Disposed

Umabai W/O Ramachandra Naik v. Shivaram S/O Jatti Naik

Karnataka HC12 Jul 2024RSA/100357/2017

Case brief

AI extract

What is this about?

This is a regularly disposed second appeal under Section 100 of the CPC challenging the dismissal of a suit for possession and injunction. The High Court held that the appellant failed to prove possession of the suit property below and that no substantial question of law arose. The appeal was dismissed at the stage of admission as being devoid of merit.

What did the court decide?

The second appeal was dismissed at the stage of admission as being devoid of merit.

Umabai W/O Ramachandra Naik Vs Shivaram S/O Jatti Naik — Property and Title | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 12^TH DAY OF JULY, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE C.M. POONACHA

¶6

REGULAR SECOND APPEAL NO. 100357 OF 2017 (INJ-)

¶7

BETWEEN:

¶8

UMABAI W/O RAMACHANDRA NAIK AGE: 56 YEARS, OCC: H/W, R/O: NARAYANGURUNAGAR IN CHIPIGI VILLAGE, TAL: SIRSI-441214 DIST: UTTAR KANNADA.

¶9

…APPELLANT

¶10

(BY SRI RAMESH I. ZIRALI, ADVOCATE)

¶11

AND:

¶12

Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

¶13

SHIVARAM S/O JATTI NAIK AGE: 76 YEARS, OCC: BUISNESS, PRO. LAXMI TILES, INDUSTRIES KATGAL, IN KUMTA TALUKA-581343, DIST: UTTAR KANNADA.

¶14

(BY SRI VISHWANATH HEGDE, ADVOCATE)

¶15

…RESPONDENT

¶16

THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 07.11.2016 PASSED IN R.A.NO109/2013 ON THE FIEL OF SENIOR CIVIL JUDGE, SIRSI CONFIRMING THE JUDGMENT AND DECREE DATED 11.10.2013 PASSED IN O.S.NO.75/2006 ON THE FILE OF PRL. CIVIL JUDGE AT SIRSI BY ALLOWING THE APPEAL.

¶17

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

¶18

¶19

NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶20

JUDGMENT

¶21

The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by the plaintiff challenging the judgment and decree dated 07.11.2016 passed in R.A.No.109/2013 by the Senior Civil Judge, Sirsi² and the judgment and decree dated 11.10.2013 passed in O.S.No.75/2006 by the Principal Civil Judge, Sirsi³ whereunder the suit for injunction has been dismissed with cost by the Trial Court which has been affirmed by the First Appellate Court.

¶22

The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

¶23

The relevant facts necessary for consideration

¶24

of the present appeal are that the plaintiff filed a suit for injunction contending, inter alia, that in the year 1992 the plaintiff encroached over the plot No.45 in Sy.No.53 of

¶25

1 Hereinafter referred to as the ‘CPC’

¶26

2 Hereinafter referred to as the ‘First Appellate Court’

¶27

3 Hereinafter referred to as the ‘Trial Court’

¶28

3 - NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶29

Chipagi village⁴ and constructed a house. That, earlier the house was bearing Chipagi Gram Panchayat No.302. That, since the area is coming under Isloor Gram Panchayt, the house number is 85. That the plaintiff filed an application to the concerned authorities for sanction of the encroached property. That the revenue officials have visited the spot and conducted the mahazar. That the plaintiff is paying tax to the Panchayat regarding her house and she is in possession and enjoyment of the house. That the plaintiff filed an application before the Tahasildar, Sirsi for grant of the said property. That the defendant colluding with the revenue officials, is claiming that the suit property is granted to him in the year 1971. However, the revenue officials have not put the defendant in possession of the suit property at any time. That the defendant, by creating some false documents regarding the suit property is trying to dispossess the plaintiff from the suit property. Hence, the plaintiff filed the suit for injunction.

¶30

4 Hereinafter referred to as ‘suit property’

¶31

4 - NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶32

4. The defendant entered appearance through his

¶33

counsel and filed a written statement denying the case of the plaintiff. It is further contended that the Government has formed sites for construction of a residential house at Sy.No.53 of Chipagi village. That the defendant filed an application for grant of site and accordingly site No.45 has

¶34

been granted which has been sanctioned to the defendant by the Assistant Commissioner, Sirsi by his order dated 30.09.1971. That after the grant of the said plot, possession has been given and the defendant has paid the grant amount to the Government. That on 09.08.2002, the defendant has executed a Kabulayath. That as per the order of the Assistant Commissioner, from the date of grant the defendant has become owner of the suit property and he is in possession of the same. That the plaintiff is the wife of the brother of the defendant. That the plaintiff and her husband are harassing the defendant.

¶35

5 - NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶36

It is further contended that the plaintiff and her

¶37

husband are residing at Plot No.308 in front of Mahasati Temple on Yellapur Road, Sirsi. That the defendant has constructed a house in the suit property. That the application filed by the plaintiff before the Tahasildar has been rejected after investigation, which has been affirmed by the Assistant Commissioner and the Deputy Commissioner. Hence, the defendant sought for dismissal of the suit.

¶38

The Trial Court upon an appreciation of the oral and documentary evidence on record, has recorded a finding that the PW.1 does not even know the suit property and the suit is not identified by the plaintiff. Further, a finding is recorded that the brother of the defendant has filed a suit through his wife and the Trial Court has recorded a finding disbelieving the case of the plaintiff.

¶39

Being aggrieved, the plaintiff preferred R.A.No.109/2013. The defendant entered appearance

¶40

6 - NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶41

before the First Appellate Court and contested the same. The First Appellate Court upon a re-appreciation of the oral and documentary evidence on record, has recorded a finding that the plaintiff has not proved her possession of the suit property and hence the question of granting the relief of possession does not arise. Hence, the First Appellate Court has dismissed the appeal filed by the plaintiff and affirmed the judgment and decree passed by the Trial Court.

¶42

Learned counsel for the appellant, Sri.Ramesh I Zirali and learned counsel for the respondent, Sri.Vishwanath Hegde submit that they have information that the parties have amicably settled the dispute amongst themselves.

¶43

Notwithstanding the submission made by both the learned counsels, it is forthcoming from the concurrent findings recorded by both the Courts that the plaintiff has failed to prove her possession over the suit

¶44

7 - NC: 2024:KHC-D:9791 RSA No. 100357 of 2017

¶45

property and hence both the Courts have rightly

¶46

dismissed the suit for injunction.

¶47

The appellant has failed in demonstrating that

¶48

any substantial question of law arises for consideration in the present appeal.

¶49

Hence, the present appeal is dismissed at the

¶50

stage of admission itself as being devoid of merit.

¶51

Sd/JUDGE

¶52

Sh CT:GSM List No.: 1 Sl No.: 29

Umabai W/O Ramachandra Naik v. Shivaram S/O Jatti Naik

Case brief

What is this about?

What did the court decide?

Umabai W/O Ramachandra Naik v. Shivaram S/O Jatti Naik

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri Nandu S/O Narayan Naik Vs Sri Gajanana

Bhagyodaya Education Society Vs Smt. Mallawwa W/O Sangappa Kalatippi

Girish S/O Premanand Jambavalikar Vs Pandurang Bhikaro Sunkeri

Nama Sunil Vs Mahalasa Narayanji Jewellers

Nagavva W/O Nagappa Marigoudar Vs Chandrappa S/O Mallappa Banakar

Shri. Ramu Yallappa Kunnarkar Vs Smt. Mallavva W/O. Mallappa Kurubar