Sri Dyavegowda Vs Sri. H K Rangegowda

SRI. H K RANGEGOWDA S/O LATE KARIYAPPAGOWDA ALIAS KARIGOWDA, AGED ABOUT 65 YEARS MOSALEHOSAHALLI SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN DISTRICT-573220.

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SRI. DYAVEGOWDA S/O LATE. PUTTEGOWDA AGED ABOUT 49 YEARS RESIDING AT MOSALEHOSAHALLI SHANTHIGRAMA HOBLI HASSAN TALUK HASSAN DISTRICT - 573 220.

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…RESPONDENTS

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(BY SMT.KAVITHA H C., HCGP FOR C/R1)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 16.11.2024 PASSED IN RA NO.111/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HASSAN, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGEMENT AND DECREE DATED 27.09.2018 PASSED IN OS NO.276/2013 ON THE FILE OF THE C/C VII ADDITIONAL CIVIL JUDGE, AND JMFC, HASSAN.

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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 PRADEEP SINGH YERUR

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NC: 2026:KHC:15101 RSA No. 195 of 2025

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HC-KAR

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ORAL JUDGMENT

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This appeal is preferred by the defendants challenging the Judgment and decree dated 27.09.2018 passed by the VII Additional Civil Judge and JMFC, Hassan in O.S. No.276/2013 which is confirmed in RA No.111/2022 by Judgment dated 16.11.2024 passed by the Principal Senior Civil Judge and CJM, Hassan.

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Parties to the proceeding shall be referred to as per the status before the trial Court as ‘plaintiff’ and ‘defendants’.

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Plaintiff filed a suit against the defendants for the relief of perpetual injunction to restrain the defendants from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule properties. Plaintiff claimed that he is the absolute owner in enjoyment and possession of the suit schedule properties having acquired the same by way of registered sale deeds. Pursuant to the registered sale deeds, the properties were mutated in the name of plaintiff and he has been in possession and enjoyment of the same from the date of purchase. The plaintiff claims to be the Government

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Servant and resides at Hassan. Therefore, taking advantage of the absence of plaintiff from the suit schedule properties, the defendants who are nowhere concerned with the suit schedule properties or the plaintiff, are making unlawful attempts to trespass into the suit schedule properties, due to which, the plaintiff had approached the panchayatdars of the local Panchayat who advised the defendants to restrain from such unlawful activities. Despite the same, there was no solution to the unlawful attempts made by the defendants to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. Hence, plaintiff filed this suit against the defendants for perpetual injunction.

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Upon service of summons to the defendants, they appeared and filed their written statement. The defendants took up the plea that they had filed a suit bearing OS No.213/2008 with regard to property bearing Survey No.131/3 measuring 1 acre 29 guntas and in view of such a suit, the plaintiff has filed the present suit only

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as a counter blast and to take vengeance against the defendants. Hence, they sought for dismissal of the suit. At the same time, defendants pleaded that they had not made any attempts to interfere with the plaintiff's possession over the suit schedule properties.

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On the basis of materials placed on record, the trial Court framed the following issues for consideration:

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"i. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit properties as on the date of filing the suit?

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ii. Whether the plaintiff proves the alleged interference by the defendants?

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iii. Whether the plaintiff is entitled for the relief of perpetual injunction as claimed?

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iv. What order or decree?"

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In order to substantiate the issue and make out a case, plaintiff examined himself as PW1 got marked Exhibits P1 to P13. Plaintiff has also examined one additional witness PW2, namely Papamma. The defendants though filed their written statement did not choose to lead evidence.

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Neither did they produce any documents. On the basis of evidence adduced by the plaintiff and materials placed both oral and documentary, the trial Court found favour in the contentions put forth by the plaintiff and relying upon the documents produced and marked as Exhibits, answered the issues in favour of the plaintiff and accordingly decreed the suit by directing the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule properties.

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Aggrieved by the judgment rendered by the learned trial Judge, the defendants preferred an appeal before the first appellate court in RA No. 111/2022. Though the judgment of the trial Court is rendered on 27.09.2018, the first appeal came to be filed by the appellants/defendants in the year 2022. Along with the appeal memo, the defendants filed an application seeking to condone the delay of 1475 days which is four years.

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Upon notice being issued, the respondent/plaintiff appeared before the first appellate Court. The first

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appellate Court, taking the application for condonation of delay, did not find favour with the appellants/defendants and despite adverting to the reasons having narrated for condonation of delay, found that the appellants have not approached the first appellate Court on time when they had participated before the trial Court by filing their written statement and dismissed the application for condonation of delay and consequently dismissed the appeal.

