Karnataka High Court
Nagesh S/O Anant Bhat , Since Deceased vs Timma S/O Kariya Madiwal on 3 February, 2022
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.6329 OF 2012(PI & MI)
BETWEEN:
1. NAGESH S/O ANANT BHAT
SINCE DECEASED
1A). SMT.SARASWATI W/O NAGESH BHAT
AGED ABOUT 66 YEARS,
OCCl: HOUSE HOLD WORK,
R/O HOSUR VILLAGE,
TAL: SIDDAPUR, DIST:U.K-581322
1B). SMT.ASHWINI W/O SHRINIVAS NAYAK
AGED ABUT 33 YEARS,
OCC: AGRI, R/O PANJIM GOA STATE.
1C). SMT. SWATI W/O VIVEK SHANBOG
AGE: 31 YEARS, OCC: HOUSE HOLD WORK
R/O RATNAGIRI, MAHARASTRA STATE.
1D). SMT.ARATI, W/O HARISH PAI,
AGE: 30 YEARS, OCC: HOUSE HOLD WORK
R/O UJIRE, DIST: DAKSHIN KANNADA-570134.
R/BY P.A.HOLDER SRI.SHESHAGIRI,
S/O ANANT BHAT, AGED ABOUT 69 YEARS,
OCC: AGRI & BUSINESS, R/O SIDDAPUR,
DIST: UTTAR KANNADA-581322.
...APPELLANTS
(BY SRI.S.R.HEGDE ASSOCIATES &
2
SRI.B.RAGHAVENDRA SIMHA, ADVOCATES)
AND:
TIMMA S/O KERIYA MADIWAL
AGE: 37 YEARS, OCC: AGRI,
R/O HERAVALLI, SHIRALGI VILLAGE,
TAL: SIDDAPUR, DIST: UTTAR KANNADA-581322.
...RESPONDENT
(BY SRI.VISHWANATH HEGDE, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGEMENT & DECREE DTD: 07/09/2012 PASSED IN
R.A.NO.04/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, SIRSI,
DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
DTD:04/12/2010 AND THE DECREE PASSED IN O.S.NO.69/2006 ON
THE FILE OF THE CIVIL JUDGE (JR.DN.), SIDDAPUR, U.K,
DISMISSING THE SUIT FILED FOR PERMANENT INJUNCTION AND
MANDATORY INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful plaintiffs wherein both the Courts below have dismissed the suit.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court. 3
3. The facts leading to the case are as under:
The suit property is a Government betta land bearing Survey No.118/B/10 totally measuring 5 acres 14 guntas situated at Siralgi Village, Siddapur Taluk. The plaintiffs are claiming that this betta land is assigned for beneficial enjoyment of their garden lands which are situated adjoining to this betta land. The plaintiffs claims that they are in possession of garden lands which are owned by them i.e. Survey No.142/2, 143, 151 and 153 of Siralgi village. The plaintiffs specifically contended that they are enjoying betta privileges available to them over the suit schedule property by erecting fence all around the said property. The grievance of the plaintiffs is that defendant has no manner of right, title and interest over this betta land. Inspite of this fact, the defendant is trying to encroach over the suit betta land high handedly and on 11.10.2006, the defendant tried to fell standing trees in the suit schedule property and this compelled 4 the plaintiffs to file a bare suit for injunction and consequently, by way of amendment, relief of mandatory injunction was also claimed.
3(a) On receipt of summons, the defendant tendered appearance and filed written statement and contested the proceedings. In the written statement, defendant stoutly denied the averments made in the plaint. The defendant contended that he owns the land bearing Survey No.206 which is just abutting to suit betta land on the northern side and since the time of his ancestors, they are enjoying the betta privilege to an extent of 1 acres on the northern side of suit betta land. The defendant also contended that he has already constructed a residential house and has a cattle shed in one acre of that betta land and he has also raised some fruit yielding trees. He has also specifically contended that plaintiffs have purchased the garden lands which are owned by him just about 15 years back but defendant has been enjoying the privilege of betta land to an extent of one acre even prior to 5 the purchase by plaintiffs. On these set of defence, the defendant specifically contended that he is in exclusive possession to an extent of one acre on the northern side of the betta land and therefore, the present suit for perpetual injunction and also mandatory injunction filed by plaintiffs to the entire extent measuring 5 acres 14 guntas is not at all maintainable and hence prayed for dismissal of suit.
