Appellant sought permanent injunction against revenue authorities alleged to be damaging his land for a pathway. Court found land not encroached upon as work was done in adjacent drain at appellant's instance. Appeal dismissed.
Appeal dismissed; no substantial question of law arises.
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NC: 2024:KHC:12059 RSA No. 1276 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1276 OF 2020 (INJ)
BETWEEN:
SRI. ABDUL REHAMAN @ ALTHAF, S/O. LATE SHAIK AHMED SAB, AGED ABOUT 65 YEARS, R/AT BILWADERA KOPPA VILLAGE, AYNOOR HOBLI, SHIVAMOGGA TALUK - 577 401.
…APPELLANT
(BY SRI. RAMACHANDRA HALINATHOTA, ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
…RESPONDENTS
(BY SRI. MILIND DARGE, AGA)
THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 01.07.2020 PASSED IN RA.NO.49/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.03.2019 PASSED IN OS.No.336/2017 ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff aggrieved by the judgment and decree dated 01.03.2019 passed in O.S.No.336/2017 on the file of the IV Additional Civil Judge and JMFC, Shivamogga (hereinafter referred to as 'Trial Court' for short) which is confirmed by the judgment and order dated 01.07.2020 in R.A.No.49/2019 on the file of the I Addl. Senior Civil Judge and CJM, Shivamogga (hereinafter referred to as 'First Appellate Court' for short).
NC: 2024:KHC:12059 RSA No. 1276 of 2020
that he is the absolute owner and possession and enjoyment of the agricultural land bearing Survey Nos.32/3 and 33/1 which were gifted to him by his father in the year 1993.
Sirigere and PDO Village Panchayath, Sirigere, Revenue Surveyor visited the land of the plaintiff, without any prior notice and started surveying the same, on questioning about the same it was responded that the survey was being conducting upon the directions of the Deputy Commissioner and Tahsildar of the Shivamogga, for formation of new pathway. It is further alleged the revenue officers had damaged the land by digging pits there on, without initiating any acquisition proceedings. That he made an application before the Deputy Commissioner. However without any due process of law, the respondents are making preparation for forming the pathway in the land using men and machineries with police help constraining him to file the above suit.
NC: 2024:KHC:12059 RSA No. 1276 of 2020
though appeared before the Court did not file written statement.
consideration;
2. Whether the plaintiff prove that, the alleged interference by the defendants over the suit schedule property?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What decree or order?"
in favour of the plaintiff, it has dismissed the suit only for
the reason of plaintiff not mentioning measurement of the property in the schedule to the plaint. Being aggrieved by the same, plaintiff preferred an appeal before the First
Appellate Court, which on consideration of the grounds
framed the following points for its consideration;
2. Whether the impugned judgment and decree passed by the trial court in O.S.No.336/2017 needs interference by this court?
3. What order?" .
and held same in the negative confirming the reasoning
arrived at by Trial Court. Being aggrieved by the same present appeal.
grounds urged in the memorandum submitted that when there is no dispute with regard to title and possession of the property and when both the Trial Court and First Appellate Court have held in the affirmative the points with regard right, title interest and possession of the property, it was not proper and justified on the part of the Trial Court and First Appellate Court to have declined the
NC: 2024:KHC:12059 RSA No. 1276 of 2020
relief of injunction as sought for. He further submits that the plaintiff had established interference by the defendants, which is the only sole consideration required for the purpose of grant of injunction. Thus, he submits that substantial question of law would arise for consideration in the matter to be answered in favour of plaintiff.
Bilwaderakoppa Village, Ayanoor Hobli, Shivamogga Taluk. He however, submitted that the Government has
undertaken activities of repairing the Kere-kodi Kaluve (rain water drain) which is abutting to Survey No.32/3 and said kaluve is not encroaching into the land in survey No.32/3 in any manner.
Government has not undertaken any work for improving the kaluve on land belonging to the plaintiff. He submits that mahazar report submitted along with memo would also confirm the said fact as deposed in the affidavit. Referring to village map produced at documents No.3, he submits that the kaluve work which is undertaken is shown and marked as 'EA' which is adjacent to the land Survey Nos. 32/3, 31/3 and 30/3. Hence learned AGA submits that since there is no interference being caused into the possession and enjoyment of the property of the plaintiff, there is no question of granting injunction.
herein moved this Court under Article 226 seeking mandamus against the authorities to carryout the work and on the other hand he is complaining of interference by filing the suit as above. Hence, seeks for dismissal of the appeal.
the respondents-authorities pursuant to the order dated 17.06.2021 passed in Writ Appeal No. 787/2018 dated
17.06.2021. The affidavit dated 21.03.2024 filed on this day by the Tahsildar along with documents enclosed therewith namely, mahazar and photographs reveal that the work being carried in the already existing kaluve adjacent to the property of the plaintiff, that too, at the instance of the plaintiff as noted above. Further in the affidavit dated 21.03.2024, it is stated that no portion of
the property of the plaintiff used in any manner by the defendants for the work of kaluve. Plaintiff therefore cannot be heard to say that the respondents are interfering in his possession and enjoyment of suit schedule property.
In that view of the matter, no substantial question of law would arise for consideration. Appeal is dismissed accordingly.
Sd/JUDGE
CR
List No.: 1 Sl No.: 17
2 issues framed by the court
Whether the appellant is entitled to injunction against respondents-authorities alleged to be interfering with his possession of agricultural land?
Whether the agricultural land in question is being interfered with by the respondents for construction of a water channel?
Sri. Abdul Rehaman @ Althaf
The Tahsildar, Shivamogga Taluk
Deputy Commissioner, Shivamogga District
Chief Secretary, State of Karnataka
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
