Karnataka High Court
Adakamaranahalli Gram Panchayath vs Sri Bylappa on 21 March, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.1945 OF 2013 (INJ)
BETWEEN:
ADAKAMARANAHALLI GRAM PANCHAYATH
DASANPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-562162.
REP BY PANCHAYATH DEVELOPMENT OFFICER
...APPELLANT
(BY SRI. B. RAVINDRA PRASAD, ADVOCATE)
AND:
SRI. BYLAPPA
S/O LATE GULLAPPA ,
AGED ABOUT 64 YEARS,
R/AT MAKALI VILLAGE,
DASANPURA HOBLI,
BANGALORE NORTH TALUK-560076.
...RESPONDENT
(BY SRI. N.J.RAMESH, ADVOCATE FOR RESPONDENT;
SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR PROPOSED
RESPONDENT NO.2
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
26.10.2017)
THIS R.S.A. IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 10.10.2012 PASSED IN R.A.NO.203/2011 ON
THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V,
BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
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DATED 22.06.2011 PASSED IN O.S.NO.680/2009 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., NELAMANGALA.
THIS R.S.A. COMING ON FOR FURTHER DICTATION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal was filed by the defendants in O.S. No.680/2009 on the file of the Senior Civil Judge and JMFC., Nelamangala (henceforth referred to as the 'Trial Court') challenging the Judgment and Decree of the Court of Additional District and Sessions Judge, Fast Track Court- V, Bangalore Rural District, Bangalore (henceforth referred to as the 'First Appellate Court') dated 10.10.2012 in R.A. No.203/2011, by which it reversed the Judgment and Decree dated 22.06.2011 of the Trial Court and granted perpetual injunction in favour of the plaintiff in respect of the suit schedule property.
2. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellants herein were the defendants while the respondent was the plaintiff before the Trial Court. This Court in terms of the 3 Order dated 26.10.2017, permitted Adakamaranahalli Gram Panchayat to come on record in the place of existing appellants.
3. The suit in O.S. No.2852/2006 was filed for perpetual injunction in respect of a site measuring East to West 50 feet and North to South 155 feet lying within khaneshumari No.5 of Makali village, Dasanapura hobli, Bengaluru North Taluk. The plaintiff claimed to be the absolute owner in possession of the aforesaid property and that he was in possession of the same for more than 50 years and had constructed a dwelling house. In order to establish that the plaintiff was in possession, he relied upon a mahazar drawn in the year 1983 in respect of khaneshumari No.5 of the said village by the Village Panchayath Extension Officer as per the directions issued by the Assistant Commissioner, Doddaballapura, dated 27.08.1983 in case No.VPCCR.106/1983-84 to the Chief Executive Officer and the Administrator, Taluk Development Board, Nelamangala, on 27.12.1983. The 4 plaintiff claimed that as per the mahazar, he was in possession of the suit property even prior to 1960-61 and was paying kandayam to the Panchayat for more than 10 years. He also contended that just like him, there was another lady named Smt.Radha, who was in possession of another portion of the site in khaneshumari No.5. The plaintiff relied upon the proceedings initiated by Smt. Radha and the village panchayat before the various authorities in respect of the property of the said Smt. Radha to contend that the defendants were not the owners of the property bearing khaneshumari No.5. The plaintiff claimed that the house constructed over the suit property was serviced with electricity and his name was entered in the electoral roll. He also claimed that he belonged to scheduled caste and that the Tahasildar had issued a certificate to that effect. The plaintiff alleged that the electricity bills, election card and the voters' list established his possession over the suit property. He also claimed that he had erected a compound wall around the suit property and thus, contended that he was in 5 possession of the said property. He alleged that on 25.11.2006, the defendants went near the suit property and asked the plaintiff and his family members to vacate the same. Based on this cause of action, the plaintiff sought for perpetual injunction restraining the defendants from interfering with his possession and enjoyment of the suit property and to restrain the demolition of the dwelling house and compound.
