Dismissed

Sri Mahalinga Bhat v. Giriyappa Gowda

Karnataka HC15 Dec 2023RSA/2399/2007

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for permanent injunction over kumki lands, the High Court upheld the first appellate court's dismissal. The High Court held that the plaintiff failed to distinctly identify the boundaries of the claimed property, rendering it non-identifiable under Order VII Rule 3 CPC.

What did the court decide?

The appeal was dismissed, and the judgment and decree of the First Appellate Court were confirmed.

Sri Mahalinga Bhat Vs Giriyappa Gowda — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF DECEMBER, 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. 2399 OF 2007 (INJ)

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BETWEEN:

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1 . SRI MAHALINGA BHAT S/O LATE. THIMAYYA BHAT, HINDU, AGED ABOUT 77 YEARS, R/O. KATTETHILA HOUSE, VITTAL MUDNUR VILLAGE, BANTWAL TALUK, D.K.

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SINCE DECEASED BY HIS LR'S

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1A. SMT. PARVATHI

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Digitally signed by R DEEPA Location: High Court of Karnataka

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W/O LATE MAHALINGA BHAT AGED ABOUT 85 YEARS R/AT KATTETHILA VILLAGE BANTWAL TALUK D.K. DISTRICT – 574 211

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1B. SMT. SHANKARI W/O B. ESHWARA BHAT AGED ABOUT 65 YEARS R/AT BALLAMBETTU HOUSE UKKINADKHA POST VIA PERLA KASARGOD KERELA – 671 351

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1C. SMT. MALATHI W/O GOVINDA BHAT AGED ABOUT 63 YEARS

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2 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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BOLUBAILU HOUSE KATUKUKKE POST KASARGOD KERALA – 671 351

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1D. SMT. SUSHEELA W/O GOPALAKRISHNA BHAT AGED ABOUT 57 YEARS R/AT No. 1348, GROUND FLOOR 8^TH MAIN, 6^TH CROSS BEML 3^RD STAGE RAJARAJESHWARI NAGAR BENGALURU – 560 098

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1E. SRI. BALAKRISHNA S/O LATE MAHALINGA BHAT AGED ABOUT 52 YEARS R/AT KATTETHILA HOUSE VITTAL MUDNOR VILLAGE BANTWAL TALUK D.K. DISTRICT – 574 211

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1F. SMT. PRASANNA KUMARI W/O GOPALAKRISHNA BHAT AGED ABOUT 45 YEARS R/AT BOLLECHALU HOUSE KUDTHA MOGERU POST BANTWAL TALUK D.K. DISTRICT – 574 211

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1G. SMT. SAROJA W/O RAVISHANKARA SHASTRY AGED ABOUT 43 YEARS R/AT MANILA HOUSE PUNCHA POST BANTWAL TALUK D.K. DISTRICT – 574 211.

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…APPELLANTS

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(BY SRI. O. SHIVARAMA BHAT, ADVOCATE)

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3 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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AND :

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GIRIYAPPA GOWDA S/O. PAKRU GOWDA, AGED ABOUT 70 YEARS, R/AT VITTAL MUDNUR ROAD, VITTAL MUDNUR POST, BANTWAL TALUK, D.K.

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KUTTI POOJARY S/O PADIYA POOJARY

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2A. SANKAMMA W/O LATE KUTTI POOJARY AGED ABOUT 65 YEARS

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2B. MONAPPA POOJARY S/O LATE KUTTI POOJARY AGED ABOUT 45 YEARS

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2C. JAYANTH D/O LATE KUTTI POOJARY AGED ABOUT 43 YEARS

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2D. MOHINI D/O LATE KUTTI POOJARY AGED ABOUT 41 YEARS

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2E. LEELA

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D/O LATE KUTTI POOJARY AGED ABOUT 38 YEARS

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ALL ARE R/AT KATTETHALA HOUSE BANTWALA TALUK DAKSHINA KANNADA DISTRICT.

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SESAPPA GOWDA S/O BATYAPPA GOWDA R/AT VITTAL MUDNUR ROAD AND POST, BANTWAL TALUK, D.K.

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…RESPONDENTS

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[BY SRI. V R PRASANNA, ADVOCATE FOR C/R1 R2, R2(A-E) & R3 ARE SERVED]

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NC: 2023:KHC:45842 RSA No. 2399 of 2007

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THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DT. 27.07.2007 PASSED IN RA.NO.319/2002 (RE-NUMBERED AS RA.NO.56/2006) ON THE FILE OF THE CIVIL JUDGE (SR.DN.) AND JMFC., BANTWAL, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AN DDECREE DT. 04.09.2002 PASSED IN OS.NO.53/1990 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.) BANTWAL, D.K.

