Karnataka High Court
Sri Veerabhadra @ Poojari vs Smt Hemavathi on 19 November, 2021
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP SINGH YERUR
R.S.A. No.1989 OF 2018
BETWEEN:
1. SRI VEERABHADRA @ POOJARI
S/O LATE BASAVEGOWDA,
AGED ABOUT 55 YEARS, AGRICULTURIST,
2. SRI MANJU,
S/O VEERABHADRA @ POOJARI
AGED ABOUT 28 YEARS, AGRICULTURIST
3. SMT. NEELAMMA,
W/O VEERABHADRA @ POOJARI
AGED ABOUT 48 YEARS, AGRICULTURIST,
ALL ARE R/AT BETTADAPURA VILLAGE AND HOBLI,
BETTADAPURA-PERIYAPATNA MAIN ROAD,
PERIYAPATNA TALUK - 571 102,
MYSORE DISTRICT.
...APPELLANTS
(BY SRI. P.MAHESHA, ADVOCATE)
AND:
1. SMT. HEMAVATHI
W/O DR.C.K.BASAVEGOWDA,
R/AT: CHAPPARADAHALLI VILLAGE,
HARANAHALLI HOBLI,
PERIYAPATNA TALUK - 571 107,
MYSURU DISTRICT.
2. SRI VENKATESHA
S/O MOTEGOWDA,
AGED ABOUT 58 YEARS,
2
BETTADAPURA HOBLI,
PERIYAPATNA TALUK - 571 102.
3. SRI JAGADISHA,
S/O BASAVEGOWDA,
AGED ABOUT 68 YEARS, AGRICULTURIST,
R/O UPPARAD BEEDHI, BETTADAPURA VILLAGE,
PERIYAPATNA TALUK-571 102,
MYSORE DISTRICT.
... RESPONDENTS
(NOTICE TO RESPONDENTS DISPENSED WITH)
THIS APPEAL IS FILED U/S 100 OF CPC, 1908
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC, PERIYAPATNA, IN R.A.NO.7/2018, DATED:
17-07-2018 WHICH HAS CONFIRMED THE JUDGMENT AND
DECREE PASSED BY THE LEARNED CIVIL JUDGE AND JMFC
AT PERIYAPATNA IN O.S.NO.351/2012, DATED 15-11-2017
AND ETC.,
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for appellants, the matter is taken up for final disposal.
2. This appeal has been preferred by the appellants/defendants challenging the Judgment and decree passed by Civil Judge and JMFC., Periyapatna in O.S.No.351/2012 dated 15.11.2017 whereby the 3 plaintiffs' suit for bare injunction came to be decreed in favour of respondent No.1/plaintiff. The said Judgment and decree having been confirmed by the First Appellate Court by dismissing the appeal, the appellants/defendants are before this Court in this appeal.
3. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court.
4. Brief facts of the case are as under:
It is the case of the plaintiff that plaintiff is absolute owner and enjoyment of the suit schedule property Item Nos.1 and 2 comprising:
Item No.1: Vancant Site bearing Janjar No.1127, Khatha No.809 (New M.R.No.46/04-05) measuring EW: 42 feet, NS: 40 feet, situated at Kasaba Bettadapura Village Panchayath limits, Bettadapur Hobli, Periyapatna Taluk, Mysore District, bounded by towards, East by : Hassan-Periyapatna Main Road, West by : L/o Basavegowda 4 North by : Govt. property South by : Site No.721 (Plaint Schedule Item No.2 property) Item No.2: Vancant Site bearing Janjar No.1127, Khatha No.721 (New M.R.No.46/04-05) measuring EW: 66 feet, NS: 33 feet, situated at Kasaba Bettadapura Village Panchayath limits, Bettadapur Hobli, Periyapatna Taluk, Mysore District, bounded by towards, East by : Hassan-Periyapatna Main Road, West by : L/o Basavegowda North by : Site No.809 (Plaint Schedule Item No.1 property) South by : Site belongs to Jagadisha
5. It is stated that both these properties are situated at Bettadapura Hobli, Periyapatna Taluk and that the plaintiff purchased the same under Registered Sale Deed dated 29.05.1995 from one Sri.B.K.Puttegowda and first son Sri.B.P.Venkatesha and Sri.Annaiah of Basalpura and his children Mylari, Neelaiah, Goravaiah and Chandra. It is further stated that in the registered sale deed dated 29.05.1995 the said vendors of the properties were wrongly mentioned and thereby came to be rectified for executing 5 registered rectified deed dated 16.10.1995. It is further case of the plaintiff that pursuant to the purchase, husband of plaintiff has been in exclusive possession and enjoyment of suit properties and upon his death, the plaintiff has been in peaceful possession and enjoyment of the suit properties and revenue records have been mutated in her name.