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It is this judgment of the first appellate Court dismissing its appeal which is questioned before this Court in second appeal by contending that the trial Court as well as the first appellate Court have passed an erroneous order which is illegal and arbitrary so also perverse and the same requires to be set aside as it has not considered the materials placed on record including the specific contention taken by the defendants before the trial Court.

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It is contended by learned counsel that the first appellate Court ought to have taken into consideration the documents produced with regard to the ailment and

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suffering undergone by the first appellant while taking treatment due to which he was perforced to file the appeal after a prolonged period of delay and in view of the ill health of first appellant, other appellants were taking care of the first appellant, hence, they could not approach the advocate on time to file the appeal within the time prescribed. Hence, he contends that the first appellate Court ought to have considered the application for condonation of delay favourably and leniently and ought not to have dismissed the appeal solely on the ground of delay.

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It is also vehement contention of learned counsel for the appellants that the plaintiff has not produced sufficient material to show that he is in possession and enjoyment of the suit schedule properties. On the other hand, learned counsel for the appellants contends that the first respondent himself has admitted that the appellants are in possession of the suit schedule properties. Therefore, the learned counsel for the appellants contends that the judgment and decree passed by the trial Court ought to

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have been interfered and set aside by the first appellate Court whereas the first appellate Court, without going into the merits of the matter, has dismissed the appeal solely on the ground of delay, which is not sustainable.

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The learned counsel further contends that the appellants came to know of the judgment and decree only after receiving the show cause notice in the execution petition filed by the respondent/plaintiff in Ex.P No.95/2019 and as soon as he came to know about the filing of the execution petition, they have filed the appeal before the first appellate Court challenging the judgment and decree. Hence there was a delay in filing the appeal. It is further contented by the learned counsel that the appellants have made out substantial questions of law for consideration by this Court as the trial Court and the first appellate court have ignored the material placed on record and have mechanically passed the order of granting injunction in favour of the respondent/plaintiff and he seeks to allow the appeal.

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Per contra, learned counsel appearing for the respondent

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No.1/Caveator vehemently contends that there is no illegality or perversity in the judgment and decree passed by the trial Court and also by the first appellate Court and the contentions and grounds urged by the appellant in this appeal runs contrary to what has already been stated in the written statement in the original suit. She contends that in the original suit proceedings, the appellants had taken a plea that they would not make any attempt to interfere with the plaintiff's possession over the suit schedule properties and that he had filed a suit bearing OS No.213/2008 with regard to property bearing Sy. No.131/3 measuring 1 acre 29 guntas. Therefore, when such a plea was taken that he would not interfere with the plaintiff's peaceful possession and enjoyment, the trial Court has proceeded further to pass an order of decreeing the suit. Learned counsel for the respondent/plaintiff contends that the trial Court framed relevant issues for consideration and those issues have

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been substantiated by the plaintiff by production of both oral and documentary evidence Exhibits P1 to P22 were

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marked. However, the defendants did not step into the witness box to lead any evidence and neither have they filed any documents. Hence, the trial Court has rightly decreed the suit in favour of the plaintiff.

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It is further contented by the learned counsel for the plaintiff that though the defendants challenged the judgment and decree in the first appellate Court, there is a huge delay of four years in filing the appeal though it is claimed by the defendants that they filed the appeal only after coming to know of the notice issued in the execution petition filed by the plaintiff in Execution Petition No.95/2019, but nothing prevented them to challenge the judgment and decree at an earlier point of time when they were aware of it. Therefore, she contends that the first appellate Court has rightly dismissed the appeal on the ground of delay which does not call for interference as no substantial question of law is made out to be framed in this case for consideration. Hence he seeks to dismiss the appeal.

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I have heard learned counsel for the appellants and

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learned counsel for the respondents. The point that arises for consideration is:

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[a] whether the appellants have made out any good ground or cogent reason to interfere with the judgment rendered by the trial Court as well as the first appellate Court.

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[b] What order?

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On careful perusal of the judgment of the trial Court and the first appellate Court and the contentions urged by learned counsels for the plaintiff and the defendant, apparently, it is seen that the plaintiff is the absolute owner of the suit schedule properties by virtue of registered sale deeds in his favour. The mutation entries are entered in the name of the plaintiff. The same is taken into consideration by the trial Court.

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Though the defendants have appeared and filed their written statement, they have not bothered to step into the witness box to lead evidence, neither have they cross examined PW1 with the material evidence placed on

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record, both oral and documentary. In view of there being no proper contest or controversy of the materials placed by the plaintiff and no defence set up by leading any evidence, the trial Court has decreed the suit in favour of the plaintiff. It is also relevant to note that the defendants in the written statement have categorically stated that they have not made any attempts to interfere with the plaintiff's possession over the suit schedule properties.

