IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL NO.2745 OF 2011 BETWEEN:
B.S.SHANKARAPPA, S/O.SIDDAPPA, AGED ABOUT 53 YEARS, R/AT BAGILUGHATTA GRAMA, BANAVARA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT.
(BY SRI B.ROOPESH, ADV.,) AND:
SHOBHA KUMAR, S/O. CHANDRASHEKARAPPA, AGED ABOUT 43 YEARS, R/AT BAGILUGHATTA GRAMA, BANAVARA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT.
(BY SRI LOKESH KUMAR K.S. ADV.,) * * * ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 6.4.2011 PASSED IN R.A.NO.58/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARSIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.3.2008 PASSED IN O.S.NO.3/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) & JMFC., ARSIKERE.
THIS REGULAR SECOND APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T Heard the arguments of the learned counsel for the appellant.
2. This appeal is filed by the appellant-plaintiff assailing the judgment and decree passed by the Additional Civil Judge (Jr.Dn.), Arsikere in O.S.No.3/2001, dated 24.03.2008 and the same was upheld by the Senior Civil Judge and JMFC, Arsikere in R.A.No.58/2008 dated 06.04.2011.
3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the trial Court is that the plaintiff and the defendant are the residents of the same village. On 19.11.1991, the suit schedule site was granted in favour of plaintiff by Manakathur Mandal Panchayath, subsequently, the plaintiff is in possession and enjoyment of the site. Due to the paucity of the funds, he could not able to construct the house in the suit schedule property. But he has fenced the same and stored haystack and other agricultural produces. The defendant is not having any manner of right, title interest much less possession over the suit schedule property. In spite of it, he tried to tress pass into the suit schedule property. Hence, the plaintiff filed the suit to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property and to declare him as a owner of the said property.
5. The defendant appeared in pursuance of the notice issued by the trial Court and filed written statement taking contention that the suit schedule property is measuring 30x40 feet which has been previously allotted by the same panchayath to him on 10.07.1990 itself with boundary East by Road, West by land of Rajappa, North by land belonging to Panchayath and then road, South by land belonging to Panchayath and the same is now granted to Suresh. The suit schedule property has been allotted to the defendant on 10.07.1990 and grant certificate is issued and possession is handed over to him. Defendant also obtained licence from the panchayath for construction of the house in the site. In the mean while, one Mahalingappa, the relative of the plaintiff was trying to obstruct the possession and hence, the defendant filed O.S.No.197/94 and the same was decreed on 29.11.2000. In the said case, the said Mahalingappa had filed application U/O.1 R.10(2) of CPC to implead the plaintiff as the additional defendant. The same was rejected by the trial Court. Suppressing the same, the plaintiff filed the present suit. The defendant is in possession and enjoyment of the property since the date of grant and hence, prayed for dismissing the suit.
6. Based upon the pleadings, the trial Court framed the following issues:
1. “Whether the plaintiff proves that, he is the absolute owner of the suit schedule property?
2. Whether the plaintiff is in lawful possession over the suit schedule property as on the date of suit?
3. Whether the defendant proves that the suit schedule property was granted to defendant, prior to grant of this plaintiff?
4. Whether the plaintiff is entitle for the relief sought for?”
7. To substantiate his case, the plaintiff himself examined as PW.1 and got marked three documents as Exs.P.1 to 3. He also examined PWs.2 and 3 and on the other hand the defendant examined as DW.1 and got marked thirteen documents as Exs.D1 to 13 and also examined Patel Channabasappa as DW.2. Previously, the trial Court has dismissed the suit on 02.07.2004 and the First Appellate Court remanded the case back for fresh disposal by appointing Court Commissioner. Thereafter, the Court Commissioner has been appointed by the trial Court who is also examined as CW.1 and got marked seven documents through Court Commissioner as per Exs.C1 to 7. After hearing both the parties to the suit, the trial Court answered issue Nos.1, 2 and 4 in the negative against the plaintiff and dismissed the suit.
8. Assailing the judgment and decree passed by the trial Court, the plaintiff preferred the appeal before the Senior Civil Judge and JMFC, Arsikere in R.A.No.58/2008 and after hearing the arguments, the First Appellate Court dismissed the appeal by confirming the judgment and decree passed by both the Courts below. Hence, the appellant preferred this second appeal before this Court.
