Karnataka High Court
The Chairman vs Sri.Tulajappa S/O Nagusha Maharwade on 6 October, 2023
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NC: 2023:KHC-D:11941
RSA No. 5046 of 2011
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5046 OF 2011 (DEC/INJ)
BETWEEN:
1. THE CHAIRMAN
AGRICULTURAL PRODUCE MARKETING COMMITTEE,
RANEBENNUR, HAVERI DISTRICT,
PINCODE-581110.
2. THE SECRETARY,
AGRICULTURAL PRODUCE MARKETING COMMITTEE,
RANEBENNUR, HAVERI DISTRICT,
PINCODE-581110.
...APPELLANTS
(BY SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE)
AND:
SRI.TULAJAPPA S/O. NAGUSHA MAHARWADE,
AGED ABOUT 39 YEARS, OCC: BUSINESS,
Digitally
signed by
SHIVAKUMAR RAGHAVENDRA INDUSTRIES,
SHIVAKUMAR HIREMATH
HIREMATH Date:
2023.12.01
14:47:52
R/O. RANEBENNUR, SRI RAMADEV TEMPLE,
+0530
SANGAM THEATRE ROAD,
RABENNUR HAVERI DISTRICT,
PINCODE-581110.
...RESPONDENT
(BY SRI. J. S. SHETTY, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED U/SEC. 100 CPC.,
1908, AGAINST THE JUDGEMENT & DECREE DTD: 04-10-2010
PASSED IN RA.NO.56/2005 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE RANEBENNUR, DISMISSING THE APPEAL, FILED AGAINST
THE JUDGMENT DTD: 05-06-2004 AND THE DECREE PASSED IN
OS.NO.205/1998 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN)
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NC: 2023:KHC-D:11941
RSA No. 5046 of 2011
AND I-ADDL. JMFC., RANEBENNUR, DECREEING THE SUIT FILED FOR
PERMANENT INJUNCTION.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the defendant under Section 100 of Code of Civil Procedure (hereinafter referred to as 'the CPC'), challenging the Judgment and decree dated 04.10.2010 passed in R.A.No.56/2005 by the Principal Senior Civil Judge, Ranebennur, (hereinafter referred to as 'the first appellate Court') and the Judgment and decree dated 05.06.2004 passed in O.S.No.205/1998 by the Principal Civil Judge (Jr. Dn.) and I Additional JMFC Court, Ranebennur, (hereinafter referred to as 'the trial Court').
2. The parties will be referred to as per their ranking before the trial Court for the sake of convenience.
3. It is the case of the plaintiff that, the suit properties originally measured 07 acres 26 guntas and was owned by one Channabasappa. The northern portion of the -3- NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 said property measuring 05 guntas was purchased by the elder brother of the plaintiff's father by name Kotrappa in the year 1946 and on the basis of M.E.No.4754 dated 29.09.1997, it was numbered as R.S.No.588A/2. It is the further case of the plaintiff that, the suit property had fallen to the share of the plaintiff's father and consequently, the plaintiff succeeded to the suit property as is forthcoming from M.E.No.12577 and hence, the plaintiff is the owner in possession and enjoyment of the suit property and has also availed a loan after mortgaging the suit property. Thereafter, the plaintiff has also got converted the suit property in the year 1968 for the purpose of commencement of an entity by name Raghavendra Industries and that the suit property is an open space and is in possession and enjoyment of the plaintiff and his ancestors from 1947.
4. It is the further case of the plaintiff that the defendants have no manner of right in the property and the defendants have put up construction of a wall towards -4- NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 the northern side of Survey No.558 with the consent of the plaintiffs. That, prior to the filing of the suit, since there was interference by the defendants by trying to dig the foundation, in order to put up construction, he got issued notice under Section 137 of the Karnataka Agricultural Produce Marketing Act, on 05.10.1998. However, the same was not replied. Hence, the present the suit was filed.
5. The defendants entered appearance and contested the case of the plaintiffs. In the written statement filed by defendant No.2, which is adopted by defendant No.1, the defendants have denied the case of the plaintiffs. Further, it is specifically contended that, an extent of 07 acres 21 guntas in R.S.No.588A/2 has been handed over to the defendants through the Assistant Commissioner, Haveri, which aspect has been noted in M.E.No.4321 and since then, the defendant is the absolute owner of the said extent of 07 acres 21 guntas and that the defendant had formed sites and developed the market -5- NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 area in furtherance of the purpose for which the R.S.No.586 measuring 24 acres 32 guntas and R.S.No.588/2 measuring 7 acres 21 guntas, have been taken from the Assistant Commissioner, Haveri. That the defendants have constructed a compound wall by demarcating the area of 07 acres 21 guntas in R.S.No.588/2. That the plaintiff is not entitled to maintain this suit which is liable to be dismissed. Hence, the defendants sought for dismissal of the suit.
