Karnataka High Court
Dhanraj S/O Veerabhadrappa vs Ramakant S/O Trimbakrao Kulkarni on 2 March, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
RSA No.107/2007
Between:
1. Dhanraj S/o Veerabhadrappa,
Major, Occ: Agriculturist,
R/o Badala Village,
Afzalpur Taluk,
Gulbarga District-585301.
2. Smt. Mahadevi S/o Gurupadappa,
Major, Occ: Household and
Agriculturist, R/o Badala Village,
Afzalpur Taluk,
Gulbarga District-585 301.
... Appellants
(By Smt. Maya T.R., Advocate)
And:
Ramakant S/o Trimbakrao Kulkarni,
Aged about 56 Years,
Occ: Junior Engineer in M.S.E.B.
R/o Dhanakana Wadi,
Pune-43, Taluk: Havali,
Dist: Pune,
State: Maharastra-411001.
... Respondent
(By Smt. Jayashree M. Biradar, Advocate)
2
This Regular Second Appeal is filed under Section
100 of Civil Procedure Code, praying to allow this second
appeal with costs throughout, and thereby set aside the
judgment and decree dated 09.10.2006 passed by the
First Additional Civil Judge (Sr., Dn.,) at Gulbarga in
R.A.No.134/2006 and confirm the judgment and decree
dated 24.06.2006 passed by the Civil Judge (Jr., Dn.,) and
JMFC at Afzalpur, in O.S.No.41/2003 and grant such other
relief.
This appeal coming on for Final Hearing, this day,
the Court delivered the following:-
JUDGMENT
This second appeal is filed by defendant Nos.1 and 2 challenging the judgment and decree dated 09.10.2006 passed in R.A.No.134/2006 by I- Additional Civil Judge (Senior Division) at Gulbarga.
2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. Appellants are the defendants and respondent is the plaintiff before the Trial Court.
3
3. Facts giving rise to the filing of the appeal briefly stated are as under:
Plaintiff filed a suit for the relief of declaration and perpetual injunction and mandatory injunction. It is the case of the plaintiff that the he is the exclusive owner in possession of the land bearing Sy.No.326 measuring 17 acres 25 guntas including the suit property measuring 25 acres 19 guntas situated at Badadal village, Afzalpur Taluk, Kalaburagi District. The plaintiff has acquired the right over the above suit land in the partition which has taken place in the year 1984 between two brothers and mother of the plaintiff. The suit property is the ancestral property of the plaintiff. Plaintiff and his family members are residing at Pune. Plaintiff is a government servant working at Maharashtra State Electricity Board as a Junior Engineer and he used to cultivate his land Sy.No.326 through his servants and occasionally, he 4 used to come to Badadal village to visit agricultural land whenever necessary. Defendant No.1 is owner in possession of Sy.No.325 to an extent of 4 acres and defendant No.2 is the owner in possession of land in Sy.No.325 measuring to an extent of 8 acres 17 guntas out of total measuring 16 acres 19 guntas situated at Badadal village. In between the land in Sy.Nos.325 and 326 there exists a old bund (common bund) running from East to West which demarcate the boundaries of the said land and it is common bund between the plaintiff's land and defendants' land.
Ancestors of the plaintiff have put a big bund in the land in Sy.No.326 long back leaving 20' to 25' distance from common bund with an intention to prevent flow of water which runs from northern and also from eastern side in order to avoid erosion of soil of land in Sy.No.326. The big bund is a part of Sy.No.326 and natural flow of water runs since long 5 time and passes towards southern side through stone bund and it connects to Nala which existed in between the land in Sy.Nos.325 and 346. Plaintiff is in possession of big bund including 20' to 25' distance of land left behind the big bund. The defendants have no right, interest or title whatsoever over the said land and they have put another bund in Sy.No.325 towards western side running from east to west and north to south in diversion by removing the common bund towards the western side. Plaintiff came to Gulbarga from Pune and on 18.05.2003 and he visited the suit land and witnessed the changes made by the defendants and called upon the defendants to remove newly created bund. But the defendants refused for the same. Hence, the plaintiff filed a suit for declaration and injunction.
