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2012 DIGILAW 825 (KAR)

Chandrashekara Hegde v. Mahesh Shetty

2012-09-27

K.L.MANJUNATH

body2012
JUDGMENT K.L. MANJUNATH, J.—The concurrent findings in the judgment and decree passed by the Principle Civil Judge (Jr. Dn.), Kundapura in O.S. No. 195/1997 dated 18.01.2001, which has been confirmed by the Civil Judge (Sr. Dn.), Kundapura in R.A. No. 45/2001 dated 14.02.2006 are called in question in this Regular Second appeal by the appellant who is unsuccessful plaintiff. 2. The suit was instituted by the appellant for grant of perpetual injunction to restrain the defendants from interfering with the lawful possession of plaint B schedule property, which is attached to plaint A schedule property. Plaint A schedule property is his personal property and plaint B schedule property is government waste land on which the appellant claims that he is having a kumki privilege and that he can enjoy the same to pluck the green leaves for the purpose of manure, to store the manure for the purpose of cultivation of his land (A schedule property) and for storing the implements concerning the farming. The defendants denied the allegations made in the plaint. According to the them, the plaintiff was not in possession of B schedule property on the date of the suit or earlier to that and that there exists an old Dhare-passage which is being used for ingress and aggress. Therefore, the defendants requested the Court to dismiss the suit. 3. Based on the above pleadings, the following issue were framed by the Court below: 1. Whether the plaintiff proves that he is in lawful possession of the suit B schedule property as on the date of the suit? 2. Whether the plaintiff further proves that the interference or disturbance by the defendants to the suit ‘B’ schedule property as alleged in the plaint? 3. Whether the defendants prove that the suit is bad for non-joinder and mis-joinder of the necessary parties? 4. Whether the suit is barred by limitation? 5. Whether the Court fee paid on the plaint is not proper? 4. In order to prove the respective contentions, plaintiff got himself examined as PW.1 and one Krishnayya Shetty as PW.2 and relied upon Exs.P.1 to P.7. On behalf of the defendants, first defendant -Mahesh Shetty was examined as DW.1 and one Thimmappa Shetty as DW.2. They relied upon Exs.D.1 to D.6. The trial Court after considering the evidence, held the issues Nos. On behalf of the defendants, first defendant -Mahesh Shetty was examined as DW.1 and one Thimmappa Shetty as DW.2. They relied upon Exs.D.1 to D.6. The trial Court after considering the evidence, held the issues Nos. 1 to 5 in negative and came to the conclusion that even if the plaintiff have any right on kumki privilege, he lost it on account that he did not exercise his right for long time and that he has not entitled to maintain a suit for injunction. Accordingly, the suit came to be dismissed. Aggrieved by the same the appellant filed an appeal in R.A. No. 45/2001, on the file of the Civil Judge (Sr. Dn.), Kundapura. After appreciating the arguments advanced by the parties, formulated the following points for its consideration: 1. Whether appellant - plaintiff proves that he has been in lawful possession and enjoyment of suit B schedule property as kumki privilege of A schedule property? 2. Whether appellant - plaintiff further proves the alleged interference is his enjoyment of kumki privilege? 3. Whether appellant – plaintiff proves that judgment and decree of the trial Court are perverse and interference of this Court is required? 5. The Lower Appellate Court answered the points formulated against the appellant. Accordingly, the appeal filed by the plaintiff - appellant came to be dismissed. 6. Challenging the two concurrent findings of the Courts below, the present second appeal is filed. The appeal was admitted on 14.09.2009 to consider the following substantial question of law: “Whether the Courts below were justified in dismissing the suit of the plaintiff based on the Commissioner’s report submitted in O.S. No. 280/1996 to which the plaintiff is not a party?” 7. I have heard the learned Counsel for both the parties. 8. Reiterating the grounds urged in the appeal memo and averments made in the plaint and depositions of PWs.1and 2, contend that both the Courts did not appreciate the materials on record properly. When the appellant is the owner of A schedule property, he is entitled to exercise his privilege known as kumki rights in respect of B schedule property, which rights could not have been taken over by the defendants. When the appellant is the owner of A schedule property, he is entitled to exercise his privilege known as kumki rights in respect of B schedule property, which rights could not have been taken over by the defendants. According to him, there was an agreement between the plaintiff and defendants and that the father of the defendants by Ex.P.7 dated 12.10.1999, confirmed the kumki privilege of the plaintiff and that both the Courts did not considerEx.P.7 properly. According to him, the Courts below have come to the conclusion that the appellant was not in possession on the date of the suit, in order to grant a decree of perpetual injunction, which is contrary to the evidence. He further contends that the trial Court relying upon Ex.P.5 and Ex.P.6 has wrongly dismissed the suit. Therefore, he requested the Court to set aside the judgment and decree of the Court below by allowing this appeal. 9. Per contra, learned Counsel for the respondents submits that if really the plaintiff was in lawful possession of B schedule property as on the filing of the suit, there was no necessity for the appellant to enter into an agreement as per Ex.P.7 on 12.10.2001 after two years after the institution of the suit. If at all, a settlement had been taken place there was no impediment whatsoever, to the plaintiff to file a compromise petition in the suit itself. According to him, both the Courts have held that Ex.P.7 is not proved in accordance with law. In the absence of the same, it cannot be contended by the plaintiff that he has been exercising the kumki privilege in respect of the government land when the documents produced by himself shows that he was not in possession of the property. They further contend that Exs.P.5 and P.6 are not disputed by the plaintiff and in his cross-examination, PW.1 has stated the correctness of Ex.P.5 and Ex.P.6. When Exs.P.5 and P.6 namely the Commissioners report and sketch prepared in O.S. No. 280/1996 is admitted in toto by PW.1, the question of law formulated in this appeal will not arise and therefore, requests the Court to dismiss the appeal. 10. Having heard the parties in a suit for perpetual injunction, a Court is required to consider whether the plaintiff is in lawful possession or not. The plaintiff is claiming the right over the government land. 10. Having heard the parties in a suit for perpetual injunction, a Court is required to consider whether the plaintiff is in lawful possession or not. The plaintiff is claiming the right over the government land. Therefore, he cannot establish his lawful possession except his right to use the kumki privilege on the land and it is not in dispute that such kumki rights are abandoned by the adjacent owner of the property. He looses the right over the same. The Courts below after appreciating the evidence have concurrently held that the plaintiff was not in possession of the B schedule property. Even, ExsP.5, P.6 and P.7 are produced by the plaintiff only, the same documents were also produced by the defendants as Exs.D.3 and D.4. When the plaintiff in his evidence is not disputing the sketch and the report prepared by the Commissioner in the earlier suit, which report came to be submitted by the Commissioner during the pendency of this suit, he cannot contend that the trial Court was not justified in dismissing the suit. 11. Admittedly, these documents are relied upon by the plaintiff, when these documents are going against the appellant/plaintiff; as in a suit for injunction, what requires to be considered is only the lawful possession. When both the Courts have held that the plaintiff is not in possession of the land, this Court cannot hold that the findings of the Courts below is bad in law, as the same is based on proper evidence of PW.1. In the circumstances, no substantial question of law arises in this appeal. Even if considered that the question of law framed in this appeal as a substantial question of law, this Court is of the opinion that the judgment and decree does not suffer from any illegality committed by the Courts below in dismissing the suit, relying upon the Commissioners report, which report was produced by the plaintiff and relied upon by him. Accordingly, this appeal is dismissed.