Allowed

K. H. Eshwarappa v. Sri. K. S. Basavarajappa

Karnataka HC29 Jul 2021RSA/245/2017

Case brief

AI extract

What is this about?

In a second appeal against the dismissal of a suit for possession and injunction alleging land encroachment, the court held that lower courts failed to appreciate evidence regarding survey documents. The appeal was allowed, the impugned judgment set aside, and the matter remanded to the trial court for fresh consideration of specific issues after affording hearing to parties.

What did the court decide?

Appeal allowed; Impugned judgments set aside; Matter remanded to trial court for fresh disposal of issues 1 to 3 after hearing.

K. H. Eshwarappa Vs Sri. K. S. Basavarajappa — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^th DAY OF JULY, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.245 OF 2017

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BETWEEN:

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K H Eshwarappa Since dead by his LRs

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1a. Smt. Sulochana

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W/o late K H Eshwarappa

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Aged about 74 years R/at No.147, 7^th Main

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3^rd Cross, Bhuvaneshwarinagar T Dasarahalli

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Bengaluru-560 057.

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1b. K H E Gopalakrishna

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S/o late K H Eshwarappa

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Aged about 39 years R/at No.147, 7^th Main

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3^rd Cross, Bhuvaneshwarinagar T Dasarahalli

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Bengaluru-560 057.

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1c. K H E Udayashankar

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S/o late K H Eshwarappa

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Aged about 38 years R/at No.147, 7^th Main 3^rd Cross, Bhuvaneshwarinagar T Dasarahalli

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Bengaluru-560 057.

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1d. Smt. K E Geetha

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W/o K G Rajashekarappa Aged about 49 years R/at near Halina Dairy Gopanahal Gopalalahalu Post Davanagere Post-577 514.

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1e. Smt. Pushpalatha Sheelavanthar W/o Shivananda Sheelavanthar Aged about 44 years R/at Alur Road Heggadevanapura Bengaluru-562 123.

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1f. Smt. K E Shaila W/o Basavarajappa K M Aged about 42 years R/at NO.143, Temple Road Near Kariamma Temple Kallanahalli. Thyagedakatte Tharikere Taluk Chikkamagaluru-577 549.

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…Appellants

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(By Sri Vigneshwar S Shastri, Advocate) AND:

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Sri K S Basavarajappa S/o late Shivalingappa Aged about 51 years Occ: Field Officer Hadadi Circle Davanagere Sugar Works Kukkuvada Village Davanagere Taluk & District.

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…Respondent

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(By Shri R Satish Chandra, Advocate for Sri Suresh R, Advocate)

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This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 15.09.2016 passed in Regular Appeal No.34 of 2016 on the file of the Principal Senior Civil Judge, Davanagere, dismissing the appeal and confirming the judgment and decree dated 08.01.2016 passed in OS.No.12 of 2010 on the file of the Principal Civil Judge, Davanagere.

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This Appeal coming on for admission, this day, the court delivered the following:

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J U D G M E N T

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Heard the learned counsel appearing for the parties. Though this second appeal is listed for Admission, with the consent of the learned counsel for the parties, appeal is taken up for final hearing.

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Appellants are the legal representatives of plaintiff and have preferred this second appeal against the judgment and decree dated 15^th December, 2016 passed in Regular Appeal No.34 of 2016 on the file of Principal Senior Civil Judge at Davangere confirming the judgment and decree dated 08^th January, 2016 in O.S No.12 of 2010 on the file Principal Civil Judge at Davangere, dismissing the suit.

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For the sake of convenience, parties in this appeal are referred to as per their status before the trial Court.

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Facts in brief are that the defendant’s land is situated abutting to the land of plaintiff. The father of the plaintiff-Mahadevappa, had purchased the land bearing Sy.No.41/3P measuring 10 acres situated at Gonivada Village, Mayakondi Hobli, Davanagere Taluk. The father of plaintiff died in the year 1969. Thereafter, the estate of the father of the plaintiff devolved on his children. The schedule property bearing Sy.No.41/3P measuring 1 acre 38 guntas was allotted to the share of the plaintiff in terms of the partition amongst the children of Late Mahadevappa and as such, the revenue entries got mutated in favour of the plaintiff, thus, plaintiff is exercising his title and in the suit schedule property. It is the case of the plaintiff that the defendant has encroached 3/4^th gunta of land belonging to the plaintiff and as such, he approached survey authority and got measured his land and found that defendant has encroached 3/4^th gunta of land belonging to the plaintiff and hence requested the defendant to remove the encroachment

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area which was refused by the defendants and accordingly, the plaintiff has filed suit in O.S No.12 of 2010 on the file of the trial Court seeking possession and permanent injunction against the defendant.

