The High Court
Case Details
- 1 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1007 OF 2012 (INJ) BETWEEN: 1. SRI PUTTASWAMY, S/O SRI MOTE BORE GODA, (SINCE DECEASED BY LRs) 1(a) 1(b) SMT. CHIKKAMANAMMA, W/O LATE PUTTASWAMY GOWDA, MAJOR, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421. SMT. LAKSHMAMMA, D/O LATE PUTTASWAMY GOWDA, MAJOR, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421. (BY SRI GANAPATHI S. SHASTRI, ADVOCATE) AND: 1. SRI SHIVAIAH, S/O LATE SRI KULLE GOWA, (SINCE DECEASED BY LRs) 1(a) SMT. SAVITHRAMMA, W/O LATE SHIVAIAH, AGED ABOUT 54 YEARS, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421. Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka …APPELLANTS - 2 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 1(b) 1(c) 1(d) SMT. SWAMY, D/O LATE SHIVAIAH, AGED ABOUT 40 YEARS, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421.
Legal Reasoning
SMT. SUDHA, D/O LATE SHIVAIAH, AGED ABOUT 37 YEARS, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421. SMT. SUNITHA, D/O LATE SHIVAIAH, AGED ABOUT 35 YEARS, BENAMANAHALLI VILLAGE, LINGAPATTANA POST, HALAGURU HOBLI, MALAVALLI TALUK, MANDYA - 571 421. [BY SRI M.S.VARADARAJAN, ADVOCATE FOR SRI BOREGOWDA H.K., ADVOCATE FOR R1(b); R1 - SERVED, BUT UNREPRESENTED; V/O DATED 17.12.2024 NOTICE TO R1 (c & d) ARE HELD SUFFICIENT] …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.02.2012 PASSED IN R.A.NO.21/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.2.2009 PASSED IN O.S.NO.14/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DVN.), MALAVALLI. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 27.02.2012 passed by Senior Civil Judge and JMFC, Malavalli, in R.A.no.21/2009, this appeal is filed. 2. Sri Ganapathi S.Shastri, learned counsel for appellants submitted that appeal was by defendant in O.S.no.14/2000 filed by respondent-plaintiff for permanent injunction restraining defendant from interfering with peaceful possession and enjoyment of plaintiff over land bearing Sy.no.89/3 measuring 0.82 guntas and Sy.no.90/1, measuring 0.80 guntas, situated at Juganahalli village, Halagur Hobli, Malavalli Taluk bounded on East by road, West by Land of plaintiff's mother Devamma, North by Land of Gulegowda and Dollegowda and South by land of Motamma Boregowda (referred to as 'suit property'). 3. In plaint, it was stated that suit property was purchased from one Siddhaiah S/o Boregowda under registered Sale Deed dated 19.04.1992 and subsequently, name of plaintiff was mutated in revenue records and that plaintiff has - 4 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 paid upto date tax. It was further stated that defendant was a total stranger to suit property, who was not in possession had begun to interfere with peaceful possession and enjoyment of plaintiff over suit property even after several panchayaths conveyed had advised him against it. It was further stated plaintiff had filed complaint with Halgur Police, who had instructed defendant against illegal inteference. It was stated that since defendant was violated said advise, plaintiff had filed suit. 4. It was further submitted, on appearance, defendant had filed written statement denying plaint averments in toto and specifically claiming to be owner in possession and enjoyment of land bearing Sy.no.77/1-2 measuring 0.4 guntas situated at Juganahalli Village, Halguru Hobli, Malavalli Taluk. Said land was granted in L & DPR no.74/1977-78 and Saguvali Chit No.207/1978-79 on 19.09.1978. It was stated defendant had planted many trees in said land and there was a road towards eastern side and that land bearing Sy.no.89/3 and 90/1 were situated near said land. It was specifically stated that Siddhaiah S/o Boregowda never cultivated land and it was lying fallow. Eastern boundary mentioned was incorrect. It was - 5 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 stated that in between road and Sy.no.89/3 and 90/1, there was 1 Acre of land bearing Sy.no.77/2 and which was in possession and enjoyment of defendant. It was stated on basis of concocted and collusive Sale Deed with wrong boundaries, plaintiff had sought to interfere with peaceful possession and enjoyment of defendant's land. When defendant had given complaint against plaintiff with Halguru Police on 14.12.1999, police had visited spot and warned plaintiff not to interfere with defendant's property. Police had also directed plaintiff to approach revenue authorities and get land measured. An endorsement in NCR no.358/1999 was issued. It was stated, without approaching authorities, plaintiff had filed suit by giving wrong boundaries. It was stated, defendant was not claiming even an inch of property in Sy.no.89/3 and 90/1 and that plaintiff was at liberty to get it measured and to enjoy same. 5. It was alleged plaintiff had not approached Court with clean hands and boundary given in plaint not only include 0.82 and 0.80 Acres of Sy.nos.89/3 and 90/1, but also included land of defendant. As suit was filed with wrong boundaries, without approaching revenue authorities for fixation of - 6 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 boundary stones, suit was vexatious and sought for its dismissal. 6. Based on pleadings, trial Court framed following issues: 1. 2. 3. Does the plaintiff prove the possession? Does the plaintiff prove the interference? Does the plaintiff entitled to any relief? 4. What decree or order? 7. Thereafter plaintiff examined himself and two others as PWs 1 to 3 and got marked documents as Exhibits P.1 to P.24. In rebuttal, defendant examined himself and another as DWs 1 and 2 and got marked 25 documents as Exhibits D1 to D5 respectively. 