Karnataka High Court
Sri. M. Shivanna vs Kondali Parasappa on 5 April, 2017
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
R.S.A NO. 129/2013 (INJ)
BETWEEN
SRI. M. SHIVANNA,
S/O HANUMANTHAPPA,
AGED ABOUT 36 YEARS,
WORKING AS SECRETARY
IN GRAMAPANCHAYATH
SASUVEHALLI, R/O 12TH WARD,
KELAGINAUPPARA GERE,
HARAPANAHALLI TOWN,
DAVANAGERE DISTRICT - 583 131.
... APPELLANT
(BY SRI. A. VIJAY KUMAR BHAT, ADV.)
AND
1. KONDALI PARASAPPA,
S/O GONEPPA,
AGED ABOUT 36 YEARS,
2. KONDALI NAGAPPA,
S/O GONEPPA,
AGED ABOUT 49 YEARS,
3. KONDALI LAKKAPPA,
S/O GONEPPA,
AGED ABOUT 44 YEARS,
4. JAMALI THIMMAPPA,
S/O SHESHAPPA,
AGED ABOUT 55 YEARS,
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ALL ARE R/O 12TH WARD,
KELAGINA UPPARAGERI,
HARAPANAHALLI TOWN,
DAVANAGERE DIST - 583 131.
... RESPONDENTS
(BY SRI. BANGAREPPA S. K., ADV. FOR
SRI. S. S. GUTTAL, ADV. FOR R-1 TO R-4.)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 31.1.12 PASSED IN
R.A.NO.22/2011 ON THE FILE OF SENIOR CIVIL JUDGE,
HARAPANAHALLI, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 19.4.2011
PASSED IN OS.NO.56/2008 ON THE FILE OF CIVIL
JUDGE, HARAPANAHALLI, DAVANAGERE DISTRICT.
THIS RSA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
After hearing the learned counsel for the appellant, the appeal was admitted on 20.10.2014 and the following substantial questions of law are framed by this court:
(1) Whether the lower appellate court was justified in reversing the judgment of the trial Court?
(2) Whether the findings of the lower appellate court is perverse for not considering the evidence pertaining to the property in a proper perspective?3
2. In order to answer the above substantial questions of law, it is just and necessary for this court to go through the case of the plaintiff and the defendants as well as the issues framed by the trial Court and the findings given, as well as the points raised for consideration by the first appellate court and the findings given therein. Admittedly, there are divergent findings recorded by the trial Court and the first appellate court. In such an eventuality, this court must be very careful in looking into the materials on record in order to ascertain whether there is any prejudice caused to any of the parties to the proceedings.
3. In this background, now let me have the brief factual matrix of the plaintiff and defendants case. It is the case of the plaintiff that he is the absolute owner and in possession and enjoyment of the suit schedule house property bearing Door No.768/2352-B.1/768 situated at 12th ward of Kelagala Upparageri, Harapanahalli measuring 42 feet East to West and 21 4 feet North to South, having specific boundaries such as:
East - road, West - House of Gonibasappa, North - Rickyard of Gonibasappa and South - house of Mallappa. It is the case of the plaintiff that he acquired the said property under a partition deed dated 27.3.1995. Since the date of partition, the plaintiff has been in exclusive possession and enjoyment of the same and the entire building measures 42 x 21 feet. It is stated that the plaintiff has also appended a sketch to the plaint, wherein the entire property is marked as PQRS and the house portion is marked as MNOP and the proposed construction of compound is marked as QRS.
It is the plaintiff's case that he got the katha changed into his name and thereafter, he applied for licence for construction of a compound wall by leaving 3 feet space on the western side. As the defendants have made hectic attempts to stop construction of the compound wall, it forced the plaintiff to file an appropriate suit before the trial Court for permanent injunction restraining the defendant from interfering with his peaceful possession of the suit schedule property. 5
4. The defendants in fact appeared before the court and contested the suit by filing common written statement. The defendants' case is that they denied the title over the suit schedule property nominally and then they have taken the specific stand that the plaintiff intends to construct the compound wall to his existing building and he has obtained the licence. The plaintiff has already stocked materials and it is specifically stated that the plaintiff in order to encroach upon the property of the defendants, has made hectic attempts to violate law and encroach upon the property of the defendant. It is contended that the plaintiff lawlessly tried to trespass on the property of the defendant to construct the compound wall illegally on the strength of some concocted documents which are obtained behind the back of the defendant. It is further contended that there is no pleading as to how the measurement of the suit schedule property came to the possession of the plaintiff. Therefore, the defendants have prayed for dismissal of the suit.
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5. On the basis of the above said rival contentions between the parties, the trial Court in fact has framed the following issues:
(1) Whether the plaintiff proves that he is in possession over the suit property as on the date of the suit?
(2) Whether the plaintiff further proves that
defendants are obstructing for his
possession?
(3) Whether the plaintiff is entitle for the
reliefs as prayed for?
(4) What order or decree?
6. The plaintiff has examined himself as PW-1 and produced seven documents as Exs.P1 to P7. The defendant examined himself as DW1 and got marked Exhibits D1 to D10. After appreciating the oral and documentary evidence on record, the trial Court has answered issue Nos.1 to 3 in the Affirmative and decreed the suit of the plaintiff and granted the relief of permanent injunction against the defendants. 7
7. Being aggrieved by the said judgment and decree passed by the trial Court, the defendant approached the first appellate court i.e., Civil Judge (Sr. Dvn.) Harapanahalli in RA NO.22/2011. The first appellate court culled out the pleadings of the parties and also the grounds urged before the first appellate court and framed the points for consideration in the following manner:
(1) Whether the defendants established that the findings of the trial Court that the plaintiff has proved his possession over the entire suit schedule property without establishing his title over the same is un-sustainable, perverse, capricious, illegal and against the well established principles of law.?
