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2023 DIGILAW 1185 (KAR)

Chikkananjegowda v. Javaregowda B. N.

2023-10-06

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission and I have heard learned counsel for appellants and learned counsel for the respondent. 2. The case of the respondent/plaintiff before the Trial Court is that the suit schedule property bearing Survey No.88 measuring 4 acres of Bolenahalli was in possession and enjoyment of the ancestors of the plaintiff, subsequently, it was granted to the plaintiff on 20/3/2002 by the Government. From the date of issuance of saguvali chit, the plaintiff is in possession of the suit property as full owner of the same. Even if, so many persons raised several litigations in respect of the suit property, same are ended in favour of the plaintiff. Defendants are the brothers and they are having their own land towards east of the suit property. But they have no right, title or interest over the suit property, inspite of it they are interfering with the possession of the plaintiff over the suit property. Hence, the plaintiff filed suit for relief of declaration and permanent injunction. 3. After service of suit summons, defendants appeared and filed written statement, denying the averments made in the plaint. It is contended that the very claim of the plaintiff that the ancestors of the plaintiff were in possession of the suit property is not correct. It is also contended in fact, the Survey No.88 of Bolenahalli is the Government Gomala land, same is measuring 400 to 450 acres, villagers of Bolenahalli obtained the land in the said survey number by the Government grant and accordingly, as the mother of defendants was in possession of 4 acres in the said survey number from the year 1945, it was granted to her and same is renumbered as Survey No.138, now defendants became the owner of the said land and they are in possession of the same. The suit schedule property is situated towards the west of the land granted to the mother of defendants, defendants ancestors were in possession of the same and now defendants are cultivating the said land. Defendants have filed an application for grant of the land and same is pending. The plaintiff is not in possession of the suit property at any time and he created the documents in collusion with the revenue officers. The defendants filed appeal to the Karnataka Appellate Tribunal and matter is pending. Defendants have filed an application for grant of the land and same is pending. The plaintiff is not in possession of the suit property at any time and he created the documents in collusion with the revenue officers. The defendants filed appeal to the Karnataka Appellate Tribunal and matter is pending. In fact, on the basis of the created document, the plaintiff is interfering with the possession of defendants over the suit property and trying to encroach upon the same. 4. The Trial Court, having considered both oral and documentary evidence, dismissed the suit of the plaintiff by judgment and decree dtd. 14/2/2013. 5. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in Regular Appeal No.5060 of 2014 and the First Appellate Court, after considering the grounds urged in the appeal, has formulated the following points for consideration: "1. Whether the Court below erred in rejecting the relief of declaration and injunction prayed by the plaintiff? 2. Whether there are grounds to interfere in the impugned judgment and decree? 3. What Order?" 6. The First Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, allowed the appeal in-part and granted the relief of permanent injunction in favour of the plaintiff. Being aggrieved by granting of permanent injunction, the defendants filed present second appeal before this Court. 7. The contention of the learned counsel for the appellant/defendants is that the First Appellate Court committed an error in granting the relief of permanent injunction in favour of the planitiff. He vehemently contended that the grant was made in favour of the plaintiff and same was challenged before the Karnataka Appellate Tribunal and the Karnataka Appellate Tribunal, set-aside the order and remanded the matter to the concerned authority and same is pending. Learned counsel also vehemently contended that the document Exhibit P15-Mutation Register would clearly disclose the fact that the appellants were in possession and same has not been considered by the First Appellate Court. The First Appellate Court, erroneously come to the conclusion that the plaintiff is in possession of the suit property. The very approach of the First Appellate Court is erroneous, and hence, this Court has to admit the appeal and frame substantial question of law as the First Appellate Court erred in granting the relief of permanent injunction in favour the respondent/plaintiff. The very approach of the First Appellate Court is erroneous, and hence, this Court has to admit the appeal and frame substantial question of law as the First Appellate Court erred in granting the relief of permanent injunction in favour the respondent/plaintiff. Learned counsel would also contend that, inspite of there being no evidence to show that the plaintiff was in possession and enjoyment of the suit schedule property, the judgment and decree passed by the First Appellate Court is not correct. 