The appellant challenged concurrent findings dismissing her suit for permanent injunction regarding land. The High Court held that the plaintiff failed to prove possession despite revenue grants, especially as adverse inferences were drawn and lower authorities had cancelled her grant in favor of respondents. The appeal was dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO.1750 OF 2016 (INJ)
BETWEEN:
PUTTATHAYAMMA W/O PUTTA SWAMI ACHARI AGED 79 YEARS, R/AT HOSASIDDAPURA, BHADRAVATHI TALUK REPERSENTED BY HER GPA HOLDER C.T.NANAIAH S/O C.K.THIMMAIAH, AGED ABOUT 68 YEARS, R/AT HALLI GATTA VILLAGE PONNAMPET, SOUTH KODAGU
… APPELLANT
(BY SRI. S N BHAT.,ADVOCATE)
AND:
Digitally signed by SHYAMALA Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SRI. K.V. KESHAVA., ADVOCATE FOR R1 & R2)
THIS RSA FILED U/S. 100 OF CPC., 1908 AGAINST THE JUDGEMENT & DECREE DTD 28.07.2016 PASSED IN R.A.NO. 58/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC., BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 17.04.2013 PASSED IN OS.NO.831/1992 ON THE FILE OF THE CIVIL JUDGE AND ADDL. JMFC., BHADRAVATHI.
THIS RSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Aggrieved by the concurrent finding of facts recorded by the Courts below, the plaintiff is before this Court in the Regular Second Appeal.
rank before the trial Court for the sake of convenience.
of property bearing Sy.No.65/7 to an extent of 2 acres 20 guntas situated at Chikkagopanahalli Village, Bhadravathi, (hereinafter referred to as “the suit land” for the sake of convenience).
the grant, under Darkhast the Government granted the suit land vide saguvali chit No.324/78-79, and in the revenue records, the name of the plaintiff is shown as kabjedar and the plaintiffs are in possession and enjoyment of the suit land. The defendants having no right, title and interest over the suit land are making hectic efforts to obtain saguvali chit in respect of the suit land and the defendants are trying to interfere with the peaceful possession and enjoyment of the suit land.
NC: 2024:KHC:30664 RSA No. 1750 of 2016
and reported that the defendants are in actual possession of the suit land.
averments, framed the following issues:
2. Whether she further proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?”
the plaintiff was examined as PW1 and marked documents at Exs.P1 to 18. PW1 did not come forward for cross examination and hence, later on, the plaintiffs examined another GPA holder C.T.Nanaiah and two other witnesses as PWs.2 to 4 and marked documents as Exs.P19 to P23. On the other hand, defendant Nos.1 and 2 examined themselves and two other witnesses as DWs.1 to 4 and marked documents at Exs.D1 to D4.
NC: 2024:KHC:30664 RSA No. 1750 of 2016
there is a grant in favour of the defendants by conducting survey and the grant which is alleged by the plaintiff has been cancelled by the Tahsildar. The burden was on the plaintiff to establish that as on the date of the suit she was in possession of the suit property, the plaintiff did not examine herself, but examined the power of attorney holder as PW1 and PW2. Exs.P2 to P6 are the RTC extracts of the year 1993-94 standing in the name of the plaintiff and the mutation extracted at Ex.P.7 indicating at MR No.59/78-79, the suit property has been granted in favour of the plaintiff as per the order dated 1.9.1977 and 7.10.1978. Ex.P8 is the Patta and the receipt book pertaining to the suit property for the year 1978-1979 which was standing in the name of the plaintiff. Placing reliance on receipt book and Patta, plaintiff has contended that she in possession of the suit property.
regularization of the unauthorized cultivation of the respective portion of the lands in their possession and accordingly, on 25.10.1991, the Tashildar, Bhadravathi as per Ex.D.12 had issued the notice to the plaintiff and 11 others including defendants fixing the date for spot inspection of suit survey number. Ex.D.13 is the mahazar drawn by the Revenue Inspector indicating that the defendants are cultivating the land as Bagar Hukumdars for the past 12 years from 1974-75. Ex.D.14 is the grant order passed by the Tashildar on 13.04.1998, holding that the defendants were in cultivation of land for past more than 1520 years as Bagar Hukumdars and plaintiff and Kamalamma are not in possession and cultivation of the land granted to the defendants, as per the grant order, Patta was issued in favour of the defendants and katha was effected in their names. Ex.D.15 and D.17 are the documents produced by the defendants to indicate that they are cultivating the land by digging bore well and installing motor pump set.
