Karnataka High Court
Sri Jayaram N Shetty vs Smt Ancy D Silva on 3 March, 2025
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NC: 2025:KHC:9091
RSA No. 2244 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 2244 OF 2016 (INJ)
BETWEEN:
SRI JAYARAM N SHETTY
S/O NANDU SHETTY,
AGED ABOUT 53 YEARS,
R/A HOSAMANE, EDAPUTHE
MARNE VILLAGE, KARKALA TALUK,
UDUPI DISTRICT - 574 104
...APPELLANT
(BY SRI. H.D. SOMESHA, ADVOCATE FOR
SRI. S. RAJARAMA, ADVOCATE)
AND:
Digitally SMT ANCY D'SILVA
signed by W/O MR. GABRIEL D SILVA,
SUNITHA K S AGED ABOUT 42 YEARS,
Location: R/A NOOJIGURI, AJEKAR,
HIGH COURT MARNE VILLAGE, KARKALA TALUK,
OF UDUPI DISTRICT - 574 104
KARNATAKA ...RESPONDENT
(BY MS. K. PRASANNA, ADVOCATE FOR
SRI. CHANDRANATH ARIGA K., ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.06.2015 PASSED IN
RA NO.41/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND ACJM, KARKALA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2012
PASSED IN OS NO.201/2009 ON THE FILE OF THE PRL. CIVIL
JUDGE, KARKALA.
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RSA No. 2244 of 2016
THIS APPEAL, COMING ON FOR 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 appellant,
challenging the judgment and decree dated 11.06.2015,
passed in R.A.No.41/2012 by the Senior Civil Judge and
ACJM, Karkala, wherein the first Appellate Court has
confirmed the judgment and decree passed in
O.S.No.201/2009 dated 31.07.2012 by the learned
Principal Civil Judge, Karkala.
2. For convenience, the parties are referred to,
based on their rankings before the trial Court. The
appellant was the plaintiff, and the respondent was the
defendant.
3. Brief facts, leading rise to the filing of this appeal
are as follows:
The plaintiff filed a suit against the defendant for
permanent injunction. It is the case of the plaintiff that,
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the plaintiff is the owner in possession of 'A' schedule
property based on the partition deed dated 18.06.1986,
along with a certain extent of Government land. On the
eastern side of suit 'A' schedule property, Sy.Nos.405/06
and 286/1B are situated, and land in Sy.No.405/06 is a
kumki land abutting 'A' schedule property. It is contended
that, the defendant obtained a saguvali chit about a
certain extent of the said Government land as per the
proceedings of the Tahsildar, Karkala, and attempted to
remove the barbed wire fence put up on the eastern side
of plaint 'A' schedule property. The defendant is not in
possession of the land mentioned in the saguvali chit.
Hence, a cause of action arose for the plaintiff to file a suit
for permanent injunction. Accordingly, prays to decree the
suit.
4. The defendant filed a written statement and
counter claim contending that, the defendant is in
possession and enjoyment of lands comprised in
Sy.No.405/6P2 measuring 0.23 acre, Sy.No.286/1DP2
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measuring 0.92 acres of Marne village, over 25 years.
She had planted, reared, and protected cashew nut plants,
and coconut plants, and the Tahsildar, Karkala, granted
the said property to the defendant. The defendant land in
Sy.No.405/6P2 is situated touching the land in
Sy.No.405/2, and the plaintiff, to grab the property of the
defendant in Sy.No.405/6P2, trespassed into the said
property and attempted to put up a barbed wire fence,
and filed a suit. It is contended that the plaintiff had filed
a suit in O.S.No.83/2007, which was withdrawn by the
plaintiff. The defendant prayed to grant a decree for
permanent injunction restraining the plaintiff from
trespassing into the land in Sy.No.286/10P2 measuring
0.92 acres, Sy.No.405/6A2 measuring 0.23 acres, the
written statement 'A' schedule property or from removing
barbed wire fence, mud agalu, and in any way interfering
with the defendant's peaceful possession and enjoyment of
the suit schedule property. Hence, prays for the dismissal
of the suit, and decree the counterclaim.
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5. The plaintiff filed a written statement to the
counter claim of the defendant and denied that the
defendant is in possession of the written statement suit
schedule property, which is adjacent to the suit schedule
property, and prays to dismiss the counterclaim.
6. The Trial Court, based on the above-said
pleadings, framed the relevant issues.
7. The plaintiff, to substantiate his case, examined
himself as PW-1, and marked two documents as Exs.P1
and 2. In rebuttal, the defendant examined herself as
DW.1, and marked six documents as Exs.D1 to 6. The
trial Court, after recording the evidence, hearing on both
sides, and on the assessment of oral and documentary
evidence of the parties, dismissed the suit of the plaintiff,
and decreed the counter claim of the defendant vide
judgment dated 31.07.2012.
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8. The plaintiff, aggrieved by the dismissal of the
suit, preferred an appeal in R.A.No.41/2012 on the file of
learned Senior Civil Judge and ACJM, Karkala.
9. The First Appellate Court, after hearing the
learned counsel for the parties, framed the relevant points
for consideration and consequently, dismissed the appeal
vide judgment dated 11.06.2015.
10. The plaintiff, aggrieved by the impugned
judgments passed by the Courts below, has filed this
regular second appeal.
11. Heard the argument of the learned counsel for
the plaintiff.
12. Learned counsel for the plaintiff submits that the
plaintiff is in possession and enjoyment of the suit
schedule property. The Courts below have not properly
considered the evidence on record. He submits that, the
plaintiff came in possession of the suit schedule property
by a partition deed dated 18.06.1986, and the plaintiff's
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name appears in the revenue records. The Courts below
have failed to draw a presumption under Section 135 of
the Karnataka Land Revenue Act, 1964. Hence, on these
grounds, he prays to allow the appeal.
13. Perused the records, and considered the
submissions of the learned counsel for the plaintiff.
14. The plaintiff filed a suit for permanent injunction.
In a suit for permanent injunction, the Court is required to
consider the plaintiff's possession, and interference over
the suit schedule property. Admittedly, in the instant
case, the defendant has also sought a counter claim for a
relief of permanent injunction. The counter claim of the
defendant was decreed, and the trial Court granted a
temporary injunction in favour of the defendant. The suit
of the plaintiff was dismissed. The plaintiff did not
challenge the decree of counter claim. He has challenged
the dismissal of the suit, the findings recorded by the trial
Court regarding counter claim have attained finality. If
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the judgment and decree passed by the trial Court is
disturbed, it virtually amounts to passing a conflicting
decision. Further, the trial Court recorded a finding that
the defendant is in possession of the suit schedule
property, and the plaintiff failed to establish his possession
over the suit schedule property. Both the Courts below,
have concurrently recorded a finding of facts against the
plaintiff, holding that the plaintiff is not in possession of
the suit schedule property, and the defendant is in
possession of the suit schedule property. The findings
recorded by the trial Court regarding the counter claim
have attained finality. In view of the same, I do not find
any error in the impugned judgments or any substantial
question of law that arises for consideration.
15. Accordingly, I proceed to pass the following:
ORDER
i. The Appeal is dismissed.
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ii. The judgments and decrees passed by
the Courts below, are hereby
confirmed.
iii. No order as to the costs.
In view of the dismissal of the appeal, I.A.Nos.1/2017
and 1/2025, do not survive for consideration, and are
accordingly, disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
