Dismissed

Sri Singegowda v. Sri Ningegowda @ Devaraja

Karnataka HC6 Jul 2023RSA/1267/2022

Case brief

AI extract

What is this about?

In this regular second appeal under Section 100 of the CPC, the High Court of Karnataka dismissed the appeal at the stage of admission, holding that no substantial question of law arose. The Court noted a discrepancy in the appellant's land measurements and found the claim for permanent injunction unsustainable as the appellant failed to prove possession of the purportedly encroached land.

What did the court decide?

The regular second appeal is dismissed at the stage of admission for lack of a substantial question of law.

Sri Singegowda Vs Sri Ningegowda @ Devaraja — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:23269 RSA No. 1267 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.1267 OF 2022

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BETWEEN:

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SRI SINGEGOWDA S/O LATE KRISHNEGOWDA, AGED ABOUT 63 YEARS, R/A BEECHANAHALLIPURA, DABBEGHATTA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTRICT - 572 227.

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…APPELLANT (BY SRI. BHARGAV G., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SRI NINGEGOWDA @ DEVARAJA S/O JAVAREGOWDA, AGED ABOUT 46 YEARS, R/A BEECHANAHALLI VILLAGE, DABBEGHATTA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTRICT - 572 227.

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…RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.

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THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri.Bhargav.G., learned counsel for the appellant has

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appeared in person.

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This is an appeal from the Court of Senior Civil

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Judge & JMFC, Turuvekere.

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

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The brief facts of the case are stated as under:

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The plaintiff filed a suit for the relief of declaration that he is the owner in possession of the suit schedule land and also for

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permanent injunction restraining the defendants from interfering with the suit land. The plaintiff described the suit schedule land as land situated at Beechanahalli, Dabbeghatta Hobli, Turuvereke Taluk bearing Sy.No.153 (Old 63/17), measuring 2-19 guntas. It is the contention of the plaintiff that he is the owner in possession the suit schedule property measuring to an extent of 02 Acre 20 Guntas and the same was granted to him under Grant Certificate dated 31.08.1994 in Sy.No.63/17. At the time of the grant, the property was in Sy.No.63/17 and after Durasth, it is assigned as Sy.No.153 measuring 02 Acre 20 Guntas. It is said that since the date of the grant, he is in peaceful possession and enjoyment of the

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said property. It is further contended that the defendant has no manner of right, title, or interest over the suit land and caused obstruction. The cause of action arose on 01.07.2011 and he filed a suit against the defendant.

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After the service of the suit summons, the defendant appeared through his counsel, filed a detailed written statement and denied the plaint averments. It is contended that the land bearing Old Sy.No.63/4, New Sy.No.126 measuring to an extent of 01 Acre 03 Guntas situated at Beechanahalli Village was granted to his father Javaregowda on 01.09.1977. The Grant Certificate was issued in the name of his father, and he became the absolute owner in possession of the said property. After the death of his father, he and his brother succeeded to the said property. It is contended that towards the eastern side of the property of the defendants, the property of the plaintiff is situated and the same is less than 1½ Acre and not 2½ Acre as contended by the plaintiff. It is also contended that towards the southern side of the property of the defendants, another property bearing Sy.No.96 measuring to an extent of 38 Guntas which belongs to them is existing. The defendant specifically contended that the suit schedule property

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is not in existence. Among other grounds, he prayed for the dismissal of the suit.

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Based on the above pleadings, the Trial Court framed Issues. To substantiate their contention, the respective parties led evidence and the Court Commissioner also led evidence as CW1, and documents were marked and exhibited. On the trial of the action, the Trial Court dismissed the suit. Aggrieved by the Judgment & Decree of the Trial Court the plaintiff preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court confirmed the Judgment & Decree of the Trial Court and dismissed the appeal. Hence, the plaintiff has filed this Regular Second Appeal under Section 100 of CPC.

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Sri.Bhargav.G., learned counsel for the appellant submits that the Judgments & Decrees of both Courts are erroneous and illegal. Hence, the same are liable to be set aside.

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Next, he submits that the Trial Court appointed Court Commissioner to measure the extent of land occupied by both parties.

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He made a further submission that a Licensed Surveyor was appointed as Commissioner and in the presence of both parties and other witnesses, the Surveyor has given clear findings that the defendant has encroached on the land of the plaintiff to an extent of 30 Guntas. But both Courts failed to notice the Commissioner's report.