8. On consideration, trial Court answered issues no.1 to 3 in negative, issue no.4 by dismissing suit. Aggrieved, plaintiff filed R.A.no.21/2009. Based on contentions, first appellate Court framed following points: 1. Whether appellant / plaintiff proves that, he is the absolute owner in possession and enjoyment of the suit schedule property, with boundaries mentioned in the plaint? 2. Whether appellant proves that, defendant has made illegal interference in his peaceful - 7 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 possession and enjoyment of the suit schedule property? 3. Whether appellant / plaintiff is entitle for the relief of perpetual injunction as prayed for in the plaint? 4. Whether appellant has made out grounds to interfere in the judgment and decree passed by the trial Court in O.S.14/2000 dated 18.02.2009? 5. What order? 9. Though, by recording findings on points no.1 to 4 in affirmative, without proper re-appreciation, first appellate Court answered point no.5 by allowing appeal, setting aside judgment and decree passed by trial Court and decreeing plaintiff's suit. Aggrieved, defendant was in appeal. It was submitted, this Court on 20.07.2012 admitted appeal to consider following substantial question of law : "Whether the First Appellate Court has justified in reversing the judgment and decree of Trial Court and in doing so, whether it adopted the well established principles of law in appreciation of evidence?" 10. Learned counsel for defendant strenuously submitted, common description of both survey numbers were given in plaint schedule. In deposition, plaintiff (PW.1) had described Sy.no.89 as measuring 82 guntas and bounded on - 8 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 East by road, West by lands of Devamma, North by land of Gulegowda and Dollegowda, and South by land of Motamma Boregowda, which was similar to plaint schedule. It was submitted, even in respect of Sy.no.90, it was stated to be measuring 80 guntas bounded on East by road, West by land of Devamma, North by plaintiff's land and South by land of Motegowda and Boregowda, thereby contradicting boundary description in plaint. It was specifically submitted, total extent of suit property would be 4 Acres 2 guntas, whereas extent mentioned in plaint schedule was 0.82 Acres and 0.80 Acres respectively. Thus, there was grave inconsistency in description of suit property. 11. It was submitted, though defendant had denied and disputed plaintiff's claim, there was no prayer for declaration, which would also be fatal. And in view of fact that dispute was about boundaries of properties, defendant had filed application for appointment of Court Commissioner. But said application was rejected after plaintiff filed objections and opposed same. It was further submitted when defendant filed complaint about interference by plaintiff, police had issued endorsement - Ex.D.4, directing plaintiff to approach revenue authorities, get - 9 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 his land measured and sort out dispute and not to cause interference till then, but admittedly, plaintiff had not approached revenue authorities. 12. It was submitted while passing impugned judgment and decree, first appellate Court lost sight of above inconstancies and fatal defects and referring only to Ex.P.21 - sale deed, had recorded finding that documents produced established plaintiff being in possession and enjoyment of suit property since date of purchase. On said erroneous conclusion appeal was allowed upsetting well reasoned findings of trial Court. In view of above, impugned judgment and decree passed by first appellate Court suffers from perversity, therefore, prayed for answering substantial question of law in favour of appellant and to allow appeal restoring decree passed by trial Court. 13. Sri MS Varadarajan, learned counsel appearing for Sri HK Boregowda, learned advocate for plaintiff opposed appeal. It was submitted suit was filed with specific assertion about plaintiff's title and possession over suit property on basis of registered sale deed - Ex.P.1. Boundary description of suit property tallied with boundary description in sale deed. It was - 10 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 submitted, in written statement, defendant had specifically stated that defendant was not claiming any portion of property in Sy.nos.89/3 and 90/1. Thrust of defence of defendant was alleging incorrect boundaries and claiming that land bearing Sy.no.77/1-2 was granted to defendant and same was situated in between road and Sy.nos.89/3 and 90/1 of Juganahalli village, Halgur Hobli, Malavalli Taluk. 14. Learned counsel drew attention of this Court to deposition of PW1, which was in terms of plaint. Insofar as contention about boundary description in sale deed being only of Sy.no.89/3 without independent boundary description of Sy.no.90/1. Learned counsel drew attention of this Court to specific recitals in Ex.P.1 - sale deed, wherein after boundary description of Sy.no.89/3, it was specifically stated that said boundary description included land in Sy.no.90/1. It was submitted, while passing impugned judgment and decree, first appellate Court had re-appreciated entire evidence and findings of trial Court and specifically referred to deposition of DW1, wherein there was a clear admission that suit was filed in respect of 4 Acres 2 guntas of land, that plaintiff had purchased suit property under registered sale deed dated 19.04.1992 from - 11 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 Siddaiah son of Boregowda and since then was in possession of 4 Acres 2 guntas of land. It was submitted, DW.1 further specifically stated that he had no concern or interest in suit property purchased by plaintiff. Said admission was also in written statement Therefore, there was no need for plaintiff to sought relief of declaration. 