Vijaya Chawta Vs Greta Goveas

RESPONDENT NO.1 IS THE WIDOW AND RESPONDENT NO. 2 TO 5 ARE CHILDREN OF DECEASED VALERIAN GOVEAS ALL ARE RESIDING AT MUGERU HOUSE, SANGABETTU VILLAGE, SIDDAKATTE POST, BANTWAL TALUK, D.K DISTRICT - 574 238.

¶27

PAUL JERALD GOVEAS S/O LATE JOHN EDWIN GOVEAS, AGED ABOUT 61 YEARS, RESIDING AT MUGERU HOUSE, SANGABETTU VILLAGE, SIDDAKATTE POST, BANTWAL TALUK, D.K DISTIRCT - 574 237.

¶28

…RESPONDENTS

¶29

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.06.2023.PASSED IN RA NO.16/2015 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.03.2015 PASSED IN OS NO.138/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, BANTWAL, D.K.

¶30

3 -

¶31

NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶32

HC-KAR

¶33

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

¶34

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

¶35

ORAL JUDGMENT

¶36

Heard Sri. Ravishankar Shastry G., learned counsel for the appellants.

¶37

This Court did not deem it fit to issue notice to

¶38

the respondents having regard to the issue involved in the appeal.

¶39

Defendant is the appellant challenging the

¶40

decreeing of the suit in O.S.No.138/2007 confirmed in R.A.No.16/2015.

¶41

Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

¶42

4.1 A suit for bare injunction came to be filed in respect of the following immovable property (hereinafter referred to as 'suit schedule properties'):

¶43

4 -

¶44

NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶45

HC-KAR

¶46

PLAINT 'A' SCHEDULE PROPERTY

¶47

Immovable property situated in Sangabettu village of Bantwal Taluk, comprised in

¶48

*Item No.I -*	*Sy.No.*	*Extent (acres)*
	67/91	0.20
	67/9BP4	0-57

¶49

more fully described in the red colour in the eye sketch filed along with the plaint.

¶50

*Item No.II -*	*Sy.No.*	*Extent (acres)*
	67/9AP2	0.06
	67/9BP1	0-28
*Item No.III -*	*Sy.No.*	*Extent (acres)*
	67/9BP7	0.05

¶51

Item No.II and III morefully described in the green colour in the eye sketch filed along with the plaint.

¶52

PLAINT 'B' SCHEDULE PROPERTY

¶53

Immovable property situated in Sangabettu village of Bantwal Taluk, comprised in

¶54

*Item No.I -*	*Sy.No.* *Extent (acres)*
more fully descr with the plaint.	284/3 1.00 ibed in the blue colour in the eye ske
*Item No.II -*	*Sy.No.* *Extent (acres)* 284/3 0.80

¶55

more fully described in the blue colour in the eye sketch filed along with the plaint.

¶56

morefully described in the yellow colour in the eye sketch filed along with the plaint.

¶57

4.2 Plaintiffs filed the suit for the relief of

¶58

permanent injunction restraining the defendants from interfering with the plaintiffs exercising the 'Kumki'

¶59

5 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶60

HC-KAR

¶61

rights/privileges in respect of the 'B' Schedule properties except use of roadway in the Plaint 'B' Schedule Properties.

¶62

4.3 Plaintiffs claim that plaintiff No.1 is the coowner of item No.1 of Plaint 'A' Schedule Properties along with other children and his father. During the lifetime of the father of the first plaintiff and after his death, first plaintiff has effected vast agricultural improvements in the item No.1 of the Plaint 'A' schedule properties. There exists a house, hatti and kottige in item No.1 of the 'A' Schedule property and after the death of his father Felix Goveas, first plaintiff and his brother are in exclusive possession and enjoyment of item No.1 of Plaint 'A' schedule properties. Item No.1 of the Plaint 'B' Schedule properties forms direct Kumki to item No.1 of the Plaint 'A' Schedule Properties and plaintiff No.1 is possession and enjoyment of item No.1 of the 'B' Schedule Properties which consists of green manure, wild tree growths.

