K S SURESHA vs M S SURESHAPPA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 13 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO.2319 OF 2017 (INJ)
BETWEEN:
K.S. SURESHA
S/O SHIVAPPA GOWDA
AGED ABOUT 45 YEARS,
R/AT MAIN ROAD KONANDUR
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT – 577 422
…APPELLANT
(BY SRI. PRAKASHA HEGDE K., ADVOCATE)
AND:
M.S. SURESHAPPA
S/O SHIVAPPA GOWDA,
AGED ABOUT 47 YEARS,
GOPALA GOWDA CIRCLE,
MALALIMATH ROAD, KONANDUR
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT – 577 422
…RESPONDENT
(BY SRI. M. ASWATHANARAYANA REDDY, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD 13.09.2017 PASSED IN
R.A.NO.23/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, THIRTHAHALLI, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DTD 24.08.2016 PASSED IN
O.S.NO.159/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC, THIRTHAHALLI.
THIS APPEAL, COMING ON FOR ADMISSION , THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka
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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was defendant in O.S.No.159/2014 instituted
by respondent – plaintiff against the appellant – defendant for
permanent injunction and other reliefs in relation to the suit
schedule immovable property. The suit having been contested by
the appellant – defendant, the Trial Court proceeded to dismiss the
suit vide judgment and decree dated 24.08.2016, aggrieved by the
said judgment and decree of the Trial Court, the respondent –
plaintiff preferred an appeal in R.A.No.23/2016, which came to be
allowed by the First Appellate Court vide impugned judgment and
decree dated 13.09.2017, aggrieved by which, the appellant is
before this Court by way of the present appeal seeking to urge the
following substantial questions of law as hereunder:
“1.Whether the First Appellate Court is justified in
setting aside the judgment and decree passed by the Trial
Court in O.S No. 159/2014?
2. Whether the Appellate Court is justifying in holding
that, the Appellant had interfered with possession on the
schedule property ?
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3. Whether the First Appellate Court is justified in
allowing the Appeal when there is dispute regarding
identification of schedule property?”
2. Heard learned counsel for the appellant and learned
counsel for the respondent and perused the material on record.
3. Learned counsel for the appellant would reiterate the
various contentions urged in the memorandum of appeal and
invited my attention to the material on record in order to point out
that while the Trial Court was fully justified in recording a correct
finding of fact that the respondent had not proved that he was in
lawful and peaceful possession and enjoyment of the suit schedule
property, the First Appellate Court committed an error in reversing
the findings of the Trial Court by recording and assigning a finding
that the respondent was in possession and enjoyment of the suit
schedule property without appreciating that there was mutual
discrepancies, contradictory and inconsistency between oral and
documentary evidence based on possession of the respondent –
plaintiff as regards identity and possession of the suit schedule
property, which was correctly appreciated by the Trial Court by
passing the aforesaid judgment and decree, which has been
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erroneously reversed by the First Appellate Court. It is therefore
submitted that the impugned judgment and decree passed by the
First Appellate Court deserves to be set aside and the judgment
and decree passed by the Trial Court deserves to be restored.
4. Per contra, learned counsel for the respondent would
support the impugned judgment and decree of the First Appellate
Court and pointed out that apart from the fact that the pleadings,
oral and documentary evidence of the respondent – plaintiff were
correctly and properly appreciated by the First Appellate Court, in
the absence of any legal or acceptable evidence adduced by the
appellant – defendant to establish his right, title and interest or
possession over the suit schedule property claimed by the
respondent – plaintiff, the First Appellate Court was fully justified in
upholding the claim of the respondent – plaintiff and rejected the
claim of the appellant – defendant by allowing the appeal filed by
the respondent – plaintiff by passing the impugned judgment and
decree, which does not warrant interference by this Court in the
present appeal.