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After service of summons defendant entered appearance and filed detailed written statement denying the averments made in the plaint. The main defence of the defendant is that the plaintiff is causing loss to the defendant and as such, the relief sought for by the plaintiff is not maintainable.

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The trial Court based on the pleadings on record formulated the following issues:

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Whether the plaintiff proves that the defendant has encroached the suit schedule property?

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Whether the plaintiff further proves that he is entitled for the possession of the suit schedule property?

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Whether the plaintiff is entitled for permanent injunction as prayed for?

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Whether the suit of the plaintiff is maintainable without the relief of declaration of title?

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Whether the suit of the plaintiff is barred by limitation?

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What Order or Decree?

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Plaintiff was examined as PW1 and examined two

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more witnesses as PW2 and PW3 and produced 13 documents and same were marked as Exhibits P1 to P13. Defendant was examined as DW1 and produced 14 documents and same were marked as Exhibits D1 to D14. The trial Court, after considering the material on record, by its judgment and decree dated 08^th January, 2016 dismissed the suit filed by the plaintiff. Being aggrieved by the same, plaintiff preferred Regular Appeal No.34 of 2016 on the file of the First Appellate Court and same was resisted by the defendant. The First Appellate Court, after reappreciating the material on record, by its judgment and decree dated 15^th September, 2016 dismissed the appeal and as such, confirmed the judgment and decree passed by the trial

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Court. Being aggrieved by the impugned judgment and decree passed by the Courts below, plaintiff has preferred this appeal.

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I have heard Sri. Vigneshwar S. Shastri, learned counsel for the appellants and Sri. R. Satish Chandra, learned counsel appearing on behalf of Sri.Suresh, for the respondent.

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Sri. Vigneshwar S. Shastri, learned counsel appearing for the appellants contended that both the Courts below have not properly appreciated the evidence on record and

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the documents, particularly Exhibits P10, P11 and P13. He further contended that the trial Court dismissed the suit of the plaintiff based on the testimony of PW3(Surveyor), who deposed that there are no documents or material to substantiate the fact that the notice was served on the defendant. He also pointed out that though the learned trial Judge, with regard to issue No.4 as to whether the suit of plaintiff is maintainable without the relief of declaration of title is concerned, has answered in the affirmative; and as regards issue No.5 as to whether the suit of the plaintiff is barred by limitation is concerned, has answered in the negative, however, erred in appreciating the material

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evidence on record, particularly Ex.P12, and therefore, he contended that the impugned judgment and decree passed by the trial Court requires to be interfered with in this appeal and consequently, the impugned judgment and decree passed by the First Appellate Court is contrary to law under Order XLI Rule 31 of Code of Civil Procedure.

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Per contra, Sri. Satish Chandra, learned counsel for the respondent contended that, the trial court appreciated the entire material on record, particularly taking into consideration the fact that the plaintiff failed to prove the encroachment as alleged in the plaint and in that view of the matter, the impugned judgment and decree passed by trial Court is just and proper. He further contended that since both the Courts below have decided the matter on fact holding that the plaintiff failed to prove the case on merits and as such, the power to be exercised by this Court under Section 100 of Code of Civil Procedure is limited and therefore, it is well established principle of law that this Court shall exercise power sparingly while

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exercising the power under Section 100 of Code of Civil Procedure and as such, he sought for dismissal of the appeal.

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Having heard the learned counsel appearing for the parties and considering the finding recorded by both the curts below, the following substantial question of law would arise for consideration in this appeal:

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“Whether the impugned judgment and decree passed by the courts below warrants interference

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under Section 100 of Code of Civil Procedure?”

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I have carefully considered the finding recorded by the courts below. It is forthcoming from the judgment of the First Appellate Court that the trial court has dismissed the suit on earlier occasion, against which plaintiff has preferred Regular Appeal No.33 of 2012 before the II Additional Senior Civil Judge, Davanagere and the said appeal came to be allowed on 27^th November, 2013, and consequently, the matter was remanded to the trial Court with a direction to the parties to examine the Surveyor, after affording an opportunity of hearing

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to the other side, if any. Thereafter, the case was heard and the trial Court, by its impugned judgment and decree dated 08^th January, 2016 dismissed the suit, which came to be affirmed by the First Appellate Court by its judgment and decree dated 15^th September, 2016.