15. It was submitted, defendant claimed to have been granted land under darkast, but no records were produced to substantiate same. In fact, first appellate Court also referred to admissions in cross-examination of DW.2 about plaintiff being in possession of suit property since 1992 and defendant being in habit of filing suit and had filed one more suit claiming that he was granted 1 Acre of land. It was lastly submitted, date of alleged grant was 19.09.1992 subsequent to date of purchase by plaintiff. Therefore, plaintiff's claim over Sy.no.90/1 would prevail. Taking note of same, first appellate Court had reversed judgment and decree passed by trial Court. It was submitted, finding about plaintiff's peaceful possession and interference being with reference to material on record, judgment being passed after assigning sufficient reasons did not suffer from - 12 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 perversity and therefore substantial question of law raised did not arise for consideration and sought for dismissal of appeal. 16. Heard learned counsel for appellant, perused impugned judgment and decree and record. 17. This is defendant's second appeal impugning judgment and decree passed by first appellate Court on ground of perversity of findings. Main ground of challenge is incorrect description regarding extent of plaintiff's land and failure to seek for declaration of title which would be fatal to suit for permanent injunction in absence of prayer for relief of declaration. 18. While passing impugned judgment and decree, trial Court adverting to pleadings and evidence, but appears to be swayed by absence of any recital about basis of title by plaintiff's vendor. It referred to Ex.D.4 to conclude that Halgur police had directed parties to get their properties surveyed and demarcated and not to meddle with respective properties , but plaintiff filed suit without getting his land surveyed. In light of advice in Ex.D.4, it referred to application filed by defendant for appointment of Court Commissioner for measurement of - 13 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 properties and for fixation of boundary stones, which was opposed by plaintiff. It took note of dispute between parties about boundaries and conduct of plaintiff failing to get boundaries of his land measured and fixed and held suit for permanent injunction would be untenable. 19. While passing impugned judgment and decree, first appellate Court after referring to pleadings and documentary evidence, took note of admission extracted during cross- examination of DW.1, firstly, about total extent of suit property being four acres 2 guntas, secondly about purchase of suit property by plaintiff on 19.04.1992 from Siddaiah and plaintiff being in possession of suit property from date of purchase as well as his admission that defendant was not concerned with suit property purchased by plaintiffs. It also referred to admission of DW.2 about plaintiff was in possession since 1992. On basis of said admission and in light of contents of Exs.P.1 to 25 as well as deposition of PW2 - Scribe of Ex.P.1- Sale Deed and PW.3 - attestor, it held plaintiff had successfully established peaceful possession and enjoyment of suit property as owner from date of its purchase. On said observations, it reversed findings of trial Court. - 14 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 20. Bare perusal of written statement of defendant would give impression that main defence was dispute about boundaries and extent, while maintaining that property i.e, land bearing Sy.no.77/1 -2 claimed by defendant was different and distinct from property claimed by plaintiff i.e., Sy.nos.89/3 and 90/1 and that boundaries of said lands were not fixed. But, admissions by defendant examined as DW.1 adverted to by first appellate Court would establish to defendant giving up said defence. 21. Insofar as strenuous contention by learned counsel for defendant about discrepancy in boundary description, specific recital in Ex.P.1 - Sale deed with boundary description of Sy.no.89/3 included that of Sy.no.90/1. Therefore, contention based on discrepancy in boundaries would stand dispelled. With admission by defendant about plaintiff being in possession of extent of 4 acres 2 guntas from date of purchase corroborated by DW.2, even challenge based on extent would also require rejection. 22. It is also seen admission about plaintiff being adjacent land owner would be with reference to Southern boundary i.e., land of Motamma Boregowda, who, DW.1 - 15 - NC: 2025:KHC:13095 RSA No. 1007 of 2012 admitted to be his father. In any case, finding recorded by first appellate Court would be finding of fact and judgment and decree passed being with reference to pleadings, oral and documentary evidence on record and after assigning reasons, same cannot be held perverse. Hence, substantial question of law framed is answered in negative. 23. Consequently, appeal is dismissed. However, dismissal of appeal would not come in way of appellant/defendant seeking for demarcation of his land, but without disturbing plaintiff's right with regard to suit property herein, if he is so entitled to in law. Sd/- (RAVI V HOSMANI) JUDGE Av/Psg* List No.: 1 Sl No.: 60