4. The suit was contested by the defendant No.1 who contended that the suit property bearing khaneshumari No.5 of Makali village belonged to it and was earlier recognized as 'Chatra' and was preserved for public utility. It claimed that the suit property was under
its care and custody and it had constructed a building for the benefit of running a school and the remaining vacant portion was in its possession. It refuted the claim of plaintiff that he was in possession of the suit property. It contended that the suit property was utilized for the purpose of playground for the Government school. It 6 denied the mahazar allegedly conducted by the Panchayat Extension Officer on 27.08.1983. It contended that the plaintiff did not pay any tax to the defendant No.1 concerning the suit property. It alleged that the plaintiff had filed the suit to knock off the suit property at the instance of Smt. Radha and Sri H. Ravi. It denied the claim that the plaintiff had obtained electricity connection to the house constructed allegedly on the suit property. It denied the claim that the plaintiff was having a voter identity card indicating that he was in possession of the suit property. It claimed that the compound constructed around the suit property was raised by the defendants and that it is the defendants who were in possession of the suit property. It next contended that the plaintiff was granted a site measuring East to West 35 feet and North to South 35 feet in khaneshumari No.5 of Makali village, where he had constructed a house and enclosed it by a compound wall. It claimed that except this property, the plaintiff was not in possession of any other property, much less the suit property. It also claimed that the plaintiff had filed a suit 7 without issuing a statutory notice as contemplated under Section 289 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (henceforth referred to as 'the Act of 1993') It also claimed that the plaintiff had furnished wrong boundaries with an intention to knock off the property that belonged to the Panchayat.
5. Based on these rival contentions, the Trial Court framed the following issues:
"1. Whether the plaintiff proves that is in possession of the suit property as on the date of the suit?
2. Whether the plaintiff proves that unnecessarily the defendants are trying to interfere with the possession and enjoyment of the property?
3. What order or Decree ?"
6. The daughter of the plaintiff who was authorized under a power of attorney was examined as PW.1 and she marked documents as Exs.P1 to P30. The 8 defendant No.1 examined one of its officials as DW.1 and marked documents as Exs.D1 to D8.
7. Based on the oral and documentary evidence, the Trial Court dismissed the suit primarily on the following findings:
i) The evidence on record did not show that the plaintiff was in possession of the suit schedule property.
ii) All the documents marked by the plaintiff excluding Ex.P15 related to some other property. That Exs.P15 and P16 were the mahazar drawn and report submitted to which the plaintiff was not a party and therefore, these documents did not show or demonstrate the possession of the suit property by the plaintiff.
iii) The evidence of PW.1 did not establish that the plaintiff was in possession of the suit property for more than 50 years as claimed in the plaint.
iv) Since the plaintiff failed to prove his possession, the question of interference by the defendants did not arise.9
8. Being aggrieved by the aforesaid judgment and decree, the plaintiff filed Regular Appeal No.203/2011 before the First Appellate Court.
9. The First Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties and framed the following points for consideration:
"1. Whether the appellant proves that the judgment and decree passed by the Trial Court is perverse, arbitrary and this court interference is necessary?
2. What Order?"
10. The First Appellate Court based on the oral and documentary evidence on record, allowed the appeal and decreed the suit primarily on the following grounds:
i) Undisputedly, a portion of site bearing khaneshumari No.5 was in possession of a person named Smt. Radha and that the defendant No.1 had passed a resolution on 26.08.1983 (stated as 27.08.1983 in the judgment of the First Appellate Court) declaring that the said property belonged to the village Panchayat, which was challenged by Smt. Radha before the Assistant Commissioner, 10 Bangalore sub-division, Bangalore in Case VPC No.214/1986.
ii) That the village Panchayat also preferred an appeal before the Assistant Commissioner, Bangalore sub- division, Bangalore, in Case No.VPC.46/1987-88.
iii) The Assistant Commissioner passed an order holding that the entire gramatana site in khaneshumari No.5 does not belong to the village Panchayat as it was an inam land that had vested in the State. Being aggrieved by the said order, Panchayat filed an appeal before the Divisional Commissioner, Bangalore Division, Bangalore, in Case No.VPC.Appeal No.4/1991-92. The Divisional Commissioner held that the entire land in khaneshumari No.5 of Makali village did not belong to the village Panchayat as it was a private property of persons, who were residing therein. This order was challenged by the Dasanapura Group Panchayat before this Court in W.P. No.22303/1994 which was initially dismissed for non-prosecution on 04.02.1998 and after restoration of the petition, it was rejected in terms of the Order passed by a coordinate Bench of this Court dated 21.01.1999.
