Basanagouda Sangappa Kusalapur v. Muregappa S/O. Shankarappa Dodamani
2020-11-02
V.SRISHANANDA
body2020
DigiLaw.ai
JUDGMENT : This second appeal is preferred by the defendant Nos. 1 and 2 questioning the validity of the judgment passed in RA.No.22/2009 dated 28.02.2012 passed by the Presiding Officer, Fast Track Court, Bailhongal whereby the judgement and decree passed by the Additional Civil Judge (Jr.Dn), Bailhongal in O.S.No.24/2006 dated 15.07.2009 was confirmed. 2. The brief facts, which are necessary for disposal of the appeal are as under: 3. Plaintiff filed the original suit in O.S.No.24/2006 on the file of the Additional Civil Judge (Jr.Dn), Bailhongal contending that he is the owner of the land bearing GPC.No.126/A measuring East-west 80 feet and North-South 25 feet situated in Mugabasava village. It is his case that he brought property under the registered sale deed dated 19.12.1985 from his previous owner Sri.Basayya Adiveppa Kelageri. It is his further case that defendants being the strangers to the suit property started interfering with the peaceful possession and enjoyment of the suit property in the 1st week of March 2006 and therefore, plaintiff was constrained to approach the Court with a prayer for permanent injunction. 4. In the suit, defendants entered appearance in pursuance of the suit summons and filed written statement denying the plaint averments in toto. 5. Trial Court framed the issues and considering the oral and documentary evidence on record came to the conclusion that the plaintiff is absolute owner of the suit property and decreed the suit of the plaintiff. 6. Being aggrieved by the judgment of the Trial Court, the defendants filed the appeal before the Fast Track Court, Bailhongal in RA.No.22/2009. Learned Judge in the First Appellate Court secured the trial Court records. After perusal of the trial Court’s records and hearing the arguments of the parties, the First Appellate Court concurred with the judgment of the trial Court and dismissed the appeal. 7. Sri.Avinash Malipatil on behalf of the Sri.Sriharsha.A.Neelopanth, learned counsel for the appellants vehemently contended that both the Courts erred in law in decreeing the suit of the plaintiff. He further contended that the judgments passed by both the Courts are based on surmises and conjectures and without there being application of mind into the factual and legal aspects and thus, the judgments of the Court below are suffering from legal infirmities and perversity. 8.
He further contended that the judgments passed by both the Courts are based on surmises and conjectures and without there being application of mind into the factual and legal aspects and thus, the judgments of the Court below are suffering from legal infirmities and perversity. 8. He further contended that both the Courts failed to note the possession of the defendants in respect of the suit property from the year 1971-72 and as such, they were enjoying the suit property adversely to the interest of the real owner and thus sought for allowing the appeal. 9. Per contra, Sri.Sangram S Kulkarni, learned counsel for the respondent/plaintiff contended that the both the Courts have taken into consideration the relevant factual and legal aspects and decreed the suit of the plaintiff. Therefore, there is no merit in the substantial questions of law raised in the appeal memorandum and thus prayed for rejection of the appeal. 10. In the appeal memo, the following substantial questions of law are raised. (1) Whether the Court below are justified in granting permanent injunction in favour of the plaintiff though the Courts below have concurrent given finding that plaintiff is not in actual possession of the suit property and without applying the principles of preponderance of probabilities? (2) Whether the Courts below are justified in decreeing the suit overlooking the established principles of law that suit for bare injunction is not maintainable without seeking recovery of possession? 11. After hearing the counsel for parties and after perusal of the material on record, it is seen that in the written statement filed by the defendants, they have not specifically stated as to when defendants came into the possession of the suit property and started enjoying adversely to the interest of the real owners. All necessary ingredients required to prove the plea of adverse possession is not at all pleaded, lest there being any proof there of. 12. Under the circumstance, the trial Court as well as the First Appellate Court having found the title in the plaint by way of registered sale deed dated 19.12.1985 and also entries in the revenue records, came to the conclusion that the plaintiff is in actual possession of the suit property and thus granted the permanent injunction. Further considering the entire material on record, both substantial questions of law sans merit and therefore, it requires no further consideration.
Further considering the entire material on record, both substantial questions of law sans merit and therefore, it requires no further consideration. Hence, the following order is passed. ORDER The Regular Second Appeal is rejected. No order as to costs.