Partly allowed

Sri Basavaraju v. Sri Jagadish

Karnataka HC25 Sept 2023RSA/2914/2010

Case brief

AI extract

What is this about?

Representing plaintiffs in a regular second appeal, the High Court held that lower courts erred in dismissing the suit entirely. It annulled the decisions below, noting defendants had admitted to an admission of the plaintiff's possession over 1 acre 30 guntas, which had been ignored by lower courts.

What did the court decide?

The appeal allowed in part; impugned judgments and decrees set aside; plaintiffs' suit partly decreed; defendants permanently restrained from encroaching on 1 acre 30 guntas.

Sri Basavaraju Vs Sri Jagadish — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:34869 RSA No. 2914 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.2914 OF 2010 (INJ)

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BETWEEN:

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SRI BASAVARAJU S/O LATE SIDDAIAH AGED ABOUT 53 YEARS R/AT NAGATHIHALLI GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103

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SMT.MEENAKSHMMA W/O SRI BASAVARAJU AGED ABOUT 48 YEARS R/AT NAGATHIHALLI GRAMA KASABAHOBLI ARASIKERE TALUK- 573 103 ... APPELLANTS

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(BY SRI PUNITH K FOR SRI P.M.SIDDAMALLAPPA, ADVOCATES)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA

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SRI JAGADISH S/O LATE ARAKALAHATTI CHANNEGOWDA

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AGED ABOUT 43 YEARS

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R/AT NAGATHIHALLI GRAMA

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KASABAHOBLI

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ARASIKERE TALUK - 573 103

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SRI. SHIVANNA S/O LATE ARAKALAHATTI CHANNEGOWDA AGED ABOUT 55 YEARS RESIDING AT NAGATHIHALLI GRAMA KASABA HOBLI ARASIKERE TALUK -573 103

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SRI. THIMMAPPA S/O LATE ARAKALAHATTI GIRIYAPPA AGED ABOUT 56 YEARS RESIDING AT NAGATHIHALLI GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103

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SRI. RAVI S/O LATE ARAKALAHATTI THIMAPPA AGED ABOUT 36 YEARS RESIDING AT NAGATHIHALLI GRAMA KASABA HOBLI ARASIKERE TALUK - 573 103 … RESPONDENTS[

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(BY SRI P.MAHESHA, ADVOCATE FOR R1-R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 27.10.2010 PASSED IN R.A.NO.90/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARSIKERE,DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.09.2007 PASSED IN O.S.NO.170/05 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.),ARSIKERE ETC.,

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

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J U D G M E N T

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This Regular Second Appeal is preferred by the plaintiffs being aggrieved by the impugned judgment & decree dated 27.10.2010 passed in R.A. No.90/2007 by the learned Senior

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Civil Judge & JMFC, Arsikere, wherein the judgment & decree passed in O.S. No.170/2005 dated 6.9.2007 by the learned Prl. Civil Judge (Junior Division), Arsikere came to be confirmed dismissing the appeal.

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For the sake of convenience, parties shall be referred

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to as per their status before the trial Court.

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Brief facts of the case are as under:

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The land bearing Sy.No.28 measuring 2 acres situated in Nagathihalli village, Kasaba hobli, Arsikere taluk (for short, 'suit schedule property') was granted in favour of the plaintiffs by the revenue authorities on 28.2.2004 vide grant certificate and since then the plaintiffs are in peaceful possession and enjoyment of the suit schedule property. It is further case of the plaintiffs that the revenue records are standing in their names and they have raised coconut trees in the suit schedule property by fencing the land and they have been in peaceful possession and enjoyment of the suit schedule property. This being the state of affairs, defendants who are strangers having no manner of right, title, interest and possession over any portion of the suit schedule property made illegal attempt to

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remove the fence put up in the said property, thereby forcing the plaintiffs to file the suit in O.S. No.170/2005 seeking for the relief of Permanent Injunction restraining the defendants from removing the fence or encroaching into the suit schedule property and for other reliefs.