9. Sri.B.Roopesha, the learned counsel for the appellant strenuously contended that both the trial Court as well as Appellate Court had committed an error in holding that the suit schedule property is the property of the defendant even though there is no site number mentioned in the allotment letter, Ex.D4 Grant certificate, whereas, site No.3 measures East-West 21ft, North-South 35ft. Even otherwise, report of the Court Commissioner goes to show that the boundary mentioned by the parties does not tally with the suit schedule property as well as the boundary of the defendant property. The Court Commissioner report also shows that the suit schedule property is not in the shape of rectangle and the measurement is very near to the measurement mentioned in the grant certificate of the defendant. The trial Court as well as the Appellate Court have wrongly come to the conclusion that both the sites are one and the same, which is not correct. Therefore, prayed for setting aside the same.
10. Though the learned counsel for the respondent has not appeared before the Court, this Court granted time for him till completion of the arguments of the learned counsel for the appellant to appear and to address arguments. Even otherwise, since the appeal filed by the plaintiff is against the concurrent finding of both the Courts, this Court cannot interfere with the findings of the Courts below until there is a perverse in finding and serious error committed against the evidence or with the documents on record. Therefore, this Court having no other way took up the matter for hearing the arguments of the learned counsel for the appellant-plaintiff.
11. On perusal of the documents on record, it is an admitted fact that the same Mandala Panchayath has granted site measuring 30x40 ft. not mentioning any site number but it was allotted to the defendant on 10.07.1990. It is also admitted that a site was allotted to the plaintiff measuring 21x35 ft under Ex.P3 on 19.11.1991 which is subsequent to the allotment made to the defendant. Based upon the allotment made to the defendant in the year 1990, defendant also filed an application to the same Panchayath for obtaining the license for construction of a house. The same has been granted by the Panchayath as per Ex.D5. Exs.D 1 is the tax paid receipt and Exs.D2 and D3 are assessment and demand register extracts issued by the panchayath. Exs.D6 to 8 are the tax paid receipts, D9 is the tax demand register extract. These documents are not seriously disputed by the plaintiff. Ex.D10 is the certified copy of building licence. Ex.D11 is certified copy of the order sheet in O.S.No.197/94 and Exs.D12 and D13 are the certified copies of the judgment and decree in O.S.No.197/94 wherein the defendant filed the suit against one Mahalingappa claimed to be the relative of the plaintiff and obtained the injunction against Mahalingappa. Whereas, the plaintiff’s case is that the suit schedule site is allotted to the plaintiff. Though he has produced the tax receipts as well as the possession certificate issued by the Panchayath and examined himself as PW.1 and two more witnesses as PWs.2 and 3, but not examined any Panchayath member and President of the Panchayath to show that the said site has been allotted to him after canceling the said site allotted to the defendant, the trial Court after considering the evidence on record has categorically come to the conclusion that the suit schedule property as well as the property claimed by the defendant are one and the same, but the plaintiff has not examined any independent person to show that the suit schedule property is different from the property allotted to the defendant.
12. The findings of the trial Court holding that the property in dispute claimed by the parties are one and the same and the said findings are upheld by the First appellate Court by giving reasons, re-appreciated the evidence. Mahalingappa, the defendant in OS.No.197/94, also tried to implead the plaintiff as additional defendant in O.S.No.197/94, which came to be dismissed. Inspite of that, the plaintiff has filed the present suit against the defendant to declare that he is the owner of the suit schedule property even though there is no documents to show that the suit schedule property allotted to the defendant has been cancelled by the panchayath. The trial Court has rightly held that once suit schedule property has already been allotted to the defendant on 10.07.1990 under Ex.D4, Panchayath looses the ownership and right to re-allot the same on 19.11.1991. Therefore, by relying upon the evidence of the defendant, the trial Court has rightly come to the conclusion that the plaintiff has not made out any case to declare him as the owner and is in possession of the suit schedule property on which the defendant had already obtained decree in the earlier suit. Merely because there is no mention of site number in the grant certificate, the same does not falsify the evidence of the defendant both oral as well as documents which were produced in the earlier suit. Therefore by considering the findings of both the Courts below and the sound reasoning thereof, I find no substantial question of law involved in this appeal, warranting interference by this Court. The appeal is devoid of merits.
Accordingly, the appeal is dismissed.
Sd/- JUDGE GBB