Dismissed

Sri S M Somashekar S/O Late Thoti Muneppa v. Sri v Narayanaswamy

Karnataka HC5 Dec 2023RSA/106/2012

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Karnataka held that the plaintiff failed to prove possession of the suit property. The court found the commissioner's report credible and dismissed the reliance on certain plaintiff documents due to lack of authentication, thereby dismissing the appeal and confirming the lower court's decree.

What did the court decide?

The second appeal was dismissed, and the judgments and decrees of the courts below were confirmed.

Sri S M Somashekar S/O Late Thoti Muneppa Vs Sri v Narayanaswamy — Partition | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 5^TH DAY OF DECEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE ASHOK S.KINAGI

¶6

REGULAR SECOND APPEAL NO. 106 OF 2012 (INJ)

¶7

BETWEEN:

¶8

SRI S M SOMASHEKAR

¶9

S/O LATE THOTI MUNEPPA AGED ABOUT 47 YEARS R/AT SUGATUR VILLAGE JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK 562 105

¶10

SRI S M NARAYANASWAMY S/O LATE THOTI MUNEPPA AGED ABOUT 46 YEARS R/O SUGATUR VILLAGE JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK 562 105

¶11

Digitally signed by R DEEPA Location: High Court of Karnataka

¶12

SRI S M SUBRAMANI S/O THOTI MUNEPPA AGED ABOUT 38 YEARS R/O SUGATUR VILLAGE JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK 562 105

¶13

SMT KARAGAMMA S/O NARAYANASWAMY AGED ABOUT 48 YEARS R/O NADIPINAYAKANAHALLI VILLAGE, JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK 562 105

¶14

…APPELLANTS (BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

¶15

2 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶16

AND:

¶17

SRI. V NARAYANASWAMY S/O EERAPPA R/AT SUGATUR VILLAGE JANGAMAKOTE HOBLI, SIDLAGHATTA TALUK 562 105

¶18

…RESPONDENT

¶19

(BY SRI. P L NANJUNDASWAMY, ADVOCATE)

¶20

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 2.9.2011 PASSED IN R.A.NO.110/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.2005 PASSED IN O.S.NO.45/2001 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., SHIDLAGHATTA.

¶21

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

¶22

JUDGMENT

¶23

This second appeal is filed by the appellants challenging the judgment and decree dated 02.09.2011, passed in R.A.No.110/2005 by the Senior Civil Judge & JMFC, Chintamani, confirming by the judgment and decree dated 24.10.2005, passed in O.S.No.45/2001 by the Principal Civil Judge (Jr.Dn.) & JMFC, Shidlaghatta.

¶24

For the sake of convenience, parties are referred

¶25

to as per their ranking before the trial Court. The

¶26

¶27

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶28

appellants No.1, 2, 3, 4 are plaintiffs No.2, 1, 3, 4 and respondent is the defendant.

¶29

The brief facts leading rise to filing of this appeal are as under:

¶30

Plaintiff filed a suit for permanent injunction against the defendant in respect of suit schedule property. It is the case of the plaintiff that the plaintiff is the absolute owner and in possession of the suit property. The suit property is the ancestral property of her husband Thoti Muneppa, who died about 10 years back. The khata of the property was changed in her name. Eight ankanams of thatched house is situated in the suit property wherein the plaintiff and her sons are residing towards western side of the house tamarind trees are situated. The plaintiff's husband had obtained a license for construction of compound wall around the suit property. The defendant has no right, title or interest over the suit schedule property. The defendant tried to interfere with her peaceful possession over the suit schedule property.

¶31

¶32

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶33

Hence, cause of action arose for the plaintiff to file the suit for permanent injunction.

¶34

Defendant filed written statement denying the averments made in the plaint. It is contended that the suit schedule property belongs to different persons of the village and there is sarkari vacant land. The suit schedule property belongs to Giriyamma and Venkataramanppa and others. The Government vacant site was granted to the defendant and he is in possession of the same. The defendant obtained a license to construct a house in the granted site and stored building materials. The plaintiff got created the documents and filed the present suit and prayed to dismiss the suit.

¶35

The Trial Court, on the basis of the above said

¶36

pleadings, framed the following issues:

¶37

1. Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property as on the date of suit?

