Karnataka High Court
Bommaiah S/O Late Jogaiah vs Muddaiah S/O Late Jogaiah on 29 November, 2013
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 29TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.1179 OF 2009
BETWEEN:
BOMMAIAH
S/O LATE JOGAIAH
AGED ABOUT 65 YEARS
RESIDING AT NO.3445
TROOPLANE, RAMANAGARM TOWN
RAMANAGARAM-571 511
... APPELLANT
(BY SRI.H.MOHAN KUMAR, ADV.,)
AND:
MUDDAIAH
S/O LATE JOGAIAH
AGED ABOUT 63 YEARS
RESIDING AT NO.3445
TROOPLANE, RAMANAGARM TOWN
RAMANAGARAM-571 511
... RESPONDENT
(BY SRI.H.C.SHIVARAMU, ADV.,)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 31.03.2009 PASSED IN R.A.No.68/2008
ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN)
RAMANAGARA, RAMANAGARA DISTRICT, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DATED 18.3.2008 PASSED IN O.S.NO.43/2003 ON
THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC.,
RAMANAGARAM.
2
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has challenged the judgment and decree dismissing the suit for injunction by the Trial Court and confirmed in the appeal by the First Appellate Court.
2. The facts relevant for filing of this appeal are as under:
The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant who is an elder brother of the respondent instituted the suit for injunction to restrain the respondent from causing obstruction to the peaceful possession and enjoyment of the house property bearing old No.2724/2938 and new No.3445 described in the schedule to the plaint. According to him, the suit property measuring 40 x 76 feet is belonging to his father Jogi, S/o Boramma and he is in possession of the suit property with the family members. The plaintiff's 3 father had given a portion of the property to an extent of 40x16 feet in the suit property, in which the plaintiff has been residing and is said to be in his possession. He was paying the tax. He contends that in the year 1980, his father fell sick and taking disadvantage of the illness of his father, the defendant submitted a false representation to the Municipal Council and got his name entered in the records of the suit property. The plaintiff though in possession of the suit property, as his possession was obstructed by the defendant, the suit came to be instituted for the relief of injunction.
3. The defendant has denied the averments made by the plaintiff in the suit by way of written statement and contends that the plaintiff is in possession of the property bearing No.3445 measuring 40x16 feet and disputed his possession over the suit property. It is the specific contention that the suit site was allotted to him by the Town Municipal Council in the year 1981 and he put up the construction of a house and has been residing with his family exclusively 4 from the year 1981 onwards. Therefore, he denied the averments made in the plaint and sought for dismissal of the suit.
4. On the basis of these pleadings, the Trial Court has raised three issues calling upon the plaintiff to establish his possession, to prove the obstruction and the nature of relief to be granted. Accordingly, the plaintiff examined himself as PW1, three witnesses PW2 to 4 and in their evidence documents Exs.P1 to P26 were marked. The defendant was examined as DW1, two witness DW2 and 3 and Exs.D1 to D14 were marked.
5. The Trial Court on the basis of the materials placed on record and after hearing the counsel for both the parties dismissed the suit. Aggrieved by the judgment and decree, the plaintiff preferred an appeal in R.A. No.68/2008 and the First Appellate Court dismissed the appeal on merits. Aggrieved by the 5 concurrent findings of the Courts below, present appeal is filed.
6. At the time of admission, the following substantial question of law has been raised.
"Whether the Judgment & decree of the 1st appellate Court is perverse in non-
consideration of Ex.P-27?"
7. It is the contention of the learned counsel for the appellant that the Court below has not taken into consideration Ex.P27 and therefore, committed an error in dismissing the suit, so also it is submitted that the Commissioner's report and the document at Ex.P2 would indicate that the suit property is in possession of the plaintiff as well. On this ground, he sought for setting - aside the judgments and decrees of the Courts below and to grant the injunction.
8. On the other hand, learned counsel for the respondent has supported the judgments and decrees of 6 the Courts below and submits that there is no substantial question of law for consideration.
9. On perusal of the materials placed on record, it is clear that years since 1981, the suit property stands in the name of defendant. The site on which the house was constructed was allotted to the defendant in the year 1981 and the defendant has produced the documents to show the allotment.
10. Counsel for the appellant brought to the notice of this Court, the contents of Ex.P2, which is the extract of the suit property of the year 1961-62. It reveals that Jogi, father of the plaintiff constructed a house in the suit property in an area measuring 40x76 feet and the endorsement reveals that the authorities directed to take action for the encroachment made. He also refers to Ex.P27 which is the letter from the City Municipal Council addressed to the Director in which there is a reference that both the parties are residing in the suit property. Sofar as this letter is concerned, it is 7 relevant to note that it has been written on 26.12.2003 ie., few months after the institution of the suit. It is under these circumstances, the Courts below have ignored these documents for the sole reason that it came into existence after the suit was instituted and it is not acceptable in nature. So far as Ex.P2 is concerned, there was some illegal construction by the father of the plaintiff in the year 1962, but the allotment Ex.D2 and resolution at Ex.D1 indicate that the suit property measuring 40 x 76 feet was granted in the name of the defendant after collecting the penalty of Rs.2.00 per sq.mtr. Therefore, contents of Ex.P2, the house extract for the year 1961-62 has to be ignored for the reason that, on the date of allotment of the suit property to the defendant, it was a site and not a house. Sofar as these reasons are concerned, the Courts below have held that the plaintiff has not proved his possession over the suit property and found that the property extract relating to the suit property indicated that from the year 1981 onwards till institution of the 8 suit, it was in the name of the defendant. Therefore, the Courts below have rightly dismissed the suit of the appellant. It is submitted by the counsel that a suit has been filed seeking partition of the suit property. Any how, the rights of the parties will have to be decided in the said suit. As this suit is for injunction and there is a complicated question relating to the title, I do not think that appellant has made out any substantial question of law for consideration.
In the result, the substantial question of law raised is answered in negative, consequently, appeal fails and it is accordingly dismissed.
Sd/-
JUDGE GH