Karnataka High Court
Ravindra Raju vs Kittanna on 5 September, 2024
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RSA No. 35 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 35 OF 2013 (INJ)
BETWEEN:
1. RAVINDRA RAJU
DEAD BY HIS LEGAL REPRESENTATIVES
1(A) SHOBHA
W/O LATE RAVINDRA RAJU
1(B) DINESH RAJU
S/O LATE RAVINDRA RAJU
1(C) UMASHANKER RAJU
S/O LATE RAVINDRA RAJU
ALL ARE R/AT
NAGIREDDYGARIPALLI VILLAGE
Digitally signed RAYALAPADU HOBLI
by R DEEPA SRINIVASAPUR TALUK
Location: KOLAR DISTRICT - 563 135
HIGH COURT ...APPELLANTS
OF (BY SRI. DEEPAK J., ADVOCATE)
KARNATAKA
AND:
1. KITTANNA
S/O VENKATARAYAPPA
AGED ABOUT 52 YEARS
2. DHOBI VENKATARAYAPPA
S/O DHOBI MUNIVENKATAPPA
AGED ABOUT 49 YEARS
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RSA No. 35 of 2013
3. NAGAPPA
S/O VENKATARAYAPPA
AGED ABOUT 44 YEARS
ALL ARE R/AT GOWNIPALLI VILLAGE
RAYALAPADU HOBLI
SRINIVASPUR TALUK
KOLAR DISTRICT - 563135
...RESPONDENTS
(BY SRI. V VISWANATH, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 31.10.2012 PASSED IN
R.A.NO.127/2012 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND CJM, KOLAR, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
11.07.2011 PASSED IN O.S.NO.129/2007 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC, SRINIVASPUR.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 31.10.2012,
passed in R.A.No.127/2012 by the learned Principal Senior
Civil Judge & CJM, Kolar, setting aside the judgment and
decree dated 11.07.2011, passed in O.S.No.129/2007 by
the learned Civil Judge (Jr.Dn.), Srinivaspur.
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2. For the sake of convenience, parties are referred
to according to their ranking before the trial Court. The
appellant is the plaintiff, and respondents are the
defendants.
3. The brief facts leading rise to the filing of this
appeal are as follows:
The plaintiff filed a suit for permanent injunction
restraining the defendants from interfering with the
peaceful possession and enjoyment of the suit schedule
property. It is the case of the plaintiff that, the plaintiff is
the absolute owner and in possession of the suit schedule
property, and he acquired the same under the grant order
dated 10.09.1980, issued by the Block Development
Officer, Srinivaspur Taluk and, in turn issued Hakku Patra
in favour of the plaintiff. Since issuing Hakku Patra, he has
been in possession and enjoyment of the said property. It
is contended that, he has put up a house in the suit
property and obtained an electricity connection under the
Bhagya Jyothi scheme. His name was entered in the
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demand register extract, and paying property tax. It is
contended that the defendants are powerful persons in the
locality and trying to dispossess the plaintiff from the suit
schedule property. Hence, a cause of action arose for the
plaintiff to file the suit for permanent injunction.
4. Defendants filed a written statement denying the
plaintiff's ownership over the suit schedule property. It is
contended that the suit schedule property originally
belonged to the Government, and the concerned
authorities have fixed the boundaries regarding 1 acre 26
guntas in Sy.No.17, which is meant for the burial ground.
The plaintiff is a permanent resident of Nagareddigaripalli
Village and is nowhere concerned with the suit schedule
property. He is not the absolute owner of the suit
schedule property. He colluded with the Gram Panchayat
authorities and manipulated the documents about the
property of the suit schedule. It is contended that the
plaintiff tried interfering with the peaceful possession and
enjoyment of the suit schedule property. The defendants
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filed a suit in O.S.no.106/2007 against the plaintiff, which
is still pending. On these grounds, sought for dismissal of
the suit.
5. The Trial Court, based on the above said
pleadings, framed the following issues:
1. Whether the plaintiff proves that he is in
possession of the suit schedule property as on
the date of filing of the suit?
2. Whether the plaintiff proves the alleged
interference by the defendants?
3. Whether the plaintiff is entitled for the relief as
claimed in the plaint?
