The High Court dismissed this regular second appeal. The appellant challenged a judgment and decree of the lower appellate court which reversed the trial court's decree granting injunction. The High Court upheld the appellate court's finding that the defendants were in possession of the property on the date of the suit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938
RSA.No. 1391 of 2015 ()
AGAINST THE JUDGMENT IN AS 62/2011 of SUB COURT, KASARAGOD DATED 23-06-2015
AGAINST THE JUDGMENT IN OS 245/2009 of PRINCIPAL MUNSIFF'S COURT, KASARAGOD DATED 26-07-2011
APPELLANT(S)/RESPONDENT/PLAINTIFF:-:
B.GOPALAKRISHNA BHAT, AGED 56 YEARS S/O.SRIPATHI BHAT, RESIDING AT PANJIKALLU HOUSE, ADYANADKA POST, BANTWAL TALUK, D.K, KARNATAKA STATE.
BY ADVS.SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT(S)/APPELLANTS/DEFENDANTS:-:
W/O.VENKATRAMANA BHAT, RESIDING AT KOVEKALLU,
KARADKA VILLAGE AND POST, KASARAGOD TALUK,
KASARAGOD DISTRICT - 671 542.
KASARAGOD DISTRICT - 671 542.
R-R BY ADV. SRI.R.S.KALKURA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL, J.
R.S.A. No.1391 of 2015
Dated this the 23rd day of November, 2016
J U D G M E N T
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The appellant herein was the plaintiff in O.S. No.245/2009 on the files of the Principal Munsiff's Court, Kasaragod. The above suit was filed praying for granting of a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property or otherwise interfering with the peaceful possession and enjoyment of the plaint A schedule property by the plaintiff.
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possession and enjoyment of the abovesaid property. Janardhana Bhat died unmarried in the year 1986. Consequent to his death, the properties were devolved upon his two brothers Sripathi Bhat and Padmanabha Bhat as the only legal heirs of Janardhana Bhat. Since Padmanabha Bhat was working as a priest in a temple at Bangalore, Sripathi Bhat was managing the property for and on behalf of the other co-owner. In the year 1992, Sripathi Bhat died leaving his widow Parvathi Amma and children Jalaja, Kumari and B.Gopalakrishna Bhat. Gopalakrishna Bhat is the plaintiff herein and he was managing the properties for and on behalf of the other legal heirs of Sripathi Bhat and Padmanabha Bhat. According to him, in the year 1993, he asked the defendants, who are his close relatives, to look after the property, for and on behalf of him. The plaintiff and Padmanabha Bhat were visiting the properties regularly and he is in possession of the properties for and on behalf of the
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other legal heirs also. Janardhana Bhat obtained the said properties by virtue of Ext.A1 assignment order dated 31.03.1981 in L.A.A. No.119/1972 of Karadka village. On 31.07.2009, when the plaintiff went to the plaint A schedule property, it was found that the defendants are making attempt to cut and remove the cashew trees from the plaint A schedule properties. When the plaintiff questioned the same, the defendants did not hear the words of the plaintiff and they challenged the right and possession of the plaintiff.
It is also contended that the defendants have filed a collusive suit against one Narayana Maniyani as O.S. No.153/2007 before the Munsiff's Court, Kasaragod and the above suit was decreed based on a compromise. According to the plaintiff, the judgment and decree passed in the above suit is not binding on him. Now, the defendants are trying to trespass into the plaint A schedule properties and to take possession by force. Hence, the suit was filed for
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injunction as prayed above.
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non-profitable, the defendants cut and removed the cashew trees and planted 300 rubber trees. They had prayed for disposal of the suit.
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for consideration.
and extant of consideration are confined to possession as on the date of suit only. To prove the possession of the plaintiff, the plaintiff was examined as PW1. None of the documents produced by the plaintiff would prove that he was in possession of A schedule property, on the date of suit. Ext.A2 certificate issued by the Tahsildar, Kasaragod shows that he is an agriculturist of Kumbadaje village and it cannot be treated as a document to prove the possession of the plaintiff in the plaint schedule property. It is his case that he has been regularly visiting the property. If that be so, he would have come to the knowledge of the encroachment by one Narayana Maniyani and some other persons. On the other hand, the evidence adduced by the defendants would show that the 1st defendant had filed a suit against the said Narayana Maniyani alleging trespass into the plaint
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schedule property.
year 1993, when he shifted his residence to Karnataka for employment, he entrusted the plaint schedule property to the 1st defendant, who is his relative. There is no evidence to prove such entrustment of property to the 1st defendant for supervision. So also, the plaintiff has no case that his mother and siblings also moved to Karnataka along with him. If he was out of station, certainly, the other plaintiffs could have managed the property in his absence. In the above view, the court below is justified in finding that the alleged entrustment put forward by the plaintiff is only a false story cooked up to overcome the adverse factual situation of the possession of the property by the defendants.
had planted rubber trees in the plaint schedule properties.
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No evidence has been adduced to prove the planting of rubber trees by him. The case of the defendants is that they occupied the property in the year 1990 and since then, they are in possession and enjoyment of the property and they have constructed boundaries to the property and planted rubber trees. Exts.B7 to B15 show that the defendants have planted the rubber trees. From Ext.C1 interim commission report, it is discernible that the boundaries are well protected and having compound wall. The plaintiff has no case that he has constructed the said boundaries. That apart, the defendants contended that they have effected improvements in plaint A schedule property by planting cashew trees. There are no pleadings in the plaint that they have planted cashew trees in the plaint schedule property. In Ext.C1 commission report, the Advocate Commissioner has reported that when he visited the property on 23.04.2007, the 1st defendant was found collecting cashew
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nuts from the cashew trees in the plaint A schedule property. Even though it has come out in evidence that several persons have encroached the plaint schedule property and put up huts, he has not proceeded against those persons. On the other hand, the defendants have filed a suit against one Narayana Maniyani and the said suit was compromised by granting 15 cents of property to the defendants in that suit. The court below has rightly examined the legal validity of assignment deed issued to Janardhana Bhat as per Rule 9(6A) of the Land Assignment Rules and arrived at a finding that the title to that land shall not pass to the assignee until he remits the value payable in respect of that land, arrears of tax, if any, due in respect of the land and other charges due from him. Admittedly, Janardhana Bhat or his successors have not remitted the land value of the property. Thus, the title to the plaint schedule property was with the government as per Ext.A6. It could be seen that later the
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property was transferred to the legal heirs of Janardhana Bhat recently and Ext.A6 patta has been produced before the appellate court. It is pertinent to note that the suit is one for prohibitory injunction, which is to be decided solely, on the basis of the possession of the property only. There is no need to consider the legal validity of Ext.A6 patta, in this suit and it is left open.
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Appeal. It is made clear that possession alone was considered in the original suit and Appeals and the plaintiff is at liberty to seek declaration of title and recovery of possession in a full fledged suit, and this judgment will not stand in the way of such a suit.
R.S.A. is dismissed accordingly.
Sd/- (K. HARILAL, JUDGE)
aks/23/11
// True Copy //
PA to Judge
3 issues framed by the court
Whether the trial court erred in granting permanent injunction in favor of the appellant claiming possession.
Whether the defendants were in legal possession of the property on the date of the suit challenging the plaintiffs' claim.
Whether the lower appellate court correctly reversed the trial court's finding on possession.
B. Gopalakrishna Bhat
K. Gowri
Venkateshwara Prasad
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
