Disposed

Sannappara Jayappa @ H Jayappa v. Sri Chandrashekarappa

Karnataka HC8 Sept 2023RSA/686/2007

Case brief

AI extract

What is this about?

In a second appeal regarding a dispute over suit schedule property and a road, the High Court of Karnataka disposed of the appeal by accepting a joint memo filed by parties. The Court found no reason to interfere with the first appellate court's decree granting permanent injunction to the plaintiff, emphasizing the subsistent peaceful possession and the constructed road's utility to the public.

What did the court decide?

The regular second appeal is disposed of in terms of the joint memo; no interference with the first appellate decree.

Sannappara Jayappa @ H Jayappa Vs Sri Chandrashekarappa — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^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.686 OF 2007 (INJ)

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BETWEEN:

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SANNAPPARA JAYAPPA @ H JAYAPPA S/O.HANUMANTAHPPA AGED ABOUT 66 YEARS AGRICULTURIST BY PROFESSION R/AT PADIGHATTE VILLAGE HOLALKERE TALUK - 577 501 CHITRADURGA DISTRICT

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…APPELLANT

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(BY SRI.B.M.SIDDAPPA.,ADVOCATE)

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AND:

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Digitally signed by B LAVANYA Location: HIGH COURT OF KARNATAKA

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SRI CHANDRASHEKARAPPA S/O.RAGHAVENDRAPPA AGED ABOUT 36 YEARS AGRICULTURIST BY PROFESSION R/AT PADIGHATTE VILLAGE HOLALKERE TALUK - 577 501 CHITRADURGA DISTRICT

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SRI HANUMANTHAPPA S/O THIMMAPPA AGED ABOUT 46 YEARS AGRICULTURIST BY PROFESSION R/AT PADIGHATTE VILLAGE HOLALKERE TALUK - 577 501 CHITRADURGA DISTRICT

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…RESPONDENTS

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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(BY SRI.MALLIKARJUNA D.K & SRI NAYEEM PASHA, ADVOCATES FOR R-1; R-2 SERVED AND UNREPRESENTED)

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THIS REGULAR SECOND APPEAL IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.1.2007 PASSED IN R.A.NO.20/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), HOLALKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 17.4.2004 PASSED IN O.S.NO. 145/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), HOLALKERE, WITH A PRAYER TO CONFIRM THE JUDGMENT AND DECREE OF THE TRIAL COURT.

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

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JUDGMENT

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Heard learned counsel - Sri B.M. Siddappa for the appellant/defendant No.1 and learned counsel - Sri Nayeem Pasha for Respondent No.1/plaintiff .

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This second appeal is preferred by the appellant/defendant No.1 being aggrieved by the judgment & decree passed by the learned Civil Judge (Senior Division), Holalkere in R.A. No.20/2004 dated 23.1.2007 reversing the judgment & decree passed by the Civil Judge, Holalkere in O.S. No.145/2001 dated 17.4.2004.

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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Parties to this appeal shall be referred to as per their ranking before the trial Court.

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Plaintiff filed the suit for Permanent Injunction against the defendants to restrain them, their agents, servants and anybody on their behalf, from interfering with his peaceful possession and enjoyment of the suit schedule property and to grant other consequential reliefs.

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It is the case of the plaintiff that he is the owner in possession and enjoyment of the suit schedule property and that he secured the suit schedule property under the 'Indira Avasa Scheme' of Government of Karnataka vide Hakku Patra No.(95)059906 and the possession was delivered to him on 12.12.1997 and he is paying kandayam and mutation also has been effected in his name. It is further the case of the plaintiff that he obtained a licence to put up sheet house in an area of 10 feet x 24 feet, on the western side of the suit schedule property (portion marked as 'ABCD' is the suit schedule property and the portion marked as 'EFGH' is the sheet house in the plaint rough sketch). It is also case of the plaintiff that from 1998, plaintiff is residing in the suit schedule

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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property by erecting sheet house. The defendants who have no manner of right, title, interest or possession over the same were trying to interfere and remove the sheet house. Hence left with no other alternative, the plaintiff filed the suit for Permanent Injunction against the defendants.

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The defendants appeared before the trial Court, filed their written statement denying the contents made by the plaintiff in the plaint. It is pleaded by the defendants that the suit schedule property does not exist and the sketch provided by the plaintiff only to misguide the Court. It is the case of the 1^st defendant that he filed O.S. No.46/1998 against the father

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of plaintiff for declaration and Permanent Injunction, which came to be decreed and reached finality and the same is binding on the plaintiff. It is further case of the defendants that the suit property is road, but not vacant site and the plaintiff had obtained concocted documents of the road, but no document for vacant site. Plaintiff does not have any right, title or interest over the suit schedule property. Accordingly, the defendants prayed for dismissal of the suit.

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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On the basis of the pleadings, the trial Court framed

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the following issues for consideration:

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"1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property?

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Whether plaintiff proves interference by defendants?

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What decree or order?

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Additional Issues;-

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Whether the defendants prove that suit schedule property is a road?

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Whether the defendants are entitled for relief of mandatory injunction? "

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In order to substantiate the issues and establish his case, the plaintiff examined himself as PW.1 and one Mr. Krishnamurthy as PW.2 and got marked Ex.P1 to P5, whereas defendant No.1 examined himself as DW.1 and got marked Ex.D1 to Ex.D3.

