The Second Appeal was dismissed at admission stage. The Court held that no substantial question of law arose to interfere with concurrent findings of fact by trial and appellate courts regarding a property dispute and permanent injunction, as the findings were not perverse or based on ignoring material evidence.
Appeal dismissed at the stage of admission.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.1060 OF 2014 (INJ)
BETWEEN:
SMT.MAHADEVAMMA W/O.RACHAPPA AGED ABOUT 62 YEARS R/AT MASAGAPURA VILLAGE CHAMARAJANAGAR TALUK-577 113
…APPELLANT
(BY SRI KALEEMULLAH SHARIFF, ADVOCATE)
AND:
Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA
ALL ARE RESIDING AT MASAGAPURA VILLAGE CHAMARAJANAGAR TALUK-577 113
…RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 30.04.2014 PASSED IN R.A.NO.67/2007 BY THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGAR,
NC: 2023:KHC:32908 RSA No. 1060 of 2014
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.04.2007 PASSED IN O.S.NO.140/2003 BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC., CHAMARAJANAGAR AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Kaleemullah Shariff, learned counsel for appellant.
One Rachappa, S/o.Ningappa applied to the then Amaldar, Chamarajanagar, for a grant of site by the side of Sy.Nos.170 and 171 of Madapura Village, Chamarajanagar
NC: 2023:KHC:32908 RSA No. 1060 of 2014
Taluk, as the said Rachappa was residing in the said site. The then Amaldar, Chamarajanagar Taluk, was pleased to direct Ningappa, S/o.Rachappa to deposit a sum of Rs.6 and 15 paise
and also pay land revenue for a period of 50 years, which amounted to Rs.9 and 11 paise. Thereafter, the said Lingappa (Ningappa) paid the amount on 30.06.1948. Due to the interference of defendant No.1-the appellant herein, the suit came to be filed in O.S.No.140/2003. The earlier suit in O.S.No.218/2002 was filed by defendant No.1-the appellant herein. It is alleged that common passage/gully measuring East to West: 3 feet and North to South: 50 feet was the subject of dispute. The plaintiffs took a plea that the defendants, without any manner of right, title and interest are interfering with peaceful possession and enjoyment over the suit schedule property. It is also stated by the plaintiffs that there is no passage/gully as alleged by defendant No.1.
4.1 The defendants have filed a detailed written statement in O.S.No.140/2003. Both the suits in O.S.No.140/2003 and 218/2002 admittedly came to be filed by the respective parties for permanent injunction against each other.
4.2 Based on the pleading of the parties in both the suits,
the trial Court framed the following issues for consideration:
"1 ) ªÁ¢AiÀÄgÀÄ zÁªÁ ¸ÀévÀÛ£ÀÄß zÁªÁ zÁR®Ä ªÀiÁrzÀ ¢£À PÁ£ÀÆ£ÀħzÀݪÁV ¸ÀéAvÀ ¸Áé¢üãÀvÉ C£ÀĨsÀ«¹ §A¢gÀÄvÉÛÃ£É JAzÀÄ gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2 ) ªÁzÀ ¥ÀvÀæzÀ°è ºÉýzÀ CrØ DvÀAPÀUÀ¼ÀÄ ¤dªÉÃ?
4 ) AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ? "
4.3 In order to substantiate their claim, plaintiff No.1
examined herself as PW.1 and two other witnesses, PWs.2 and
3 and got marked Exs.P1 to P8, whereas defendant Nos.1 and 2 examined themselves as DWs.1 and 2 and two other witnesses, DWs.3 and 4 and got marked Exs.D1 to D8. A Court Commissioner was also examined as CW.1 and got marked Exs.C1 to C6.
4.4 Based on the evidence adduced by the parties, the trial Court, after consideration of the same and on careful perusal of the materials on record including the Court Commissioner's report and the documents placed by CW.1Court Commissioner agreed with the plaintiffs in O.S.No.140/2003 and granted the decree in O.S.No.140/2003
restraining the defendants interfering with peaceful possession and enjoyment over the suit schedule property. Consequently, a suit in O.S.No.218/2002 preferred by defendant No.1-the appellant herein came to be dismissed.
4.5 Aggrieved by the judgment and decree passed by the trial Court in both original suits, the appellant herein preferred two appeals before the first Appellate Court and both the appeals were taken up together for consideration as the common judgment was passed by the trial Court. The sum and substance of the arguments in both the appeals were common and being not satisfied with the contentions put-forth by the appellant, both the appeals came to be dismissed and judgment and decree passed by the trial Court in both suits came to be confirmed.
4.6 Aggrieved by the common judgment and decree of the concurrent finding of both Courts, defendant No.1-the appellant herein preferred two second appeals before this Court. The present appeal is filed against the suit in O.S.No.140/2003 and another appeal in RSA.No.1062/2014 came to be filed against the suit in O.S.No.218/2002.
4.7 It is relevant to mention here that the appeal preferred by defendant No.1-the appellant herein in RSA.No.1062/2014 came to be dismissed for non-prosecution vide order dated 29.08.2016 and the same has attained finality, as no challenge is made and no order for recalling is filed till date.
question of law to set-aside the judgment and decree passed
by the trial Court as well as the first Appellate Court.
considered the evidence adduced by the Court Commissioner. However, on perusal of the records and the impugned judgment and decree of both the trial Court and the first Appellate Court, it is evident from the records that the trial Court as well as the first Appellate Court has considered all the material evidence on record both oral and documentary including the evidence adduced by the Court Commissioner and the documents placed by him, which are marked as Exs.C1 to C6 and passed an order in favour of the plaintiffs by granting an order of permanent injunction.
factual aspects and any additional material i.e. placed before this Court subsequent to the order passed by the trial Court and the first Appellate Court.
NC: 2023:KHC:32908 RSA No. 1060 of 2014
proceed to pass the following:
ORDER
The appeal is dismissed at the stage of admission.
Sd/JUDGE
LB
List No.: 1 Sl No.: 32
2 issues framed by the court
Whether the concurrent finding of fact by the trial Court and first Appellate Court regarding the existence of a common passage/gully is perversely ignored material evidence under Section 100 of CPC.
Whether a substantial question of law arises to set aside the permanent injunction decree opposing claims of peaceful possession and enjoyment over the suit schedule property.
1 provisions across 1 enactments
Smt. Mahadevamma
Smt. Gowramma
Smt. Chinnamma
Devammanamma
Pradeep Singh Yerur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
