Karnataka High Court
R Hanumanthappa S/O R Appaiah vs K T Hanumanthappa S/O K Lingappa on 3 April, 2008
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
IN THE HIGH COURT OF' KARNATAKA AT BANGALORE
QATED THIS THE 3&9 DAY OF APRIL, _
: BEFORE :
THE H€)N'BLE3 MRJUSTICE % "
R.S.A.N0.3é¥?V(L§OOfi
BETWEEN: 'T ' A T' A
R HANUMANTHAPPA s/o R APPAIAH»
AGE : MAJOR, occ :.Aa:;_R1cUL'zUR1jsT'-.._
KAKARALTHATA,
BELLARY cmr. APPELLANT
(By Sri : vAI§13i§A.1~g:A1~f:'i}'§}U~§zJégL§Apv}-3
AND :
1. "
* s/o KVLINGAMPPA
_ cobrrgacfrok, . §{;&§<;A}?Ai.THATA
B_ELLAR'¥_ cm' _ _ " '
-- .. R 1§£E3LAMVMA"'-
.. 'w/0 R 'HANUN§AN'FHAPPA
' xarsvg : MAJOR, occ : AGRICULTURIST
_ 'R/'KAKARALTHATA
CITY RESPONDENTS
7 gag sf; :'*';M.A{:4:0J KUMAR, ADV. FOR'
em: M.-BESAI 85 ARAVINE c DESAI, ADVS.}
"Tl-{IS RSA FILED U/S. 100 CPO AGAINST THE JUDGMENT
{ AND,fDECiR.EE D'i'.15.2.02 PASSED IN RA NOJO5/98 ON THE
"FILE 'OFi3?_fI'HE PRL. CNIL JUIDGE (SRDIVN) 85 C.J.M., BELLARY,
" .4'v..ALi_.QW£-NGTHE APPEAL ANZI) SETTING ASIDE THE JUDGMENT
AND DEKIREE D'¥'.31.10.98 PASSED IN 0.3. N096/97 ON THE
F'iLE' "OF THE PRL. C§ViL JUDGE (JRDIVN) (II ADDL. CiViL
4* (JR. D{VN.}, BELLARY.
THIS APPEAL COMING ON FOR HEARING THIS EBAY, THE
'COURT DEIAVERED THE FOLLOWING:
1It.:rs l.UUK! OF KARNATAKA HEGHFO'1j._]RT OF KARNATAKA HIGH COUR? OF KARNATAKA HIGH "COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH I
JUDGMENT
This is an appeal of the plaintifl' Whotlle defendants for a restraint order from the suit property said to beigof rickyard frotn interfering' by F.
2. The suit __eou11; came to be reversed loa.gre;.. the appeal of the lower} court was of the plai11tifi' though found to JEGH COURT OF KARNATAKA HIGH»./(IO'i;.'_I{RT OF KARNATAKA HSGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 4 be a fact the possession is not based on property cannot be _ortler"of_fx1junction and accordingly, the appe.;aiUis'. Aggrleved by the judgment and lower court, the present appellant
-- -- lfi-s lxlfore this 'lorief facts leading to the appeal are as follows:
F '"'I'l1e plaintifl' claimed that suit 'B' and 'C' schedule are the properties gifted in favour of two plaint1'fl's by the maternal uncle of the first plaintifl' and HIGH COURT OF KARNATAKA HIGH" OF KARNATAKA HIGH COURT OF KARNATAKA l-HGH COURT OF XARNATAKA HIGH COURT OF KARNATAKA HIGH injunction. The plaintifl' aiso pleaded that the _p__laintifi's have acquired prescriptive title by adverse"
and that the possession is required to law.
4. The defendant contest_ed 'suit averments were denied. tvas indicated that the suit the so called rickyard wasa pozftion in Sy.No.748, ancestral property of like. it the defendant had * of the gran(l--father Erappa and year 1915. It was asserted that the is to be accepted, what has been ' gift deed was only agricultural land as s11_'it'Vls:'§V}l'.i: schedule and house property as in suit 'C' sclzedule property and as such the plaintilf did not get V' V. right, titie or interest nor were they in exclusive possession of the suit schedule rickyard; that plaintiff was in possession and enjoyment of as on the date of filing of the suit. That it did not even form part of the suit 'B' schedule property as well as 'C' schedule; that there was no prima facie case in favour of the plaintiff nor balance of convenience or A4 for granting injunction order. Therefore; dismissal of thesuit.