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During the course of arguments, the learned counsel for the defendants has contended that they filed a suit bearing O.S. No.213/2008 against the plaintiff with regard to property bearing Survey No.131/3 measuring to an extent of 1 acre 29 guntas and the same is pending adjudication. Therefore, when such plea has been taken by the first defendant that he would not interfere with the peaceful possession of the plaintiff over the suit schedule properties, the trial Court has rightly decreed the suit of the plaintiff.

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The defendants have challenged the judgment and decree

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in the first appeal in RA No.111/2022 but the same is filed after a period of four years of the impugned judgment. No proper explanation has been provided to condone the delay. Therefore, the first appellate Court relying upon the judgment of the Hon'ble Apex Court in the case of ' Pathapati Subba Reddy [died] by LRs and others v. Special Deputy Collector [LA]' reported in [2024] 4 SCR 241 did not agree or find favour with the appellants/defendants on the point of condonation of delay of four years and accordingly dismissed the application on the ground of delay and consequently the appeal itself. It is for the appellants to make out a good ground to show perversity or illegality committed by the trial Court or the first appellate Court to invoke Section 100 of CPC by filing the second appeal and to show that there are substantial questions of law to be framed and considered by this Court.

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In the present case on hand, the defendants before the trial Court have admitted that they would not interfere or

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make any attempt to interfere with the plaintiff's possession over the suit schedule properties. It is also not the case of the plaintiff that they are interfering or seeking any relief with regard to Survey No. 131/3 measuring to an extent of 1 acre 29 guntas as item No.3 of the suit schedule properties do not pertain to Survey No. 131/3. It is also relevant to note that the defendants though filed written statement did not bother to cross examine PW1, did not adduce evidence on their behalf, did not produce any piece of document to substantiate their case. Under the circumstances, the trial Court has looked into the materials placed by the plaintiff and accordingly found that the plaintiff was entitled to the necessary relief as sought for on the basis of documents produced and decreed the suit.

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Having perused the entire judgment of the trial Court, I do not find any illegality or perversity in the judgment rendered by the trial Court. Coming to the aspect of the first appellate Court dismissing the appeal on the ground of delay, the first appellate Court in its wisdom and on

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the basis of the cause shown for condonation of delay did

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not find favour with the appellants/defendants and accordingly dismissed the application for condonation of delay and consequently the appeal itself by relying upon the judgment of the Hon'ble Apex Court in the case of Pathapati Subba Reddy [supra] .

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On going through the said judgment of the first appellate Court, I do not find any illegality committed by the first appellate Court in dismissing the application for condonation of delay and consequently the appeal itself. When the appellant comes before the Court challenging a judgment and decree, the onus is upon him and a duty is cast upon the appellant to come before the Court well within time to challenge the impugned judgment. In the present case, the appellants had participated by filing written statement in the original suit though they may

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not have cross examined the witness or led their evidence. The appellants were aware of the outcome of the original suit way back during September 2018 itself. However, the appeal is filed four years later. The delay of

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four years is huge and a person cannot remain quiet especially in property matters where the appellants are neighbours of the respondent-plaintiff, he would very well be aware of what is happening in the neighbouring suit schedule properties, but having not approached the first appellate Court on time does not give him the liberty to ask the Court to set aside the judgment by condoning the huge delay of four years.

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I do not find any illegality committed by the first appellate Court. Even considering the aspect on the merits of the matter, the appellants have not denied the plaintiff’s ownership over the suit schedule properties. But in the course of arguments, he contends that in the guise of the decree obtained, the plaintiff is making attempts to interfere with his property that is Survey No.131/3. But he also contends that there is an original suit filed against the plaintiff which came to be dismissed against which an appeal is filed. The said appeal also came to be dismissed against which a second appeal is preferred and the same is pending before this Court. It is

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needless to mention that the suit filed by the appellants-

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defendants against the respondent plaintiff is not subject matter of the present suit. It is totally a different survey number altogether though claimed to be adjacent land, would not have a bearing on the present suit and the relief granted to the plaintiff.

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In view of the discussions made herein above, I do not find any good ground or cogent reason to interfere with the well-reasoned judgment rendered by the trial Court as well as the first appellate Court. I do not find any good ground made out by the appellants to frame substantial questions of law as urged in the present appeal. Accordingly, I pass the following:

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ORDER

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The appeal is dismissed at the initial stage of

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admission itself.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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AN/-

Sri Dyavegowda v. Sri. H K Rangegowda

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Sri Dyavegowda v. Sri. H K Rangegowda

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