Smt. Late Yashodha Vs Puttegowda

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.03.2024 PASSED IN R.A.NO.8/2019 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 20.03.2003 PASSED IN O.S.NO.865/1999 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellants.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The factual matrix of the case of plaintiff before the Trial Court is that he is the absolute owner in possession of property bearing Sy.No.5/4 situated in Damadahalli Village, Pandavapura Taluk. The defendants have no absolute right, interest over Sy.No.5/4 to which he is the owner. About two years back, defendants encroached 0-6 guntas of land on the western side of his land. After having knowledge of encroachment, he requested defendants to deliver the possession of encroached portion and panchayath was also convened, but defendants refused to handover the possession. Hence, survey was conducted through Taluk Surveyor, even in survey, encroachment was confirmed. Defendants have no right or title over the encroached portion and they are in illegal possession. Hence, filed the suit for the relief of recovery of

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possession and to declare that he is the owner of the schedule property.

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In pursuance of the suit summons, the defendant appeared and filed written statement contending that the very claim of the plaintiff is erroneous. It is also contended that Sy.No.5/1 measuring 0-20 guntas is his ancestral property. He acquired the same through succession from his father. His father, during his lifetime, acquired 0-20 guntas of land in Sy.No.5/1 through partition in the year 1960. From the date of partition, his father was in possession of 0-20 guntas. The suit schedule property is the portion of Sy.No.5/1. The plaintiff was never in possession of the schedule property and he is the absolute owner in possession of the schedule property. Their possession is from the lifetime of their ancestors. It is the plaintiff colluding with the revenue authorities and by creating revenue documents, mutated revenue entries and making false claim.

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The Trial Court, based on the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court, having considered both oral and

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documentary evidence, answered the issues as ‘affirmative’ and comes to the conclusion that property belongs to the plaintiff and defendant is not having any right over the property and dismissed and suit directing the defendant to handover vacant possession to the extent of 5 guntas.

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Being aggrieved by the said judgment and decree, an appeal is filed before the First Appellate Court in R.A.No.8/2019. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the appeal is maintainable. The First Appellate Court having reassessed the material available on record comes to the conclusion that judgment and decree in appeal discloses that mother of the appellants was appellant No.5 in the earlier appeal in R.A.No.45/2003 and Yashodamma also preferred appeal against the judgment and decree of Trial Court in O.S.No.865/1999. The death certificate produced by the appellants along with appeal discloses that Yashodamma died in the year 2020. If death certificate produced by the appellants is considered, the judgment and decree of Trial

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Court and decree by Senior Civil Judge and JMFC, Srirangapatna is against the dead person.

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Having considered the material available on record, earlier appeal filed has already attained its finality. In view of subsequent appeal filed, the First Appellate Court comes to the conclusion that the Court has already confirmed the judgment and decree of the Trial Court. Now, the appellants shall challenge the judgment and decree in R.A.No.44/2003 or to file necessary suit to set aside the judgment and decree, except that, the appeal before this Court is not maintainable and since earlier R.A.No.44/2003 was disposed of, the remedy is elsewhere to challenge the same. Being aggrieved by the judgment and decree of both the Trial Court and the First Appellate Court, the present second appeal is filed before this Court.

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The main contention of learned counsel for the appellant is that the Trial Court and the First Appellate Court failed to consider both oral and documentary evidence placed on record and Trial Court has not granted sufficient opportunity

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to appellant/defendant No.5 to lead evidence and produce the documents. Hence, it requires interference of this Court.

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Having heard learned counsel for the appellant and also on perusal of the reasoning of the Trial Court, the Trial Court comes to the conclusion that property belongs to the plaintiff and the same is derived from his mother and also comes to the conclusion that defendant has encroached portion of the property to the extent of 5 guntas. The Trial Court also granted the relief in favour of plaintiff directing the defendant to handover vacant possession of said 5 guntas to the plaintiff. The First Appellate Court also having considered the grounds which have been urged, reassessed the material on record and particularly taken note of the fact that Commissioner was appointed and Commissioner also given the report that there was an encroachment to the extent of 5 guntas is concerned. The First Appellate Court also taken note of the fact that earlier R.A. was filed in R.A.No.44/2003 by the legal representatives of defendant No.1 including the mother of the present appellants. When such being the case, when the mother of the present appellants was also a party to R.A.No.44/2003, made an

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observation that the appellants shall challenge the judgment and decree passed in R.A.No.44/2003 or to file necessary suit to set aside the said judgment and decree and the fact that mother was also a party is not disputed and taken note of all these factors into consideration and all the contentions therein. Now, the defendant No.5 is no more and their legal heirs are not made as party to the proceedings cannot be accepted and the mother of the appellants i.e., Yashodamma was also party to earlier appeal and was unsuccessful and the same is not challenged. When such being the material on record, I do not find any ground to admit the second appeal and frame any substantial question of law and question of invoking Section 100 of CPC does not arise.

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