High Court dismissed the second appeal involving a property dispute. It rejected the appellant's contentions and held that no substantial question of law needed to be framed as findings proved properties were distinct.
The second appeal filed by the appellant is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1056/2018 (DEC/INJ)
BETWEEN:
SMT. B. LAKSHMI AGED ABOUT 64 YEARS, W/O N.C.CHANDRASHEKARASHETTY, REPRESENTED BY
N.C.CHANDRASHEKARASHETTY, S/O CHENIGAPPASHETTY, AGED ABOUT 69 YEARS, R/O B.M.ROAD, VEGETABLE NANJAPPA’S BUILDING, 1ST FLOOR, NAGAMANGALA TOWN-571432 … APPELLANT
[BY SRI Y.K.NARAYANA SHARMA, ADVOCATE]
AND:
SINCE DECEASED BY LRs.,
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RESPONDENT NOS.1(a) AND 1(b) ARE RESIDING AT SY.NO.54 SANKANAHALLI VILLAGE KASABA HOBLI NAGAMANGALA TALUK-571 432
BOTH ARE RESIDING AT SUNKANAHALLI VILLAGE, KASABA HOBLI, NAGAMANGALA TALUK-571 432 ... RESPONDENTS
[BY SRI HARIPRASAD M.B., ADVOCATE FOR R1(a & b) & R2]
THIS R.S.A., IS FILED UNDER SECTION 100 READ WITH ORDER XLI AND RULE-1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 16.12.2017 PASSED IN RA.NO.13/2014 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 30.01.2014 PASSED IN OS.NO.102/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, NAGAMANGALA.
THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
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was granted in favour of one Shageer Ahamed and the same was
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sold under a registered Sale Deed dated 06.08.1992 in favour of the defendant. It is also contended that the plaintiffs are in lawful possession of the suit schedule property as on the date of the suit and the defendant is interfering with the peaceful possession and enjoyment of the suit schedule property. Hence, notice was ordered.
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and by giving wrong boundary she has obtained the decree of injunction in O.S.No.395/1992, is erroneous. She contends that no land was granted in favour of first plaintiff in Sy.No.54 of Sankanahalli Village. When plaintiffs have no land in Sy.No.54 they have no locus standi to question the plotted/phoded sketch of 4 acres of land purchased by the defendant. The survey authorities after effecting pacca phode of 4 acres of land granted in favour of her vendor Shageer Ahamed have given new number to the said land as Sy.No.139. It is also contended that in O.S.No.395/1992, after full dressed trial, the Trial Court has already given the finding to effect that the defendant is in possession and enjoyment of the said plotted/phoded land in Sy.No.139. The appeal was also dismissed and thereafter not challenged the same. Therefore, the judgment passed in O.S.No.395/1992 and R.A.No.29/1996, reached its finality, the same is binding on the first plaintiff and also on his wife, who is the second plaintiff, who is deriving the title over the suit property from 1st plaintiff. It is also contended that the plaintiffs cannot be allowed to contend that by giving wrong boundaries, the defendant obtained the decree in O.S.No.395/1992. The said contention is barred by principle of res judicata. The
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defendant contends that the description and the boundary of the suit property given in the plaint schedule are incorrect and misleading. There is no property in Sy.No.54 of Sankanahalli Village as described in the plaint schedule. The plaintiffs with an intention to lay false claim over the property purchased by defendant from Shageer Ahamed have filed the instant suit by giving imaginary boundaries. Defendant contends that plaintiffs are mischief mongers. They removed the boundary stone existing in the land in Sy.No.54. Therefore, Tahasildar of Nagamangala Taluk has taken the legal action against them. It is further contended that the plaintiffs have not approached the Court with clean hands. Hence, they are not entitled for the relief of injunction and pray that the suit may be dismissed.
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examined as CWs.1 to 4 and got marked the documents as Exs.C1 to C3.
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and decree passed by the Trial Court and formulated the point and answered point Nos.1 and 2 as affirmative in coming to the conclusion that the lands granted in favour of plaintiffs and defendant are distinct and separate properties and found that there is an interference by the defendant. Hence, dismissed the suit and confirmed the judgment of the Trial Court. Hence, the second appeal is filed before this Court.
same has been purchased by the appellant in the year 1992. Further, it is contended that in the plaint schedule, the plaintiffs had shown the eastern boundary as unauthorized occupation of the plaintiffs and showed that the boundary was an attempt made to claim the right in respect of the property which was granted in favour of the appellant. The learned counsel appearing for the appellant not disputes with regard to the boundaries mentioned at the western, northern and southern
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boundary and mainly contends that the eastern boundary shown as unauthorized occupation. The learned counsel also would submit that plaintiff No.1 was granted land to the extent of 4 acres. But her claim is that she is in occupation and possession of another 4 acres of land and on the guise of claiming that another 4 acres of property in occupation, an attempt was made to obtain the decree in respect of the property, which was granted in favour of the appellant. Hence, the learned counsel would vehemently contend that both the Courts have committed an error in granting the relief of permanent injunction in respect of the property which is not in possession of the plaintiffs and they have not described the correct boundary in the said suit. Hence, it requires framing the substantial question of law.
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respondents and not considering the findings given in the judgment and decree of the earlier suit in O.S.No.395/1992. Hence, the Court has to frame a substantial question of law and considered the matter since though concurrent finding was given; a perverse finding was given by the Trial Court.