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

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JUDGMENT

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This second appeal is filed by the appellant challenging the judgment and decree dated 27.07.2007, passed in R.A.No.56/2006 by the Civil Judge (Sr.Dn.) & JMFC, Bantwal, D.K.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants.

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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 permanent injunction restraining the defendants from interfering into the

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peaceful possession of plaint 'B' schedule property. It is the case of the plaintiff that he is the owner of 'A' schedule property and he became the owner of 'A' schedule property on the strength of the registered sale deed dated 31.12.1978. On the strength of the registered sale deed, name of the plaintiff was entered in the revenue records by mutation order dated 31.01.1979. The plaintiff is in possession of 'A' schedule property. It is contended that land bearing Sy.No.182, portion of survey numbers 183, 153, 155 and 156 of Vittal Mudnur Village are some of the lands surrounding 'A' schedule property and they are kumki lands attached to the kadim warga land of plaintiff as described in schedule 'B' of the plaint. It is contended that the plaintiff is in possession of the schedule 'A' and 'B' properties and the plaintiff had effected improvement over the said lands by raising trees. Defendants made an attempt to interfere with the possession of kumki lands of the plaintiff which is described in 'B' schedule. Hence plaintiff approached the Tahsildar for appropriate action against the defendants. The Tahsildar passed an order

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confirming possession of kumki land with the plaintiff, except 26 cents in Sy.No.182. Inspite of the order of

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Tahshildar the defendants are trying to trespass the said kumki lands. Hence prayed to decree the suit.

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Defendants filed written statement. In the written statement, defendant No.1 contended that the suit filed by the plaintiff is not maintainable in law and on facts of the case. It is also denied that the plaintiff is the owner

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of 'A' schedule property. It is contended that the defendant No.1 is in possession and enjoyment of the land lying to the west of agalu, which is in possession and enjoyment of one Kutti Poojary. Further in the western portion of Sy.No.182, there exist a public 'bana' and yearly 'nemas' were performed by the villagers and defendant No.1 had effected valuable improvements like growing cashew, mango and other trees. It is contended that the plaintiff is not in possession of 'B' schedule property. Hence the question of trespassing with the plaintiff's possession would not arise. It is contended that the

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NC: 2023:KHC:45842 RSA No. 2399 of 2007

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defendant is in possession of portion of 'B' schedule property. 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 plaintiff proves that the plaintiff is the absolute owner and in lawful possession and enjoyment of plaint schedule properties?

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2) Whether plaintiff proves that there is interference and obstructions by the defendants over the plaint schedule properties?

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3) What order and relief?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW-1 and got examined one witness as PW-2 and got marked 22 documents as Exs.P1 to P22. In rebuttal, defendant No.1 examined himself as DW-1 and got examined two witnesses as DW-2 & DW-3 and got marked 4 documents as Exs.D1 to D4. The trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 and 2 in affirmative and decreed the suit of the plaintiff by permanently

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8 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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restraining the defendants from interfering with the peaceful possession of the plaintiff of plaint 'B' schedule property and kumki privilege of plaint 'B' schedule property.

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Defendant No.1 aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.319/2002 (re-numbered as R.A.No.56/2006). The

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First Appellate Court, after hearing the parties, has framed

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the following points for consideration:

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1) Whether the issues framed by the trial Court and the findings and reasons given are harmonious with each other?

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2) Whether the appellant makes out the grounds as set out in the appeal memo?

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3) Whether the judgment and decree passed by the trial Court is illegal requiring my interference to be set aside?

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4) What order?

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The First Appellate Court, on re-assessing the oral

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and documentary evidence, answered point Nos.1 to 3 in affirmative and allowed the appeal with cost and set aside

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the judgment and decree passed by the trial Court and consequently dismissed the suit of the plaintiff. The

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9 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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plaintiff aggrieved by the judgment and decree passed by

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the First Appellate Court, has filed this second appeal.

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This court admitted the appeal on the following

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substantial question of law :

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"Whether the lower appellate court is justified in reversing the judgment and decree of the trial Court and dismissing the suit?"

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Heard learned counsel for the parties.

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Learned counsel for the plaintiff submits that the plaintiff has produced records to show that the plaintiff is in possession of schedule 'B' property. The First Appellate Court has not properly appreciated the documents placed on record. He submits that the First Appellate Court has committed an error in recording a finding that land bearing Sy.No.153 measures 6 acres 86 cents. Insofar as Sy.No.183 is concerned, the entire extent of land is 16 acres 38 cents and plaintiff claims kumki right to an extent of 1 acre 25 cents and when the extent of entire land of 'B' schedule property and their survey numbers is in excess of

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10 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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the portion claimed by the plaintiff as his kumki right, he submits that the said observation is contrary to the records produced by the plaintiff. Hence he submits that the judgment and decree passed by the First Appellate Court is perverse, arbitrary. Hence prays to allow the appeal.

