Allowed

Kempegowda v. S Kiran

Karnataka HC13 Aug 2024RSA/1172/2018

Case brief

AI extract

What is this about?

This appeal challenged a First Appellate order granting declaration but refusing possession. The High Court held that since title was established and the issue was admitted, possession must follow per Nazeer Mohammad case, setting aside the lower order regarding possession relief.

What did the court decide?

Judgment and decree dated 01.03.2018 set aside; suit of the plaintiff for possession and permanent injunction decree.

Kempegowda Vs S Kiran — Partition | Karnataka HC (2024)

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NC: 2024:KHC:32707 RSA No. 1172 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH

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REGULAR SECOND APPEAL NO.1172 OF 2018 (DEC)

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BETWEEN:

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KEMPEGOWDA S/O. KENCHEGOWDA, AGED ABOUT 68 YEARS, AGRICULTURIST, R/AT. SRINIVASAPURA VILLAGE, CHIKKAMAGALURU TALUK AND DISTRICT, NOW R/AT. PANDURGANA COLONY, SAKARAYAPATNA, KADUR TALUK, CHIKKAMAGLURU TALUK AND DISTRICT - 577548.

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…APPELLANT

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(BY SRI. SHARATH P.H., ADVOCATE FOR SRI. SACHIN B S.,ADVOCATE)

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AND:

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Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka

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S. KIRAN S/O. LATE SHIVANANJAPPA, AGED ABOUT 45 YEARS

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SMT. K.R. ASHWINI W/O. S. KIRAN, AGED ABOUT 43 YEARS

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BOTH RESPONDENTS ARE AGRICULTURIST, R/AT. SRINIVASAPURA VILLAGE, CHIKKAMAGALUR TALUK, NOW R/AT. NO.1213, 11^TH 'B' CROSS 2^ND STAGE, WEST OF CHORD ROAD,

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NC: 2024:KHC:32707 RSA No. 1172 of 2018

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MAHALAKSHMIPURA, BANGALURU - 560 086.

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…RESPONDENTS

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(V/O DATED 13.06.2024 SERVICE OF NOTICE TO R1 AND R2 IS HELD SUFFICIENT)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGEMENT AND DECREE DTD 01.03.2018 PASSED IN R.A.NO. 67 OF 2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 01.06.2016 PASSED IN O.S.NO.282 OF 2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., CHIKKAMAGALURU.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is filed by the plaintiff, challenging the judgment and decree dated 01.03.2018 passed in RA No.67 of 2016 on the file of the I Additional Senior Civil Judge, Chikkmagaluru, allowing the appeal in part in respect of the relief of the declaration and setting aside the judgment and decree dated 01.06.2016 passed in OS No.282 of 2010 on

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3 - NC: 2024:KHC:32707 RSA No. 1172 of 2018

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the file of the Principal Civil Judge at Chikkamagalur, dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiff is the owner of suit 'A' schedule property bearing Sy No.6/3, measuring 02 acres and plaint schedule 'B' property is part and parcel of 'A' schedule property, situate at Srinivasapura village, Chikkamagaluru Taluk. It is the case of the plaintiff that, the schedule property had fallen to the share of the plaintiff as per registered Partition Deed dated 08.11.2004 and thereafter, the land was phoded and new survey number was given as Sy.No.6/3. It is further stated in the plaint that, the plaintiff was in possession of the property to an extent of two acres, however, the defendants have illegally encroached 13 guntas of the land, described as per plaint 'B' schedule property, wherein the plaintiff had planted arecanut and as such, the plaintiff has filed suit in OS No.282 of 2010,

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seeking relief of declaration with consequential relief of possession and permanent injunction.

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After service of summons, defendants entered appearance and have filed detailed written statement contending that the defendants have nothing to do with the land bearing Sy No.6/3, as claimed by the plaintiff. The defendants have purchased the 3 acres, 10 gutnas of land in Sy No.8/P1 and Sy.No.7/P3 during the year 1998-1999 and land bearing Sy No.7/P2 on 02.06.2003 and accordingly, defendants contended that there is no encroachment of land of the plaintiff. Hence, sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated the issues for its consideration.

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In order to establish their case, plaintiff has examined himself as PW1 and other two witnesses as PW2 and PW3 and got marked 09 documents as Exs.P1 to P9. On the other hand, defendants examined two witnesses as DW1 and DW2 and got marked 05 documents as Exs.D1 to D5.

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The trial Court, after considering the material on

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record, by its judgment and decree dated 01.06.2016 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.67 of 2016 on the file of First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court, after re-appreciating the facts on record, by its judgment and decree dated 01.03.2018 allowed the appeal in part holding that, the plaintiff is the owner of the schedule property, however, rejected the claim in respect of the possession, consequential relief of permanent injunction and mesne profits and thereby, confirmed the judgment and decree, partly, passed by the trial Court in OS No.282 of 2010.