¶38

2. Whether the plaintiff further proves that the alleged interference of the defendant over the suit schedule property?

¶39

5 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶40

3. Whether the plaintiff further proves that she is entitled for the relief as sought in the plaint?

¶41

4. What decree or order?

¶42

In order to prove the case of the plaintiffs, the plaintiff No.2 examined himself as PW-1 and got examined

¶43

3 witnesses as PW-2 to PW-4 and got marked 10 documents as Exs.P1 to P10. Defendant examined himself as DW-1 and got examined 2 witnesses as DW-2 & DW-3 and got marked 14 documents as Exs.D1 to D14. Court Commissioner was examined as CW-1 and got marked 3 documents as Ex.C1 to C3. The trial Court considering the oral and documentary evidence of the parties, answered issue No.1 partly in affirmative; issue Nos.2 and 3 in negative; and issue No.4 as per the final order and consequently dismissed the suit of the plaintiffs.

¶44

The plaintiff No.2 aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.110/2005. The First Appellate Court, after hearing

¶45

¶46

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶47

the parties, has framed the following points for

¶48

consideration:

¶49

1. Whether the trial Court is justified in holding that the plaintiff has failed to prove the factum of possession and interference of the defendants with respect to the suit schedule property?

¶50

2. Whether the judgment and decree of the trial Court warrants interference?

¶51

3. What order?

¶52

The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 in affirmative; point No.2 in negative and consequently dismissed the appeal filed by the plaintiff No.2, confirming the judgment and decree passed by the trial Court. The plaintiffs, aggrieved by the judgments and decrees passed by the courts below, have filed this second appeal.

¶53

This court admitted the appeal on the following substantial questions of law :

¶54

1) Whether the lower courts below have erred in law in holding that the plaintiff has failed to prove his possession in

¶55

¶56

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶57

respect of the suit property and the findings of the courts below in this regard are arbitrary, perverse and illegal have opposed to the oral and documentary evidence on record?

¶58

2) Whether the courts below have erred in misreading the commissioner's report and in ignoring the documentary evidence Ex.P1 to P4 consisting of house list extract and tax demand registers maintained by the Panchayath showing the suit property is in possession and enjoyment of the plaintiff and Ex.P5 and P6 certificate issued by the Secretary of the Grama Panchayath, Ex.P7 and P8 the building licence and commencement licence issued by the panchayath in favour of the plaintiff's husband?

¶59

3) On the basis of Ex.D2 described the property of the defendant on the northern side of the plaint property, whether the courts below have erred in law in holding that the plaintiff is having certain property instead of the plaint property?

¶60

Heard learned counsel for the plaintiffs.

¶61

Learned counsel for the plaintiffs submits that

¶62

the courts below committed an error in passing impugned judgments and that the plaintiffs are in possession of suit schedule property and produced the records in support of their contention. He submits that courts below placing

¶63

8 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶64

reliance on the commissioner report and ignoring the documentary evidence Ex.P1 to P4 passed the impugned judgments. He submits that the suit property was the ancestral property of husband of plaintiff No.1 and father of plaintiff Nos.2 to 4. After the demise of the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 they have inherited the property from Thoti muneppa. He submits that the documents produced by the defendant do not belong to suit schedule property. He submits that the courts below have misread the commissioner report. He submits that the judgments and decrees passed by the courts below are arbitrary and erroneous. Hence, prayed to allow the appeal.

¶65

Learned counsel for the defendant supports the impugned judgments and decrees.

¶66

Perused the records and considered the submissions of learned counsel for the parties.

¶67

9 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶68

14. Substantial questions of law No.1 to 3 :

¶69

substantial questions of law No.1 to 3 are interlinked with

¶70

each other and taken up for common discussion in order to avoid repetition of facts.

¶71

Legal representatives No.2 of plaintiff was examined as PW.1. He had reiterated the plaint averments in the examination-in-chief and produced documents marked as Ex.P.1 is the Kanishmari extract for the year 1974-75, Ex.P.2 is the house lease extract for the year 1995-96, Ex.P.3 is the demand register extract for the year 2000-01, Ex.P.4 is the license obtained for the construction of residential building in the suit property, Ex.P.5 is the kandayam receipt. In the course of cross examination he admits that in Ex.P.1, measurement and boundaries are not mentioned. He admits that allotment letter was not issued to him and he has not produced any records to show that property was allotted. He has denied that manure pit and property of Muni venkatamma falls within the suit schedule property. The plaintiff also

¶72

10 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶73

examined one witness namely Patel Narayanappa as PW.2, he had deposed that the plaint schedule property is in possession and enjoyment of legal representatives of plaintiff and suit schedule property is surrounded by fence and there are two tamarind trees, one coconut tree and 4 neem trees are situated in the suit schedule property and there was a mud roof house which was collapsed due to natural calamity. The defendants have no right over the suit property. Examined witnesses namely S.N.Hanume Gowda as PW.3 Ashwathappa as Pw4. They have reiterated examination-in-chief of PW.2.

