Karnataka High Court
Devidas Venkatesh Shet vs Manjunath Sitaram Hegade on 18 November, 2022
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.5761 OF 2010 (INJ)
BETWEEN:
DEVIDAS VENKATESH SHET,
SINCE DECEASED BY HIS LRs.
1(a). SMT.BANGARI W/O LATE DEVIDAS SHET,
AGE:60 YEARS, OCC: HOUSEWIFE,
R/O GANDHI NAGAR, SIRSI - 581 401,
DIST: UTTARA KANNADA.
1(b). SMT.MEGHA W/O MANJUNATH ANVEKAR,
AGE:30 YEARS, OCC: HOUSEWIFE,
R/O MAHADWAR ROAD, BELAGAVI,
DIST: BELAGAVI - 590 001.
1(c). SRI RAJESH S/O LATE DEVIDAS SHET,
AGE:33 YEARS, OCC: BUSINESS,
R/O GANDHI NAGAR, SIRSI - 581 401,
DIST: UTTARA KANNADA. ...APPELLANTS
(BY SRI.S.N. BANAKAR., ADVOCATE)
AND:
MANJUNATH SITARAM HEGADE,
AGED ABOUT 51 YEARS, OCC: RIOT,
R/O HOSATOTA, TQ: SIDDAPUR,
DIST: UTTAR KANNADA. ... RESPONDENT
(BY SRI.JEEVAN J. NEERALGI., AND
SRI.K.S. PATIL., ADVOCATES)
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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED:01.07.2010 PASSED ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, SIRSI IN
R.A.NO.83/2008 AND THE JUDGMENT AND DECREE
DATED:21.08.2008 PASSED ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), SIRSI IN O.S.NO.95/2004.
THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.S.N.Banakar., learned counsel for appellants has appeared in person.
2. This appeal is from the Court of the Presiding Officer, Fast Track Court, Sirsi.
3. For the sake of convenience, the parties shall be referred to as per their status and ranking before the Trial Court.
4. The brief facts are stated as under:
It is the case of the plaintiff that he is in unauthorized possession of the suit schedule properties since 1972. The lands were not in good condition, he invested a huge amount and improved them, he has grown pepper and 3 grass in Sy.No.51 and in Sy.No.52 he has constructed a residential house and started residing therein. It is said that even in Sy.No.52, he has planted fruit-bearing trees.
It is averred that he moved an application before the Authority concerned for the grant of the lands in his favor. Contending that the defendant tried to disturb his possession and tried to encroach upon the suit schedule properties, he was constrained to take shelter under the Court of law and filed a suit for bare injunction.
In response to the suit summons, the defendant appeared through counsel and resisted the suit by filing a detailed written statement. He denied the plaint averments. He denied that the plaintiff is in possession of the suit schedule properties.
The defendant specifically contended that he purchased bagayat land bearing Sy.No.50 of Siddapur Taluk, Handyanmath Village in an auction on 26.11.2004. This suit betta land bearing Sy.No.52 is assigned for better 4 cultivation of the bagayat land of Sy.No.46, 48 and 50. He contended that he is in the enjoyment of the said betta land. Even at Sy.No.52 he has constructed a Shetagi shed. Measuring 10 X 12 feet with five wooden pillars and an areca tree pole and areca tree dabbe for better cultivation.
The defendant specifically contended that the plaintiff is residing 3 km away from bagayat land and there is no encroachment and there is no encroachment by the plaintiff in suit betta land. Among other grounds, he prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court has framed the following issues:
ISSUES
1. Whether the plaintiff proves that the suit schedule properties are properly described in the plaint?
2. Whether the plaintiff proves that he is in possession and enjoyment of suit properties as of the date of suit?
3. If so, whether the plaintiff proves the alleged interference in his peaceful 5 possession and enjoyment of suit property by the defendant as alleged?
4. Whether the plaintiff is entitled to the relief of injunction as prayed?
5. What order or decree?
To substantiate the claim, the plaintiff examined himself as PW1 and a witness as PW2 and produced eleven documents which were marked as Exs.P1 to P11. On the other hand, the defendant examined himself as DW1 and a witness as DW2 and did not produce any documentary evidence.
On the trial of the action, the suit came to be decreed to a limited extent restraining the defendant, his men, servants, or anybody on his behalf from interfering with the peaceful possession and enjoyment of the suit schedule properties and causing any obstructions and trespassing into suit schedule property till the auction is taken by the competent authorities on the application so filed by the plaintiff for grant of the properties. 6
Aggrieved by the Judgment and Decree of the Trial Court, the defendant preferred an appeal before the Appellate Court. The Appellate Court on appreciation of the evidence, dismissed the suit. Hence, this Regular Second Appeal is filed under Section 100 of CPC.
5. Learned counsel for the appellant has urged several contentions.
6. Heard the contentions urged on behalf of the appellant and perused the appeal papers & records with utmost care.
The suit giving rise to this appeal was filed by the plaintiff for a permanent injunction.
As could be seen from the nature of the lis between the parties, the suit is for a bare injunction based on possession as on the date of the suit. The right to an injunction is based on prima facie right. 7
It would be relevant to observe that in a suit for bare injunction, the plaintiff is required to prove his/her lawful possession over the suit schedule property as on the date of filing of the suit.
It is the specific contention of the plaintiff that he is in unauthorized possession of the suit schedule properties since 1972. He has pleaded that he has moved an application before the Authorities concerned for the grant of lands.
To substantiate the contention plaintiff was examined as PW1. He produced the Record of Rights.
I have Perused the same with utmost care. Plaintiff has produced Ex.P.1 and Ex.P.2. They are Records of Rights. They are from the year 2003-04. A cursory look at Column No.11 depicts that it is a bagayat land. The name of the plaintiff is not found in these two documents. On the contrary, these lands are classified as Government Betta lands.
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Ex.P.4 and Ex.P.5 are also Records of Rights pertaining to Sy.No.51 & 52 and they are of the year 1981-82 and 1980-81. In Column No.9 it is shown that the lands are classified as Forest and Government Betta lands.
Suffice it to note that the land belongs to the government and the documents produced by the plaintiff do not disclose that he is in possession of the suit property much less as on the date of filing of the suit.
The Appellate Court on re-appreciation of the evidence on record concluded that the plaintiff has failed to establish that he is in possession of the suit schedule properties. The learned Judge cared to look into the evidence on record and concluded that the properties are Government Forest lands accordingly the suit was dismissed.
In my considered opinion, the Appellate Judge has rightly appreciated the evidence on record and is justified in dismissing the suit. Further, the findings by the Appellate 9 Court are neither vitiated by non-consideration of relevant evidence nor there is an erroneous approach to the matter.
The substantial question of law is answered accordingly.
Resultantly, the Regular Second Appeal is dismissed. In view of the dismissal of the appeal, pending interlocutory applications stand disposed of.
Sd/-
JUDGE TKN