6. The trial Court during the pendency of the suit had granted an ex-parte ad-interim order of injunction restraining the defendant from interfering with the possession of the property.
7. Consequent to the pleadings of the parties, the trial Court framed issues. The plaintiff was examined as P.W.1 and a witness i.e. Surveyor was examined as P.W.2. Ex.P.1 to Ex.P.24A have been marked in the evidence. Defendant No.2 was examined as D.W.1. Ex.D1 to Ex.D7 have been marked in the evidence.
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011
8. The trial Court by its Judgment and decree dated 05.06.2004 decreed the suit of the plaintiffs by restraining the defendants or anybody claiming through or under them from interfering with the suit property of the plaintiff and to put up construction by encroaching it. Being aggrieved the defendant preferred R.A.No.56/2005. The plaintiff entered appearance in the said appeal and contested the same. The first appellate Court by its Judgment and decree dated 04.10.2010, dismissed the appeal and confirmed the Judgment and decree passed by the trial Court. Being aggrieved, the present second appeal is filed.
9. This Court by order dated 23.09.2023 framed the following substantial questions of law:
"Whether the findings recorded by the trial Court and the first appellate Court are perverse having regard to the fact that, they have been rendered by a erroneous appreciation of the evidence of P.W.1 and P.W.2 ?"-7-
NC: 2023:KHC-D:11941 RSA No. 5046 of 2011
10. Learned counsel for the appellant Sri. Malllikarjun C. Bsareddy, vehemently contended that, both P.W.1 and P.W.2 have admitted that the defendants have constructed a compound wall which separates the property of the plaintiff and defendants and hence, the injunction as sought for by the plaintiff ought not to have been granted. He further submits that, the ownership of the plaintiff and defendants are undisputed and as is clear from the revenue documents. He further submits that, the testimony of P.W.2 the Surveyor who is an independent witness has not been properly appreciated by the trial Court and the first appellate Court. Hence, he seeks for allowing of the appeal and granting of the relief sought for.
11. Per contra, Sri. J.S.Shetty, learned counsel appearing for the respondent-plaintiffs submits that, the testimony of P.W.1 and P.W.2, if read in its entirety would clearly point to the conclusion that the plaintiff is in possession of the suit property and only when the officials -8- NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 of the defendant attempted to interfere with the said possession, the present suit was filed. He further submits that, the plaintiff is the owner of 05 guntas and the defendants are the owners of 07 acres 21 guntas and hence, both the parties are in possession of their respective properties and there is no dispute with regard to the same. He further submits that, the defendants were constructing a compound wall and since the said compound wall is on the southern side of the suit property and since the same would also protect the possession of the suit property of the plaintiff, he had permitted for construction of the said wall. That, by misreading the evidence between the parties, a contention is sought to be raised that there is a compound wall between the properties of the plaintiff and defendants. He further places reliance on the P.T.Sheet at Ex.P.18 to contend that, the same being an un-disputed document, the parties are in possession of the area as shown in Ex.P.18 and hence, the said aspect of the matter having been appreciated by the trial Court as well as the first appellate -9- NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 Court, the concurrent findings of fact recorded ought not to be interfered with by this Court in the present second appeal. Hence, he seeks for dismissal of the present appeal.
12. The submissions of both the learned counsels have been considered and the material available on record has been perused.
13. The essential case of the parties are undisputed inasmuch as the plaintiff claims an extent of 5 guntas of the land and the defendant claims an extent of 7 acres 21 guntas of land in the erstwhile Survey No.588. That the ownership of the predecessor in title of the plaintiff from 1946 is undisputed. Further it is not in dispute that, along with an extent of 07 acres 21 guntas of land in the original R.S.No.588 which has been presently numbered as R.S.No.588/2, along with an extent of 28 acres 4 guntas in R.S.No.586, the defendants have developed a market yard and plots have been formed in the marked yard of the defendants and the same is utilized for its activities.
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011
14. Before considering the case of the parties, it is relevant to notice the findings of the trial Court and the first appellate Court.
