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2023 DIGILAW 1223 (KAR)

Thimmappa v. Rajappa

2023-10-13

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission. I have heard the learned counsel for the appellant. 2. The factual matrix of the case of the appellant/plaintiff before the Trial Court that he is the owner in possession and enjoyment of the suit schedule property having acquired the same under the Darkasth long ago. Accordingly, khata came to be mutated in his name. Since, from the date of acquisition he has been in possession and enjoyment of the suit schedule property as absolute owner. Defendants being stranger to the suit schedule property having no manner of right, title and interest or possession over the suit schedule property tried to interfere with his possession and enjoyment of the suit schedule property besides trying to dispossess him from the suit schedule property. Hence, he filed the suit. 3. The defendants appeared and filed written statement denying the plaintiff's right, title and possession over the suit schedule property. It is contended that one Nagappa @ Durgappa had three sons by name Honnappa "" defendant No.1, Thimmappa "" plaintiff and Ramachandrappa and three daughters by name Eramma, Kamalamma and Gangamma. Daughters of said Nagappa were married long ago. Nagappa and his sons continued to enjoy their family properties. Nagappa @ Durgappa died about 35 years' ago. The joint family was in unauthorized occupation and possession of suit schedule property. Nagappa died prior to the grant, plaintiff being wordly wise man having the knowledge about grant, with the consent of his brothers, made an application before the revenue authority to get the land granted in his favour. Joint family paid the upset price to get the grant in favour of plaintiff and accordingly, suit schedule property was granted in favour of plaintiff under Darkasth. Plaintiff, defendant No.1 and Ramachandrappa got the suit schedule property partitioned about 15 years ago orally. In the said partition, eastern 1/2 portion of suit schedule property i.e. 3 acres had fallen to the share of defendant No.1 and western 1/2 portion had fallen to the share of plaintiff. Defendant has been enjoying his share as absolute owner. When he made an application before revenue authority to get the khata in his name, plaintiff refused to give consent. Taking advantage of strained relationship plaintiff tried to dispossess him. 4. Defendant has been enjoying his share as absolute owner. When he made an application before revenue authority to get the khata in his name, plaintiff refused to give consent. Taking advantage of strained relationship plaintiff tried to dispossess him. 4. Having considered the pleadings of the parties, the Trial Court framed an issues, whether the plaintiff proves that he is in peaceful possession and enjoyment of suit schedule property and whether the plaintiff proves alleged interference and whether entitled for relief of permanent injunction? 5. The plaintiff examined himself as PW-1 and got marked Exs.P1 to P30 and examined one witness as PW-2. On the other hand defendant No.1 examined himself as DW-1 and got marked the documents Exs.D1 to D8 and Ex.C1 came to be marked during cross examination of PW-1. 6. The Trial Court having considered both oral and documentary evidence available on record comes to the conclusion that, when the plaintiff claims that property is a granted land and the same is granted under Darkasth in the year 1965, in order to substantiate the same, he has not produced any document, even plaintiff has been recalled and got marked 24 documents and it is the claim of the plaintiff that suit schedule property Sy.No.127/P2 measuring 6 acres was granted to him under Darkasth and no such document is placed before the Court. But in the RTC, name of the plaintiff is appearing as per Darkasth and also he has produced RTC which has marked as Exs.P1 to P20, but as per Exs.P12, P13, P14, P15, the name of one Korachara Thimmappa S/o Thimmappa was appearing in respect of Sy.No.127/P2 measuring 6 acres. But the plaintiff has to prove that he also called as Korachara Thimmappa. But as per Exs.P16 to P20 the name of plaintiff was shown as Thimmappa S/o Nagappa. But as per the documents produced by the plaintiff himself at Ex.P27, the Sy.No.127/P2 measuring 6 acres is a Government land was illegally entered in the name of the plaintiff and Village Accountant also issued the notice against him in terms of Ex.P27 that said entry was made illegally by the plaintiff Even though as per the plaintiff, he was cultivating the said suit property, but he has to prove that as on the date of suit, he was in lawful possession and enjoyment of suit property. 7. 7. The Trial Court having taken note of the material available on record and also considering the contention of the defendants, since defendants claims that out of 6 acres, 3 acres was given to them in the partition between himself and plaintiff. Even DW.1 has produced the correspondence of Tahasildar and Assistant Commissioner, wherein the plaintiff has illegally entered his name in respect of 6 acres in Sy.No.127. But as per the said Ex.D3 and D4, Sy.No.127 of Kappagere Village is a Government land. Having taken note of these materials comes to the conclusion that the plaintiff has not proved that he is in possession of the property as absolute owner as contended by him and also considered the other document, particularly Ex.D3 and D4 produced by defendants, i.e. plaintiff has entered his name in Sy.No.127 in respect of the Government property and hence, dismissed the suit. 8. Being aggrieved by the judgment and decree of the Trial Court an appeal is filed in R.A.No.243/2016 . The First Appellate Court having reassessed the material in keeping the grounds urged in the appeal formulated the points, whether the Trial Court is justified in holding that plaintiff has failed to prove his lawful possession and enjoyment over the suit schedule property, whether appellant has made out grounds to permit him to adduce additional evidence by producing the documents and also whether the documents are necessary and whether it requires interference? 9. The First Appellate Court having reassessed the material comes to the conclusion that the Trial Court has taken note of the material on record that plaintiff has not proved his lawful possession and enjoyment and answered first point as affirmative and answered other points as negative and comes to the conclusion that the Trial Court having considered the material available on record when the plaintiff failed to prove the lawful possession in respect of the suit schedule property, the Trial Court has properly appreciated the oral and documentary evidence available on record. 