Karnataka High Court
Gulbarga Insturial Estate ... vs Syed Sadiq Ali S/O Karimsab Since Deased ... on 14 October, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 7240 of 2013
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 7240 OF 2013 (INJ)
BETWEEN:
GULBARGA INDUSTRIAL ESTATE
MANUFACTURERS ASSOCIATION
HAVING ITS REGISTERED OFFICE AT
INDUSTRIAL ESTATE, MSK MILLS ROAD,
GULBARGA,
REPRESENTED BY
ITS SECRETARY- 585 101.
...APPELLANT
(BY SRI R. J. BHUSARE, ADVOCATE)
Digitally signed by
AND:
SHIVALEELA
DATTATRAYA
UDAGI SYED SADIQ ALI S/O KARIMSAB
Location: HIGH SINCE DECEASED BY LRS.
COURT OF
KARNATAKA
1. SYED SALEEM S/O SYED SADIQ ALI,
AGE:56 YEARS, OCC: BUSINESS,
R/O. MSK MILLS ROAD, GULBARGA-585 101.
2. ASLAM S/O SYED SADIQ ALI
AGE: 56 YEARS, OCC: BUSINESS,
R/O. MSK MILLS ROAD, GULBARGA-585 101.
3. NOOR S/O SYED SADIQ ALI
AGE: 56 YEARS, OCC: BUSINESS,
R/O. MSK MILLS ROAD, GULBARGA-585 101.
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RSA No. 7240 of 2013
4. KARNATAKA STATE SMALL INDUSTRIAL
DEVELOPMENT CORPORATION LTD. INDUSTRIAL
ESTATE
MSK MILL ROAD, GULBARGA- 585 101.
...RESPONDENTS
(BY SMT. NEEVA M. CHIMKOD, ADVOCATE FOR R1 TO R3;
SRI YASHWANT S. YATANOOR ADVOCATE FOR R4;
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 14.08.2009 PASSED IN
O.S.NO.773/1990 BY THE PRINCIPAL CIVIL JUDGE(JR.DN),
GULBARGA AND WHICH IS CONFIRMED IN RA.NO.124/2009
VIDE JUDGMENT DATED 26.03.2013 BY THE II ADDITIONAL
SENIOR CIVIL JUDGE, GULBARGA AND CONSEQUENTLY
DISMISS THE SUIT OF THE PLAINTIFFS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
This appeal is by the defendant No.2 aggrieved by
the judgment and decree dated 14.08.2009, passed in
O.S.No.773/1990 on the file of Principal Civil Judge (Jr.
Dn), Gulbarga (hereinafter referred to as 'the Trial Court'
for short), which is confirmed by the judgment and order
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dated 26.03.2013, passed in R.A.No.124/2009 on the file
of II-Addl. Senior Civil Judge, Gulbarga (hereinafter
referred to as the 'First Appellate Court' for short).
2. Brief facts of the case are that original plaintiff,
who is respondent in this appeal, filed the above suit in
O.S.No.773/1990, seeking relief of perpetual injunction
restraining the defendants from interfering with his
peaceful possession and enjoyment of the suit schedule
property, being a plot measuring 15' x 40', situated at
North-Eastern corner of the Industrial Estate, MSK Mills
Road, Gulbarga, bounded on:
The North by : City Corporation's set back open
space for main road (Vallabhai
Patel Circle to M.S.K. Mill Road)
and then the main road leading to
M.S.K. Mill and station
The South by : Open space of the Industrial
Estate
The East by : 5' open space then open space of
Industrial Training Institute
The West by : 10' set back open space and then
KSSIDC internal road
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contending inter alia that the plaintiff was initially
allotted an open space measuring 15' x 20' on a monthly
rent of Rs.10/- for the purpose of running a canteen in
terms of letter of allotment dated 28.11.1960 by the then
Joint Director of Industries and Commerce (Industrial
Estate), Bangalore. That again plaintiff was allotted an
additional space measuring 15' x 20' vide allotment letter
No.ALT/GLB/Canteen/77 dated 3/7-6-1977, for the
purpose of extension of the said canteen. Thus, the
plaintiff has been in peaceful position and enjoyment of
the aforesaid entire extent of plot.
3. It is further contended that defendant No.2 has
been allotted an open space on the Southern side of the
suit schedule property and the defendant No.2 is trying to
interfere into the Western and Northern side as well as on
the Southern side of the open space belonging to the
plaintiff's canteen. That the plaintiff had earlier filed a suit
in O.S.No.72/1985 against defendant No.1 for the relief of
perpetual injunction, restraining them from dispossessing
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the plaintiff from the suit property. The said suit was
decreed on 07.09.1989, against defendant No.1. That,
being aggrieved by the said judgment and decree,
defendant No.1 had preferred an appeal in
R.A.No.124/1989.