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Sri.Bhargav.G., learned counsel vehemently contended that the Commissioner's report is neither challenged nor has been disputed. Hence, both Courts ought to have passed the Judgment & Decree in favor of the plaintiff.

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It is also contended that the plaintiff filed an amended plaint on 11.11.2013 wherein he pleaded that the defendant has encroached on his land during the pendency of the suit. The Commissioner's report also supports the pleadings of the plaintiff. Therefore, he submits that the reasoning of both courts is bad in law.

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Lastly, he submits that the Judgments & Decrees of both Courts lack judicial reasoning. Therefore, he submitted that the second appeal may be admitted, by framing substantial questions of law.

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Heard, the contentions urged on behalf of the appellant and perused the Judgments & Decrees of both Courts with utmost care.

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The facts have been sufficiently said and the same does not require reiteration.

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The suit giving rise to this appeal was brought by the plaintiff seeking the relief of declaration, possession and also for permanent injunction. In the present case, the first question relates to the extent of the land and the second is about the Commissioner’s report. In my view, what must be considered is whether the claim of the plaintiff is sustainable in law.

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The plaintiff contended that the land bearing Sy.No.153 measures 02 Acre 20 Guntas and he has specifically contended that the defendant has encroached 30 Guntas of the land, hence he prayed for a declaration, recovery of possession and for a permanent injunction. Before this Court also, he has adhered to the said contention. To substantiate the said contention, he produced a Grant Certificate dated 31.08.1994.

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Ex.P.3 is the Phodi Sketch of old Sy.No.63/17 New Sy.No.153. It is dated 21.04.1999. In the phodi sketch, the

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extent of the land is shown as 01 Acre 04 Guntas including 04 Guntas of karab land. It is relevant to note that the plaintiff has accepted the extent of the land shown in the phodi report. Strangely, he is contending that he is the owner and in possession to an extent of 02 Acres and 20 Guntas and initiated action against the defendant alleging that the defendant has encroached on his land to an extent of 30 Guntas.

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An attempt is made on behalf of the appellant to contend that a Licensed Surveyor was appointed to measure the extent of land occupied by both parties. Learned counsel for the appellant in presenting his argument strenuously urged that Commissioner's report reveals that the defendant has encroached to an extent of 30 Guntas of the land of the plaintiff. A further attempt is made to contend that in the Phodi sketch, the extent of land is not properly shown and the same is incorrect. The said contention cannot be accepted. The reason is quite simple. After the phodi, the extent of land is only 01 Acre 04 Guntas including 04 Guntas of karab land and as already noted above, the plaintiff has accepted the same. The plaintiff has not made any efforts to rectify the same.

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Hence, the contention that the extent of the land shown in the phodi is incorrect is satisfactorily hopeless.

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It is pivotal to note that plaintiff is not clear about the extent of the land. The plaintiff contends that land to an extent of 02 Acre 20 Guntas is granted under the Grant Certificate. However, in the plaint schedule he has shown the extent of land as 02 Acre 19 Guntas and he has made an allegation that defendant has encroached 30 Guntas of land. In my opinion, the plaintiff is not clear about the extent of land. As already noted above, after the phodi, the extent of land is shown as 01 Acre 04 Guntas including 04 Guntas of karab land. Plaintiff has not proved that he is the absolute owner in possession of the property either to an extent of 02 Acre 20 Guntas or 02 Acre 19 Guntas.

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Furthermore, the plaintiff has specifically pleaded that the defendant has encroached on 30 Guntas of land and sought the relief of declaration, recovery of possession, and a permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of 30 Guntas of land. A careful perusal of the plea would reveal that he is not in

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possession of 30 Guntas of land. When the plaintiff is not in possession of the property, the question of grant of a permanent injunction also does not arise.

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The right to an injunction is based on a prima-facie right. whenever a prayer is sought for a permanent injunction, the plaintiff is liable to prove his lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit. The object of injunction is prevention, and the aim is to maintain status-quo ante . The plaintiff claiming the relief of perpetual injunction must prove the breach of an obligation or infringement of a legal right.

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It is pivotal to note that the plaintiff has failed to prove that he is the owner in possession of the suit property as of the date of filing of the suit.

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No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and so, it is dismissed at the stage of admission.

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 62

Sri Singegowda v. Sri Ningegowda @ Devaraja

Case brief

What is this about?

What did the court decide?

Sri Singegowda v. Sri Ningegowda @ Devaraja

Case brief

What is this about?

What did the court decide?

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