Karnataka High Court
Sri Vishakante Gowda vs Sri Hombegowda on 13 August, 2013
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
R.S.A.NO.116/2006
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE RAM MOHAN REDDY
R.S.A. NO.116/2006
BETWEEN:
Sri.Vishakante Gowda,
s/o Kengegowda,
Aged major,
r/at Belagula village,
Belagula hobli,
Srirangapatna taluk.
...APPELLANT
(By Sri. Anand B.Muddappa, Adv. for
Sri.M.V.Seshachala, Adv.)
AND:
1. Sri.Hombegowda,
s/o Chikkaputtegowda,
Aged major,
2. Sri.Manchegowda,
Since deceased by L.Rs.
2(a) Sri.Ningappa,
Aged 55 years,
2(b) Sri.Nagesh,
Aged 50 years,
2(c) Sri.Vasulinga,
Aged 47 years,
2(d) Sri.Putappa,
Aged 45 years,
R.S.A.NO.116/2006
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2(e) Sri.Mallika,
Aged 41 years,
2(f) Smt.Shivamma
w/o late Nanjundegowda,
Aged 60 years,
L.Rs.2(a) to 2(e) are sons of
Late Manchegowda and
L.Rs.2(f) is the daughter of late Manchegowda,
All are residing at Koorgahally village,
Yelwala hobli,
Mysore taluk-571130.
2(g) Smt.Kempamma,
d/o late Manchegowda,
w/o Sri.Venkateshgowda,
Aged 53 years,
Residing at Devarahally village,
Bilikere hobli, Hunsur taluk-571105.
3. Sri.Nanjundegowda,
s/o Sri.Kengegowda,
Aged major,
4. Smt.Parvathamma,
d/o Sri.Kengegowda,
Aged major,
R3 & R4 are r/at Belagula village,
Belagula hobli,
Srinrangapatna taluk-571606.
... RESPONDENTS
This R.S.A. is filed under Section 100 of CPC
against the judgment and decree dated 26.08.2005
passed in R.A.No.48/1995 on the file of the Addl.Civil
Judge (Sr.Dn), Srinrangapatna, dismissing the appeal
and confirming the judgment and decree dated
R.S.A.NO.116/2006
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22.2.1995 passed in O.S.No.373/89 on the file of the
Munsiff, Srirangapatna.
This R.S.A. coming on for admission this day, the
Court delivered the following:-
JUDGMENT
Plaintiffs in O.S.No.373/89, aggrieved by the judgment and decree dated 22.02.1995 of the Munsiff at Srirangapatna, preferred R.A.48/95 which when dismissed by the judgment and decree dated 26.08.2005 of the Addl.Civil Judge (Sr.Dn), Srirangapatna, have presented the second appeal.
2. Facts briefly stated are:-
Plaintiffs claim to have inherited 29 guntas of Agricultural land in Sy.No.147 of Belagola village, Srirangapatna taluk, bounded on the East by land belonging to Hombegowda and Manchegowda, West by Branch Nala and the dry land bearing Sy.No.137, South by Wet land bearing Sy.No.145 and North-land belonging to Manchegowda, purchased by the plaintiffs' R.S.A.NO.116/2006 -4- grand father by name Nanjegowda @ Mallegowda s/o Kengegowda under a sale deed dated 14.05.1981 (Ex.P1), and being in possession of the said land, allege obstruction and interference by the defendants- respondents herein, instituted O.S.No.373/89 for permanent injunction restraining the defendants from interfering with the suit schedule property.
(ii) That suit was opposed by filing written statement of the defendants, contending that under a partition between the defendants 1 and 2 effected on 20.05.1964, 17 ares of land in Sy.No.147/1 fell to the share of the 1st defendant, while 86 ares of land in Sy.No.147/2 fell to the share of the 2nd defendant. It was alleged that the 1st plaintiff whose land situated towards the western side of the 1st defendant's land had encroached 26 guntas of land belonging to the 1st defendant in Sy.No.147/1 and continues to be in possession of the encroached portion, while the 3rd plaintiff encroached 20 guntas of land in Sy.No.147/2 belonging to the 2nd defendant and continues to be in possession of the same. The 3rd plaintiff's land it is said R.S.A.NO.116/2006 -5- is, situated towards the western side of Sy.No.147/2 belonging to the 2nd defendant. According to the defendants, having approached the Revenue Authorities to conduct a survey and demarcate the said lands, it was noticed that plaintiffs 1 and 3 encroached upon the portions of their land and when asked to vacate and hand over possession, did not heed to the panchayath's decision. Therefore, it is said, 1st defendant instituted O.S.No.35/90 before Civil Judge, Srirangapatna arraigning the 1st plaintiff as the defendant while, the 2nd defendant too instituted O.S.No.36/90 before the very same court arraigning the 3rd plaintiff as the defendant for relief of possession. The Tahsildar of Srirangapatna, according to the defendants, dismissed the plaintiffs' application to record their names in the RTC Phanis in respect of 29 guntas of land in Sy.No.147/2 and that defendants have instituted proceedings against the plaintiffs in the Court of the Tahsildar at Srirangapatna, for allegedly removing boundary stones, which is pending. In addition, it is contended that the suit schedule property was not R.S.A.NO.116/2006 -6- purchased by the plaintiffs' grand father under the registered sale deed dated 14.05.1891 and further, that the plaintiffs are not in possession of the suit schedule property.
