The High Court
Case Details
- 1 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.445 OF 2025 (INJ) BETWEEN: 1. RUDROJI RAO S/O LATE DHARMOJI RAO AGED ABOUT 69 YEARS, R/O MARASHETTYHALLI VILLAGE BHADRAVATHI TALUK-577 233. (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) …APPELLANT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: 1. SRI. RUDRAPPA AGED ABOUT 64 YEARS, S/O LATE KENCHAPPA, 2. NAGENDRAPPA AGED ABOUT 61 YEARS, S/O LATE KENCHAPPA, 3. HALESHAPPA S/O LATE PARASAPPA, AGED ABOUT 49 YEARS, ALL ARE RESIDENTS OF MARASHETTYHALLI VILLAGE BHADRAVATHI TALUK-577 233. …RESPONDENTS - 2 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR
Legal Reasoning
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.12.2024 PASSED IN R.A.NO.33/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.03.2022 PASSED IN O.S.NO.187/2016 ON THE FILE OF THE JMFC, BHADRAVATHI. II ADDITIONAL CIVIL JUDGE AND THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding of the Trial Court dismissing the suit and confirming the same by the First Appellate Court. 3. The factual matrix of case of the plaintiff before the Trial Court that the suit schedule property was granted in his favour by the panchayat and to that effect they issued the document Ex.P.1 to Ex.P.4 and defendants are interfering with the lawful possession of the plaintiff and hence, filed the suit seeking the relief of permanent - 3 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR injunction. The defendant appeared and filed the written statement contending that plaintiff has no title namely registered document to show the title over the suit schedule property. The plaintiff has given an application to Marashettyhalli Grama Panchayath by misleading the authority by saying that he is in possession of the suit schedule property. The Grama Panchayath is not the owner of the suit schedule property and suit schedule property is not a Grama Tana so as to make a grant in favour of the plaintiff. Originally one Thimmanna is having land measuring 7 acres 21 guntas in Sy.No.89 of Marashettyhalli Village, which was purchased through sale deed dated 03.04.1960 after the death of Thimmanna, Panchappa and Parasappa being the legal heirs of Thimmanna have acquired the right over the said property, the said two persons have sold several properties and retained only 0-18½ guntas of land in their possession. The plaintiff has filed the application before the panchayat without issuing any notice to these - 4 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR defendants. The P.D.O in collusion with the plaintiff had passed the resolution without verification of the relevant records. The defendants are having property in Sy.No.89 and it is situated towards the western side of the plaintiff's property that means in between the property of the plaintiff and drainage of K.K Road, the property of the defendants is situated. The plaintiff under the guise of the resolution has tried to form fence around the suit schedule property and the same is resisted by these defendants. The defendants have also issued legal notice to the plaintiff, to the Secretary, to the Tahasildar and to the Executive Officer, Taluk Panchayat and the plaintiff had issued false reply. The defendants have also given the representation before the Secretary, Grama Panchayat and Taluk Panchayat. Hence, sought for the relief of dismissal of the suit. 4. The Trial Court having considered the pleadings, even an application was filed under Order 6 Rule 17 of CPC, the same was allowed. The plaintiff got - 5 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR amended the plaint and modified the extent of the suit schedule property and defendants have also filed additional written statement in view of the amendment. The Trial Court having considered the pleadings of the parties, framed the issues and answered all the issues as negative having appreciating the material on record since the very claim of the plaintiff that there was a grant but not produced any resolution before the Court having granted the land and also the order of grant also not placed on record and only relies upon the e-Swathu record as Ex.P.1 and assessment register extract and demand register extract and endorsement. On the other hand defendants have placed the document of exhibit D-series by examining D.W.1 and D.W.2 that is copy of the sale deed, RTC Extracts, mutation register, Akara band, copy of the order passed by the High Court, document Ex.D.7 and Ex.D.8-endorsement, Ex.D.9 receipt, Ex.D.10 rough sketch, Ex.D.11 acknowledgment and copy of the order as per Ex.D.12 and notice. The Trial Court having considered - 6 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR the oral and documentary evidence and also taken note of the plaintiff having the knowledge about the challenge was made before the order of grant in favour of the plaintiff and he was also represented through counsel, but did not place it on record the document Ex.D.12 the order passed on 29.06.2016 and detailed order has been passed that the plaintiff has not approached the Court with clean hands and dismissed the suit. 5. Being aggrieved by the said judgment of dismissal, R.A.No.33/2022 is filed. The First Appellate Court having considered the grounds urged in the appeal memo, extracted the grounds in paragraph No.11 and also taken note of the pleadings and so also an I.A is filed under Order 41 Rule 27 read with Section 151 of CPC praying to permit him to lead further evidence before the Court by way of appointment of Court Commissioner to identify the existence of property of plaintiff and defendant. The Appellate Court having considered the pleadings and grounds urged in the appeal memo and also - 7 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR