Allowed

D K Subbe Gowda v. M E Rudresh

Karnataka HC28 Nov 2023RSA/1127/2009

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the regular second appeal filed under Section 100 of the CPC. The Court set aside the First Appellate Court's judgment which had dismissed the suit, noting the appellate court's misconception regarding a Commissioner's report and another dismissed suit.

What did the court decide?

The Regular Second Appeal is allowed; the First Appellate Court's judgment and decree dated 06.06.2009 are set aside; the Trial Court's decree dated 13.04.1999 is confirmed.

D K Subbe Gowda Vs M E Rudresh — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:42963 RSA No. 1127 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.1127 OF 2009 (INJ)

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BETWEEN:

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D.K.SUBBE GOWDA S/O LATE KUMAREA GOWDA, AGED ABOUT 67 YEARS, AGRICULTURIST, HOUSING BOARD COLONY, MUDIGERE TOWN & POST.

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…APPELLANT

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(BY SRI. PRADEEP NAIK.K., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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M.E.RUDRESH S/O ERE GOWDA, AGED ABOUT 39 YEARS, R/O MAGGALAMAKKI, DARADAHALLI VILLAGE & POST, MUDIGERE TALUK.

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KARNATAKA ELECTRICITY BOARD, MUDIGERE, REPRESENTED BY THE ASSISTANT EXECUTIVE ENGINEER, K.E.B, MUDIGERE.

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…RESPONDENTS

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(BY SRI. H.N.M.PRASAD., ADVOCATE FOR R1; SRI. H.V.DEVARAJU., ADVOCATE FOR SRI. N.KRISHNANANDA GUPTA., ADVOCATE FOR R2)

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THIS REGULAR SECOND APPEAL IS FILED UNDER

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SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

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NC: 2023:KHC:42963 RSA No. 1127 of 2009

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THIS REGULAR SECOND APPEAL IS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri.Pradeep Naik.K., learned counsel for the appellant, Sri.H.N.M.Prasad., learned counsel for respondent No.1 and Sri.H.V.Devaraju., learned counsel on behalf of Sri.N.Krishnananda Gupta., for respondent No.2 have appeared in person.

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This is an appeal from the Court of Principal District Judge, Chikkamagalur.

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For the sake of convenience, the parties shall be referred to as per their status and rankings before the Trial Court.

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The plaint averments are these:

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The plaintiff is the absolute owner in possession of the suit schedule property bearing Sy.No.113/2 measuring 2.15 Acres situated at Maggalamakki Daradahalli Village. The plaintiff acquired the title to the suit property under a registered sale deed S.R.No.245/72-73. Ever-since the date of

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3 - NC: 2023:KHC:42963 RSA No. 1127 of 2009

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purchase, the plaintiff is in possession and enjoyment of the said property. It is also contended that plaintiff has cultivated the land with Banana Plants.

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Towards the Northern side, there is a water tank situated within the schedule property. The suit schedule property is fully fenced all around except the area of the tank. The defendants who have got no manner of right, title or interest in or over the suit schedule property or in the said water tank, took advantage of the close proximity of his land situated towards the Northern side of the suit scheduled property, attempted to trespass into the schedule property on the Northern side to encroach upon the suit schedule property. It is said that the plaintiff constructed a pump house in the suit land. The first defendant tried to encroach the land, particularly the pump house with the main idea of installing the pumpset to draw the water from the tank. In this regard, plaintiff appraised the facts to the second defendant through a representation and requested not to give power supply.

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Despite the same, the first defendant with his supporters along with the second defendant on 28.08.1995, trespassed

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into the suit schedule property and tried to give power supply. Hence, the plaintiff was constrained to take shelter under the Court of law and filed a suit for permanent injunction restraining the first defendant, his men or agents from trespassing, encroaching upon the suit schedule property and from drawing the water from the tank through the pump house or in any way interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and also restraining the second defendant from giving power supply or service through the pump house constructed by the plaintiff in the suit schedule property.

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After issuance of the suit summons, the first defendant appeared through his counsel and filed written statement and admitted the ownership of the plaintiff over the suit schedule property. Among other grounds, he prayed for dismissal of the suit. The second defendant also filed a detailed written statement and prayed for dismissal of the suit.

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Based on the above pleadings, the Trial Court framed issues. The parties led evidence and got marked documents. On the trial of the action, the Trial Court vide Judgment and

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5 - NC: 2023:KHC:42963 RSA No. 1127 of 2009

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Decree dated:13.04.1999 partly decreed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the first defendant preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court vide Judgment & Decree dated:06.06.2009 allowed the appeal and dismissed the suit. Hence, this Regular Second Appeal is filed by the plaintiff under Section 100 of CPC.

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Learned counsel for the appellant and the

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respondents have urged several contentions.

