Sri Gopal vs Smt Lakshmamma on 14 September, 2009

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Karnataka High Court

Sri Gopal vs Smt Lakshmamma on 14 September, 2009

Bench: S.N.Satyanarayana

 I  T   "(By Sri : S P KULKARNI, ADV)

IN THE HIGH COURT OF KARNATAKA AT  

DATED THIS THE     V'
BEFORE;   A  V'  
THE HON'BLE MR.JUSft§'c.E SN'.
RSA.NQ,.1-Eff'?!/f2--0A§)6 .' " 

BETWEEN:

1. SR1 GOPAL_    
S/o LAfl'E3MARIGOWDA"= X S  R. 
AGED. A;t3C1j§Ji{' 38_'Y_RS_    

2.   M
5/0 Lani, MAR1C}OWDA_'
AGED Asomj  YRS 

3. K M cHENNAK9;Sz.-{AVA
,-- S/o LATEMARIGOWDA
~  AGED A.I30LJfr__3.:a YRS

  R"/o"KoDIKoPPALU VILLAGE
* 1.  I3ASA1f2AJ_,_ HOBLI, MANDYA

  
 W./.O"LATE MARIGOWDA
" AGED ABOUT 55 YRS

A I 4_  ARE R/O KODIKOPPALU VILLAGE
 BASARAL HOBLI, MANDYA

 APPELLANTS



fw-t

SMT LAKSHMAMMA
AGED ABOUT 42 YRS,
KODIKOPPALU VILLAGE,
BASARAL HOBLI
MANDYA

 

[By M/S P NATARAJU A/S, _ADv"s_)l 

THIS RSA IS E11,ED-_U/.5 .tp10'b~v,OE--':,ePc AGAINST THE
JUDGEMENfr--IAND :DEci§EE4V"'D%:.,31.cr3'.2006 PASSED IN
R.A.NO.21{1j(20§34_. ON  l+"--lL'EV"O'F THE PRESIDING
OFFICER; O  'TRACK ,(:'OIjRT»_11:.,-- MANDYA, DISIVIISSING
THE APPEAL AND C'ONFif.'.MING THE JUDGEMENT AND
DEGREE "DT.27.Cf7;1998' ON THE FILE OF THE PRLCIVIL

JUDGE 

 1' THIS APEEA:,..cOM1NG ON FOR ADMISSION THIS

 V'  --. DAY, Ti-IEA' COURT DELIVERED THE FOLLOWING:

JUDGMENT

defendants' Second appeal challenging concisiffent ﬁndings of both the Courts below.

2. Facts leading to this appeal are that, respondent V uuherein is plaintiff and appellant is defendant in the trial Court. The plaintiff filed Suit for declaration and permanent E "*2 injunction against defendant in respect of _,.:of,2 acres of dry land situated in village, Basaral Hobli, Mandya wh'ich'Awas*grantedto T. her by Tahsildar, Mandya Talluk. --grantcertiﬁc'ate*. in favour of plaintiff is at""e«I?;§ii..P1 beforeralghellllvtrlial Court, wherein the property" plaintifffis i'dentified°by extent and boundary correspondingto within which it is situated. Based':-on. related documents ie., = extract and other revenue records," the " proceeded to frame appropriate issues aridlllield sarrie in favour of plaintiff and decreed svuxity which' wasilchallenged by defendant in first appeal V R.A;No«..@2"i4_/2004 on the file of Fast Track Court--IH, if = the judgment and decree passed by trial 'OfS.No.99/ 1996 was conﬁrmed. The present appeal " is. directed against the aforesaid concurrent ﬁndings.

3. The ground on which the present appeal is filed by defendant/appellant is that, earlier he had filed a suit in OS.No.874/1993 for the relief of permanent injunction Lew} .4.

/ against plaintiff/respondent, based on the saguvali the said suit was decreed. The case of defendantﬂis 'tiia:'t,.:'when once the issue regarding possession was"'adju'_dic'ate'dy upolnp and decided by the same Court;»A,thc;"'saidf'Court slioiipldiignot . have taken-up the matter pei=taining._to injur:1ction_Hin ..respect* of the suit schedule property. .

4. On going through decree of trial Court and ﬁrstappellateiserioticed that saguvali chitissued vi'n7faVo*ur'of plaintiff in the present suit is earlier one in the order of tiinef wherein an extent of 2 acres granted inpgfai/our of plaintiff and the same is identiﬁed with reference A «to surve_y_rii.1mber as well as boundary bordering on all four _ property. Based on that, title as well as p"0.sse.ssion° of plaintiff over the suit schedule property is .c confirrned in the present suit, which is confirmed by first if 'A._V'a-ppellate Court. In the said suit, the trial Court and first appellate Court while assessing facts and documents available on record have come to the conclusion that saguvali chit/ grant certificate issued by Tahsidlar, Mandya i,/ifizgi district in favour of defendant is to an extentiof guntas and does not contain boundary which is said to be situated within of ''ileggad'thalli ' village. It is further noticed-by bath the C.ourts_belc;wlti1ati» there is nothing on record that tfboundfaiy of land granted in favour of of land granted in favour of plaintiff is 'in the absence of any bouri'dafg,r.i-' beinig '" mentioned in the grant certificate.[saguvali« chit"issu,e(l'vtolthe land granted in favour of defen'da11t.: "liJ.ndeVr°'t.he.__lcircumstance, both the Courts below vvlerel unab_1efr.to=come to a conclusion that the land granted in favourof plaintiff and defendant are one and the » lsarne.vor.yt'he"adjacent properties. There is also no basis as to H llthe."p:.de:fendant would identify his property without referencehlto any of the documents. In the light of these "tit1i.ngs,l both the Courts below have rightly come to the lavconfclusion that plaintiff has made out a case not only to "prove her title based on documents but also her possession in respect of the suit schedule property. Whereas, defendant who is appellant herein has miserably failed to substantiate W his claim with supporting documents tha_tlth.e' of plaintiff and that of defendant and_the-lsamxevvpianpd the if. exparte judgment and decree obtainedby in 0.3.847/93 would act hand. Even assumin'g~..f0r said principle would apply, it matters are for permanentiinjurietionnlonlyi case, the case of plaintiff is" not tfoijj-:.p:iértnla:nentip.injunction, it is both for decla1'ation"jof h'e;r.ti"t1e"--as Wellas permanent injunction to protect "her icifer the suit schedule property,' which sll"ie_pllhaslp._roVediin support of documents produced in suit. V Whe'rea__s_,__ihe earlier suit filed by defendant is only ' ufor inju.ne.tion_, that too, on the basis of a document, which if '- :do.esl'lno"t~..contain any boundary to the extent mentioned therein' and it is also in respect of an extent of 3 acres 20 l guntas of land as against the suit schedule property which is extent of 2 acres. Under the circumstance, the contention of appellant that principles of res-judicata applies to the matter on hand and both the Courts below have failed to notice the same and have given a wrong finding holding that the present suit is not barred by fres- judicata is without basis and the same_.is.':"1e_jeeted: iblteisb further seen that there is no or the id.

judgment and decree of botlfx the7sC:o--urts are well reasoned and based on""efaets and' d_oeu":nentsVVavailab1e on record. In the lightof thistwnoiisubstantialvquestion of law arises for consideration tlivisVia}_3pe.a1.AA_'.'V .Si1j.ce no substantial question of _1aw_a-riseﬂforf e_onsidera~tio"n;j'there is no scope for admitting" "*--.VHenee;""'the appeal is dismissed without ax_1y"order_ asfto costs; __ Sd/:1 Iﬁag-"5

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Karnataka High Court