Dismissed

Smt Gulabi v. Sri Loku Shetty

Karnataka HC2 Sept 2024RSA/1826/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this regular second appeal challenging the denial of a mandatory injunction. The Court held the suit was not maintainable as the plaintiff failed to establish the existence of the pipeline, did not produce records of permission under Section 90-A, and relied on insufficient evidence.

What did the court decide?

The regular second appeal was dismissed, and the judgments and decrees passed by the courts below were confirmed.

Smt Gulabi Vs Sri Loku Shetty — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:41044 RSA No. 1826 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF SEPTEMBER, 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. 1826 OF 2011 (INJ)

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BETWEEN:

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SMT GULABI

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AGED ABOUT 61 YEARS

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SRI MONTA POOJARY AGED ABOUT 57 YEARS

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SMT KAMALA AGED ABOUT 47 YEARS

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SMT GIRIJA AGED ABOUT 44 YEARS

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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No.1 TO 4 ARE CHILDREN OF LATE SMT. CHIKKAMMA POOJARTHI ALL ARE R/A HOSAMANE POST PUCHAMOGARU VILLAGE, MANGALORE TALUK, D.K - 575 001

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…APPELLANTS

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(BY SRI. K CHANDRANATH ARIGA., ADVOCATE FOR SRI. M.K. VIJAY KUMAR, ADVOCATE)

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AND:

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SRI LOKU SHETTY S/O LATE KINNAYYA SHETTY AGED ABOUT 74 YEARS, R/A ARBI HOUSE, POST PUCHAMOGARU VILLAGE

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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MANGALORE TALUK, D.K 575 001

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…RESPONDENT

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(RESPONDENT SERVED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.4.2011 PASSED IN R.A.NO.52/2007 ON THE FILE OF THE DISTRICT & SESSIONS JUDGE (AD-HOC) PRESIDING OFFICER, FAST TRACK COURT, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.1.2007 PASSED IN O.S.NO.257/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., MOODBIDRI.

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THIS APPEAL, COMING ON FOR ORDERS, 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 Regular second appeal is filed by the appellants challenging the judgment and decree dated 21.04.2011, passed in R.A.No.52/2007 by the learned Presiding officer of the Fast Track court, Karkala, and the judgment and decree dated 31.01.2007, passed in O.S.No.257/2004 by the learned Civil Judge (Jr. Dn.) and JMFC, Moodabidri.

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For convenience, parties are referred to according to their ranking before the trial Court. The

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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appellants are the legal representatives of the deceased plaintiff, and the respondent is the defendant.

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

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The plaintiff initially filed a suit for perpetual injunction. After the institution of the suit, the plaintiff amended the suit and sought additional relief of mandatory injunction. In the case of the plaintiff, the plaintiff is in possession and enjoyment of the suit properties. The suit properties which were granted to her on occupancy right by the Land Tribunal. The defendant possesses and enjoys adjoining lands including Sy.No.31/2A2. It is contended that suit properties and the lands of the defendant were part and parcel of the Varg properties of a common landlord before the Land Reforms Act came into force, and the occupancy right was conferred in respect of the said properties. In the case of the plaintiff, the suit properties and the defendant's properties are situated near the 'Phalguni River', and some

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portions of the properties are riparian lands. The plaintiff contended that she had installed a diesel pump set to lift water from phalguni river to her fields through the field bunds. The defendant agreed to lay a pipeline on his land. Therefore, the plaintiff laid an alkaline pipeline by digging a trench of one foot deep in the property of the defendant bearing Sy.No.31/2A2 of Puchamogru village about four years ago by spending Rs.15,000/- and irrigating her lands. It is contended that, in view of consent given by the defendant, she has laid an alkaline pipeline in the

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defendant's property. It is contended that she had obtained a license about 2 years ago: she had applied for a water license to secure an electricity connection to install

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an electricity pump to lift water from the Phalguni River. The matter came up for enquiry and the defendant insisted her to remove the pipeline from the said land. It is contended that, on 01.07.1997, the defendant made an attempt to remove the pipeline by force with the help of his followers, and the plaintiff resisted the same with

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incredible difficulty. Hence, on these grounds, the plaintiff filed a suit for perpetual and mandatory injunction.

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Defendant filed a written statement denying the averments made in the plaint. He has neither permitted the plaintiff to lay a pipeline in the said properties nor did the plaintiff lay any pipeline in the suit properties. Hence, the question of removing or dismantling the alleged pipeline does not arise. It is submitted that the application filed by the plaintiff seeking permission to draw water from the Phalguni River was rejected by the concerned authorities and taken into consideration the objections filed by the defendant and other factors. Hence, it is contended that the suit filed by the plaintiff is hopelessly barred by limitation, and it is contended that the plaintiff, without exhausting the efficacious remedy available to her under Section 90A of Karnataka Land Revenue Act, 1964, is not entitled to the relief of permanent and Mandatory Injunction.