3.1. Defendants filed written statement admitting the ownership of the land in Sy.No.325 but 6 denied existence of the suit schedule property as described in the plaint. It is further contended that the suit property is a pathway as shown in the tonch map and on these grounds, prayed to dismiss the suit.
3.2. The Trial Court, on the basis of pleadings of parties, framed the following issues:
1. Whether the plaintiff proves the existence of the suit schedule property as described in the plaint?
2. Whether the plaintiff proves his title and ownership over the suit schedule property?
3. Whether the plaintiff proves his legal right and lawful possession over the same on the date of the suit?
4. Whether the plaintiff further proves the alleged interference by the defendant? 7
5. Whether the plaintiff further proves the creation of new mud bund by the defendant as alleged in the plaint?
6. Whether the plaintiff is entitled for the relief of declaration sought in the plaint?
7. Whether plaintiff is entitled for relief of permanent injunction sought in the plaint?
8. Whether the plaintiff is entitled for relief of mandatory injunction sought in the plaint?
9. To what relief parties are entitled for?
10. What order or decree?
3.3. Plaintiff in order to prove his case, examined himself as PW-1 and examined two witnesses as PW-2 and PW-3 and got marked Ex.P1 to P12. On the other hand, defendant No.1 was examined as DW-1 and examined one witness as DW-2 and got marked 8 Exs.D1 to D8. The Trial Court, after recording evidence and considering the material on record, held that the plaintiff has failed to prove his legal and lawful possession over the suit schedule property as on the date of suit; that the plaintiff has failed to prove the alleged interference by the defendants; that the plaintiff has failed to prove creation of new mud bund as alleged in the plaint; that the plaintiff is not entitled for the relief of declaration and also for permanent injunction as sought in the plaint and consequently, dismissed the suit of the plaintiff. 3.4. The plaintiff aggrieved by the judgment and decree passed by the Trial Court in the aforesaid suit, filed an appeal in R.A.No.134/2006. The First Appellate Court framed the following points for consideration:
1. Whether the lower Court is justified in holding that the plaintiff has failed to 9 prove the existence of suit schedule property and he is the owner and possessor of the same and his legal right over the disputed property and alleged interference by the defendants, as such plaintiff is not entitled to the relief claimed in the suit by answering issue Nos.1 to 9 in the negative and proceeded to dismiss the suit?
2. Whether the findings given by the lower Court on all the issues is perverse, capricious, erroneous and unreasonable and so passed without proper appreciation of the evidence brought on the record which warrants any interference by this Court?
3. Whether appellant proves that sufficient opportunity to lead evidence was not given and are there any grounds made out to remand the case for fresh trial?
4. What Order?10
3.5. The First Appellate Court, after re-
appreciation of the evidence on record, answered point No.1 in the negative and answering point No.2 in the affirmative and point No.3 in the negative and set aside the judgment and decree passed by the Trial Court and consequently, decreed the suit of the plaintiff. Hence, the defendants being aggrieved by the judgment and decree passed by the First Appellate Court has filed this second appeal.
4. This Court vide order dated 30.08.2010 has admitted this appeal for consideration of the following substantial questions of law:
i. Whether the pathway which is shown in the Tonch Map produced as Ex.P10 could be claimed as part of the suit property and in the face of further admission by the plaintiff, in his cross-examination?11
ii. Whether the Lower Appellate Court was justified in holding in favour of the plaintiff, notwithstanding the dismissal of the suit by the Trial Court?
