Karnataka High Court
Sri V Narayan Bhat vs Sri V Krishna Bhat on 7 August, 2024
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RSA No. 62 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.62 OF 2015 (INJ)
BETWEEN:
SRI V. NARAYAN BHAT
S/O VENKATARAMANA BHAT
AGED ABOUT 73 YEARS
R/AT SAJANKUBETTU HOUSE
AJJIBETTU VILLAGE AND POST
BANTWAL TALUK, D K DIST.-574201
...APPELLANT
(BY SRI. NIKHIL K.N., ADVOCATE FOR
SRI. O SHIVARAMA BHAT, ADVOCATE)
AND:
1. SRI V KRISHNA BHAT
Digitally S/O VENKATRAMANA BHAT
signed by R SINCE DEAD BY HIS LEGAL REPRESENTATIVES
DEEPA
1(A) N. VENKATAKRISHNA SHARMA
Location: S/O LATE V. KRISHNA BHAT
HIGH COURT
AGED ABOUT 58 YEARS
OF
KARNATAKA R/AT MULIYA HOUSE
ALIKE POST, VIA VITTAL, BANTWAL TALUK
1(B) N. MAHALINGA SHARMA
S/O LATE V. KRISHNA BHAT
AGED ABOUT 56 YEARS
R/AT SAJANKABETTU HOUSE
AJJIBETTU VILLAGE AND POST
VIA VAMADAPADAVU
BANTWAL TALUK - 574 324
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RSA No. 62 of 2015
1(C) JAYASHANKARA SHARMA
S/O LATE V. KRISHNA BHAT
AGED ABOUT 54 YEARS
R/AT MELANTHABETTU HOUSE
MELANTHABETTU VILLAGE ANDN POST
BELTHANGADY TALUK
1(D) MOOKAMBIKA
D/O LATE V. KRISHNA BHAT
AGED ABOUT 52 YEARS
1(E) JAYASHREE
D/O LATE V. KRISHNA BHAT
AGED ABOUT 50 YEARS
1(F) SHYAMALA
D/O LATE V. KRISHNA BHAT
AGED ABOUT 48 YEARS
RESPONDENTS No.4 TO 6 ARE R/AT
SAJANKABETTU HOUSE
AJJIBETTU VILLAGE AND POST
VIA VAMADAPADAVU
BANTWAL TALUK - 574 324
2. THE STATE OF KARNATAKA
REPRESENTED BY
DEPUTY COMMISSIONER
D K MANGALORE - 575 001
3. THE ASSISTANT DIRECTOR OF LAND RECORDS
NEAR DEPUTY COMMISSIONERS OFFICE
MANGALORE-575001
...RESPONDENTS
(BY SRI. NEERAJA KARANTH, ADVOCATE FOR
SRI. K SHRIHARI, ADVOCATE FOR R1
SRI. R.A. MACHA KANUR, ADVOCATE FOR R2 & R3)
THIS RSA IS FILED UNDER SEC.100 ORDER XLII RULE 1
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
27.9.2014 PASSED IN R.A.NO.93/2004 (RE-NUMBERED AS
R.A.NO.1/2007) ON THE FILE OF THE PRL. SR. CIVIL JUDGE &
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NC: 2024:KHC:31633
RSA No. 62 of 2015
JMFC., BANTWAL, D.K, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 30.3.2004
PASSED IN O.S.NO.111/1996 ON THE FILE OF THE PRL. CIVIL
JUDGE (JR.DN) BANTWAL.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment dated 27.09.2014, passed in R.A.No.93/2004 by the learned Prl. Senior Civil Judge & JMFC, Bantwal, D.K., confirming the order dated 30.03.2004, passed on preliminary issue No.8 in O.S.No.111/1996 by the learned Prl. Civil Judge (Jr.Dn.), Bantwal, D.K.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.