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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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 that she has laid underground alkathine pipe line from Phalguni river to her property through the property of defendant in Sy.No.31/2A2 with the consent of the defendant?

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2) Whether the plaintiff proves that the defendant is estopped from removing the above said pipe line?

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3) Whether the plaintiff proves that the defendant has made attempts to remove the above said pipe line by force?

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4) Whether the plaintiff proves that during the pendency of suit the defendant and his men have forcibly destroyed and removed the above said pipe line?

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5) Whether the defendant proves that the suit is barred by limitation?

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6) What order or decree?

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The plaintiff, in order to prove her case, her son, who is also a power of attorney holder, was examined as PW.1 and examined one witness as PW.2 and marked 49 documents as Exs.P1 to 49. On behalf of the defendant, his son, who is also a power of attorney holder, was

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examined as DW.1 and marked five documents as Exs.D1 to 5. The Court commissioner was examined as CW.1 and

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got marked 3 documents as Exs.C1 to 3. The trial Court after recording the evidence, hearing both sides and on the assessment of oral and documentary evidence, answered issue Nos.1 and 4 in the negative, issue Nos.2 and 3 did not survive for consideration, issue No.5 in the affirmative, issue No.6 as per the final order. The trial Court dismissed the suit of the plaintiff vide judgment dated 31.01.2007.

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The plaintiff, aggrieved by the judgment and decree passed in O.S.No.257/2002, preferred an appeal in R.A.No.52/2007 on the file of Fast Track Court, Karkala.

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The First Appellate Court, framed the following points for consideration:

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1) Whether the plaintiff proves that the learned trial judge has not framed proper issues? 2) Whether the plaintiff proves that the impugned judgment and decree of the learned trial judge is perverse, illegal and capricious?

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3) What order?

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The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point Nos.1 and 2 in the negative and point No.3 as per the final order and consequently dismissed the appeal vide judgment dated 21.04.2011. The plaintiff, aggrieved by the impugned judgments and decrees passed by the courts below, has filed this regular second appeal.

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Heard the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that both the courts below have committed an error in passing the impugned judgments. He also submits that with the defendant's consent, the plaintiff had laid the pipeline on the defendant's land, and the defendant removed the pipeline laid by the plaintiff. Hence, he submits that the defendant has no right to remove the pipeline laid on the defendant's properties. Hence, prays to allow the appeal.

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9 - NC: 2024:KHC:41044 RSA No. 1826 of 2011

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Though notice was issued to the respondent, the defendant remained unrepresented despite the service of notice.

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This court admitted the appeal on the following substantial question of law:

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'Whether the suit for a mandatory injunction to remove the pipeline that was said to be laid before arising of controversy between the parties is maintainable?'

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Perused the records and considered the

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submissions of learned counsel for the plaintiff.

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SUBSTANTIAL QUESTIONS OF LAW :- The

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plaintiff, to substantiate her case, examined her son as PW.1 and h reiterated the plaint averments in the examination-in-chief, and he has deposed that with the consent of the defendant, his mother laid pipeline in the property of the defendant. Further, in order to establish that, the plaintiff is in possession of the land bearing

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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Sy.No.31/1A produced the documents i.e., Ex.P1 is the GPA executed by the plaintiff in favour of her son dated 02.07.1997, Ex.P2 is the RTC extract in respect of land bearing Sy.No.30/2A-1 stands in the name of the plaintiff, Ex.P3 is the RTC extract in respect of land bearing Sy.No.30/4 stands in the name of the plaintiff, Ex.P4 is the RTC extract in respect of land bearing Sy.No.31/1A stands in the name of the plaintiff, Ex.P5 is the RTC extract in respect of land bearing Sy.No.31/1A-1 stands in the name of the plaintiff, Ex.P6 is the RTC extract in respect of land

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bearing Sy.No.31/20 stands in the name of the plaintiff, Ex.P7 is the RTC extract in respect of land bearing Sy.No.31/2F stands in the name of the plaintiff, Ex.P8 is the RTC extract in respect of land bearing Sy.No.31/3-d stands in the name of the plaintiff, Ex.P9 is the RTC extract in respect of land bearing Sy.No.31/2A stands in the name of the defendant, Ex.P10 is the complaint filed

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by Monta Poojary against the defendant and others, Ex.P11 is the acknowledgement issued by the Police after having received complaint on 06.07.1997, Ex.P12 is the