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property. The learned counsel would submit that plot No.2 is granted in favour of the defendant and Block No.4 is granted in favour of the plaintiffs and no dispute with regard to the identity of the property. The learned counsel also would submit that the Court Commissioners were also appointed and they were also examined as CWs.1 to 4 and CWs.1 to 4 are the Tahasildar, Supervisor of the survey department and also an Advocate, who was appointed as Court Commissioner with the assistance of the Surveyor and also the Tahasildar and report was also given before the Court. The Commissioners were also examined and cross-examined before the Trial Court. The Trial Court accepted the report of the Tahasildar and considered the material available on record and the finding was given with regard to whether the plaintiff was granted with land to the extent of 4 acres in LND No.385/1977-78 and the first plaintiff becomes the absolute owner of the suit schedule property and while answering point Nos.1, 2 and 5 considered the material on record, particularly, Exs.P1-Grant Certificate dated 19.09.1978 and Ex.P5 is the Revenue Sketch. In the said sketch, it is noted that the land shown in block No.4 measuring 4 acres was granted in favour of the first plaintiff. Exs.P6 to P8 are the RTC
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extracts. Though the defendant denied the very grant, but the Court comes to the conclusion that the land was granted in favour of the plaintiffs having considered both oral and documentary evidence.
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record came to the conclusion that the grant made in favour of the plaintiffs and defendant are distinct properties and also taken note of the evidence of P.W.1 and also the answer elicited from the mouth of D.W.1, who is the power of attorney holder, which has been discussed in paragraph Nos.21 and 22 and also taken note of survey sketch-Ex.P2, which is prepared at the time of granting the land in favour of Shageer Ahamed and also admitted Ex.P5-sketch prepared while granting the land in favour of the plaintiffs which was elicited in cross-examination of D.W.1 and comes to the conclusion that both are the distinct properties and in detail discussed with regard to the point which has been formulated by the First Appellate Court while answering point No.1. Hence, the First Appellate Court has not committed any error.
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made in favour of the plaintiffs in the written statement but the power of attorney holder in the cross-examination he categorically admits the grant of land in favour of plaintiffs. Even also admit with regard to the document of Ex.P5, which was prepared at the time of granting the land in favour of the plaintiffs. The very contention of the learned counsel appearing for the appellant is that already there was a decree in favour of the appellant in O.S.No.395/1992, the same was confirmed in R.A.No.29/1996 and the plaintiffs also do not dispute that there was a decree in favour of the appellant herein in the earlier suit and also the same was confirmed in R.A.No.29/1996 and also no dispute that the earlier decree had reached its finality since the plaintiffs had also not questioned the same.
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Having taken note of Ex.P2, it discloses with regard to block Nos.1, 2 and 3 and Ex.P2 discloses and describes plot No.2 and block No.4 is granted in favour of the plaintiff, which is evident from Ex.P5. The claim is also based on the grant as well as Ex.P5 in respect of the suit schedule property. The Commissioners, who have been appointed before the Trial Court with the help of the Tahasildar as well as the Surveyor, the material is very clear that both the properties are distinct and not the same. The First Appellate Court had also taken note of the grounds which was urged in the appeal and also formulated a point whether the finding of the Trial Court that both the lands granted in favour of the plaintiffs and defendant in Sy.No.54 are the same properties or distinct properties or whether it overlaps each other. The First Appellate Court answering point No.1, also discussed in detail in paragraph Nos.20 and 21, particularly in paragraph No.21, the evidence of P.W.1 was also taken note of and discussed with regard to the schedule mentioned in the plaint. It is the claim of the plaintiffs before the Trial Court that on the eastern side he is in unauthorized occupation to the extent of 4 acres and the same is still pending for consideration and in the original suit of the defendant while filing the suit he
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has shown the eastern boundary as Gomal, western boundary as land of Boraiah. But the very contention of the learned counsel appearing for the appellant is that another 4 acres of unauthorized occupation has attributed by the plaintiffs claiming the land of the appellant.
in favour of the plaintiffs and defendant and comes to the conclusion that the property which was granted in favour of the plaintiffs and defendant are the distinct properties and not the same. When such finding is given, the very contention of the learned counsel for the appellant is that both the Courts have committed an error of law in not considering the boundaries of the property claimed by the appellant on the one hand and the respondents on the other hand cannot be accepted.
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report was submitted and an objection was also filed and the Commissioners were given the report before the Court. When such material is available on record, when the Commissioners report was accepted by the Trial Court and came to the conclusion that both the properties are distinct, the very contention of the learned counsel for the appellant is that taking the advantage of mentioning the eastern boundary as unauthorized occupation of the plaintiffs making an attempt to claim the property of the defendant/appellant cannot be accepted. The defendant already filed a suit in O.S.No.395/1996 for the relief of permanent injunction and the same was affirmed by the First Appellate Court. There is a decree of permanent injunction in favour of the appellant. The very apprehension of the appellant is that based on the judgment and decree obtained by the plaintiffs, an attempt is made to grab the property of the appellant cannot be accepted.
17. The very contention of the learned counsel appearing
for the appellant is that in view of granting decree in favour of the plaintiffs by the Trial Court and the First Appellate Court, it
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should not run counter to the earlier decree granted in favour of the appellant in the earlier proceedings. With regard to that apprehension is concerned, already this Court as well as the Trial Court and the First Appellate Court made it clear that both the properties are distinct. When such being the case, the very apprehension of the learned counsel for the appellant cannot be accepted.
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find any merit to admit and frame the substantial question of law.
following:
ORDER
The appeal is dismissed.
Sd/JUDGE
cp*
3 issues framed by the court
Whether the appeal requires framing of a substantial question of law regarding identity of the two distinct properties claimed by plaintiffs and defendant.
Whether the findings that the properties granted in favour of plaintiffs and defendant are distinct and not same are free from error of law.
Whether the earlier decree in favour of the appellant in O.S.No.395/1992 is capable of being ignored in view of the present decree.
1 provisions across 1 enactments
N.C. Chandrashekarashetty (representing Smt. B. Lakshmi)
Sri Siddaraju
Sri Nagesh
Smt. Neelamma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
