Dismissed

Sri a M Prasanna v. H H Krishne Gowda

Karnataka HC13 Jun 2024RSA/1704/2018

Case brief

AI extract

What is this about?

This Regular Second Appeal challenges concurrent findings by trial and first appellate courts in a property suit involving declaration of ownership and recovery of possession from encroachments. The High Court found no error in relying on the Commissioner's report or appreciating evidence and dismissed the appeal.

What did the court decide?

Impugned judgment and decree passed by trial Court and first Appellate Court confirmed; appeal dismissed.

Sri a M Prasanna Vs H H Krishne Gowda — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:20960 RSA No. 1704 of 2018

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

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1704 OF 2018 (DEC/INJ)

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BETWEEN:

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SRI A M PRASANNA S/O LATE MANJUNATHA GOWDA, AGED 49 YEARS

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SMT M S MEENAKSHAMMA W/O LATE MANJUNATHA GOWDA, AGED 66 YEARS

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BOTH ARE RESIDENTS OF HEECHALLI ESTATE, GOWDAHALLI POST, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT – 577 132.

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…APPELLANTS

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(BY SRI. MAHESH C M, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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H H KRISHNE GOWDA S/O LATE NANJE GOWDA AGED ABOUT 61 YEARS R/AT HESGODU VILLAGE, GUTHI POST, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT – 577 132.

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…RESPONDENT (BY SRI. A MADHUSUDHANA RAO, ADVOCATE) THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.04.2018 PASSED IN RA.NO.13/2015 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, CHIKKAMAGALUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.09.2013 PASSED IN OS.NO.293/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKMAGALUR.

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

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NC: 2024:KHC:20960 RSA No. 1704 of 2018

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JUDGMENT

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Heard appellants’ counsel and also learned counsel appearing for the respondent.

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This second appeal is filed against the concurrent findings of the trial Court and the first Appellate Court passed in O.S.No.293/2004 and R.A.No.13/2015. This second appeal is filed by the defendant Nos.1 and 2 questioning the said concurrent findings.

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The factual matrix of the case of the plaintiff / respondent before the trial Court in O.S.No.293/2004 is that the plaintiff is the absolute owner of ‘A’ schedule properties and he has been in possession, occupation and cultivation of the suit schedule properties and the defendants are interfering with the possession of the plaintiff and hence, sought for the relief of declaration. During the pendency of the case, the Commissioner was appointed and the Commissioner submitted his report regarding the encroachment to the extent of 0.02 ¾ guntas and also 0.14 guntas in other survey numbers and hence, a prayer was made to amend the plaint seeking relief of

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3 - NC: 2024:KHC:20960 RSA No. 1704 of 2018

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recovery of possession in respect of ‘B’ schedule properties in respect of encroachment.

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3(i) The parties have also led their evidence i.e., plaintiff got himself examined as PW.1 and got marked 14 documents as Exhibits P1 to P14. On the other hand, defendant No.1 was examined as DW.1 and examined one more witness as DW.2 and got marked 13 documents as Exhibits D1 to D13. The Commissioner was also examined as CW.1 and the documents namely Commissioner’s warrant, memo of instructions, notice, mahazar, memo of instruction of defendant, memo of instruction of plaintiff and sketch were marked as Exhibits C1 to C8. The trial Court having considered both the oral and documentary evidence available on record, comes to the conclusion that the plaintiff is the absolute owner of the suit schedule properties which are morefully described as ‘A’ schedule properties and also directed the defendants to hand over possession of ‘B’ schedule properties to plaintiff within three months and the same is encroached area and also granted permanent injunction as sought for, accepting the Commissioner’s report since objection was not filed to the

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Commissioner’s report though Commissioner was crossexamined by the defendants’ counsel.

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3(ii) Being aggrieved by the judgment and decree of the trial Court, an appeal is filed and the same is considered on merits by considering the grounds urged in the appeal memo and the first Appellate Court also formulated the points namely,

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1. Whether the appellants establish that the trial Court has not framed the proper issues?

