Chandrappa Vs Smt. Gowramma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 14.12.2020 PASSED IN R.A.NO.10/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SHIKARIPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.04.2019 PASSED IN O.S.NO.110/2004 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, SHIKARIPURA.

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NC: 2025:KHC:45683 RSA No. 907 of 2022

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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 and the learned counsel for the respondent.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The factual matrix of the case of the plaintiff before

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the Trial Court in O.S.No.110/2004 while seeking the relief of perpetual injunction, it is contented that she is the lawful owner and in possession and enjoyment of the suit schedule property and the same is the ancestral property of the brother of her husband by name Sanganna Basappa and she is in possession of the suit schedule property after the death of the said Sanganna Basappa. The khatha and RTC stands in the name of the plaintiff and she is growing maize crop and paying taxes to the Government and the defendants without having any right, title, interest or possession over the suit property, came near

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the suit property on 01.07.2004 and made an attempt to stop the plaintiff and her workers from working in the suit schedule property and the plaintiff managed to prevent the illegal interference of the defendants and hence prayed the Court to grant the relief of permanent injunction.

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In pursuance of the suit summons, defendant Nos.1 and 2 entered appearance and defendant No.1 filed written statement and the same was adopted by defendant No.2. The defendants in the written statement denied the plaint averments and contended that the land bearing Sy.No.6/2 measuring 2 acres 24 guntas is a dry land and one Sri Mallappa S/o Budyappa Bangari, on the basis of inheritance, succeeded to the property from his forefather as the said property was an ancestral joint family property. It is contended that the said Mallappa along with his two sons namely, Sanganna Basappa and Shekharappa had constituted an undivided joint Hindu family and Mallappa was acting as manager and kartha of the family. He died leaving behind his two sons and the joint family status continued by his two sons and the khatha in respect of the said property was made in the name of elder son

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of Mallappa by name Sanganna Basappa in the year 1943-44. It is contended that though the name of Sanganna Basappa remained as khathedar, one Sanna Durgoji S/o Ranoji, resident of Suragihalli Village, cultivated the said land as a tenant and the said Sanna Durgoji is none other than the maternal grandfather of defendant No.1 and the name of maternal grandfather of defendant No.1 continued in RTC upto 1975-76.

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It is also contended that the said Sanna Durgoji died in the year 1976 leaving behind three daughters and one son by name Pulloji Rao. It is contended that the said Pulloji Rao is the father of defendant No.1 and the father of defendant No.1 pre-deceased his wife Smt. Nagavva and the name of Nagavva came to be entered in column No.12 of the RTC for the year 1978-1979 and in the cultivators column, the name of one Mallarappa S/o Narasappa Jadhav has been entered. It is contended that Mallarappa is none other than the maternal uncle of defendant No.1 and the said property was in exclusive possession of Mallarappa and from 1986-87 onwards writing the names of persons who are cultivating the lands was given up as per the circular of the Government. It is contended that

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defendant No.1 is in exclusive possession of the suit schedule property along with one Ajjappa Master. The defendant No.1 married the daughter of Ajjappa Master. It is contended that there is no conflict of interest or difference amongst the surviving legal heirs of deceased Pulloji Rao and the legal heirs of deceased Mallarappa i.e., Ajjappa Master and defendant No.1. It is contended that after the death of Sanganna Basappa, the plaintiff got changed the khatha in column No.9 of the RTC in her name exclusively as per M.R.No.9/1995-96 and the cultivator's column was left blank. In column No.13, it is mentioned as dry crops like ragi, maize, thogari are grown. It is contended that M.R.No.9/1995-96 came to be entered without any notice or following the procedure. It is also the contention that the defendants are cultivating the property. At no point of time, either the possession was given or taken up by the plaintiff and the plaintiff by colluding with the revenue officials, behind the back of the defendants, got transferred the property in her name and the same was challenged before the Assistant Commissioner and the same was dismissed.

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It is contended that initially, the plaintiff had filed a suit against the defendants for the relief of perpetual injunction and after appearance of the defendants, on the basis of the plaint and the written statement, the Court had framed the issues and subsequently framed additional issue and the said suit was decreed and the defendants filed an appeal in R.A.No.59/2008 and the same was allowed. The plaintiff preferred a second appeal before the High Court and the High Court remanded the suit with a specific direction to the Court to permit the plaintiff to produce those two documents and the parties were permitted to lead further evidence. It is also the contention of the defendants that the defendants are in possession of the property and without seeking the relief of declaration, ought not to have granted the relief of permanent injunction when there is a dispute with regard to the title is concerned.

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The Trial Court having considered both oral and documentary evidence available on record, answered issue Nos.1 to 3 in the affirmative and additional issue No.1 also in the affirmative in coming to the conclusion that the plaintiff has

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proved her right and ownership over the property and the plaintiff has established the possession over the property and considering all the documents stands in the name of the plaintiff as on the date of filing of the suit, granted the relief of permanent injunction.

