Dismissed¶149

Sri. Cyril Dsouza v. Smt. Sevin Menezes

Karnataka HC4 Jun 2026RSA/2306/2017

Case brief

AI extract

What is this about?

Search terms: kumki privilege; kadim warg / kadim warga lands; kumkidar; bare injunction suit; proof of possession; thodu bifurcating schedules; 100 yards assessed land kumki rule; Madras Board Standing Orders; Board Standing Orders; Order VII Rule 3 C.P.C. property description; Ex.P.5 sketch; house Door No.2-27A; O.S.No.155/1997 status quo; Krishna Bhat; Kanthu Gowda; Karnataka Land Revenue Act; Chandrashekara Adiga's case; a 1976 SC 853; Perne village and Kedila village, Bantwal Taluk, Dakshina Kannada; RSA Section 100 CPC dismissal without notice; admission declined.

What did the court decide?

Except the oral testimony of the plaintiff (PW-1), no other material on record was produced by the plaintiff to establish that he was in possession of the 'B' schedule property at any given point of time. ¶139

Sri. Cyril Dsouza Vs Smt. Sevin Menezes — Karnataka HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶149

Issue for consideration

Proposed substantial question of law (i): Whether the Courts below are justified in dismissing the suit of the plaintiff even though the plaintiff has proved that ‘B’ schedule properties form direct kumki to the kadim warga lands enjoyed by him? +5 more

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Ratio / Principle

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Key takeaways

Since the plaintiff failed to prove possession over the suit property, this Court found no reasons whatsoever in a suit for bare injunction to admit the second appeal for further consideration; admission was accordingly declined and the appeal dismissed.ratio¶145

Detailed headnote1 paragraphs

Regular Second Appeal (RSA No.2306 of 2017 (INJ)) by the unsuccessful plaintiff in O.S.No.2/2007, a suit for bare injunction claiming kumki privilege over plaint 'B' schedule property (Sy.Nos. 101/1, 120/1, 120/2, 120/3 in Perne village, Bantwal Taluk) said to abut his kadim warga 'A' schedule lands in Kedila village. The Trial Court (judgment dated 28.09.2012) and the First Appellate Court (RA No.49/2012, judgment and decree dated 28.08.2017) had dismissed the suit, relying on PW-1's cross-examination admissions that a thodu bifurcates the 'A' and 'B' schedules, that the defendants' house (Door No.2-27A) stood in the 'B' schedule property from before 1997, and that the plaintiff's sketch (Ex.P.5) failed to identify the property as required by Order VII Rule 3 C.P.C. The High Court (V Srishananda, J.), noting that apart from PW-1's oral testimony no material proved the plaintiff's possession of the 'B' schedule property, declined admission and dismissed the appeal on 04 June 2026, without issuing notice to the respondents. The substantial questions of law on the 100-yard kumki rule under the (Madras) Board Standing Orders and on the decision reported at a 1976 SC 853 were left unaddressed.

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF JUNE, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.2306 OF 2017 (INJ)

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BETWEEN:

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SRI. CYRIL D’SOUZA S/O JOSEPH D SOUZA, R/AT BARANGAI HOUSE, PERAMUGERU POST, BANTWAL TALUK-574325

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…APPELLANT

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(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)

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AND:

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SMT. SEVIN MENEZES MAJOR, D/O LATE LOUIS MENEZES,

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SMT.JULIYANA MENEZES MAJOR, D/O LATE LOUIS MENEZES,

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SMT.JESINTHA MENEZES MAJOR,

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D/O LATE LOUIS MENEZES,

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SMT.ANITHA MENEZES MAJOR, D/O LATE LOUIS MENEZES,

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SRI.JOCKIM MENEZES S/O LATE LOUIS MENEZES, AGED 51 YEARS

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SRI.CHARLIE MENEZES S/O LATE LOUIS MENEZES, AGED 49 YEARS

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SMT.JULIAN MONTHEIRO W/O CHARLIE MENEZUES AGED 39 YEARS

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SRI.IVAN MENEZES S/O LOUIS MENEZES, AGED 45 YEARS

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SMT.HELEN MONTHEIRO W/O IVAN MENEZES AGED 37 YEARS

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SRI.LANCY MENEZES S/O LOUIS MENEZES AGED 37 YEARS

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ALL ARE RESIDING AT BALATHOTA HOUSE, PERNE VILLAGE AND POST, BANTWAL TALUK, D.K.-574 325.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 28.08.2017 PASSED IN RA NO.49/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC., BANTWAL, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.09.2012 PASSED IN OS NO.2/2007 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC., BANTWAL, DAKSHINA KANNADA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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HC-KAR

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ORAL JUDGMENT

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Heard Sri Pundikai Ishwara Bhat, learned counsel for the appellant.

