Karnataka High Court
Nijaling S/O. Basappa Balagoudar vs Shivappa S/O. Channappa Khadakabhavi on 21 February, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 21ST DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
M.S.A. No.554/2012
BETWEEN:
1. NIJALING S/O. BASAPPA BALAGOUDAR
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
2. SHRISHAIL S/O. BASAPPA BALAGOUDAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
3. PRAKASH S/O. BASAPPA BALAGOUDAR
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
4. MURGEPPA BASAPPA BALAGOUDAR
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
...APPELLANTS
(By Sri. SHRIKANT T PATIL, ADV.)
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AND
1. SHIVAPPA S/O. CHANNAPPA KHADAKABHAVI
NOW DECEASED BY LRS
1A. REVAPPA SHIVAPPA KHADAKABHAVI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1B. SHIVALING SHIVAPPA KHADAKABHAVI
NOW DECEASED BY HIS LRS,
1B(a) KASTURI W/O. SHIVALING KHADAKABHAVI
AGE: 47 YEARS, OCC: HOUSEHOLD WORK
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1B(b) SAROJINI W/O. YALLAPPA SATTI
AGE: 24 YEARS, OCC: HOUSEHOLD
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1B(c) CHANNAPPA SHIVALING KHADAKABHAVI
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1B(d) MALLAPPA SHIVALING KHADAKABHAVI
AGE: 19 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1C. VEERABHADRAPPA SHIVAPPA KHADAKABHAVI
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
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1D. MAHADEV SHIVAPPA KHADAKABHAVI
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1E. BASAPPA @ BASAVARAJ S/O. SHIVAPPA
KHADAKABHAVI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1F. NINGAVVA W/O. SATAPPA DESAI
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1G. MAHADEVI W/O. HULGAPPA SHIRASHAIL
AGE: 32 YEARS, OCC: HOUSEHOLD WORK,
R/O. HIDAKAL, TQ: RAIBAG,
DIST: BELGAUM.
1H. RAJESHWARI W/O. RAMESH MUGALKHOD
AGE: 21 YEARS, OCC: HOUSEHOLD WORK,
R/O. GURLAPUR, TQ: GOKAK,
DIST: BELGAUM.
... RESPONDENTS
(By Sri. M G NAGANURI, ADV.)
THIS MSA FILED U/O.43(1) rule 1 U of CPC AGAINST
THE JUDGMENT AND DECREE DT. 30/11/2011 PASSED IN
R.A.NO.13/2008 ON THE FILE OF THE SENIOR CIVIL
JUDGE RAIBAG, ALLOWING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DT. 05/04/2002 PASSED IN
O.S.NO.216/2000 ON THE FILE OF THE ADDL. CIVIL
JUDGE, JR. DN. & JMFC., RAIBAG, DECREEING THE SUIT
FILED FOR PERMANENT INJUNCTION.
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This MSA coming on for admission this day, court
delivered the following:
JUDGMENT
Though this appeal is listed for admission, with the consent of both counsel, it is heard finally.
2. The plaintiffs in O.S.216/2000 have filed this appeal, assailing the judgment and decree passed in R.A.No.13/2008, dated 30/11/2011, by the Senior Civil Judge at Raibag.
3. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.
4. The appellants who are the plaintiffs filed the suit in O.S.No.216/2000 seeking the relief of permanent injunction against the defendant and their agents. It is their case that they are the absolute owners of the suit land bearing No.355/1B measuring 4 acres situated at Hidakal Village. That the defendant is the adjoining owner having 10 guntas of land. That the plaintiffs are the owners in possession of the suit schedule property and 5 that they have been growing sugarcane crop in R.S.No.355/1B in an extent of 3 acres 30 guntas. That the defendant threatened to cut the sugarcane crop grown in the said survey number, though he had no right, title or interest in the suit property. That on 18/09/2000, the defendant along with some workers came to the suit property to cut the sugarcane crop and tried to forcibly dispossess the plaintiffs and obstruct their peaceful possession. The plaintiffs tried to file a complaint before the Kudachi Police for protection, but they were directed to approach the Civil Court. Hence, they filed the suit for permanent injunction.
5. In response to the suit summons, the defendant filed written statement contending that the plaintiffs' suit is false and vexatious and that the description of the suit property is not correct. That the boundaries are misleading and the plaintiffs have not made out any prima facie case.
