Dismissed

Sri K Jyothappa v. Sri H K Muniraju

Karnataka HC4 Jan 2022RSA/1212/2015

Case brief

AI extract

What is this about?

In this regular second appeal against a judgment dismissing a suit for permanent injunction, the High Court of Karnataka held that the plaintiff failed to establish lawful possession over the entire extent of the disputed land due to conflicting documentary evidence. Consequently, the regular second appeal was dismissed.

What did the court decide?

The regular second appeal was dismissed, and the judgment and decree of the first appellate court were confirmed.

Sri K Jyothappa Vs Sri H K Muniraju — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 04^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S. KAMAL

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RSA No.1212 OF 2015

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BETWEEN:

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SRI. K. JYOTHAPPA S/O LATE MUNIYELLAPPA @ KAKAPPA AGED ABOUT 81 YEARS R/AT HENNAGARA VILLAGE JIGANI HOBLI ANEKAL TALUK BANGALORE DISTRICT - 562 106.

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… APPELANT

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(BY SRI. VIJAY KUMAR K., ADVOCATE)

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AND:

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SRI. H.K. MUNIRAJU S/O KAKAPPA AGED ABOUT 49 YEARS R/AT HENNAGARA VILLAGE JIGANI HOBLI ANEKAL TALUK BANGALORE DISTRICT - 562 106

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…RESPONDENT

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED: 22.04.2015 PASSED IN R.A. NO. 48/2006 ON THE FILE OF THE IIIRD ADDITIONAL DISTRICT AND SESSIONS JUDGE BANGALORE RURAL DISTRICT, ANEKAL DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:05.04.2004 PASSED IN O.S.NO.466/1997 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR DN) AND JMFC ANEKAL AND ETC.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present regular second appeal is filed under Section 100 of CPC by the appellant/plaintiff aggrieved by the judgment and decree dated 22/04/2015 passed in RA.No.48/2006 by the III Additional District and Sessions Judge at Bengaluru Rural District, sitting at Anekal (for short 'the First Appellate Court'), in and by which, the first appellate Court while dismissing the appeal confirmed the judgment and decree dated 05/04/2004 passed in O.S.No.466/1997 by the Additional Civil Judge (Junior Division) and JMFC Anekal (for short 'the Trial Court).

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The plaintiff filed the above suit claiming to be the absolute owner in possession and enjoyment of the suit schedule property bearing Khaneshumari No.155/144 measuring 36x32 ft. of Hennagara village of Anekal Taluk. It is contended that the suit property is originally an ancestral property. That the father of the

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plaintiff died about 10 years prior to filing of the suit leaving behind the plaintiff as his legal heir and upon his demise, the plaintiff inherited the suit schedule property and he is in possession and enjoyment of the same. That the plaintiff obtained necessary documents in respect of suit properties in his name. That the defendant is an utter stranger to the suit schedule property. That the defendant is having his property situated on the northern side of the suit schedule property. Taking undue advantage of the situation, the defendant made illegal attempts to encroach upon the portion of the plaintiff's property, constraining the plaintiff to approach the court for filing the suit for permanent injunction.

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The defendant appeared and filed written

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statement denying the plaint averments and also denying the claim of the plaintiff that he is the absolute owner of the suit property. It is contended by the defendant that he is the owner of property bearing No.156/144 measuring 47x36 feet consisting of a Mangaluru tiled house. That the defendant and his family members are

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residing in the said house. That with an intention to construct another room in front of the house, defendant approached the competent authority to obtain licence. The concerned authorities have issued licence to put up construction and as per the terms and conditions, the defendant has desired to put up additional construction attached to the existing residential house. That the plaintiff has no manner of right, title, interest or possession over the suit property. The defendant produced Form Nos.9, 10 and 11 pertaining to property of the plaintiff. That in the Form No.9, the name of one Seenappa S/o Hotteppa has been entered to the extent of 36 x 16 feet. That the revenue authorities have transferred the said document in favour of the plaintiff in respect of property measuring 36x16 feet only. However, the plaintiff has created false story and obtained document of mutation in collusion with revenue authorities has changed the measurements illegally. That on the strength of the false document, the plaintiff has filed the suit just to harass the defendant and the same is not maintainable. Further the defendant has contended

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that the plaintiff with dishonest intention to knock off the property of the defendant, has filed the present suit. Hence, sought for dismissal of the suit.

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The Trial Court based on the pleadings

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framed the following issues.

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1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property?

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2. Whether the plaintiff further proves the defendants interference into the suit schedule property?

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3. What order or decree?

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The Trial Court recorded evidence. The

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plaintiff examined himself as PW.1 and one Basavarajaiah was examined as PW.2, exhibited 5 documents marked as Exs.P1 to P5. On the other hand, defendant examined three witnesses as DWs.1 to 3, exhibited 7 documents as Exs.D1 to D7.