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2. Whether the appellants establish that the trial Court could not have relied upon the Commissioner’s report?

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3. Whether the appellants establish that the trial Court has not properly appreciated the oral and documentary evidence on record?

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4. Whether the appellants establish that the judgment of the trial Court is erroneous and is liable to be interfered with?

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The first Appellate Court considering all the above points for consideration and on re-appreciation of the material available on record, answered all the points in ‘negative’ and came to the conclusion that the trial Court has framed proper issues and the trial Court rightly relied upon the Commissioner’s report and both the oral and documentary evidence on record have been

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5 - NC: 2024:KHC:20960 RSA No. 1704 of 2018

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properly appreciated by the trial Court and confirmed the judgment and decree passed by the trial Court. Being aggrieved by the judgments of the trial Court and the first Appellate Court, as against the concurrent findings, the present second appeal is filed before this Court seeking to set aside the judgments passed by the trial Court and the first Appellate Court.

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Learned counsel appearing for the appellants would vehemently contend that, at the first instance, the suit was filed only for the relief of permanent injunction and not sought for any relief of declaration and subsequently, the amendment is made for the relief of declaration. Learned counsel would vehemently contend that the ownership of the property can be declared only when a person has taken over the property or in case of any adverse possession of the property. Learned counsel also would vehemently contend that the findings given by both the trial Court and the first Appellate Court are against the material on record. The Courts below could not have declared that the plaintiff is the owner of the suit schedule property and he is in possession of the property and hence, this

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Court has to frame a substantial question of law regarding the point, in the absence of title over the suit schedule property whether Court can grant relief of declaration in favour of the plaintiff and the trial Court has also not considered the suit on the point of limitation and both the oral and documentary evidence on record have not been properly appreciated by the trial Court and framed the substantial questions of law.

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Per contra, learned counsel appearing for the respondent would vehemently contend that the very submission made by the appellants that initially suit was filed only for the relief of injunction cannot be accepted and contended that the suit was filed for the relief of declaration as absolute owner, the plaintiff is in possession and the proper issue was framed by the trial Court and also not claiming any right in respect of particular survey number as he is the owner of the properties and when the appellants have not disputed that the plaintiff is not the owner of the properties, now cannot contend that both the Courts have committed an error in declaring that the respondent / plaintiff is the absolute owner of the suit schedule properties. Learned counsel also would

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vehemently contend that the Commissioner was appointed before the trial Court and submitted the report. No objection was filed to the Commissioner’s report, however, crossexamined the Commissioner. When the Commissioner was examined as CW.1, nothing was elicited and hence, the trial Court accepted the Commissioner’s report and rightly came to the conclusion that there is an encroachment and granted the relief of possession in respect of the encroached area and hence, it does not require any interference by framing any substantial question of law and no substantial question of law arises for consideration.

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Further, learned counsel appearing for the respondent would contend that, even during the pendency of this second appeal, an execution petition was filed and regarding possession is concerned, as ordered by the trial Court and confirmed by the first Appellate Court, possession has already been taken in the year 2019 itself.

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Having heard learned counsel appearing for the appellants and learned counsel appearing for the respondent

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and also on perusal of the pleadings of the parties, it is the claim of the plaintiff that the plaintiff is the absolute owner of the suit schedule properties which were purchased vide sale deeds dated 15.03.1996 and 16.05.1997 and the plaintiff is in possession, occupation and cultivation of the suit schedule properties and hence, sought for the relief of declaration to declare that he is the owner in possession, occupation and cultivation of the suit schedule properties and there is interference and when the Commissioner was appointed before the trial Court and the Commissioner also submitted a report with regard to the encroachment is concerned and based on the Commissioner’s report only additional prayer is sought for with regard to recovery of possession in respect of ‘B’ schedule properties is concerned. The records also disclose that the Commissioner who has been examined as CW.1 was also crossexamined, but no objection statement was filed to the Commissioner’s report. The trial Court taking into note of the admission of DW.1, which was extracted in paragraph No.13 of the judgment, since the defendant is not claiming any title over the suit schedule properties and only relies upon the documents Exhibits D1 to D8 which shows that there was