4. What order or decree?
6. In order to prove the case of the plaintiff, the
plaintiff examined himself as PW-1, examined six
witnesses as PW-2 & PW-7, and marked five documents as
Exs.P1 to P5. In rebuttal, the defendants examined
themselves as DW-1 to DW-3, examined four witnesses as
DW-4 & DW-7, and marked 21 documents as Exs.D1 to
D21. The trial Court, after assessing the oral and
documentary evidence of the parties, answered issues
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Nos.1 to 3 in affirmative and issue No.4 as per the final
order. The trial Court decreed the plaintiff's suit with cost
and by way of permanent injunction, restrained the
defendants permanently from interfering with the
possession of the plaintiff over the suit schedule property.
7. The defendants, aggrieved by the judgment and
decree passed in the above-said suit, filed an appeal in
R.A.No.127/2012. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
(1) Whether the impugned judgment and decree
passed by trial Court in O.S.No.129/2007 is illegal,
perverse, arbitrary and erroneous and not based on
principles of law and requires interference?
(2) Whether order?
9. The First Appellate Court, after hearing the
learned counsel for the parties and on re-assessing the
oral and documentary evidence, answered point No.1 in
the affirmative; and point No.2 as per the final order. The
first Appellate Court allowed the appeal filed by the
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defendants, setting aside the judgment and decree passed
by the trial Court. The plaintiff, aggrieved by the
judgment and decree passed by the first Appellate Court,
has filed this regular second appeal.
10. This court admitted the appeal on 29.01.2020 to
consider the following substantial question of law :
(1) Whether the First Appellate Court was justified in
ignoring a valid Hakku Pathra granted in favour of
the plaintiff which presupposed the handing over of
possession of the suit schedule property to the
plaintiff?
(2) Whether the lower appellate court was justified
in reversing the judgment and decree of the trial
Court?
11. Heard Sri. Sadashiva Reddy, learned senior
counsel for the plaintiff and learned counsel for the
defendants.
12. Learned senior counsel for the plaintiff submits
that the plaintiff has produced documents to establish that
the plaintiff possesses and enjoys the suit schedule
property. He further submits that the plaintiff has
examined six witnesses supporting his case. The first
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Appellate Court did not properly appreciate the oral
evidence of PW-2 to PW-7. He submits that the
defendants' property is entirely different, and the said
aspect was not properly appreciated by the first Appellate
Court while passing the impugned judgment. Hence, the
impugned judgment passed by the first Appellate Court is
perverse and arbitrary. On these grounds, he prays to
allow the appeal.
13. Per contra, learned counsel for the defendants
submits that though the plaintiff claims to be the owner of
the suit schedule property under the Hakku Pathra, Ex.P1
does not disclose the plot number or survey number.
Hence, he submits that there is a serious dispute
regarding the identity of the property, and a suit for a bare
injunction without seeking the relief of declaration of title
is not maintainable. In order to buttress his argument, he
has placed reliance on the judgment of the Hon'ble Apex
Court in the case of Anathula Sudhakar vs. P. Buchi Reddy
(Dead) by LRs. & Ors., reported in AIR 2008 SC 2033. He
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further submits that the defendants, aggrieved by the
inaction on the part of the plaintiff, filed a suit in
O.S.No.106/2007 against the plaintiff. He submits that
the said suit was decreed against the plaintiff. Hence, the
first Appellate Court justified dismissing the plaintiff's suit.
If the plaintiff's suit is decreed, there will be a conflict of
judgment. He further submits that the plaintiff did not
challenge the judgment and decree passed in the suit filed
in O.S.No.106/2007; hence, the findings recorded in the
suit have attained finality. Hence, on these grounds, he
prays to dismiss the suit.
14. Perused the records and considered the
submissions of learned counsel for the parties.
15. Substantial question of law No.1: The
plaintiff to establish his case examined himself as PW.1,
and he reiterated the plaint averments in the examination-
in-chief and to prove his case that he is in possession of
the suit schedule property, produced the documents, i.e.,
original hakku pathra marked as Ex.P1, Ex.P2 is the
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demand register extract, Exs.P3 to P5 are the tax paid
receipts. Further, in order to establish his possession, he
also examined six witnesses as PW.2 to PW.7.
16. In rebuttal, defendant No.1 was examined as
DW.1 and he reiterated the written statement averments
in the examination-in-chief and also defendant No.2 was
examined as DW.2 and also examined four witnesses as
DW.3 to DW.7 and marked the documents i.e., Ex.D1 is
the photograph, Ex.D2 is the RTC extract, Ex.D3 is the
settlement akharbandh, Ex.D4 is the copy of phodi, Ex.D5
is the copy of photograph, Ex.D6 is the NCR, Ex.D7 is the
endorsement, Exs.D8 and D9 are the copies of
applications, Ex.D10 is the copy of photograph, Ex.D11 is
the notice, Ex.D12 is the certificate, Ex.D13 is the
endorsement, Exs.D14 and D15 are the certified copy of
the judgment and decree passed in O.S.No.106/2007,
which discloses that the defendant filed a suit for
permanent injunction against the plaintiff and the said suit
was decreed, Ex.D16 is the RTC extract, Ex.D17 is the
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copy of phodi, Ex.D18 is the revenue survey extract,
Ex.D19 is the settlement akharbandh, Ex.D20 is the
survey sketch and Ex.D21 is the mahazar.
