Sri.S.v. Venkateshappa Vs Sri.Nagaraju

SMT. ANASUYA W/O SRI. SRINIVASA KRISHNAPPA D/O LATE SRI. S.V. VENKATESHAPPA AGED ABOUT 40 YEARS R/AT TAGGALI HOSAHALLI VILLAGE JADIGENAHALLI POST, HOSAKOTE TALUK BENGALURU RURAL DISTRICT.

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SRIMATHI W/O SRI. SHANKAR D/O LATE SRI. S.V. VENKATESHAPPA AGED ABOUT 34 YEARS

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R/AT 3^RD MAIN ROAD, HARISH NILAYA KSRTC DEPOT BACK SIDE, KOLAR.

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…APPELLANTS

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(BY SRI. SRINIVASAN T. AND SRI. V. CHANDRASHEKAR, ADVOCATES)

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AND:

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SRI.NAGARAJU S/O LATE SRI. DODDA ANEPPA, AGED ABOUT 48 YEARS, R/AT KACHAHALLI VILLAGE, KASABA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPUR DISTRICT.

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SRI. DEVARAJU S/O LATE SRI. DODDA ANEPPA,

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AGED ABOUT 41 YEARS, R/AT KACHAHALLI VILLAGE, KASABA HOBLI, CHINTAMANI TALUK, CHIKKABALLAPUR DISTRICT.

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…RESPONDENTS

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(BY SRI. G B MANJUNATHA, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.11.2018 PASSED IN RA NO 12/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHINTAMANI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.12.2015 PASSED IN OS NO 264/2013 ON THE FILE OF THE ADDL.CIVIL JUDGE AND JMFC CHINTAMANI.

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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 03.11.2018 passed in RA No.12/2016 by the learned Senior Civil Judge and JMFC, Chintamani, and the judgment and decree dated 02.12.2015 passed in OS No.264/2013 by the learned Additional Civil Judge and JMFC, Chintamani.

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For convenience, the parties are referred to, based

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on their rankings before the Trial Court, i.e., the appellant

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was the plaintiff, and the respondents were the

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defendants.

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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 against the defendants for perpetual injunction. It is the case of the plaintiff that, the suit schedule property is in Gramathana and his ancestors were tethering cattle and making use for the agriculture purpose for more than 6 decades and in 2006, the name of the plaintiff was entered in the assessment, and demand register extract. The defendants having a residential house towards the south of his property, having no rights, title, interest or possession, interfered with the peaceful physical possession and enjoyment 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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HC-KAR

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The defendants filed a written statement denying the averments made in the plaint and it is also contended that, the defendants are in peaceful physical possession and enjoyment towards the suit schedule property. It is contended that, the plaintiff has given wrong boundaries and measurements by tampering the Panchayat records. The plaintiff cannot claim title, unless it is granted by the competent authority. It is contended that, merely the suit is filed for an injunction, without seeking a relief for declaration of title. It is also contended that, the plaintiff is in possession to the extent plaintiff east-west 20 ft. and north-south 50 ft. and the plaintiff is claiming to the extent of east-west 120 ft. and north-south 159 ft. Hence, prayed 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 seven documents as Exs.P1 to P7. In rebuttal, defendant No.2 examined himself as

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DW-1, examined one witness as DW-2, and marked 11

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documents as Exs.D1 to D11.

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The Trial Court, after assessing the verbal and documentary evidence, dismissed the suit of the plaintiff and reserved the liberty to the plaintiff to seek appropriate relief in accordance with principles laid down by the Hon’ble Supreme Court in the case of Anathula

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Sudhakar Vs. P. Buchi Reddy¹ .

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The plaintiff, being aggrieved by the dismissal of the suit, preferred an appeal in RA No.12/2016 on the file of the learned Senior Civil Judge and JMFC, Chintamani. The First Appellate Court, on re-assessing the verbal and documentary evidence, dismissed the appeal vide judgment dated 03.11.2018. The plaintiff, being aggrieved by the impugned judgments and decrees, filed this Regular Second Appeal.

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Heard the arguments of learned counsel for the plaintiff.

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1 AIR 2008 SC 2033

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HC-KAR

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Learned counsel for the plaintiff submits that, the plaintiff is in possession of east-west 120 ft. and northsouth 159 ft. in the suit schedule property. He submits that, the plaintiff has produced the records to establish that the plaintiff is in possession to the extent of eastwest 120 ft. and north-south 159 ft. The said aspect was not properly considered by the Trial Court and he also submits that, the defendants have admitted the possession of plaintiff to the extent of 20 x 50 ft. Hence, the Trial Court committed an error in dismissing the suit of the plaintiff. Therefore, the First Appellate Court, without adequately appreciating the evidence on record, dismissed the appeal. Hence, on these grounds, he submits that the impugned judgments and decrees passed by the Courts below, are arbitrary and erroneous, and accordingly, prays to allow this appeal.

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Perused the records, and considered the submissions of learned counsel for the plaintiff.

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The plaintiff has filed a suit for perpetual injunction claiming to be in possession of the suit schedule property to the extent of east-west 120 ft. and northsouth 159 ft. To substantiate that, the plaintiff is in possession, he has not produced any records. The plaintiff has produced a record to show that he is in possession to the extent of 20 x 50 ft., but did not produce any records to show that he is in possession of 120 x 159 ft. The plaintiff also did not produce any records to show as to how the plaintiff has acquired the property, more than what is shown in Ex.P3 i.e., copy of mutation register. Ex.P3 is not supported by any piece of evidence to establish as to how the plaintiff acquired the property to the extent of 120 x 159 ft. The defendants have denied the title of the plaintiff over the suit schedule property. There is a serious dispute regarding the to title over the suit schedule property. The scope of a suit for bare injunction is very limited. In a suit for injunction, the Court is required to see, as of the date of institution of the

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suit, that whether the plaintiff is in possession of the suit schedule property? Admittedly, the plaintiff has failed to prove that, he is in possession of 120 x 159 ft. of the suit property. The Trial Court, placing reliance on the judgment of the Supreme Court in the case of Anathula Sudhakar (supra), has rightly held that, the suit filed by the plaintiff for perpetual injunction is not maintainable without seeking the relief of a declaration. The Trial Court reserved the liberty to the plaintiff to seek appropriate relief before a proper forum. In view of the proposition laid down by the Hon’ble Supreme Court in Anathula Sudhakar (supra), I do not find any error in the impugned judgments. I concur with the findings recorded by the Courts below. I do not find any substantial question of law that arises for my consideration in this appeal. Accordingly, I proceed to pass the following:

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ORDER

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i. The Appeal is dismissed ;

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HC-KAR

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ii. The judgment and decree dated 03.11.2018 passed in RA No.12/2016 by the learned Senior Civil Judge and JMFC, Chintamani and the judgment and decree dated 02.12.2015 passed in OS No264/2013 by the learned Additional Civil Judge and JMFC, Chintamani are hereby confirmed;

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iii. No order as to costs.

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iv. In view of dismissal of the appeal, IA No.2/2019 does not survive for consideration, and accordingly, stands disposed of.

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Sd/(ASHOK S.KINAGI) JUDGE

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PA List No.: 1 Sl No.: 10

Sri.S.v. Venkateshappa v. Sri.Nagaraju

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Sri.S.v. Venkateshappa v. Sri.Nagaraju

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