The High Court
Case Details
- 1 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1168 OF 2013 (INJ) BETWEEN: 1. MR. UMESH POOJARY S/O. JARAPPA POOJARY AGED ABOUT 38 YEARS HINGANI HOUSE ARAMBODI VILLAGE BELTHANGADY - 574 237. (BY SRI. K. SHASHIKANTH PRASAD, ADVOCATE) …APPELLANT AND: 1. MR. RAMANANDA SALIYAN S/O. MR. SHEENA POOJARY AGED ABOUT 60 YEARS HINGANI HOUSE ARAMBODI VILLAGE BELTHANGADY - 574 237. (BY SRI. MANU R., ADVOCATE FOR SRI. S. RAJENDRA, ADVOCATE) …RESPONDENT THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 17.1.2013 PASSED IN R.A.NO.35/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., BELTHANGADY, D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 6.2.2010 PASSED IN O.S.NO.201/2006 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) BELTHANGADY AND ETC,. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 17.01.2013 passed in R.A.No.35/2010 by the learned Senior Civil Judge and J.M.F.C., Belthangady, Dakshina Kannada District. 2. For convenience, the parties are referred to
Legal Reasoning
based on their ranking before the trial court. The appellant was the defendant, and the respondent was the plaintiff. 3. The brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for permanent injunction, restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties. It is the case of - 3 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR the plaintiff that the plaint A-schedule property, which is Khadim warg land, belongs to his Aliyasanthana family, where, one Boggu Poojary is the Head of the Family, and the RTC, Khata and all revenue records in respect of the said property, stood in his name. Plaint B-schedule property is the Government land forming Kumki to A- schedule property. The said Boggu Poojary, who is the maternal grandfather of the plaintiff, put him in possession of the schedule properties under a family arrangement, 10 years prior to the filing of the suit. The plaintiff is paying the land revenue in respect of plaint A-schedule property. 4. On 02.09.2006, the defendant, with his men, trespassed into the suit schedule properties by demolishing the Mud Agalu on the Northern Side and attempted to level the land by using a JCB machine properties to dispossess the plaintiff from the suit schedule properties. The plaintiff lodged a complaint before the S.H.O. Venoor, and the police, after holding an enquiry, issued an endorsement stating that the dispute between - 4 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR the plaintiff and the defendant is in civil nature. The plaintiff, aggrieved by the act of the defendant, interfering with the peaceful possession of the plaintiff over the suit properties, filed the suit. Accordingly, he prays to decree the suit. 5. The defendant filed a written statement denying
Legal Reasoning
the averments made in the plaint. It is contended that the plaintiff, in collusion with the village accountant, confronted the documents in support of his claim. It is denied that the plaint B-schedule property forms kumki to A-schedule property. It is contended that plaint A-schedule property is the Aliyasanthana family property of his father and his maternal uncle, namely Boggu Poojary. It is contended that his father was allotted 0.56 Acres of land in Survey No.56/14 (P1) as per the partition of the Aliyasanthana family property in 1953, and the remaining land was retained by Boggu Poojary on behalf of the members of his family. - 5 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR 6. It is contended that about 1 acre in the 'B' Schedule property forms Kumki to the warga land in Sy.No.56/14(P1), measuring 0.56 acres in possession of the defendant. He further contended that there is no cause of action arise to file this suit. Hence, prays to dismiss the suit of the plaintiff. 7. The trial Court, based on the pleadings of the parties, framed the following issues. 1. Whether the plaintiff proves that the suit 'B' schedule property is the kumki land to the suit 'A' schedule property and he is in peaceful possession and enjoyment of suit A and B schedule property as on the date of suit? 2. Whether the plaintiff proves the illegal interference of defendant over suit A and B schedule property? 3. Whether the plaintiff is entitled for the relief sought for? 4. What order or decree? - 6 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR 8. The plaintiff, to substantiate his case, examined himself as PW1, and marked 9 documents as Ex.P1 to Ex.P9. On the other hand, the defendant was examined as DW1 and no documents were marked. The trial Court, after recording the evidence, hearing on both sides, and on assessing the verbal and documentary evidence, dismissed the suit vide judgment dated 06.02.2010. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.201/2006 by the Additional Civil Judge (Junior Division), Beltangadi, preferred an appeal in R.A.No.35/2010 on the file of the learned Senior Civil Judge, and JMFC, Belthangady, Dakshina Kannada. 9. The First appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:- 1. Whether the appellant proves that impugned judgment and decree of the Trial Court passed in O.S.201/2006 is contrary to law, facts, illegal perverse and probabilities - 7 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR of the case and as such same is liable to be interfered with? 2. What order? 