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Sri.Pradeep Naik.K., learned counsel for the appellant submits that the Judgment & Decree of the First Appellate Court is illegal, arbitrary and the same is liable to be set-aside.

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Next, he submits that First Appellate Court has not properly appreciated that the Commissioner Report is in favor of the plaintiff and none of the parties to the suit filed objections to the said report.

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A further submission is made that the Trial Court rightly relied upon the report of the Commissioner and decreed the

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suit. However, the First Appellate Court without appreciating the fact, reversed the Judgment and Decree of the Trial Court.

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Lastly, he submits that viewed from any angle, the Judgment & Decree of the First Appellate Court is unsustainable in law and hence the same is liable to be set-aside. Counsel therefore, submits that the Regular Second Appeal may be allowed.

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Sri.H.N.M.Prasad., learned counsel for respondent No.1 justified the Judgment and Decree of the First Appellate court. He argued by saying that the appellant has not made any grounds to interfere with the Judgment and Decree of the First Appellate Court. The appeal is devoid of merits. Hence, the same may be dismissed.

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Heard, the contentions urged on behalf of the respective parties and perused the appeal papers and also the records with utmost care.

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This Court vide order dated:29.05.2012 admitted the

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appeal and framed the following substantial questions of law:

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Whether the First Appellate Court is justified in reversing the Judgment & Decree passed by the

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Trial Court, despite the dismissal of O.S.No.188/1995 filed by the first respondent

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herein, seeking declaratory and injunctive relief?

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Whether the appreciation of Commissioners report by the First Appellate Court is just and proper?

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The facts are sufficiently stated and do not require reiteration. The suit giving rise to this appeal was brought by plaintiff seeking relief of permanent injunction. As could be seen from the nature of lis between the parties, the suit is one for bare injunction based on possession as of the date of filing of the suit. The right to injunction is based on prima facie right. Since there was a dispute with regard to location of the pumphouse and water tank, the parties to the lis requested the Trial Court for appointment of the Commissioner. Based on the request made by the parties, the Trial Court appointed Commissioner and accordingly, the Court Commissioner made a local inspection by measuring the land of the plaintiff and the first defendant and submitted a report in favor of the plaintiff. It is pivotal to note that none of the parties to the lis disputed the report submitted by the Commissioner.

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Taking note of the report of the Commissioner and also the material evidence on record, the Trial Court concluded that the water tank and pump-house is situated within the suit schedule property and partly decreed the suit. However, on appeal, the First Appellate Court on misconception erroneously proceeded and concluded that the Commissioner's report has not been marked and Commissioner has not been examined and hence, set-aside the Judgment and Decree of the Trial Court. This is incorrect. The law is well settled that as and when a Commissioner is appointed and when there is no dispute with regard to his report, the question of marking of the Commissioner's report and examination of the Commissioner does not arise. This aspect of the matter has been over-looked by the First Appellate Court.

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Furthermore, it is relevant to note that the first defendant had filed a suit seeking permanent injunction against the plaintiff in O.S.No.188/1995 in respect of same water tank and pump-house. The Trial Court dismissed the suit vide Judgment and Decree dated 13.12.2000 and it has attained finality. There is no further appeal as against the dismissal of the said suit. However, the First Appellate Court on misconception, concluded

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that the parties to the lis have not brought to the notice of the Trial Court about the dismissal of the suit filed by the first defendant. This reasoning is also unsustainable in law. The reason is quite simple and apparent. The Original Suit filed by the first defendant in O.S.No.188/1995 was dismissed on 13.12.2000. Whereas, the present suit was decreed on 13.04.1999 i.e., much earlier to the dismissal of the suit in O.S.No.188/1995. Therefore, the question of bringing to the notice of the Trial Court about dismissal of the suit filed by the first defendant does not arise.

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The substantial questions of law framed by this Court are answered accordingly. For the reasons stated above, the Judgment & Decree of the First Appellate Court is liable to be set-aside. Accordingly, it is set-aside.

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The Judgment & Decree dated:06.06.2009 passed by the Principal District Judge, Chikmagalur in R.A.No.182/2004 is set-aside. The Judgment & Decree dated:13.04.1999 passed by the Addl. Civil Judge (Jr.Dn) & J.M.F.C., Mudigere in O.S.No.190/1995 is confirmed.

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10 -

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NC: 2023:KHC:42963 RSA No. 1127 of 2009

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Resultantly, the Regular Second Appeal is allowed .

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In view of disposal of the Regular Second Appeal, all the

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pending interlocutory applications if any are disposed of.

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Sd/JUDGE

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TKN List No.: 2 Sl No.: 3

D K Subbe Gowda v. M E Rudresh

Case brief

What is this about?

What did the court decide?

D K Subbe Gowda v. M E Rudresh

Case brief

What is this about?

What did the court decide?

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