Karnataka High Court
Mahabaleshwar Venkappa Hegde vs Narayan Venkappa Hegde on 12 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.5160/2010 (REF-PI)
BETWEEN
MAHABALESHWAR VENKAPPA HEGDE
KARKISAVAL
SINCE DEAD BY LRS:
SUBRAY MAHABALESHWAR HEGDE
AGE 44 YEARS
R/O KARKISAVAL
TQ SIDDAPUR (HUF), U K DISTRICT
...APPELLANT
(BY M/S.. B.D HEGDE & ASSOCIATES, ADV.S)
AND
1. NARAYAN VENKAPPA HEGDE
AGED 58 YEARS
OCC AGRIL
R/O KARKISAVAL, TQ SIDDAPUR
2. RAMACHANDRA VENKAPPA HEGDE
AGED 65 YEARS
OCC AGRIL
R/O KARKISAVAL, TQ SIDDAPUR
3. ANANT VENKAPPA HEGDE
AGED 54 YEARS
OCC AGRIL
R/O KARKISAVAL, TQ SIDDAPUR
... RESPONDENTS
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAISNT THE JUDGMENT AND DECREE 7.11.2009 PASSED IN
R.A.NO.109/1998 ON THE FILE OF THE FAST TRACK, SIRSI
DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT
DTD:16.10.1998 AND THE DECREE PASSED IN OS.NO.41/1989
ON THE FILE OF THE CIVIL JUDGE (SR.DN), SIDDAPUR
DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in an original suit bearing O.S.49/1989 which was pending on the file of Civil Judge, Jr.Dn., Siddapur is before this Court by filing an appeal under Section 100 of CPC.
2. Suit filed for relief of permanent injunction before the trial Court was dismissed by a considered judgment dated 16.10.1998. As against the same, an appeal came to be filed in R.A.109/1998 before the Presiding Officer, Fast Track Court, Sirsi and the said appeal has been dismissed by considered judgment dated 7.11.2009. These concurrent findings are called in question on various grounds as set out in the appeal memo.
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3. Originally, the plaintiff had filed the suit for relief of permanent injunction in respect of 6.21 acres of land of Betta in Sy.No.1 situated at Karkisaval, Siddapur. The entire extent of land in Sy.No.1 is Betta land is attached to the garden lands of various persons inclusive of plaintiff. Betta land is always is for better enjoyment of connected garden lands. Later on plaintiff restricted his plea for injunction to an extent of 24' in Length in East-West and 36' width in North- South. According to him, the defendants who are respondents started to interfere with his possession and therefore, he had filed the suit.
4. The defendants had resisted the suit by denying all the averments made in the plaint. Plaintiff was strictly called upon to prove the contents of the plaint.
5. On the basis of the above pleadings following issues had been framed:
a) Whether the plaintiffs proves that suit schedule property is exclusively in hi 4 possession and enjoyment and defendants have no right of enjoyment over the same?
b) Whether defendants obstructed to the plaintiff's enjoyment
c) Whether the plaintiff is entitled for relief of permanent injunction
d) What decree or order ?
6. On behalf of the plaintiffs, plaintiff himself is examined as PW-1 and one more witness has been examined as PW-2 and in all 27 exhibits have been marked. On behalf of the defendants, defendant No.1 and 3 have been examined as DW-1 and 3 and one more witness has been examined as DW-2 and as many as 11 exhibits have been marked.
7. After hearing the learned Counsel for the parties, the learned Judge of the trial Court, after assessing the evidence placed on record has chosen to dismiss the suit vide considered judgment dated 16.10.1998. As against the same, an appeal came to be filed in R.A.109/1998. Having perused the records and having heard the arguments, the learned 5 Judge of First Appellate Court has chosen to dismiss the appeal by confirming the judgment of the trial Court.
8. Perused the records. The question that arose before the First Appellate Court was in regard to possession of the suit schedule property stated to have been held by the plaintiff. As rightly pointed out by the First Appellate Court and trial Court, plaintiff chose to file suit to the entire extent of land in Sy.No.1 measuring 6.121 acres. After filing written statement, he restricted his claim to 24' in Length in East West and 36' width in North-South. The revenue records would disclose that there are many persons including defendants who have limited rights of collecting leaves and taking mud in betta land, which is earmarked for beneficial enjoyment of their respective garden lands. The very identity of the property is in question. Therefore, the trial Court has refused to give equitable relief of injunction. There cannot be an injunction in respect of betta land more particularly when there are similarly placed persons, who are beneficial holders. 6
9. The approach adopted by the First Appellate Court is proper more particularly when betta land is attached to the entire strip of garden lands belonging to the plaintiff and defendants and other abutting land owners. No perversity or illegality is found in the approach adopted by the trial Court or the First Appellate Court. Refusal to grant relief of permanent injunction in respect of land earmarked for common enjoyment cannot be found fault with. There is no merit in the appeal. Hence, the appeal is liable to be dismissed.
ORDER The appeal filed under Section 100 of CPC is dismissed as unfit for admission by confirming the judgments of the First Appellate Court as well as trial Court. There is no order as to costs.
Sd/-
JUDGE.
DM