10. The first appellate Court on reassessing the verbal and documentary evidence, allowed the appeal with cost and set aside the judgment and decree passed by the trial Court and consequently, decreed the suit of the plaintiff and restrained the defendants from trespassing and interfering with the plaintiff's peaceful possession and enjoyment of the plaint 'A', and 'B' schedule properties. The defendant, aggrieved by the judgment and decree passed in R.A.No.35/2010, filed this Regular Second Appeal. 11. Heard the arguments of the learned counsel for the defendant and the plaintiff. 12. Learned counsel for the defendant submits that the plaintiff is not in possession of the suit schedule properties. The trial Court, considering the entire evidence on record, has rightly dismissed the suit. He submits that the first appellate Court has committed an error in - 8 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR reversing the judgment and decree passed by the trial Court. Hence, on these grounds, he prays to allow the appeal. 13. Per contra, the learned counsel for the plaintiff submits that the plaintiff is in possession of the suit schedule property and the said fact was admitted by the defendant during the cross examination. He submits that, in a suit for perpetual injunction, the Court is required to consider the possession and interference. He submits that the admitted facts need not be proved as per Section 58 of the Indian Evidence Act. Hence, the first appellate Court, considering the admissions of DW1 regarding the possession of the plaintiff over the suit schedule properties, has rightly passed the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal. 14. This Court admitted the appeal on 10.06.2021 to consider the following substantial question of law: Whether the first appellate Court is justified in reversing the judgment and decree passed by the trial Court? - 9 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR Reg. Substantial question of law: 15. The plaintiff, to substantiate his case, examined himself as PW1. He has deposed that, the plaintiff is in possession of the suit schedule properties and plaint 'A' schedule property was standing in the name of Boggu Poojary who is the maternal grandfather of the plaintiff and in the family arrangement, plaint 'A' schedule property fell to the share of the plaintiff and based on the family arrangement, the plaintiff's name was entered in the revenue records regarding the 'A' schedule property. He also deposed that schedule 'B' property is the government land and the said 'B' schedule property is adjacent to the 'A' schedule property, and it is a kumki land to 'A' schedule property. The plaintiff is enjoying plaint 'A' and 'B' schedule properties. He has deposed that the defendant came to the suit schedule properties on 02.09.2006 and tried to dispossess the plaintiff from the plaint schedule properties. To, prove that the plaintiff is in possession of - 10 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR the suit schedule properties, the plaintiff has produced the documents. Ex.P1 to Ex.P4 are the tax paid receipts. Ex.P5 is the receipt issued by the police regarding the complaint lodged by the plaintiff against the defendants before the S.H.O.,Venoor. Ex.P6 is the endorsement issued by police stating that the dispute fallen between the plaintiff and the defendant is civil in nature and directed the parties to appear before the Civil Court. Ex.P7 and Ex.P8 are the pahanies which discloses that the plaintiff is in possession and enjoyment of the suit schedule property. Ex.P9 is the sketch. 16. During the cross examination of PW1, it is elicited that the defendant's mother had filed a suit for the relief of possession against the plaintiff in O.S.No.152/2006. The said suggestion by the defendant and the admission of DW1 regarding the possession of the plaintiff over the suit schedule properties is sufficient to - 11 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR hold that the plaintiff is in possession and enjoyment of the suit schedule properties. Admittedly, the plaintiff has filed a suit for perpetual injunction. In a suit for perpetual injunction, the plaintiff is required to prove the possession and alleged interference. 17. Admittedly, the defendant admitted the possession of the plaintiff over the suit schedule properties. Admitted fact need not be proved as per Section 58 of the Indian Evidence Act, 1872. The first appellate Court, considering the admission of DW1 regarding the plaintiff's possession over the suit schedule properties, and filing of the suit by the defendant's mother against the plaintiff in O.S.No.152/2006 for the relief of possession, has rightly passed the impugned judgment. Hence, I do not find any error in the impugned judgment. In view of the above discussion, I answer substantial question of law in the negative. Accordingly, I proceed to pass the following order:
Decision
ORDER - 12 - NC: 2025:KHC:18922 RSA No. 1168 of 2013 HC-KAR 1. The Appeal is dismissed. 2. The Judgment and decree dated 17.01.2013 passed in R.A.No.35/2010 by the learned Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada is hereby confirmed. 3. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE DDU,RCK, List No.: 1 Sl No.: 6