Dismissed

Sri Mahesh S/O Erappa v. Sri Badri Rajaiah S/O Javaraiah

Karnataka HC17 Sept 2013RSA/378/2010

Case brief

AI extract

What is this about?

The High Court dismissed two Regular Second Appeals filed against judgments that rejected a suit for injunction. The plaintiff claimed possession based on a mahazar, but revenue records named the State as the owner. The Court held that the lower courts correctly found the appellant failed to prove settled possession.

What did the court decide?

The appeals filed by the appellant were dismissed, and the lower court judgments and decrees were upheld.

Sri Mahesh S/O Erappa Vs Sri Badri Rajaiah S/O Javaraiah — Landlord and Tenant | Karnataka HC (2013)

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1 RSA No.378/10 C/W RSA NO.377/10

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 17^TH DAY OF SEPTEMBER, 2013

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BEFORE

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THE HON’BLE MR. JUSTICE A.S. PACHHAPURE

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REGULAR SECOND APPEAL No.378 OF 2010 C/W REGULAR SECOND APPEAL No.377 OF 2010

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IN RSA NO.378/2010:

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BETWEEN:

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SRI MAHESH S/O ERAPPA AGED ABOUT 35 YEARS R/O KESAVATHUR VILLAGE KONANUR HOBLI ARAKALGUD TALUK HASSAN DISTRICT-573 201.

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... APPELLANT

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(BY SRI: G S BALAGANGADHAR, ADV)

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AND:

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SRI BADRI RAJAIAH S/O JAVARAIAH AGED ABOUT 40 YEARS

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SRI RANGAIAH S/O KARIYAIAH AGED ABOUT 50 YEARS

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SRI NAGARAJU S/O ERAIAH AGED ABOUT 45 YEARS

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2 RSA No.378/10 C/W RSA NO.377/10

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SRI RAJAIAH S/O YANNIGAIAH AGED ABOUT 40 YEARS ALL ARE R/O KESAVATHURU VILLAGE KONANURU HOBLI ARKALGUD TALUK HASSAN DISTRICT.

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... RESPONDENTS

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(R1 TO R4 ARE SERVED & UNREPRESENTED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.09.2009 PASSED IN R.A.NO.198/2008 (OLD NO.15/2004) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, ARKALGUD, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED: 1.8.2003 PASSED IN OS.NO.56/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), ARKALGUD.

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IN RSA NO.377/2010:

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BETWEEN: SRI MAHESH S/O ERAPPA AGED ABOUT 35 YEARS R/O KESAVATHUR VILLAGE KONANUR HOBLI ARAKALGUD TALUK HASSAN DISTRICT-573 201.

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... APPELLANT

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(BY SRI: G S BALAGANGADHAR, ADV)

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3 RSA No.378/10 C/W RSA NO.377/10

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AND:

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GOVERNMENT OF KARNATAKA REP BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE-560 001.

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THE SECRETARY REVENUE DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560 001.

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THE SECRETARY RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560 001.

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THE TAHSILDAR ARAKALGUD TALUK ARAKALGUD.

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THE SECRETARY HANDRANGAI VILLAGE PANCHYATH ARAKALGUD TALUK. ... RESPONDENTS

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(BY SMT: AKKAMAHADEVI, AGA, R1 TO 4, R5 SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 08.09.2009 PASSED IN R.A.NO.179/2008 (OLD NO.57/2003) ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, ARKALGUD, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 20.12.2003 PASSED IN OS.NO.67/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) ARKALGUD.

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4 RSA No.378/10 C/W RSA NO.377/10

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THESE RSAs COMING ON FOR ORDERS, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appellant herein in both these appeals

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has challenged the judgment and decree dismissing the suit for injunction and also the appeals filed by him before the First Appellate Court.