15. The trial Court consequent to the pleadings of the parties, framed the following issues and an additional issue:
(i) Whether the plaintiff proves that he is lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit?
(ii) Whether the plaintiff entitled for the relief sought?
(iii) What order or decree?
Additional Issues:
(iv) Whether plaintiff proves that the defendants are trying to encroach by digging up foundation and illegally interfering with the peaceful possession, vahivat and enjoyment of the suit schedule property?
16. The trial Court while considering issue No.1 has addressed the title of the plaintiff in respect of the suit property. The trial Court has noticed that, there is no denial by the defendants that the plaintiff is the owner of the suit property which goes to show that the defendants
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 are not in actual possession of the same. The trial Court has noticed the fact that, it is undisputed that the defendants have put up compound wall in R.S.No.588/A, towards northern side of the suit property. The trial Court has recorded a categorical finding that the plaintiff has demonstrated that he is the absolute owner in possession and enjoyment of the suit property and the defendants have no manner of right, title or interest over the same, and accordingly answered issue No.1.
17. With regard to issue No.5, the trial Court has noticed that P.W.2 has surveyed and measured the property of the plaintiff and defendants and has produced P.T.Sheet at Ex.P.18 and the survey was made for second time as is forthcoming from P.T.Sheet at Ex.P.23 and there is no difference in the measurement in the said two documents which is admitted by D.W.1 in the cross- examination. The trial Court noticing the testimony of D.W.1 as also the testimony of plaintiffs has recorded that the defendants tried to dig and obstructed the peaceful
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 possession and enjoyment of the suit property of the plaintiff and has answered issue No.2 in the negative.
18. The first appellate Court while considering the appeal filed by the defendants have framed the following points for consideration :
(i) Whether plaintiff proves that he was in actual possession and enjoyment of the suit schedule property?
(ii) Whether plaintiff proves that alleged interference by the defendants?
(iii) Whether it is necessary to interfere with the Judgment and decree passed by the trial Court?
(iv) What order?
19. While considering point Nos.1 to 3, the first appellate Court has recorded a finding that the defendants are not in actual possession and enjoyment of 05 guntas of the suit property and that they are only claiming in Survey No.588, measuring 07 acres 21 guntas. P.W.2 has deposed that he has measured the suit property in the year 1997 and again for the second time in the year 2001 there is encroachment made by the defendant in the suit
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 property. It is noticed by the first appellate Court that the suit property has been converted to non-agricultural purpose in the year 1968 vide Ex.P-10 and the suit property was measured in the year 2001 in the presence of the defendants. It has also been noticed from the oral and documentary evidence of the plaintiff, that plaintiff is in actual possession of the suit property as described by the plaintiff.
20. Learned counsel for the appellants has relied on the statements made by PW-1 in the cross-examination which reads as follows:
"¸ÀzÀj 7 JPÀgÉ 21 UÀÄAmÉ d«ÄãÀ°è J¦JA¹ CªÀgÀÄ ¸ÁPÀµÀÄÖ ¥ÁèlÄUÀ¼À£ÀÄß «AUÀr¹zÁÝgÉ C£ÀÄߪÀÅzÀÄ ¸Àj¬ÄzÉ. ºÁUÉà ¥ÁèlÄUÀ¼À£ÀÄß ¨ÉÃgÉ ªÀåQÛUÀ½UÉ ¤ÃrgÀÄvÁÛgÉ C£ÀÄߪÀÅzÀÄ ¤d«zÉ. £ÀªÀÄä 5 UÀÄAmÉ eÁUÀPÀÆÌ ªÀÄvÀÄÛ ¥ÀæªÁ¢UÀ¼ÀÄ 7 JPÀgÉ 21 UÀÄAmÉ eÁUÀPÀÆÌ £ÀqÀÄªÉ ºÀzÀÄÝ- §¸ÀÄÛ ¦PÁìVgÀÄvÀÛzÉ (UÀÄvÀÄð¥Àr¹gÀÄvÁÛgÉ). £À£Àß ªÀÄvÀÄÛ ¥ÀæªÁ¢UÀ¼À M¦àUÉAiÀÄAvÉ ºÀzÀÄÝ §¹ÛUÉ ºÉÆA¢PÉÆAqÀÄ MAzÀÄ PÁA¥ËAqï UÉÆÃqÉAiÀÄ£ÀÄß PÀnÖgÀÄvÁÛgÉ. EªÀwÛUÀÆ ¸ÀºÀ UÉÆÃqÉAiÀÄÄ EzÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d«zÉ."
