Allowed

G Krishnamurthy v. Srinivas M

Karnataka HC24 Sept 2013RSA/62/2010

Case brief

AI extract

What is this about?

In Regular Second Appeal No.62 of 2010, the High Court rejected the appellants' contention that the first appellate court erred in setting aside the trial court's dismissal. The trial court found the plaintiff failed to prove the suit property's boundaries were on the northern side of the defendant's property, relying on map evidence which the first appellate court ignored.

What did the court decide?

RSA allowed; Judgment and Decree of the first appellate Court in R.A. No.81/2004 set aside; Judgment and Decree of the trial Court restored.

G Krishnamurthy Vs Srinivas M — Property and Title | Karnataka HC (2013)

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RSA 62/10

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 24^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.62 OF 2010

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BETWEEN: 1. G. Krishnamurthy, Aged 58 years, S/o. late Gundappa, 2. G. Byregowda, Aged 45 years, S/o. late Gundappa, Both are R/at Nallaganahalli, Sulibele Hobli, Hoskote Taluk. ... APPELLANT/S

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[By M/s. Subbarao & Co., Advs.] AND: Srinivas M, Aged 50 years, S/o. Munishamappa, R/at Ankanahalli Village, Sulibele Hobli, Hoskote Taluk. ... RESPONDENT/S [Respondent is served.] ***

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RSA 62/10

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This RSA is filed under Oder 42 Rules 1 & 2 r/w. Section 100 of CPC., against the Judgment and Decree dated 17.9.2009 passed in R.A. No.81/2004 on the file of the Presiding Officer, Fast Track CourtIII, Bangalore Rural District, Bangalore, allowing the appeal and setting aside the Judgment and Decree dated 4.2.2004 passed in O.S. No.151/1996 on the file of the Civil Judge (Jr.Dn.) & JMFC., Hoskote.

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This RSA coming on for Admission this day, the Court delivered the following:

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JUDGMENT

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The appellants have challenged the Judgment and

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Decree passed by the first appellate Court in R.A. No.81/2004 dated 17.09.2009, decreeing the suit of the respondent by allowing his appeal and setting aside the Judgment and Decree of the trial Court.

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The facts relevant for the purpose of this appeal are as under:

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The parties are referred to as per their rank before the trial Court for the sake of convenience.

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The appellants herein are the defendants and

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the respondent instituted the suit for injunction to

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RSA 62/10

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restrain the defendants from causing obstruction to his peaceful possession and enjoyment of the suit property in Sy. No.63 measuring 3 acres as described in the schedule to the plaint. It is the claim of the plaintiff that the suit property was granted to him by the Government under Order No.LND.SR.(1) 198/1977-78 and in pursuance of this grant, his name has been entered in the records. He claims to be in peaceful possession of the suit property as on the date of the suit. As there was an obstruction to his possession, he approached the trial Court for the relief aforesaid.

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The defendants appeared and filed the written statement denying the averments made. He denied the boundary of the suit property and contends that under the guise of a grant certificate, the plaintiff is seeking injunction in respect of some other property in which he is not in possession. It is the contention of the defendants that they are the owners of Sy. No.61, measuring 7 acres 9 guntas

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RSA 62/10

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which according to the plaintiff is on the southern side of Sy. No.63. According to the plaintiff, he is on the northern side of the defendant’s property. As the boundaries and identity of the properties were disputed by the defendant they sought for dismissal of the suit.

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On the basis of this pleadings, the trial Court framed the issues in relation to lawful possession, obstruction and relief. The parties led the evidence. The plaintiff was examined as P.W.1 and a witness P.W.2. In their evidence documents Exs.P1 to 8 were marked. The defendants examined the 1^st defendant as D.W.1 and in his evidence documents Exs.D1 to 14 were marked. The trial Court after hearing learned counsel for the parties and on appreciation of the evidence on record held that the identity and the boundaries have not been included in the plaint and the suit came to be dismissed. Aggrieved by the dismissal, the plaintiff preferred an appeal in R.A. No.81/2004 and the first appellate

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RSA 62/10

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Court has set aside the Judgment and Decree of the

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trial Court and decreed the suit of the respondent. Aggrieved by the same, the present appeal is filed.

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At the time of admission, the following substantial question of law is raised for

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consideration:

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When the Trial Court dismissed the suit of the respondent holding that he has not proved the boundaries of the suit survey number by assigning cogent reasons and relying upon the village map – Ex.D1, whether the first Appellate Court was justified in reversing the judgment and decree of the trial Court and in doing so, did not assign cogent reasons to overcome the findings of the trial Court and thereby committed an error and illegality in the impugned judgment and decree?