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The facts relevant for the purpose of these appeals are as under:

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The appellant claims to be in unauthorized occupation of 30 guntas of land in Sy.No.32 described in the schedule to the plaint. It was his contention before the Trial Court that he has been in possession of the suit property for the last more than 20 years prior to the institution of suit and as there was an obstruction to his peaceful possession, he instituted the suit bearing OS No.56/2001 against the private parties and OS 67/2001 against the Government.

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5 RSA No.378/10 C/W RSA NO.377/10

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The defendants appeared before the trial Court below in both the suits and filed written statement denying the lawful possession, obstruction etc.

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On the basis of these pleadings, the Trial Court framed the issues and permitted the parties to lead the evidence.

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The appellant was examined as PW1 and in his evidence, documents Exs.P1 to P8 were marked. The defendants did not lead any evidence. The Trial Court after hearing the counsel and on appreciation of the evidence on record, dismissed the suit instituted. Aggrieved by the judgment and decree in both the suits, he preferred RA Nos.179/2008 and 198/2008 and both these appeals came to be dismissed on merits. Aggrieved by the concurrent findings of the Courts below, the present appeal is filed.

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6 RSA No.378/10 C/W RSA NO.377/10

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I have heard learned Counsel for both

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the parties.

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It is the submission of learned Counsel that the appellant is in unauthorized possession of the suit property for morethan 20 years prior to the institution of suit and as the appellant is in settled possession, the Courts below committed an error in dismissing the suit for injunction to restrain the respondents from causing obstruction to his peaceful possession and enjoyment of the suit property. He submits that Ex.P6 is the document which reveals that the appellant is in possession of the property and this document has been ignored by both the Courts below.

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On the other hand, learned Government

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Advocate has supported the judgment and decrees of the Courts below.

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The evidence of appellant, who is examined as PW1 reveals that he is in possession

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7 RSA No.378/10 C/W RSA NO.377/10

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of the suit property for more than 20 years prior

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to the institution of suit. It is his case that he is in unauthorized possession of the suit property and he has filed an application to the revenue authorities seeking regularization of his unauthorized possession. Exs.P2 and 3 are the record of rights and both these documents reveal the name of State as owner of the property and there is no mention of the name of plaintiff in the records. Ex.P1 is the Special Power of Attorney whereas Ex.P4 is the copy of complaint filed before the police, Ex.P5 is the endorsement by Tahsildar, Exs.P7 and 8 are the copy of application given by the defendants in OS No.56/2001. Ex.P6 is the copy of mahazar in which it is mentioned that the suit property on the date of mahazar was in possession of the appellant.

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These all documents have been considered by the Courts below in addition to the oral evidence of the appellant and the Courts below have come to a

RSA No.378/10 C/W

RSA NO.377/10

conclusion that the appellant has not proved his possession.

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possession, it is necessary for the plaintiff to prove that he is in settled possession of the property for a considerable period. The

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possession has to be continuous for a long time and it must be undisturbed. It is only in such circumstances, it can be called as settled

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possession and a person in such possession can be granted injunction not to disturb except in due course of law. By appreciating the evidence of appellant and the documents produced, the Courts below have come to a conclusion that the appellant has failed to prove his lawful possession over the suit property as on the date of suit. The mere recital under the mahazar that the appellant was in possession of the adjoining land which is the suit property is not sufficient to prove the settled possession of appellant.

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9 RSA No.378/10 C/W

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RSA NO.377/10

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Perusal of the material placed on record

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and considering the submission made by the learned Counsel, there is no substantial question of law for consideration in these appeals as both the Courts below on facts have come to a conclusion that the appellant has not proved his possession, the question of granting injunction does not arise. If he has filed any application it is for him to seek an order from the revenue authorities by fulfilling the requirements needed seeking regularization of his possession.

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In the result, the appeals fail and they are dismissed. No costs.

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Learned Addl. Government Advocate is directed to file memo of appearance within 15 days from today.

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*bgn/-

Sri Mahesh S/O Erappa v. Sri Badri Rajaiah S/O Javaraiah

Case brief

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Sri Mahesh S/O Erappa v. Sri Badri Rajaiah S/O Javaraiah

Case brief

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