(2) What order or decree?
8. The appellate court has also re-appreciated the materials on record and taken up a different view and found that the judgment of the trial Court is perverse and illegal. Therefore, it substituted its finding and eventually dismissed the suit of the plaintiff. 8
9. As could be seen from the judgment of the trial Court and the first appellate court they mainly relied upon the documents issued by the panchayath i.e., Ex.P1 Licence, Ex.P2 Resolution, Ex.P3 Tax Register of property, Ex.P4 Blue Print and Exs.P5 to P7 are the Assessment list extracts. The defendant has also produced certain documents i.e., Ex.D1 to D10. Ex.D1 application, Ex.D2 Notice pertaining to the suit property and Exs.D3 to D10 are Kandayam paid receipts with reference to the property of the defendants. As could be seen from the rough sketch appended to the plaint, there is no dispute that the defendants are the adjacent owners of the property of the plaintiff on the western side and also on the northern side. The written statement averment and the evidence of the defendant also clearly goes to show that they also never dispute the existence of the property of the plaintiff i.e., the house and also to some extent backyard of the house. But mainly, they have disputed the extent of the property with regard to 42 x 21 feet of the plaintiff's property. On that ground, perhaps they have taken up 9 the contention that taking advantage of the municipal records, the plaintiff colluding with the municipal authorities obtained licence and also the sketch etc., in order to encroach upon the property of the defendants. The trial Court in fact considering mainly the licence and also the katha extract and the sketch, blue print and assessment register extract has come to the conclusion that the plaintiff has established the case, but it did not in detail delve upon as to how the plaintiff has acquired the said extent of the property and on what basis the said katha and other things have been entered in the panchayath records. On the other hand, the first appellate court has in detail gone into this particular aspect. It is categorically observed by the first appellate court that the mutation entry i.e., Ex.P1 Licence and Ex.P2 Mutation entry, though in favour of the plaintiff, but he has not produced the mother document i.e., palu patti to exactly show as to what property he has acquired under the said Palu patti and only on the basis of such document, the panchayath records have been built up. The first appellate court 10 has also considered that when there is a dispute with regard to the area and extent and the measurement of the suit schedule property, it becomes the duty of the plaintiff to establish title over the property and then seek for relief. Though I am not agreeing with the said observation made by the first appellate court, that the plaintiff has to prove his title in order to get an order of injunction from the court, as there is no dispute regarding the existence of the property of the plaintiff and the defendants are not claiming any ownership over the said property of the plaintiff. Therefore, there is no need for the plaintiff to go for proving his title, but what is required to be proved in a permanent injunction suit is that the plaintiff has been in possession of the actual extent for which he claims, when particularly the defendants have taken up the contention that on the basis of the false extent of the property, the plaintiff has been making hectic attempts to encroach upon the property of the defendants i.e., exactly, the crux of the case of the plaintiff and defendant.
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10. Apart from the above, the defendant has also produced before the court Ex.D1 and D2. Ex.D1 is the complaint lodged by the defendant to the Chief Officer, Harapanahalli, Panchayath stating that the plaintiff is making hectic attempts to put up some construction in the house and the defendant has complained about the same. In spite of that he is further putting up construction. A Notice has been adverted to by the Panchayath under Ex.D2, wherein he has specifically stated that the defendant Parasappa has given a complaint stating that the plaintiff has been encroaching upon the property of the defendant and putting up construction. It also refers to the application filed by the plaintiff annexed with the palu patti dated 27.3.1995 and the panchayath has perused the same and specifically pbserved in Ex.D2 that on examination of the palu patti, it does not give the correct length and breadth of the property and there are some interpolation in the said document. It is not the case of the plaintiff that he never gave any reply to the panchayath that he has not produced any palu patti 12 before the panchayath. Therefore, it creates a serious doubt whether the plaintiff has actually acquired 42 x 21 feet property under the palu patti. Very strangely enough, the plaintiff has not produced the palu patti before the court in spite of the defendant taking up that contention with reference to the extent of the property nor he has got a Commissioner appointed atleast to examine as to what is the extent of plaintiff's property and what are the extent of defendants property or whether any encroachment by the plaintiff over the property of the defendants. In the absence of all these material facts particularly non production of the mother document by the plaintiff and particularly the said document being produced before the panchayath as per the recitals in Ex.D1 and D2 and no specific extent is available in the said document, it creates a serious doubt in the mind of the court as to whether actually, the plaintiff is entitled for an extent of 42 x 21 feet as claimed in the suit. In the absence of giving any proof with regard to the extent of the suit schedule property, the court cannot grant such relief of injunction to the 13 extent claimed in the plaint. Therefore, I do not find any strong reasons to hold that the first appellate court is not justified in reversing the judgment of the trial Court, I am of the opinion that the finding of the lower appellate court cannot said to be perverse and it has in fact considered the documentary evidence of the plaintiff as well as the defendant with reference to the extent of the property and passed the judgment impugned in this appeal. In my opinion, there is no reason or ground to interfere with the said judgment and decree passed by the first appellate court.
11. Be that as it may, the first appellate court has also stated that the plaintiff's case has to be decided only if the plaintiff comes before the court for declaration with a comprehensive suit, then only the court can decide such important aspect, but it appears, the plaintiff has not approached with a comprehensive suit for declaration, in which the court can consider the right, title, interest and possession over the property as claimed by the plaintiff. Therefore, I am of the opinion, that the first appellate court has in detail considered all 14 the relevant materials and drawn such inference which does not call for interference at the hands of this court. Accordingly, the appeal deserves to be dismissed. Hence, the following:
ORDER The appeal is dismissed. In the peculiar facts and circumstances of the case, there is no order as to costs.
Sd/-
JUDGE PL*