5. It is in this context tithe fdjflowirig issues: it it it I V
i) Whett1e:r_ftI_1e iimves that he is in pessessiori of the suit 'A' saiiexiuic the date of filing of proves that the defe;r3.dai'it to dispossess the schedule property?
6.", _ The Wentito on this issues. On behalf of fi'OIfl the first plaintifi who was _t31e Witness documentary evidence Exs.P-- 1 to _ T=P~7' were and their side was closed. On the the.' defendant, the defendant examined himself arid two other witnesses examined as DWs.2 4: photographs of the disputed land marked as ii2xs.DI(a) to (d) and negatives of the photogaphs as nlwn MIJUKI ur RAKNAIAKA r!l(3vl-E./§(.'"lT:IRT OF KARNATAKA HIGH COURT Oi' KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HSGH Ex.D~I and the Bill issued by the photographer as §/O
-{IGH COURT OF KARNATAKA HIGH Afifii.-JRT OF KARNATAKA HKGH COURT Oi' KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH 1 Ex.D- 1{e} were marked. The trial court answered issues in favour of the plaintiffs to hold that the proved their possession land enjoyment*'l.of property on the date of the'"s1'1it« that; T. attempt on the part of the the plaintiffs. Therefore, the seughi;
and accordingly,
7. The jiidgewji' t.I?:eV_' appellate court in the of the appeal forIaula.te<iV as ' pppiemuxte prove their lawful it _4 " over the suit schedule 'A' as on the date of the suit? If so, there is an alleged interference? T Si O Tilievfiower court on re-appreciation of the evidence etetee that the plaintiffs have not established their " it lawful mssession, in respect of the suit schedule property and accordingly, came to the conclusion that the plajntifi is not entitled for the relief of injunction against the defendant, particularly being the owner of the property and therefore, allowed the appeal and ma dismissed the suit. It is against such an adverse order of the lower appellate court, the second
9. Appearing on behalf "of _ the Vardhaman V. Gunjal very lower appeilate court that even on the appellate court, the decree C' trial court is court having found raw: iniiossession of the suit:
iieouid» dismissed the suit for injtinction that they were not in that the p1aiI1tifi's did not get any tide oriiixiterest in respect of the suit 'A' schedule deed and that the defendant Vhavingi suit 'A' schedule property which pa1't,V__Cof 3 acres of land in Sy.No.748 of 'Village, the order of dismissal is not in law and hence, the judgment and decree 1/ by the lower appellate should be set aside.
'nun uuuni Ur RAKNAIAKA HIGH OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA 1'-i|GH COURT OF KARNATAKA I-HGH I HIGH COURT OF KARNATAKA HEGHAACOURT OF KARNATAKA HIGH COURT OF KARINEATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARINEATAKA HIGH I
10. It is found that the plaintiffs were in possession of the suit 'A' schedule property and they injunction. The trio' E court had rightly _ of injunction in favour of in A' possession and 50 years or so and to protected in law A_ if were to be a one V ownes disturbed the possession Iianded manner and that into his own hands from the suit 'A' is submitted is that the settled position iI1'*1eWCis that when the person in possession as true owner if the true owner does not resort ._ procedure to evict such a trespasser. It apfiieabie in the case of plaintifl; if had been put in C' " = possession authorisedly by the owners by gifting suit Cschedule 'B' and 'C' properties and if they had remained in possession for such a long duration, it was not open to the defendant to act in a high handed manner in the year 1997 to disturb the possession of the plaintiff and luv: 3 MVJURI VI' RHKEYHIHIKM HIGH CQURT ATAKA HIGHCOURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGHCOURT O? KARNATAKA IHGHI gaunt the plaintiff three months time to re1I_;ove the articles from the 'A' schedule land without to their other rights which they may _. i2.av§:'* law. Otherwim, in all other respecps,..tt;e _ Tudvgfé S-k