Sri.R. Shankar Vs Sri.S. Hastimal Jain

SRI. S. HASTIMAL JAIN, S/O. LATE SOHAN LAL, AGED ABOUT 81 YEARS, RESIDING AT T.B. COLONY, G.P. RAJARATHNAM ROAD, 3^RD WARD, 1^ST DIVISION, GUNDLUPET TOWN, CHAMARAJANAGAR DISTRICT-571 111.

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.11.2024 PASSED IN R.A.NO.29/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUNDLUPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 27.09.2021 PASSED IN O.S.NO.148/2013 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, GUNDLUPET.

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NC: 2025:KHC:47153 RSA No. 1826 of 2024

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HC-KAR

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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. Heard the learned counsel for the appellant.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiff before

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the Trial Court while seeking the relief of permanent injunction, it is contended that suit schedule ‘A’ property is purchased by the plaintiff’s father on 03.05.1973 and the defendant is interfering with the peaceful possession and enjoyment of the suit schedule ‘B’ property. The suit schedule property is located in Gundlupet Town, which is morefully described in the schedule. It includes RCC building in the northern portion measuring 36 feet east-west and 48 feet north-south and vacant site in the southern portion measuring 45 feet east-west and 37 feet north-south. The western portion includes RCC building measuring 25 feet east-west and 37 feet north-south.

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HC-KAR

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These properties belongs to the plaintiff. The plaintiff has been in possession and enjoyment of the suit schedule property properties from the date of purchasing of the suit schedule property. After the death of his father, the plaintiff continued the possession and enjoyment over the suit schedule properties. The plaintiff is the absolute owner of the suit schedule properties and he is in peaceful possession and enjoyment of the same and no one else has any right over the suit schedule properties. The defendant attempted to encroach on the eastern portion of the plaint ‘B’ schedule property and unlawfully tried to construct a building and the same is resisted and hence filed the suit for the relief of bare injunction.

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In pursuance of the suit summons, the defendant appeared and filed the written statement denying the averments made in the plaint. It is contended that this property was purchased from H.Sreekanthayya and his son H.S.Chandrashekhar, represented by their agent H.S.Ramachandra and is located at Gundlupet Town under Municipal Khatha No.421/233 and the same is bounded as east: vacant land belonging to Harish brothers and backyard of

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HC-KAR

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H.C.Narasimhamoorthy, south: house and vacant land of V.S.Govindaraya and vacant land of G.A.Nagesh, west: a lane (galli) shared by two parties and vacant land belonging to the plaintiff’s father, Ramashetty and north: Municipal road. This property measuring 13 meters east-west and 27.70 meters north-south, included an old residential house with a compound in the front and a backyard. The defendant obtained permission on 23.12.1998 to construct shops on this property. They built shops on half of the property (15 meters east-west and 26.70 meters north-south), but retained the southern portion as vacant land due to financial constraints. A compound wall also existed at the back of the property, which later deteriorated due to weather conditions. The defendant contend that the plaintiff misused the situation and encroached on the defendant's property to construct a building. To the west of the plaintiff's property is Sri Rama Mandira of Gundlupet, which earlier encroached on the plaintiff's property during the construction of shops. Although the plaintiff filed a suit against Rama Mandira in Nanjangud Court and obtained a decree in his favour, but as per the decree, the plaintiff not taken possession of encroached area and he compromised with Sri Rama Mandira

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NC: 2025:KHC:47153 RSA No. 1826 of 2024

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HC-KAR

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and left the encroached area to Sri Rama Mandira. The plaintiff then allegedly attempted to occupy the defendant's vacant land to compensate for the encroachment by Sri Rama Mandira. The defendant had to intervene to stop the plaintiff's actions. A detailed written statement is filed that the plaintiff made an attempt to interfere with the possession of the defendant.

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The Trial Court having considered the pleadings of both the parties, framed the issues and allowed the parties to lead evidence and considering both oral and documentary evidence available on record, comes to the conclusion that during the evidence of P.W.1, he has admitted that he had constructed pillars in the disputed area and the said admission is contradicting to his claim that the defendant was interfering with his possession. The Trial Court also comes to the conclusion that the plaintiff has failed to prove peaceful possession of the entire suit schedule properties as described in the plaint and as per the admission of P.W.1, he has constructed the pillars in the disputed area, then interference from the defendant does not arise. The plaintiff utterly failed to prove his entire possession of the suit schedule property and

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NC: 2025:KHC:47153 RSA No. 1826 of 2024

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HC-KAR

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interference of the defendant. The plaintiff was unable to substantiate his contention and hence, dismissed the suit.