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iv) That the evidence of the power of attorney holder of the plaintiff established that the plaintiff was in possession of the suit property for over 50 years by constructing a small house.
v) That the suit property is a portion of khaneshumari No.5 which is in possession of the plaintiff and the remaining portion is in possession of Smt.Radha.
vi) That the plaintiff has constructed a compound wall around the suit schedule property with cement bricks and raised trees in the property.
vii) That the plaintiff had obtained electricity connection to his house in the suit schedule property and obtained an identity card from the Election Commission of India.
viii) That the plaintiff had paid building tax in respect of the house in suit schedule property.
ix) That in some portion of khaneshumari No.5, there were other persons named Munishamappa and Mallaiah, who were in possession and the Panchayat had passed a resolution to grant khata in the name of Sri Mallaiah.
x) That after the death of Munishamappa, his sons, namely Sri Bylappa, Sri Narasimha and Sri 12 Hanumanthappa had sold their portion to Smt.Radha, under a sale deed. Based on the sale deed, Smt.Radha had filed an application to transfer khata in her name. On 26.08.1983, the Panchayat passed a resolution for cancellation of the khata that was transferred in the name of Smt. Radha. Smt. Radha preferred an appeal before the Assistant Commissioner in VPC.(A).No.8/1983 under the Karnataka Village Panchayat and Local Boards Act. In the appeal, the Assistant Commissioner directed the Administrator of the Taluk Development Board, Nelamangala, to inspect the site bearing khaneshumari No.5 and submit a report. Accordingly, the Administrator, Taluk Development Board, Nelamangala, inspected the site and submitted a report about the persons, who were in possession of the site bearing khaneshumari No.5 along with their names and extents. In this report, it was shown that the plaintiff was in possession of the suit property and that he had constructed a house.
xi) That the defendant No.1 admitted that a mahazar as per Ex.P15 was drawn and that Ex.P16 was a report submitted by the Panchayat Extension 13 Officer to the Government and therefore, Exs.P15 and P16 cannot be overlooked.
xii) That the photos furnished by the plaintiff indicated that he had constructed a house in the suit property and had enclosed it by a compound wall.
xiii) That the plaintiff had paid tax to the Panchayat and therefore, the Panchayat had admitted the possession of the plaintiff in the suit property.
11. Being aggrieved by the aforesaid Judgment and Decree of the First Appellate Court, the defendants have filed this Regular Second Appeal.
12. This appeal was admitted to consider the following substantial questions of law:
"i. Whether the plaintiff/respondent had proved his possessory title over the suit property based on documents to which the plaintiff was not a party?
ii. Whether the First Appellate Court committed an error in mis-construing Exs.P.15 and 16 and holding that it was the plaintiff who was in possession of the suit property, though the said 14 exhibits related to persons named Munishamappa, Bylappa, Nagoji Rao and Narasimaiah, Hanamantappa?
iii. Whether the suit for injunction was maintainable against the defendant without complying the requirement of Section 289 of the Karnataka Panchayath Raj Act, 1993?"
