Dismissed

S a Thippeswamy v. C M Ravindranath

Karnataka HC28 Mar 2023RSA/1255/2009

Case brief

AI extract

What is this about?

This court dismissed regular second appeals filed against appellate and trial court decrees in a suit for permanent injunction. The court held that since the defendant was in lawful possession based on a Panchayath allotment, the appellant who failed to seek declaration and possession was not entitled to relief.

What did the court decide?

Appeals dismissed with costs; impugned judgment and decree are confirmed.

S a Thippeswamy Vs C M Ravindranath — Property and Title | Karnataka HC (2023)

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RSA No. 1255 of 2009 C/W RSA No. 1257 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 MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1255 OF 2009

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C/W

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REGULAR SECOND APPEAL NO. 1257 OF 2009

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IN RSA NO. 1255/2009

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BETWEEN:

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S A THIPPESWAMY, S/O S VEERABHADRAPPA, AGED ABOUT 50 YEARS, R/O CHANNAMMANAGATHIHALLY, PARASHURAMPURA HOBLI, CHALLAKERE TQ, CHITRADURGA DIST.

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…APPELLANT

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(BY SRI. YATHISH J NADIGA, ADVOCATE)

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Digitally signed by MOHANKUMAR M Location: High Court of Karnataka

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AND:

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C M RAVINDRANATH, S/O MANGAPPA, AGED ABOUT 52 YEARS, R/O CHANNAMMANAGATHIHALLY, PARASHURAMPURA HOBLI, CHALLAKERE TQ, CHITRADURGA DIST

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…RESPONDENT

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(BY SRI. PATEL D KAREGOWDA, ADVOCATE)

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.06.2009 PASSED IN

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2 - RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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R.A.87/2007 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.06.2007 PASSED IN O.S.173/2004 ON THE FILE OF THE CIVIL JUDGE (JR. DN.), AND JMFC., CHALLAKERE.

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IN RSA NO. 1257/2009 BETWEEN:

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S A THIPPESWAMY, S/O S VEERABHADRAPPA, AGED ABOUT 50 YEARS, R/O CHANNAMMANAGATHIHALLY, PARASHURAMPURA HOBLI, CHALLAKERE TQ, CHITRADURGA DIST.

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…APPELLANT

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(BY SRI. YATHISH J NADIGA, ADVOCATE)

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AND:

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C M RAVINDRANATH, S/O MANGAPPA, AGED ABOUT 52 YEARS, R/O CHANNAMMANAGATHIHALLY, PARASHURAMPURA HOBLI, CHALLAKERE TQ, CHITRADURGA DIST

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…RESPONDENT

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(BY SRI. PATEL D KAREGOWDA, ADVOCATE)

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.06.2009 PASSED IN R.A.85/2007 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.06.2007 PASSED IN

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RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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O.S.173/2004 ON THE FILE OF THE CIVIL JUDGE (JR. DN.), AND JMFC., CHALLAKERE.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging judgment and decree dated 10.06.2009 passed by learned Civil Judge (Sr.Dn.), Challakere in RA.nos.87/2007 and 85/2007 and judgment and decree dated 13.06.2007 passed by Civil Judge (Jr.Dn), Challakere in O.S.no.173/2004, these appeals are filed. Though they are listed for admission, with consent of learned counsel for parties, they were heard and taken up for final disposal.

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Appellant herein was plaintiff, while respondent herein was defendant in O.S.no.173/2004. Said suit was filed seeking for permanent injunction against defendant from interfering with plaintiff's possession over suit property. Property bearing khata no.13/113, measuring East-West 12 ft. and North-South 21 ft. situated in Channammanagathihally village of Challakere Taluk was suit property. It was stated that said property fell to share of plaintiff under partition deed

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RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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(Ex.P1) and he was in possession of same, when defendant sought to interfere with plaintiff's peaceful possession.

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Upon service of suit summons, defendant entered appearance and filed written statement along with counterclaim for injunction against plaintiff. It was stated that defendant was in possession of suit property after same was granted to defendant by Grama Panchayath under resolution dated 24.02.2003 and was assigned khata no.406, measuring East-West 25 ft. and North-South 30 ft. situated in Channammanagathihally village of Challakere Taluk. Thereafter defendant had put up bathroom/latrine and was in possession. It was also stated that plaintiff had filed appeal challenging resolution of Grama Panchayath and after it's dismissal, suit was filed. In view of grant, defendant was owner in possession of suit property and as plaintiff was claiming interest in respect of said property, defendant was entitled for seeking permanent injunction against plaintiff from interference.

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Based on pleadings, trial Court framed following

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issues:

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5 - RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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(1) Whether plaintiff proves that he is in possession and enjoyment of suit property as described in plaint?

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(2) Whether defendant proves that he is in possession and enjoyment of property as described in his counter-claim?

