Karnataka High Court
Veeranagouda S/O Rudragouda vs Shadaksharappa S/O Veerabhadrappa ... on 23 November, 2024
-1-
NC: 2024:KHC-D:17109
RSA No. 100755 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100755 OF 2014 (DEC/INJ)
BETWEEN:
SRI. VEERANAGOUDA S/O. RUDRAGOUDA,
AGED ABOUT 54 YEARS, OCC. AGRICULTURE,
R/O. ARAL VILLAGE, TQ. GANGAVATHI,
DIST. KOPPAL-583 227.
... APPELLANT
(BY SRI. B. SHARANABASAWA, ADVOCATE)
AND:
1. SHADAKSHARAPPA
S/O. VEERABHADRAPPA HOGETOPPAL,
SINCE DECEASED BY HIS LRS.,
1(A). SRI. PAMPANNA S/O. LATE SHADAKSHARAPPA,
AGED ABOUT 42 YEARS, OCC. AGRICULTURE,
Digitally
signed by
VISHAL
VISHAL
NINGAPPA
NINGAPPA
PATTIHAL 1(B). SRI. MALLIKARJUN S/O. LATE SADAKSHARAPPA,
PATTIHAL Date:
2024.11.26
10:58:07
+0530
AGED ABOUT 36 YEARS, OCC. KIRANA SHOP,
BOTH ARE R/O. ARAL VILLAGE,
TQ. GANGAVATHI, DIST. KOPPAL.
... RESPONDENTS
(BY SRI. ARVIND D KULKARNI, ADVOCATE FOR R1(A) AND R1(B))
THIS RSA IS FILED U/SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 28.08.2014 PASSED IN
R.A.NO.38/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
GANGAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 11.10.2012 AND THE DECREE
PASSED IN O.S.NO.255/2009 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND JMFC., GANGAVATHI, DISMISSING THE SUIT FILED FOR
DECLARATION AND INJUNCTION.
-2-
NC: 2024:KHC-D:17109
RSA No. 100755 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent findings of facts recorded by
the Courts below, the plaintiff is before this Court in this
Regular Second Appeal.
2. Parties herein are referred to as per the rank
before the trial Court for sake of convenience.
3. Suit for declaration and permanent injunction,
plot bearing VPC No.380 measuring 30X40 feet, situated
at Arahal village (hereinafter referred to as "Suit Property"
for short). The case of the plaintiff is that the VPC No.380
measuring 40x60 feet was allotted to the grandfather of
the plaintiff by the Tahsildar Gangavathi in the year 1981,
accordingly the grandfather of the plaintiff was the owner
in possession. The case of the plaintiff is that under the
family partition, the property had fallen to the share of
Veeranagouda s/o Rudragouda-the plaintiff and pursuant
NC: 2024:KHC-D:17109
to which on 04.05.2009, the plaintiff has sold an extent of
30X40 feet to one Sharanegouda Mali Patil under
registered sale deed and that the remaining 30X40 feet in
plot No.380 (suit Property), the plaintiff is the owner and
possessor of the suit property.
4. On notice the defendant appeared and filed his
written statement inter alia contending that the grant by
the Tahasildar Gangavathi in favor of the grandfather of
the plaintiff was set aside by the Competent Authority and
which is confirmed by the Appellate Authority in the year
1988 itself, and the plaintiff is neither the owner nor in
possession of the suit property. The defendant contended
that the suit property is the property of Gram Panchayat
and the defendant is in possession of the suit property.
5. The trial Court based on the pleadings framed
the necessary issues. In order to substantiate their claim
the plaintiff examined himself as PW1, four witnesses as
PW2 to PW5, marked documents at Ex.P1 to Ex.P23. On
NC: 2024:KHC-D:17109
the other hand the defendant examined himself as DW1,
marked documents at Ex.D1 to Ex.D9.
6. The trial Court on basis of pleadings, oral and
documentary evidence arrived at a conclusion that:
i. The plaintiff has failed to prove that he is in lawful
possession and enjoyment of the suit property.
ii. The plaintiff has failed to prove any interference by
the defendant.
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 appreciating entire oral and documentary evidence
affirmed the judgment and decree of the trial Court.
Feeling aggrieved, the plaintiff is before this Court.
8. Heard the learned counsel for the appellant and
learned counsel for the respondents and perused the
material on record.
NC: 2024:KHC-D:17109
9. The case of the plaintiff is that Tahasildar
Gangavathi allotted VPC No.380 measuring 40x60 feet in
favor of the grandfather of the plaintiff. The grant by the
Tahasildar Gangavathi was on 29.05.1981, the said Order
of grant was challenged by the Gram Panchayat in appeal
before the Assistant Commissioner, Koppal under Section
49, the Assistant commissioner set aside the Order of the
Tahasildar granting the property in favor of the
grandfather of the plaintiff at Ex.P22 and Ex.D2. Assailing
the Order of the Assistant commissioner, the grandfather
of the plaintiff preferred appeal before the Deputy
Commissioner, Koppal, the Deputy Commissioner, Koppal
under Ex.D3 confirmed the Order passed by the Assistant
Commissioner, Koppal. The Order of the Assistant
Commissioner, Koppal and the Deputy Commissioner,
Koppal is marked at Ex.D2 and Ex.D3 has attained finality,
and grant in favor of the plaintiff's grandfather is set aside
way back in the year 1988 itself. The trial Court, rightly
appreciating the entire oral and documentary evidence and
the Order passed at Ex.D2 and Ex.D3 arrived at a
NC: 2024:KHC-D:17109
conclusion that the grant in favor of the grandfather of the
plaintiff has been canceled and the plaintiff has failed to
prove his ownership over the suit property.
10. The plaintiff contented that though the grant is
canceled, plaintiff is in possession of the suit property, the
suit property is an open site, no materials are forthcoming
to indicate the use of the suit property in any manner by
either side, the law is well settled that if the suit property
is a vacant site, which is not physically possessed, used or
enjoyed, then the principle is that "possession follows
title". The plaintiff has failed to establish his title of the
suit property to enable the Court to hold his possession
over the suit property, which is rightly assessed by the
trial Court.
11. The First Appellate Court being the last fact
finding Court has rightly appreciated the entire oral and
documentary evidence and has arrived at a conclusion that
the plaintiff has failed to establish his title over the suit
property in light of the cancellation of the grant and also
NC: 2024:KHC-D:17109
his possession over the suit property. The manner in which
the Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that the concurrent findings of facts recorded by the
Courts below does not want any interference under
Section 100 CPC and no substantial question of law arises
for consideration in the present 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.
Sd/-
(JUSTICE K.S.HEMALEKHA)
AT
CT:PA
