Karnataka High Court
Ganada Shivalingappa S/O Ningappa vs Smt. Marilingappanavar Ningavva W/O ... on 28 June, 2024
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RSA No. 100598 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100598 OF 2018 (INJ-)
(INJ
BETWEEN:
1. GANADA SHIVALINGAPPA S/O NINGAPPA
AGE: 46 YEARS, OCC: AGRICLTURE,
R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
2. GANADA RAMESH S/O NINGAPPA
AGE: 46 YEARS, OCC: AGRICLTURE,
AGRICLTURE
R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
...APPELLANTS
(BY SRI R.I. ZIRALI, SANDESH P. NADIGER
AND SHIVARAJ BALLOLI, ADVOCATES)
Digitally signed
by SAROJA AND:
HANGARAKI
Location: HIGH 1. SMT. MARILINGAPPANAVAR NINGAVVA
COURT OF W/O KENCHAPPA, AGE: 66 YEARS,
KARNATAKA OCC: AGRICLTURE, R/O: HOLALU,
DHARWAD
BENCH HUVINAHADAGALI TALUK,
DHARWAD DIST: BALLARI--583101.
2. SRI MARILINGAPPANAVAR ASHOKA
S/O KENCHAPPA, AGE: 45 YEARS,
OCC: AGRICLTURE, R/O: HOLALU,
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
3. SRI MARILINGAPPANAVAR MANJUNATH
S/O KENCHAPPA, AGE: 41 YEARS,
OCC: AGRICLTURE, R/O: HOLALU,
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NC: 2024:KHC-D:8877
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RSA No. 100598 of 2018
HUVINAHADAGALI TALUK,
DIST: BALLARI--583101.
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN
R.A.NO.82/2018 ON THE FILE OF ITINERATING SENIOR CIVIL JUDGE
AT
T HUVINAHADAGALI CONFIRMING THE JUDGMENT AND DECREE
DATED 14.12.2016 PASSED IN O.S.NO.108/2011 ON THE FILE OF
CIVIL JUDGE AND JMFC, HUVINHADAGALI BY ALLOWING THE TOP
NOTED APPEAL TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSIO
ADMISSION,
N, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed by the plaintiffs under Section 100 of Code of Civil and Procedure, 19081 challenging the judgment and decree dated 28.04.2018 passed in R.A No.82/2018 by the Itinerating Senior Civil Judge, Huvinahadagali2 and the judgment and decree dated 14.12.2016 passed in O.S No.108/2011 by the Civil Judge and JMFC3, Huvinahadagali, whereu whereunder, nder, the suit for injunction filed by the plaintiffs has been dismissed with cost by the Trial Court, which has been affirmed by the First Appellate Court. 1 Hereinafter referred to as 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018
2) The parties will be referred to as per their ranking before the Trial Court, for the sake of conven convenience.
3) It is the case of the plaintiffs that the suit property is an open site bearing door No.401/A situated at ward ard Nos.7, No 8 and 9 of Holalu village and was previously open site of Government Paramboke land. That the head of the family of the plaintiffs is Ganada Ningappa S/o Pakkerappa and was in enjoyment of the property during his lifetime and his name was entered in the records maintained by the Panchayath. That after fter his death, his wife Smt.Gananda Lakkavva continued the possession of the property w with ith her sons and her name was registered in the records of the panchayath. That Ganada Lakkavva, mother of the plaintiffs is also deceased deceased, but her name continues in the panchayath records. That the plaintiffs continued in possession and became absolute ow owners ners of the suit property.
4) It is the further case of the plaintiffs that the door number of the suit property has been changed by the PDO of Gram Panchayath as 401/A in the general body meeting held on 25.11.2013 and the resolution to this effect was passed.
passe That previously due to a mistake of the panchayath, his -4- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018 number was given as 401 and later the number has been given as 401/A. That the defendants door numbers are 401 and 402, their houses are situated towards the eastern side of the suit property. That the suit property is different from the property of the defendants and that the defendants have no manner of right or interest in the suit property. That on 06.10.2011 when the plaintiffs went to the suit property to clear the dung pit, the defendants all of a sudden came there and prevented the plaintiffs from clearing the suit house. Since,, the defendants are trying to disturb the plaintiffs possession of the suit property, and in order to protect their possession, the plaintiffs filed a suit for injunction.
5) The defendants entered appearance through their counsel and defendants No.2 and 3 have filed separate written statement. Defendant No.1 adopted the written statement of defendant No.2.
6) The defendant No.2 denied the plaint averments and contended that the plaintiffs are not the owners in possession of the suit property and they have no rights in the same. That the plaintiffs and their father Ganada Ningappa and panchayath authorities have created panchayath records of site No.101 -5- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018 without any title. That the defendants are having an open house site bearing No.402 in ward Nos.7, 8 and 9 of Holalu panchayath and it is standing in the name of their father Marilinappanavar Kenchappa Kenchappa and he is the owner of the said suit property. That their father died about two years prior to the suit leaving the defendants as his legal heirs and they have succeeded to his properties including site No.402. That the defendants are in possession of the said house. That the plaintiffs are laying false claim over the open site bearing No.402 which belongs to the defendants. Hence, the defendant No.2 sought for dismissal of the suit.