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Being aggrieved by the said order, an appeal is filed

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and the First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the plaintiff has established before the Trial Court that he is in possession of the suit schedule property as on filing of the suit and whether it requires interference of the Court. The First Appellate Court taken note of the pleadings made by the plaintiff and the defendant and also the evidence adduced in paragraph Nos.19, 20 and 21 and also considered the judgment of the Apex Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs. and Others reported in (2008) 4 SCC 594, wherein it is held that if the defendant raises a bonafide question regarding title and the plaintiff cannot establish their title, the suit for injunction alone may not be maintainable. The First Appellate Court also taken note of admission and comes to the conclusion that the Trial Court has not committed any error and confirmed the judgment of the Trial Court.

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NC: 2025:KHC:47153 RSA No. 1826 of 2024

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HC-KAR

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Being aggrieved by the concurrent finding, the

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present second appeal is filed before this Court.

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The main contention of the learned counsel for the

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appellant before this Court is that both the Courts are not justified in dismissing the suit in coming to the conclusion that the plaintiff has not established the possession in respect of the suit schedule property and the very approach is erroneous and hence it requires interference of this Court to admit and frame substantial question of law.

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Having heard the learned counsel for the appellant and also considering the pleadings of the plaintiff, in the plaint the plaintiff has described the ‘A’ schedule property and also the ‘B’ schedule property. ‘A’ schedule property is described as assessment No.485/393 measuring 36 + 45/2 x 85 feet and shown the northern portion east-west 36 feet and north-south 48 feet in respect of the building. In respect of ‘B’ schedule property is concerned, southern portion shown measurement as east-west 45 feet and south-north 37 feet and the same is a vacant site and also RCC building measuring 25 x 25 feet eastwest and south-north 37 feet and boundary is given on the

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HC-KAR

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southern side as Sri Rama Mandira. The Trial Court while considering the material available on record, particularly the pleadings, extracted the admission on the part of P.W.1 in paragraph No.21. The Trial Court also taken note of the schedule mentioned in the plaint and he has not given correct picture in respect of east and also taken note of the document produced by the defendant i.e. Ex.D.3 permission taken to put up the construction in respect of assessment No.486/394. The Trial Court also taken note of that D.W.2 in his evidence has stated that there is a house on the east of D.W.2 and particularly taken note of the boundary in respect of Ex.D.15 while making the khatha in respect of the plaintiff in assessment No.485/485/393 and permission was given to construct the building. The Trial Court also taken note of the pleading made by the plaintiff in respect of encroachment attempt made by the defendant in respect of ‘B’ schedule property. A suggestion was made to P.W.1 that he himself has encroached the property of the defendant and making false claim against the defendant. However, P.W.1 admitted the document confronted to him as per Ex.D.7 for having put the pillars. Hence, the Trial Court made an observation that the

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NC: 2025:KHC:47153 RSA No. 1826 of 2024

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HC-KAR

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contention of the plaintiff cannot be accepted and answered issue Nos.1 and 2 in the negative.

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The First Appellate Court also while re-considering

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both oral and documentary evidence available on record, taken note of admission on the part of P.W.1, that he had constructed the pillars in the disputed area i.e., Ex.D.7. The said admission is contrary to his claim that the defendant was interfering with his possession and such observation is made in paragraph No.21 and comes to the conclusion that based on the evidence, there are discrepancies in the plaintiff’s claim regarding property dimensions and boundaries. The First Appellate Court also taken note of the claim made by the plaintiff and the boundary description given in the plaint. When such being the case, when the larger area is claimed by the plaintiff, the Trial Court rightly dismissed the suit and the First Appellate Court also confirmed the same that not shown the correct boundaries as shown in the sale deed in respect of the southern boundary of the plaintiff and the southern boundary shown in the plaint is not in consonance with the sale deed. Hence, I do not find any ground to admit the second appeal and frame any substantial

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