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5. A perusal of the material on record will indicate that the
respondent – plaintiff instituted the aforesaid suit seeking
permanent injunction in relation to the plaint / suit schedule
property by describing the same as hereunder:
“SCHEDULE
The house property bearing e-property No
152400701400300039 and demand extract No 39/18,
situated in survey No 17 of Kolige grama, Agrahara hobli,
Thirthahalli taluk, within the limits of Konandur grama
panchayath measuring to an extent of North-south 90 feet
(27.43200 meters) East-West 60 feet( 18.288 meters)
exclusive the malalimath main road margin, in the middle of
the above stated extent a residential house is situated
which measures 83.,61 square meters and the plaintiff has
left the front and back yard vacant space, bounded by :-
East: Site belongs to Bhaskar
West: House belongs to R.M. Jaggadesha
North:Konandur grama road and house belongs
to Shivappa gowda
South: Malalimath Road”
6. As can be seen from the aforesaid description, the said
property has been specifically / clearly identified as plaint / suit
schedule property by the respondent – plaintiff and it is contended
that the appellant – defendant did not have any right, title or
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interest over the plaint / suit schedule property. In order to establish
his contention, the respondent – plaintiff examined himself as PW1
and documentary evidence at Ex.P1 to Ex.P11 were marked on his
behalf; in this context, it is pertinent to note that it is the specific
contention of the respondent – plaintiff that the plaint / suit
schedule property was originally part and parcel of the land bearing
No.17 of the Kolige Grama, Agrahara Hobli, Thirthahalli Taluk,
situated within the limits of Konandur Gram Panchayath and the
same was sold by the said grantee K.N. Ram Rao vide registered
Sale Deed dated 22.06.1985; the said Sale Deed relied upon by
the respondent – plaintiff was marked as Ex.P7 before the Trial
Court; so also, the respondent – plaintiff placed reliance upon the
Sale Deed dated 09.05.2008 said to have been executed by his
vendor Teekappa Gowda in relation to the plaint / suit schedule
property, in pursuance of which, the khatha of the plaint / suit
schedule property was mutated into the name of the plaintiff; in this
regard, revenue records, tax paid receipts, etc., have been
produced by the plaintiff at Ex.P1 to Ex.P3, survey records, etc.,
Ex.P5, Ex.P6 and Ex.P8 to Ex.P11 all of which clearly establish
that the respondent – plaintiff was in possession and enjoyment of
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the plaint / suit schedule property; which was part and parcel of the
land bearing Sy.No.17 as described in the schedule to the plaint;
as against the aforesaid oral and documentary evidence adduced
by the plaintiff, which clearly establish that he was in lawful and
peaceful possession and enjoyment of the plaint / suit schedule
property; the appellant – defendant did not produce any material in
this regard; in this context, it is pertinent to note that except
examining himself as DW1; Ex.D1 – Tax paid receipt, Ex.D2 – RTC
of Sy.No.6/17, Ex.D3 – Assessment Register for the year 2010-11,
Ex.D4 – True copy of license dated 28.02.2011 and Ex.D5 – Sale
Deed dated 14.03.1966 were marked on his behalf.
7. A perusal of the aforesaid documents will indicate that
there is no reference or mention to the plaint / suit schedule
property described in the said documents; it is therefore clear that
having regard to the material on record which clearly indicates that
while the plaintiff was in lawful and peaceful possession and
enjoyment of the plaint / suit schedule property, the oral and
documentary evidence adduced by the appellant – defendant was
not sufficient to establish his possession and enjoyment over the
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plaint / suit schedule property and consequently, I am of the
considered opinion that the First Appellate Court was fully justified
in allowing the appeal filed by the respondent – plaintiff and
reversing the judgment and decree passed by the Trial Court by
holding as under:
“JUDGMENT
This is an appeal against the judgment and decree in OS No.
159/2014 dated 24.08.2016.
The parties of this appeal are referred in their ranks in the trial court
for the sake of the convenience.
The plaintiff has filed this suit before trial court against the
defendants for the relief of permanent injunction.