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The defendants filed the written statement denying the averments made in the plaint and took up defence on the ground that the suit schedule property earlier belonged to the Government and it was waste (Kharab) land and that there is a public road in the said property connecting Nagathihalli and Bendekere road, which is used by the villagers of Nagathihalli, Syderalli, Bendekere and other villages to go to Marulasiddeshwara Math and temple. It is further case of the defendants that the road is also used to reach Arsikere - Garudanagiri road connecting temple to the Purlehalli village and also the villagers used this road to carry their agricultural implements, bullock carts, since more than 100 years. It is also case of the defendants that the plaintiffs have been unauthorisedly cultivating the suit schedule property and at that time also villagers were using the road situated in the said property. When the application was filed praying for grant of

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land, the revenue officials visited the land, drew up the sketch and mentioned the road used by the public. Hence it was stated that 10 guntas of kharab land is meant for the road and 1 acre 30 guntas was granted in favour of the plaintiffs towards western side and the existence of road is clearly mentioned in the grant certificate. It is further stated in the written statement that the plaintiffs falsely mentioned the road as property belonging to one Mr. Ravi and filed a false suit claiming kharab land of 10 guntas meant for hillock . It is stated that the plaintiffs filed the suit and obtained an order of Temporary Injunction and put up the fence and restricted the villagers from using the road. Accordingly the defendants sought for dismissal of the suit.

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On the basis of the pleadings, the trial Court framed the following issues:

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Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?

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Whether the defendants prove that out of suit schedule property there is 10 guntas public road property is there?

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Whether the Plaintiffs prove the alleged interference?

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Whether the Plaintiff is entitle for the relief claimed for?

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What order or decree?

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In order to substantiate their case, plaintiffs examined

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3 witnesses on their behalf as PWs.1 to 3 and got marked 13 documents as per Ex.P1 to Ex.P13, whereas defendants examined 2 witnesses on their behalf as DWs.1 and 2. Further, the Tahsildar was examined as CW.1 and got marked two documents as per Ex.C1 and Ex.C1(a).

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On consideration of the oral and documentary evidence, the trial Court dismissed the suit. Being aggrieved by dismissal of suit, plaintiffs preferred Regular Appeal in R.A. No.90/2007. On re-appreciation and re-evaluation of the entire evidence, the first appellate Court dismissed the appeal confirming the judgment and decree passed by the trial Court.

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Being aggrieved by the concurrent findings of dismissal passed by the trial Court as well as the first appellate Court, the plaintiffs are before this Court questioning the same

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raising substantial questions of law to be considered by this Court.

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It is the contention of learned counsel for the plaintiffs that the impugned judgment & decree passed by both the Courts are opposed to law and facts of the case and hence the same are liable to be set aside. It is further contended that the impugned judgment & decree passed by both the Courts are illegal, perverse, arbitrary and contrary to the material evidence placed on record. It is also contended that both the Courts have committed miscarriage of justice in not appreciating the oral and documentary evidence placed on record and has grossly erred in discarding the material including the written statement filed by the defendants, wherein they have admitted that the property to an extent of 1 acre 30 guntas was granted in favour of plaintiffs and 10 guntas being kharab land was used by the villagers and public as road. It was also contended that the Courts below have misread the evidence of PWs.1 to 3 though their evidence is fully corroborated with the documentary evidence - Ex.P1 to Ex.P13. Thus, the Courts below have failed to take into

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consideration the undisputed fact with regard to the grant of land made in favour of the plaintiffs.

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It is also contended by the learned counsel that both the Courts have failed to take into consideration the application for amendment made in I.A. No.12 wherein the plaintiffs sought for amendment of the plaint restricting the suit claim to an extent of 1 acre 30 guntas, but both courts mechanically and blindly dismissed the suit which has caused miscarriage of justice to the plaintiffs. Both the Courts have failed to take into consideration the possession of the plaintiffs in the suit schedule property, which is not disputed in the written statement rather it is admitted categorically in favour of the plaintiffs and so also in the evidence adduced by the parties. It is further contention of learned counsel that these crucial aspects which are material to the case have been conveniently ignored by both the Courts causing serious miscarriage of justice. Infact, the defendants have admitted the grant of land in favour of plaintiffs to an extent of 1 acre 30 guntas and their possession over the same and also stated that remaining 10 guntas of land being kharab land is used by the public and

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villagers as road. On these grounds, the present appeal is filed to consider the substantial questions of law.

