Plaintiff's suit for permanent injunction over a claimed 2½ feet strip adjoining defendant No.1's house, dismissed by trial and first appellate courts. In second appeal, the court found no illegality or perversity in concurrent findings, noting plaintiff failed to establish possession by documents or commissioner's measurements.
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NC: 2024:KHC:32789 RSA No. 995 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.995 OF 2021 (INJ)
BETWEEN:
SRI. H.B. SHIVALINGAIAH S/O LATE BETTAIAH AGED ABOUT 57 YEARS, R/AT HOLALU VILLAGE DUDDA HOBLI, MANDYA TALUK AND DISTRICT MANDYA-571405.
…APPELLANT
(BY SRI. HARIPRASAD M.B., ADVOCATE)
AND:
Digitally signed by ARUNKUMAR M S Location: High Court of Karnataka
…RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 01.02.2021 PASSED IN
NC: 2024:KHC:32789 RSA No. 995 of 2021
R.A.NO.3 OF 2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.09.2013 PASSED IN O.S.NO. 222/2006 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, MANDYA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the plaintiff challenging the judgment and decree dated 01.02.2021 passed in RA.No.3 of 2014 on the file of the Principal Senior Civil Judge and CJM, Mandya, dismissing the appeal and confirming the judgment and decree dated 02.09.2013 passed in OS.No.222 of 2006 on the file of the Additional Civil Judge and JMFC, Mandya, dismissing the suit of the plaintiff.
this appeal shall be referred to in terms of their status and ranking before the trial Court.
the house and further, defendant No.1 in collusion with the defendants Nos.2-Grama Panchayat, obtained house building license including the portion of house property belonging to the plaintiff and as such, the plaintiff has filed suit in OS No.222 of 2006, seeking relief of permanent injunction against the defendants.
entered appearance and defendant No.1 filed written statement denying the averments made in the plaint. Defendant No.1 has taken a plea that the plaintiff is not in possession of the suit schedule property. It is the case of the defendant No.1 that, he has constructed a house in accordance with license granted by defendant No.2 and accordingly, sought for dismissal of the suit.
written statement stating that, the license has been granted in favour of defendant No.1 to make construction based on the records as well as after conducting spot inspection and accordingly, sought for dismissal of the suit.
Court has formulated the issues for its consideration.
dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS No.222 of 2006.
plaintiff/appellant has preferred this Regular Second Appeal under Section 100 of CPC.
the appellant contended that the both the courts below have erroneously arrived at a conclusion that the defendant No.1 has obtained license from the defendant No.2 without considering the fact that, the said license is issued illegally in favour of the defendant No.1. In this regard, he submitted that, an appeal was preferred before the competent authority
and same was not adjudicated and as such, sought for interference of this court.
for the appellant, I have carefully examined the finding recorded by the both the courts below. Perusal of the appeal papers would indicate that, the plaintiff has failed to produce necessary documents to establish his possession in respect of the schedule property despite having produced the 36 documents and none of the documents produced by the plaintiff corroborates with the measurement and boundary of the schedule property. It is also forthcoming from the finding recorded by the Trial Court that, the report of the Court Commissioner was accepted and the Court Commissioner has measured the property belonging to the plaintiff so also the defendant No.1 and found that there is difference between the measurement of plaint schedule property and measurement made by the
Court Commissioner. In that view of the matter, taking into consideration that the plaintiff has failed to produce the relevant documents to establish his possession over the 21/2 feet as claimed in the suit, I am of the view that the Trial Court is justified in declining to accept the suit of the plaintiff. The First Appellate Court, after re-appreciating the material on record and taking into consideration that the grant of relief of permanent injunction is discretionary in nature and as the plaintiff has failed to produce the relevant documents to establish that there is 21/2 feet conservancy (galli) existing in between the house of plaintiff and defendant No.1 and as such, rightly dismissed the appeal filed by the plaintiff. Therefore, I do not find material illegality or perversity in the judgments and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the plaintiff/appellant has not
NC: 2024:KHC:32789 RSA No. 995 of 2021
made out a ground for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself and accordingly, the Regular
Second Appeal is dismissed .
SD/(E.S.INDIRESH) JUDGE
SB List No.: 1 Sl No.: 27
2 issues framed by the court
Did the plaintiff prove possession over the claimed 2½ feet strip and entitlement to permanent injunction?
Was there a substantial question of law warranting interference under Section 100 CPC?
1 provisions across 1 enactments
Sri. H.B. Shivalingaiah
Smt. B.K. Jayalalitha
The Holalu Gram Panchayath
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