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Perusal of the finding recorded by both the Courts below would indicate that there is no dispute with regard to the title of the parties. The only question that requires to be considered in this appeal is whether there is any encroachment made by the defendant to an extent of 3/4^th gunta as alleged in the plaint. In order to discern the truth, apart from the interested witnesses in the case, the testimony of PW3-surveyor who conducted the measurement of the schedule and who is the author of the documents viz. Exhibits P10, P11 and P12 has been considered. In this connection, I have carefully considered the finding recorded by the trial Court at paragraph 17 of the judgment, whereunder it is stated that PW3 deposed that there is no material to substantiate that the prior notice has been issued to the defendant before surveying the land. The lis

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between the parties revolves around whether encroachment has been made by the defendant or not? Learned counsel appearing for the appellant made available the copies of Exhibits P10, P11 and P12 which is the basis for dismissing the suit of the plaintiff. In this connection, the very remand made by the First Appellate Court on the earlier occasion was to provide an opportunity to both the sides to establish their case. The trial Court appears to have not considered the very essence and the intention of the First Appellate Court while remanding the matter in Regular Appeal No.33 of 2012 and in this regard, the finding arrived at by the trial Court dismissing the suit of the plaintiff is without considering the material on record, particularly, appreciation of the documents Exhibits P10, P11, and P12 is not correct. However, the finding recorded by the trial Court with regard to issue Nos.4 and 5 is just and proper. Since there is no dispute with respect to the ownership of the property of the plaintiff and defendant and there is no cloud in the property as such since the plaintiff inherited the property from his father in Sy.No.41/3P and to this extent, the finding recorded by the trial Court with regard to Issues 4 and 5 is accepted and confirmed. However,

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the finding recorded by the trial Court on issues 1 to 3 requires reassessment of evidence after affording opportunity of hearing to the parties.

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I have also examined the finding of the First Appellate Court. The First Appellate Court has re-appreciated the material on record, however, has not properly scrutinised the evidence of PW3 despite the discussion having been made at paragraph 17 and therefore, since the dispute between the parties is only with regard to whether the defendants have encroached 3/4^th gunta of land or not is concerned, the Courts below have not properly appreciated the material on record. In this regard, it is useful to refer to the judgment of the Hon’ble Supreme Court in the case of The Hon’ble Supreme court in the case of Santhosh Hazari

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Vs. Purushottam Tiwari reported in AIR 2001 SCC 965 , wherein at paragraph 14 of the judgment observed as under:

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“14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding

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precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”

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In that view of the matter, this Court is of the opinion that the impugned judgment and decree passed by the trial Court requires to be set aside by remanding the matter to the trial Court for fresh consideration in respect of issue Nos.1 to 3 only, after affording opportunity of hearing to the parties.

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Liberty is reserved to the parties to lead evidence, if any, and the trial Court shall pass orders afresh in accordance with law. It is also made clear that since the suit is of the year 2010 and the trial Court has to decide the matter afresh, the learned trial Judge is requested to dispose the matter at the earliest. Accordingly, the substantial question of law framed in this appeal is answered in favour of the appellant/plaintiff and the matter is remanded to the trial Court in terms of the Order XLI Rule 23 of Code of Civil Procedure. Hence, the following:

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ORDER

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Appeal is allowed;

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Judgment and decree dated 15^th September, 2016 passed in R.A No.34 of 2016 on the file of the Principal Senior Civil Judge at Davanagere is set aside;

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Judgment and decree dated 08^th January, 2016 in O.S No.12 of 2010 passed by the Principal Civil Judge at Davanagere is set a side in respect of

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Issues 1 to 3 and the finding recorded on Issues 4 and 5 is confirmed;

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The matter is remanded to the trial Court for fresh disposal. As the parties are represented by their learned counsel before this court, the parties are directed to appear before the trial Court on 30^th August, 2021 without waiting for any further notice in this regard.

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No order as to costs.

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Sd/JUDGE

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K. H. Eshwarappa v. Sri. K. S. Basavarajappa

Case brief

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K. H. Eshwarappa v. Sri. K. S. Basavarajappa

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