Sri. Shivanna vs Shivarudramma
2024 Latest Caselaw 25066 Kant

Karnataka High Court

Sri. Shivanna vs Shivarudramma on 21 October, 2024

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                                                         NC: 2024:KHC:42100
                                                      RSA No. 1378 of 2021




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 21ST DAY OF OCTOBER, 2024

                                         BEFORE
                        THE HON'BLE MR JUSTICE ASHOK S.KINAGI
                     REGULAR SECOND APPEAL NO. 1378 OF 2021 (INJ)
                BETWEEN:

                SRI. SHIVANNA S/O. LATE JAVAREGOWDA,
                AGED ABOUT 58 YEARS,
                R/AT AMRUTHI VILLAGE,
                MELUKOTE HOBLI, PANDAVAPURA TALUK,
                MANDYA DISTRICT-571 434.
                                                                ...APPELLANT
                (BY SRI. K.L. SREENIVAS, ADVOCATE)

                AND:
                1.    SHIVARUDRAMMA W/O. PUTTASHETTY,
                      AGED ABOUT 56 YEARS

                2.    SRI. PUTTASHETTY S/O. LATE CHAMASHETTY,
                      AGED ABOUT 71 YEARS,
Digitally
signed by             BOTH ARE R/AT AMRUTHI VILLAGE,
KAVYA R
                      MELUKOTE HOBLI, PANDAVAPURA TALUK,
Location:
                      MANDYA DISTRICT-571 434.
High Court of
Karnataka                                                   ...RESPONDENTS
                      THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
                THE JUDGMENT AND DECREE DATED 09.10.2020 PASSED IN
                RA.No.22/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
                JMFC, PANDAVAPURA, DISMISSING THE APPEAL AND CONFIRMING
                THE JUDGMENT AND DECREE DATED 12.02.2020 PASSED IN OS
                No.160/2014 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND
                JMFC, PANDAVAPURA.

                     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                          NC: 2024:KHC:42100
                                        RSA No. 1378 of 2021




CORAM:     HON'BLE MR JUSTICE ASHOK S.KINAGI

                     ORAL JUDGMENT

This Regular Second Appeal is filed challenging the

judgment and decree dated 09.10.2020 passed in

R.A.No.22/2020 by the learned Senior Civil Judge and

JMFC, Pandavapura and judgment and decree dated

12.02.2020 passed in O.S.No.160/2014 by the learned II

Additional Civil Judge and JMFC, Pandavapura.

2. For convenience, parties are referred to as per

their ranking before the trial Court. The appellant is

plaintiff, and the respondents are the defendants.

3. The brief facts leading rise to the filing of this

appeal are as follows:

Plaintiff filed a suit seeking relief of permanent

injunction restraining the defendants from enjoying 'A' and

'B' schedule properties. It is the case of the plaintiff that

the plaintiff is the owner in possession and enjoyment of

the suit schedule property bearing Sy.No.137 "1pai-3

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measuring 01 acre situated at Amruthi Village, Melukote

Hobli, Pandavapura Taluk, which is fully described in plaint

schedule 'A' property, having purchased under registered

sale deed dated 08.08.2005. The plaintiff is in

unauthorized occupation of 'B' schedule property. The

defendants are interfering with the peaceful possession

and enjoyment of the suit schedule properties by the

plaintiff. The plaintiff could not resist the defendants'

action. Hence, a cause of action arose for the plaintiff to

file a suit for permanent injunction.

4. The defendant filed a written statement

contending that the plaintiff is the owner of the 'A'

schedule property and denied the plaintiff's ownership

over the 'B' schedule property. It is denied that the

plaintiff has the 'B' schedule property and contended that

the defendants are in peaceful possession and enjoyment

of the 'B' schedule property. It is contended that as of the

date of filing of the suit, the defendants' name appeared in

the revenue records. Hence, there is no cause of action to

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file a suit regarding schedule 'B' property. Hence, prayed

to dismiss the suit.

5. The trial Court, based on the pleadings of the

parties, framed the issues. In order to prove his case, the

plaintiff examined himself as PW.1 and examined two

more witnesses as PWs.2 and 3, and marked 06

documents as Exs.P1 to P6. The defendant examined the

Power of Attorney Holder as DW.1 and got marked 10

documents as Exs.D1 to D10. The trial Court, after

recording evidence, hearing on both sides and

assessment of oral and documentary evidence, decreed

the suit of the plaintiff in part and granted a decree of

permanent injunction restraining the defendants from

interfering with the possession of 'A' schedule property

and dismissed the suit in respect of 'B' schedule property.