13. The learned counsel for the appellant/defendant No.1 submitted that except Ex.P15, the other documents did not relate to the suit property. He submitted that Ex.P15 - mahazar/panchanama and Ex.P16 - report were a record of an inspection conducted by an officer in a proceeding before the Assistant Commissioner. He submitted that except a stray statement in the mahazar, there was nothing else to establish that the plaintiff was in possession. He also submitted that the contents of the mahazar was not proved by cogent and acceptable evidence before the Trial Court. He further submitted that as per the case of the plaintiff, the plaintiff was in possession of one portion of khaneshumari No.5 and the other portion was in 15 possession of Smt. Radha. He submitted that the portion that was in possession of Smt. Radha was sold by her in terms of Ex.D6 which did not indicate that the plaintiff was in possession of the adjacent portion of the site in khaneshumari No.5. He also submitted that the plaintiff did not produce any document to show that he was in possession of the suit property though it was contended that the plaintiff was in possession of the suit property for over 50 years. He submitted that the photographs marked before the Trial Court related to the suit property, but the said building and the compound found therein was erected by the defendants. The learned counsel submitted that the First Appellate Court perversely considered the evidence and treated the documents produced by the plaintiff as if it related to the suit property while it did not. He, therefore, submitted that the Judgment and Decree of the First Appellate Court being an erroneous finding on a question of fact, based on an erroneous assumption of the evidence on record deserves to be set aside.
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14. Per contra, the learned counsel for the plaintiff-respondent submitted that the defendants had failed to plead substantial questions of law in the appeal filed before this Court, but pleaded the same in a separate sheet of paper that was annexed to the appeal memorandum. He submitted that this is an error and that should result in dismissal of the appeal. In this regard, he relied upon the judgment of this Court in CHONDANA GOPALA VS. CHONDANA MONNAPPA [ILR 1986 Kar 994]. He also relied upon the judgments of the Apex Court in SASIKUMAR AND OTHERS vs. KUNNATH CHELLAPPAN NAIR AND OTHERS [(2005) 12 SCC 588 ] and in B.C. SHIVASHANKARA vs. B.R. NAGARAJ [2007 (3) Kar.L.J. 48 (SC)]. He next contended that even if the First Appellate Court had decided a question of fact wrongly or erroneously, that would not give rise to a substantial question of law. In this regard, he relied upon the judgment of the Apex Court in BABULAL AND OTHERS vs. SHANKAR LAL AND OTHERS [2008(17) SCC 638]. He contended that the defendants were not the 17 owners of the suit property and therefore, he was entitled to protect his possession against the whole world except the owner. He submitted that Ex.P15 clearly indicated that the plaintiff was in possession of the suit property and this being a document prepared in the course of performance of official duty, has presumptive value and therefore, the First Appellate Court rightly decreed the suit. That the finding recorded by the First Appellate Court is a pure question of fact which does not give rise to a substantial question of law and therefore, this Court may not interfere with the findings recorded by the First Appellate Court. He further dilated and submitted that possession being a visible badge of ownership cannot be considered lightly by the Courts and therefore, when the plaintiff had established that he was in possession of the suit property, every endeavour should be made by the Courts to protect such possession. He relied upon the judgment of the Apex Court in SOMNATH BURMAN vs. DR. S.P. RAJU AND ANOTHER [1969(3) Supreme Court Cases 129] as well as the judgment of this Court in SMT. JAYAMMA 18 VENKATRAM AND ANOTHER vs. SMT. ASHRAF JAHAN BEGUM AND ANOTHER [2020 (3) KCCR 1966]. He also relied upon the judgment of the Apex Court in M.KALLAPPA SETTY vs. M.V. LAKSHMINARAYANA RAO [AIR 1972 SC 2299] to buttress his arguments. He also contended that a mere inadvertent error found in any document does not result in a substantial question of law for consideration. In this regard, he relied upon the judgment of the Apex Court in in JANGBIR vs. MAHAVIR PRASAD GUPTA [AIR 1977 SUPREME COURT 27].
15. I have considered the submissions made by learned counsel for the plaintiff and defendant No.1. I have also perused the records of the Trial Court, the Judgment and Decree of the Trial Court and the impugned Judgment and Decree of the First Appellate Court.