4. It is further alleged that the defendant No.2 in
collusion with defendant No.1 was attempting to interfere
with the peaceful possession and enjoyment of the suit
property by the plaintiff.
5. On service of summons, defendants appeared
through their counsel. Defendant No.2 did not file the
written-statement. Defendant No.1 in its written-
statement had contended that the suit property was
allotted to the plaintiff and the same has nothing to do
with the allotment of open space in favour of defendant
No.2. It is denied that, defendant No.2 was trying to
construct on the suit property contrary to law, denying the
easement right of the plaintiff.
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6. It is further contended that defendant No.2 was
in lawful possession of the site allotted in his favor as far
back as in the year 1985. The suit was not maintainable
against defendant No.1. Hence, sought for dismissal of the
suit.
7. The Trial Court based on the pleading, framed
the following issues for consideration:
1. Whether plaintiff proves that he is in lawful
possession of the suit property?
2. Whether plaintiff further proves that he has got
easementary right to open the door and
window to the western side of his Canteen
towards 10' set back of Karnataka State Small
Industries Development Corporation Ltd.
Internal Road?
3. Whether plaintiff proves that alleged
interference caused by the defendants?
4. Whether the defendants proves that suit of the
plaintiff is not maintainable unless relief of
declaration is claimed?
5. Whether the suit is bad for non-joinder of
necessary parties?
6. Whether the plaintiff is entitled for relief of
injunction against the defendants?
7. What Order or Decree?
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8. The legal representative of the plaintiff has
been examined as PW1 and another witness has been
examined as PW2 and exhibited 20 documents marked as
Ex.P1 to P20. On behalf of defendant No.1, its Deputy
Chief Manager has been examined as DW1. Defendant
No.2 examined one Suresh as DW2 and exhibited one
document as Ex.D1.
9. It appears, the suit was originally decreed
against which an appeal was preferred in RA No.185/2005,
which was disposed of by remanding the same for fresh
consideration and on such remand considering the dispute
between the parties was with respect to the possession,
issues were reframed as under:
1. Whether the plaintiffs prove that they are in
peaceful possession and enjoyment of the suit
property as on the date of filing of suit?
2. Whether the plaintiffs prove that defendants
are interfering with their peaceful possession
and enjoyment?
3. Whether the plaintiffs are entitle for the relief
as claimed?
4. What order or decree?
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10. The Trial Court on reconsideration of the
matter relying upon the document-Ex.P19, a judgment
and decree passed in OS No.72/1985, which was earlier
filed by the plaintiff against defendant No.1 decreed the
present suit by impugned judgment and decree dated
07.09.1989.
11. Being aggrieved with the same defendant No.2
preferred an appeal before the First Appellate Court in RA
No.124/2009 and the First Appellate Court on
consideration of the grounds urged in the memorandum of
appeal framed the following points for consideration:
1. Whether the plaintiff has proved his possession
over the Suit property as on the date of the
suit?
2. Whether the plaintiff proves interference by the
Defendants with his possession of the Suit
property?
3. whether the Judgment and Decree of the trial
Court require interference in Appeal by this
Court?
4. What Order or Decree?
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12. On re-appreciation of the matter the First
Appellate Court dismiss the said appeal, confirming the
judgment and decree passed by the Trial Court. Aggrieved
by the same defendant No.2 is before this Court. Along
with the appeal, defendant No.2 has filed an application
under Order 41 Rule 27 of Code of Civil Procedure seeking
production of additional document, namely a sketch which
is purportedly issued by the Assistant General Manager of
K.S.S.I.D.C Limited. In the affidavit accompanying the said
application sworn to by one Santosh claiming to be the
Secretary of defendant No.2-association. It is deposed that
he assumed charge of defendant No.2 society as secretary
in the year 2022 and that while he was searching for the
records he found the sketch which was issued by the
Assistant Manager, K.S.S.I.D.C Limited, Kalaburagi and
that according to him, the said document indicates the
encroachment of portion of the property belonging to
defendant No.2 by the plaintiff. As such, the said
document was necessary and essential for the purpose of
determination of the dispute between the parties.
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13. Thus referring to the same document and
reiterating the grounds urged in the memorandum of
appeal. Learned counsel for the appellant submit that
though there is no dispute with regard to plaintiff having
been allotted plot measuring 15' x 20' in the year 1968,
and another portion of 15' x 20' in the year 1977.
Defendant No.2 was also allotted an extent of 3750 square
feet of plot in the year 1985, by virtue of which defendant
No.2 is in possession and enjoyment of the same. He
submits that since the plot which is allotted to the plaintiff
is situated on the north-eastern side of the property
belonging to the defendants, the plaintiff has encroached
upon the portion of the property belonging to the
defendants.
