IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM R.S.A.No.757/2015 BETWEEN:
Mr. Gopala Poojary, Aged 67 years, S/o late Odi Poojary, R/at Thatady, Jokatte Post, Kenjaru Village, Mangalore – 575011. ….Appellant (By Sri.M.J. Abhishek Marla M.J) AND:
Sri. Sarvajna Rao, Aged 80 years, S/o late Seetharama Rao L, R/at Thatady, Jokatte Post, Kenjaru Village, Mangalore – 575011. …Respondent This RSA is filed under 100 of CPC, against the judgment and decree dated 18/12/2014 passed in r.a.No.36/2011 on the file of the I Addl. Senior Civil Judge at Mangalore, dismissing the appeal and confirming the judgment and decree dated 18/04/2011 passed in O.S. No.271/2007 on the file of the Prl. Civil Judge & JMFC, Mangalore, D.K. etc.
This appeal coming on for admission this day, the Court delivered the following:
JUDGMENT This second appeal is by the defendant questioning the correctness and legality of the judgment and decree passed in O.S No.271/2007, dated 18/04/2011 on the file of Principal Civil Judge and JMFC, Mangalore, and judgment passed in R.A. No.36/2011, dated 18/12/2014 on the file of the I Additional Senior Civil Judge, Mangalore.
2. The facts leading to this case are as follows;
The respondent/plaintiff filed a suit for bare injunction in O.S.No.271/2017 in respect of the suit schedule properties bearing survey Nos.149/12P1, measuring 0.34 guntas, 149/11B, measuring 0.05 guntas, 149/9P1, measuring 0.10 guntas and 152/6P1, measuring 0.05 guntas. The case of the plaintiff before the trial Court was that he is the absolute owner and in exclusive possession and enjoyment of the suit schedule properties. Plaintiff also contended that defendant is also claiming to be an agriculturist, who is his neighbour towards northern side. As the defendant is trying to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule properties and because of highhandedness of the defendant, plaintiff was compelled to lodge several complainants. Plaintiff would further contend that on 29/05/2007 the defendant illegally trespassed into the suit schedule properties and dumped fertilizers in the suit schedule properties with an intention to level the land and thereby to grab the property of the plaintiff. The plaintiff also specifically contended that the defendant threatened the plaintiff. Based on the said facts, the plaintiff filed a bare suit for injunction in O.S. No.271/2007 seeking perpetual injunction against the defendant.
3. On receipt of the summons, defendant appeared and filed his written statement stoutly denying the entire averments made in the plaint. The defendant in his written statement specifically contended that plaintiff is not an agriculturist and that suit schedule properties do not belong to the plaintiff and he is not in possession of the suit lands. It is his specific contention that the properties which are the subject matter of the suit were infact in possession of his father much prior to the advent of the Karnataka Land Reforms Act, and that the father of the defendant was cultivating the land with other tenants during his life time. The defendant also set up a plea of adverse possession and take a specific contention that the defendant is enjoying the suit schedule property which is well within the knowledge of the plaintiff and hence he prayed to non suit the plaintiff.
4. Based on rival contentions, the trial Court formulated the following issues.
i) Whether the plaintiff proves that description of the suit schedule property?
ii) Whether the plaintiff further proves that he is in lawful possession and enjoyment of the suit schedule property?
iii) Whether the plaintiff proves that alleged interference by the defendant?
iv) Whether the defendant proves that description of the written statement schedule properties?
v) Whether the defendant further proves that he is in lawful possession and enjoyment of written statement properties?
vi) Whether the defendant proves that the alleged interference by the plaintiff?
vii) What Order or decree?
5. The plaintiff has examined himself as P.W.1 and to corroborate his contention produced documentary evidence vide Ex.P.1 to Ex.P.24. The defendant has examined himself as D.W.1 and two independent witnesses as D.W.2 and D.W.3 and to corroborate his contention produced documentary evidence vide Ex.D.1 to D.7. The trial Court having examined the rival contentions, oral and documentary evidence held that the plaintiff has placed clinching evidence to establish that he is the owner of the suit lands and that he was in lawful possession as on the date of filing of the suit. The trial Court also took note of the material fact that though defendant has set up a plea of adverse possession, but has failed to seek a relief of declaration to that effect. Having set up a plea of adverse possession, the defendant has virtually admitted that plaintiff is the owner of the schedule property. In the absence of cogent evidence adduced by the defendant, the trial Court recorded a finding that Ex.P.1 to Ex.P.4 which are the RTCs clearly indicate that plaintiff is in possession and enjoyment over the suit lands and the material on record also clearly indicates that defendant is interfering with the plaintiff’s possession. The appellant has contended that he has perfected his title by way of adverse possession. But there is no counter claim seeking declaration of title by way of adverse possession. Having taken note of all these aspects, the trial Court proceeded to decree the suit of the plaintiff. The defendant being aggrieved by the judgment and decree of the trial court, preferred an appeal in R.A.No.36/2011 on the file of the I Additional Senior Civil Judge, Mangalore.
6. The appellate Court while re-appreciating the entire evidence on record referred to Ex.P.20 and found that the plaintiff is in actual possession and the certificate issued by the Village Accountant supports the contention of the plaintiff that he is cultivating the suit properties personally and that he is in lawful possession. The Appellate Court has also examined Ex.P.22 which is the licence granted by the jurisdictional Tahsildar permitting the plaintiff to purchase kerosene oil for the pump set. The appellate Court would also refer to Ex.P.22 which is the permission letter issued by the Tahsildar to lift water from the tank situated in the suit properties. The appellate Court having examined the documentary evidence adduced by the defendant has proceeded to hold that the documents relied on by the defendant are not in respect of suit lands. The appellate Court has recorded a specific finding that the RTC produced at Ex.D3 discloses that in Sy.No.149/12, the father of the defendant was in possession of 20 cents of land. But the very said document i.e., Ex.D-3 also discloses that the name of plaintiff is also incorporated in column No.11 of Ex.D-3 to certain extent of land and this would also clinch the issue in regard to lawful possession of plaintiff over the suit property and hence, in that view of the matter, the document at Ex.D-3 would not come to the aid of the defendant, in view of the fact that Sy.No.149/12 is a vast land and there are several occupants in the said survey number. The appellate Court also took judicial note of the fact that the name of the plaintiff is incorporated in column No.11 of RTC/Ex.D3 to a certain extent of land.
7. Both the Courts below have meticulously dealt with the material on record and have come to the conclusion that respondent/plaintiff is in lawful possession of the suit lands. There is also a finding of fact that there is an interference by the appellant/defendant. This can be gathered from the material fact that defendant has asserted title over the suit property by way of adverse possession. But there is no counter claim seeking declaratory relief of title by way of adverse possession. This material aspect of assertion of title by defendant over the suit property would clearly indicate high-handedness on the part of defendant in asserting possessory right and the same establishes interference by appellant/defendant.
Hence, on this count also plaintiff cannot be non-suited since defendant has failed to prove adverse possession. The trial Court has rightly proceeded to decree the suit granting perpetual injunction in favour the respondent/plaintiff thereby restraining the present appellant. The plea of the appellant/defendant that both the Courts below have virtually misread the evidence on record and the rebuttal evidence adduced by the defendant is totally ignored and that the concurrent finding of fact arrived at by the Courts below suffers from perversity, cannot be accepted. Having perused the findings recorded by both the Courts below, I am of the view that no substantial question would arise in this appeal.
8. Hence, the second appeal stands dismissed. No order as to costs.
Sd/- JUDGE Msu