16. In a suit for perpetual injunction based on possession, the plaintiff is bound to produce all the material documents available with him to establish that he is in actual possession. He is bound to prove all 19 circumstances to evidence his possession. This is all the more necessary when the suit is filed by a person claiming to be in settled possession against a person who is allegedly not the owner. The claim of settled possession is not akin to mere possession. A person having no title to the property can still claim to be in settled possession, if such possession is for a long time without being disturbed by any person whomsoever. Though it was pleaded in the plaint that the plaintiff was the owner of the suit property, the learned counsel fairly submitted that the plaintiff was not the owner but he was in long settled possession of the suit property. The plaintiff claimed that he was in possession for more than 50 years. He also contended that just like him, another lady namely Smt.Radha was in possession of the remaining portion of the land in Khaneshumari No.5. The boundaries given to the suit property indicates that the said Smt.Radha owned the property in Khaneshumari No.5 on the eastern side. 20
17. If the documentary evidence placed on record is perused, Ex.P.2 is resolution passed by the Panchayat in terms of which the request made by Smt. Radha for assessment of the property was accepted. Ex.P.3 is the tax paid receipt in the name of H.Ravi, S/o. Hanumanthaiah, likewise Exs.P. 4, 5, 6, 7 are the treasury deposit made by Hanumanthappa. Exs.P. 8, 9, 10 and 11 are also the receipts issued by the Panchayat regarding the house tax in favour of H.Ravikumar, S/o Hanumanthappa. Ex.P.12 is yet another tax paid receipt favouring Smt.Radha. Ex.P.13 is the resolution passed by the Panchayat by which it set at naught, the khatha in the name of Smt. Radha and Hanumanthaiah and collection of tax in respect of the property bearing khaneshumari No.5. Ex.P.14 is an endorsement issued in case No.V.P.C.(A)/8/83 calling upon Smt.Radha to appear before the Assistant Commissioner, Doddaballapura. Ex.P.15 is the Mahazar drawn by the Administrator of Taluk Development Board, Nelamangala. Ex.P.16 is the report of the Panchayat Development Officer of Nelamangala Taluk. Ex.P.17 is an order passed by the 21 Assistant Commissioner, Bengaluru Sub-division, Bengaluru in case No.VPC.214/1986 filed by Smt.Radha against the Administrator of Dasanapura Village Panchayat and the person named Sri P.Mallaiah and in case No.V.P.C.46/1987-88 filed by the Administrator, Dasanapura Village Panchayat against Smt. Radha. Ex.P.18 is another endorsement issued in case No.VPC 214/1986 & VPC No.46/87-88 between Smt.Radha and the Village Panchayat, Dasanapura. Ex.P.19 is yet another endorsement in case No.VPC/Appeal/20:1991-92 filed by Smt.Radha against the Administrator, Dasanapura Grama Panchayat. Ex.P.20 is an endorsement in case No.VPC Appeal 1991-92 dated 05.04.1994. Ex.P.21 is an order passed by this Court in W.P.No.22303/1994 filed by Dasanapura Grama Panchayat against Smt.Radha. Ex.P.22 is a complaint lodged by the plaintiff and his daughter to the Police Inspector of Nelamangala police station. Ex.P.23 is an acknowledgement issued by the concerned police, while Exs.P.24 to 29 are the photographs. Ex.P.30 is the tax paid receipt standing in the name of the plaintiff. 22 Ex.P.31 is another complaint lodged by the plaintiff and his daughter before the jurisdictional police against the defendants herein.
18. A perusal of the aforesaid documentary evidence would indicate that except Exs.P.15, 24 to 30, all the other documents related to the properties of either Smt.Radha or Hanumanthappa. Learned counsel for the plaintiff did not dispute this fact. As a matter of fact, P.W.1 deposed in her evidence that "¤.¦.2 jAzÀ 20 zÁR¯ÉUÀ¼À£ÀÄß gÁzsÁ J£ÀÄߪÀªÀgÀÄ ªÁ¢UÉ PÉÆnÖgÀÄvÁÛgÉ." Thus, the only documents that relate to the claim of the plaintiff are the mahazar at Ex.P.15, the photographs at Ex.P.24 to 29, complaints to the police at Ex.P.22, 23, 31, tax paid receipt at Ex.P.30. Out of the aforesaid, Exs.P.22, 23, 24 to 29, 30 and 31 could certainly not establish the possession of the plaintiff. Thus, the only document was Ex.P.15 which was an unilateral/unverified statement made in a mahazar drawn in a proceedings between Radha and the defendants which related to the property of Radha.