2. The case of the plaintiff before the trial court is as follows:-
It is submitted that the plaintiff is the owner in possession of the suit
property and the said property was originally granted to one K.N.
Ramrao under Manedala chiti S.C No.66/58-59 and he in turn has sold
the property to M.K.Teekappa Gowda under the registered sale deed,
which was registered as document No.149/1985-86 dated 22-6-1985.
The plaintiff has purchased the same from above said M.K. Teekappa
Gowda and his family members through registered Sale Deed dated 9-
7-2008, thereafter the Khata has been change to the name of the
plaintiff by the Konandur grama panchayath and the plaintiff paying
taxes regularly before the competent authority. Since from the date of
purchase the plaintiff is in peaceful possession of the same and has
covered the Northern side of the suit schedule site by fencing made up
of barbed wiring with stone slabs and other three sides are covered with
compound wall. It is submitted that after the purchase of the suit
property the revenue authority has conducted a survey of the purchased
site and have prepared a sketch in that regard. It is submitted that on
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10-5-2014 at about 10 am. the defendant along with servants illegally
entered into the schedule land and began to remove the barbed wire
fencing and the plaintiff has resisted the illegal act of the defendant. The
defendant has threatened that he would not allow the plaintiff to be in
peaceful possession of the schedule land. Hence this suit.
3. After appearance, the defendant has filed written statement
contended as follows:
The plaint averments are denied. In para 7 of the written statement
it is submitted that the contention of the plaintiff that the plaint schedule
property was originally granted to one Rama Rao by the Tahshildar
Thirthahalli is denied and the alleged grant made in favour of Rama Rao
and the plaint schedule property are totally different properties as per
the documents furnished by the plaintiff. There is no cause of action for
the suit and hence prayed to dismiss the suit of the plaintiff.
4. On the basis of the above pleadings the trial court has
framed the following issues:
1) Whether the plaintiff proves that he is in lawful
possession and enjoyment of suit schedule property as
on the date of suit?
2) Whether the plaintiff proves the alleged interference
caused by the defendants?
3) Whether the plaintiff is entitled for the relief of
permanent injunction as prayed for?
4) What order or decree?
5. The plaintiff has got examined as PW.1 and relied upon Ex.P.1
to P.11 and defendant is examined as DW.1 and relied upon Ex.D.1 and
D.2 documents.
6. After hearing the arguments on both sides, the trial court has
passed the impugned judgment and decree on 24-08-2016 by
dismissing the suit of the plaintiff. Aggrieved by the same the
plaintiff/appellant has preferred this appeal on the following grounds:
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The trial court has not properly appreciated the documentary
evidence and not considered the materials placed on record by the
plaintiff. The trial Court has not appreciated the conditions made in
Ex.P.3 with respect to the road margin and has not looked into the
measurement of the suit schedule property. It is true that the extent
mentioned in the original grant certificate and in the plaint schedule
differ however it is explained in para No.2 that the plaintiff is in
possession of the suit schedule land excluding the road margin therein
which has been not properly appreciated by the trial court. It is further
submitted that the extent of the land is 5 guntas as per Ex.P.3 but As
per Ex.P.4 and 7 the extent of the suit schedule land is 90×60 which is
far less than 5 guntas which is not specifically appreciated by the trial
court. The same facts have been mis-interpreted and misquoted in the
judgment para 16 and 17 and in para 23 of the judgment discussed the
mathematical lines of the same and interpreted in different version. The
trial court has not applied its mind in arriving at a conclusion mentioned
in para 20 of the judgment with regard to the Northern boundary of the
suit schedule property. It is true that the boundary mentioned in
Ex.P.3,Ex.P.4, Ex.P.5 and Ex.P.7 and plaint schedule property are
differint. The trial court has not properly considered the view of the
plaintiff with regard to the Northern boundary of the suit property. It is
clearly mentioned in plaint para 5 to avoid ambiguity with respect to
variation in the boundaries. The defendant is making attempt to
encroach to the northern side of the suit schedule property and the
defendant's father Shivappa Gowda has already encroached the grama
panchayath road and constructed building which was in existence
towards Northern site of the suit schedule property. The trial court has
not evaluated the documents furnished by the defendants which are no
way connected to the present case. Hence on these and other grounds
urged in the appeal prayed to set aside the judgment and decree
passed by the trial court.
