Sri S Muddappa S/O Hanumanthappa Vs Sri Manjappa S/O Basappa

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 19.11.2009 PASSED IN R.A.NO.246/2006 ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.11.2006 PASSED IN O.S.NO.175/2005 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) AND JMFC, CHANNAGIRI AND ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.07.2026 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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CAV JUDGMENT

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This second appeal is filed by the plaintiff/appellant against the divergent finding of the First Appellate Court praying this Court to set aside the impugned judgment and decree dated 19.11.2009 passed by the III Additional Civil Judge (Senior Division), Davanagere in R.A.No.246/2006 in dismissing the appeal and confirm the judgment and decree

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dated 09.11.2006 passed in O.S.No.175/2005 by the Principal Civil Judge (Junior Division), Channagiri.

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Heard the learned counsel appearing for the

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respective parties.

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The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of permanent injunction is that the plaintiff had purchased a vacant site bearing Sl.No.100, Khatha No.220, measuring east-west 20 feet and north-south 80 feet situated at Bussenahalli Village, Kasaba Hibli, Channagiri Taluk under a registered sale deed in the year 1990-1991. It is contended that from the date of purchase of the said property, he is in possession of the same. According to the plaintiff, to the eastern side of the said purchased property, he is also in possession of the property to the extent of 12 feet east-west and north-south 94 feet. In the said property, he has stored haystack and agricultural implements and the said property has been fenced. The defendants have knowledge about the possession of the plaintiff over the said property which is called as suit schedule property. The Gram Panchayath, Mudigere has accepted the mutation and given new number to the suit schedule property as Asthi No.7 and

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extent is shown as east to west 32 feet and north to south 94 feet. The defendants tried to interfere with the possession of plaintiff over the suit schedule property during the first week of October 2005. Therefore, the plaintiff has sought for the relief of permanent injunction.

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In pursuance of the suit summons, defendants Nos.1 to 4 have filed common written statement denying the claim of the plaintiff and contend that plaintiff has purchased Khata No.220 measuring east-west 20 feet and north-south 80 feet by a registered sale deed during the year 1990-91. It is contended that plaintiff is in possession of the said property. But denied the possession of the plaintiff on the eastern side of the said property to an extent of 12 feet east-west and 94 feet north-south. The defendants also denied the fact that the plaintiff is using the suit schedule property to collect haystack and agricultural implements. It is contended that defendants are not having knowledge of possession of the plaintiff over the suit schedule property and contend that cause of action for the suit is false and contended that the plaintiff is the owner in possession of the property to the extent of east to west 20 feet and north to south 50 feet. To the east of the said property, there is a road running north-south direction and there is no

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suit schedule property as described in the plaint. The said road

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is used by the public in general. Hence, prayed to dismiss the suit.

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The Trial Court taking note of the pleadings of the

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parties framed the following Issues:

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Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property?

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Whether the plaintiff proves that the defendants have interfered with his possession and enjoyment of the suit schedule property?

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Whether the plaintiff is entitled for the relief sought for in the pliant?

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What order or decree?

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In order to prove the case of the plaintiff, he himself examined as PW1 and got marked the documents at Ex.P1 to P9. On the side of the defendants, defendant No.2 is examined as DW1 and got marked the documents at Ex.D1 to D6. The Trial Court, having considered both oral and documentary evidence placed on record and also the admission on the part of DW1 comes to the conclusion that plaintiff is in

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possession and enjoyment of the suit schedule property and there is an interference by the defendants and granted the relief of permanent injunction.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court in R.A.No.246/2006. The main contention of the defendants before the First Appellate Court that the Trial Court not properly appreciated both oral and documentary evidence placed on record and ought to have seen that plaintiff can succeed only on the strength of his one case. The Trial Court failed to consider the self-serving interested testimony of PW1 is rebutted by the evidence of DW1. The Trial Court erred in not taking into consideration of the admissions made by PW1 in the cross-examination about the extent of the property on which the plaintiff is having title. The evidence of PW1 is inconsistent and Trial Court also failed to consider the khata extract produced by the defendants/appellants, which reveals that plaintiff is in possession of only to the extent of 20 feet x 50 feet property. The Trial Court ought to have seen that the Panchayat records or municipal records are not the documents of title. Hence, Trial Court committed an error in appreciating both oral and documentary evidence placed on record.

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The First Appellate Court having considered the

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grounds urged in the appeal formulated the following Points for consideration:

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Whether plaintiff/respondent proves that he is in possession and enjoyment of the suit schedule property?