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19. A perusal of Ex.P.15 would indicate that this was the report submitted by the Administrator of Taluk Development Board, Nelamangala Taluk pursuant to the direction issued by the Assistant Commissioner, Doddaballapura in case No.VPC.CR.106-1983-84. In that report it is stated as follows;
"SÁ£ÉõÀĪÀiÁj £ÀA.5gÀ §UÉÎ £ÁªÀÅ ºÉüÀĪÀÅzÉãÉAzÀgÉ £ÀªÀÄä ªÀiÁPÀ½ GgÀÄ¥ï vÉÆgÉ bÀvÀæ UÁæªÀÄzÀ ¥ÀÆgÀé¢AzÀ®Æ eÉÆÃrUÁæªÀĪÁVzÀÆÝ ¸ÀzÀj UÁæªÀĪÀÅ eÉÆÃrzÁgÀjAzÀ £ÁUÉÆÃfgÁªï ªÀÄvÀÄÛ CªÀgÀ ¸ÀAvÀwAiÀĪÀjUÉ ¸ÉÃjzÀÆÝ. F UÁæªÀÄ ¸ÀPÁðgÀPÉÌ ¸ÉÃgÀĪÀªÀgÉUÀÆ AiÀiÁªÀ «zsÀªÁzÀ gÉªÉ£Æ À å ªÀÄvÀÄÛ ¥ÀAZÁ¬ÄÛ ¯ÉPÀÌUÀ½gÀĪÀÅ¢®è. 1960-61 PÉÌ »AzÉ ¸ÀzÀj d«ÄãÀ£ÄÀ ß eÉÆÃrzÁgÀjAzÀ £ÁUÉÆÃfgÁªï ªÀÄvÀÄÛ EzÉà UÁæªÄÀ zÀ SÁAiÀÄAªÁ¹UÀ½AzÀÝ ¨ÉÊ®¥Àà ªÀÄĤ¸ÁéªÄÀ ¥Àà PÉÆÃV®ÄgÁªÀÄAiÀÄå ºÁUÀÆ ºÀ£ÀĪÀÄAvÀ¥àÀgÀªÀgÄÀ ¸Áé¢üãÀzÀ°èzÆ À Ý CªÀgÉà C£ÀĨsÀ«¹PÉÆAqÀÄ §gÀÄwÛzÝÀ gÄÀ . F ¥ÉÊQ eÉÆÃrzÁgÀ £ÁUÉÆÃagÁªï gÀªÀgÄÀ ¥ÁwAiÀiÁVzÀÆÝ CªÀgÀ PÀÄlÄA§zÀªÀgÁUÀ° CxÀªÁ CªÀgÀ ªÀA±À¸ÛÀgÁUÀ° EgÀĪÀÅ¢®è ªÀÄvÀÄÛ eÉÆÃrzÁgÀgÀ eÉÆvÉAiÀÄ°è dAnAiÀiÁV C£ÀĨsÀ«¸ÀÄwÛzÝÀ PÉÆÃV®Ä gÁªÀÄAiÀÄå ªÀÄvÀÄÛ CªÀgÀ ªÀÄPÀ̼ÀÄ UÀļÀî¥àÀgÀªÀgÄÀ ¸ÀºÀ¥ÀwAiÀiÁVzÀÆÝ CªÀgÀ ªÀÄUÀ £ÀgÀ¹AºÀAiÀÄågÀªÀgÀÆ ªÀÄvÀÄÛ ºÀ£ÄÀ ªÀÄAvÀ¥àÀgÀªÀgÄÀ ¥ÁwAiÀiÁV CªÀgÀ ªÀÄUÀ ªÀÄĤAiÀÄ¥ÀàgÀªÀgÀÆ ¸ÀºÀ¥ÁwAiÀiÁVzÀÆÝ CªÀgÀ ªÀÄUÀ ºÀ£ÀĪÀÄAvÀ¥ÀàgÀªÀgÀÄ FUÀ ºÁ° EzÀÆÝ ¸ÀzÀj ¸ÀéwÛUÉ ºÁ° ¨ÉÊ®¥Àà, 24 ªÀÄĤ¸ÁéªÀÄ¥Àà, £ÀgÀ¹AºÀAiÀÄå ªÀÄvÀÄÛ ºÀ£ÄÀ ªÀÄAvÀ¥àÀgÀªÀgÀÄ ºÀPÀÆÌzÁgÀgÁVgÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀévÄÀ Û ¥ÀÆgÀé ¥À²ÑªÄÀ 155 Cr ªÀÄvÀÄÛ GvÀÛgÀ zÀQët 215 Cr GzÀÝUÀ®«zÀÄÝ »AzÉ EzÀgÀ°è PÀ°è£À°è PÀnÖzÀ 65 CAPÀtzÀ MPÀÌ ªÀÄ£ÉUÀ½gÀĪÀ zÁR¯ÉUÀ½gÀÄvÀÛªÉ. ¸ÀzÀj eÁUÀªÀ£ÀÄß »AzÉ bÀvæÀ ªÀÄvÀÄÛ ªÁ¸ÀzÀ ªÀÄ£ÉUÀ½UÉ G¥ÀAiÉÆÃV¸ÀÄwÛzÀÝgÀÄ. FUÀ ¸ÀĪÀiÁgÀÄ ¨sÁUÀ ©zÀÆÝ ºÉÆÃVzÀÄÝ SÁ° d«ÄãÀÄ EgÀÄvÀÛzÉ. EzÀPÌÉ ªÉÄîÌAqÀ £Á®Æè d£ÀUÀ¼ÀÄ 