Sri. Murugesh Vs Sri. Yankanaika

THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.08.2018 PASSED IN RA NO 04/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HARIHAR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.04.2016 PASSED IN OS.NO.212/2009 ON THE FILE OF THE C/C ADDITIONAL CIVIL JUDGE AND JMFC, HONNALI.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 05.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY, RAJESH RAI K, J., DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE RAJESH RAI K)

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This is plaintiff's second appeal.

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The plaintiff filed a suit for permanent injunction against the defendants - Yankanaika and A.K.Lokappa restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

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The case of the plaintiff is that his father-Gopalappa was in possession and unauthorised cultivation of land measuring 4 acres in Sy.No.66/H situated at Gundichatnahalli Village, Honnali Taluk with the boundaries i.e., East-land of Somla Naika, West-land of Nagendrappa and Ismail Sab, NorthChannal and South-land of Nagabhushan Horegoppa,

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HC-KAR

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Somashekarappa, Parvathamma, Lokappa and Yenkyanaika and others (for brevity, " the suit schedule property "), since 1961-62 onwards and since 1982-83, the plaintiff was in possession of the same along with his father and in column No.12 of RTC, the name of the plaintiff was entered for the year 1982-83 to 84-85. As such, the plaintiff had applied to the Government for regularization of unauthorised cultivation, which is pending consideration.

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It is the further case of the plaintiff that his father in the year 1985 had filed O.S.No.52/1985 seeking permanent injunction against one Ashraft Alikhan, which was decreed on 23.11.1985. Thereafter, the plaintiff had also filed O.S.No.272/2000 seeking permanent injunction against Parvathamma, Jayappa and Somashekharappa which was decreed on 20.09.2004.

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Subsequently, on 26.10.2009, the defendants, having no manner of right, title or interest over the suit scheduled property, interfered with the peaceful possession of the plaintiff. As such, the plaintiff filed the present suit in

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HC-KAR

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O.S.No.212/2009 seeking permanent injunction against the defendants.

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Defendant No.2, having contested the matter by filing written statement, denied the plaint averments contending that land in Sy.No.66/H totally measures 164 acres 12 guntas and it is a government forest land and the plaintiff was not in actual possession of the suit schedule property and it was defendant No.2 who was in unauthorised cultivation of the suit schedule property.

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The Trial Court, having considered the rival pleadings of both the parties, framed relevant issues and after examining the evidence and material produced, dismissed the suit on the ground that the plaintiff has failed to prove his actual possession over the suit schedule property and as such, question of interference by the defendants had become irrelevant.

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On appeal by the plaintiff, the First Appellate Court, on re-appreciation of evidence and materials on record, dismissed

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HC-KAR

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the appeal concurring with the findings of the Trial Court. Aggrieved by the same, the plaintiff is before this Court.

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I have heard Sri G.Lakshmeesh Rao, learned counsel for

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the plaintiff/appellant. The defendants/respondents though served have remained unrepresented.

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The primary contention of the learned counsel for the plaintiff is that when the suits filed in O.S.Nos.52/1985 and in O.S.No.272/2000 by his father and himself respectively have been decreed in their favour granting permanent injunction in respect of very same suit schedule property by recording the finding that the plaintiff is in possession of the suit schedule property, both the Trial Court and the First Appellate Court have failed to consider the said aspect and on the other hand, erred in holding that the said decrees were not binding since the same were passed by the Court of Junior Division. He further contended that though the boundaries of the suit schedule property in O.S.Nos.52/1985 and O.S.No.272/2000 were same as in the present suit i.e., O.S.No.212/2009 and that the defendants' property is situated in the northern side of the suit schedule property and their interference has been

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HC-KAR

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proved by the evidence of P.Ws.1 to 3, both the Courts have also failed to consider the said aspect. As such, the plaintiff is entitled for grant of permanent injunction. Accordingly, he prays to allow the appeal.

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I have given my anxious consideration to the submissions made by the learned counsel for the plaintiff/appellant and perused the materials on record.

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This Court while admitting this appeal, has framed the

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following substantial questions of law:

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Whether findings by Court of facts is vitiated by non-consideration of relevant evidence on record or by essentially wrong approach?

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Whether the Court of facts erred in law in overlooking Ex.P2 and Ex.P3?

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Whether the Court of facts erred in law in holding that the decree passed in O.S.No.52/1985 and O.S.No.272/2000 are not binding on the Court which squarely evidences the possession of the appellant over the suit land?

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As could be gathered from records, the plaintiff has filed

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application seeking regularization of his possession and unauthorised cultivation of suit schedule property in the year

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HC-KAR

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1985 and the same is pending for consideration. Further, Sy.No.66/H is a vast extent of land and the plaintiff's father in O.S.No.52/1985 and the plaintiff in O.S.No.272/2000 sought permanent injunction in respect of very same suit schedule property with the very same boundaries as in the present suit i.e., O.S.No.212/2009. The Trial Court in both the suits i.e., in O.S.No.52/1985 and O.S.No.272/2000 had granted permanent injunction restraining the defendants therein from interfering with the peaceful possession of suit schedule property by the plaintiff. Thus, it is clear that the plaintiff has been in peaceful possession of suit schedule property. Further, on perusal of the evidence of P.Ws.1 to 3, all these witnesses have categorically deposed that the defendants, who were residing in the northern portion of suit schedule property made an attempt to interfere with the peaceful possession of suit schedule property by the plaintiff and as such, the plaintiff approached the jurisdictional police for suitable action. However, the jurisdictional police did not take any action on the ground that the dispute between the plaintiff and the defendants is of civil nature. The finding of the Trial Court and the First Appellate Court that the plaintiff failed to prove his title in accordance with law and as such, he is not

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HC-KAR

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entitled for relief of injunction does not hold good for the simple reason that this Court and the Apex Court in catena of judgments held that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession, he may even use reasonable force to keep out a trespasser. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted.

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Further, since the judgments and decrees passed in O.S.No.52/1985 and O.S.No.272/2000 squarely evidenced the possession of the plaintiff over the suit schedule property, both the Courts have failed to consider the said aspect in respect of possession of the plaintiff over the suit schedule property.

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In view of the above, the substantial questions of law are answered in the "affirmative". Accordingly, I proceed to pass the following:

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ORDER

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i) The appeal is allowed.

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HC-KAR

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ii) The impugned judgments and decrees passed in O.S.No.212/2009 and

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R.A.No.4/2017 are set aside.

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iii) The suit of the plaintiff is decreed granting permanent injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.

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iv) It is made clear that this judgment shall not come in the way of the Committee for Regularization of Unauthorised Cultivation, where the application filed by the plaintiff seeking regularization of his unauthorised cultivation is pending for consideration, while considering the said application.

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SD/(RAJESH RAI K) JUDGE

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PKS/List No.: 1 Sl No.: 1

Sri. Murugesh v. Sri. Yankanaika

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Sri. Murugesh v. Sri. Yankanaika

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