Allowed

Sri.K. Manjunatha Kharvi v. Sri N Santhosh Kumar Shetty

Karnataka HC23 Oct 2024RSA/1462/2023

Case brief

AI extract

What is this about?

Second appeal over a suit for permanent injunction regarding possession of granted land supported by a Saguvali Chit. The High Court found the First Appellate Court failed to consider evidence and comply with Order XLI Rule 31 CPC, allowed the appeal, and remanded the matter for reconsideration without adjudicating on merits.

What did the court decide?

Appeal allowed; impugned judgments set aside/restored as ordered; First Appellate Court directed to reconsider all evidence and pass appropriate judgment; contentions kept open; records transmitted.

Sri.K. Manjunatha Kharvi Vs Sri N Santhosh Kumar Shetty — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:42852 RSA No. 1462 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1462 OF 2023 (INJ)

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BETWEEN:

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SRI.K. MANJUNATHA KHARVI SINCE DECEASED BY HIS LRS

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SMT. SHARADA KHARVI W/O LATE MANJUNATHA KHARVI, AGED ABOUT 80 YEARS, R/AT, KORGI VILLAGE, KORGI POST, KUNDAPURA TALUK, KUNDAPURA KASABA, UDUPI DISTRICT - 576 231.

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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SRI. SHIVAPRASAD KHARVI S/O. LATE MANJUNATHA KHARVI, AGED ABOUT 50 YEARS, R/AT KORGI VILLAGE, KORGI POST, KUNDAPURA TLAUK, KUNDAPURA KASABA, UDUPI DISTRICT - 576 231.

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SRI. NAMRUTHA KHARVI D/O. LATE MANJUNATHA KHARVI, AGED ABOUT 48 YEARS, R/AT. KORGI VILLAGE, KORGI POST, KUNDAPURA TALUK, KUNDAPURA KASABA, UDUPI DISTRICT - 576 231.

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SRI. SUKUPAL KHARVI S/O. LATE MANJUNATHA KHARVI,

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AGED ABOUT 46 YEARS, R/AT. KORGI VILLAGE, KORGI POST, KUNDAPURA TALUK, KUNDAPURA KASABA, UDUPI DISTRICT - 576 231.

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…APPELLANTS

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(BY SRI. NAGENDRA KUMAR K., ADVOCATE)

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AND:

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SRI N SANTHOSH KUMAR SHETTY S/O. LATE BHUJANGA SHETTY, AGED ABOUT 58 YEARS, R/AT. NOOJI, KORGI VILLAGE, KORGI POST, KUNDAPURA TALUK, UDUPI DISTRICT - 576 231.

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SMT. PREMAVATHI SHEDTHY D/O. LATE BHUJANGA SHETTY, AGED ABOUT 67 YEARS, R/AT. NOOJI, KORGI VILLAGE, KORGI POST, KUNDAPURA TALUK, UDUPI DISTRICT - 576 231.

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…RESPONDENTS

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(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.04.2023 PASSED IN RA.NO. 39/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE ORDER DATED 22.09.2018 PASSED IN O.S.NO.117/2005 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, KUNDAPURA.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 17.04.2023 passed in R.A.No.39/2018 by the learned Senior Civil Judge at Kundapura and the judgment and decree dated 22.09.2018, passed in O.S.No.117/2005 by the learned II Additional Civil Judge and Judicial Magistrate First Class at Kundapura.

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For convenience, parties are referred to as per their ranking before the trial Court. The appellants are the legal representatives of the deceased plaintiff, respondent No.1 is the legal representative of deceased defendant No.1, and respondent No.2 is defendant No.3. The plaintiff filed a suit against the defendants for permanent injunction.

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The brief facts leading rise to the filing of this appeal are as follows:

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It is the case of the plaintiff, the plaintiff is the absolute owner of the suit schedule property by the

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Darkast order dated 30.10.1980. The revenue authority delivered the possession of the suit schedule property in favour of the plaintiff. It is contended that based on the Darkast order, the name of the plaintiff was entered in the revenue records. It is contended that the plaintiff has grown mango, etc., and has constructed a house on the suit property. It is contended that the defendants residing two furlongs from the suit property made hectic efforts to possess the suit property, and on the first week of April 2005, the defendants started to pluck cashew nuts from the suit property. The plaintiff requested the defendants not to interfere, but the defendants refused to interfere. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction.

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The defendants filed the written statement contending that the lands bearing Sy.Nos.101/1, 239/1 and 239/2 are wastelands that initially belonged to the Government, and the defendants encroached on those properties long back. Defendant No.3 was granted land

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bearing Sy.No.101 measuring 2.80 acres. It is contended that the defendants have other properties. In collusion with officials, the plaintiff was granted other properties in his favour. The plaintiff has no right, title or interest over the suit schedule property. Hence, on these grounds, he sought the dismissal of the suit.

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The Trial Court, based on the above said

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pleadings, framed the following issues:

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1) Whether the plaintiff proves his possession over the suit schedule property as on the date of suit?

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2) Whether the plaintiff proves interference in his possession?

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3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

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4) What order or decree?