¶63

6 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶64

HC-KAR

¶65

4.4 He has also effected agricultural improvements in item No.1 of the Plaint 'B' Schedule properties and planted cashew nut trees and other fruit bearing trees.

¶66

4.5 Item No.1 of the Plaint 'A' Schedule Properties is demarcated in red colour and Plaint 'B' schedule properties is shown in blue colour in the sketch annexed to the plaint and defendants without there being any right in respect of the suit schedule properties, started interfering with the suit properties and attempted to dig a trench in the Plaint 'B' Schedule properties necessitating the plaintiffs to approach the Court with a prayer for permanent injunction.

¶67

Pursuant to the suit summons, defendants entered appearance and filed written statements denying the plaint averments.

¶68

They further contended that defendants have also applied for grant of the land to the competent authorities which is pending before the competent

¶69

7 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶70

HC-KAR

¶71

authority and he had every right to make use of the public road and therefore the exclusive ownership in respect of the Plaint 'B' schedule properties is not available to the plaintiffs as plaintiffs are only claiming the 'kumki' rights over the Plaint 'A' and 'B' Schedule properties based on the 'Kumki' rights/privileges and thus sought for dismissal of the suit.

¶72

Learned Trial judge after raising necessary issues, recorded the evidence of the parties and in cumulative consideration of oral and documentary evidence placed on record, decreed the suit of the plaintiffs.

¶73

Being aggrieved by the same, defendants filed an appeal before the First Appeal Court in R.A.No.16/2015.

¶74

Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the factual and legal

¶75

8 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶76

HC-KAR

¶77

aspects of the matter, dismissed the appeal of the defendants and confirmed the injunction decree granted in favour of the plaintiffs.

¶78

Being further aggrieved by the same,

¶79

defendants are before this Court on the following grounds and substantial questions of law:

¶80

GROUNDS:

¶81

The Judgement and Decree under challenge are is opposed to law and the facts of the case.

¶82

The appreciating of evidence of the Courts below are perverse and suffers from serious infirmities. Courts below have failed to appreciate the evidence on record in proper perspective.

¶83

The Courts below ought to have held that the plaintiffs have failed to prove exclusive and lawful possession of plaint B schedule properties and thus ought to have dismissed the suit.

¶84

Courts below have wrongly relied upon EX P 2 i.e an eye sketch to hold that plaint B schedule properties falls within 450 links from plaint A schedule properties. EX P 2 was denied by the defendants and EX P 2 was marked subject to proof and there is no evidence proving eye sketch. Thus, impugned Judgement and decree which is based upon an eye sketch is liable to be set aside.

¶85

It is submitted that the plaint B schedule and is unidentifiable. The plaintiffs have not stated in which portion of plaint B schedule land road passes. EX P 2 the sketch also does not show the existence of the road where as in the plaint it was claimed that road was formed forcibly before institution of the suit. When the

¶86

9 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶87

HC-KAR

¶88

Courts below have accepted the defence that there is a roadway in the plaint B schedule properties, Courts below have erred in passing the decree without their being proper identification of the properties. Thus, impugned Judgement and Decree are liable to be set aside.

¶89

Undisputedly, plaint B schedule lands are larger extent of lands and it measures 7-47 acres as admitted by PW 1. The documents placed on record and evidence tendered showed that there are claims for regularization of the land in Sy No 284/3 and that Khadim warga lands of other persons i.e mother of defendant No 2 is also adjacent to Sy No 284/3 and therefore, plaintiffs have utterly falled to prove their exclusive right and possession over plaint B schedule properties. Hence, Impugned Judgement and Decree are liable to be set aside.