filing of an application, framed the point for consideration particularly the application filed under Order 41 Rule 27 of CPC and also filed an application under Order 26 Rule 9 of CPC for appointment of Commissioner. Having re-assessed the material available on record, answered the Point No.1 as affirmative and answered the other points for consideration as negative in coming to the conclusion that when the appellant/plaintiff failed to produce the grant order resolution and also not proved the possession, question of appointment of Commissioner doesn't arise and dismissed the appeal in coming to the conclusion that the appellant had filed only a suit for bear injunction based on the documents issued by the Grama Panchayath except producing the Grama Panchayat documents, he has not produced any document to identify his property and moreover Executive Officer, Taluk Panchayat cancelled Form No.11B document issued by the Grama Panchayat and taken note of decision of the Apex Court in the Judgment reported in (2000) 7 JT 379 in between Sri - 8 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR Shreepat V/s Rajendra Prasad and others. Having considered the principles laid down in the judgment that “since there was a serious dispute with regard to that area and boundaries of the land in question, especially with regard to its identity, the Courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plat in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1” and taken note of the principles laid down in the judgment, comes to the conclusion that those judgments are also not helpful to the appellant and contend that Appellant has not made out any proper ground to remand the case and permit him to appoint Court Commissioner and dismissed the appeal. 6. Being aggrieved by the said confirmation of the order, both the orders were challenged before this court. The main contention of the appellant’s counsel before this Court in the second appeal that the Trial Court is not justified in holding that the grant is cancelled and - 9 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR therefore the possession of the plaintiff over suit property is not proved and also committed an error in rejecting the application filed under Order 41 Rule 27 of CPC and so also the application filed for appointment of commissioner and the very reasoning given by the First Appellate Court that plaintiff has not proved his possession over the suit property is not a proper finding. Hence, this court has to frame the substantive question of law. 7. Having heard the appellants’ counsel and also considering the pleadings of the plaintiff/appellant and also the contention of the defendant and issues framed by the Trial Court and also the answer elicited from the mouth of the P.W.1 which have been extracted by the Trial Court while passing such an order, taken note of the boundaries and the same has been extracted in paragraph No.12 of judgment of the Trial Court and also extracted the admission given by the P.W.1 in paragraph No.16 wherein P.W.1 categorically admitted that when he made an attempt to put the stone as well as fencing in respect of - 10 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR land to the extent of 29 x 50 feet of the property of the defendant, the incident has taken place. Apart from that he also categorically admitted that no resolution was passed and no resolution is also placed on record, but in e-Swathu that is document Ex.P.1 came into existence and apart from that he is having the knowledge about cancellation of the order passed by the Executive Officer since he has engaged the counsel before the Executive Officer and subsequent to the filing of suit, an order was passed on 29.06.2016 and the same was not stated in the affidavit which was filed on 04.12.2017 and the same was observed by the Trial Court in paragraph No.29 that the plaintiff has not approached the Court with clean hands. 8. The First Appellate Court having re-assessed the material available on record taken note of the reasoning given by the Trial Court and also taken note of admission, particularly in paragraph Nos.30, to 33 and also comes to the conclusion that evidence of P.W.1 and P.W.2 is not sufficient to prove possession of appellant in - 11 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR the extent of suit schedule property and the same is observed in paragraph No.33 and also taken note of the document Ex.P.2 and also Ex.P.1 and also taken note of document Ex.D.12 and comes to the conclusion that plaintiff has failed to prove his actual possession and enjoyment of the suit schedule property and when such concurrent finding is given with regard to the very possession as well as when there was no any grant order and also there was no any resolution, only based on the document given by the panchayat, particularly Ex.P.1 to Ex.P.4, files the suit. When such material is considered by the Trial Court as well as the First Appellate Court, I do not find any error committed by both the Courts in appreciating both factual aspects as well as when there was no grant order and the same was cancelled, question of granting the relief of permanent injunction unless the property is identified with correct description of the property and when the possession was not proved, question of granting the relief of permanent injunction - 12 - NC: 2025:KHC:20466 RSA No. 445 of 2025 HC-KAR doesn't arise. Both the courts have applied their mind and dismissed the suit. Hence, no question of admitting the second appeal and framing any substantive question of law. 9. In view of the discussions made above, I pass the following:
Decision
ORDER The Second Appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 52