Dismissed

Sri Harveshetty @ Mole Harveshetty v. Sri Kempaharuvaiah

Karnataka HC5 Oct 2023RSA/1402/2016

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Karnataka dismissed the appeal filed by defendants challenging a decree of permanent injunction. The court found no error in the lower courts' findings confirming the plaintiff's lawful possession and the defendants' trespass. Appeal dismissed.

What did the court decide?

The second appeal is dismissed with confirmation of the impugned judgments and decrees of the courts below.

Sri Harveshetty @ Mole Harveshetty Vs Sri Kempaharuvaiah — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1402 OF 2016 (INJ)

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BETWEEN:

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SRI HARVESHETTY @ MOLE HARVESHETTY S/O RANGASHETTY, SINCE DECEASED BY HIS LRS

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SRI SHIVARAMU, S/O HARAVESHETTY, AGED ABOUT 52 YEARS, R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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SRI SHIVANANJAIAH, S/O HARAVESHETTY, AGED ABOUT 41 YEARS, R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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Digitally signed by R DEEPA Location: High Court of Karnataka

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3.. SRI SIDDARAJU, S/O LATE SIDDASHETTY, AGED ABOUT 44 YEARS. R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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…APPELLANTS

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(BY SRI. APPANNA GOWDA K., ADVOCATE FOR SRI. SWAMY M.M., ADVOCATE)

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AND:

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SRI KEMPAHARUVAIAH, S/O SIDDASHETTY, AGED ABOUT 64 YEARS,

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2 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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SRI DODDARAJU, S/O RAMASHETTY, AGED ABOUT 47 YEARS, R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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SRI BILIGIRI RANGANAYAKA, S/O LATE BHANGARAIAH, AGED ABOUT 84 YEARS, R/A Y K MOLE VILLAGE, YELANDUR TALUK 571 441.

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…RESPONDENTS

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(BY SRI.B. KESHAVA MURTHY, ADVOCATE FOR R1; R2 AND R3 SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.02.2016 PASSED IN R.A.NO.20/2010 ON THE FILE OF SENIOR CIVIL JUDGE JMFC., CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.03.2010 PASSED IN O.S.NO.104/2003 ON THE FILE THE CIVIL JUDGE (JR.DIVN.) AND J.M.F.C. AT YELANDUR.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 30.03.2010, passed in O.S.No.104/2003 by the Civil Judge (Jr.Dn.) & JMFC, Yelandur, confirmed by the judgment and decree

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NC: 2023:KHC:36085 RSA No. 1402 of 2016

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dated 03.02.2016, passed in R.A.No.20/2010 by the

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Senior Civil Judge & CJM, Chamarajanagar.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are defendants No.2 to 5; respondent No.1 is the plaintiff; respondents No.2 and 3 are defendants No.1 and 6.

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

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Plaintiff filed a suit for the relief of permanent injunction against the defendants in respect of the suit schedule property. It is the case of the plaintiff that the defendants are trying to stop the plaintiff from putting up the flour mill in Sy.No.148 which is claimed to have been granted to him under the Karnataka Land Reforms Act. The plaintiff obtained licence for construction of flour mill in the suit schedule property from the concerned authority. Defendants are neighbours of the plaintiff and plaintiff was about to put up construction of flour mill in

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NC: 2023:KHC:36085 RSA No. 1402 of 2016

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the suit schedule property. The defendants and their men tried to stop the construction of flour mill in the suit property and tried to trespass into the suit property. The defendants have no right, title or interest over the suit schedule property. The plaintiff requested the defendants not to stop the construction of flour mill, but the defendants did not give any heed to the request made by the plaintiff. Hence cause of action arose for the plaintiff to file the suit for permanent injunction restraining the defendants from interfering into the peaceful possession and enjoyment of the suit schedule property.