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Having heard learned counsel for the plaintiffs and on perusal of the impugned judgments of both the Courts and the material placed before the Courts, this Court framed the following substantial questions of law for consideration:

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Whether the Courts below are justified in dismissing the suit of the plaintiffs for the relief of Permanent Injunction in toto , by ignoring the admission of fact by the defendants in paragraph-6 of their written statement with regard to the plaintiffs being in possession of 1 acre 30 guntas in Sy.No.28 of Nagathihalli village, Kasaba hobli, Arasikere taluk ?

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Whether the Courts below are justified in dismissing the suit of the plaintiffs despite the application for amendment - I.A. No.12 filed by the plaintiffs restricting their claim to an extent of only 1 acre 30 guntas out of 2 acres in the suit schedule property by dismissing the said application as well ?

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Learned counsel for both the parties were heard on

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the substantial questions of law. The plaintiffs filed the suit for

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the relief of Permanent Injunction restraining the defendants from removing the fence or encroaching into the suit schedule property. It is not in dispute that the suit schedule property measuring 2 acres including karab land to an extent of 10 guntas was granted to the plaintiffs by way of grant certificate on 28.2.2004 vide Ex.P4. It is the defence taken by the defendants that out of the 2 acres of suit schedule land, in an extent of 10 guntas there is a public road, which is used by villagers of Nagathihalli, Syderalli, Bendekere and other villages to go to Marulasiddeshwara Math and temple. The road also is used to reach Arsikere-Garudanagiri road connecting temple to Purlehalli village and also the villagers used this road to carry their agricultural implements, bullock carts for more than 100 years. Therefore, it is the specific contention of the defendants that 10 guntas of land out of 2 acres claimed by the plaintiffs is being used as a public road and hence plaintiffs would not be entitled to said 10 guntas, while defendants admitted the ownership and possession of 1 acre 30 guntas by the plaintiffs.

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The mutation register extract at Ex.P2 depicts that 1 acre 30 guntas in Sy.No.28 mutated in favour of the plaintiffs. It is also not in dispute that there is a hillock situated on one

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side of the property and not in the middle of the suit schedule property. Therefore 10 guntas of land is phut kharab land and the cultivable land is to an extent of 1 acre 30 guntas.

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The Tahsildar who is examined as CW.1 has produced the sketch - Ex.C1, which is a public document and it clearly depicts that on the western side, road is existing. It is also seen during the pendency of the suit proceedings prior to the pronouncement of judgment, on the application filed by the plaintiffs under Order VI Rule 17 of CPC seeking permission to amend the suit schedule by restricting their claim over 1 acre 30 guntas of the suit schedule property, the trial Court passed an order on 23.06.2007 rejecting the application on the ground that it will be considered on merits while deciding the main suit. The trial court instead of appreciating the application for amendment and the fair submission of the plaintiffs in restricting their claim to an extent of 1 acre 30 guntas out of 2 acres of the suit schedule property, rejected the application without any proper reasoning.

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It is not the case of the defendants that the suit schedule property to an extent of 1 acre 30 guntas does not

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belong to the plaintiffs, but however defendants have categorically objected to 10 guntas of land belonging to the plaintiffs and falling to their share as the same is phut kharab land used as a public road by the villagers. Hence plaintiffs would not be entitled to 10 guntas of land used as a public road by the villagers. This factual aspect is not disputed by the defendants. The issues framed by the trial court are as to whether the plaintiffs prove that they are in lawful possession over the suit schedule property as on the date of suit and whether the defendants prove that out of the suit schedule property, 10 guntas of land is public road property used by the villagers.