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Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.10/2019. The First Appellate Court considering the material available on record, particularly in paragraph No.21, discussed oral and documentary evidence and comes to the conclusion that when an application was filed by the defendants under Section 77(A) of the KLR Act, the same was dismissed and the appeal filed by the defendants in R.A.No.87/2004-2005 was also dismissed. The document which is marked as Ex.D.13 goes to show that the name of the plaintiff was mutated in the RTC from 1994-95 in column No.9 and 12 based on the application filed by the plaintiff on 25.03.1987 and the same was challenged and when the said appeal was dismissed considering the material on record, comes to the conclusion that the Trial Court has not committed any error in granting the relief.

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HC-KAR

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Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant is that the Courts below were not right in decreeing the suit of the plaintiff by placing burden of proof of possession on the defendant in a suit for injunction and possession. The learned counsel would contend that both the Courts are not justified in considering the presumption under Section 133 of Karnataka Land Reforms Act. The learned counsel would contend that when the possession has not been established, granting the relief of permanent injunction does not arise. The learned counsel contend that from 1944 onwards, all the records in column No.19 stands in the name of the defendants’ family and in the absence of any record that possession was taken, the question of granting the relief of permanent injunction does not arise.

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Per contra, the learned counsel for the respondent would vehemently contend that when the suit is filed for the relief of permanent injunction, the Court has to look into the documents as on the date of filing of the suit whether the

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plaintiff is in possession or not. All the records clearly discloses that the documents stands in the name of the plaintiff. Apart from that, the application filed by the defendants under Section 77(A) of the KLR Act was rejected and when the challenge was made with regard to the entries in favour of the plaintiff, the appeal was also dismissed and as on the date of filing of the suit, the plaintiff established the possession and hence the Trial Court rightly granted the relief.

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In reply to the argument of the learned counsel for the respondent, the learned counsel for the appellant brought to the notice of this Court that the Trial Court committed an error in framing an additional issue in a suit for bare injunction that whether the plaintiff proves her right and ownership over the suit schedule property. In a suit for bare injunction, ought not to have discussed with regard to the ownership is concerned.

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Having heard the learned counsel for the appellant and the learned counsel for the respondent, though the learned counsel for the appellant contend that the defendant has disputed the very title of the plaintiff, having considered the

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very defence in the written statement, not disputed the ownership as well as the relationship between the parties of the plaintiff and original propositus of the family of Mallappa. It is important to note that the Trial Court while answering additional issue No.1, in paragraph No.18 taken note of the admission on the part of D.W.1, wherein he categorically admitted that the property originally belongs to Mallappa. When the relationship between the parties are not disputed, the Trial Court framed an issue with regard to the ownership and in a suit for bare injunction, ought not to have framed an additional issue and issue Nos.1 to 3 are the material witnesses with regard to whether possession is established or not as on the date of filing of the suit. Having perused the material available on record, the suit schedule property is mutated in favour of the plaintiff in the year 1996-97 and the fact that the same was challenged before the competent authority and the same was dismissed is not in dispute. On perusal of the order of dismissal, since there was a decree in favour of the plaintiff, the appellate authority comes to the conclusion that when there was already a decree in O.S.No.110/2004, the question of challenging the same does not arise. Apart from that, the Trial

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Court taken note of when an application was filed under Section 77(A) of the KLR Act seeking the relief of grant, the same was also rejected. Having perused the document of Ex.P.21, it is very clear that the competent authority comes to the conclusion that as on the date of occupancy rights law came into existence, the property was not standing in the name of the defendant and subsequently as on the date of claim also, it was not standing in the name of the defendant and hence rejected the same in coming to the conclusion that the defendant is not in possession of the property. The defendant is claiming that he is in possession based on the earlier entries in column No.12 and from 1989 onwards, no such entry is found in the name of the defendant.

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It is settled law that while seeking the relief of permanent injunction, the plaintiff has to establish his possession and all the documents from 1994 onwards stands in the name of the plaintiff and the suit was filed in 2004. It is not the claim of the appellant/defendant that as on the date of filing of the suit, the documents were standing in the name of the defendant. The Court has to look into the possession as on

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the date of filing of the suit and in order to prove the possession as contended by the appellant, there are no documents before the Court. When such being the case, I do not find any error on the part of the Trial Court and the First Appellate Court in coming to the conclusion that the plaintiff is in possession of the suit schedule property and hence rightly granted the relief of permanent injunction. The very contention

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of the learned counsel for the appellant that the matter requires admission and to frame substantial question of law does not arise by invoking Section 100 of CPC.

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In view of the discussions made above, I pass the following:

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ORDER

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The second appeal is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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MD List No.: 1 Sl No.: 24

Chandrappa v. Smt. Gowramma

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Chandrappa v. Smt. Gowramma

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