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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postal cover, Ex.P13 is the communication issued to the plaintiff, Ex.P14 is the letter wherein it discloses that the plaintiff has applied an application seeking permission to draw water from Phalguni river and the said application came to be rejected vide order dated 30.09.1997, Ex.P15 is the letter written to Tahsildar, Ex.P16 is the copy of order passed by the Tahsildar, Ex.P17 is the communication dated issued by the Tahsildar, Ex.P18 is the report of Deputy Tahsildar, Ex.P19 is the report of Revenue Inspector, Ex.P20 is the report of Village Accountant, Ex.P21 is the statement of Kajalu Harijana, Ex.P22 is the Mahazar dated 26.03.1997, Ex.P23 is the statement of the plaintiff dated 26.03.1997, Ex.P24 is the report of Revenue Inspector, Ex.P25 is the letter written by Tahsildar, Karkalato Revenue Inspector, Ex.P26 is the letter written to Tahsildar, Ex.P27 is the application by plaintiff dated 06.11.1996, Ex.P28 is the endorsement given by the Village Accountant, Puchamogaru dated 09.10.1996, Exs.P29 to P35 are the RTC extracts, Ex.P36 is the sketch, Ex.P37 is the NSC, Ex.P38 is the survey

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sketch, Ex.P39 is the Form No.10, Ex.s.P40 to 44 are the positive photos, Ex.P45 is the demand notice, Exs.P46 to P49 are the photos.

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Further, the plaintiff, during cross-examination,

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it was suggested to P.W.1 that, PW.1 has not laid any pipeline on the land of the defendant. The said suggestion was denied. From the perusal of the plaintiff's evidence, it is the plaintiff's case that the plaintiff has laid the pipeline

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in the defendant's land and also applied for permission from the concerned authority to draw water from the Phalguni River. The plaintiff has not produced any records to establish that the plaintiff has laid the pipeline in the defendant's property. Further, the court commissioner was appointed by the trial court, wherein the commissioner had executed a warrant and submitted a report. The trial Court, relying on the Commissioner's report, held that the plaintiff had not laid any pipeline in the defendant's land.

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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The defendant examined his son as the power

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of attorney holder as DW.1, and he has deposed that the plaintiff has not laid any pipeline in the land of the defendant. Further, the plaintiff submitted an application seeking permission to draw water from Phalguni river. The said application was rejected. When the plaintiff could not get permission from the concerned authority to draw water from the Phalguni River, the question of laying a pipeline in the defendant's land did not arise. Further, in the plaintiff's case, the defendant removed the pipeline in 2003. The court commissioner was examined as CW.1. He reiterated the report in the examination-in-chief. Further, he marked the Commissioner's report as Ex. C1, and Ex.C2 is the further report of the Court Commissioner. Further, the Commissioner has recorded his finding that in Sy. No.31/A2 which belongs to the defendant, there is no pipeline, and also observed that the plaintiff is lifting the water from well. According to the Commissioner's report, there is no pipeline in the defendant's land. The plaintiff has failed to establish that the plaintiff laid the pipeline in

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the defendant's land. Considering the evidence of PW.1, DW.1 and CW.1, the courts below have found that the plaintiff has failed to establish that the plaintiff has laid a pipeline in the Sy. No.31/2A2 with the consent of the defendant.

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The plaintiff initially filed a suit for a bare permanent injunction. After 8 years after filing the suit, the plaintiff filed an application seeking relief of mandatory injunction. The plaintiff knows fully well that there exists no pipeline in the defendant's land and has filed an application for amendment seeking the relief of mandatory injunction.

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Further as per Section 90-A of the Karnataka Land Revenue Act, 1964 (for short 'the Act'), provide the Construction of Water Courses through land belonging to other persons. If any person wants to construct a water course, the land belonging to the others has to submit an application to the Tahsildar. The Tahsildar, after making an enquiry and giving an opportunity to the neighbouring

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holder and all other persons interested in the land, had a chance to state and, after that, passed an order subject to the conditions.

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Admittedly, in the instant case, the plaintiff has

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not produced any records showing that the petitioner has submitted an application under Section 90A of the Act and obtained permission to lay a pipeline in the defendant's land. The petitioner, without exhausting the efficacious remedy available under Section 90-A of the Act, filed a suit for perpetual and mandatory injunction. Both the courts below have concurrently recorded the finding of facts that the plaintiff has failed to establish that she had laid the pipeline in the land of the defendant, the question of the decree the suit for a mandatory injunction does not. Both the courts below have assigned the reasons for passing the impugned judgments. Hence, the suit filed for a mandatory injunction is not maintainable. I do not have

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any errors in the impugned judgments. I, concur with the

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NC: 2024:KHC:41044 RSA No. 1826 of 2011

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impugned judgments. In view of the above discussion, I

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answer substantial question of law in the negative.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the

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Courts below are hereby confirmed.

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No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS,SSB

Smt Gulabi v. Sri Loku Shetty

Case brief

What is this about?

What did the court decide?

Smt Gulabi v. Sri Loku Shetty

Case brief

What is this about?

What did the court decide?

What the court decided

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