5. Heard learned counsel for the defendants and learned counsel for the plaintiff.
6. Learned counsel for the appellants/ defendants submits that the plaintiff himself has produced copy of Tonch map as Ex.P10. In Ex.P10 suit property is shown as pathway. Further, PW.1 has clearly admitted in the cross-examination that in Ex.P10 dotted line is shown as pathway. She further submitted that the First Appellate Court has ignored Ex.P10 and admission of PW.1 in the cross- examination and passed the impugned judgments. She further submits that the impugned judgment passed by the First Appellate Court is arbitrary and 12 erroneous. On these grounds, she prays to allow the appeal.
7. Per contra, learned counsel for the plaintiff submits that there is no such pathway existed in the land of the plaintiff. She further submitted that admission of plaintiff in the cross-examination is stray admission. The First Appellate Court after considering the material on record was justified in decreeing the suit. She further submitted that the First Appellate Court has not committed any error in passing the impugned judgment and decree. On these grounds, she prays to dismiss the appeal.
8. Perused the records and considered the submissions made by learned counsel for the parties. It is not in dispute that the plaintiff is the exclusive owner and in possession of the land in Sy.No.326 measuring 17 acres 25 guntas out of 25 acres 19 13 guntas situated at Badadal village. It is also not in dispute that the defendants are the owners of land in Sy.No.325 and both the lands are situated adjacent to each other. It is the case of the plaintiff that there exists old big bund in the land of the plaintiff and the said bund was constructed by the ancestors leaving behind 20' to 25' with an intention to prevent flow of water from north to southern side. The said bund is a part of Sy.No.326. In order to assert that there is a big bund in between Sy.Nos.325 and 326, plaintiff has produced Tonch map which is marked as Ex.P10. From perusal of Ex.P10, it is clear that there is pathway existed in the land of the plaintiff. Further, in order to substantiate the contents of Ex.P10, PW.1 has clearly admitted in the cross-examination that big bund is situated right side and thereafter pathway and thereafter small bund. In the plaint, it is stated that there is pathway in his land in Sy.No.325. Further, 14 PW.1 has not denied in the evidence that bund was formed after encroaching the pathway. The survey department has surveyed the land of the plaintiff as well as the defendants and Tonch map was prepared. From the perusal of tonch map, it would disclose that pathway is shown in dotted line and the same pathway passes through land of the plaintiff. Ex.P10- Tonch map is prepared by the Survey Department. The said document is a public document. The plaintiff has not challenged Ex.P10. The Trial Court relying upon Ex.P10 and also admission of PW.1 has rightly held that the plaintiff has failed to prove creation of new bund as alleged by the plaintiff in the plaint. The Trial Court further held that the plaintiff failed to prove the alleged interference by the defendants. Consequently, the Trial Court dismissed the suit. The First Appellate Court on re-appreciation of evidence allowed the appeal on the ground that whatever 15 evidence given by DW.1 is without there being pleadings and has discarded the evidence of DW.1 and proceeded to pass the impugned judgment. The plaintiff has filed suit for declaration and injunction. It is for the plaintiff to establish that the suit schedule properties are part and parcel of the plaintiff's property. The plaintiff cannot depend on the weakness of the defendant. In a suit for declaration of title, onus to prove the title of the property is on the plaintiff. The said view is taken by the Hon'ble Apex Court in the case of Union of India and Ors., vs. Vasavi Co-op. Housing Society Limited and others reported in AIR 2014 SC 937. The First Appellate Court without considering the well established principle of law laid down by the Hon'ble Apex Court and also Ex.P10 and admission of P.W.1 has passed the impugned judgment and decree and the same is arbitrary and contrary to the records. In 16 view of the above discussion, substantial question Nos.1 and 2 are answered in favour of the appellants.
9. In the result, appeal is allowed. The impugned judgment and decree dated 09.10.2006 passed in R.A.No.134/2006 by I-Additional Civil Judge (Senior Division), Gulbarga, is set aside. Consequently, the judgment and decree dated 24.06.2006 passed in O.S.No.41/2003 by the Civil Judge and JMFC at Afzalpur, is restored.
Sd/-
JUDGE NB*