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To prove the plaintiff's case, the plaintiff

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examined himself as PW-1 and marked one document as Ex.P1. In rebuttal, the daughter of defendant No.1 was examined as DW-1 and no documents were produced on

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behalf of the defendants. The trial Court after assessing

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the oral and documentary evidence of the parties, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order and decreed the suit of the plaintiff with cost and the defendants, their people, agents, any person claiming under them are hereby permanently restrained from trespassing into the said 'A' schedule property and from removing the usufructs and from cutting tree growth and from cause any damages to the suit 'A' schedule property and from interfering with the peaceful possession of the suit 'A' schedule property by the plaintiff.

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The defendants aggrieved by the judgment and decree passed in O.S.No.117/2005 preferred an appeal in R.A.No.39/2018 on the file of learned Senior Civil Judge at Kundapura. The First Appellate Court, framed the following points for consideration:

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1) Whether the trial Court has committed error in decreeing the suit and impugned judgment of trial Court is required set aside or call for any interference?

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2) If so what order?

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The First Appellate Court, on re-assessing the oral

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and documentary evidence, answered point No.1 in the affirmative, point No.2 as per the final order and consequently allowed the appeal filed by the defendants vide judgment dated 17.04.2023 and set aside the judgment and decree passed by the trial Court in O.S.No.117/2005. The legal representatives of the plaintiff, aggrieved by the judgment and decree passed in R.A.No.39/2018, have filed this second appeal.

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Heard learned counsel for the parties.

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Learned counsel for the plaintiff submits that

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the plaintiff has produced Ex.P1, which discloses that the said land was granted in favour of the plaintiff and the plaintiff was put in possession of the suit schedule property by the Government. He submits that the First Appellate Court has not properly considered Ex.P1, and he also submits that the First Appellate Court, being the final fact-finding Court, is required to reappreciate the entire

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evidence. He also submits that the First Appellate Court has not considered the evidence of DW.1, and the judgment and decree passed by the First Appellate Court is in violation under Order XLI Rule 31 of CPC. He also submits that the First Appellate Court must answer the issues framed by the trial Court. He submits that the First Appellate Court has not properly framed the points for consideration. Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the defendants supports the impugned order and submits that the plaintiff is not in possession of the suit schedule property. He submits that, on the contrary, the defendants are in possession of the suit schedule property. He submits that the First Appellate Court was justified in recording the finding that the plaintiff is not in possession of the suit schedule property. He also submits that in view of the admission made by the plaintiff, the First Appellate Court was justified in passing the impugned judgment. He

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submits that the impugned judgment passed by the First Appellate Court is proper and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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On 02.02.2024, this court admitted the appeal

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on the following substantial question of law :

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"Whether the first Appellate Court is justified in reversing the judgment and decree passed by the trial Court merely for the reason of the plaintiff not producing the documents regarding his possession despite there being an admission by the defendant in the written statement that the suit schedule property was granted in favour of the plaintiff in terms of the order as per Ex.P1?"

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Substantial questions of law : The plaintiff

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filed a suit for permanent injunction contending that the suit land was granted in favour of the plaintiff and the plaintiff has produced the document i.e., Ex.P1 is the certified copy of Saguvali Chit and the government has put

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the plaintiff in possession of the suit schedule property. In rebuttal, the defendant's daughter was examined as DW.1, and the defendants did not produce any records. The trial Court, based on Ex.P1, has recorded a finding that the plaintiff is in possession of the suit schedule property and granted a decree for permanent injunction. The defendants, aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.39/2018, and I perused the judgment passed by the First Appellate Court. The First Appellate Court, being the final factfinding Court, is required to reappreciate the entire evidence on record and to answer the reissue framed by the trial Court. Admittedly, in the impugned judgment, the First Appellate Court has not considered the evidence of DW.1 and the First Appellate Court, merely based on the alleged admission by the plaintiff, has passed the impugned judgment. Further, the First Appellate Court has not correctly framed the points for consideration. Hence, the impugned judgment passed by the trial Court does not conform with Order XLI Rule 31 of C.P.C. Hence, the

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matter requires reconsideration by the First Appellate Court.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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1. The appeal is allowed .

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1. The impugned judgment dated 22.09.2018, passed in O.S.No.117/2005 by the learned II Additional Civil Judge and Judicial Magistrate First Class at Kundapura, is set aside.

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1. The judgment and decree dated 17.04.2023 passed in R.A.No.39/2018 by the learned Senior Civil Judge at Kundapura is restored to its original position.

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1. The first Appellate Court is directed to consider all the evidence placed on record and pass an appropriate judgment in accordance with the law.

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1. This Court has not made any adjudicated on the merits in issue.

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1. All the contentions of the parties are kept open.

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1. The parties are directed to appear before the First Appellate Court on 25.11.2024.

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1. The office is directed to transmit the records to the First Appellate Court.

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In view of the disposal of the * appeal , pending IAs.,

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if any, do not survive for consideration and are accordingly disposed of.

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ssb

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Corrected vide chamber order dated 20.11.2024.

Sri.K. Manjunatha Kharvi v. Sri N Santhosh Kumar Shetty

Case brief

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What did the court decide?

Sri.K. Manjunatha Kharvi v. Sri N Santhosh Kumar Shetty

Case brief

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