Karnataka High Court
Sundaramma W/O Manohar And Anr vs Pawan S/O Late Shankar Rao on 10 September, 2024
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NC: 2024:KHC-K:6798
RSA No. 200265 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 200265 OF 2021 (INJ)
BETWEEN:
1. SUNDARAMMA W/O MANOHAR,
AGE: 46 YEARS, OCC: GOVERNMENT SERVICE,
R/O. VILLAGE KOLAR-K,
TQ. AND DIST. BIDAR-585401.
2. MANOHAR S/O NARASAPPA,
AGE: 51 YEARS, OCC: RMP DOCTOR,
R/O. VILLAGE KOLAR-K,
TQ. AND DIST. BIDAR-585401.
...APPELLANTS
Digitally signed (BY SRI K. M. GHATE, ADVOCATE)
by RENUKA
Location: HIGH AND:
COURT OF
KARNATAKA
PAWAN S/O LATE SHANKAR RAO,
AGE: 38 YEARS, OCC: NIL,
R/O. VIJAYA MAHANTESHWAR GALLI,
TQ. BHALKI, DIST. BIDAR-585328.
...RESPONDENT
(RESPONDENT SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE OF THE FIRST APPELLATE COURT
DATED:26.11.2020 IN R.A.NO.16/2018 AND THERE BY PLEASE
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NC: 2024:KHC-K:6798
RSA No. 200265 of 2021
TO DISMISS THE SUIT FILED BY THE RESPONDENT/ PLAINTIFF
O.S.NO.11/2015 ON FILE OF II ADDITIONAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS II, BIDAR WITH COST
THROUGHOUT TO MEET.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
Heard the learned counsel appearing for the appellant and
learned counsel appearing for the respondents.
2. This appeal is against the divergent finding in a suit for
injunction and mandatory injunction. The Trial Court dismissed the
suit, rejecting the plaintiff's contention that the defendant has
encroached upon the portion of the property belonging to the
plaintiff and that he has put up an illegal structure. The plaintiff has
filed an appeal before the First Appellate Court. The First Appellate
Court on re-appreciation of evidence concluded that the
encroachment pleaded by the plaintiff is established and granted
the decree as prayed for.
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3. Aggrieved by the aforementioned divergent finding the
defendant is before this Court in this second appeal. Notice is
ordered to the respondent and Trial Court records are also
secured. Respondent though serve with the notice is not present
before the Court.
4. Learned Counsel Sri K M Ghate appearing for the
appellant would contend that the First Appellate Court committed
an error in granting the relief of injunction as well as mandatory
injunction without their being proof relating to the encroachment
pleaded by the plaintiff. It would also urge before the Court that the
encroachment is not proved by the plaintiff and no commissioner is
appointed and without the aid of the commissioner report, the First
Appellate Court could not have granted the decree for mandatory
injunction therein the removal of alleged encroachment. It would
also urge that the First Appellate court committed serious error in
placing reliance on Ex.P17 the document alleged to have been
executed by the first defendant.
5. This Court has considered the contentions raised at
the bar and perused the Trial Court judgment as well as judgment
passed by the First Appellate Court. There is no dispute that the
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property bearing G.P.No.478 (old) 468 (new) belongs to the
plaintiff. It is not in dispute that the first defendant is the owner of
the adjoining property. It appears that the dispute arose between
the parties, when the first defendant has started constructing the
structure in the property belonging to the first defendant. The
plaintiff alleged that the portion of the property put up by the first
defendant encroached upon the property of the plaintiff. Thereafter,
it appears that the matter was resolved in the presence of well
wishers and the first defendant agreed to remove the
encroachment and accordingly Ex.P17 an agreement was
executed to which the second defendant who is the husband of the
first defendant signed as a witness. The agreement would reveal
that the pillar is put up in the land of the plaintiff and the well is also
put up in the land of the plaintiff and the first defendant agreed to
remove the encroachment by removing the pillar and closing the
well. However, when the first defendant did not fulfill the obligations
arising from the agreement at Ex.P17, the plaintiff filed the suit.
6. The Trial Court dismissed the suit on the premise that
Ex.P17 with the agreement said to have been executed by the first
defendant is not proved.
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7. The First Appellate Court on re-appreciation of the
evidence has concluded that Ex.P17 is duly proved and granted a
decree for injunction. The Trial Court has concluded that the
agreement is unregistered and the said document is not
established, as there was no survey before executing the said
document. The Trial Court also went to the extent of saying that
witnesses to the agreement who claimed to have measured the
property had no authority to measure the property.
8. The First Appellate Court on the other hand noticed the
fact that defendant No.1 has entered into an agreement and to the
said agreement, witness is defendant No.2, the husband of
defendant No.1. In the said agreement the encroachment is
admitted. It is also noticed by the First Appellate Court that the first
defendant is a Government servant. It is further noticed that the
construction has taken place despite the Court passing a
prohibitory order against the first defendant not to construct the
structure in the suit property. Though the defendants have disputed
the execution of the agreement what is noticed in the signature of
the document is not disputed. Under what circumstances, the first
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defendant who is a Government servant has put the signature on
the document is not explained by the first defendant.
9. This being the position that the First Appellate Court
has placed reliance on Ex.P17, the agreement entered into
between the plaintiff and the first defendant to which defendant
No.2 husband has signed as a witness. The First Appellate Court
has also compared that the signature of the first defendant tallied
with the signature in the written-statement as well as the Vakalath
and apart from that in the cross-examination of DW1/defendant
No.1 has stated that after execution of the agreement, the first
defendant has not removed the pillar and has not closed the well
despite the request made by the plaintiff.
10. It is also relevant to note that it is not the case of the
first defendant that the alleged agreement was executed under
duress or coercion or on account of some misrepresentation or
fraud.
11. This being the position, this Court is of the view that
the plaintiff has proved the case in the First Appellate Court is
justified in granting the decree for injunction and mandatory
injunction based in Ex.P17 as well as the admission of DW1 in the
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cross-examination. It is squarely admitted in the cross-examination
that the first defendant has put up the disputed structure despite
the Court order being passed against the first defendant prohibiting
such construction during the pendency of the suit.
12. For the aforementioned reasons, this Court is of the
view that no substantial question of law would arise in this case.
Hence, the following:
ORDER
i. Accordingly, the appeal is dismissed.
ii. The judgment and decree passed by the First
Appellate Court dated 26.11.2020 in RA No.16/2018
on the file of Prl. Senior Civil Judge and CJM are
confirmed.
iii. Three months time is granted to the appellant to
comply the decree passed by the First Appellate Court.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
KBM
CT:PK