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6. It is further contended that one Channappa had two sons namely, Shivappa and Basappa and Basappa was adopted by one Bhimappa Balagoudar and accordingly, his name became Basappa Bhimappa Balagoudar. That there was an exchange deed between plaintiffs' father and Basappa Bhimappa Balagoudar in respect of land bearing R.S.No.344/4B measuring 6 acres 13 guntas, which was standing in the name of Basappa Balagoudar. Similarly, the land bearing R.S.No.344/4C measuring 7 acres 18 guntas, which was standing in the name of defendant and also in respect of R.S.No.355/1 measuring 7 acres 33 guntas, which was standing in the name of defendant. Under the exchange deed dated 16/10/1978, the aforesaid properties were transferred in the name of Basappa Bhimappa Balagoudar and defendant on the strength of the joint 'wardi' in M.E.No.4009 duly certified on 09/01/1979. It is on the strength of exchange deed, the survey numbers came to be transferred. Land in R.S.No.344/4B measuring 6 acres 13 guntas was divided as R.S.No.344/4B/1 measuring 2 acres 13 guntas which 7 allotted to Basappa Bhimappa Balagoudar. Similarly, R.S.No.344/4B/2 measuring 4 acres was transferred in the name of the defendant. R.S.No.344/4C totally measuring 7 acres 18 guntas was divided into two parts. Out of that, R.S.No.344/4C/1 measuring 3 acres 18 guntas was transferred in the name of Basappa Bhimappa Balagoudar and R.S.No.344/4C/2 measuring 4 acres was transferred in the name of defendant. So also, R.S.No.355, which was totally measuring 7 acres 33 guntas, out of which, land measuring 3 acres 30 guntas was allotted to the plaintiffs' father Basappa Bhimappa Balagoudar and 10 guntas of land out of 4 acres was transferred in the name of defendant and remaining 3 acres 33 guntas was standing in the name of the defendant. Those entries were made in the record of rights as per the exchange deed.
7. The names of the father of the plaintiffs and defendant were duly entered in the record rights as per exchange deed. Accordingly, father of the plaintiffs and the defendant were enjoying the property. After the death 8 of the plaintiffs' father, the name of plaintiffs have been entered in the record rights as heirs. The disputes arose after the death of the plaintiffs' father. According to the plaintiffs, 10 guntas in R.S.No.355/1B is towards the northern side which is in faovur of the defendant who has raised sugarcane in his land and the plaintiffs are not concerned with that. That the defendant has never disturbed the plaintiffs' possession nor does he have any intention to cut the sugarcane crop on the plaintiffs' land. The defendant submitted hand sketch showing ABCD portion is in possession of the defendant along with the boundaries and an area of 3 acres 30 guntas in the same Sy.No.355/1B is in favour of the plaintiffs as per exchange deed dated 16/10/1978. That the defendant has retained 10 guntas of northern portion of the land and Basappa Balagoudar retained southern portion measuring 3 acres 30 guntas. Therefore, there is no cause of action to the plaintiffs to file the suit. Hence, the defendant sought for dismissal of the suit.
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8. On the basis of the above pleadings, the trial court framed the following issues for its consideration:
1. Whether the plaintiffs prove that they are the absolute owner of the land bearing R.S.No.355/1B measuring 3acres 30 guntas of southern side of Hidkal Village?
2. Whether plaintiffs prove that interference by the defendant?
3. Whether plaintiffs are entitled for permanent injunction?
4. What decree or order?
In support of their case, plaintiffs examined three witnesses and four documents were marked as Exs.P-1 to P-4 while the defendant examined two witnesses and produced twelve documents marked as Exs.D-1 to D-12.
9. On the basis of the evidence, the trial court answered issue Nos. 1 to 3 in the affirmative and allowed the suit of the plaintiffs by holding that they are in possession and enjoyment of the southern portion as 10 demarcated by them with letters JCDEFGHI and measuring 3 acres 30 guntas and that defendant is in possession and enjoyment of 10 guntas on the northern side shown by the letters ABCJ as per the P.T. sheet of ADLR- Court Commissioner's Report in respect of R.S.No.355/1B of Hidakal Village. That line between "J" and "C" is the demarcation between the parcels of land. The defendant and his agents and representatives were restrained from dispossessing, disturbing or interfering with 3 acres 30 guntas of land shown as JCDEFGHI in the said P.T.Sheet. Being aggrieved by the said judgment and decree, the defendant filed R.A.No.13/2008 before the First Appellate Court.
