In a regular second appeal against an order dismissing an injunction suit, the court held that the appellant failed to prove actual possession of the specific disputed portion of the agricultural land with defined boundaries.
Appeal dismissed; Plaintiff entitled to approach appropriate authority for regularization if possession is later established.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF OCTOBER, 2013
BEFORE:
THE HON’BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.1925 OF 2010
BETWEEN:
S. Ravi, S/o. late Shankarappa, Aged about 35 years, Agriculturist, R/at Haruvanahalli Village, Lakkavalli Hobli, Tarikere Taluk, Chikkamagaluru District-577 101. ... APPELLANT/S [By Sri. H. Kantharaja, Adv.]
AND:
Both are Agriculturist, R/at Haruvanahalli Village,
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Lakkavalli Hobli, Tarikere Taluk, Chikkamagaluru District-577 101. ... RESPONDENT/S
[By Sri. S.V. Prakash, Adv. for R1 & R2.]
This RSA is filed u/Section 100 of CPC., against the Judgment and Decree dated 21.04.2010 passed in R.A. No.40/2006 on the file of the Senior Civil Judge & Prl. J.M.F.C., Tarikere, allowing the appeal and setting aside the Judgment and Decree dated 14.08.2006 passed in O.S. No.228/2001 on the file of the Civil Judge (Jr.Dn.) & Additional J.M.F.C., Tarikere.
This RSA coming on for Admission this day, the Court delivered the following:
JUDGMENT
The appellant has filed this appeal challenging
the Judgment and Decree of the first appellate Court in R.A. No.40/2006 setting aside the decree of injunction granted by the trial Court in his favour and allowing the appeal of the respondents.
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appeal are as under:
The appellant is the plaintiff, whereas the respondents are the defendants before the trial Court. The suit property is agricultural land in Sy. No.35 measuring 2 acres with the boundaries mentioned in the schedule to the plaint. It is the claim of the plaintiff that he is in unauthorized occupation of the suit property since long and an application has been filed to regularize the unauthorized occupation. It is also his contention that the defendants do not have any right, title or interest to obstruct his possession. Hence, he instituted the suit for injunction.
The defendants appeared before the trial Court
and filed their written statement contending that the suit property is in their possession, which has been granted by the Government under two different
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orders at Exs.D41 and 46 and that the plaintiff was never in possession of the suit property.
On the basis of the pleadings, the trial Court framed the issues casting the burden on the appellant to prove the lawful possession and obstruction. The plaintiff was examined as P.W.1 and 2 witnesses P.Ws.2 and 3 and in their evidence
documents Exs.P1 to 14 were marked. The 2nd defendant is examined as D.W.1 and 4 witnesses D.Ws.2 to 5 and in their evidence, documents Exs.D1 to 50 were marked.
The trial Court after hearing the parties and
on appreciation of the evidence on record, has decreed the suit in favour of the appellant. Aggrieved by the Judgment and Decree, the respondents preferred an appeal in R.A. No.40/2006 before the first appellate Court, which came to be allowed by the first appellate Court by setting aside the Judgment and Decree of the trial Court.
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Aggrieved by the reversal of the Judgment and Decree by the first appellate Court, the present appeal is filed by the plaintiff.
parties.
overlooking the oral evidence has reversed the said Judgment and Decree and it is improper.
On the other hand, learned counsel for the respondents has supported the Judgment and Decree of the first appellate Court.
produced by the plaintiff, Ex.P1 is an endorsement
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given by the Revenue Authorities having received an application for regularization of unauthorized occupation of 2 acres of land in Sy. No.35 which is said to be the suit property. This application is filed by the mother of the plaintiff. Ex.P2 is another endorsement issued by the Tahsildar stating that Gowramma, the 1st defendant has filed another application for grant of the land in that survey number. Ex.P3 is the certified copy of the Order on I.A. Nos.1 and 2 in O.S. No.152/2000 instituted by the 2nd defendant against two different parties. It reveals that the application for temporary injunction was rejected by the learned Civil Judge [Jr. Dn.], Tarikere. Ex.P4 is the certified copy of the Order in W.P. No.33278/2001, wherein a writ of mandamus was filed by the petitioner seeking direction to the Land Grant Committee to dispose of the application filed by the plaintiff’s mother on 04.07.1991. Ex.P8 is the record of right of the suit land and the name of the plaintiff is not shown
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in any of the columns in the said document. Exs.P6
to 9 are the photographs said to be of the suit property and Ex.P10 is a statement made by the plaintiff before the Revenue Inspector. The perusal of Ex.P11 would reveal that it is another request application by Gowramma i.e., the mother of the plaintiff. Rest of the documents are the notice, postal acknowledgement, etc. In none of these documents produced by the plaintiff, there is any reference to prove that the plaintiff was in possession of the suit property on the date of the suit. If the plaintiff was in unauthorized occupation of the suit property for a long period,
there could have been a mention of this fact in the records. It is under these circumstances that the Court below held that there are no documents with the plaintiff to prove his possession.
taken into consideration the documents Exs.D1 to 50
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and the perusal of the documents at Ex.D41 and 46 reveal that 1.18 acres of the land each was granted to the husband of the 1st defendant and the 2nd defendant. Ex.D39 is the survey sketch, which reveals the boundaries in respect of the property, which was in possession of the defendants in pursuance of the grant certificate-Exs.D41 and 46.
The grant of these lands under Ex.D41 was vide Order dated 24.07.2003. It is submitted before the Court that the Sy. No.35 measures total more than 100 acres as to in which portion of this property the plaintiff is in possession actually is not forthcoming from the documents produced by him. Except the oral evidence that has been led by the plaintiff, there is nothing to support the oral version. At the same time, the defendants have produced the documents to show their possession of the land granted to the husband of the 1st defendant and the 2nd defendant. In the absence of any material as to the boundaries of the land in which
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the plaintiff is in occupation, a decree of injunction cannot be granted. The first appellate Court has taken into consideration the documents produced by the defendants and also the oral evidence of both the parties and on its appreciation, has come to the conclusion that the plaintiff has not proved the actual possession of 2 acres of the land in Sy. No.35 with the boundaries stated therein. In such circumstances, I do not find any substantial question of law for consideration in this appeal. When there is a conflicting documentary evidence as against the oral evidence by the appellant, it is appropriate that the documents are taken into consideration.
In the result, I do not find any justifiable grounds to interfere with the Judgment and Decree of the first appellate Court. Consequently, the appeal fails and it is accordingly dismissed.
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Anyhow, the plaintiff is at liberty to approach appropriate authority for regularization of unauthorized occupation if he is able to establish his possession of specified portion in the suit survey number.
Sd/JUDGE.
Ksm*
2 issues framed by the court
Whether the appellant, who claimed unauthorized occupation of agricultural land, was entitled to an injunction decree in the absence of documentary evidence proving specific boundaries of possession.
Whether the First Appellate Court correctly dismissed the suit when the appellant failed to prove actual possession despite defendants producing grant certificates.
1 provisions across 1 enactments
S. Ravi
Gowramma
Jayaram
A.S. Pachhapure
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
