Ashitha Vs S. M. Sudharshan

S. M. SUDHARSHAN SON OF S. A. MYARASHETTY, AGED ABOUT 66 YEARS, AND RESIDING AT DODDASALAVARA VILLAGE, AREHALLY HOBLI, BELUR TALUK, HASSAN DISTRICT-573 101.

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…RESPONDENT (BY SRI. JWALA KUMAR., ADVOCATE FOR C/R)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 24.03.2022 PASSED IN RA.NO.41/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BELUR. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.08.2016

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NC: 2025:KHC:32860 RSA No. 1236 of 2022

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PASSED IN O.S.NO.60/2012 ON THE FILE OF THE CIVIL JUDGE, BELUR.

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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 ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 24.03.2022 passed in R.A. No.41 of 2016 by the learned Senior Civil Judge and MACT, Belur, Hassan, and the judgment and decree dated 04.08.2016 passed in O.S. No.60 of 2012 by the learned Civil Judge, Belur.

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was defendant No.2, and the respondent was the plaintiff.

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Brief facts, leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit for perpetual injunction against the defendants. It is the case of the plaintiff that the plaintiff is the absolute owner and in possession of the suit schedule property and the same was acquired under a registered sale deed dated 24.05.2000 for a valuable consideration. It is contended that the adjacent land owner by name Thimmegowda occupied the property measuring 5 feet on the east-west, and 200 feet on the northsouth, which belonged to the plaintiff towards the eastern side of the suit property.

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The plaintiff moved an application to the Town Municipality, Belur for the change of Khata to the extent of 58 feet: east-west, 200 feet: north-south. The Municipal Authority by observing the encroachment by the adjacent land owner, i.e., Thimmegowda, the khata was effected to the extent, as claimed by the plaintiff. Further, it is stated by the plaintiff that he is in possession, and enjoyment

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of the suit schedule property. The defendants have no right, title or interest over the suit schedule property, and tried to interfere with the peaceful possession of the plaintiff over the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit for perpetual injunction. Accordingly, prays to decree the suit.

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The defendants filed a written statement denying the averments made in the plaint and contended that the defendants are in peaceful possession and enjoyment of the suit schedule property. Defendant No.1 had acquired the property by a sale deed dated 05.11.1997, and accordingly, the khata was transferred in the name of defendant No.1. On 17.01.2008, defendant No.1 executed a gift deed in favour of defendant No.2 regarding the suit schedule property. Defendant No.2 is in possession of the suit schedule property. It is contended that the plaintiff is

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not in possession and enjoyment of the suit schedule

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property. Hence, prays to dismiss the suit.

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The Trial Court, based on the pleadings of the parties, framed the relevant issues.

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The plaintiff, to substantiate his case, examined himself as PW-1, and marked six documents as Exhibits P-1 to P-6.

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In rebuttal, defendant No.2 was examined as DW-1, and marked three documents as Exhibits D-1 to D-3.

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The Trial Court, after assessing the verbal and documentary evidence, decreed the suit of the plaintiff vide judgment dated 04.08.2016.

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The defendants, aggrieved by the judgment and decree passed in O.S. No.60 of 2012 preferred an appeal in R.A. No.41 of 2016.

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The First Appellate Court, after reassessing the verbal and documentary evidence, dismissed the

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appeal vide judgment dated 24.03.2022 and confirmed the judgment and decree passed by the Trial Court.

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Defendant No.2, aggrieved by the impugned judgments and decrees, preferred this Regular Second Appeal.

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Heard the arguments of the learned counsel for defendant No.2.

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The learned counsel for defendant No.2 submits that the plaintiff is not in possession and enjoyment of the suit schedule property and defendant No.2 is in possession and enjoyment of the suit schedule property. He submits that both the Courts below have not adequately appreciated the entire evidence placed on record. He also submits that in case this Court concludes that there is no substantial question of law that arises in this appeal, the liberty be

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reserved to defendant No.2 to file a comprehensive suit. Hence, he prays to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for defendant No.2.

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The plaintiff claims to be in possession of the suit schedule property under a registered sale deed dated 24.05.2000. The defendants also claim to be in possession of the suit schedule property.

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The defendants, in the course of cross-examination of PW-1, suggested that the disputed property ends up to the trench mark which appeared in Exhibits D1 and D2 parallel to the compound wall constructed by Thimmegowda as well as Bharati to their respective properties.

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As the defendants claim that the property of the plaintiff ends at 200 feet but from the suggestion made by the learned counsel for the defendants, it is clear that the property ends up to trench and the suit

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property is parallelly located with the properties of Thimmegowda and Bharati at North-East direction exactly in between their properties.

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The said suggestion itself is sufficient to hold that the plaintiff is in a lawful possession of the disputed property as of the date of filing the suit, and there is an interference by the defendants.

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Further, the plaintiff has also approached the police, but the police have advised the plaintiff to approach the civil court as the dispute between the parties to the suit is civil in nature.

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Both the courts below have concurrently recorded the finding of fact that the plaintiff has successfully proved, and demonstrated as to his lawful possession and enjoyment over the disputed property as of the date of institution of the suit.

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It is settled law that in a suit for bare injunction, the Court is required to see the possession and

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interference as of the date of filing of the suit. If there is any serious dispute regarding the extent, the defendant would be at liberty to work out his remedy in the appropriate proceedings before the appropriate forum.

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In this view of the matter, I do not find any error in the impugned judgment nor any substantial questions of law that arise for my consideration in this appeal. I concur with the findings recorded by the courts below.

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