Karnataka High Court
Laxman S/O Rama Pujari vs 1A. Smt. Sushila W/O Neelagouda Patil on 13 November, 2024
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RSA No. 100113 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100113 OF 2018 (INJ)
BETWEEN:
LAXMAN S/O. RAMA PUJARI,
AGE: 60 YEARS,
OCC: AGRICULTURE AND PUJARI,
R/O: JALALPUR, TQ: RAIBAG-591 317,
DIST: BELAGAVI.
... APPELLANT
(BY SRI. S.L. MATTI, ADVOCATE)
AND:
Digitally
signed by
VISHAL
1. YALAGOUDA @ NEELAGOUDA IRAGOUDA PATIL,
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
SINCE DECEASED BY HIS LRS.,
2024.11.20
12:06:38
+0530
1A. SMT. SUSHILA W/O. NEELAGOUDA PATIL,
AGE: 67 YEARS, OCC: HOUSEWIFE,
R/O: PATIL GALLI, JALALPUR VILLAGE,
TQ: RAIBAG-591 317,
DIST: BELAGAVI.
1B. TAYAGOUDA S/O. NEELAGOUDA PATIL,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, JALALPUR VILLAGE,
TQ: RAIBAG-591 317,
DIST: BELAGAVI.
1C. CHANAGOUDA S/O. NEELAGOUDA PATIL,
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RSA No. 100113 of 2018
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, JALALPUR VILLAGE,
TQ: RAIBAG-591 317,
DIST: BELAGAVI.
1D. IRAGOUDA S/O. NEELAGOUDA PATIL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: PATIL GALLI, JALALPUR VILLAGE,
TQ: RAIBAG-591 317,
DIST: BELAGAVI.
2. MALAGOUDA IRAGOUDA PATIL,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: JALALPUR, TQ: RAIBAG-591 317,
DIST: BELAGAVI.
3. BASAGOUDA IRAGOUDA PATIL,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: JALALPUR, TQ: RAIBAG-591 317,
DIST: BELAGAVI.
4. DAREPPA IRAGOUDA PATIL
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: JALALPUR, TQ: RAIBAG-591317,
DIST: BELAGAVI.
... RESPONDENTS
(BY SRI. SHRIHARSH A NEELOPANT, ADVOCATE FOR R1(A-D)
AND R3 AND R4; R2-NOTICE IS HELD SUFFICIENT)
THIS RSA IS FILED U/SEC.100 R/W. ORDER 41 RULE 1
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
02.11.2017 PASSED IN R.A.NO.929/2009 ON THE FILE OF THE
IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 02.09.2003 PASSED IN O.S.NO.202/1999
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.),
RAIBAG, DISMISSING THE SUIT FILED FOR PERMANENT AND
MANDATORY INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100113 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Plaintiff is before this Court in the regular second
appeal, assailing the concurrent findings of facts recorded
by the Courts below, wherein, it was held that the plaintiff
has failed to prove that the defendants have encroached
upon the suit property and dismissed the suit of the
plaintiff for permanent injunction.
2. Parties herein are referred to as per the rank
before the trial Court for sake of convenience.
3. The case of the plaintiff is that the suit property
originally was a consolidated VPC No.201 totally
measuring East-West 170 X 170 feet, later VPC came to
be divided as VPC Nos.201 and 201/1, wherein, the house
of the plaintiff is situated. The case of the plaintiff is that
the defendants are the owners of VPC Nos.284 and 204
towards Northern and Western side of the plaintiff's
property, dividing the property of the plaintiff and
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defendants there is a road, and the defendants have
encroached upon the road causing interference to the
devotees to approach the deity situated in the suit
property.
4. On notice the defendants appeared and filed
their written statement denied the plaint averments inter
alia contended that in VPC No.201/1 Yallamma Temple is
situated and occupied by a large number of public. The
defendants specifically denied the construction of latrine
and bathroom and about any encroachment as alleged by
the plaintiff.
5. The trial Court based on the pleadings framed
necessary issues. In order to substantiate their claim the
plaintiff examined himself as PW1, marked documents at
Ex.P1 to Ex.P5. On the other hand defendant No.3
examined himself as DW1, three witnesses as DW2 to
DW4 and marked documents at Ex.D1 to Ex.D16.
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6. The trial Court based on pleadings, oral and
documentary evidence arrived a conclusion that:
i. The plaintiff has proved that he is the absolute
owner of VPC No.201 and not the entire suit
schedule property i.e., VPC No.201/1.
ii. The plaintiff has failed to prove the interference
by the defendants.
