Regular second appeal challenging a decree granting permanent injunction. Held that plaintiffs proved ownership via partition deed and first appellate court correctly affirmed trial court's finding of defendants' encroachment attempt.
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NC: 2023:KHC:39884 RSA No. 994 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 994 OF 2014 (DEC/INJ)
BETWEEN:
…APPELLANTS
(BY SRI. SHARADAMBA A R., ADVOCATE)
Digitally signed by SUNITHA GANGARAJU
Location: High Court of Karnataka
AND:
M.S. KENCHEGOWDA S/O LATE N.SHESHEGOWDA, AGED ABOUT 58 YEARS, R/AT HALE MUDIGERE, MUDIGERE. CHIKMAGALUR DIST-577 132.
…RESPONDENT
(BY SRI. S.RAJENDRA., ADVOCATE)
THIS RSA FILED U/SEC.100 OF CPC AGAINST THE JUDGMENT & DECREE DTD 22.01.2014 PASSED IN R.A.NO.24/2012 ON THE FILE OF III-PRL. DISTRICT JUDGE,
CHIKMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 10.01.2013 PASSED IN OS.NO.06/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHIKMAGALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff filed a suit for permanent injunction restraining the defendants from trespassing, encroaching any portion, and from interfering with the peaceful possession and
enjoyment of the suit schedule property. It is the case of the plaintiff that the defendant No.1 is the elder brother of the plaintiff and defendant No.2 is the son of defendant No.1. It is contended that the plaintiff is the absolute owner in possession and enjoyment of the suit property. It is further contended that 6 Guntas of land in Sy.No.221/1 of Mudigere Village, i.e., the suit schedule property fell into the share of plaintiff under a registered partition deed dated 07.04.1983. On the strength of said registered partition deed, Khatha was changed in the name of the plaintiff. Plaintiff, after obtaining the sanctioned plan from the competent authority, constructed a building on the suit schedule property and let out the same to different persons. Defendant No.1 purchased the property from one Giddegowda which is on the Eastern side of the suit schedule property. The defendants without having any right, title or interest over the suit property, tried to encroach upon the suit schedule property. It is stated that on 11.10.2008 the defendants brought JCB for leveling their property and while doing so, they tried to damage the fence, drainage and building of the plaintiff. Hence, the plaintiff requested the defendants not to damage the fence, drainage and building of the plaintiff
NC: 2023:KHC:39884 RSA No. 994 of 2014
but the defendants did not give any heed to the request made by plaintiff. Thus, the plaintiff lodged a complaint before the Mudigere police. Since the Police did not take any action, plaintiff filed the suit for permanent injunction.
defendant No.1 lodged criminal complaint against the plaintiff before the Police and other authorities as plaintiff had tried to threaten the defendants. On these grounds, prayed to dismiss the suit.
framed the following issues:
examined himself as PW-1 and got marked 11 documents as Ex.P-1 to Ex.P-11. Defendants in order to substantiate their defence, defendant No.1 got himself examined as DW-1 and examined 3 witnesses as DW-2 to 4 and got marked 18 documents as Ex.D-1 to Ex.D-18.
NC: 2023:KHC:39884 RSA No. 994 of 2014
the affirmative and issue No.4 as per the final order and consequently decreed the suit of the plaintiff with costs. The trial Court by the said judgment, restrained the defendants by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property and ordered the defendants not to trespass into the suit property and restrained them from encroaching any portion of the suit property or from committing any acts of waste and damage to the suit property.
NC: 2023:KHC:39884 RSA No. 994 of 2014
of learned counsel for the defendants.
alleging the encroachment on the Government land. In the course of cross-examination, nothing has been elicited from the mouth of this witness. Further, defendant No.1 has not denied about the execution of Ex.P-1 i.e., copy of the registered partition deed. From the perusal of Ex.P-1, the suit schedule property fell to the share of plaintiff and the name of the plaintiff is appearing in the revenue records.
and 15.05.2007, Ex.D-14 is a copy of the complaint lodged by defendant No.1 before the Mudigere Police Station, Ex.D-15 is the receipt for having sent the said complaint through the certificate of posting. Ex.D-16 is the copy of complaint filed by defendant No.1 before the Deputy Commissioner, Chikkamagaluru. Ex.D-17 is the copy of the complaint submitted by defendant No.1 to the Hon'ble Home Minister. Ex.D-18 is the Postal Receipt for having sent the complaint to the Hon'ble Home Minister.
NC: 2023:KHC:39884 RSA No. 994 of 2014
NC: 2023:KHC:39884 RSA No. 994 of 2014
of the suit schedule property. Thus, the plaintiff has proved his possession over the suit schedule property and interference by the defendants. Though the defendants pleaded in the written statement that the plaintiff has made an encroachment in the property owned by the defendants, but, the defendants have not taken any steps to remove the encroachment. Further, the defendants went on lodging a criminal case against the plaintiff and also lodging a complaint before the Deputy Commissioner and also before the Hon'ble Home Minister.
possession and enjoyment over the suit schedule property and the defendants are making attempt to trespass into the suit schedule property. This court is of the opinion that defendants were trying to encroach upon the property of the plaintiff.
ORDER
The appeal is dismissed.
The judgments and decrees passed by the courts below are hereby affirmed.
No order as to costs.
Sd/-
JUDGE
SK/SRA
3 issues framed by the court
Whether the plaintiff proved lawful possession and enjoyment of the suit schedule property?
Whether defendants were interfering with possession by attempting encroachment?
Whether the lower courts' dismissal of the appeal against the permanent injunction decree calls for interference?
M S KRISHNEGOWDA
M.K.SACHIN
M.S. KENCHEGOWDA
ASHOK S.KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