7. After service of notice to the defendant he has appeared though
his counsel and the trial court records are secured before this court.
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8. I have heard learned counsel for appellant/plaintiff and he has
reiterated the grounds urged in the appeal. The learned counsel for the
respondent/defendant on the other hand has supported the judgment
and decree passed by the trial court.
9. Now the following points arise for my consideration:
1. Whether the trial court has erred in holding that the
plaintiff has failed to prove that he is in lawful
possession and enjoyment of the suit schedule property
as on the date of the suit ?
2. Whether the trial court has erred in holding that the
plaintiff has failed to prove alleged interference by the
defendant?
3. Whether the trial court has erred in holding that the
plaintiff is entitled for the relief permanent injunction as
prayed for?
4. Whether the interference is called for in the judgment
and decree passed by the trial court?
5. What order or decree?
10. On perusal of the materials placed on record and on hearing
both the counsels, my findings on the above points are answered as
follows:
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Affirmative
Point No.4: In the Affirmative
Point No.5: As per final order
for the following
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REASONS
11. Points No.1 to 4: As these points are inter-linked with each
other, to avoid repetition of discussion, these points are taken together
for common discussion.
12. It is the specific case of the plaintiff that he is the owner in
possession of the suit property. In this regard the plaintiff has produced
ExP3 which is the Manedala chit originally granted to one K N Ramarao
under SC No 66/58-59. on perusal of the said document it dislcoses that
S No 17 of Kolige village measuring 5 guntas is granted to him and
there is a condition in the said grant that the construction should be
made by leaving 75 feet margin and the property should not be
alienated to anybody and the boundaries stated are to the east site of
Bhaskar, west S no 17 vacant land, north Konandur village gadi, south
malalimatt road.
13. ExP7 is the sale deed executed by said Ramarao in favour of
MK Teekappa Gowda bearing registered sale deed doc no 149/1985-86
dt.22/6/85.
14. Further ExP4 is sale deed in favour of the plaintiff having
purchased said property from MK Teekappa Gowda and his family
members through registered sale deed Doc 358/2008-09 dt.9/7/08
thereafter the khata has been changed to the name of the plaintiff by the
Konandur Gram panchayath and the plaintiff is paying tax to the suit
property. In addition the plaintiff has produced ExP1 and Ex.P2 which
are the entries made under From 9 and 11 of panchayat Raj which
specify all the details of the property of the plaintiff and the boundaries
are also in consonance to the boundaries found in the title documents
and the plaint schedule. It is clear that only in order to avoid ambiguity
the Konandur village road and house of Shivappa gowda are both
shown as boundaries on the northern side.
15. Per contra the defendant has taken a contention that the plaint
schedule property is not the land granted to Rama Rao. On the other
hand the defendant is having house property and vacant space in S No
186 of Konandur Village, Agrahara which was purchased by his father
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from one Ramanna Gowda of Halesara and the said property is
bounded to the east: AT Road; West: remaining land in the same survey
number; north: earlier property of Krishnamurthy and now
Sathyanarayana Rao and south earlier property of sunnisab and at
present house of Ravi. It is submitted by defendant that after the demise
of his father the khata is changed to his mothers Hovammas name.
16. In support of the said contention the only document produced
by the defendant is the tax paid receipt and the demand register extract
marked as ExD1 and ExD3. However there is nothing on record to show
that the said property is purchased by the father of the defendant and
the sale deed is not produced to show the description of the property of
the defendant and on what basis he claims to hold property as per the
boundaries mentioned in his chief examination.