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The Trial Court, on appreciation of the pleadings and evidence on record concluded that the dispute between the parties was only concerning to

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measurement of the property and the plaintiff though contended that he is the owner in possession and enjoyment of the suit property measuring 36x32 feet has not produced any documentary evidence except Ex.P2. The trial court further observed that Ex.D3 produced by defendant reflected the name of one Seenappa to the extent of 36x16 feet and came to the conclusion that the plaintiff is the owner only to an extent of 36x16 feet and not to an extent of 36x32 feet as claimed. Consequently, dismissed the suit of the plaintiff by its judgment and decree dated 05/04/2004. Aggrieved by the same, the plaintiff filed Regular Appeal in RA.No.48/2006. Considering the grounds urged by the plaintiff, the first appellate court framed the following point for its consideration:

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1. Whether the appellant proves that the judgment and decree passed by the learned Addl. Civil Judge and JMFC Anekal in OS.No.466/1997 dated 05/04/2004 is suffering from any irregularities or illegalities and calls for interference by this Court in this appeal?

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2. Whether the appellant proves that he is in possession of suit property within the boundaries and extent given in the schedule?

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3. Whether the appellant proves the alleged interference made by respondent No.2?

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The first appellate court by its judgment and decree dated 22/04/2015 confirmed the judgment and decree passed by the trial court and consequently dismissed the appeal. Aggrieved by the same, the appellant/plaintiff is before this Court.

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Learned counsel for the appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted that despite production of documentary evidence in the nature of Ex.P2 which reveal the measurement of the suit schedule property being 36x32, the courts below erroneously relied upon Ex.D3 produced by the defendant and concluded that measurement of the property of the plaintiff is only 36x16 feet and thereby declined to grant relief of injunction. He submits that Exs.P1 and P2 are the Panchayath records disclosing the extent of property being 36x32 feet and also the evidence of DWs.1 and 3 who have not disputed the measurement of the property of plaintiff. This being admitted case, he

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submits that the courts below erred in not granting relief of injunction to the plaintiff.

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On perusal of the records and considering the submission made by the counsel for the appellant, it is seen that the case of the plaintiff that he is the owner of the property bearing No.155/144 measuring 36x32 he having inherited the same through his father, the only document produced by the plaintiff from Exs.P2 and P3 which house list number. The plaintiff has claimed that the defendant being the neighbouring owner is attempting to illegally encroach upon the portion of the property of plaintiff. The defendant, in the written statement apart from denying the case of the plaintiff has specifically disputed the ownership, extent and possession of the plaintiff over the suit schedule property. Ex.D3 produced by the defendant reveal that portion of the suit property measuring 36x16 standing in the name of one Seenappa which fact is not disputed by the plaintiff. On the other hand, during evidence plaintiff has relied upon the said document Ex.D3 and the entries

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made therein to justify that the father of the plaintiff during his lifetime had permitted said Seenappa to put up hut on a portion of suit schedule property, and the said Seenappa subsequently transferred the said portion of suit schedule property, in favour of the plaintiff. Thus, the plaintiff has not disputed Ex.D3, on the other hand has taken shelter under Ex.D3 explaining the reasons for reduction of extent of land from 36x32 to 36x16. Be that as it may, in a suit for bare injunction all that plaintiff is required to establish is his lawful possession and if there is dispute with regard to the title made by the defendant, it is bounden duty of the plaintiff to produce cogent material evidence establishing his title and lawful possession thereof. In the instant case, in the written statement the defendant has specifically denied the ownership and the possession of the plaintiff to the entire extent of 36x32 feet. The defendant has also disputed the measurement of suit schedule property. It was all the more important on the part of the plaintiff to have led cogent evidence to justify his lawful possession over the suit schedule property. Apart from not disputing the

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contents of Ex.D3, the plaintiff sought to justify the position to the extent of property measuring 36x16 having been given by his father to Seenappa. On a holistic reading of the pleading and material evidence, no fault can be found with the reasoning and finding given by the trial court and the first appellate court. For the aforesaid reasons and analysis, no substantial question of law involves in this appeal requiring reconsideration.

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It is necessary to note that the plaintiff is claiming his ownership over property bearing No.155/144, measuring 36x32 feet and the defendant is claiming ownership over property bearing No.156/144 measuring 47x36. The courts below have declined to grant relief of injunction in favour of the plaintiff for his failure to establish his lawful possession over the entire extent of land measuring 36x32 of the suit schedule property. In the circumstances, it is made clear that since the defendant has disputed the title and possession of the plaintiff over the suit schedule property, plaintiff may

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seek such substantial relief, as he may be entitled to in accordance with law. Hence, the following:

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ORDER

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i) Regular Second Appeal No.1212/2015 is dismissed.

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ii) The judgment and decree dated 22/04/2015 passed in RA.No.48/2006 by the first appellate court is confirmed.

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Sd/JUDGE

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mkm

Sri K Jyothappa v. Sri H K Muniraju

Case brief

What is this about?

What did the court decide?

Sri K Jyothappa v. Sri H K Muniraju

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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