The High Court of Karnataka dismissed the second appeal by an appellant challenging a decree setting aside her title suit. The Court found no substantial question of law and upheld the First Appellate Court's decision, noting insufficient evidence regarding borewell location.
The appeal was dismissed; the pending interim application stands disposed of.
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 8TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 209 OF 2015 (DEC/INJ)
BETWEEN:
SMT. SHIVALINGAMMA W/O. LATE SANNAPPA, AGED 65 YEARS, R/AT MAKANAPURA VILLAGE, HULLAHALLI HOBLI, NANJANGUD TALUK, MYSORE DISTRICT – 571 312
…APPELLANT
(BY SRI. MURUGESH V. CHARANTI, ADVOCATE)
AND:
Digitally signed by R DEEPA Location: High Court of Karnataka
BOTH ARE R/AT HALLARE VILLAGE, HULLAHALLI HOBLI, NANJANGUD TALUK, MYSORE DISTRICT – 571 312
…RESPONDENTS
(BY MS. DEEKSHA, ADVOCATE FOR SRI. HARIKRISHNA S HOLLA, ADVOCATE FOR R3 R1 & R2 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 9.10.2014 PASSED IN R.A.NO.25/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.1.2013 PASSED IN O.S.NO.189/2010 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC., NANJANGUD.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant challenging the judgment and decree dated 09.10.2014 passed in R.A.No.25/2013 by the Senior Civil Judge and JMFC., at Nanjangud.
3. Brief facts of the case are as under:
The plaintiff filed a suit for declaration of title and
also order of temporary injunction restraining the defendants from interfering with the plaintiff's peaceful
possession and enjoyment of the suit schedule property and also sought for mandatory injunction in favour of the defendants.
It is the case of the plaintiff that the suit schedule property is the land situated at Hallare Village, Hullahalli Hobli, Nanjangud Taluk, bearing Sy.No.181/P33 extent of 4 acres assessed at Rs.5.28 in the above extent of borewell is situated in the said land. The suit schedule property was originally granted to Chennabasava Shetty, who is the father-in-law of the plaintiff on 15.09.1952. After grant, during the life time of Chennabasavashetty in the presence of panchayatdars only divided all his ancestral properties and self acquired properties among his three sons about 30 years back. The suit schedule properties are allotted to the share of plaintiff's husband. On 13.06.1999, the husband of the plaintiff died leaving behind the plaintiff and his children as his legal heirs. Before the death of plaintiff's husband, his father-in-law predeceased him. After the death of plaintiff's husband,
the plaintiff was looking after the estate of her husband as a manager of the joint family and even today, she is managing the estate of her late husband. The plaintiff and her children are leaving in the joint family and they are cultivating and managing the suit schedule property. The daughters of the plaintiff are married and living in their matrimonial home. The plaintiff got digged the borewell in the suit schedule property on 14.06.2007. Due to weak monsoon, the plaintiff unable to purchase the borewell equipments due to insufficient funds. In the meanwhile, the defendants are having no manner of right, title or possession over the suit schedule land. The defendants are owing their lands towards the northern side of the suit schedule land and not law abiding citizens and taking law into their own hands. The defendants taking undue advantage of delaying in Installing submersible pumpset and taking service from defendant No.3, misrepresented the facts and filed an application before defendant No.3 stating that they have drilled a borewell in their land and demanded to give electric connection. The plaintiff and her
NC: 2023:KHC:32466 RSA No. 209 of 2015
son resisted the illegal acts of the defendants by protesting illegal power supply and also immersing the submerisble pumpset. The plaintiff approached the elders in the village and elders promised that they will settle the matter amicably and not to approach the Court. The plaintiff believing the words of the elder did not file the suit. Hence, the plaintiff requested the defendants to disconnect the electricity supply and not to use the borewell, but the defendants did not give any heed to the request made by the plaintiff. Hence, the plaintiff constrained to file the suit.
NC: 2023:KHC:32466 RSA No. 209 of 2015
document and filed the suit at the instigation of evil elements. Hence, prayed to dismiss the suit.
pleadings, framed the following issues:
1. Whether the plaintiff proves that she is in lawful owner and in possession and enjoyment of the suit schedule property as on the date of filing of the suit?
2. Whether the plaintiff proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the mandatory injunction directing the 3rd defendant to disconnect power supply to the suit schedule land?
