The Commissioner Vs Smt. Mahadevi

SMT. MAHADEVI W/O VINAYAKA SADANANDA YALLAPURKAR AGED ABOUT 63 YEARS SUPERINTENDENT SOCIAL WELFARE DEPARTMENT R/O WARD NO.21, NEHRU NAGAR SAGAR TOWN-577 401.

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…RESPONDENT (RESPONDENT SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.09.2023 PASSED IN R.A.NO.10045/2022 (OLD R.A.NO.19/2019) ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT SAGAR, DISIMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED

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NC: 2025:KHC:39783 RSA No. 2229 of 2023

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HC-KAR

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08.01.2019 PASSED IN O.S.NO.187/2015 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, SAGAR.

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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 appellant.

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The suit is filed for the relief of permanent

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injunction before the Trial Court in O.S.No.187/2015. The plaintiff had sought for the relief of permanent injunction based on the sale deed dated 12.12.2005. According to the said sale deed, the plaintiff has purchased the property and she is in possession of the suit schedule property and specific pleading was made that the defendant on 10.07.2015 came with 6-7 of their workers near the suit schedule property and tried to form a road on the eastern side of the suit schedule property. Hence, contend that there is a threat and also interference by the defendant in enjoyment of the suit schedule property by the plaintiff and she approached the Court by filing the suit.

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HC-KAR

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In respect of the said claim, the plaintiff examined herself as P.W.1 and also examined one witness as P.W.2 and got marked the documents as Exs.P1 to P11, particularly the documents which have been placed before the Trial Court to show that the plaintiff is in occupation of the suit schedule property i.e., tax paid receipts, photographs and CD which are marked as Exs.P6 to P9.

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The case of the defendant is that plaintiff is trying to encroach upon the property i.e., the conservancy which belongs to the defendant. The Trial Court having considered both oral and documentary evidence placed on record while granting the relief of declaration, particularly in paragraph No.12 made an observation with regard to though defendant contend that plaintiff is making an attempt to encroach upon the property i.e., conservancy belonging to the defendant, but nothing is placed on record to that effect and even not examined any witness, except cross-examining P.W.2. Hence, the Trial Court granted the relief of permanent injunction in respect of the suit schedule property of the plaintiff.

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NC: 2025:KHC:39783 RSA No. 2229 of 2023

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HC-KAR

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Being aggrieved by the same, an appeal is filed before the First Appellate Court and the First Appellate Court having re-assessed both oral and documentary evidence placed on record, framed the point for consideration with regard to an application filed under Order 26, Rule 9 of CPC for appointment of Court Commissioner and also point for consideration is framed whether the finding of the Trial Court is perverse, capricious and arbitrary and based without proper appreciation of evidence.

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The First Appellate Court having considered these points for consideration, comes to the conclusion that there is no need of appointment of any Commissioner and the plaintiff has only sought for the relief of permanent injunction in respect of the suit schedule property and also with regard to the alleged attempt to encroach the property of the defendant is concerned, nothing is placed on record and while answering point No.2 with regard to claim of the plaintiff is concerned and also the contention of the appellant-defendant before the Court, an observation is made in paragraph Nos.21 and 22 that admittedly, defendant has not entered into witness box or led any evidence either oral or documentary evidence before the

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HC-KAR

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Court and also taken note of the fact that P.W.2 was crossexamined and it is elicited that on the eastern side of the suit schedule property, there is conservancy and further elicited that on the eastern side conservancy and on the western side road, in between, there is a land and the said land belongs to the plaintiff and taken note of very existence of the property and identification of the property of the plaintiff and also defence with regard to conservancy is concerned and the same is discussed in paragraph No.23. When the defendant has suggested P.W.2 that the defendant has not encroached the suit schedule property, but it is repairing the existing conservancy for which he has denied the same.

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It is also observed by the First Appellate Court that in the instant case, admittedly, there is no dispute with regard to existence of conservancy road on the eastern side of the suit schedule property. However, the plaintiff inspite of it, in order to prove the conservancy road on the eastern side of the suit schedule property since from the beginning the plaintiff relied on Exs.P1 to P3, sale deeds. Before discussing about Exs.P1 to P3, sale deeds, it is necessary to see the schedule of the suit schedule property and detailed discussion was made with

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HC-KAR

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regard to measurement is concerned. When such being the case and considering the material on record, particularly in paragraph No.26, an observation is made that in the present case, the defendant though appeared through its advocate and filed the written statement before the Trial Court and though the plaintiff has filed the said suit against the defendant, the defendant has not entered into the witness box and in order to come to the conclusion that plaintiff made an attempt to encroach upon the property i.e., conservancy belonging defendant, nothing is placed on record and having re-assessed both oral and documentary evidence placed on record, comes to the conclusion that Trial Court has not committed any error in granting the relief of permanent injunction. Hence, the present second appeal is filed before this Court.

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The learned counsel appearing for the appellant would vehemently contend suggesting a substantial question of law that both the Courts were justified in decreeing the suit without considering Section 284 of Karnataka Municipalities Act, 1964 and both the Courts, without considering the material on record and only based on the photographs and in the absence of any independent material, granted the relief of

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NC: 2025:KHC:39783 RSA No. 2229 of 2023

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HC-KAR

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permanent injunction. Having taken note of said contention taken in the appeal also, no such plea was taken before the Trial Court, except taking the defence before the Trial Court that there is a provision for an appeal and Civil Court has no jurisdiction and when the right of the plaintiff is affected and when there was a threat of interference for enjoyment of the property of the plaintiff, a suit is filed and the very contention that Civil Court has no jurisdiction cannot be accepted.

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On the other hand, the Trial Court also taken note of the contention that the defendant took specific defence that plaintiff is making an attempt to encroach upon the property of the defendant. But, the same is not substantiated by placing any oral or documentary evidence and the appellant has not led any evidence before the Trial Court. When such being the case, I do not find any ground to admit the appeal and frame any substantial question of law and no infirmity is found in the order of the Trial Court and the First Appellate Court. Hence, no ground to admit the appeal and frame any substantial question of law.

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