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Whether plaintiff/respondent proves that appellants/defendants interfered with his possession and enjoyment of the schedule property?

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Whether the judgment and decree passed in O.S.No.175/2005 dated 09.11.2006 granting decree in favour of plaintiff requires any interference of this Court?

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What order?

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Having reassessed both oral and documentary evidence placed on record, the First Appellate Court answered Point Nos.1 to 3 as negative in coming to the conclusion that plaintiff fails to prove that he is in possession and enjoyment of the suit schedule property and also fails to prove that defendants interfered with his possession and held that

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judgment and decree of the Trial Court requires interference of this Court.

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

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The main contention of the counsel appearing for the appellant before this Court is that the suit is filed for the relief of injunction. The Trial Court taken note of the material available on record particularly, the admissions on the part of DW1 who categorically admitted that Ex.P6 is correct i.e., house list which discloses the measurement of the property as 32 x 94 feet i.e., the suit schedule property. The counsel would contend that Trial Court considered Ex.P6 and P7 and also the evidence of DW1 wherein the very contention of the defendants that on the eastern side, there is an existence of road but the same is not proved. But First Appellate Court fails to take note of Ex.P6 and P7 and also the admission on the part of DW1 who has categorically admitted that the road was not used by the general public. But contention was taken in the written statement that the same was used by the general public. The counsel would submit that the appellant is in possession and enjoying the suit schedule property. The First Appellate Court

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ignored the document of Ex.P6 and P7 and the admission of DW1. The defendants are not relying upon any document to show that property is measuring only 20 x 50 feet and only accepted for producing of the documents of ‘D’ series and there is no cogent evidence on behalf of the defendants. The suit is filed only for the relief of injunction and defendants are also not claiming any independent right in respect of the suit schedule property. Thus, the First Appellate Court committed an error in reversing the finding of the Trial Court.

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Per contra, the counsel appearing for the respondents would vehemently contend that suit is filed for the relief of permanent injunction in respect of the property measuring 32x94 feet. But main dispute is with regard to the property measuring 12x94 feet which plaintiff claims and his title is only to the extent of 20x80 feet as per Ex.P5. The counsel would contend that when the resolution was passed in terms of Ex.D6, no appeal was filed against Ex.D6 challenging the said document. The title deed of the plaintiff also not refers the previous title of his vendor. The counsel would vehemently contend that road is in existence and First Appellate Court relied upon the same and in paragraph 17 of the judgment, reasons are assigned and held that plaintiff is claiming more

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than what he had purchased. Hence, it does not require any interference.

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In reply to this argument, counsel appearing for the appellant would contend that Ex.D6 is manipulated document. The same has not been proved by examining any competent authority who has issued Ex.D6. The counsel would contend that the road was not encroached and on the east there is no road and only in the sale deed it is mentioned that on the north side there is a road. The possession of the plaintiff is admitted by DW1 to the extent of 32 x 94 feet admitting Ex.P6. The Court has to see that Ex.P6 is the document before filing of the suit. That means as on the date of filing of the suit, the plaintiff is in possession of the suit schedule property.

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Having considered these arguments, this Court has to take note of the substantial question of law framed by this Court on 29.03.2010 while admitting this second appeal. The said substantial question of law reads as follows:

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Whether the Judgment and Decree of the First Appellate Court is erroneous in misreading Ex.P6?

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Having taken note of the pleadings of the plaintiff in

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the plaint wherein in paragraph 2 plaintiff averred that he had purchased the vacant site measuring east-west 20 feet and north to south 80 feet, katha No.220, which is situated at Bussenahalli Village, Kassaba Hobli, Channagiri Taluk. It is also the case of the plaintiff that he has been in possession of the said property from the date of purchase and also he is in possession of the property to the extent of 12 feet east-west and north-south 94 feet situated at Bussenahalli Village adjoining to the property of the plaintiff on its eastern side and said property has been enjoying by the plaintiff wherein he has stored and collected haystack and agricultural implements and around the said property, he has covered with fence. The defendants are also having knowledge about the same. It is contended that the Gram Panchayath of Mudigere had issued Katha to the extent of 32 feet east-west and 94 feet northsouth. A new number is assigned as property No.70. Plaintiff is in possession and enjoyment of the entire extent of property as its owner. The relief is sought for permanent injunction and not for declaration. The Court has to take note of the said fact.

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No doubt, the defendants appeared and filed written statement denying the contents of the plaint. However,

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they admitted the title of the plaintiff to the extent of 20 x 50 feet. But contend that more than that plaintiff is not in possession of the property. This Court has to take note of the evidence available on record and also the substantial question of law framed by this Court in view of the divergent finding by the Trial Court and First Appellate Court.

