Allowed

G Mallikarjuna S/O Channabasappa v. Smt Puttamma W/O Doddamurgaiah

Karnataka HC8 Dec 2020RSA/2791/2006

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Karnataka set aside the first appellate judgment that had granted a mandatory injunction and delivery of possession to the plaintiff. The High Court held that the plaintiff had strategically sued unrelated individuals to obtain a decree against public property, noting discrepancies in the title documents.

What did the court decide?

The second appeal was allowed with costs; the first appellate judgment was set aside, and the trial court's judgment dismissing the suit was confirmed.

G Mallikarjuna S/O Channabasappa Vs Smt Puttamma W/O… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF DECEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.2791/2006

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BETWEEN:

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1 . G MALLIKARJUNA S/O CHANNABASAPPA AGED ABOUT 44 YEARS AGRICULTURIST R/O HARESAGARA VILLAGE CHANNAGIRI TALUK DAVANGERE – 577 401.

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2 . HALESHAPPA S/O BASAVALINGAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/O HAROSAGARA VILLAGE CHANANGIRI TALUK DAVANGERE – 577 401.

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…APPELLANTS

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(BY SRI S V PRAKASH, ADVOCATE)

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AND:

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SMT. PUTTAMMA W/O DODDAMURGAIAH AGED ABOUT 71 YEARS BY HER PA HOLDER M VEERAIAH S/O LATE DODDAMURUGAIAH, AGED ABOUT 56 YEARS AGRICULTURIST

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R/O HAROSAGARA VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT – 577 401.

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…RESPONDENT

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(SERVED)

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THIS RSA IS FILED UNDER SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE DATED 28.6.2006 PASSED IN R.A.No.278/2005 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.), DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.7.2005 PASSED IN OS. No.304/2001 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE(JR.DN.), CHANNAGIRI.

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THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is directed against the judgment and decree dated 28-06-2006 passed in R.A.No.278/2005 by the learned Principal Civil Judge (Sr.Dn) Davangere, wherein appeal came to be allowed with costs and the judgment and decree dated 20-072005 passed by the learned Additional Civil Judge (Jr.Dn) Channagiri in O.S.No.304/2001 was set aside and the suit of the plaintiff was decreed with costs and the defendants, their agents and supportives are

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permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property in any manner.

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Being aggrieved by the said judgment and

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decree defendants have come in appeal.

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In order to avoid confusion and overlapping,

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the parties are addressed in accordance with their rankings as stood before the trial court.

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Basically suit was filed by the plaintiff-

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Puttamma for a bare permanent injunction and thereafter in the circumstances, it was amended to include the relief of mandatory injunction and delivery of possession. The plaintiff claims to be the owner of the schedule property which is stated to be a site coming under Khanesumari of village panchayath.

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It is further claimed that the vacant site

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bearing Khaneshumari No.55 situate at Harosagara village, Channagiri taluk was purchased by the husband of the plaintiff from one Onkarappa for a valuable consideration through a registered sale deed dated 17-03-1971 and on the same day possession was delivered to her husband and since then her husband was in possession and enjoyment of the same and katha also stands in his name. It is stated that plaintiff purchased vacant site bearing Khaneshumari No.115/1 and property No.130(A) measuring East-West 66 ½ + 84 divided by 2 on the northern side and North-South 66 + 52 divided by 2 in which two ankana country tiled house measuring EastWest 13 feet and North-South 65 feet for a valuable consideration from M.M.Manjunath and others under the registered document dated 4.2.1987 and on the same day possession of the same was delivered to her

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and since then she becomes absolute owner in possession and enjoyment of the suit property. It is contended that both the properties are adjoining to each other and her property on the eastern side is up to Oni and thereafter there is a box drain and then there is a road of Basavapatna to Kundur and she also enter her property from the said road on east-west in which defendants are having no manner of right title and interest and they wanted to put up foundation, form rooms in the said property which is resisted by the plaintiff.

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In so far as the defendants are concerned, they are two in number. They filed their written statement denying the averments made by the plaintiff and moreover contend that schedule property the panchayat property. It is contended that on eastern side of the schedule property there is panchayath property and thereafter east to the

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property land therein is drainage. The sketch is also produced. It is also claimed that plaintiff has also filed one more suit against the Milk Federation Society in OS No.256/1998 and in the said suit defendant No.1 herein is also one of the defendant.

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2^nd defendant has also filed the written statement and denied that plaintiff purchased the vacant site bearing khaneshumari No.55 and she is in possession and enjoyment of the said property. Further 2^nd defendant denied plaintiff purchased khaneshumari No.115/1 and that there is road on the eastern side. The defendants have no specific plea to claim the ownership or possession.

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On the basis of the pleadings and contentions of the parties, the trial court framed necessary issues. He was accommodated with the oral evidence of PW1-Veeraiah and documentary evidence

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of Exs.P1 to P10 on behalf of the plaintiff. However, defendants neither cross examined the plaintiff nor adduced their evidence. Their challenge stopped at the stage of filing of written statement itself.