6. This being the state of affairs, the defendants who having no manner of right, title or interest in the suit schedule property, on 01.10.2012 trespassed to the suit schedule properties and interfered with the plaintiff's peaceful possession and enjoyment of the same, due to which a complaint came to be lodged by the plaintiff which thereafter triggered in the filing of present suit.
7. After service of summons to the defendants, detailed written statement came to be filed by the defendants contending that plaintiff has not approached the Court with clean hands and no such 6 suit schedule properties exists and the description of boundaries are improper and not correct and that the plaintiff does not have any right, title or interest over the suit schedule properties. It is further contended inter-alia with other grounds that there is no extent at all of the suit schedule properties and no documents have been produced by the plaintiff for conversion of the properties to non-agricultural status. It is a plea taken by the defendant that 2nd defendant and his family were in possession of 2 acres 19 guntas of land in Sy.No.228/3A of Bettadapura Village and in order to obstruct the defendants possession and enjoyment over the said land has filed a false suit by fabricating and concocting documents. It is further stated that no documents pertaining to the suit schedule properties has been produced by the plaintiff and accordingly defendants sought for dismissal of the suit.
8. Based on the pleadings, the trial Court framed the following issues:-
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"1. Whether the plaintiff proves that, she has been in possession and enjoyment of the suit property as on the date of suit?
2. Whether the plaintiff further proves that the alleged interference?
3. Whether the plaintiff is entitled to relief of permanent injunction?
4. What order or decree?"
9. On the basis issues framed, plaintiff examined her special power of attorney holder viz., Sri.C.B. Mohan as PW-1 and got marked Ex.P1 to P13. However, the defendants have not entered into witness box. Hence, no evidence was led on their behalf. Upon hearing the arguments of both the sides and on consideration of the material evidence both oral and documentary, the trial Court passed an order decreeing the suit of the plaintiff and thereby restrained the defendants from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule properties.
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10. Being aggrieved of the said impugned Judgment and decree, the defendant Nos.1 to 3 preferred an appeal before the First Appellate Court contending that 1st defendant was suffering from Bronchitis and other related ailments and defendant Nos.2 and 3 were taking care of him and hence, they could not appear before the Court and adduce evidence. It is further contended that the learned trial Judge has not properly appreciated the documents produced by the plaintiff and failed to consider the fact that because of ill health of defendant No.1, due to which they could not cross-examine the plaintiff and no sufficient opportunity was provided to the defendants to lead evidence and accordingly, on these grounds prayed to set aside the order passed by the trial Judge.
11. Before the First Appellate Authority, defendants filed an application I.A.No.II under Order 41 Rule 27 r/w Section 151 of CPC seeking production of documents by way of additional evidence. 9
12. On notice being served to the original plaintiff and on reconsideration and revaluation of the entire material evidence both oral and documentary and on consideration of the impugned Judgment and decree of the trial Court, the First Appellate Court came to the conclusion that defendants have not been able to bring out any circumstances which could indicate the boundaries shown in the suit schedule properties are fictitious and imaginary boundaries and there is no existence of such suit schedule properties as claimed by the defendants. However, on the basis of material evidence produced by the plaintiff before the trial Court and the documents marked as Ex.P2 and being satisfied with the ownership and title of the plaintiff, the First Appellate Court dismissed the appeal filed by the defendants and confirmed the Judgment and decree passed by the trial Court Judge. It is this order that is in challenge by the defendants before this Court.
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13. Learned counsel for appellants/defendants vehemently contends that the Judgment and decree passed by both the Courts are illegal, erroneous and perverse and the same requires to be set aside and reversed. He further contends that it was specific contention that the suit schedule properties as claimed by the plaintiffs is not in existence and he has made fictitious and false claim so as to indicate an order from the Court and interfere with the peaceful possession of the defendants in the land in Sy.No.228/3A of 2 acres 19 guntas Bettadapura Village for which defendants are owners. He further contends that the trial Court has not provided sufficient opportunity to the defendants to adduce evidence and the principles of natural justice has been violated in not providing an opportunity to the defendants.
14. It is further contended by the learned counsel for appellants/defendants that due to ill health of defendant No.1 and he was taken care by defendant Nos.2 and 3 being the reason of absence of the 11 defendants in adducing their evidence before the Court has been ignored and not considered by both the Courts. He further contends that despite defendants making application Under Order 41 Rule 27 r/w Section 151 of CPC for production of additional documents before the First Appellate Court, the same has been arbitrarily dismissed and not considered by the First Appellate Court by giving a flimsy reason, which is illegal and perverse. He further contends that the defendants are in peaceful possession and enjoyment of suit schedule properties and it has been ignored by both the Courts and thereby rendered miscarriage of justice to the defendants.