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This Court did not deem it fit to issue notice to the respondents.

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Unsuccessful plaintiff is the appellant in this Second Appeal.

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Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court, for the sake of convenience.

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Facts of the case which are utmost necessary for disposal of the present Appeal are as under:

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5.1 A suit for bare injunction came to be filed by the plaintiff with respect to the ‘B’ schedule property in O.S.No.2/2007 (old No.2/2006) on the file of the Additional Civil Judge and JMFC, Bantwal, Dakshina Kannada, which is culled out hereunder:

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Plaint ‘B’ Schedule Property

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Immovable property situated in Perne village of Bantwal

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Taluk and comprised in:

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S.No.	Extent
1) 101/1	1.45
2) 120/3	0.52
3) 120/1	2.00
2) 120/2	0.52

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Morefully described in the red color in the eye

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sketch filed along with the plaint.”

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5.2 The suit was earlier numbered as O.S No.2/2006, later on numbered as O.S No.2/2007.

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5.3 Plaintiff contended that he is the absolute owner in possession of plaint ‘A’ schedule property and he has purchased the same from Sri Krishna Bhat by way of registered sale deed on 20.05.1989 and he has developed the said land into coconut and arecanut garden. ‘B’ schedule property forms a direct kumki to Item Nos. 1 and 3 of the plaint ‘A’ schedule property and thus plaintiff is in possession in respect of ‘B’ schedule property and he has effected vast agricultural improvements in

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‘B’ schedule property by planting mango trees and coconut trees which are now yielding fruits.

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5.4 Plaintiff further contented that he has preserved the tree growth in plaint ‘B’ schedule property for effective cultivation of plaint ‘A’ schedule property. Plaintiff also claimed right in respect of the land in Sy.No.57/2 portion measuring 0.43 acres, of Kedila Village.

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5.5 It is further contended that plaintiff has no other kumki land other than ‘B’ schedule property and for effective cultivation of ‘A’ schedule property, he has to enjoy the ‘B’ schedule property for which there should not be any obstruction from the defendants. Therefore, sought for an order of permanent injunction against the defendants.

¶58

Pursuant to the suit summons, defendants entered appearance through their advocate. First defendant filed detailed written statement which was adopted by defendant Nos.2 to 7.

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In the written statement filed by the defendant No.1, it is specifically contented that the plaintiff cannot take advantage

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of the kumki privilege as is narrated in the Karnataka Land Revenue Act, inasmuch as, plaintiff is not in possession of the kumki land.

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It is their specific contention that Kanthu Gowda never constructed any building in ‘B’ schedule property as contended by the plaintiff. It is the husband of defendant No.1 who constructed the house in the plaint ‘B’ schedule property in which Kanthu Gowda was residing as a permissive occupant.

¶65

It is further contended that the house bearing D.No.2/27A was constructed about 25 years earlier. Kanthu Gowda vacated the said house and defendant No.5 along with his family members are now residing in the said house which is situated in plaint ‘B’ schedule property.

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It is also contended that there is no access between plaint ‘A’ schedule property and plaint ‘B’ schedule property. Therefore, contention of the plaintiff that he is in possession of plaint ‘B’ schedule property or any portion thereof is denied by the defendants.

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Further, defendants contended that it is they who have improved plaint ‘B’ schedule property by raising banana plants, pepper plants, coconut, jack fruit and various other fruit bearing plants and flower plants and thus sought for dismissal of the suit.

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It is further contended by the first defendant that the kumki property in ‘B’ schedule and warg properties in ‘B’ schedule are belonging to the defendants and they are in possession of the ‘B’ schedule property as kumkidars.