¶90

It is relevant to state hereitself that there was no evidence in respect of claim of plaintiff No 2. Plaintiff No 2 never stepped in to the witness box and PW 1 who was examined though has stated that he is tendering evidence on behalf of plaintiff No 2 also nevertheless admitted that plaintiff No 2 has not given any power of attorney to him to lead evidence on his behalf. It was also admitted by PW 1 that Sy No 67/28A belongs to mother of defendant No 2 and now said land is being looked after by defendant No 1. It was also admitted by PW 1 that Sy No 67/28A is a Khadim warga land. PW 1 during the course of cross examination has also stated that his wife had given application for regularization for the land in dispute. PW 1 has also stated that he is not aware as to how many persons are in possession of Sy No 284/3. PW 1 had also admitted that he is not having any document showing possession of plaint B schedule properties. Thus, it is clear that by the evidence of PW 1 it is proved that plaintiff has failed to prove his alleged possession over plaint B schedule property which the Courts below have failed to appreciate.

¶91

It is submitted that evidence of DW 1 clearly show that defendants are in possession of land in SY No 284/3 and that there is grant proceedings in favour of the defendant No 1 and the grant proceedings produced a EX D 1 to D 4 clearly show that defendant No 1 is in possession of an area of 1-03 Acres of the land in Sy No 284/2. Therefore,

¶92

10 - NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶93

HC-KAR

¶94

when the defendant No 1 has proved that the plaintiffs have failed to prove their exclusive possession and has shown the defendant No 1 too is in possession of the land in Sy No 284/2, Courts below have erred in decreeing the suit without their being proper identification of the plaint B schedule properties.

¶95

SUBSTANTIAL QUESTIONS OF LAW::

¶96

(1) Whether the Courts below have erred in law in decreeing the suit for permanent injunction when the plaintiff has failed to give boundaries of plaint B schedule properties especially when the lands in Sy No 284/3 totally measures 7-74 Acres of land ?

¶97

(ii) Whether the findings of the Courts below that the plaintiff is in possession and enjoyment of the plaint B schedule lands is opposed to oral and documentary evidence (EX D 1 to D 4) and opposed to admission of PW 1 during the course of cross examination admitting that he is not having any evidence to prove his possession of plaint B schedule lands ?

¶98

(III) Whether the Courts below have erred in decreeing the suit of plaintiff No 2 when plaintiff No 2 has not tendered any evidence?

¶99

Sri. Ravishankar Shastry G., learned counsel for

¶100

the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that defendant is

¶101

11 -

¶102

NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶103

HC-KAR

¶104

restrained from using the pathway/roadway as held by virtue of the decree by the plaintiffs, when the plaint relief itself is only to the extent of non-interference of the defendants except the pathway, resulting in grave miscarriage of justice and sought for admitting the appeal for further consideration.

¶105

Sri. Ravishankar Shastry G., would further contend that the defendants have also filed an application seeking grant of land in their favour to the competent authorities and the said application is pending consideration and therefore defendants cannot be restrained from utilizing the pathway/roadway to reach their land by the decree passed by both the Courts and thus sought for admitting the appeal.

¶106

Having heard the arguments of Sri. Ravishankar Shastry G., this Court perused the material on record meticulously.

¶107

12 -

¶108

NC: 2025:KHC:38356 RSA No. 1759 of 2023

¶109

HC-KAR

¶110

On such perusal of material on record, the very plaint relief itself is to the effect that the defendants are to be restrained from digging of trench or altering the plaint 'B' Schedule properties. But, they have not sought for any other relief before the Trial Court with regard to the usage of the pathway/road way of the defendant.

¶111

Thus, the decreeing of the suit by the Trial Court based on the 'Kumki' rights/privileges in respect of Plaint 'A' Schedule Properties and Plaint 'B' Schedule Properties forming part of Plaint 'A' Schedule properties is just and proper.

¶112

Further, if the application filed by the first defendant to the competent authorities is disposed in their favour, they can always file necessary proceedings to protect their interest in respect of the properties i.e., subject matter of their grant.

¶113