7) The defendant No.3 filed a separate written statement and also denied the plaint averments as also the case of the plaintiffs that they are the owners of the suit property. It is the case of the defendant that she along with her husband, the 1st defendant and their father Marilingappanavar has been in possession of the property prop bearing No.402 since 50-60 60 years and about two years ago the said Kenchappa having died leaving behind the defendants as his legal heirs, heirs they have succeeded to the said properties along with the other properties. That the plaintiffs have no right ove overr the property of -6- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018 the defendants. That during pendency of the suit, the plaintiffs have created property No.401 with the assistance of the panchayath legal officers and in order to harass the defendants they filed the suit. Hence, defendant No.3 also sought sough for dismissal of the suit.
8) The Trial Court Court, consequent to the pleadings of the parties framed the following issues:
i. "Whether the plaintiffs prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit? ii. Whether hether the plaintiffs further prove that the defendants nts are interference rence into the suit schedule property?
iii. Whether the plaintiffs prove that they are entitled for the relief as sought for?
iv. What order or decree?"
9) The plaintiff No.2 has been examined as PW.1 and two witnesses as PW.2 and PW.3. Ex.P1 to Ex.P14 have been marked in evidence. Defendant No.3 has been examined as DW.1. Ex.D1 to Ex.D26 have been marked in evidence.
10) The Trial Court by its judgment and decr decree ee dated 14.12.2016, dismissed the suit with cost of ₹1,000/-.. Being aggrieved, the plaintiffs preferred R.A No.82/2018.
No.82/2018 The -7- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018
defendants entered appearance in the same and contested the said proceedings.
11) The First Appellate Court framed the following points for consideration:
i. Whether the appellants/plaintiffs have proved that their factum of the possession over the suit property as well as alleged interference by the defendants?
ii. Whether the impugned judgement and decree is capricious, perverse, illegal and calls calls the interference by this court? iii. What order?
12) The First Appellate Court by its judgment dated 28.04.2018, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
13) Learned counsel for the appellants vehemently contends that both the Courts have concurrently erred in dismissing the suit and that the plaintiffs having produced the tax paid receipt and photographs as also adduced the testimony of DW.3-- the Panchayath Development nt Officer, which has not properly been considered by both the Courts which ought not to have dismissed the suit. -8-
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14) The submission of the learned counsel for the appellants has been considered and material on record has ha been perused.
15) It is forthcoming that the Trial Court, upon an appreciation of the oral and documentary evidence, has noticed that the measurements and boundaries are not tallying and the description of the suit property in the documents produced by the plaintiffs are different from the description of the suit property described in the plaint. Hence, the Trial Court has recorded a finding that the plaintiffs have failed to demonstrate that they are in possession of the suit property.
16) The First Appellate Court upon a re re-appreciation appreciation of orall and documentary evidence on record has noticed that the documents produced by the plaintiffs reflect a different property number whereas the description of the suit property and case of the plaintiffs do not tally. The First Appellate Court has noticed that hat in Ex.P1, the property number is shown as No.23 whereas the suit property No.401/A; that in Ex.P9 and Ex.P10, the property number is shown as 6/401 and however the suit properties is 401/A. In the said manner, the First Appellate Court has also recorde recorded d findings that the documents -9- NC: 2024:KHC-D:8877 D:8877 RSA No. 100598 of 2018 produced by the plaintiffs themselves do not demonstrate that they are in possession of property bearing No.401/A and hence, the question of granting an order of injunction as sought for by the plaintiff does not arise.
17) Both the he Courts having recorded concurrent findings of fact that the document documents produced by the plaintiffs themselves does not state the exact number of the suit property and the plaintiffs having not adduced any evidence with regard to explaining expl the said property ty number. Hence, both the Courts are justified in holding that the plaintiffs have not demonstrated that they are in possession of the suit property. Having regard to the fact that the plaintiffs have not demonstrated that they are in possession of the su suit it property, both the Courts have rightly refused to grant an injunction as sought for by the plaintiffs.
18) The Trial Court has appreciated the records produced by the plaintiffs including the oral evidence of PW.3, the Officer of the Panchayath while considering the case of the plaintiff plaintiff.
There here is no material to substantiate the contention that the finding of the Trial Court is contrary to the oral or documentary evidence on record.
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19) In view of the aforementioned, the appellants have failed in demonstra demonstrating ting that any substantial question of law arises for consideration in the present appeal. Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
Sd/-
JUDGE PMP CT:GSM List No.: 1 Sl No.: 38