¶72

Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and recorded the evidence of the parties and on cumulative consideration of oral and documentary evidence on record, by the judgment dated 28.09.2012, dismissed the suit of the plaintiff, inter alia holding in paragraphs 19 to 23 as under:

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“19. In this regard, it is also important to note that, P.W.1 in his cross examination admits that ,"s¸ÀÜ¼ÀPÉÌ §AzÀÄ £ÉÆÃrzÀgÉ vÉÆÃqÀÄ EgÀÄvÀÛzÉ, DzÀgÉ ªÉÄÃ¯É ºÉÃ½zÀµÄÖ CUÀ®ªÁzÀ vÉÆÃqÀÄ EgÀÄªÀÅ¢®è. £À£Àß À ¥ÀæPÁgÀ 'J' ±ÉqÀÆå¯ï D¹ÛAiÀÄ ¥ÀÇªÀðPÉÌ ¸ÀÄªÀiÁgÀÄ 20 Cr CUÀ®zÀ M¼ÀUÉ EgÀÄªÀ vÉÆÃqÀÄ EzÉ." Further he has admitted that, "vÉÆÃr£À ¥ÀÇªÀð ¢QÌUÉ EgÀÄªÀ d«ÄÃ£ÀÄUÀ¼ÀÄ PÉ®ªÀÅ PÀqÉ 5 Cr JvÀÛgÀ, PÉ®ªÀÅ PÀqÉ 8 Cr JvÀÛgÀ CzÉÃ jÃw ¸Àé®à ¸Àé®à JvÀÛgÀzÀ°è EgÀÄvÀÛzÉ. vÉÆÃr¤AzÀ ¥ÀÇªÀð ¢QÌ£À°ègÀÄªÀ UÀÄqÀØ vÉÆÃrVAvÀ ¸ÀÄªÀiÁgÀÄ 50 jAzÀ 60 Cr JvÀÛgÀzÀ°ègÀÄvÀÛzÉ

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CAzÀgÉ £À£ÀUÉ ºÉÃ¼À®Ä DUÀÄªÀÅ¢®è." Hence, it is very clear that, there is a bifurcating space between 'A' schedule property and 'B' schedule property. Even topography of 'A' schedule property and 'B' schedule property are different. 'B' schedule properties are situated in a higher elevation than 'A' schedule property. These admissions of P.W.1 tallies with description made by defendants in the written statement. Whereas Ex.P.5 is very silent about existence of said thodu. This aspect assumes importance because 'A' schedule property is situated in Kedila Village. Whereas 'B' schedule property is situated at Perne Village. Hence, chances of having 'A' and 'B' schedule property in a compact block as contended by plaintiff is remote.

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20. Order VII Rule 3 of C.P.C. mandates the plaintiff to furnish description of the property so as to identify the same. It is important to note that even if it is admitted that Ex.P.6 and Ex.P.7 are of 'B' schedule properties, same measures 13 acres 9 cents and 6 acres 45 cents respectively. Whereas the extent shown in 'B' schedule property are less. The plaintiff is not claiming possession of survey numbers in 'B' schedule properties to their fullest extent. When that being so, the plaintiff should have given boundaries to item No.1 to 4 of 'B' schedule property. Merely showing 'B' schedule property in red colour approximately in a sketch like Ex.P.5 is not sufficient.

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21. This aspect assumes importance, because P.W.1 in his cross examination admits that , “¤.¦.5 gÀ°è

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§tÚUÀ½AzÀ UÀÄgÀÄw¹zÀ eÁUÀzÀ ºÉÆgÀ¨sÁUÀzÀ PÉëÃvÀæªÀ£ÀÄß AiÀiÁgÀÄ ¸Áé¢üÃ£À ºÉÆA¢gÀÄvÁÛgÉ JAzÀÄ £À£ÀUÉ ºÉÃ¼À®Ä DUÀÄªÀÅ¢®è." Hence, this aspect is also fatal to the case of plaintiff.