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The defendants have categorically admitted in the written statement at paragraph No.6 with regard to the above aspect that out of 2 acres, 10 guntas of land is used as public road by villagers and remaining extent of 1 acre 30 guntas is allotted by way of grant to the plaintiffs. Therefore when the defendants themselves have admitted the grant of land and possession of plaintiffs over 1 acre 30 guntas of land of the suit schedule property, it can be safely presumed that plaintiffs are owners in possession of 1 acre 30 guntas of land by way of

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grant as per Ex.P4. What is more important to notice is the fact that pursuant to filing of the written statement and adducing of evidence, plaintiffs filed an application I.A. No.12 seeking permission to amend the plaint restricting their claim only to 1 acre 30 guntas of land in the suit schedule property, which was dismissed on the ground that the same would be considered while deciding the main matter, however the same is ignored and not adverted to while passing the judgment.

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It is also relevant to mention that the first appellate Court has also not considered the aspect of admission made by the defendants in their written statement and also the evidentiary material on record with regard to plaintiffs being in absolute possession and enjoyment of 1 acre 30 guntas allotted to them by way of grant and to an extent of 10 guntas of land which is disputed by the defendants being used by the villagers as public road. The first appellate Court having ignored this aspect has certainly caused miscarriage of justice to the plaintiffs which is admitted by the defendants. So also the first appellate Court has ignored the fact of trial court erroneously dismissing the application - I.A. No.12 filed by the plaintiffs restricting their claim to an extent of 1 acre 30 guntas out of 2

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NC: 2023:KHC:34869 RSA No. 2914 of 2010

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acres of the suit schedule property. In fact, the trial Court rejected the said application without any proper reasoning stating that the same would be considered alongwith the main matter, but however the same was not done by the trial Court.

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In view of the above discussion made, it is apparently clear that the evidentiary material on record, both oral and documentary and the admission of facts made by defendants, have not been considered by both the Courts in the proper perspective and that the impugned judgments are contrary to the material available on record. The trial Court and the first appellate Court having ignored these material aspects leading to serious miscarriage of justice to the plaintiffs would have to be rectified by this Court.

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In view of the above discussion, the substantial questions of law framed by this Court would certainly enure to the benefit of the plaintiffs and answered in favour of the plaintiffs as under:

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(i) The 1^st substantial question of law is answered in favour of plaintiffs holding that the Courts below are not justified in dismissing the suit of the plaintiffs for the

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relief of Permanent Injunction in toto , by ignoring the admission of fact by the defendants in paragraph-6 of their written statement with regard to the plaintiffs being in possession of 1 acre 30 guntas in Sy.No.28 of Nagathihalli village, Kasaba hobli, Arasikere taluk.

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(ii) The 2^nd substantial question of law is also answered in favour of plaintiffs holding that the Courts below are not justified in dismissing the suit of the plaintiffs despite the application for amendment - I.A. No.12 filed by the plaintiffs restricting their claim to an extent of only 1 acre 30 guntas out of 2 acres in the suit schedule property. Accordingly, the suit is liable to decreed in part insofar as 1 acre 30 guntas out 2 acres of suit schedule property.

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Accordingly, I proceed to pass the following:

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O R D E R

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(i) The Regular Second Appeal is allowed in part.

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(ii) The impugned Judgment and Decree dated 27^th October 2010 passed by the learned

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Senior Civil Judge & JMFC, Arasikere in R.A. No.90/2007 as well as the Judgment & Decree dated 6^th September 2007 passed by the learned Prl. Civil Judge (Jr.Dn.), Arasikere, are hereby set aside .

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(iii) Consequently, the suit filed by the plaintiffs is partly decreed. The respondents/defendants are hereby permanently restrained from removing the fence or encroaching into 1 acre 30 guntas out of 2 acres of the suit schedule property, except the 10 guntas of Kharab land which is used by the villagers as Public road.

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Sd/JUDGE

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GSS/-

Sri Basavaraju v. Sri Jagadish

Case brief

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Sri Basavaraju v. Sri Jagadish

Case brief

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