Plaintiff's suit for permanent injunction over disputed land was dismissed by trial court and confirmed on first appeal. In second appeal, High Court held concurrent findings on failure to prove boundaries and measurement raised no substantial question of law and dismissed the appeal, confirming both judgments below.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1814 OF 2015 (INJ)
BETWEEN:
SRI T M ESHWARAPPA AGED ABOUT 76 YEARS, S/O LATE SRI T.N.MARULASIDDAIAH, RETIRED HINDI PROFESSOR, HAMSA SADHANA, 1ST FLOOR, ANJANEYA STREET, VIJAYAPURA EXTENSION, CHIKKAMAGALURU - 577 101.
…APPELLANT
(BY SRI. SHANKAR REDDY C., ADVOCATE)
AND:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
SRI K S NANJUNDA RAO AGED ABOUT 69 YEARS, S/O SRI K. SUBBA RAO, R/AT CHRISTIAN COLONY, CHIKKAMAGALURU - 577 101.
…RESPONDENT
(BY SRI. G. NARAYANA RAO, ADVOCATE)
THIS RSA IS FILED U/S. 100 READ WITH ORDER LXII RULE 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 18.06.2015 PASSED IN R.A.NO.99/2008 ON THE FILE OF THE I ADDL.DISTRICT COURT, CHICKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 16.11.2004 PASSED IN OS NO.252/2000 ON THE FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) & JMFC, CHICKMAGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 18.06.2015 passed in R.A.No.99/2008 by the learned I Additional District Court, Chikmagalur and the judgment and decree dated 16.11.2004 passed in O.S.No.252/2000 by the learned Additional Civil Judge (Jr.Dn.) and JMFC, Chikmagalur.
It is the case of the plaintiff that, the plaintiff is in possession and enjoyment of the suit schedule property and the same was purchased from one D.S.Kengegowda under a registered sale deed dated 03.05.1969. At the time of purchasing the suit schedule property by the vendor of the plaintiff, the suit schedule property was not converted for non-agricultural purposes. However, after the plaintiff purchased the same, the said land was converted into non-agricultural land for residential purposes. The plaintiff surveyed the land through the ADLR, Chikkmagaluru. The survey authorities effected the phodi records in respect of the suit schedule property. The survey authorities have allotted resurvey numbers to the scheduled properties as 1A, 1a, 1b, 1b and 1b. After the measurement was made by the survey department and the allotment of separate phodi numbers, the plaintiffs fenced the property of entire area, measuring 25 x 75 feet. The defendant has no right, title or interest over the scheduled
property, and the defendant filed a suit in O.S.No.454/1996 by giving the wrong description of the property against the plaintiff, which was dismissed by the learned Additional Civil Judge (Jr. Dn.) and JMFC, Chikkmagaluru. After dismissal, the defendant started damaging the barbed wire fence put up by the plaintiff. The plaintiff requested the defendant not to cause any damage to the barbed wire fence, but the defendant did not give any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction.
not concerned with the suit schedule property. It is contended that, the defendant and others in Sy. No.100/1 of Beekanahalli village has filed an appeal before the Deputy Director of Land Records, and the alleged survey continued by the survey authority is not fair and proper. It is contended that the plaintiff, to grab a site belonging to the defendant, is found to get an injunction by showing false and imaginary boundaries. It is contended that the defendant had filed a suit in O.S.No.454/1996 on the file of learned Additional Civil Judge (Jr. Dn.) and JMFC, Chikmagaluru, and the said suit was dismissed. The appeal was filed in R.A.No.99/2008 on the file of the learned I Additional District Court Chikmagaluru. Hence, prayed to dismiss the suit.
NC: 2024:KHC:37947 RSA No. 1814 of 2015
examined one witness as DW-2, and marked ten documents as Exs.D1 to D10. On the assessment of oral and documentary evidence of the parties, the trial Court dismissed the suit vide judgment dated 16.11.2004.
the plaintiff is the absolute owner and in possession of the suit schedule property, and has produced the documents. He also submits that the defendant filed a suit in
NC: 2024:KHC:37947 RSA No. 1814 of 2015
O.S.No.454/1996, and the said suit was dismissed, and
the defendant preferred an appeal in R.A.No.106/99, which came to be dismissed. He submits that the said aspect was not considered by the courts below and committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal.
by the plaintiff. Hence, when there is a serious dispute regarding the boundaries and the measurement in a suit for permanent injunction, the Court cannot expand the scope of suit for perpetual injunction. Both the courts below have concurrently recorded a finding of facts that the plaintiff has failed to prove the measurement and assessment number of the schedule property. Further, the plaintiff applied for the correction of measurement of the suit schedule property in the plaint before the First Appellate Court. The First Appellate Court has recorded a finding that, in the plaint itself, the plaintiff has adequately noted the extent of the suit schedule property and the said I.A. does not survive for consideration. Both the courts below have concurrently recorded a finding of facts that there is a serious dispute regarding the boundaries and measurement of the suit schedule property and rightly passed the reasoned orders. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises in this appeal.
NC: 2024:KHC:37947 RSA No. 1814 of 2015
pass the following:
Order
The appeal is dismissed .
The judgments and decrees passed by the
courts below are hereby confirmed.
No order as to the costs.
ssb
2 issues framed by the court
Whether the plaintiff proved the boundaries and measurement of the suit schedule property to sustain a decree for permanent injunction.
Whether any substantial question of law arose for consideration in the second appeal.
1 provisions across 1 enactments
Sri T M Eshwarappa
Sri K S Nanjunda Rao
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