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22. The learned counsel for the defendants during his argument submitted that, P.W.1 has admitted that house of defendants is situated in 'B' schedule property which shows that the plaintiff is not in possession of 'B' schedule property. On the other hand, learned counsel for the plaintiff argued that, the existence or non existence of house will not make any difference as in the relief column same is excluded. In this background, I have gone through the evidence of P.W.1, wherein he has admitted that, "zÁªÉAiÀÄ°è PÁtÂ¹gÀÄªÀ PÀzÀ £ÀA§æ 2/27J ªÀÄ£ÉAiÀÄÄ £À£Àß zÁªÁ '©' ±ÉqÀÆå¯ï D¹ÛAiÀÄ°è EgÀÄvÀÛzÉ. D ªÀÄ£ÉAiÀÄÄ FUÀ ©zÀÄÝ ºÉÆÃVgÀÄvÀÛzÉ. ªÀÄ£ÉAiÀÄÄ 2006£ÉÃ E¸À«AiÀÄ°è ©zÀÄÝ ºÉÆÃVgÀÄvÀÛzÉ. ¸À¢æ zÁªÉAiÀÄ£ÀÄß zÁR°¹zÀ £ÀAvÀgÀ ¸À¢æ ªÀÄ£ÉAiÀÄÄ ©zÀÄÝ ºÉÆÃVgÀÄvÀÛzÉ. D ªÀÄ£É ©zÀÄÝ ºÉÆÃVzÉ J£ÀÄßªÀ §UÉÎ £À£Àß §½ zÁR¯É EgÀÄªÀÅ¢®è. D ªÀÄ£É ©zÀÄÝ ºÉÆÃUÀÄªÀ ¥ÀÇªÀðzÀ°è 5£ÉÃ ¥ÀæwªÁ¢ ºÁUÀÆ DvÀ£À ªÀÄ£ÉAiÀÄªÀgÀÄ ¸À¢æ ªÀÄ£ÉAiÀÄ°è ªÁ¸ÀªÁVzÀÝgÀÄ." Even though P.W.1 has claimed that said house is destroyed in the year 2006, earlier to the said contention he had admitted that, "¥ÀæwªÁ¢AiÀÄgÀ ªÀÄ£É £À£Àß ªÀUÀð d«ÄÃ¤£À £ÀAvÀgÀ EgÀÄªÀ vÉÆÃr£À E£ÉÆßAzÀÄ ¢QÌ£À°è §gÀÄvÀÛzÉ." Of course said house is excluded in the relief column of the plaint. But, it is important to note that the plaintiff in the plaint has contended that he had filed suit against Krishna Bhat, Kanthu Gowda and others with respect to 'B' schedule property in O.S.No.155/1997 and had obtained order of statusquo with respect to 'B' schedule property and said Kanthu Gowda has constructed the house during the pendency of the suit in violation of order of statusquo. As

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the said suit bears number 155/1997 it has to be presumed that, the said Kanthu Gowda has constructed the house only after the year 1997. Whereas P.W.1 in his cross examination admits that, “© ±ÉqÀÆå¯ï D¹ÛAiÀÄ°è ¸À¢æ ªÀÄ£É J°è §gÀÄvÀÛzÉ JAzÀÄ ¤¦-5£ÀÄß vÀAiÀiÁj¸ÀÄªÁUÀ £Á£ÀÄ ºÉÃ½gÀÄvÉÛÃ£É. zÁªÁ '©' ±ÉqÀÆå¯ï D¹ÛAiÀÄ°è 1992£ÉÃ E¸À«AiÀÄ £ÀAvÀgÀ D ªÀÄ£É EgÀÄvÀÛzÉ." Hence, it is very clear that even prior to 1997 the said house was in existence in 'B' schedule property. Hence, it is very clear that the house of the defendants situates in the 'B' schedule property prior to the year 1997 and not after the year 1997 as claimed by the plaintiff. This aspect shows that the plaintiff is not presenting the true facts before the Court.

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23. The plaintiff has contended that one Kanthu Gowda during the pendency of the suit in violation of order of statusquo has constructed the house in plaint 'B' schedule property. Whereas in Ex.P.8 it is stated that, “«µÀAiÀÄ »ÃVgÀÄªÁUÀ ªÉÄÃ¯É ºÉÃ½zÀ 7£ÉÃAiÀÄªÀgÀÄ CPÀæªÀÄªÁV PÀnÖzÀ ªÀÄ£ÉAiÀÄ°è 1 jAzÀ 6 £ÉÃAiÀÄªÀgÀÄ CPÀæªÀÄªÁV ªÁ¹¹PÉÆAqÀÄ §gÀÄwÛzÀÄÝzÀ®èzÉ. £À£Àß ªÀUÀð eÁUÀPÉÌ DPÀæªÀÄªÁV ¥ÀæªÉÃ±À ªÀiÁr £À£Àß ºÉAqÀw ªÀÄvÀÄÛ £À£ÀUÉ CªÁZÀå ±À§ÝUÀ½AzÀ ¨ÉÊzÀÄ, £À£ÀUÉ ºÀ¯Éè ªÀiÁrgÀÄvÁÛgÉ." The 7^th party in Ex.P.8 is Lancy Menezues, who is the 7^th defendant in this case. This evidence is against to the plaint pleading.”

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Being aggrieved by the same, plaintiff filed an appeal in R.A No.49/2012 on the file of the Prl. Senior Civil Judge and JMFC, Bantwal, Dakshina Kannada.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-application of the material on record, dismissed the appeal by not only upholding the reasons assigned by the learned Trial Judge, but also by supplementing additional reasons for dismissal of the appeal.