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It has to be noted that though it is a second appeal in view of the divergent finding, Court has to take note of evidence available on record. The evidence of PW1 is nothing but reiterating the plaint averments. In his evidence, he says that on the east of the property which he had purchased, property of Ramappa is in existence and on the west, the property what he had purchased. But he claims that the extent of 12x94 feet belongs to the Panchayat and Panchayat regularised the said property under the scheme of AkramaSakrama and issued khata and had given the Hakku Patra and the same is produced. The same is not produced before the Panchayat even for making of regularisation. But plaintiff only relies upon the possession. It is suggested that the vendor was having only 20x50 feet property and not 20x80 feet property and the same is denied. However, plaintiff produced documents of Ex.P2 to P4 - photographs with negatives. It is suggested

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that suit schedule property is converted as link road and the same is denied.

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The Court also has to take note of evidence of DW1.

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In his evidence, he specifically denied the property measuring to the extent of 12x94 feet and contend that the same is not the vacant site of Panchayat. But, he claims that, there is a road belongs to the Panchayat. In the cross-examination, he says that there is a road and in terms of the Panchayat records, road is in existence but not provided any document to that effect. In one breath, he says that in the Khata, road is shown but in another breath, he says that in the copy of Khata, road is not shown. He has examined the records and given the answer. But he claims that in Ex.P6, it is shown as road, but no such road. He categorically admits that Ex.P6 stands in the name of the plaintiff and also he categorically admits that Ex.P6 is correct. He also categorically admits that Ex.P7 was given by Panchayat and same also stands in the name of the plaintiff. He categorically admits that on the east, there is a house of V. Basappa and the said Basappa had purchased the same from A. K. Ramappa and what the right Ramappa was having over the property was sold to Basappa. He categorically admits that in the site of plaintiff, plaintiff’s house is there. But he cannot tell

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the measurement of the said house. On the south of the plaintiff’s house there is a school that is behind the back of the plaintiff’s house. He categorically admits that in Ex.P1, on the west and north, it is mentioned as Sarakari Matti. It is suggested that in terms of Ex.P3, tiled house belongs to Basappa and the same was denied. When the document of Ex.P2-P4 - photos were shown and confronted, he intelligently denies that he cannot tell who was standing on the property. When suggestion was made that plaintiff is standing on the property, but he says that he is not able to see the person and the house shown in Ex.P4-photo, he cannot tell that to whom it belongs to. The said photos are in respect of suit schedule property which evidence the possession of the plaintiff.

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It is also important to note that in the crossexamination of DW1, he deposed that after the land of B.V. Basappa, the garden land is situated and categorically admits that after the garden land, there is a road. He categorically admits that those three persons are using the said road and general public are not using the said road. This admission takes away the case of the defendants that road is in existence in the suit schedule property measuring 12x94 feet.

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The further admission that the site in which house

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of the plaintiff is located, he cannot tell that earlier it was belongs to whom and he is not aware of the boundary as well as the measurement and even after filing of the suit also he did not see the documents of the plaintiff and hence, he cannot tell the boundary description of the house of the plaintiff and hence, existence of road on east of the plaintiff’s property cannot be accepted as contended by the defendants. He categorically admits that he did not measure the extent of the house and also the vacant land. Hence, he cannot tell the measurement. The admissions on the part of DW1 takes away the case of the defendants since DW1 categorically admits Ex.P6 and also categorically admits that the same is correct. He also admits with regard to the extent of the possession of the plaintiff including the house and also he did not verify the documents of the plaintiff. Even gone to the extent of denying the photographs at Ex.P2 to P4, which clearly depicts that the plaintiff is in possession of the said property and in an ingenious method, he says that he cannot identify the plaintiff in the photograph. He admits Ex.P5- sale deed measuring 20x80 feet. He categorically admits Ex.P6, which clearly discloses the measurement of 32x94 feet and the same is

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issued by the Secretary, Gram Panchayat, Mudigere, Channagiri Taluk. When this document is categorically admitted by DW1 and this Court also framed the substantial question of law in respect of this document is concerned that whether the First Appellate Court misread Ex.P6, this document is clear that there is a house on the vacant site and total area measures 32x94 feet. This document is the house list for the year 200405 that means as on the date of filing of the suit, the plaintiff is in possession to the extent of 32x94 feet of the property and Ex.P7-tax register is also admitted by DW1 and so also admits the tax paid receipts.