3(b) The trial Court having assessed oral and documentary evidence has answered issue Nos.1 to 3 as well as additional issue Nos.1 and 2 in the negative. The trial Court having examined the rebuttal evidence, has held that the property owned by defendant bearing Survey No.206/2 is situated just adjoining to the betta land. The trial Court placing reliance on Ex.D7, which is the village map has come to the conclusion that the topography of lands abutting to the betta land as per Ex.D7 infact tallies with the plaint sketch furnished by the plaintiffs. Referring to these documents, as well as Ex.D3 which is the record of right pertaining to the 6 land owned by defendant has come to the conclusion that the land owned by defendant bearing Survey No.206 is just abutting to the suit betta land towards the north. In fact referring to Exs.D4 to D6 which are the extracts of the Village maps, the trial Court has recorded a categorical finding that the garden lands owned by plaintiffs i.e. Survey Nos.142/2, 143, 151 and 153 of Shiralli village are not all abutting to betta land. Having examined the rebuttal evidence on record, the trial Court in fact has recorded a categorical finding that the garden lands owned by the plaintiffs are situated at a distance of 1 ½ kms. from the betta land. The ocular evidence lead in by the plaintiffs coupled with the evidence of independent witness P.W.2 would also not come to the aid of the plaintiff. The Trail Court has recorded a categorical finding that the ocular evidence does not establish the correct boundaries of the suit betta land and the description shown in the plaint. The trial Court has also recorded a categorical finding that the clinching rebuttal evidence on record would 7 clearly establish that defendant is in exclusive possession of one acre of betta land and is enjoying the same by putting up construction in one acre of land. It is in this background, the trial Court has come to the conclusion that plaintiff has failed to establish his lawful possession and consequent alleged interference by defendant as alleged in the plaint. While answering issue No.2, the trial Court has come to the conclusion that the plaintiff has failed to establish his lawful possession and enjoyment over the entire extent of suit betta land which measures 5 acres 4 guntas. On the contrary, the trial Court has come to the conclusion that defendant is in exclusive possession to an extent of 1 acre of betta land towards the northern side. On these set of grounds, the trial Court has proceeded to dismiss the suit.
3(c) Feeling aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred an appeal in R.A.No.4/2011. The first appellate Court having independently assessed oral and documentary evidence has 8 also come to the conclusion that on perusal of Exs.P1 to P5 even if plaintiffs have succeeded in establishing that suit betta land was assigned to the garden lands belonging to the plaintiffs and their family, even then, the clinching rebuttal evidence would clearly indicate that it is defendant who is in exclusive possession over betta land to an extent of one acre. The first appellate Court has also come to the conclusion that the defendant has placed sufficient material to indicate that he is enjoying a portion of land in suit betta land and that he has also constructed a house therein. On these set of reasonings, the first appellate Court has concurred with the findings and conclusions arrived at by the trial Court. Both the Courts have concurrently held that defendant is in exclusive possession to an extent of one acre. On these set of reasonings, both the Courts have proceeded to dismiss the suit.
4. Heard the learned counsel for the plaintiffs. Perused the judgments under challenge. 9
5. On perusal of the material on record, this Court would find that the rebuttal evidence lead in by the defendant clearly indicates that the garden lands owned by the defendant i.e. Survey No.206/2 is abutting to the northern side of the suit betta land. The material on record also indicates that the defendant is in exclusive possession to an extent of one acre. The materials placed on record, in fact, clearly indicates that the garden lands owned by the plaintiffs are at a distance of 1 ½ km from the suit betta land. If this factual aspect is taken into consideration, then this Court is unable to understand as to how the plaintiffs who does not possess any lands abutting to the suit betta land can assert a right over the betta land. If they do not possess lands abutting to the suit betta land then the question of beneficial enjoyment of betta land would not arise in the present case on hand. Both the Courts have concurrently held that the plaintiffs have failed to establish that they have right to enjoy the suit betta land that have been assigned to the garden 10 lands owned by the plaintiffs i.e. Survey No.142/2 143, 151 and 153 of Shiralli village. The concurrent findings recorded by the Courts below in denying any relief to the plaintiffs is based on clinching and cogent rebuttal evidence adduced by defendant. I do not find any infirmities and illegalities in the judgment and decrees rendered by the Courts below. No substantial question of law arises.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE *alb/-.