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Being further aggrieved by the same, plaintiff is before this Court on the following grounds:

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“The Judgment and Decree passed by the Courts below are illegal perverse and unsustainable either at law or on facts of the case. Both the Courts have failed to appreciate the oral as well as documentary evidence produced by the Plaintiff.

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The courts below have failed to see that the plaint A schedule properties are kadim warga lands of the plaintiff and the B schedule properties are abutting to the A schedule properties and form direct kumki to the A schedule properties. It is an admitted fact that the plaintiff has affected vast improvements in the B schedule properties and rightly exercised kumki privilege over the same. The improvements affected by the plaintiff consist of coconut trees and mango plantation etc., The plaintiff has been consistently using the green manure for the better cultivation of the kadim warga lands. In the circumstances, the Courts below ought to

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have held that the plaintiff has the kumki privilege over the B schedule properties and ought to have decreed the suit. The Trial Court has failed to appreciate the material evidence on record in proper perspective and erroneously dismissed the suit of the plaintiff. The 1 Appellant court also without appreciating the contention of the appellant dismissed the appeal.

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 The Trial Court while answering issue No.1 namely whether the plaintiff is in possession and enjoyment of B schedule properties, erroneously held that the plaintiff is not in possession of the B schedule properties. Admittedly the A schedule properties are kadim warga lands which are assessed to land revenue prior to fasli 1276 i.e., (corresponding to 1886 A.D). The kadim warga land holders have the privilege to enjoy kumki land i.e., Government waste lands within 100 yards of assessed land included in a holding formed prior to fasli 1276. Accordingly, the plaintiff, being the kumkidar entitled to enjoy the kumki privilege as the B schedule properties are government waste land abutting to the kadim warga lands. The kumki privilege is the property right as held by the Hon'ble Apex Court. As such the holder of the kadim warga land has the right of kumki privilege over the adjacent government land as they are part of the holdings of kadim wargadars. In the circumstances, the finding of the trial court that the plaintiff is not in possession of the B schedule properties are contrary to the material evidence on record. Virtually by implication also the plaintiff is in possession and

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enjoyment of the B schedule properties which form direct kumki to the A schedule kadim warga lands held by the plaintiff. The courts below have failed to appreciate the above legal contentions urged by the Plaintiff.

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Since the B schedule properties are admittedly form kumki to the plaintiff's kadim warga lands and the defendants tried to interfere with possession and enjoyment of the same by the plaintiff, the Plaintiff has filed the present suit for permanent prohibitory injunction against the defendants. Based on the material evidence on record, the Trial Court ought to have answered issue No.2 in favour of the plaintiff by holding that the defendants are trying to interfere with plaintiff's possession and enjoyment of B schedule properties. The finding given by the trial court in this regard on issue No.2 is erroneous and contrary to the material evidence on record and the legal contentions urged by the plaintiff. In the circumstances, the trial court ought to have decreed the suit in favour of the plaintiff and the appellate court without appreciating the above contentions erroneously dismissed the appeal and confirmed the judgement passed by the trial court.

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The trial court has very much relied upon the cross examination portion of the plaintiff to the effect that there is a thodu which passes in between A and B schedule properties and bifurcates A and B schedule properties. Board Standing Orders clearly states that within 100 yards of the assessed land included in the

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holding form kumki to the kadim warga lands. The A schedule properties are admittedly kadim warga lands situated adjacent B schedule properties and within 100 yards of the assessed lands. As such the finding of the trial court that the flowing of a thodu in between the A and B schedule properties curtails the kumki privilege of the plaintiff is unsustainable. The courts below have failed to see that A and B schedule properties are situated adjacent each other and the kadim warga lands enjoyed by the plaintiff are situated in Kedila village and B schedule properties are situated in Perne Village adjacent to A schedule properties. In the circumstances, the finding of the courts below the B schedule properties do not form kumki to the A schedule properties is unsustainable and contrary to the evidence on record.

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 The Trial Court has failed to appreciate the document Ex.P5, the sketch of the property. Virtually the lower court has brushed aside Ex.P5. On the cursory glance of Ex.P5 it is clear that the plaint A and B schedule properties are correctly located in Ex.P5 (sketch). The Lower court unnecessary harped upon the fact that the plaint B schedule properties are not subdivided and as such the non-subdivision of the same is fatal to the case of the plaintiff. The said finding is contrary to the well recognized law laid down by the Hon'ble Supreme Court in Chandrashekara Adiga's case. In the circumstances, the trial court should have concluded that the plaintiff is entitled to have the benefit of kumki to his kadim wargs lands. The reasoning assigned by the trial court as well as the 1st appellate court to decline the relief sought for

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the plaintiff is perverse, unjust, arbitrary and unsustainable.