By the judgment and decree the trial Court dismissed
the suit of the plaintiff.
7. Feeling aggrieved, the plaintiff preferred appeal
before the First Appellate Court. The First Appellate Court
while re-appreciating the entire oral and documentary
evidence, independently, framed the following points for
consideration:
"1. Whether the appellant has made out sufficient
ground to produce documents as additional evidence
as prayed in IA No. IV?
2. Whether the plaintiff has proved that he is the
absolute owner and in possession of suit property
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bearing VPC Nos.201 and 201/1 of Jalalpur village
as on the date of suit?
3. Whether the plaintiff has proved the alleged
encroachment and interference by the defendants?
4. Whether the judgment and decree of the lower
court is illegal, perverse and calls for interference by
this court?
5. What order?"
8. The First Appellate Court based on pleadings,
oral and documentary evidence arrived a conclusion that:
i. The plaintiff has proved that he is the absolute
owner and in possession of suit property
bearing VPC Nos.201 and 201/1 of Jalalpur
village as on the date of the suit.
ii. The plaintiff has failed to prove the alleged
encroachment and interference by the
defendants.
9. Feeling aggrieved, the plaintiff is before this
Court in the regular second appeal, no appeal is preferred
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by the defendants either against the judgment and decree
in the Original Suit or the judgment and decree of the First
Appellate Court holding that the plaintiff is owner in
possession of VPC Nos.201 and 201/1.
10. Heard the learned counsel for the appellant and
learned counsel for the respondents and perused the
material on record.
11. Suit property is described as - "consists of a
house bearing VPC Nos.201 and 201/1 of Jalalpur, is given
to Shree. Yallamma Deity, Yallamma Paduka, Bharamdev
Deity, Matangi Deity etc., is an open space measuring 170
feet East-West and 170 feet South-North including house
of the plaintiff, then an encroached road to the extent of
10 feet running North-South shown in Block line on
Eastern side of VPC No.284 and East-West road running
up to the plaintiff's property at point "BC" has been raised
to the height of three feet by putting stones, mud and two
windows, one door frame fixed on the Southern side of
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VPC No.284 just abutting the open space belonging to the
plaintiff as mentioned above.
12. IA No.1/2018 is filed seeking to produce
additional documents at Sl.Nos.1 to 11 annexed to the
application. The document sought to be produced are to
indicate that the plaintiff is owner of VPC Nos.201, which
was totally measuring 170 X 170 feet. Document No.11,
which is produced along with the application is marked as
Ex.P1 before the trial Court, which is the order passed by
the Charity Commissioner Belgaum, wherein, it was held
that the suit property is not trust property of Yallamma
Devi temple considering these aspects, the trial Court held
that the plaintiff is the owner of VPC No.201. In light of
the same, the documents produced by the appellant has
already fallen for consideration before the trial Court. The
said documents are not necessary for adjudication in this
appeal. Accordingly, IA No.1/2018 stands disposed of.
13. The Court Commissioner was appointed by the
Court and he submitted the report. The Commissioner
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report indicated that there is no obstruction/encroachment
as alleged by the plaintiff and the trial Court on
appreciating the evidence and the Court Commissioner's
report arrived at a conclusion that the plaintiff has failed to
prove any obstruction/encroachment by the defendants
and dismissed the suit. The First Appellate Court, while
appreciating the entire oral and documentary evidence
held that the plaintiff is the owner of VPC Nos.201 and
201/1 and modified the finding recorded by the trial Court
regarding the exclusive right of the ownership over VPC
No.201 only. However observed that the plaintiff has failed
to establish any encroachment upon the road by the
defendants and also parking of vehicles as alleged by the
plaintiff. The manner in which the Courts below have
assessed the entire oral and documentary evidence and
arrived at a conclusion that the plaintiff has failed to
establish any encroachment/obstruction by the
defendants, this Court is of the considered opinion that the
same does not warrant any interference under Section 100
CPC and no substantial question of law arises for
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consideration in this appeal and this Court pass the
following:
ORDER
i. The regular second appeal is hereby dismissed.
ii. The judgment and decree of the Courts below
stands confirmed.
In light of disposal of this appeal pending IAs' if any
does not survive for consideration.
Sd/-
(JUSTICE K.S.HEMALEKHA)
AT
CT:PA