¶74

In rebuttal, the defendant was examined as DW.1, he had reiterated the averments of the examination-in-chief and produced documents Ex.D1 is the grant certificate, Ex.D2 and D3 are the demand register extracts, Ex.D4 is the license obtained from the panchayat for the construction of building, Ex.D5 is the kandayam paid receipt, Ex.D6 is the interim order granted by the executive officer, Ex.D7 is the endorsement issued

¶75

11 -

¶76

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶77

by the secretary gram panchayath, Ex.D8 is the

¶78

kaneshwari extract for the year 1970-71.

¶79

During the pendency of the suit, the Court commissioner was appointed to inspect the suit property and to submit a report. The Court Commissioner executed

¶80

a commissioner work and submitted a report. The Commissioner was examined as CW.1 and got marked three documents as Exs.C1 to C3. The Commissioner had submitted a report stating that plaintiffs house and defendants house, manure pit of defendant is shown in the sketch and the said properties are within the boundaries of the suit schedule property. The report of the Commissioner and sketch supports the contention of the defendant. In order to rebut the Commissioner report, nothing has been elicited from the mouth of Court Commissioner. Both the courts below have concurrently recorded the finding of facts that the plaintiffs are not in possession and enjoyment of the entire suit schedule property. The courts below were justified in ignoring the

¶81

12 -

¶82

NC: 2023:KHC:43883 RSA No. 106 of 2012

¶83

documentary evidence produced by the plaintiffs i.e., Exs.P1 to P4 consisting of house list extract and tax demand registers maintained by the Panchayath showing the suit property is in possession and enjoyment of the plaintiffs, Exs.P5 and P6 are the certificates issued by the Secretary of Gram Panchayath, Exs.P7 and P8 are the building license and commencement license issued by the Panchayath in favour of the plaintiffs. The said documents do not prove the possession of the plaintiffs over the suit schedule property. Further, the plaintiffs have not examined the author of the said document. Further, the witnesses examined by the plaintiffs are not the adjacent owners. They are the chance witnesses. Their evidence cannot be looked into to hold that the plaintiffs are in possession of the suit schedule property. The plaintiffs have filed a suit for permanent injunction. It is for the plaintiffs to establish their possession over the suit schedule property as on the date of suit and alleged interference. They cannot take the weakness of the defendants. The courts below placing a reliance on Ex.D2,

¶84

13 - NC: 2023:KHC:43883 RSA No. 106 of 2012

¶85

have recorded that the plaintiffs are having certain other properties instead of plaint property. The burden of proving is on the plaintiffs to establish that the property of the defendant is situated on the northern side of the plaint property and the plaintiffs are having property adjacent to the property of the defendant. In view of the above discussion, I answer substantial questions of law No.1 to 3 in the negative.

¶86

In view of the aforesaid facts and circumstances, I proceed to pass the following:

¶87

ORDER

¶88

The appeal is dismissed.

¶89

Consequently, the judgments and decrees passed by the courts below are hereby confirmed.

¶90

No order as to the costs.

¶91

SD/JUDGE

¶92

sks

Sri S M Somashekar S/O Late Thoti Muneppa v. Sri v Narayanaswamy

Case brief

What is this about?

What did the court decide?

Sri S M Somashekar S/O Late Thoti Muneppa v. Sri v Narayanaswamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Fathima Alias Padma K Vs Karnataka State Law University

Shree Gangadhareshwara Educational Trust Vs State of Karnataka

Sri Rangaramanna Vs Sri Shivamma

Pillappa Vs the Assistant Commissioner

Sri Sathya Sai Educational Trust(Karnataka) Vs State of Karnataka

Kum Meghana R Vs the State of Karnataka