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The trial Court, on appreciation of the entire material evidence, both oral and documentary, being not satisfied with

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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the case made out by the plaintiff dismissed the suit. However, the trial Court allowed the counter-claim of the defendants and directed the plaintiff to demolish and remove the shed constructed by him in the road, within a period of two months.

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Aggrieved by the judgment and decree passed by the trial Court, the plaintiff preferred an appeal before the first appellate Court in R.A. No.20/2004.

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The first appellate Court, after going through the material on record and on perusal of the impugned judgment of the trial Court, formulated following points for consideration in the first appeal.

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Whether the trial court is justified in dismissing the suit and allowing the claim of defendants?

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Whether the Judgment and Decree of the lower court is required to be interfered with in this appeal?

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The first appellate court on re-appreciation and reanalysation of the entire oral and documentary evidence on record, allowed the appeal of the plaintiff, set aside the

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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judgment and decree passed by the trial Court and decreed the suit of the plaintiff. Consequently, the defendants, their men, agents were restrained by way of Permanent Injunction from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff.

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Being aggrieved by the judgment & decree passed by the first appellate Court, the 1^st defendant is before this Court in the present second appeal questioning the legality and correctness of the judgment and decree passed by the first appellate Court.

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On hearing learned counsel for the parties, this Court formulated the following substantial question of law for consideration vide order dated 28.03.2007:

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"Whether the lower appellate Court was justified in decreeing the suit of the plaintiff inspite of the decree passed in O.S. No.48/98 which had become final and binding on the plaintiff ?"

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I have given my thoughtful consideration to the

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arguments advanced by the learned counsel for the parties.

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8 - NC: 2023:KHC:32625 RSA No. 686 of 2007

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It is not in dispute that the suit came to be filed for Permanent Injunction to prove that the plaintiff is in lawful possession and enjoyment of the suit schedule property. It was the contention of the defendants that there is no such suit property and there is a public road which is used by the public so also by the defendants. The trial Court dismissed the suit of the plaintiff. The first appellate Court allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff by granting Permanent Injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff.

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Though vehement contentions have been putforth by learned counsel for the parties, after arguing the matter for some time, they filed the joint memo dated 8.9.2023 alongwith the photographs, agreeing that the matter could be disposed of in terms of the joint memo. The memo and the photographs are placed on record.

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In the joint memo, it is stated that in view of the subsequent development that Gram Panchayath formed the

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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road as per the photographs annexed to the memo, the appellant and respondent agreed that the appellant would not claim any right over the property of the plaintiff and respondent/plaintiff would not obstruct the road formed by the Panchayath which is being used by public including appellant/defendant No.1. Learned counsel for the plaintiff submits that the road has been formed by the Panchayath for the use of public including the 1^st defendant and absolutely there is no obstruction whatsoever for movement of the general public including the 1^st defendant. It is the contention of the counsel for the plaintiff that the plaintiff is in peaceful possession and enjoyment of the suit schedule property - sheet house and in view of the Panchayath having formed the road, the same would enure to the benefit of the public including the 1^st defendant and the plaintiff would not interfere and obstruct the use of the road by the general public including the 1^st defendant. Therefore, learned counsel for the parties contend that the present appeal may be disposed of in view of the joint memo filed by the plaintiff and defendant No.1.

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In view of the parties to the proceedings having filed joint memo alongwith the photographs depicting the present

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10 - NC: 2023:KHC:32625 RSA No. 686 of 2007

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state of affairs of the suit schedule property alongwith the constructed road by the Panchayath which enures to the benefit of the general public including the 1^st defendant and the plaintiff showing his possession over the suit schedule property and that he would not interfere with the usage of the road by the general public including the 1^st defendant for their ingress and egress, this Court is of the considered opinion that the appeal could be disposed of in terms of the joint memo filed by both the parties. Both the learned counsels are agreeable that this appeal be disposed of in accordance with the joint memo. The first appellate court set aside the decree passed by the trial Court and decreed the suit of the plaintiff by granting injunction and restrained the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property. The joint memo clearly depicts that the appellant/1^st defendant agreed that he will not claim any right over the suit shed and that the respondent/plaintiff will not cause any obstruction to the general public including the 1^st defendant from using the road which is adjacent to the shed belonging to the plaintiff.

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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Under the circumstances, this Court is of the considered opinion that the first appellate Court has reappreciated the entire material on record, both oral and documentary and passed a reasoned judgment setting aside the judgment and decree passed by the trial Court and decreed the suit in favour of the plaintiff granting an order of injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property (i.e. sheet house) by the plaintiff. I do not find any reason to interfere with the impugned judgment and decree passed by the first appellate Court. In view of the joint memo filed today by both the parties, it is clear that the Panchayth formed a road adjacent to the sheet house of the plaintiff and clarity is also established with regard to the use of the road by the general public including the 1^st defendant. The substantial question of law is answered accordingly.

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In view of the above, the first appellate court is justified in decreeing the suit of the plaintiff and passing an order of injunction against the defendants. Accordingly, the present Regular Second Appeal is disposed of.

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NC: 2023:KHC:32625 RSA No. 686 of 2007

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The joint memo dated 8^th September 2023 alongwith the photographs filed by learned counsel for the parties shall form part of the decree.

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Sd/JUDGE

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GSS List No.: 1 Sl No.: 40

Sannappara Jayappa @ H Jayappa v. Sri Chandrashekarappa

Case brief

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What did the court decide?

Sannappara Jayappa @ H Jayappa v. Sri Chandrashekarappa

Case brief

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