6. The plaintiff, aggrieved by the judgment and

decree passed by the trial Court in O.S.No.160/2014,

dismissing the suit in respect of 'B' schedule property, filed

an Appeal in R.A.No.22/2020 on the file of the learned

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Senior Civil Judge and JMFC, Pandavapura. The Appellate

Court, on re-assessing of oral and documentary evidence

placed on record, dismissed the appeal vide judgment and

decree dated 09.10.2022 and confirmed the judgment and

decree passed by the trial Court. The plaintiff, aggrieved

by the impugned judgments, filed this Regular Second

Appeal.

7. Heard the learned counsel for the

appellant/plaintiff.

8. Learned counsel for the plaintiff submits that

the plaintiff, to prove his possession, has produced Exs.P5

and P6, i.e., Sketch and Mahazar, which discloses that the

plaintiff possesses of 'B' schedule property. He submits

that the Courts below have not considered Exs.P5 and P6

properly and committed an error in passing impugned

judgments. On these grounds, he prays to allow the

appeal.

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9. Perused the records and considered the

submission of the learned counsel for the plaintiff.

10. The dispute is with regard to 'B' schedule

property. Insofar as 'A' schedule property is concerned,

the defendants have admitted that the plaintiff is owner of

'A' schedule property and denied his ownership and

possession over the 'B' schedule property. Though the

plaintiff filed a suit for permanent injunction contending

that the plaintiff is in possession of 'B' schedule property

unauthorizedly and to substantiate that the plaintiff is in

possession of 'B' schedule property, he has got marked

Exs.P5 and P6 i.e., Sketch and Mahazar, which discloses

that the plaintiff is in possession of 'B' schedule property.

In rebuttal, the defendants have produced revenue

records and denied the possession of the plaintiff over the

'B' schedule property and got marked Exs.D1 to D3, which

discloses that as of the date of filing of the suit, the names

of the defendants were appearing in the revenue records.

There is a presumption regarding the entries in revenue

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records under the Karnataka Land Revenue Act, 1964 (for

short 'KLR Act'). Both the Courts below, drawing

presumption under Section 133 of the KLR Act and relying

on Exs.D1 to D3, held that the defendants are in

possession of the 'B' schedule property and the plaintiff

has failed to establish his possession over the said

property. The trial Court, as well as the Appellate Court

considered Exs.P5 and P6, and the Appellate Court

recorded a finding which reads as follows:

"It appears from the contents of Ex.P5 and Ex.P6 that the suit schedule 'B' property is a portion of the land granted to the defendants under Ex.D4. Under these circumstances, if the contents of Ex.P5, Ex.P6 and Ex.D1 to Ex.D6 are considered in its entirety, it can only be come to the conclusion that as on the date of suit, the plaintiff was in possession of the suit schedule property as a trespasser dispossessing the defendants from 16.09.2013 as alleged in Ex.D6 and he was not in possession of the suit schedule 'B' property since more than two decades."

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11. Further, the Appellate Court places reliance on

the judgment of the Hon'ble Apex Court in the case of

PREMJI RATANSEY SHAH & OTHERS v/s UNION OF INDIA

AND OTHERS reported in 1994 (5) SCC 547 and held that

no injunction can be granted against the true owner and

also placed reliance on the judgment of the Hon'ble Apex

Court in the case of RAME GOWDA (DEAD) BY LRs v/s

M.VARADAPPA NAIDU (DEAD) BY LRs. AND ANOTHER

reported in AIR 2004 SC 4609 and held that the plaintiff is

not entitled to relief of permanent injunction as prayed for

in respect of 'B' schedule property.

12. Both the Courts below have concurrently

recorded a finding of fact against the plaintiff and rightly

passed impugned judgments. I do not find any error in

the impugned judgments or any substantial question of

law that arises for consideration in this appeal.

Accordingly, I proceed to pass the following:

ORDER

(i) Appeal is dismissed.

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(ii) The judgment and decree dated 09.10.2020 in

R.A.No.22/2020 on the file of Senior Civil Judge

and JMFC, Pandavapura and judgment and decree

dated 12.02.2020 in O.S.No.160/2014 on the file

of II Additional Civil Judge and JMFC, Pandavapura

are hereby confirmed.

   (iii)     No order as to the cost.


   (iv)      In view of dismissal of the appeal, I.A.No.1/2020

             does not survive for consideration.




                                        Sd/-
                                  (ASHOK S.KINAGI)
                                       JUDGE




SMJ