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Being aggrieved by the judgment and decree passed by the Courts below the plaintiff/appellant has preferred this Regular Second Appeal under Section 100 of CPC.

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NC: 2024:KHC:32707 RSA No. 1172 of 2018

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This court vide order dated 12.07.2024 has

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framed the following substantial question of law for its consideration:

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(1) Whether the First Appellate Court committed an error in declining to grant the relief of possession only on the ground that Commissioner has not been examined and Commissioner report is not a conclusive proof ?

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I have heard Sri. Sharath P.H., learned counsel for the appellant and perused the records. Respondents are served and remained absent.

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Sri. Sharath P.H., learned counsel for the appellant vehemently contended that, as the First Appellate Court has granted the relief of declaration in respect of the suit schedule property and as such, ought to have granted the consequential relief of possession and permanent injunction, restraining the defendants from interfering with the suit schedule property. He further contended that, though the First Appellate Court has rightly comes to the conclusion with regard to granting of relief of declaration,

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however, declined to grant the relief of possession and permanent injunction relying upon the report of the Commissioner, which is not a conclusive proof and therefore, sought for interference of this court.

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Having heard the learned counsel appearing for the appellant, I have carefully examined the finding recorded by the both the courts below. It is the case of the plaintiff that, the land bearing Sy No.6/3, measuring 2 acres of land situate at Srinivasapura village, Chickmagaluru Taluk was allotted to the share of the plaintiff as per registered Partition Deed dated 08.11.2004. and thereafter, the revenue records were mutated in favour of the plaintiff. It is also not in dispute that the land has been phoded. The grievance of the plaintiff is that, the defendants have encroached 13 guntas of land belonging to the plaintiff, which has been described as 'B' schedule property and accordingly, sought for the relief in the suit. Perusal of the written statement filed by the defendants would indicate that, they have nothing to do with the land bearing Sy No.6/3 of Srinivasapura village, which is belong to the

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plaintiff. ADLR Chickmagaluru, was appointed as Court Commissioner at the instance of application filed by the plaintiff. The Court commissioner, has filed report before the Trial Court and either of the parties have not filed objections to the report of the Commissioner. The report of the Court Commissioner would indicate that, there is no encroachment by the defendants. In this regard, the First Appellate Court, after re-appreciating the material on record, set aside the finding recorded by the Trial Court on Issue Nos.1 and 2 and declared that, the plaintiff is the absolute owner of the plaint schedule property and the said finding recorded by the First Appellate Court is based on the Partition Deed dated 08.11.2004 (Ex.P8) is just and proper. However, the First Appellate Court has committed an error by not granting the relief of possession and permanent injunction based on the report of Court Commissioner. In this regard, it is relevant to cite the declaration of the law made by the Hon'ble Supreme Court in the case of Nazeer Mohammad vs. J.Kamala and

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others reported in AIR 2020 SC 4321 , wherein, the Hon'ble Supreme Court has held that, possession follows

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title. In a suit where declaratory relief is granted, in respect of the suit schedule property, and the said aspect has been admitted by the defendants in the written statement as they are nothing to do with the suit schedule property and as such, the possession must follow title, as the presumption is that, possession must be deemed to follow the title. However, in the present case, the description of the property of the plaintiff and the land purchased by the defendants are coming under different survey numbers and therefore, the plaintiff is entitled for the possession in respect of the entire 02 acres of land in Sy No. 6/3 of Srinivasapura village, Chickmagaluru Taluk. Therefore, the finding recorded by the First Appellate Court with regard to rejecting the relief of possession and permanent injunction is incorrect and to that extent, interference is made in this appeal. Hence, substantial question of law framed above favors the plaintiff and therefore, I proceed to pass the following:

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10 -

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NC: 2024:KHC:32707 RSA No. 1172 of 2018

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ORDER

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i) The Regular Second Appeal is allowed ;

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ii) Judgment and decree dated 01.03.2019 in RA No.67 of 2016 on the file of I Additional Senior Civil Judge, Chikkamagalur is set aside in respect of the issue Nos.3 to 10 in OS No.282 of 2010 on the file of Principal Civil Judge at Chikkamagaluru and confirmed in respect of the granting relief of declaration.

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iii) Judgment and decree in OS No.282 of 2010 dated 01.06.2016 on the file of Principal Civil Judge at Chikmagaluru is set aside and suit of the plaintiff is decreed.

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SD/(E.S.INDIRESH) JUDGE

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SB List No.: 1 Sl No.: 45

Kempegowda v. S Kiran

Case brief

What is this about?

What did the court decide?

Kempegowda v. S Kiran

Case brief

What is this about?

What did the court decide?

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