14. He submits that this aspect of the matter has
not been appreciated by both the Trial Court and the First
Appellate Court. He further submits that portion of the plot
No.15, which is allotted to defendant No.2 is also situated
on the western side of the plot allotted to the plaintiff,
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which is not forthcoming in Ex.P20 and therefore, the
present document which is being sought to be produced by
defendant No.2 is very much necessary for the purpose of
proper adjudication of the matter. In as much as the
present sketch would indicate existence of portion of the
plot No.15 on the western side of the plot belonging to the
plaintiff, he submits that if, the interim application is not
allowed, permitting defendant No.2 to produce the
additional document, hardship and prejudice will be
caused to the defendant No.2, as the defendant No.2
would be deprived of establishing its case.
15. He further submits, the Trial Court and the First
Appellate Court have merely relied upon the judgment and
decree passed in earlier suit in OS No.72/1985 and they
ought to have considered the case independently. Thus, he
submits, the substantial question of law would arise for
consideration.
16. On the other hand, learned counsel for the
respondent/plaintiff justifying the judgment and decree
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passed by the Trial Court and confirmed by the First
Appellate Court submits that the issue involved in the
matter was only with regard to factum of possession. She
further submits that the judgment and decree in OS
No.72/1985 dated 07.09.1989, which was passed against
defendant No.1 has attained finality. That suit in OS
No.300/2001 that was filed by defendant No.2 against the
very same plaintiff has resulted in its dismissal and no
appeal against the said order has been filed. Thus, she
submits that the factum of possession and enjoyment of
the plaintiff over the suit schedule property has attained
finality.
17. As regards the application for production of
additional document. She further submits that defendant
No.2 has not made out ground for production of additional
document as required under law. The present document
being a sketch sought to be produced by defendant No.2
cannot be taken on record at this belated stage of the
matter. Hence, seeks for dismissal of the application.
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18. Heard and perused the records.
19. As already noted in IA No.2/2024, defendant
No.2 seeking permission to production of additional
document. Perusal of the said document would reveal that
the same has been purportedly issued by the Assistant
Executive Engineer on 29.09.2021 i.e., during the
pendency of the present appeal. production of additional
document is governed under the provisions of Order 41
Rule 27 of Code of Civil Procedure which reads as under:
"27. Production of Additional evidence in
Appellate Court.-
(1) The parties to an appeal shall not be entitled
to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which ought to
have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the exercise
of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the
decree appealed against was passed, or
(b) the Appellate Court requires any document to
be produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be examined."
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(2) Whenever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission".
20. It is not the case of defendant No.2 that he had
produced the said document before the Trial Court or the
First Appellate Court and that it was refund. It is also not
the case of defendant No.2 that, he was in possession of
the said document when the evidence was led and that
despite due diligence, he could not find it in time.
Therefore, the only point for consideration of the
application would fall under Clause (b) of Sub Rule (1) of
Rule 27 of Order 41 of Code of Civil Procedure, which is if,
this Court requires such document for the purpose of
determination of the dispute between the parties.
21. From the perusal of the judgment and decree
passed by the Trial Court, confirmed by the First Appeal
Court, it is clear that undisputedly plaintiff had an earlier
occasion filed the suit in OS No.72/1985, which was
decreed on 07.09.1989 and there has been no challenge
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to the said judgment and decree. Similarly, defendant
No.2 herein had filed a suit in OS No.300/2001 against the
plaintiff seeking relief of mandatory injunction, directing
the plaintiff to remove the structure admittedly put up by
the plaintiff. The said suit has been dismissed and no
appeal against the said judgment and decree has been
filed.
22. The Trial Court and the First Appellate Court
have taken note of these aspects of the matter have come
to the conclusion that the issue with regard to the
possession of the plaintiff over the suit schedule property
have been proved and established in earlier round of
litigation between the same parties which had attained
finality. Further the issue with regard to, alleged
encroachment by the plaintiff has also been negated and
the same has also attained finality in the light of dismissal
of the suit filed by defendant No.2.
23. The Trial Court and the First Appellate court
have thus, decreed the suit of the plaintiff.
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24. No infirmity or illegality canbe found with
reasons assigned by the Trial Court and the First Appeal
Court. As such this Court do not see any substantial
questions of law being involved in the matter, the appeal
is dismissed.
25. In the circumstances, this Court do not see any
reasons requiring production of additional document
either. I.A.No.2/2024 is rejected.
Sd/-
(M.G.S.KAMAL)
JUDGE
SDU,KBM
