regard to the causing of obstruction and also in paragraph
No.21 taken note of there is a water channel in between
his property and also the plaintiff's property which is
constructed by stone and also taken note of the sketch
which has been produced by the plaintiff while filing the
suit demarcating the existence of the channel and also
taken note of the report of the commissioner particularly
Ex.C9, Ex.C4 and Ex.C8 and two commissioners have been
appointed i.e., one is an advocate another is taluk
surveyor. Both of them are ready to identify the existence
of channel in the property belongs to the plaintiff as well
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as the defendant and also the obstruction by the
defendant and in detail discussed the same and reasons
are given in paragraph No.29 considering the Ex.C4 sketch
as well as the evidence of CW1 in paragraph Nos.30 and
32, in detail discussed with regard to the Hissa patra and
rightly granted the relief of mandatory injunction.
6. The counsel would vehemently contend that
First Appellate Court also considered the grounds urged in
the appeal and formulated the point with regard to the
obstruction and interference caused by the defendant in
free flow of the water to the channel and also the lawful
possession and detail discussion was made by the First
Appellate Court elaborately and consider the same and
taken note of cross-examination on the part of the DW1,
particularly in paragraph No.17 with regard to the land of
plaintiff and defendant and also existence of channel and
also after giving of admission, immediately the DW1 in an
ingenious method denied the very earlier admission and
the same has to be discussed and also in paragraph No.18
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taken note of title deed of the suit survey number and also
the partition deed dated 02.06.1980 entered between the
plaintiff and father of the defendant and also existence of
both item Nos.1 and 2 of the suit schedule property and
discussed the same in detail. Hence, it does not requires
interference.
7. Having heard the appellant's counsel and also
the counsel appearing for the respondent and also
considering the material on record, the very specific case
of the plaintiff before the Trial Court that the defendant
had blocked the channel with respect to the land of
plaintiff and defendant and caused the obstruction. On the
other hand, the defendant had denied the total existence
of the item No.1 of the suit schedule property and also the
flowing of water through the said channel. The Trial Court
as well as the First Appellate Court taken note of the very
pleading and both oral and documentary evidence placed
before the Court and rightly pointed out the counsel
appearing for the respondent that the Trial Court taken
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note of the admission on the part of the DW1 who has
categorically admitted in the cross-examination that he
has leveled interface wherein the water is connected and
also categorically admitted that he has leveled by using
the mud and further he has admitted that there is a water
channel in between his land and also the property of the
plaintiff and channel is also constructed by stones and also
discussed with regard to the sketch of the plaintiff in
respect of item No.2 in paragraph No.24 and also Ex.C8
and Ex.C4 and commissioner is also appointed and both of
them have given the report particularly Ex.C9 is very clear
with regard to the existence of channel as well as blocking
of the channel and detail discussion was made particularly
in respect of marking of ADSQ in Ex.C8 with regard to the
item No.2 of the of suit schedule property of the plaintiff
and when there is a clear admission on the part of DW1
with regard to steps he has taken leveling of his property
and when there is a blockage, the Trial Court as well as
the First Appellate Court rightly taken note of both oral
and documentary evidence placed on record and comes to
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the conclusion that the defendant had indulged in blocking
of the channel and though the counsel would vehemently
contend that even the channel is in existence and there is
no any free flow of water and no explanation on the part
of the defendant with regard to the blocking of the channel
by putting the mud. Hence, the Trial Court rightly comes
to the conclusion that defendant has blocked the channel
by putting the mud on the channel and hence directed the
defendant to remove the same within two months and also
the other relief is granting is permanent injunction from
encroaching the suit schedule property or interfering in
any manner with the peaceful possession and enjoyment
of the water channel which is marked as ADSQ in the
rough sketch which has been filed by the plaintiff shown as
ABCD of suit sketch. The First Appellate Court also not
committed any error and in detail discussed in paragraph
No.17, the admission given by the DW1 in causing
interference and blocking of channel which is in existence
between the property of the plaintiff and defendant and
also DW1 categorically admitted the boundaries stated in
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the partition deed and no dispute with regard to the earlier
property purchased between the parties and they were in
joint enjoyment and subsequently they got partitioned the
property on 02.06.1990 and the same was taken place
between the plaintiff and father of the defendant, the
same is also discussed in paragraph No.18 of the
judgment of the First Appellate Court. Having considered
both oral and documentary evidence placed on record as
well as First Appellate Court, I do not find any error
committed by the Trial Court as First Appellate Court to
invoke substantial question of law. The very contention of
the appellant's counsel that ought to have sought for the
relief of declaration cannot be accepted and the existence
of property and also earlier it was in joint cultivation is
also not in dispute. When such being the case and the
relief is only sought for removal of the blocking of the
channel, under the circumstances, no need to file any suit
for the relief of declaration as contended by the appellant's
counsel. Hence, no ground, there cannot be any
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substantial question of law to be framed considering the
material on record.
8. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
RHS
