IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.138/2012 BETWEEN:
SMT.JAYASHEELA W/O MARISWAMYGOWDA AGED ABOUT 48 YEARS R/O. YELEKERE VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT- 571 434.
...APPELLANT (BY SRI V N MADHAVA REDDY AND SRI B M KENCHEGOWDA, ADVOCATE) AND:
SMT.NARASAMMA W/O LATE MUDDANAHALLI JAVAREGOWDA AGED ABOUT 72 YEARS AGRICULTURIST R/O. YELEKERE VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT – 571 434.
... RESPONDENT (BY SRI K N NITISH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.11.2011 PASSED IN R.A.No.23/2010 ON THE FILE OF THE CIVIL JUDGE(SR.DN) & JMFC., & MACT, PANDAVAPURA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.8.2010 PASSED IN O.S.No.121/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., PANDAVAPURA.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree dated 26/11/2011 passed by learned Civil Judge Senior Division and JMFC, Pandavapura, in R.A.No.23/2010, wherein, the appeal came to be allowed and the suit of the plaintiff in O.S.No.121/2000 was dismissed by setting aside the judgment and decree dated 31/08/2010. Being aggrieved by the dismissal of the suit, plaintiff is before this Court in this Regular Second Appeal.
2. In order to avoid confusion and overlapping, the parties herein are referred to as per their rankings as stood before the trial Court.
3. The crux of the matter as could be seen from the certified copy of the judgment is that, the plaintiff filed a suit seeking permanent injunction against the defendant claiming ownership and possession in respect of the suit schedule site measuring East-West 40 feet and North-South 23 feet bearing Katha No.233/382 of Yelekere Village, Haravu Village, Pandavapura. The plaintiff claimed the source of title as a grant made by the Grama Panchayat through a resolution dated 24/12/1999 by collecting Rs.700/- as kimmath under the receipt dated 11/01/2000 and also claimed that revenue and other entries in the relevant records are made in her favour. Further plaintiff contended that she obtained licence from Grama Panchayat to go ahead with the construction of the house and interference by defendant apprehended and also alleged.
4. The defendant entered appearance and filed written statement, denying the claim of the plaintiff and grant of schedule property by Grama Panchayat for a Kimmath of Rs.700/-. She attributes collusion between the plaintiff and the panchayath office and contends that the schedule property was granted to her husband on 10/-2/1983 and the licence if any obtained by the plaintiff is not binding on the defendant.
5. The trial Judge on the basis of the pleadings of the parties and the oral and documentary evidence produced before it, allowed the suit of the plaintiff by its judgment and decree dated 31.08.2010, which is challenged by the defendant before the learned First Appellate Judge in RA No.23/2010 which came to be allowed and consequently, the original suit was dismissed. The same is challenged in this appeal by the plaintiff.
6. While admitting the appeal on 21/3/2019 this Court framed the following substantial questions of law:
(i) Whether the suit simplicitor for permanent injunction is sufficient in case of rival claim in grant of sites to plaintiff and defendant?
(ii) Whether sites are granted by panchayath and when there is a rival claim, can dispute be resolved without impleading panchayath?
7. Learned counsel Sri. V.N. Madhava Reddy appearing for the plaintiff/appellant would submit that the plaintiff is in lawful and actual possession of the schedule property and the defendant does not have any manner of right, title or interest over the schedule property and that the plaintiff has fulfilled the ingredients to get an order of injunction. The learned counsel would further submit that, just because the denial of title is made by the defendant, the plaintiff need not be driven to adjudication for declaration of title. Further, he would submit that the schedule property was granted to the plaintiff and the defendant has cooked up certain documents and threatened the plaintiff just because of the reason that she is a lonely lady.
8. Learned counsel for plaintiff/appellant relied on the decision of the Hon’ble Supreme Court in the case of Ananthula Sudhakar Vs. P. Buchi Reddy (dead) by LRs and others [ (2008) 4 Supreme Court Cases 594].
9. Learned counsel Sri.K.N.Nitish for defendant/respondent would submit that defendant is the absolute owner of the schedule property as the same was granted to her husband on 10/02/1983 and plaintiff has no manner of right, title or interest over the schedule property.
10. The documents that are marked on behalf of the plaintiff are Exs.P1 to P16. Out of which, Ex.P2 is the document which is relied upon by the plaintiff as the title deed. On perusal of the same, it could be seen that, it is an extract of the resolution passed by the Pandavapura Village Panchayat on 24/12/1991, wherein, it is resolved as “Plaintiff Jayasheela, w/o Muniswamigowda is in possession of the property and she could be allotted the same and it is resolved to allot the schedule property by collecting Rs.700/-”. The schedule mentioned therein are: to the East- Road, to the West-Galli to the North: Gramatana and to South: Galli and house of Malligamma (Sheena shetti)’s house totally measuring East-West: 40 feet and North-South: 23 feet.
11. The document marked as Ex.P3 is the receipt for Rs.700/-. Ex.P4 is the copy of the demand register. Ex.P5 is the receipt for Rs.50/-, Ex.P6 is the licence to construct a house, Ex.P7 is the receipt for Rs.92/- towards licence fee, Ex.P8 is the Spot Mahazar.
12. On the other hand, defendant has relied Ex.D1 which is the Hakkupatra stated to have been issued by Chairman of the Dhamadihalli Panchayat in respect of the schedule property which is in the name of one Muddanahalli Javaregowda, son of Kalegowda, who is stated to be the husband of the defendant. In the context and circumstances of the case, possession follows the ownership. The suit is filed for the relief of injunction. No doubt, a person who is in possession is entitled for protection provided the possession is lawful and also it was last at the time of entering into the possession and during continuation. Similarly, whenever injunctionary relief is sought, the very denial by the defendant may not change the track of the proceeding. However, when the denial substantially coupled with the prima-facie documents, invariably, it requires the support of documents insofar as plaintiff or defendant is concerned. The defendant claims that the schedule property was granted to her husband Muddenahalli Javaregowda son of Kalegowda on 10/02/1983 and the plaintiff is claiming the title through the resolution dated 24/12/1999. In the circumstances, considering the nature of the suit and the claim made by plaintiff what becomes crucial is Ex.D1 filed by the defendant which is a Hakkupatra issued by the panchayath. The suit is not one seeking the relief of declaration of title. In the light of Ex.D1, which is earlier by 15 years in favour of Muddenahalli Javaregowda son of Kalegowda. In the context and circumstances, impleading punchayat as defendant should have been done or atleast the punchayat should have been summoned along with the records and examined. But that did not happen. I find that the trial Court erred in granting injunction. However, the same was rectified by the judgment and decree passed by the First Appellate Court in Regular Appeal against which interference is uncalled for. Hence, the substantial questions of law are answered accordingly.
13. For the foregoing reasons, appeal is dismissed. However, it is made clear that the disposal of the matter is based on the failure of the plaintiff at threshold in establishing her case for grant of injunction. However, all other rights of the parties are kept open.
Sd/- JUDGE tsn*