8. Learned counsel for the respondent/plaintiff vehemently contended that the Trial Court, not considered both oral and documentary evidence, while dismissing the suit, when the relief is sought for declaration and injunction and in two pages, judgment was passed by the Trial Court, by answering issue Nos.1 to 3 as negative and same has been reassessed by the First Appellate Court. The First Appellate Court, having taken note of the material available on record, particularly in paragraph 17, comes to the conclusion that there is an ample evidence on record to show that the plaintiff is in possession of the suit property. The documents produced by the plaintiff reveal that the father of the plaintiff-Kaverigowda was in possession of the suit schedule property, as grantee and the name of the plaintiff is mentioned as per Exhibit P1-Grant Certificate. The plaintiff was put to cross-examination by the learned counsel for the defendants but nothing elicited to show that the plaintiff is not in possession of the suit schedule property. The evidence of DW-4, who is the witness of the defendants itself categorically admitted that there is a land of Kaverigowda towards North of his property and therefore, same has to be taken note of the fact that the plaintiff is in possession of the suit schedule property. Hence, First Appellate Court, not committed any error and defendants have not produced any document to show that they are in possession of the suit schedule property. Learned counsel also brought to the notice of this Court to the document of the year 1953, wherein the name of Kaverigowda is found in the year 1953, which is marked as Exhibit P25. Accordingly, he sought for interference of this Court. 9. Learned counsel also brought to the notice of this Court to the document of the year 1953, wherein the name of Kaverigowda is found in the year 1953, which is marked as Exhibit P25. Accordingly, he sought for interference of this Court. 9. Having heard the learned counsel for appellants and learned counsel for the respondent and also on perusal of the material on record would indicate that, in respect of the very same property, both are making rival claim. It is also not in dispute that, earlier the grant was made in favour of the respondent/plaintiff and also the application filed by the appellants herein was not disposed of. The fact that the Karnataka Appellate Tribunal, set-aside the order and remanded the matter to the concerned authority is not disputed by both the parties. The learned Court also not granted the relief of declaration in view of sending the matter to the concerned authority with regard to declaration is concerned. The First Appellate Court, taken note of, particularly the record of the year 1953 which is marked as Exhibit P25, wherein, specifically mentioned that, Kaverigowda has grown Ragi as well as Paddy and extent is also mentioned in the said document. Apart from that, other documents are also placed before the Court i.e. RTC Extract, Grant certificate and other documents in favour of the plaintiff and also taken note of the admission given by the DW-4, who is the witness of the defendants, who categorically deposed that the plaintiff is in possession of the his property, on the east of his property, the property of one Srikante Gowda; on the west, the property of one Ninge Gowda; on the north, the property of Kaveri Nanje Gowda; and on the south, the property of Ninge Gowda is available. The fact that the land has been granted in favour of the appellants to an extent of 4 acres was not in dispute and also there is a land to an extent of 4 acres, which is adjacent to their land. The First Appellate Court taken note of the evidence available on record both oral and documentary evidence, wherein, the appellants have not placed any material and the plaintiff has relied upon the documents to show that he is in possession. Accordingly, the First Appellate Court come to the conclusion that the case of the respondent/plaintiff is probable. The First Appellate Court taken note of the evidence available on record both oral and documentary evidence, wherein, the appellants have not placed any material and the plaintiff has relied upon the documents to show that he is in possession. Accordingly, the First Appellate Court come to the conclusion that the case of the respondent/plaintiff is probable. When such finding is given, having taken note of the admission of the DW-4, who is the witness of the appellants and also documentary evidence placed on record, I do not find any error committed by the First Appellate Court in granting the relief of permanent injunction in favour of the plaintiff as the same is considered based on the merit and finding given by the Trial Court, however failed to consider the same by the Trial Court. I have already pointed out that the suit is filed for relief of declaration and permanent injunction and the Trial Court in two page judgment, disposed of the same by not considering the document produced at Exhibit P25 and such other documents and not even relied upon the evidence of DW-4 and same has been considered and reassessed by the First Appellate Court taking into account the grounds urged therein. Hence, no grounds are made out to invoke Sec. 100 of the Code of Civil Procedure to admit the appeal and frame any substantial question of law. In view of the discussion made above, I pass the following: ORDER Appeal is dismissed.