4. What order or decree?
NC: 2023:KHC:32466 RSA No. 209 of 2015
the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property. Further, it is ordered and decree for permanent injunction was also granted directing the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and directed defendant Nos.1 and 2 to remove their submersible pumps fixed in the suit schedule land. The defendants aggrieved by the judgment and decree passed by the trial Court, preferred appeal in R.A.No.25/2013 before the Senior Civil Judge and JMFC, Nanjangud.
parties, has framed the following points for consideration:
1. Whether appellant / 1st defendant has made out reasonable and acceptable grounds for condonation of delay in preferring this appeal?
2. Whether the appellants / defendant No.1 and 2 proved that the judgment and decree of the trial Court is illegal, erroneous, perverse and called for interference of this Court?
3. What order?
the oral and documentary evidence, answered point Nos.1 and 2 in the affirmative and consequently, allowed the appeal vide judgment and decree dated 09.10.2014 and set aside the judgment and decree passed by the trial Court and consequently, dismissed the suit of the plaintiff.
The plaintiff aggrieved by the judgment and decree passed by the First Appellate Court in R.A.No.25/2013, has filed this second appeal.
First Appellate Court has committed an error in passing the impugned judgment. He submits that the plaintiff is in possession of the suit schedule property. In support of her case, the plaintiff has produced Exs.P14, P20, P21 and P22. On the contrary, the defendants have not produced
any documents to show that the defendants are in possession of the suit schedule property. He further
submits that the plaintiff has no opportunity to address the arguments before the First Appellate Court. Hence, he submits that the impugned order passed by the trial Court is arbitrary and erroneous. Hence, on these grounds, he prays to allow the appeal.
partition, the suit schedule property was fallen to the share of the plaintiff's husband. The plaintiff's husband died leaving behind the plaintiff and his children as his legal heirs and have succeeded to the suit schedule property. The plaintiff in order to prove her case examined power-of-attorney holder as PW.1. PW.1 has reiterated the plaint averments in the examination-in-chief and produced the documents and marked as Ex.P1 is the RTC extracts in respect of suit schedule land stands in the name of the plaintiff, Ex.P2 is the boundary certificate in respect of suit schedule land, Ex.P3 is the encumbrance certificate, Exs.P4 to P9 are the tax paid receipts, Ex.P10 is the deposit receipt, Ex.P11 is the cash bill, Ex.P12 is the borewell certificate, Ex.P13 is the quotation for the purpose of drilling the borewell, Ex.P14 is the mutation register extract, Exs.P15 and P16 are the certified copy of the judgment and decree in O.S.No.385/1986, Exs.P17 and P18 are the certified copy of the judgment and decree passed in R.A.No.13/1996, Ex.P19 is the copy of quotation, Ex.P20 is the M.R. Extract, Ex.P21 is the RTC
extract and Ex.P22 is the Patta book. Though the plaintiff has tender for cross-examination, the learned counsel for the defendants did not cross-examined the PW.1. Ex.P1 is the RTC extracts pertaining the suit schedule property reveal that the suit schedule property measures 3 acres 4 guntas but the plaintiff is seeking for the relief of declaration in respect of 4 acres. There is a difference area described in the plaint as well as in Ex.P1 that the plaintiff has not produced any documents to show that the plaintiff is the owner to an extent of 4 acres in Sy.No.181/P33. Further, it is the case of the plaintiff that the plaintiff digged the borewell in the suit schedule property. In order to establish that the borewell is drilled in the suit land, the plaintiff has not produced any records to show that borewell is digged in the suit property and further the plaintiff has not filed any application for appointment of Commissioner to ascertain whether the borewell digged in the suit land or in the land of the defendants. In the absence of evidence, the initial burden is on the plaintiff to establish that the borewell is situated in her property. As
observed above, the plaintiff has not produced any records to show that the borewell was digged in her land. Considering the evidence of the plaintiff, the First Appellate Court was justified in passing the impugned judgment. Hence, I do not find any grounds to interfere with the impugned judgment and decree and further I do not find any substantial question of law that arise for consideration in this appeal. Accordingly, the appeal is dismissed.
SD/JUDGE
ssb
2 issues framed by the court
Whether the Second Appeal is maintainable considering the lack of substantial question of law?
Whether the trial Court erroneously declared the appellant as absolute owner and granted injunction?
SMT. SHIVALINGAMMA
SMT. KAMALAMMA
SRI. DEVAPRAKASH
THE ASST. EXECUTIVE ENGINEER CHESCOM
ASHOK S.KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
