IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No.645 OF 2009 BETWEEN H.T.Subbaraya Gowda, Since deceased by LR Smt. Sakamma, Since deceased by LR (cause title amended as per court order dated 6.4.2017) H.S.Kalasappa Gowda S/o. Surappa Gowda Aged 72 years R/o. Jayapura Village Meagunda Hobli, Koppa Taluk, Chikkamagalore Distrct.
(By Sri. Aravind H., Advocate) AND 1. K.T.Yogendra, Aged 60 years, 2. K.T.Sathisha, Aged 50 years, 3. K.T.Devaraj Aged 40 years, …Appellant 4. K.T.Sulochana, Aged 52 years, All respondents are children of Late Thammanna Gowda, Land Holders, R/o. Kouli, Kulur Village, Megunda Hobli, Chikmagalur-577101.
(By Sri. A.Madhusudan Rao, Advocate for R1, R2 & R3 – served;
…Respondents vide order dated 29.10.2010, appeal abates against R4) This RSA is filed under Section 100 of CPC against the judgment & decree dated 3.4.2009 passed in R.A.No.50/2008 on the file of the Additional District Judge, Chikmagaluru, allowing the appeal and setting aside the judgment and decree dated 2.8.2008 passed in O.S.No.8/1999 on the file of the Civil Judge (Sr.Dn), Chikmagaluru.
This RSA coming on for admission, this day, the court delivered the following:
JUDGMENT Heard the appellant’s counsel for admission.
Counsel for respondent No.1 also argues.
2. Appellant is the plaintiff in O.S.8/1999 on the file of the Civil Judge (Senior Division), Chikmagalur. In respect of 5 acres of land in Sy. No. 213 of Melinaheggade in Kulur Village, Megunda Hobli, Koppa Taluk, he filed suit for declaration of his title and permanent injunction to restrain the defendants or anybody claiming under them from interfering with his peaceful possession and enjoyment of the suit property. Plaintiff’s case is that there existed a large extent of land in Sy. No. 99 of Kulur Village. During the year 1960-61 the Assistant Commissioner of Tarikere Sub-Division made a temporary grant of the said land in his favour for coffee cultivation. Thereafter, during the year 1962- 63, the grant was confirmed by issuing a permanent grant certificate. He states that the land granted to him was later on renumbered as Sy. No. 213. The plaintiff further stated the defendants own adjoining property in Sy. No. 228. Northern boundary of the suit property is a stream called ‘Jenukatte sarakalu’. The defendants property is situated beyond this stream and therefore according to the plaintiff the stream is the boundary for his land and the defendants land. While printing the survey number of the land in the village map, a mistake crept in, and he applied for correcting the mistake. When the plaintiff started felling trees after obtaining permission from the forest authorities, the defendants caused obstruction and also filed suit O.S.43/1998 against the plaintiff for permanent injunction in respect of Sy. No. 228. The plaintiff appeared in the said suit. In the proceedings of the said suit, the first defendant filed a memo stating that he had no objection to remove the timber growth found in the suit property, i.e., Sy. No. 213 and thereafter plaintiff obtained permission from the forest department and transported the timber. Even thereafter the defendants continued to disturb the plaintiff’s possession over the suit property by falsely claiming that the portion of the suit property is a part of their land in Sy. No. 228. Hence, the plaintiff instituted the suit for declaration of his title and injunction.
3. Defendant No.1 filed written statement contending that the stream is not the boundary between his land and the plaintiff’s land. According to the defendants, the stream passes through their land in Sy. No.228. In the village map, it is shown that jenukatte sarakalu runs from East to West in the middle of Sy. No. 228. They stated that it is the intention of the plaintiff to lay claim on their property.