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Defendant No.1 filed written statement

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contending that there is no cause of action to file a suit. It is contended that the suit schedule property is land bearing Sy.No.148 measuring to an extent of 16 guntas. It is contended that the plaintiff gave a wrong description to Sy.No.148 with malafide intention. Sy.No.148 measuring 16 guntas belongs to one Narasingarao, under him one Biligiri Rangaiah, S/o. Late Bangaiah was

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cultivating the land on wara basis and the said Biligiri Rangaiah filed a case before the Land Tribunal seeking occupancy right and the same was rejected by the Land Tribunal. Biligiri Rangaiah preferred a writ petition in W.P.No.29991/2001 and in the said writ petition, the order of the Land Tribunal was stayed. It is contended that Biligiri Rangaiah and the plaintiff are rival tenants in respect of the said land and both of them are litigating on the same matter. It is denied that the plaintiff is the owner and in possession of Sy.No.148 of Mellahalli Village. It is denied that the boundaries given by the plaintiff in the suit is not correct. On these grounds sought for dismissal of the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that he was in lawful possession and enjoyment over the suit schedule property as on the date of suit?

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1. Whether the defendant prove that the description of the plaint schedule property is wrong?

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1. Whether the plaintiff proves the alleged interference by the defendants?

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1. Whether the defendants prove that this Court has no jurisdiction to grant relief of permanent injunction?

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1. Whether the plaintiff is entitled for the relief of permanent injunction?

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1. What order or decree ?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got examined five witnesses as PW-2 to PW-6 and got marked 32 documents as Exs.P1 to P32. Defendant No.1 examined himself as DW-1; defendant No.5 was examined as DW-2; defendant No.6 was examined as DW-3 and got examined one more witness as DW-4 and got marked 9 documents as Exs.D1 to D9. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1, 3 and 5 in affirmative; issue No.2 and 4 in negative and consequently decreed the suit of the plaintiff and decree of permanent injunction was granted restraining the defendants, their agents or servants or anybody claiming under them not to interfere with the plaintiff's

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7 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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peaceful possession and enjoyment of the suit schedule property.

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Defendants No.2 to 5 aggrieved by the judgment and decree passed in the above said suit, filed an appeal

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in R.A.No.20/2010. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1. Whether the findings of the Trial Court in decreeing the suit in OS.No.104/2003 dated 30.03.2010 is erroneous, illegal and against the materials placed on record?

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1. Whether the Civil Court has no jurisdiction to entertain this suit of the plaintiff?

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1. Whether the impugned judgment and decree passed by the learned Trial Court requires to be interfered with?

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1. What Order?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered point Nos.1 and

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2 in the negative and consequently dismissed the appeal vide judgment dated 03.02.2016, confirming the judgment and decree passed by the Trial Court. The defendants No.2

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8 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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to 5 aggrieved by the judgments and decrees passed by

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the courts below, have filed this second appeal.

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Heard the learned counsel for the defendants

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No.2 to 5.

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The learned counsel for the defendant Nos.2 to 5 submits that the courts below have committed an error in passing the impugned judgments and decrees. He submits that the plaintiff and Biligiri Rangaiah are claiming the title in respect of suit schedule property and the said matter is pending before the learned Tribunal. He submits that plaintiff is not in possession of the land bearing Sy.No.148 and further submits that the courts below have not properly appreciated the admission of PW.1 in the course of cross-examination. He submits that the defendants are in possession of suit land measuring 6 guntas. The said fact was not properly appreciated by the courts below. Hence on these grounds, prays to allow the appeal.

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9 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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Perused the records and considered the

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submissions of learned counsel for the defendant Nos.2 to 5.