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3. The brief facts leading rise to filing of this appeal are as under:
Plaintiff filed a suit for mandatory injunction against the defendant No.3 to rectify the FMB sketch in respect of Sy.No.43/7B1 and Sy.No.43/7B2 situated at Ajjibettu Village, Bantwala Taluk, D.K. It is the case of the plaintiff that, himself and defendant No.1 are the brothers and jointly owned certain immovable properties in Ajjibettu Village and the said properties were divided as per the partition deed dated 03.06.1983. Under the said partition deed, apart from other properties, the property described in 'X' schedule was allotted to the plaintiff and the property described under 'Y' schedule along with certain other properties comprised under schedule 'A' to the partition deed were allotted to the share of defendant No.1. The RTC in respect of 'X' schedule property stands in the name of the plaintiff and the RTC in respect of 'Y' schedule property stands in the name of defendant No.1. It is contended that, in the first week of February 1995, -5- NC: 2024:KHC:31633 RSA No. 62 of 2015 the plaintiff applied for certified copy of the sketch in respect of Sy.No.43/7B for filing a suit in O.S.No.41/1996. The certified copy was issued to the plaintiff on 05.02.1996. On perusing the said sketch, plaintiff found out that the said sketch is not in accordance with the allotment of the shares under the partition deed. It is contended that, no notice was issued to the plaintiff by defendant No.3. Hence it is contended that, the sketch was prepared behind the back of the plaintiff. Hence, plaintiff filed the suit for mandatory injunction.
4. Defendant No.1 filed written statement denying the allegations made in the plaint and contended that the defendant No.3 has prepared the sketch as per the partition deed. It is contended that the suit filed by the plaintiff is not maintainable. The plaintiff has got an equal efficacious remedy. On these grounds, sought for dismissal of the suit.
5. Defendant No.3 filed written statement denying the averments made in the plaint and contended that the -6- NC: 2024:KHC:31633 RSA No. 62 of 2015 suit is not maintainable in view of Section 49 of the Karnataka Land Revenue Act, 1964. Hence, prayed to dismiss the suit.
6. The Trial Court, on the basis of the above said pleadings, framed issues and issue No.8 was treated as preliminary issue. The trial Court after hearing the learned counsel for the parties, answered issue No.8 in affirmative holding that the suit filed by the plaintiff is not maintainable as the plaintiff has got an equal efficacious remedy and consequently dismissed the suit of the plaintiff vide order dated 30.03.2004.
7. The plaintiff aggrieved by the order passed on preliminary issue No.8 in the above said suit, filed an appeal in R.A.No.93/2004, renumbered as R.A.No.1/2007. The First Appellate Court, on re-appreciation of the material evidence on record, dismissed the appeal with costs, confirming the order passed by the trial Court on preliminary issue No.8. The plaintiff aggrieved by the same, has filed this second appeal.
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8. Heard learned counsel for the plaintiff.
9. Learned counsel for the plaintiff submits that the suit filed by the plaintiff is maintainable and the trial Court has committed an error in treating issue No.8 as preliminary issue and the plaintiff has filed the suit for rectification of FMB sketch. Hence the suit filed by the plaintiff is maintainable and prayed to allow the appeal.
10. Perused the records and considered the submissions of learned counsel for the plaintiff.
11. Admittedly, the plaintiff has sought for the relief of mandatory injunction against defendant No.3 to rectify the FMB sketch in respect of Sy.No.43/7B1 and 43/7B2 in accordance with the sketch produced along with the plaint. According to the plaintiff, the sketch is not prepared in accordance with the provision of law and as per the partition deed. If at all if the plaintiff is aggrieved by the FMB sketch, the plaintiff has got an equal efficacious remedy under Section 49 of the Karnataka Land Revenue Act, 1964. The plaintiff without exhausting the said -8- NC: 2024:KHC:31633 RSA No. 62 of 2015 alternative remedy, has filed the suit for mandatory injunction. As per Section 41(h) of the Specific Relief Act, 1963, which provides that an injunction can be refused when equal efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust. The plaintiff has got equal efficacious remedy under Section 49 of the Karnataka Land Revenue Act, 1964. Hence, under Section 41(h) of the Specific Relief Act, 1963, the suit of the plaintiff is not maintainable and the same is filed without exhausting efficacious remedy. The trial Court was justified in answering preliminary issue No.8 in affirmative and consequently dismissing the suit as not maintainable. The first Appellate Court on re-appreciation of the material on record, was justified in confirming the order passed by the trial Court on preliminary issue No.8. Hence, I do not find any substantial question of law that arise for consideration in this appeal.
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12. In view of the above discussion, I proceed to pass the following:
ORDER The appeal is dismissed.
Consequently, the judgment and order passed by the courts below are hereby confirmed. Liberty is reserved in favour of the plaintiff to challenge the FMB sketch before the appropriate forum.
No order as to the costs.
SD/-
(ASHOK S. KINAGI) JUDGE RD