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The trial judge after conclusion of the trial, dismissed the suit of the plaintiff. Against which, plaintiff preferred an appeal before the first appellate court in R.A.No.278/2005 which came to be allowed on 28-06-2006. Being aggrieved by the same, defendants have preferred this regular second appeal.

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While admitting the appeal, this court has framed the following substantial questions of law on 01-04-2009:

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“1. Whether the Lower Appellate Court while noticing the judgment of the Trial Court has properly appreciated the evidence available on record and as to whether the Lower Appellate Court has erred in allowing the appeal merely on the ground that the defendants did not adduce any oral or documentary evidence?

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Whether the Lower Appellate Court was justified in granting the judgment and decree of injunction despite noticing the contention with regard to the construction which was already put up by the defendants in the suit schedule property?”

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Learned counsel for the appellants submits that, the construction of the building was made at the instance of panchayat for anganavadi workers and the construction was undertaken by Land Army. The plaintiff knowing fully well has chosen the defendants to file a case only in order to get the decree and thereafter to use the same as title for the property.

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Now the additional substantial question of

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law that would arise for consideration is,

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Whether it is open for the respondent/plaintiff to seek the relief of mandatory injunction without declaration and also for recovery of possession and permanent injunction without pleading the relief of declaration?

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13. The contention of the

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defendants/appellants is that, the building over the property is stated to have been constructed at the instance of the Panchayath by Land army for the benefit of anganavadi workers. It is also stated that an inter locutory application was filed by the plaintiff for the relief of temporary injunction to stop the construction by the defendants that was rejected. Later, plaintiff preferred Miscellaneous Appeal in No.57/2001 which also came to be dismissed. Thereafter, she filed CRP before this court in No.3772/2002 against the judgment of MA No.57/2001 and that also came to be rejected.

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The basic fact is, plaintiff claims that she is the owner of the property and Ex.P1 is the power of attorney in favour of Veeraiah who is examined as PW1. As I have stated above defendants have not contested the suit after filing of written statement.

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Ex.P4 is the demand Register extract

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wherein the property No.182, 130 is mentioned and that do not relate to schedule property. However, Khaneshumari Nos. 115 and 55 are not mentioned in Ex.P4. Ex.P5 is the tax paid receipt wherein the property number is stated as 130/1. The rough sketch is produced at Ex.P6 wherein it is mentioned as survey No.115 which is not even signed by the advocate for the plaintiff. Exs.P7 and P8 are also the demand register extract wherein the property number is shown as 130.

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In this appeal, plaintiffs/respondent served

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with the notice, but has not chosen to contest the appeal.

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The schedule property is mentioned as under:

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“The House and Vacant site bearing K.No.115 and K.No.55 and A.No.130(a) out of total measurement on the eastern side, east west:15. North-South-93 situated at Harosagara village, Channagiri bounded by east:Boxdrainage and Road, West:Plaintiff’s remaining property North: Oni, South:House of Rudraiah”.

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However, Khaneshumari No.115 and 55 are

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not mentioned in Ex.P4. So also in Ex.P7 it is mentioned as 130/A but no khaneshumari No.55 or 115/1 as pleaded is mentioned. Interestingly, it is on the rough sketch Khaneshumari No.55 and khaneshumari No.115/1 is mentioned. I suspect the same to be a strategic move. Ex.P8 belongs to Doddaiah and Siddaiah.

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The plaintiff has filed Exs.P2 and 3 which are respectively her vendors and her sale deeds. The boundaries do not match. Insofar as Ex.P2 is concerned, it is the sale deed in favour of vendor of the plaintiff. It is stated the property sold to her vendor was to the north of Khaneshumari No.55.

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With all this above, defendants have not led evidence nothing more is coming forth. But the courts shall have the duty to look into the records and do not allow mis use of the documents or the verdicts of the courts. Filing suit against two persons who are no way concerned with the land and getting a decree cannot be accepted. More over there cannot be a strategy of obtaining decree against wrong person who has no interest in the said matter and thereafter try to use the same against public or local body which is nothing but direct attack on the public property. If at all plaintiff has got any grievance against panchayath, anganavadi or Land Army, she should have impleaded them, but should never follow the negative. I appreciate the learned trial Judge for his meaning full judgment. I differ with the learned Appellate Judge who has failed to adjudicate the

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matter by proper application of mind. The substantial questions of law are answered accordingly.

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For the afore assigned reasons, the appeal

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is allowed with costs through out.

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The judgment and decree dated 28-06-2006 passed by the learned Principal Civil judge (Sr.Dn) Davangere in R.A.No.278/2005 is set aside and the judgment and decree dated 20-7-2005 in O.S.No.304/2001 passed by the learned trial judge is confirmed.

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Sd/-

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JUDGE

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tsn*

G Mallikarjuna S/O Channabasappa v. Smt Puttamma W/O Doddamurgaiah

Case brief

What is this about?

What did the court decide?

G Mallikarjuna S/O Channabasappa v. Smt Puttamma W/O Doddamurgaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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