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Learned counsel for the defendant No.1 submits that the First Appellate Court on re-assessment of the oral and documentary evidence, has rightly passed the impugned judgment. He submits that the plaintiff has not shown the boundaries of 'B' schedule property. Though land in Sy.No.183 measures 16 acres 38 cents, but plaintiff has not produced any records to show that the plaintiff is in possession of 1 acre 25 cents and further the said 'B' schedule property is not identifiable. The First Appellate Court was justified in passing the impugned judgment. Hence on these grounds, prays to dismiss the appeal.

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11 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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Perused the records and considered the

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submissions of learned counsel for the parties.

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SUBSTANTIAL QUESTIONS OF LAW : In order to prove the case of the plaintiff, he examined himself as PW1 and he has reiterated the plaint averments in the examination-in-chief. Further plaintiff has produced documentary evidence in support of his case. Ex.P1 is the certified copy of the sale deed dated 26.12.1978; Ex.P2 to

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P12 are the RTC extracts in respect of 'A' schedule property which discloses that the plaintiff is in possession of 'A' schedule property; Ex.P13 is the copy of plaint sketch produced in O.S.No.53/1990; Ex.P14 and P15 are the certified copies of revenue sketches; Ex.P16 is the order passed by the Tahsildar; Ex.P17 to P19 are the RTC extracts in respect of 'A' schedule property; Ex.P20 is the statement of objections; Ex.P21 is the notes of arguments; Ex.P22 is the copy of sketch. During the course of cross-examination, PW-1 has admitted that a dispute was raised before the Tahsildar between the

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12 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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plaintiff and defendant and the Tahsildar has passed an order in favour of plaintiff. Further PW-1 has admitted that against the said order, defendant had preferred an appeal before the Assistant Commissioner and the Assistant Commissioner had set aside the order passed by the Tahsildar which is confirmed by the Deputy Commissioner and the Karnataka Appellate Tribunal. The said order has attained finality. PW-2 has also reiterated the examination-in-chief of PW-1.

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In rebuttal, defendant No.1 has examined himself as DW-1. He has reiterated the written statement averments in the examination-in-chief. It is denied that the plaintiff is in possession of the portion of 'B' schedule property. It is contended that defendants are in possession of portion of 'B' schedule property and it is contended that portion of 'B' schedule property was allotted to the defendant by a grant. On the basis of the grant order, name of the defendant was entered in the revenue records. The said revenue entries were

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13 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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challenged by the plaintiff. But the grant order was not challenged by the plaintiff. In order to substantiate the defence of the defendant No.1, he has produced documents. Ex.D1 is the sketch of Sy.No.183 of Vittal Mudnur Village; Ex.D2 is the RTC extract which stands in the name of son of defendant No.1; Ex.D3 is the RTC extract in respect of 'B' schedule property which stands in the name of son of defendant No.1; and Ex.D4 is the copy of the plaint in O.S.No.53/1990 filed by the plaintiff against the defendants. Further, defendant No.1 in order to prove his possession, examined two witnesses as DW-2 and DW-3. They have deposed that the defendant No.1 is in possession of portion of 'B' schedule property.

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From the perusal of the records, it is clear that though the plaintiff is claiming kumki right to an extent of 1 acre 25 cents, the plaintiff has not produced any record to show where exactly 1 acre 25 cents land is situated in the entire extent of 16 acres 38 cents and further the plaintiff has also not shown the boundaries of 'B' schedule

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14 - NC: 2023:KHC:45842 RSA No. 2399 of 2007

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property. The First Appellate Court was justified in recording a finding that the plaintiff has not shown the boundaries of 'B' schedule property. As per Order VII Rule 3 of CPC, where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

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Admittedly in the instant case, Sy.No.183 measures 16 acres 38 cents, but the plaintiff is claiming portion of land in Sy.No.183. Plaintiff has not shown the boundaries of plaint 'B' schedule property in the suit. The said property is not identifiable. The First Appellate Court, considering the material on record, was justified in holding that the plaintiff has failed to establish that the plaintiff is in possession of 'B' schedule property. Hence I answer substantial questions of law in affirmative.

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NC: 2023:KHC:45842 RSA No. 2399 of 2007

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15 -

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Consequently, the judgment and decree passed by the First Appellate Court is hereby confirmed.

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No order as to the costs.

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SD/JUDGE

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Sri Mahalinga Bhat v. Giriyappa Gowda

Case brief

What is this about?

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Sri Mahalinga Bhat v. Giriyappa Gowda

Case brief

What is this about?

What did the court decide?

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