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(3) Whether plaintiff further proves interference of defendant?

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(4) Whether defendant proves interference of plaintiff?

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(5) Whether plaintiff is entitled for permanent injunction as claimed?

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(6) Whether defendant is entitled for permanent injunction as claimed?

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(7) What order or decree?

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In support of his case, plaintiff examined himself as PW.1 and two others as PWs.2 and 3 and got marked Exs.P1 to P14. On other hand, defendant examined himself as DW.1 and another witness as DW.2 and got marked Exs.D1 to D10 respectively.

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On consideration, trial Court dismissed plaintiff's suit and decreed counter-claim of defendant. Aggrieved thereby, plaintiff preferred RA.nos.85/2007 and 87/2007 respectively.

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RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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Under impugned judgment and decree, first

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appellate Court dismissed both appeals. Aggrieved thereby, plaintiff has filed these two appeals.

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Sri Yathish N. Nadig, learned counsel for plaintiff/appellant submitted that in partition deed - Ex.P1, there was clear mention of remaining land after 10 ft. road on western side of property allotted to share of plaintiff. Such being case, Grama Panchayath did not have any authority to grant same in favour of defendant. Under illegal grant, defendant was claiming interest in property and therefore, plaintiff was entitled for injunction. In fact, reason stated in Ex.D1 - resolution was that defendant was in possession of counter-claim schedule property. However, PW.3 - Secretary of Grama Panchayath stated that defendant has been in possession of counter-claim schedule property from date of resolution of Grama Panchayat, which would falsify version of defendant. Hence there was failure in appreciation of evidence on record by both Courts and sought for allowing appeals.

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On other hand, Sri Patel D. Karegowda, learned counsel for defendant/respondent submitted that both trial

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7 - RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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Court as well as first appellate Court had arrived at concurrent finding of fact about defendant’s possession. Hence, no substantial question of law arose for consideration. It was submitted that plaintiff’s witness i.e. PW.3 - Secretary of Grama Panchayath had clearly deposed about defendant’s possession in pursuance of allotment by Grama Panchayath. As defendant was in lawful possession, without seeking prayer for declaration of title and possession, suit for bare injunction would not be maintainable. It was further submitted that there was proper appreciation of evidence on record by both Courts and findings recorded are just and proper and sought for dismissal of appeals.

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Heard learned counsel and perused impugned judgment and decree and records.

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On perusal of judgment and decree passed by trial Court, it is seen that trial Court has referred to plaint averments wherein plaintiff stated about resolution passed in favour of defendant and dismissal of his appeal against it. It also referred to counter-claim averments wherein defendant claimed ownership and possession on basis of resolution of

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8 - RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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Grama Panchayath. It also took note of specific pleading of defendant that he had obtained permission from Grama Panchayath and accordingly constructed bathroom/latrine. It referred to admission of plaintiff in cross-examination that he had constructed house in an area measuring 63ft. x 31ft. On comparing same with extent granted to plaintiff under Ex.P1 - partition deed, it observed that entire extent allotted to plaintiff was utilized leaving no scope for any vacant area. It also observed that Ex.P1 did not mention about remaining portion being allotted to share of plaintiff.

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On other hand, evidence led by defendant was referred to wherein copy of resolution, building licence, House list, Demand Register Extract, Property Tax paid receipts, photos and copy of order of Taluk Executive Officer in appeal. Upon due consideration of said material, trial Court arrived at conclusion that defendant was in possession of counter-claim schedule property and plaintiff was trying to claim interest over same. Therefore, it dismissed plaintiff's suit and decreed counter-claim of defendant. First Appellate Court on reappreciation of evidence, concurred with findings of trial Court. Though learned counsel for appellant contended that there is

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9 - RSA No. 1255 of 2009 C/W RSA No. 1257 of 2009

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no proper appreciation of evidence, on perusal of impugned judgment and decree, it is not substantiated.

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Admittedly, both Courts have arrived at concurrent finding of fact about defendant being in possession of counter-claim schedule property. Since suit property and counter-claim property are stated to be same, plaintiff ought to have sought relief of declaration and possession. Failure to seek said reliefs would be fatal. Therefore, impugned judgment and decree passed by trial Court as well as by first appellate Court would be fully justified and no substantial question of law arises for consideration.

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Hence, appeals are dismissed with costs. Judgment and decree dated 10.06.2009 passed by first appellate Court in RA.nos.87/2007 and 85/2007 and judgment and decree dated 13.06.2007 passed by trial Court in OS.No.173/2004 are confirmed.

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Sd/JUDGE

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MKM

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CT: BHK

S a Thippeswamy v. C M Ravindranath

Case brief

What is this about?

What did the court decide?

S a Thippeswamy v. C M Ravindranath

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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