Subramanya Vs Srikanth Shastri

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023 PASSED IN R.A No. 16/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2019 PASSED IN O.S No. 188/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.

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IN RSA NO. 947/2023

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BETWEEN:

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SUBRAMANYA

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S/O SHANKARA SHETTY AGED ABOUT 73 YEARS R/AT SHIVASRAJPURA DOORAVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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BHASKARA SHETTY S/O SHANKARA SHETTY AGED ABOUT 71 YEARS R/AT SHIVARAJAPURA DOORVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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...APPELLANTS

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HC-KAR

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(BY SMT. BHUSHANI KUMAR, ADVOCATE)

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AND:

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S.C. SRIKANTH S/O LATE CHIDAMABARA SHASTRY AGED ABOUT 65 YEARS R/AT SHIVARAJAPURA DOORVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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GANESH SHASTRY S/O LATE CHIDAMABARA SHASTRY AGED ABOUT 55 YEARS

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R/AT SHIVARAJAPURA DOORVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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PRASHANTHA S/O LATE CHIDAMABARA SHASTRY AGED ABOUT 53 YEARS

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R/AT SHIVARAJAPURA DOORVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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UMAKANTH S/O LATE CHIDAMABARA SHASTRY AGED ABOUT 62 YEARS

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R/AT SHIVARAJAPURA DOORVASAPURAM POST THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432

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...RESPONDENTS

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(BY SRI. ASHWATH C.M, ADVOCATE FOR C/R1 TO R4

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HC-KAR

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(CP.1928/2023 & 8004/2023))

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023 PASSED IN RA No. 17/2019 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, THIRTHALALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.07.2019 PASSED IN O.S No. 181/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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COMMON ORAL JUDGMENT

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These two appeals are listed for admission. Heard

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the learned counsel appearing for the respective parties. Both the appeals' subject matters are similar and hence taken together for consideration.

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The factual matrix of the case is that these two appeals have been filed against the concurrent findings of the Trial Court and the Appellate Court, wherein, the Trial Court granted the relief of permanent injunction in respect of the suit schedule property coming to the conclusion that the plaintiff is in possession of the suit schedule property

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HC-KAR

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and the mutation register extract, demand register extract, tax paid receipts and partition deed evidence the fact that the plaintiff is in possession of the suit schedule property.

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The main contention of the counsel appearing for the appellants/defendants before the Trial Court is that the suit schedule property is a government property and the plaintiff does not have any title or interest over the suit schedule property and ought to have filed the suit for relief of declaration instead of the relief of only bare injunction was sought and the said contention of the appellants/defendants was turned down by the Trial Court as well as the First Appellate Court. Hence, the second appeals are filed before this Court.

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The main contention of the counsel appearing for the appellants in both the appeals that these two judgments and decrees arise out of different decrees passed in O.S.No.181/2011 and also O.S.No.188/2011 and also against the appeals in R.A.Nos.16/2019 and 17/2019.

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HC-KAR

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The grounds that have been urged in both the appeals are similar and counsel also vehemently contend that both the Courts have committed an error in coming to the conclusion that plaintiffs are in possession of the suit schedule property when identity of the suit schedule property is in dispute and not passed the speaking order. When an application is filed before the First Appellate Court for appointment of a Court Commissioner, the Appellate Court fails to take note of the said fact into consideration. Hence, this Court has to frame the substantial question of law by admitting the appeals since matters require reconsideration.

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Per contra, the learned counsel appearing for the respondents would contend that both the Courts while considering the respective suits taken note of the documentary evidence placed before it, particularly documents at Ex.P1 to 25 and considered mainly the documents at Ex.P1, P2 to 4 and also Ex.P5, 6 and 7 which clearly establish the fact that the plaintiffs are in

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HC-KAR

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possession of the suit schedule property. The only contention is that the property belongs to the government and also the counsel brought to the notice of this Court that a resolution was passed by the government stating that it is a private property and not the government property, thus, the question of seeking a relief of declaration does not arise since the defendants are not claiming any title in respect of the suit schedule property and the question of seeking for consequential relief does not arise.

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Having heard the learned counsel appearing for

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the appellants and respondents and considering the factual aspects of the case, it discloses that the plaintiffs specifically pleaded before the Trial Court while seeking the relief of permanent injunction that they are in possession of the suit schedule property and there was a partition deed among the family members in the year 2001 itself and the suit was filed in the year 2011 when the interference was made by the defendants. The Trial

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HC-KAR

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Court having considered the material available on record, particularly in paragraph No.20 taken note of the fact that admittedly the defendants are not claiming any right in respect of the suit schedule property and their only contention is that the suit schedule property is government land. When the defendants did not claim any right or title over the suit schedule property, the very contention that the plaintiffs ought to have filed the suit for declaration does not arise since there is no cloud on the title. The Trial Court has taken note of the documents which have been placed before the Court, particularly documents of Ex.P1 to 7 i.e., demand register extracts, Form No.8 and also the tax paid receipts, partition deed and other documents of the order passed in CRRP No.248/1994 and comes to the conclusion that the plaintiffs are in possession of the property.

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The counsel appearing for the appellant has

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brought to the notice of this Court that construction is made by the defendants and they are in possession of the

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HC-KAR

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property, to substantiate the same, particularly in respect of the suit schedule property is concerned, not placed any documents and the Trial Court comes to the conclusion that the claim made by the defendants is in respect of the defendants' property and not in respect of the plaint schedule property. The very contention of the appellants' counsel that there is a dispute in respect of identity of the property is concerned and the said contention cannot be accepted. The Trial Court having considered both oral and documentary evidence available on record, arrived with just conclusion. When the suit is filed only for the relief of permanent injunction is concerned, particularly documents of Ex.P1 to 7 were taken note of by the Trial Court as well as the Appellate Court and the Appellate Court also while considering the respective appeals also in detail discussed the material available on record i.e., both the oral and documentary evidence and concurrent finding is given particularly considering the documents which have been considered by the Trial Court and comes to the conclusion

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HC-KAR

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that the Trial Court has not committed any error in granting the relief of permanent injunction and taken note of the documentary evidence of Ex.P1 to 7 which establishes the possession of the plaintiffs. When such being the case, I do not find any error in the finding of the Trial Court as well as the First Appellate Court since both the Courts considered the question of law and the question of fact. Hence, admitting the second appeals and framing of substantial question of law does not arise as contended by the counsel appearing for the appellants and the substantial question of law suggested by the counsel is also only with regard to the identity of the property is concerned and both the Courts have taken note of the same and even the Appellate Court also comes to a conclusion that there is no need to consider the application filed under Order 26 Rule 9 of the Code of Civil Procedure in view of the material available on record. Hence, I do not

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find any ground to admit the appeals and frame substantive questions of law in the appeals since both the

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