Karnataka High Court
Sri Subramanya Hebbar vs Smt Amani Poojarthy on 21 June, 2013
Author: K.L.Manjunath
Bench: K.L.Manjunath
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE K.L.MANJUNATH
REGULAR SECOND APPEAL NO.1048 OF 2011
BETWEEN:
Sri Subramanya Hebbar
S/o late Venkatesh Hebbar
Aged about 42 years
R/at Kelabettu House,
Kabbinale Village & Post,
Karkala Taluk,
Udupi District - 574 104. ...APPELLANT
(By Sri Prasanna V.R., Advocate)
AND:
1. Smt.Amani Poojarthy
D/o late Gonkra Poojary
Age:Major
2. Sri Bhoja Poojary
S/o late Gonkra Poojary
Age:Major
Respondents No.1 & 2 are both
2
R/at Kabbinale Village,
Karkala Taluk,
Udupi District - 574 104. ...RESPONDENTS
(By Sri H.Jayakara Shetty, Advocate for C/R1)
*****
This RSA is filed under Section 100 of CPC against
the Judgment and decree dated 12.01.2011 passed in
R.A.No.43/2005 (Old R.A.No.35/2005) on the file of the
District & Sessions Judge (AD-HOC), Presiding Officer, Fast
Track Court, Karkala, dismissing the appeal and confirming
the judgment and decree dated 14.02.2005 passed in
O.S.No.309/2000 on the file of the Additional Civil Judge
(Jr.Dn.) and JMFC, Karkala.
This RSA coming on for admission this day, the court
delivered the following:-
JUDGMENT
The concurrent findings of the Courts below are called in question in this regular second appeal. I have heard the learned appearing for the parties.
2. The appellant is an unsuccessful plaintiff. The suit was filed by him for a perpetual injunction to restrain the defendants from committing trespass into the plaint 'A' 3 and 'B' schedule properties or from removing the usufructs from the trees standing therein and further to prevent the defendants from diverting the direction of water channel or obstruction of free flow of water into the plaint 'A' and 'B' schedule properties. According to the plaint averments he is the absolute owner of plaint 'A' schedule property which is an agricultural land and plaint 'B' schedule property is a government land attached to the cultivable land of the plaintiff ('A; schedule property) and the same is a kumki right. It is also contended by the plaintiff that in a 'B' schedule property he has put up a hut and the same has been given to the defendant on licence basis and that the defendants are trying to interfere with the peaceful possession of plaint 'A' & 'B' schedule property. In the circumstances the suit was filed only for bare injunction.
3. The defendants contested the suit. Though they denied the right of the plaintiff in respect of the plaint 'A' and 'B' schedule property, the defendants admitted that 4 they are in possession of 'B' schedule property and that they never attempted to interfere with the plaint A schedule property. In the circumstances the requested the Court to dismiss the suit.
4. Based on the above pleadings the following Issues were framed by the Court below:
"1. Whether the plaintiff proves that he is in actual, lawful possession and enjoyment of plaint 'A' and 'B' schedule properties, as on the date of suit ?
2. Whether the plaintiff proves the interference by the defendants as alleged ?
3. Whether the plaintiff proves the tortious acts of the defendants as alleged?
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed ?"
In order to prove their respective contentions on behalf plaintiff he got himself examined as P.W.1 and one 5 Mohana Hebbar was examined as P.W.2. He relied upon Exs.P-1 to 22. On behalf of the defendants, one Amani Poojarthy, was examined as D.W.1 and he relied upon Exs.D-1 to D-15. The trial Court after considering the evidence and the arguments advanced by the parties held Issue No.1 partly in affirmative and Issues 2 to 4 in negative. Ultimately the suit came to be dismissed.
5. Challenging the Judgment and decree of the appellate Court dated 14-2-2005 the appellant filed an appeal before the Fast Track Court, Karkala, in R.A. No.43/2005. The learned appellate Judge considering the arguments advanced by both the parties formulated the following points for this consideration:-
"(1) Whether I.A. No.IX filed under section 61 of Karn.Land Revenue Act r/w section 151 of CPC for staying the further proceedings of the appeal till the disposal of application filed before the Committee for Regularization of Unauthorized Occupation of Lands is to be allowed ?6
(2) Whether I.A.Nos. X and XI filed under Order 41 rule 27 r/w section 151 of CPC for giving permission to the 2nd defendant and plaintiff to produce the documents are to be allowed ?
(3) Whether the plaintiff proves that the learned trial judge has not framed proper issues ?
(4) Whether the plaintiff proves that the impugned judgment and decree of the learned trial judge is perverse, illegal and capricious ?"
Thereafter he held all the points in negative. Accordingly the appeal came to be dismissed on 12th January, 2011. Challenging the concurrent findings the present appeal is filed.
6. Having heard the learned counsel appearing for the parties this Court does not see any substantial question of law arises for consideration in this appeal for the following reasons:-
7
The defendants are not claiming any right over the plaint 'A' schedule property. Their contention is that they never interfered with the 'A' schedule property. Therefore their contention is that the plaintiff has no right, title or interest to claim any right over 'B' schedule property. The trial Judge dismissed the suit on the ground that there is no interference by the plaintiff in respect of plaint 'A' and 'B' schedule property. The finding of the trial Court is that the plaintiff is in lawful possession of 'A' schedule property which has become final because in the appeal filed by the appellant before the lower appellate court the defendants have not filed an Cross objections. Therefore what is to be considered is whether the plaintiff is entitled for perpetual injunction in respect of both the properties?
7. When both the Courts have concurrently held that there is no interference by the defendants in regard to the 'A' schedule property when the same is a question of fact, no injunction can be granted by the Court below. 8 Similarly when the plaintiff himself admits the possession of the defendants are in possession in respect of portion of plaint 'B' schedule property it only discloses that the plaintiff is not in possession. When the plaintiff is not in possession of the entire 'B' schedule property the question of granting permanent injunction in favour of the plaintiff will also not arise. Whether the plaintiff is having a kumki right or not cannot be considered because this is not a suit for declaration. When both the Courts below have concurrently held that the plaintiff is not entitled for any relief; this Court does not see any substantial question of law because whether there is an interference by the defendants in respect of plaint 'A' and 'B' schedule property and whether the plaintiff can seek injunction is a question of fact and not a question of law. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Rsk/-