IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.1344 OF 2015 BETWEEN:
1. M/S BHARATH TRANSPORT CORPORATION A FIRM REGISTERED UNDER INDIAN PARTNERSHIP ACT, HAVING ITS OFFICE NEAR DAIWAJNA KALYANA MANTAPA, HOIGEBAIL, ASHOKNAGAR, MANGALURU-575 004 (DK), BY ITS PARTNERS.
2. SMT. SUSHEELA DEVI GOENKA W/O SRI RAM NIWAS GOENKA AGED ABOUT 45 YEARS, R/AT "AMRUTHA", NEAR DAIWAJNA KALYANA MANTAPA HOIGEBAIL, ASHOKNAGAR, MANGALURU-575 004 (DK).
3. SMT. MEENA GOENKA W/O ARUN KUMAR GOENKA, AGED ABOUT 44 YEARS, REPRESENTED BY APPELLANT NO.(2), R/AT NEAR DAIWAJNA KALYANA MANTAPA HOIGEBAIL, ASHOKNAGAR, MANGALURU-575 004 (DK) (BY SRI.M SUDHAKAR PAI, ADVOCATE) AND:
MRS. PARIVARTHAN @ JYOTHI PRAVEEN DARBE, W/O PRAVEEN.S. DARBE, AGED ABOUT 39 YEARS, R/AT SITE NO:28, SHASTRI NAGAR LAYOUT, MAROLI, KULASHEKAR POST, MANGALURU - 575 005 (DK).
...APPELLANTS …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 27.03.2015 PASSED IN RA.NO.02/2010 ON THE FILE OF THE I ADDL.SENIOR CIVIL JUDGE, MANGALURU, DK, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:04.12.2009 PASSED IN OS NO.525/2005 ON THE FILE OF THE II ADDL.CIVIL JUDGE (JR.DN) JMFC MANGALORE, DK AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This second appeal is by the defendants questioning the judgment and decree dated 27.03.2015 passed in R.A.No.2/2010 on the file of the 1st Additional Senior Civil Judge, Mangaluru, D.K., confirming the judgment and decree dated 04.12.2009 passed in O.S.No.525/2005 on the file of the II Additional Civil Judge (Jr.Dn.), Mangaluru.
2. The brief facts leading to the top noted appeal are as under:
The respondent/plaintiff filed bare suit for injunction in O.S.No.525/2005. The case of the respondent/plaintiff is that she has purchased the suit schedule property from the defendants as per the registered sale deed dated 17.01.2001. The respondent/plaintiff further averred in the plaint that since the date of purchase, she is in exclusive possession and enjoyment over the suit schedule property. The plaintiff has further specifically averred in the plaint that pursuant to purchase under the registered sale deed, her name was duly mutated in the revenue records. The plaintiff further averred in the plaint that the defendants who are the vendors are owning vast extent of property on the northern and southern side of plaint schedule property which is situated at a height of about 20 feet. The further case of the plaintiff is while leveling the land, the present appellants/defendants have tried to trespass into the suit schedule property and as such, plaintiff was constrained to file bare suit for injunction against the defendants.
3. On receipt of summons, the present appellants/defendants contested the proceedings and filed written statement. A specific contention was taken by the appellants/defendants in the written statement that the respondent/plaintiff has filed the present suit by giving wrong description. The appellants/defendants have specifically denied the allegation of the plaintiff that defendants are intending to construct a compound wall. The defendants have also stoutly denied the alleged incident that has taken place on 18.09.2005. A specific contention is taken in the written statement that the present suit is filed as a counter blast to the suit filed by the appellants/defendants in O.S.No.494/2005. Based on these set of facts, the appellants/defendants prayed for dismissal of the suit.
4. The Trial Court based on the rival contentions, formulated the following issues:
“1) Whether the plaintiff proves her possession and enjoyment over the plaint schedule property as per the description given in the plaint schedule?
2) Whether the plaintiff proves that the defendants tried to trespass into the plaint schedule property and tried to encroach upon the said property as alleged in the plaint?
3) Whether the plaintiff is entitled for relief of permanent prohibitory injunction as sought?
4) What order or decree?”
5. The respondent/plaintiff in support of her contention, examined her husband Praveen S.Darbe as PW.1 and relied on documentary evidence vide Exs.P-1 to P-10. The appellants/defendants in support of their contention, examined defendant No.2 as DW.1 and relied on rebuttal evidence vide Exs.D-1 to D-4.