15. It is further contended that when the defence has been raised with regard to non existence of the suit schedule property, the plaintiff ought to have filed a better and comprehensive suit for declaration rather than suit for bare injunction, which is not maintainable. It is further contended by the learned counsel for appellants that both the Courts 12 have erred in not considering the fact that no material documents have been produced by the plaintiff to show that she is the owner by producing any title documents and to show the existence of the suit schedule properties.
16. Based on these submissions, learned counsel for appellants contended that Judgment and decree passed by the trial Court and the same having been confirmed by the First Appellate Court is patently, illegal, perverse and arbitrary and hence, the same requires to be set aside and reversed. Accordingly, he prays to frame substantial question of law that would arise for consideration before this Court.
17. I have heard the submission of learned counsel Sri.P.Mahesha on behalf of appellants.
18. Notice on this appeal is not issued to respondents. As on perusal of appeal memo on the grounds urged therein and on hearing the learned counsel for appellants, I am of the opinion that no case 13 is made out. Hence, notice to respondents is dispensed with.
19. Having heard the learned counsel for appellants, the points that arise for consideration before this Court are:
1) Whether there is patent, illegality or perversity in Judgment and decree passed by the trial Court as well as First Appellate Court?
2) Whether the appellants/defendants has made out a case for interference by this Court?
3) What order?
20. My answer to the above points are as follows:
Point No.1: In Negative Point No.1: In Negative Point No.3: As per the final order for the following:14
REASONS
21. Point No.1: It is not disputed that suit filed by the plaintiff is only for bare injunction, wherein she has claimed to be the owner of peaceful possession and enjoyment of the suit schedule properties, which is a vacant site measuring 42' ft x 40' ft situated at Bettadapura Hobli, Periyapatna Taluk, Mysuru District by giving necessary boundaries in the schedule. It is a case of plaintiff that the defendants have no manner of right, title or interest interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule properties. In order to prove the case, plaintiff has examined special power of attorney as PW- 1 and produced Ex.P2 to P13. Ex.P2 being registered sale deed of the suit schedule property and Ex.P4 to P13 being the mutation register extract and tax paid receipts and other revenue documents pertaining to the suit schedule properties. The defendants who have filed their written submission by disputing the claim of the plaintiff and having taken the defence that there is 15 no existence of the suit schedule property, and that no material has been placed before the Court to substantiate the same.
22. On contrary, defendants have taken a plea that they are in possession of the suit schedule properties, but however, have not made any counter claim in the suit. It is seen that by producing documents at Ex.P2 to P13, plaintiff has proved that she is in possession of suit schedule properties by virtue of a registered sale deed, whereas the defendants have not produced any documents neither they have entered into witness box to substantiate the claim or defence taken in the written submission. In view of the suit being only for permanent injunction, the trial Court has considered the documents produced by the plaintiff with regard to Ex.P2 being the registered sale deed and Ex.P4 to P13 being the revenue records and tax paid receipts has come to the conclusion that the plaintiff has made out the case and 16 granted an order of permanent injunction in her favour.
23. Before the First Appellate Court, the defendants filed an application under Order 41 Rule 27 r/w Section 151 of CPC seeking to admit the documents produced therein for consideration to establish that the defendants are in possession of the suit schedule properties. This application came to be dismissed by the First Appellate Court. Though the defendants have produced certain documents, under Order 41 Rule 27 of CPC they have sought for production of certain additional documents which are not mentioned in the orders of the First Appellate Court. However, learned counsel for appellants/defendants submits that they were earlier proceedings between the 2nd defendant and husband of plaintiff and few other documents pertaining to the property claimed by the defendants in Sy.No.228/3A of Bettadapura Village. A fair submission is made by the learned counsel for appellants/defendants that the 17 documents produced did not pertain to suit schedule properties measuring 2 acres 19 guntas, which belongs to appellants/defendants.
24. On careful appreciation of the entire material evidence both oral and documentary, the First Appellate Court has arrived at a conclusion that the trial Court on considering material evidence and documents produced has rightly come to the conclusion that the plaintiff has made out title and possession towards the suit schedule property and that the defendants have not produced any material to show possession or ownership over the suit schedule properties and has not been deligent in defending the suit before the trial Court and accordingly, dismissed the appeal upholding the Judgment and decree passed by the trial Court. It is also noticed that First Appellate Court while appreciating the contentions of the appellants/defendants has considered the documents produced therein by holding that the said documents pertains to Sy.No.251 and 228 and tax paid receipts 18 and index of land and RTC and that none of the documents produced therein pertains to the suit schedule properties of the plaintiff. It is also considered by the First Appellate Court with regard to documents produced by the appellants/defendants with regard to Sy.No.228/3A which belong to defendants on the aspect of apprehension of the defendants that the plaintiff would in turn encroach the properties of defendants by having obtained an order of permanent injunction as against the suit schedule properties. The First Appellate Court has considered the submissions of the appellants/defendants and noted that the boundaries described in the plaint schedule corresponds to the boundaries described in the sale deed - Ex.P2, based on which the plaintiff claims ownership and title over the suit schedule properties.