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The respondent though served is absent.

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Hence, I have heard learned counsel for the appellants.

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RSA 62/10

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The submission of learned counsel for the

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appellants is that the trial Court has observed that

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the boundaries have not been included and the suit

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property was not on the northern side of the defendants’ property and under the guise of an injunction, the plaintiff is claiming to be in possession of some other property and that the trial Court by assigning cogent reasons has rightly dismissed the suit. He submits that the first appellate Court without considering the documents produced, has committed an error and illegality in granting a decree for injunction.

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Ex.P1 is the grant certificate and it

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reveals that an area measuring 3 acres in Sy. No.63

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was granted to the plaintiff. The perusal of this document does not reveal the boundaries within which the land measuring 3 acres is situated. Apart from

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the grant certificate, the plaintiff has also produced Ex.P2, the mutation entry, which reveals that the name of the plaintiff was entered in the

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RSA 62/10

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records in pursuance of the grant order-Ex.P1.

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Ex.P3 to 7 are the record of rights of the suit property, wherein the name of the plaintiff appeared

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as owner in possession of 3 acres of land in suit survey number. Ex.P8 is the revenue receipt. None

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of these documents the boundaries of the suit property have been mentioned. May be these documents show the title of the plaintiff to Sy. No.63, measuring 3 acres, but the question as to whether it is on the northern side of the

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defendants’ property or elsewhere is a matter for consideration. So far as the proof of the boundaries are concerned, the plaintiff has not produced any document. The defendants have made available the village map-Ex.D1 and perusal of this map reveals that Sy. No.61 i.e., the property of the defendants is on the southern side of the village, whereas Sy. No.63 is shown north-east side of the village. To mean there are many survey numbers in between the lands of the defendants and the alleged

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RSA 62/10

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land of the plaintiff bearing Sy. No.63. During the

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evidence, the land in possession of the defendants is marked and it is Ex.D1(a) in the map and the land on the northern side of the defendants property, there is no survey number and it is the Government land. That portion is marked as Ex.D1(b) and (c). So, the perusal of this map would clearly indicate that the suit property bearing Sy. No.63 is not on the northern side of the defendants’ property or is abutting on any other side of his property. So far as the sanctity of Ex.D1 is concerned, there is no dispute. The first appellate Court has not referred to this document and its contents while giving a finding. In fact, the trial Court took into consideration-Ex.D1 to find out whether the suit property of the plaintiff is on the northern side of

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the village or not and rightly came to the conclusion that Sy. No.63 which is on north-east side of the land and not near the land of the defendant. It appears that the plaintiff under the

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RSA 62/10

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guise of the grant of 3 acres of land under Ex.D1 claiming himself to be in possession of the said property which is on the northern side of the defendants property. It is necessary for the plaintiff to establish the lawful possession and except Ex.P1 he does not have any document to prove. The boundary and the map produced at Ex.D1 clearly indicate that Sy. No.63 is on the northern side of the village, whereas the property of the defendants is on southern side. The defendants have produced Ex.D9-certified copy of the Judgment and Decree in O.S. No.91/1994, wherein they had instituted a suit for injunction against one Byrappa and others, who claimed themselves to be in the northern side of the defendant’s property. In fact, the Court has decreed the suit of the defendants by granting an injunction. It is also a circumstance which would clearly indicate that the property of the plaintiff is not on the northern side of the defendants property. Ex.D12 is the decree in O.S. No.205/1992,

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RSA 62/10

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whereas the plaintiff has instituted a suit for injunction. The perusal of the schedule reveals that on the northern side of the defendants property is Dongara and Papanahalli Boundary. So, this decree also corroborates the version of the defendants and would indicate that the plaintiff’s land is not on the northern side of the defendants’ property. These are the consistent reasons, which have been assigned by the trial Court to hold that the plaintiff has not proved the boundary and thereby it has rightly dismissed the suit of the respondent. The appellate Court without considering these documents has reversed the Judgment and Decree of the trial Court and granted an injunction. As the plaintiff has not proved the lawful possession of Sy. No.63 measuring 3 acres, which he claims to be on the northern side of the defendants’ property, I do not think that he is entitled to the relief sought for by him.

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RSA 62/10

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In the result, the substantial question of law

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raised is answered in negative. Consequently, the appeal is allowed. The Judgment and Decree of the first appellate Court in R.A. No.81/2004 is set aside and that of the trial Court is restored.

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Sd/JUDGE.

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Ksm*

G Krishnamurthy v. Srinivas M

Case brief

What is this about?

What did the court decide?

G Krishnamurthy v. Srinivas M

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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