17. Admittedly, the plaintiff has filed a suit for
perpetual injunction. DW.4, i.e., the Tahsildar of
Srinivaspura Taluk who was examined as DW.4. He has
deposed that survey No.17 is reserved for burial ground
and Exs.D16 to 21 discloses that Sy.No.17 is the burial
ground. He has deposed that the original of Ex.P1 or the
entry about the said document is not available in his
office. The defendants filed a suit for permanent injunction
against the plaintiff in O.S.No.106/2007. The said suit was
decreed and the present plaintiff was restrained from
interfering with the peaceful possession and enjoyment of
the defendants herein. The judgment and decree passed in
the said suit is not challenged by the plaintiff, and the said
judgment has attended the finality. The First Appellate
Court, considering the decree passed in O.S.No.106/2007,
has held that the trial court has committed an error in
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decreeing the suit of the plaintiff. Further, the First
Appellate Court has also considered Ex.P1 and recorded its
finding that in Ex.P1, the land that has been granted has
not been shown, and the column is kept blank about
village and survey number. The First Appellate Court has
recorded a finding that the plaintiff is not in possession of
the suit schedule property by virtue of Ex.P1. Also, the
defendant has denied the existence of the suit schedule
property and boundary. There is a serious dispute
regarding the boundary, and the plaintiff has filed a mere
suit for perpetual injunction without seeking the relief of
declaration.
18. In view of the law laid down by the Hon'ble
Apex Court in the case of ANATHULA SUDHAKAR VS P.
BUCHI REDDY (DEAD) BY LRS & ORS. reported in AIR 2008
SC 2033, the Hon'ble Apex Court held that when there is
a serious dispute or cloud over plaintiff's title, a suit for
bare injunction without seeking the relief of declaration of
title is not maintainable.
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19. The First Appellate Court was justified in
passing the impugned judgment, holding that the suit for a
mere perpetual injunction without seeking the relief of
declaration is not maintainable. From the perusal of the
hakku pathra, it does disclose the boundary and survey
number. The First Appellate Court has rightly ignored the
hakku pathra as per Ex.P1 and has rightly passed the
impugned judgment. Hence, in view of the above
discussion, I answer the substantial question of law No.1
in the affirmative.
20. Substantial question of law No.2: As already
recorded, a finding that the First Appellate Court has
rightly ignored Ex.P1, and recorded a finding that the
plaintiff has failed to prove his possession over the suit
schedule property and rightly passed the impugned
judgment. Hence, I do not find any error in the impugned
judgment. In view of the above discussion, I answer the
substantial question of law No.2 in the affirmative.
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21. Learned counsel for the appellant filed an
application for production of additional document in
I.A.No.2/2013.
22. In support of the application, filed an affidavit
stating that, the appellant filed a suit in O.S.No.129/2007
and the trial Court decreed the suit and aggrieved by the
said judgment, respondent Nos.1 and 2 preferred an
appeal in R.A.No.127/2012. It is contended that the
appellant could not produce electricity bill for showing that
he is in possession of the suit schedule property.
23. From the perusal of an application filed by the
appellant, the appellant has not fulfilled the ingredients of
Order 41 Rule 27 of CPC. Accordingly, though opportunity
was provided to the plaintiff to produce the said
document, the said document was not produced by the
plaintiff neither before the trial Court nor before the First
Appellate Court. Even from the perusal of the proposed
document which is the electricity bill, the same neither
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bears meter number nor name of the consumer etc. It is
just a blank electricity bill and the said document is not
relevant for the purpose of deciding the matter in dispute.
The plaintiff has not made out a ground to allow
I.A.No.2/2013.
24. In view of the above discussion, I proceed to
pass the following:
Order
i. The appeal is dismissed.
ii. I.A.No.2/2023 is rejected.
iii. The judgment and decree passed by
the First Appellate Court is confirmed.
iv. Liberty is reserved to the plaintiff to file
a comprehensive suit, if law permits.
v. No order as to the costs.
SD/-
(ASHOK S. KINAGI)
JUDGE
RD, ssb