25. Learned counsel for appellants/defendants during the course of arguments also submits that the defendants are the owners of Sy.No.228/3A measuring 2 acres 19 guntas which is being attempted to interfere 19 by the plaintiff in the guise of obtaining an order of permanent injunction, is granted by the trial Court. However, on perusal of the entire material on record, it is noticed that plaintiff's title is based on Ex.P2, which is a registered sale deed. Whereas defendants are claiming ownership over Sy.No.228/3A but they have not produced any documents before both the Courts to show that they are the owners in cultivation or having their presence in the suit schedule properties claimed by the plaintiff.
26. It is the contention of learned counsel for appellants/defendants that in the guise of obtaining an order of permanent injunction, the plaintiff is trying to interfere the peaceful possession of defendants in Sy.No.228/3A measuring 2 acres 19 guntas. This contention cannot be accepted and I do not intend to accede to the said arguments of the learned counsel for appellants/defendants for the simple reason that it is not case of the appellants/defendants that they are the owners of the suit schedule properties or they are 20 in possession of the suit schedule properties. In fact they claim to be the owners of Sy.No.228/3A measuring 2 acres 19 guntas and if there is an apprehension by the appellants/defendants that the plaintiff would interfere with their peaceful possession in the guise of obtaining an order of permanent injunction, which is granted in O.S.No.351/2012, then it is open to the appellants/defendants to defend themselves and protect their properties in accordance with law, as the plaintiff is not claiming any relief against the properties mentioned by the appellants/defendants.
27. When this being the facts and circumstances of the case and considering the fact that the appeal filed under Section 100 of CPC, it is necessary to understand the scope of Section of 100 CPC before interfering with the concurrent findings rendered by both the Courts. The scope of Section 100 of CPC is very narrow and limited. It is only when there arises substantial question of law for consideration under 21 Section 100 of CPC, this court would interfere. It is also necessary to see that this Court while considering and deciding the appeal under Section 100 of CPC cannot sit in an arm chair of Appellate Court to delve upon the findings which already is concluded before the First Appellate Court, unless there is a grave perversity or arbitrariness in not considering the material evidence placed on record by the parties to the lis. This Court cannot decide the factual aspect of the matter and it is no more res integra that in the normal circumstances, this Court would not exercise powers in re-appreciating the evidence available on record, unless there is a grave and gross violation of both the courts or either court in not appreciating the material evidence on record.
28. In the present case on hand, both the Courts have appreciated material evidence both oral and documentary and have arrived at a conclusion by considering even the submissions made by the learned counsel and the concurrent findings of facts arrived at 22 by both the Courts are binding on this Court and it cannot be interfered unless there is a grave perversity or patent illegality in the judgments rendered by both the Courts. Therefore, this Court will have to see whether appellants/defendants has made out any such ground of grave perversity or illegality committed by both the Courts. In my opinion no such patent illegality or perversity is shown to be forthcoming in the Judgments of the Trial Court as well as first appellate Court.
29. Point No.2: On the basis of discussions made hereinabove, it is clearly established by the material evidence produced by the plaintiff that she has established ownership over the suit schedule properties and also her possession by producing Ex.P2 to P13 and it is also not the case of the appellants/defendants that they are the owners of the suit schedule properties, whereas it is a case that the plaintiff would attempt to interfere with the appellants/defendants in Sy.No.228/3A measuring 2 23 acres 19 guntas in the guise of obtaining Judgment and decree by permanent injunction in the present case. I am of the opinion that question of law, much less substantial question of law for consideration before this Court is not made out to be framed.
30. Hence, from the aforesaid discussions and submissions made by the learned counsel for appellants/defendants, I do not find any patent, illegality or perversity by both the Courts in rendering impugned Judgment and decree and no grounds have been made out for interference in this appeal for framing any substantial question of law.
31. Point No.3: In view of detailed discussions made hereinabove, I do not find any merit in the appeal on hand, accordingly, I pass the following:
ORDER
1) Appeal is hereby dismissed.
2) Judgment and decree dated 15.11.2017 in O.S.No.351/2012 passed by Civil Judge and 24 JMFC., Periyapatna and Judgment dated 17.07.2018 passed by Senior Civil Judge and JMFC., Periyapatna in R.A.No.7/2018 are upheld.
Sd/-
JUDGE RR