10. When the title of the plaintiff over the suit schedule property is seriously disputed and when there is a cloud on the title of the plaintiff over the suit schedule property, the plaintiff ought to have sought for the relief of declaration of title and not sought any relief and also taken note of the judgment in the case of ANATHULLA SUDHAKAR Vs. BUCHI REDDY (DEAD BY LRS. BUCHI REDDY (DEAD BY LRS. AND OTEHRS) reported in 2008(4) SCC 594 comes to the conclusion that when the title is disputed and when the cloud on the title of the plaintiff ought to have filed the suit for the relief of declaration and the same has not been sought by the plaintiff and hence, dismissed the appeal. 11. The present second appeal is filed by counsel for the appellant/plaintiff contending that both the Trial Court as well as the First Appellate Court committed an error and not appreciated the material in a proper perspective and fails to take note of Exs.P1 to P30, which are the Government documents not giving the findings and Ex.D1 is the grant certificate which is the Government records in giving its finding and both the Courts have failed to consider the material available on record. The Courts below erred in not considering the fact that complaint by Tahasildar under Ex.D4 and FIR is not a conclusive proof to dispute Exs.D1 to D30 in giving its finding and hence, this Court has to frame the substantial question of law. 12. Whether both the Courts justified in rejecting the claim of the plaintiff without considering the Government records standing in the name of the plaintiff in 1965? Whether the Courts below are justified in rejecting the claim of the plaintiff merely on the ground of filing a complaint by the Tahasildar? and whether the Courts below are rejecting the claim of the plaintiff when the RTCs, revenue records standing in the name of the plaintiff in a suit for permanent injunction? The First Appellate Court ought to have only consider whether plaintiff is in possession as on the date of filing a suit. 13. Having heard the appellant's counsel and also on perusal of the material available on record, very pleading of the plaintiff before the Trial Court, suit schedule property is granted to him under Darkasth. The First Appellate Court ought to have only consider whether plaintiff is in possession as on the date of filing a suit. 13. Having heard the appellant's counsel and also on perusal of the material available on record, very pleading of the plaintiff before the Trial Court, suit schedule property is granted to him under Darkasth. On the other hand, it is the case of the defendants that there was a division in the property of the family and only 3 acres was fallen to defendant No.1 and western portion of 3 acres fallen to the share of the plaintiff The Trial Court also taken note of in paragraph No.11 that when the plaintiff claims that property was allotted to him under Darkasth, he has not produced any document regarding grant of suit property in his favour but only produced the RTC and also in respect of RTC there is a dispute that there was a illegal entry and also taken note of Ex.P27 by Village Accountant issued a notice to the present plaintiff that the said entry was made illegally by the plaintiff and having taken note of the material on record even DW1 has produced the correspondence of Tahasildar and Assistant Commissioner wherein the plaintiff has illegally entered his name in respect of 6 acres in Sy.No.127 and also taken note of Exs.D3 and D4 Sy.No.127 of Happagere Village is a Government land and hence, comes to the conclusion that plaintiff has not made out any case to grant the relief of permanent injunction. It is also taken note of by the First Appellate Court also on reappreciation of evidence when the defendants disputed the very title and possession of the plaintiff and ought to have sought for the relief of declaration that when there was a cloud on the title of the plaintiff and both the Courts taken note of non production of any document, granting of property in favour of the plaintiff and also with regard to the entry in respect of RTC, a criminal compliant was registered. The counsel appearing for the appellant would submit that though criminal complaint is filed against him and the same is ended in acquittal. The counsel appearing for the appellant would submit that though criminal complaint is filed against him and the same is ended in acquittal. Even if it is acquitted and when the criminal case is registered and the same cannot be a title deed in respect of any of the parties, but when the plaintiff approaches the Court seeking the documentary relief of permanent injunction ought to have placed the material, prima facie show that he has been in lawful possession over the suit schedule property and documents which have been relied upon clearly discloses that a criminal proceedings has been initiated against the plaintiff and Ex.27 is the document with regard to initiation of criminal complaint and in order to substantiate his contention that property was granted to him under Darkasth also no document is produced before the Court. When such materials are considered by the Trial Court as well as the First Appellate Court and First Appellate Court also while accepting the reasoning given by the Trial Court also taken note of and there is a dispute with regard to the title and cloud on the title of the plaintiff, ought to have sought for the relief of declaration and declaratory relief has not been sought and First Appellate Court also in paragraph No.23 while discussing the same held that when the title of the plaintiff over the suit schedule property is seriously disputed and when there is a cloud on the title of the plaintiff over the suit schedule property, the plaintiff ought to have sought for the relief of declaration of title and having considered the principles laid down in the judgment of Anathulla Sudhakar case also comes to the conclusion that when title is disputed, ought to have sought for declaration. No doubt, when the relief is sought for permanent injunction, the Court has to look into the material available on record. 14. No doubt, when the relief is sought for permanent injunction, the Court has to look into the material available on record. 14. The counsel for the respondents vehemently contend that RTC Ex.P1 is before the Court and the very entry in respect of RTC is concerned is disputed and criminal prosecution is also initiated against the appellant/plaintiff with regard to illegal entry of his name and when title is also disputed ought to have placed the material before the Court that prima facie he has been in possession over the suit schedule property and in order to substantiate the same, not placed any material and hence, I do not find any error committed by the Trial Court and First Appellate Court in coming to the conclusion that the plaintiff has not made out a case to grant the relief of permanent injunction. 15. In view of the discussions made above, I pass the following: ORDER Second appeal is dismissed.