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Taking into consideration of the material evidence on record as well as the legal contentions urged by the plaintiff, the courts below ought to have decreed the suit by holding that the plaintiff has been in possession and enjoyment of B schedule property and the defendants have illegally interfered with his possession of the same. In fact the Courts below have totally misunderstood the concept of kumki privilege and rendered finding contrary to the plaintiff. In the circumstances the judgement and decree impugned herein are liable to be set aside.”

¶118

Sri. Pundikai Ishwara Bhat, learned counsel for the appellant/plaintiff reiterating the grounds urged in the appeal memorandum would contend that both the Courts have failed to note that the material documents coupled with the oral evidence placed on record by the plaintiff, the Trial Court ought to have decreed the suit. The First Appellate Court, at least should have set aside the order of the learned Trial Judge in view of the fact that boundaries mentioned to the land is tallying with the boundaries that is found on the spot. Therefore, both the Courts have grossly erred in dismissing the suit of the plaintiff and thus sought for admitting the appeal on the following substantial questions of law.

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i. Whether the Courts below are justified in dismissing the suit of the plaintiff even though the plaintiff has proved that ‘B’ schedule properties from direct kumki to the kadim warga lands enjoyed by him?

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ii. Whether the Courts below are justified in discarding the legal contention of the plaintiff that B schedule properties from direct kumki to the kadim warga lands enjoyed by the plaintiff as the B schedule properties admittedly situated within 100 yards of the assessed land held by the plaintiff?

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iii. Whether the Courts below erred in not considering the ration of decision reported in a 1976 SC 853 especially when kumki privileges are recognized as property right of the Kadim Wargadars?

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iv. Do the Courts below justified in holding that plaintiff is not possession of B schedule properties when admittedly A schedule properties are abutting to the same, which is admitted by DW1 and B schedule lands form direct kumki to A schedule lands as per the provisions of Madras Board Standing Orders?

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v. Whether the First Appellate Court is justified in dismissing the appeal by confirming the judgment and decree passed by the Trial Court without properly appreciating the material evidence on record?

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In the light of the arguments put forth on behalf of the appellant/plaintiff, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is noted that, to claim the kumki rights in respect of plaint ‘B’ schedule property, plaintiff stepped into the witness box and deposed as per the plaint averments.

¶132

However, in his cross-examination plaintiff has specifically admitted that house property bearing Door No.2-27A is in ‘B’ schedule and he maintains that it is now has fallen down.

¶133

But it is the specific case of the defendants that fifth defendant is residing in the said house.

¶134

Further, plaintiff/PW-1 has stated that the said house has collapsed in the year 2006 after the institution of the suit and there is no document to show that said house has collapsed. Again he has specifically admitted in his cross-examination that at the time of preparation of Exhibit P-5/sketch, he has not shown where exactly the house in ‘B’ schedule property is

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situated. He further answered that the said house in ‘B’ schedule is situated from the year 1992.

¶138

Taking note of said admission made by PW-1 in his crossexamination, learned Trial Judge recorded a finding that said house was in existence prior to 1997 in the ‘B’ schedule property. Therefore, plaintiff constructing the house in ‘B’ schedule property and occupying the same for the management of ‘A’ schedule property is impermissible and noted that defendants were successful in establishing that they are in possession of the ‘B’ schedule property.

¶139

Except the oral testimony of plaintiff/PW-1, there is no other material on record produced by the plaintiff to establish that he was in possession of the ‘B’ schedule property at any given point of time.

¶140

Further, a specific contention has been taken by the defendants that there is no access to ‘B’ schedule property and ‘A’ schedule property which has also been appreciated by the learned Trial Judge while dismissing the suit of the plaintiff.

¶141

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¶142

NC: 2026:KHC:26599 RSA No. 2306 of 2017

¶143

HC-KAR

¶144

Learned Judge in the First Appellate Court as aforesaid, not only re-appreciated the material evidence on record and upheld the findings recorded by the learned Trial Judge but also supplemented the reasons to uphold the dismissal by taking note of the fact that the property was classified as ‘Kadim Warg’ when the property was under the Madras province.

¶145

Therefore, at no stretch of imagination plaintiff can lay claim onto the ‘B’ schedule property and when he has failed to prove possession over the suit property this Court does not find any reasons whatsoever in a suit for bare injunction to admit the appeal for further consideration.

¶146