6. The Trial Court on appreciation of the oral and documentary evidence, relied on Ex.P-3 which is a sketch prepared by the Tahsildar on 15.12.2007. The respondent/plaintiff also relied on Ex.P-6 which indicates that after notifying both the parties, the lands were measured and the boundary was fixed. The plaintiff would also bring to the notice of the Trial Court that the appeal preferred by the defendants against the order passed in URSD No.455/2001-02 also came to be dismissed and the boundary fixed by the competent authority has attained finality. The Trial Court having appreciated this material documents, was of the view that the sketch furnished by the defendant himself as per Ex.D-4(a) coupled with boundary of the plaint schedule property mentioned in the plaint would tally. Further, the Trial Court also found that there is no dispute insofar as execution of sale deed in favour of respondent/plaintiff is concerned. In that view of the matter, the Trial Court was of the view that the respondent/plaintiff is in lawful possession. Since the appellants /defendants are disputing the description in the plaint and there is also material on record indicating that she was trying to level the land, the Trial Court was of the view that a reasonable apprehension has to be taken that the present appellants/defendants may encroach upon the suit property. In that view of the matter, the Trial Court felt that there is some interference by the appellants/defendants. Based on the above said conclusion, the Trial Court proceeded to decree the suit.
7. The appellants/defendants being aggrieved by the judgment and decree of the Trial Court, preferred appeal in R.A.No.2/2010.
8. The Lower Appellate Court having re- appreciated the entire evidence on record, has concurred with the reasoning of the Trial Court. The Appellate Court on re-appreciation has examined Ex.P-1, which is the revenue record which is admittedly standing in the name of respondent/plaintiff and that pursuant to execution of sale deed, Aakarband Uthaar copy has been issued in the name of respondent/plaintiff which is produced and marked as Ex.P-2. The Appellate Court has also examined Ex.P-3 which discloses the location of the property purchased by the respondent/plaintiff. The Appellate Court on re-appreciation has recorded a finding that there is demarcation by the ADLR, Mangaluru and the appeal preferred questioning demarcation in an appeal by the appellants/defendants has been dismissed which is produced by the respondent/plaintiff as per Ex.P-6. The Appellate Court on the above set of facts has proceeded to hold that the judgment and decree passed by the Trial Court does not suffer from any infirmities and has accordingly, dismissed the appeal.
9. The appellants/defendants being aggrieved by the judgment and decree of the Courts below have filed the top noted second appeal.
10. Heard learned counsel for the appellants.
Perused the judgment and decree of the Courts below.
11. Learned counsel for the appellants would vehemently argue that the Courts below have grossly erred in decreeing the suit in the absence of clinching evidence indicating interference. Learned counsel for the appellants would indicate that there was no occasion for the Courts below to grant the relief of injunction in the absence of material indicating interference by the appellants/defendants.
12. On perusal, it is evident that the plaintiff is the owner of the suit property. It is in fact the defendants who have executed registered sale deed in respect of suit property in favour of the respondent/plaintiff under registered sale deed dated 17.01.2001. The execution of title document would presuppose the delivery of possession by the appellants/defendants and in that view of the matter, the respondent/plaintiff pursuant to acquisition of valid right and title is in exclusive possession over the suit property. The respondent/plaintiff in support of her contention has placed cogent and clinching evidence to demonstrate that she is in exclusive possession and has relied on the certified copy of the order passed by the ADLR, wherein boundaries have been fixed and the said proceedings before the competent authority has attained finality. The photographs also indicate that respondent/plaintiff is in exclusive possession. Both the Courts have meticulously examined the records and in view of the appellants/defendants disputing the very description of the suit property during trial would indicate that there is interference, though appellants/defendants would not dispute the title of the respondent/plaintiff. In that view of the matter, both the Courts have recorded a finding of fact that the respondent/plaintiff is in lawful possession and have also come to the conclusion that the material on record would also indicate that the appellants/defendants are trying to interfere with the respondent/plaintiff’s possession.
13. Both the Courts have meticulously examined Exs.P-7 to P-10 and have come to the conclusion that appellants/defendants have indulged in excavation on the property owned by the respondent/plaintiff and have recorded a categorical finding that this highhandedness on the part of the appellants/defendants amounts to interference with the property owned by the respondent/plaintiff. The finding of fact arrived at by the Courts below is based on the evidence placed on record and the said finding recorded by the Courts below and the reasons assigned thereto does not suffer from any infirmities. There are no compelling reasons that would warrant interference by this Court under Section 100 of CPC.
14. In that view of the matter, both the Courts have proceeded to grant injunction insofar as respondent/plaintiff’s property is concerned. The judgment and decree of the Courts below is passed in accordance with law and the same does not suffer from any infirmities. The grounds urged by the appellants would not lead to any substantial questions of law. Accordingly, the appeal is dismissed.
Sd/- JUDGE CA