17. In this regard the learned counsel for the plaintiff has cross
examined DW1 and in his cross examination it is brought out that kolige
and konandur are different villages and he is residing in a tiled house at
konandur. DW1 is unware of the neighbouring occupants of his property
and though he has stated that his house is measuring 36×90 no
documents are produced to substantiate the said extent. DW-1 has
stated that there is vacant land in front of his house and stone pillar
compound wall. DW-1 has stated that there is vacant land behind his
house and after that comes the house of Saheb however he has not
stated his name. Hence from the cross examination of Dw-1 it can be
gathered that the defendant is unaware of the neighbouring occupants
and also has no documents to show the extent of house property
acquired by his father and in which mode. It is also admitted that the
property of the defendant is in Konandur and the property of the plaintiff
is in Kolige village which are adjoining each other and separated by a
road which is stated to be encroached by the defendant.
18. The trial court has much relied on the boundaries and the
measurement of the suit property and arrived at a wrong conlusion that
more land is sold thatn the granted land. However though the property
granted to the original owner was 5 guntas ie 5445 sq ft, it is clear that
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some portion had to be left to road margin and hence the extent in the
sale deed is mentioned as 60×90 feet i.e., 5400 sq ft which is lesser
than the actual granted 5 guntas of land. Hence it cannot be said that
more land is sold under the sale deed by the vendor than the actual
granted land. Even though it is stated that the boundaries are at
variance there is no such discrepancy in the boundaries as per the
documents and the boundaries shown in the plaint schedule. Hence
interference is called for in the judgment and decree passed by the trial
court. Hence i answer Point no 1 to 4 in the affirmative.
19. Point No.5: For the foregoing reasons, I pass the following;
ORDER
The appeal is allowed with costs.
Consequently, the judgment and decree dated
24/08/2016 in O.S.No. 159/2014 on the file of the
learned Prl. Civil Judge & JMFC., Thirthahalli is hereby
set aside and the suit of the plaintiff is decreed.
Consequently, the defendant, his agents,
supporters and henchmen or any persons on their
behalf are hereby restrained by way of permanent
injunction from removing the barbed wiring fence with
stone slabs towards northern side of suit property and
from interfering with the peaceful possession and
enjoyment of the plaintiff over the suit schedule
property.
Draw decree accordingly.
The LCR is ordered to be returned to the trail court
along with copy of the judgment.”
8. A perusal of the impugned judgment and decree of the
First Appellate Court will clearly indicate that the pleadings,
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evidence of the parties have been correctly and properly
considered and appreciated by the First Appellate Court, which has
allowed the appeal filed by the respondent – plaintiff and decreeing
the suit by recording a finding of fact on possession based on law
and facts and probabilities of the case. Under these circumstances,
I am of the view that the findings recorded by the First Appellate
Court based on the pleadings and evidence cannot be said to
suffer from any illegality or infirmity so as to give rise to the
substantial questions of law warranting interference by this Court in
the present appeal.
9. Insofar as the findings recorded by the Trial Court that
the respondent – plaintiff had not established identity of the suit
schedule property in view of the mutual discrepancies,
contradictions and inconsistency between the documents adduced
at Ex.P1, P3, P4, P5 and P7 and the plaint is concerned, the Trial
Court has failed to consider and appreciate that so long as the
appellant – defendant did not produce any contradictory material to
establish the manner, right, title over the plaint / suit schedule
property and the minor discrepancies in the boundaries interse
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produced by the respondents could not have been made the basis
to reject the claim of the respondent and the First Appellate Court
was fully justified in reversing the said judgment and decree
passed by the Trial Court. Under these circumstances, even this
contention urged on behalf of the appellant – defendant cannot be
said to be perverse, so as to give rise to the questions of law much
less substantial questions of law warranting interference by this
Court in the present appeal.
10. Accordingly, I do not find any merit in the appeal and
the same is hereby dismissed .
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SV
List No.: 1 Sl No.: 41