(iii) In the premise of pleadings of the parties, the trial court framed three issues, whence the 1st plaintiff was examined as PW-1 and marked Exs.P1 to P6 and two other witnesses as PWs 2 and 3, while for the defendants, their power of attorney holder and son of the 1st defendant, when examined as DW-1, marked Exs.D1 to D14.
(iv) The trial court having regard to the material on record and the evidence both oral and documentary, observed (a) that Ex.P1 sale deed dated 14.05.1891 was executed in favour of one Nanjegowda @ Mallegowda s/o Kengegowda, who purchased western half portion in Sy.No.60 from one Sappe Boranna s/o Chikkaboregowda for a sale consideration of Rs.50/-, interalia covenanting that the land in Sy.No.60 totally measured 9 acres 18 guntas bounded on the East by a R.S.A.NO.116/2006 -7- oni, West by Ganigara Eragashetty's land, North by Hombegowda's land and South by Kalichannegowda's land;
(b) PW-1 who spoke to Ex.P1, deposed that his grand father purchased 4 acres and 29 guntas of land in Sy.No.60; (c) that neither Ex.P1 nor the oral testimony of PW-1 was in the direction of establishing that the suit schedule land in Sy.No.147 was subject matter of purchase under the sale deed Ex.P1; (d) that defendants 1 and 2 having instituted O.S.Nos.35/90 and 36/90, before the Civil Judge, Srirangapatna, arraigning plaintiffs 1 and 3, as defendants respectively, alleging encroachment of 26 guntas in Sy.No.147/1 belonging to the 1st defendant and 20 guntas in Sy.No.147/2 belonging to the 2nd defendant, were decreed by judgment and decree Exs.D2, D3, D4 and D5; (e) that the judgment and decree in the said suits were not denied by the plaintiffs and therefore, defendants 1 and 2 were entitled to execute the decree and obtain possession of the encroached portions of the lands; (f) that plaintiffs failed to establish the identity of R.S.A.NO.116/2006 -8- the suit schedule property while the RTC Phanis, were not forthcoming, hence unable to establish that the suit schedule property was the very same property encroached upon as alleged by the defendants. Though plaintiffs marked Ex.P6, the decree in O.S.No.229/77, in which item No.4 of the suit schedule property was said to be the very same suit schedule in O.S.No.373/89, however, in the light of the fact that suits instituted by defendants were allowed by judgments and decrees against plaintiffs 1 and 3 directing delivery of possession of the encroached portions, coupled with the fact that there was no proof of obstruction by the defendants, the trial court dismissed the suit by judgment and decree dated 22.02.1995.
(g) The lower appellate court having framed points for consideration re-appreciated the evidence on record, and concurred with the reasons, findings and conclusions arrived at by the trial court, and dismissed the appeal by judgment and decree dated 26.08.2005. R.S.A.NO.116/2006 -9-
3. Having heard the learned counsel for the appellant, perused the pleadings, the evidence both oral and documentary and examined the judgment and decree of the courts below. In the absence of identification of the suit schedule lands allegedly in the possession of the plaintiffs were the very same land as described in the suit schedule, coupled with the fact that O.S. 35 and 36/90 when allowed by judgment and decree, Exs.D2, D3, D4 and D5 directing delivery of possession of the encroached portions of lands by the plaintiffs, and in the absence of proof of alleged interference by way of obstruction by the defendants, no exception can be taken to the reasons, findings and conclusions of the courts below dismissing the suit and rejecting the appeal.
4. In my considered opinion, no substantial questions of law arises for decision making and the appeal devoid of merits is dismissed.
Sd/-
JUDGE Srl.