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counter complaint against the plaintiff before the Revenue Authority as well as Police, as per Exhibits D7 and D8 and also the trial Court taken note of the description of the property in the Commissioner’s report in Ex.C8 and hence, comes to the conclusion that there is encroachment and passed an order directing the defendants to hand over possession of ‘B’ schedule properties to plaintiff.

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The main contention of the appellants’ counsel that the suit is later filed for the relief of declaration and this Court has perused the original plaint which is available on record. At the first instance, the suit is filed for the relief of declaration to declare that the plaintiff is the absolute owner in possession, occupation and cultivation of the suit schedule properties and based on the said prayer, the first issue was framed and with regard to the possession and enjoyment of the suit properties is concerned, permanent injunction prayer is the second prayer made before the trial Court and later when the matter came up for consideration before the trial Court, an application was filed for amendment and the amendment was also sought based on the Commissioner’s report. Admittedly, the Commissioner’s

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10 - NC: 2024:KHC:20960 RSA No. 1704 of 2018

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report is not disputed by filing any objection statement though CW.1 was cross-examined and nothing is elicited and the same is also considered by the trial Court and the first Appellate Court also while considering the material on record, on re-appreciation, comes to the conclusion that the judgment of the trial Court not perverse and also considered the issue involved between the parties.

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Both the counsel appearing for the parties would vehemently contend that this Court has to frame substantial question of law and while entertaining the second appeal, it is very clear that if it is a concurrent finding and if any perversity in the finding, then the Court can entertain the same and also it is very clear that if there is no substantial question of law, the question of invoking under Section 100 of the Code of Civil Procedure does not arise and the main contention also that both the Courts have committed an error in appreciating both oral and documentary evidence and the same is not proved and also it is important to note that the defendants / appellants are not claiming any title in respect of schedule ‘A’ properties which are morefully described in the schedule and now only disputes

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NC: 2024:KHC:20960 RSA No. 1704 of 2018

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with regard to the description of the property and when the description of the property was raised before the trial Court, a Commissioner was appointed and the Commissioner also gave report in terms of Ex.C.8 and a categorical finding was given with regard to the encroachment is concerned and as I have already stated, report has not been objected by filing objection statement except making cross-examination of CW.1 and when such being the case, when the appellants have not disputed the case of the plaintiff with regard to claiming in respect of particular survey number and also not claiming title in respect of those survey numbers and when Commissioner’s report is posed against them and the same has not been objected, I do not find any error committed by the trial Court as well as first Appellate Court in passing the impugned judgments and in the absence of perversity and also definite finding with regard to the encroachment, I do not find any ground to interfere with the findings recorded by the trial Court and the first Appellate Court.

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Apart from that, learned counsel appearing for the respondent also would contend that when there is no stay by

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NC: 2024:KHC:20960 RSA No. 1704 of 2018

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this Court during the pendency of the second appeal also, already possession was taken as ordered by the trial Court which has been confirmed by the first Appellate Court. Hence,

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no grounds are made out to interfere with the said order.

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In view of the discussions made out, as a consequential order, the Regular Second Appeal is dismissed.

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In view of the dismissal of the regular second appeal,

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pending I.As., do not survive for consideration and the same are disposed of.

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Sd/JUDGE

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List No.: 1 Sl No.: 66

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BSS

Sri a M Prasanna v. H H Krishne Gowda

Case brief

What is this about?

What did the court decide?

Sri a M Prasanna v. H H Krishne Gowda

Case brief

What is this about?

What did the court decide?

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