Dismissed

Jagannath @ Jagadish v. B K Rangaswamy

Karnataka HC7 Jan 2022RSA/4/2016

Case brief

AI extract

What is this about?

This regular second appeal was filed against the dismissal of a suit for permanent injunction. The High Court found no substantial question of law as the plaintiff failed to establish lawful possession over the suit property, noting that his mother's prior suit had also been dismissed and no independent evidence of possession was produced. The appeal was dismissed.

What did the court decide?

The appeal was dismissed; the impugned judgment and decree were upheld.

Jagannath @ Jagadish Vs B K Rangaswamy — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07th 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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REGULAR SECOND APPEAL NO.4/2016

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BETWEEN:

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JAGANNATH @ JAGADISH S/O LATE DASEGOWDA AGED ABOUT 53 YEARS R/O SHANKARIPURAM HASSAN CITY-573001.

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… APPELLANT

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(BY SRI.GURURAJ R, ADVOCATE FOR SRI. VIGHNESHWAR .S. SHASTRI, ADVOCATES)

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AND:

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B.K. RANGASWAMY AGED ABOUT 66 YEARS SECRETARY ARAVINDA HIGH SCHOOL KUVEMPUR NAGAR HASSAN-573 001.

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… RESPONDENT

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THIS APPEAL IS FILED UNDER SECTION 100 OF C.P.C. PRAYING AGAINST THE JUDGMENT & DECREE DATED 09.10.2015 PASSED IN R.A.NO.58/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN, DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND DECREE DATED 05.03.2013 PASSED IN O.S.NO.286/2005 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC, HASSAN.

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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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Present regular second appeal is filed by the appellant/plaintiff aggrieved by the judgment and decree dated 09.10.2015 passed in R.A.No.58/2013 on the file of II Additional Senior Civil Judge and JMFC, Hassan (hereinafter referred to as the 'First Appellate Court') in and by which, the first appellate court confirmed the judgment and decree dated 05.03.2013 passed in O.S.No.286/2005 on the file of the Principal Civil Judge and JMFC, Hassan (hereinafter referred to as the 'Trial Court) which suit was filed by the appellant/plaintiff for relief of permanent injunction.

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2. The case of the appellant/plaintiff is that;

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(a). He has been in actual possession and enjoyment of the suit schedule property being immovable property bearing Municipal New Khatha No.542 new A.R.No.489 (old khatha No.4038 again old A.R.No.252) measuring east to west 60 feet and

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north to south 40 feet. That he has constructed a asbestos sheet house about 20 years ago and he has let out the portion of the said property to the tenant who has in occupation of the same. That the said property was in possession of the mother of the appellant/plaintiff. After her demise, the appellant/plaintiff came into possession of the said property and has been in continuous possession of the same.

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(b). It is further contended that the mother of the appellant/plaintiff had earlier filed a suit against the vendor of the defendant in O.S.No.183/1984. That the said suit came to be dismissed on 03.12.1982 against which she has preferred R.A.No.7/1993 before the Senior Civil Judge, Hassan which appeal also came to be dismissed on 20.02.1995. It is claimed by the appellant/plaintiff that during the pendency of the said proceedings he constructed a house and he had grown coconut and other fruit bearing trees on the property. That on 21.11.2005 respondent/defendant came to

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the schedule property removed the fence and cut the fruit trees apprehending dispossession by the respondent/defendant, appellant/plaintiff filed the present suit.

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Respondent/defendant in written statement denied the case of the appellant/plaintiff including ownership and possession thereon. It is also denied that the appellant/plaintiff had constructed an asbestos sheet room and let out the same to the tenant. It is admitted that plaintiff's mother had filed suit in O.S.No.183/1984 against the vendor of the defendant which resulted in dismissal of the suit.

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appellant/plaintiff examined himself as

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P.W.1 and exhibited 23 documents as Ex.P.1 to Ex.P.23. Defendant examined himself as D.W.1 and no documentary evidence are levied.

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5. Based on the pleadings, trial court framed

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issues, recorded evidence and by its judgment and

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decree dated 05.03.2013 dismissed the suit of the appellant/plaintiff.

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Being aggrieved by the same,

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appellant/plaintiff preferred R.A.No.58/2013. The first appellate court re-appreciating the oral and documentary evidence furnished by the plaintiff dismissed the said regular appeal, confirming the judgment and decree of the trial court. Aggrieved by the same, the appellant/plaintiff is before this Court.

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Learned counsel appearing for the

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appellant/plaintiff reiterating the grounds urged in the appeal memorandum submits that;

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(a). The first appellate court and trial court erred in dismissing the suit without appreciating the material evidence produced by the plaintiff in the nature of documents issued by the CMC, Hassan and the photographs furnished by the plaintiff establishing the continuous possession of the plaintiff.

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(b). He further submits that merely because the suit in O.S.No.183/1984 and thereafter R.A.No.7/1993 which were filed by the mother of the plaintiff against the vendor of the defendant were dismissed, the courts below ought not to have dismissed the suit of the plaintiff without independently assessing the material evidence produced by him. Thus, he submits that the courts below have erred in dismissing the suit giving raise to substantial question of law.

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Heard learned counsel appearing for appellant/plaintiff and perused the records.

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The plaintiff has categorically stated that he is in possession of the suit property which originally belonged to his mother-Smt.Kamalamma. That he came into possession of the property after her demise. He has also pleaded that his mother had earlier filed the suit in O.S.No.183/1984 against the vendor of the defendant which resulted in dismissal against which the mother of the plaintiff had filed regular appeal in

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R.A.No.7/1993, which is also resulted in dismissal. The aforesaid factual aspect of the matter being on record, the possession of the mother of the plaintiff itself is not established. In that view of the matter, the plaintiff who is claiming right, title and possession over the suit property through his mother cannot better the case for himself than that of his mother. The plaintiff has not produced any other material evidence establishing his lawful possession over the suit property. The trial Court and first appellate court having examined and appreciated these aspects of the matter and having appreciated the oral and documentary evidence produced by the appellant/plaintiff, have rightly concluded that the plaintiff failed to establish his lawful possession over the property resulting dismissal of the suit. On a holistic reading of the evidence and reasoning of the trial court and first appellate court, this court is of the considered view that no substantial question of law

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involves in this matter for consideration. Hence, appeal is dismissed.

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In view of dismissal of the matter, I.A.No.1/2016

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does not survive for consideration.

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Sd/JUDGE

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Jagannath @ Jagadish v. B K Rangaswamy

Case brief

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Jagannath @ Jagadish v. B K Rangaswamy

Case brief

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