writ petition, the Tashildar was directed to conduct enquiry as to which land has been granted in favour of the contesting parties and thereafter, issue appropriate certificate. On remand, the Tashildar after holding enquiry cancelled the grant order in favour of the plaintiff and granted the land in favour of the defendants to the extent of 4 acres 38 guntas in Sy. No.65, the plaintiff preferred appeal before the Assistant Commissioner and the Assistant Commissioner granted land in favour of the defendants by cancelling the grant order of the plaintiff as per Ex.D.21 and the challenge made by the plaintiff before the Appellate Authority was confirmed, holding that the Tashildar, after due enquiry and spot inspection, has granted the suit land in favour of the defendants. The Tashilidar way back in the year 1991 by conducting spot inspection has held that the defendants are in actual possession and enjoyment of the suit land and cancelled the grant order in favour of the plaintiff. The material on record would indicate that the plaintiff is not in possession of the suit land and was not cultivating the suit land as on the date of the suit.
cross-examination of D.W.1, contended that D.W.1 in his cross-examination admitted that the suit land is different from the property in occupation by the defendants and the said admission was not considered by the Courts below in granting injunction in favour of the plaintiff. The law is well settled that one stray admission cannot be picked up for holding against a party and cannot be a basis for a decree for injunction in favour of the plaintiff, as in the civil matters, dealing with civil rights, the admission has to be clear and it has to be kept in light of the pleadings and other evidence available on record.
Ketkar vs Mahomed Haji Latif & Ors1 has observed that a party in possession of best evidence has not chosen to place best evidence by way of examination, in that situation, the Court may rule against the party who has not chosen to place the best evidence. In the instant suit, the plaintiff has not placed any supporting evidence to indicate that the
1 AIR 1968 SC 1413
plaintiff is in possession of the suit land even after the grant in favour of the defendants and considering the material on record, an adverse inference has to be drawn against the plaintiff in the absence of any evidence available on record to establish her possession over the suit land. The Division Bench of this Court in Puttanna Shetty (deceased) by LRs and others vs. Padma Shetty (deceased) by LRs and Others2 has taken a similar view. In the instant case, there is a chequered history of the litigation between the plaintiff and defendants before the Tashildar, Assistant Commissioner, Deputy Commissioner and before this Court. The grant in favour of the defendants has been questioned by the plaintiff before the several authority and ultimately, the grant in favour of the defendants is confirmed, one stray sentence of DW1 in his cross-examination cannot be considered as a ground for the plaintiff to contend that she is in possession of the suit property in the absence of any material evidence to prove his possession.
2 2007(3) KCCR 2107(DB)
NC: 2024:KHC:30664 RSA No. 1750 of 2016
ORDER
NC: 2024:KHC:30664 RSA No. 1750 of 2016
ii. The judgment and decree of the Courts below
stands confirmed .
Sd/-
(K.S. HEMALEKHA)
JUDGE
SR/List No.: 1 Sl No.: 10
3 issues framed by the court
Whether the plaintiff proved lawful possession of the suit property on the date of the suit?
Whether the plaintiff proved alleged interference by the defendants?
Whether the plaintiff is entitled to permanent injunction?
Colour shows how this judgement treated each authority
Gopal Krishnaji Ketkar vs Mahomed Haji Latif & OrsRelied on¶56
AIR 1968 SC 1413 · Who else cites this
Puttanna Shetty (deceased) by LRs and others vs. Padma Shetty (deceased) by LRs and OthersReferred¶60
2007(3) KCCR 2107(DB)
1 provisions across 1 enactments
PUTTATHAYAMMA W/O PUTTA SWAMI ACHARI
POLI REDDY S/O KOTA REDDY
SMT. RAMALAMMA W/O POLI REDDY
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