21. Further a statement made by PW-2 in the cross-examination is relied upon which is as follows:
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 "ªÁ¢ ªÀÄvÀÄÛ ¥Àæw ªÁ¢ D¹Û£ÀqÀÄªÉ MAzÀÄ PÁA¥ËAqï UÉÆÃqÉ EzÉ C£ÀÄߪÀÅzÀÄ ¤d«zÉ. ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄgÀ D¹Û £ÀqÀÄªÉ «¨sÀf¸À®Ä ºÀzÀÄÝ §¸ÀÄÛ EzÉ C£ÀÄߪÀÅzÀÄ ¤d«zÉ."
22. It is forthcoming that the said statements cannot be read in isolation of the admitted fact situation that the plaintiff is the absolute owner of the suit property measuring 5 guntas and defendants are only claiming title over an extent of 7 acres 21 guntas in Sy.No.588/2. It is clear from the concurrent findings recorded by the trial Court and the first appellate Court that the defendants have no manner of claim, right, title or interest in 5 guntas of land of the suit property of the Plaintiffs. Further it is clear that 5 guntas of land owned by the plaintiff has been converted into non-agricultural purpose which is forthcoming from Ex.P-10. Hence, it is clear that the plaintiff and his predecessors in title are in possession of the suit property from the year 1946.
23. Learned counsel for the appellants has strenuously contended that the PW-1 and PW-2 have admitted that there is a compound wall constructed
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 between the suit property of the plaintiff and the defendants. It is relevant to note that PT sheet at Ex.P-18 clearly demarcates the property of the plaintiff and the defendants. The PT sheet at Ex.P-23 also discloses the same measurements. PW-2 has categorically deposed that there is no conflict between Exs.P-18 and P-23. It is further forthcoming from the material on record which has also been appreciated by the trial Court and re- appreciated by the first appellate Court that the defendants have constructed a compound wall and the said compound wall is on the northern side of the property of the plaintiff. In view of the material on record there is no basis for the contention that there is a compound wall existing between the property of the plaintiff and property of the defendants.
24. It is forthcoming from the material on record that the defendants have contended that they are developing the property owned by them for the purpose of carrying out activities as contemplated under the APMC
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011 Act. From the material on record it appears that in the course of the APMC carrying out its functions, an attempt was made to encroach into the property of the plaintiff and put up a construction in the property of the plaintiff.
25. It is clear from the concurrent finding of fact recorded by both the Courts as also in the contentions urged in the present appeal that there is no dispute as to title of the property as claimed by the plaintiff and by the defendants. It is further undisputed that the plaintiff and the defendants have been in possession of the properties owned by them ever since the date of their respective acquisition of title. The said fact is forthcoming from the documents of title produced by the plaintiff i.e., attested copy of the sale deed (Ex.P-7), the revenue records (Ex.P-
5), attested copy of conversion order (Ex.P-10) and other documents. The PT sheet at Exs.P-18 and P-23 clearly demarcate the respected extent of property under the occupation of the plaintiff and defendants respectively.
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26. In view of the aforementioned, the finding of fact recorded by the trial Court and affirmed by the first appellate Court is just and proper and the said finding cannot, in any manner, said to be erroneous or perverse. If the evidence of PW-1 and PW-2 are appreciated in the proper perspective and keeping in mind the documentary material available on record, there is no hesitation in coming to the conclusion that the plaintiff is the absolute owner in possession of the suit property and is entitled to an order of injunction to protect the same. The said fact has been adequately appreciated by the trial Court and re- appreciated by the first appellate Court which finding is just and proper and not liable to be interfered with by this Court in this second appeal. Hence, the substantial question of law is answered in the negative.
27. In view of the aforementioned, the following order is passed:
ORDER
(i) The above appeal is dismissed;
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NC: 2023:KHC-D:11941 RSA No. 5046 of 2011
(ii) The judgment and decree dated 04.10.2010 passed in R.A.No.56/2005 by the Principal Senior Civil Judge, Ranebennur and the judgment and decree dated 05.06.2004 passed in O.S.No.205/1998 by the Principal Civil Judge (Jr. Dn.) and I Additional JMFC Court, Ranebennur, are affirmed.
Sd/-
JUDGE SVH,NAA List No.: 1 Sl No.: 71