1960-61£Éà ¸Á°¤AzÀ ¥ÀAZÁ¬ÄÛ PÀAzÁAiÀÄ PÀnÖPÆ É AqÀÄ C£ÀĨsÀ«¸ÀÄwÛgÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀéwÛUÉ ªÉÄîÌAqÀ £Á®ÄÌ d£ÀgÀ®èzÉ ¨ÉÃgÉ AiÀiÁgÀÆ ªÁgÀ¸ÄÀ zÁgÀjgÀĪÀÅ¢®è. ¸ÀzÀj d«Ää£À°è zÀQëtzÀ PÀqÉ ¥ÀÆgÀé ¥À²ÑªÄÀ ¸ÀĪÀiÁgÀÄ 50 Cr---155 Cr GzÀÝUÀ®zÀ°è ¨ÉÊ®¥Àà ©¯ï UÀļÀî¥Àà£ÀªÀgÀ ¸Áé¢üãÀzÀ°èzÀÆÝ EzÀgÀ°è MAzÀÄ aPÀ̪Á¸ÀzÀ ªÀÄ£É PÀnÖPÆ É AqÀÄ ªÁ¸ÀªÁVgÀÄvÁÛgÉ. "
20. The fact that Ex.P.15 was drawn by the Administrator of Taluk Development Board was admitted by D.W.1 in his cross-examination. However, the plaintiff made no attempt to prove the contents of Ex.P.15. Even otherwise this document went against the plaintiff in view of the following observation contained therein. "SÁ£ÉõÀĪÀiÁj 5gÀ°è FUÀ gÀ« ªÀÄvÀÄÛ gÁzsÁ PÉÆÃA gÀ«gÀªÀgÄÀ MlÄÖ ¥ÀæzÉñÀPÉÌ ¸ÀÄvÀÛ®Æ PÀ®Äè PÀA§UÀ¼À£ÀÄß £ÉnÖ ªÀÄļÀÄî vÀAw ¨ÉðAiÀÄ£ÀÄß ºÁQ¹PÉÆArzÀÆÝ EzÀgÀ°è ¸ÀéAvÀPÁÌV 25 »vÀÛ®Ä, PÀt ºÁUÀÆ ºÀÄ®Äè ªÉÄzÉAiÀÄ£ÀÄß ElÄÖPÉÆAqÀÄ C£ÀĨsÀ«¹gÀÄvÁÛgÉ." However, except this document, the plaintiff who claimed to be residing in the suit property for over fifty years and that the house constructed in the suit property was provided with electricity, he made no effort to mark any documents to establish his possession over the suit schedule property. The contention of learned counsel for the plaintiff that Ex.P.15 was sufficient to establish the possession cannot be accepted for the simple reason that Ex.P.15 was never marked through the person who was the author of the document. The defendants did not have an opportunity to establish the correctness of the report submitted. Ex.P.15 was only a corroborative piece of evidence that had to be established by the plaintiff by adducing acceptable independent evidence to establish his possession over the suit schedule property.