4. The trial court after recording evidence decreed the suit of the plaintiff. It has recorded the findings that there is confusion in the whole case probably on account of the mistake committed by the revenue authorities at the time of making the grant to the plaintiff and the defendants. The trial court has accepted the case of the plaintiff that he was granted 5 acres of land and that the defendants were also granted 10 acres of land out of large extent of land in Sy. No. 99. It is held that the commissioner’s report is not helpful rather it has complicated the case. The commissioner’s report says that there is overlapping of Sy. No. 228 over Sy. No. 213. The flow of the stream is not correctly shown. Therefore, the commissioner’s report was not relied upon by the trial court. However, basing on Ex.P5 and Ex.D2, the trial court has expressed an opinion that since Ex.P5 was obtained by the plaintiff on 23.5.1961 and that Ex.D2 came into existence on 24.4.1964, Ex.P5 has to be relied upon, when a question arises as to which of the two documents will prevail. Ex.P5 was earlier in point of time. It is also held by the trial court that when the sketch, Ex.P5 was prepared there was no chance that a relative of the plaintiff was a revenue inspector to collude with him for preparing a sketch convenient to the needs of the plaintiff. When the defendants heavily relied upon Ex.D2, the defendants have to admit the correctness of the contents of Ex.P5 also. It is held that Ex.P5 shows the stream to be situated to the extreme northern portion without showing any other part of land in old Sy. No. 99. If the land granted to the plaintiff is shown like this in Ex.P5, then the land granted to the defendants should have been shown to have been situated on the other side of the stream. This is not forthcoming in Ex.D2. The revenue authorities should have been careful while making grant to the defendant on making phodi work because already the land situated on the southern side of the stream had been granted to the plaintiff as per Ex.P5 and therefore at the time of making grant to the defendants they should have mentioned the boundaries correctly. Since the grant in favour of the plaintiff was earlier in point of time, the trial court accepted Ex.P5 to grant decree for declaration.
5. The first defendant appealed to the court of Additional District Judge at Chikmagalur. The first Appellate Court after re-appreciating the evidence reversed the findings of the trial court and dismissed the suit. The first Appellate Court has held that there is no dispute that Sy. No. 99 was a large extent of land and out of this land the grants were made to the plaintiff and the defendants. In Ex.P1, the saguvali chit, issued in favour of the plaintiff, the boundaries are not mentioned. Ex.P5, certified copy of the sketch shows that the plaintiff’s land abuts the stream in the northern side. Ex.P11 is another sketch produced by the plaintiff in respect of the land granted to the defendants. Even in this sketch also, the stream is shown as abutting the southern boundary of the defendants land. Considering Exs.P5, P11 and Ex.D2, the first Appellate Court has held that Ex. P11 appears to be a doubtful document. The plaintiff should have summoned the originals of these documents from the revenue department. Then the first Appellate Court has referred to some of the admissions given by PW2 in the cross-examination. PW2 has answered that in the village map it is shown that jenukatte sarakalu flows in the middle of Sy. No. 228 which is the property of the defendants. According to PW2 it was a mistake, but the first Appellate Court has held that the plaintiff has not made efforts to get the mistake rectified. For this reason the first Appellate Court has drawn presumption according to section 83 of the Evidence Act. The first Appellate Court has also relied upon commissioner’s report, Ex.C1 which shows that the stream flows in the middle of Sy. No. 228 of the defendants land. The first Appellate Court has also considered other admissions given by PW2 in the cross-examination in para 15 to come to the conclusion that those admissions given by PW2 support the defendants case.
6. Learned counsel for the appellant argues that the first Appellate Court has not appreciated the evidence properly. It has not taken into consideration Ex.P5. Its findings are perverse.
7. I have carefully perused the judgment of the trial court and the first Appellate Court. I do not find any perverse appreciation of evidence by the first Appellate Court. The first Appellate Court has considered all the documents including Ex.P5. The effect of admission given by PW2 are also considered to reverse the findings of the trial court. It is well established principle that even if the first Appellate Court’s conclusions on facts are erroneous, there cannot be interference with those findings in a second appeal unless perversity is pointed out. The learned counsel for appellant fails to point out any perverse findings. Substantial question of land does not arise. Appeal is dismissed.
ckl Sd/- JUDGE