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No doubt, the defendant relies upon the document of the year 2005-06 i.e., Ex.D1 dated 06.02.2006 wherein measurement is mentioned as 20x50 and there is a correction in the year wherein, earlier, it was mentioned as 2007 and the same is corrected as 2006. The other document mainly relies upon is tax demand register for the year 1993-94 to the extent of 20x50 that is Ex.D2, so also Ex.D3 for the year 1996-97 to the extent of 20x50 and Ex.D4 is of the year 2001-02 and Ex.D5 is of the year 2003-04 to the same extent. The defendants mainly relies upon the document of Ex.D6 - resolution, wherein correction is made as 20x50 stating that

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mistakenly it was mentioned as 32x94. In order to prove this document, no witness of the Gram Panchayat was examined by the defendants. The very contention of DW1 that this document is not challenged. When the document itself is not proved, the question of challenge in the same does not arise.

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The Court has to take note of the scope of the suit. The suit is for the relief of permanent injunction. No doubt, plaintiff claims that the remaining extent of 12x94 was confirmed by the Village Panchayath under Akrama-sakrama scheme and issued Hakku Patra. To that effect, no document is produced. However, as on the date of filing of the suit, the property measuring 32x94 feet stands in the name of plaintiff and the documents of Ex.P6 and P7 admitted by DW1 stating that the same stands in the name of plaintiff. DW1 categorically admits that those documents are correct and not disputed the same. Thus, the admission of DW1 takes away with regard to the contention that plaintiff is not in possession of the suit property as on the date of suit. The Court has to take note that whether the plaintiff is in possession of the property or not. The First Appellate Court also committed an error in dismissing the suit in coming to the conclusion that plaintiff is not in possession. It is important to note that defendants have

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admitted the title to the extent of 20x50 and also admit the document of Ex.P5 which measures 20x80. Even document of Ex.P6 was also admitted by DW1 in the cross-examination. Though, he claims that in 12x94 feet property, road is in existence, nothing is placed on record to prove the same and admission itself takes away the case of the defendants that 3 persons are using the said road i.e., after the land of Ramappa and public are not using the same. But in the written statement specific defense was taken that public are using the said road and road is in existence. But the very existence of road is not proved by the defendants. Apart from that it is not the claim of the defendants that the said property belongs to the defendants. It is also important to note that plaintiff claims that the said extent of 12x94 belongs to the Gram Panchayat and defendants also admits the same saying that it belongs to the Gram Panchayat but there is an existence of road belongs to the Gram Panchayat. But Gram Panchayat has not raised any objection that the same was a road and even not disputed that the same was not confirmed in favour of the plaintiff and third party i.e., defendants are disputing the same. But they are not claiming that they are having any property adjacent to the

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property of the suit schedule property and they are the strangers, but coming in the way of possession of the plaintiff.

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Taken note of all these facts into consideration. The

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scope is only for limited purpose that whether the plaintiff is in possession of the property or not on the date of suit. It is categorically admitted that when the interference was made, complaint was given. When such material is available with regard to the interference by the defendants, the Trial Court has taken note of the same while appreciating the evidence. But First Appellate Court committed an error in relying upon the document of Ex.P6 which is admitted document by DW1 and erroneously misread the Ex.P6. When there is a clear admission on the part of DW1 in the cross-examination, the very reasoning given by the First Appellate Court is erroneous. First Appellate Court ought not to have taken note of the title, but ought to have taken note of the possession whether the same is within the plaintiff or not. When DW1 admits that there is no existence of road and the same is not used by the general public and fails to substantiate that there is a road, contents of Ex.P6 is also admitted by DW1 during his cross-examination as correct, the First Appellate Court committed an error in reversing the finding of the Trial Court by misreading Ex.P6.

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The document of Ex.P6 is an admitted document and categorically DW1 says that contents of the document of Ex.P6 is correct. Hence, the finding of the First Appellate Court requires to be interfered by answering the substantial question of law as affirmative that First Appellate Court has misread Ex.P6.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The second appeal is allowed.

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The impugned judgment and decree dated 19.11.2009 passed in R.A.No.246/2006 by the First Appellate Court is set aside and consequently, the judgment and decree dated 09.11.2006 passed in O.S.No.175/2005 is restored confirming the relief of permanent injunction.

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Sd/- (H.P.SANDESH) JUDGE

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SN

Sri S Muddappa S/O Hanumanthappa v. Sri Manjappa S/O Basappa

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Sri S Muddappa S/O Hanumanthappa v. Sri Manjappa S/O Basappa

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