21. The possession of the plaintiff cannot be deduced from a document prepared in a revenue proceeding to which the plaintiff was not a party and in 26 which the suit property was not the subject matter. To claim the relief of perpetual injunction based on possession, the same has to be established by cogent/acceptable evidence, which the plaintiff miserably failed.
22. In addition, the plaintiff claimed that a person named Smt.Radha was in possession of the adjacent portion of Khaneshumari No.5 on the eastern side of the suit schedule property. This is belied by a sale deed dated 29.08.2001 (Ex.D.6) executed by Smt.Radha in respect of a property in Kaneshumari No.5 which shows that the plaintiff is nowhere in possession of any property on the western side of her property, but is shown as the property of Thimmarayappa. There is yet another circumstance that is reflected from Ex.D.4 which is a sale deed executed by plaintiff on 05.11.2004 in favour of Narasamma, by which a site measuring 30X40 bearing Gramatana No.43 was sold. The western boundary is mentioned as 'School' and the northern boundary is mentioned as 'Panchayth 27 Property'. This probabilises the claim of the defendants that the plaintiff was granted a site at Makali Village which was within the administrative limits of the defendants. The P.W.1 who relentlessly claimed that this site was not granted to plaintiff by the government, yielded up in cross- examination where she deposed "It is true to suggest that my father has sold his site situated at Makali Village, Gramatana No.43 under a sale deed dated 05.11.2004 in favour of Narasamma. The said property was granted to my father by government". Therefore, the plaintiff has cleverly attempted to lay a claim to the suit property by trying to bank upon documents of Radha and other alleged occupiers in Khaneshumari No.5. The Trial Court has meticulously sieved the evidence and held that the plaintiff has not proved his possession. However, the First Appellate Court without looking into the documents, blindly assumed that these documents related to the suit property and decreed the suit. The casual approach of the First Appellate Court is deprecated.
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23. In that view of the matter, this Court is not convinced about the possession of the plaintiff over the suit schedule property.
24. A perusal of the judgment of the First Appellate Court would demonstrate that the First Appellate Court has misread the documents marked by the plaintiff, as if it related to the suit property, though it did not. The First Appellate Court must have restricted its examination to Ex.P.15 which was only a mirage which created an impression that the plaintiff was in possession of the suit schedule property, which was really not conclusive. The First Appellate Court therefore misdirected itself in holding that the plaintiff was in possession of the suit property.
25. Consequently, the substantial questions of law
(i) and (ii) framed by this court is answered against the plaintiff. In so far as the last substantial question of law is concerned, the plaintiff alleged that the defendants attempted to interfere with his possession and demolish the compound wall etc. Therefore, the plaintiff could not 29 have waited for compliance of Section 289 of the Act of 1993. Hence, the non-issuance of a notice under Section 289 of the Act of 1993 was not fatal to the suit. Hence, this question is answered in favour of the plaintiff.
26. Hence, the appeal is allowed and impugned judgment and decree passed by the First Appellate Court in R.A.No.203/2011 dated 10.10.2012 is set aside.
Consequently, the suit filed by the plaintiff in O.S.No.680/2009 is dismissed.
The pending I.A.'s, if any, stand disposed off.
Sd/-
JUDGE sma - para Nos.1 to 14 PN - from para No.15