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It is the case of the plaintiff that the plaintiff has acquired the suit schedule property through the Certificate of Registration under the Karnataka Land Revenue Act, 1961, and he is in possession and enjoyment of the suit schedule property. Further the plaintiff got converted the said land into non-agricultural for construction of flour mill in the suit schedule property. The plaintiff obtained necessary construction permission and sanction plan from the concerned department. When the plaintiff was constructing the building in the suit schedule property, the defendants started interfering and attempting to trespass into the suit schedule property. The defendants have no right, title or interest to interfere with the property. The plaintiff in order to substantiate his case, examined himself as PW-1 and he has reiterated the plaint averments in the examination-in-chief. In order to

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prove that the plaintiff is the owner and he is in possession of the suit schedule property, has produced copy of the order passed by the Land Tribunal marked as Ex.P2 and also the report at Ex.P1. Further he produced assessment register extract marked as Ex.P7. Ex.P8 is the settlement Akara Band. Ex.P9 to Ex.P11 are the tax paid receipts in respect of suit schedule property. Ex.P12 is the building license issued by Duggahatti Grama Panchayath. Ex.P13 is the certificate copy of resolution passed by Duggahatti Mandal Panchayath. Ex.P14 is the certified copy of the Assessment Register. Ex.P15 is the certified copy of survey sketch. Ex.P16 is the certificate of registration of tenant. Ex.P17 is the certified copy of order passed by the learned Trial Court on 29.07.1986. Ex.P18 is the certified copy of the W.P.No.29991/2001, wherein the order of Land Tribunal was challenged in the aforesaid Writ Petition.

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From the perusal of the records, it discloses that

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the Land Tribunal granted occupancy right in favor of

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11 - NC: 2023:KHC:36085 RSA No. 1402 of 2016

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plaintiff on 04.01.1982, as per Ex.P2. Further as observed above, in order to prove the possession of plaintiff over suit schedule property, the plaintiff has produced Ex.P2 issued by the Tahsildar, Yelandur Taluk on 05.04.1983, pertaining to the suit schedule property, wherein the Tahsildar, on the application of the plaintiff, converted the suit property into non-agricultural land and permitted the plaintiff to use the suit schedule property for nonagricultural purpose. Ex.P6 is the building license issued by the Honnur Mandal Panchayath for construction of building in the suit schedule property. Ex.P14 is the certified copy of assessment register extract which discloses that the said property stands in the name of plaintiff.

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The defendants have not challenged the documents produced by the plaintiff, i.e., the order of Land Tribunal, communication issued by the Tahsildar on 05.04.1983 and also sanction plan issued in favour of plaintiff by Mandal Panchayath, Honnur.

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NC: 2023:KHC:36085 RSA No. 1402 of 2016

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From the perusal of records, it discloses that the plaintiff is in possession of the suit schedule property by virtue of order passed by the Land Tribunal and also order of Tahsildar converting the agricultural land into nonagricultural land and the Panchayath records discloses that the plaintiff is in possession of the suit schedule property.

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On the contrary defendants have not produced any records to show that the defendants are in possession of the suit schedule property. The Trial Court considering the evidence of PW-1 to PW-6 and documents produced by the plaintiff, has come to the conclusion that the plaintiff is in possession of the suit schedule property and defendants are not in possession of the suit schedule property. Further the plaintiff has lodged a complaint against the defendants as per Ex.P5, which discloses that the defendants attempted to trespass into the suit schedule property. From the perusal of Ex.P5, it is clear that the defendants made an attempt to interfere into the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The Trial Court recorded a finding that

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the defendants made an attempt to interfere into the peaceful possession and enjoyment of the suit schedule property. The Trial Court after considering the materials on record was justified in recording the finding that the plaintiff is in possession and enjoyment of the suit schedule property and the defendants have made attempt to trespass into the suit schedule property. The Trial Court was justified in decreeing the suit of the plaintiff. The First Appellate Court on re-appreciating the entire evidence on records was justified in confirming the judgment and decree passed by the Trial Court. Hence, I do not find any grounds to interfere with the impugned judgments and decrees. I do not find any substantial question that arises for consideration in this appeal. In view of the aforesaid facts and circumstances, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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NC: 2023:KHC:36085 RSA No. 1402 of 2016

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

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No order as to the costs.

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Sd/JUDGE

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RD,PNV

Sri Harveshetty @ Mole Harveshetty v. Sri Kempaharuvaiah

Case brief

What is this about?

What did the court decide?

Sri Harveshetty @ Mole Harveshetty v. Sri Kempaharuvaiah

Case brief

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