10. After hearing both the sides, the First Appellate Court raised the following point for its consideration:
Whether the impugned judgment and decree requires the interference of this court and whether the appeal deserves to be allowed? 11 It answered the said point in the affirmative and while allowing the regular appeal, set aside the judgment and decree of the trial court and remanded the matter with a direction to substitute issue No.1 by an issue regarding possession, casting the burden on the plaintiffs to prove the same and permit both the parties to let-in evidence on the issue and to dispose of the suit afresh. The said order of remand is assailed in this appeal.
11. I have heard the learned counsel for the appellants and the learned counsel for the respondents and perused the material on record.
12. It is contended on behalf of the appellant that the First Appellate Court was not right in remanding the matter by directing the trial court to frame an issue regarding possession in substitution of issue No.1. Drawing my attention to the issues framed by the trial court, it is contended that the suit being one for permanent injunction, the issue of title to the suit schedule property would have to be gone into incidentally by the 12 trial court. The framing of issue No.1 by the trial court with regard to title, would not in any way become a flaw in the judgment and decree of the trial court since the parties have proceeded in the matter having regard to the nature of relief sought by the plaintiffs. He, therefore, contended that the First Appellate Court ought to have re-appreciated the evidence on record and if necessary, could have framed an additional issue regarding possession and disposed of the matter and that the remand was not at all necessary.
13. Per contra, learned counsel supporting the order of remand, passed by the First Appellate Court has stated that possession is one of the most important points that has to be proved in a suit for permanent injunction and in the absence of such an issue being framed, the trial court could not have decreed the suit. He, therefore, submitted that there is no merit in this appeal.
14. Having regard to the rival contentions, the only point that arises for my consideration is, 13 Whether the First Appellate Court was right in setting aside the judgment and decree of the trial court and remanding the matter with a direction to substitute issue No.1 with an issue regarding possession?
15. From the material on record, it is not in dispute that the suit filed by the plaintiffs is one for permanent injunction in respect of the suit schedule property bearing R.S.No.355/1B. On the basis of the rival pleadings, the trial court framed four issues. Issue No.1 is with regard to plaintiffs proving their title to the schedule property. Such an issue may not be necessary in a suit for permanent injunction. Incidentally, an answer to the said issue regarding title would assist the court to come to a conclusion with regard to possession. In a suit for permanent injunction, what is necessary for the plaintiffs to prove is, that the plaintiffs are in possession of the suit schedule property. Issue No.3 states as follows:
Whether plaintiffs are entitled for
permanent injunction?
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16. In fact, in the said issue, the burden is cast on the plaintiffs to prove that they are in possession of the suit schedule property. The defendant would have also let-in evidence in order to deny the said reliefs to the plaintiffs. It is only when the plaintiffs are found to be in possession of the suit schedule property, the next question as to whether there is interference by the defendant would be considered. There is no direct issue framed with regard to the plaintiffs proving their possession of the suit schedule property, but the issues framed are such that there has been no doubt in the minds of parties to let-in evidence regarding the possession of the plaintiffs in relation to the suit schedule property. Having regard to the nature of the relief sought by the plaintiffs, it was not necessary that the judgment and decree of the trial court be set aside for the purpose of recasting the issue or framing an additional issue regarding possession and permitting both parties to let-in evidence on the said issue. The evidence on record is with regard to the entitlement of the plaintiffs to get the relief of permanent injunction. In 15 that context, the plaintiffs would have let-in evidence with regard to their possession of the suit schedule property and similarly the defendant would have let-in evidence to state that the plaintiffs are not in possession of the suit schedule property. In that view of the matter, the remand to the trial court was not at all necessary. The First Appellate Court was fully competent to frame an issue regarding possession and re-appreciate the evidence on record in the light of the plaintiffs being in possession of the suit schedule property and to dispose of the appeal. Therefore, the order of remand is set aside. The First Appellate Court, if it thinks it necessary, can frame an issue regarding plaintiffs' possession of the suit schedule property and re-appreciate the evidence on record, in the light of the said issue and dispose of the appeal on merits.
18. In the result, the appeal is allowed. The order of remand is set aside. Since the parties are represented by their respective counsel, they are directed to appear before 16 the First Appellate Court on 28/03/2013 without insisting on a further notice on the said court.
The first appellate court to dispose of the appeal in accordance with law, in the light of the observations made above as expeditiously as possible as the suit is of the year 2000.
SD/-
JUDGE s*