IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.18/2018(INJ) C/W R.S.A.NO.1060/2018(DEC\INJ) R.S.A.NO.18/2018 BETWEEN M V GANGADHARAIAH S/O LATE VENKATAPPA @ VENKATAPPASHETTY, AGED ABOUT 63 YEARS, AGRICULTURIST, RESIDENT OF MELEKALLAHALLI, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT-572219 ... APPELLANT (BY SRI A V GANGADHARAPPA, ADVOCATE) AND RANGAIAH, S/O LATE BUDDAIAH, AGED ABOUT 59 YEARS, RESIDENT OF MELEKALLAHALLI, KADABA HOBLI, GUBBI HOBLI, TUMKUR DISTRICT-572219. ... RESPONDENT RSA NO.18/2018 IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DTD:
19.10.2017 PASSED IN R.A.NO.44/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD: 22.08.2014 PASSED IN O.S.NO.64/2008 ON THE FILE OF THE PRL.CIVIL JUDGE, AND JMFC., GUBBI.
R.S.A.NO.1060/2018 BETWEEN M.V.GANGADHARAIAH S/O LATE VENKATAPPA @ VENKATAPPASHETTY AGED ABOUT 64 YEARS, AGRICUTLURIST, RESIDENT OF MELEKALLAHALLI, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTIRCT- 572 219. ... APPELLANT (BY SRI A V GANGADHARAPPA, ADVOCATE) AND KRISHNAIAH SINCE DEAD BY LRS 1. SMT BHADRAMMA, W/O LATE KRISHNAIAH, AGED ABOUT 48 YEARS, 2. N K SIDDARAJU, S/O LATE KRISHNAIAH, AGED ABOUT 28 YEARS, 3. LAKSHMIDEVI D/O LATE KRISHNAIAH, AGED ABOUT 26 YEARS, ALL ARE RESIDENTS OF MELEKALLAHALLI, KADABA HOBLI, GUBBI TALUK, TUMKUR DISTRICT – 572 219 ... RESPONDENTS RSA NO.1060/2018 IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DTD 01.03.2018 PASSED IN R.A.NO.43/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AT GUBBI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD:22.08.2014 PASSED IN O.S.NO.65/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., GUBBI.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These second appeals are filed by the sole defendant in OS.Nos.64 and 65 of 2008 on the file of Principal Civil Judge & JMFC, Gubbi, where said suits filed against him are decreed by separate judgment and decree dated 22.8.2014 and as against which he had filed two appeals before the lower appellate court in RA.Nos.44 and 43 of 2014 respectively, on the file of Senior Civil Judge, Gubbi, which are also dismissed by separate judgment and decrees dated 19.10.2017 and 1.3.2018 respectively. As against the concurrent findings of both the courts below, these two second appeals are filed by the sole defendant in aforesaid two suits.
2. Brief facts leading to these two second appeals are as under;
The plaintiff/s in both the suits would contend that they are the owners of site bearing katha No.115, property No.359/26 measuring 48x36 feet and katha No.116, property No.360/27 measuring 48 x 36 feet, situated at Melekallahalli village, Peddanahalli Grama Panchayat limits, Kadaba Hobli, Gubbi Taluk, with boundaries as shown in the schedule to original suits. It is their contention that the defendant, who is a stranger to the property is trying to interfere with their peaceful possession and enjoyment of the sites which are allotted to them by the Government.
3. When the pleadings in both the suits are looked into, they are similar, wherein the plaintiff/s in both the suits would contend that the suit schedule sites are formed in a land which was acquired by the Assistant Commissioner, Tumakuru, for the purpose of forming a layout and to grant sites to houseless persons as ordered in proceedings bearing No.LB 474-78F2-54, 141, dated 14.5.1955 and vide memo bearing No.PL.437/53-54, dated 28.6.1955. According to them, the Gram Panchayat of Peddanahalli formed about 90 sites by preparing a sketch on 4.9.1974 and at the request of the plaintiff in both suits, the suit sites were allotted to them for construction of house on said sites. It is based on such allotment, they would submit that katha of suit schedule sites was mutated in their name, they are in possession and enjoyment of the same by paying tax to said sites. It is also contended that they are the absolute owners and nobody else has any title to said sites. It is further contended by the plaintiff/s that they have borrowed loan for construction of house on the suit schedule sites thereafter, obtained licence from Gram Panchayat for construction of dwelling house thereon and when the construction was commenced, it is stated that the defendant tried to interfere with their possession and construction activity. Hence, the suits were filed.
4. In the said suits, the common sole defendant entered appearance, filed his written statement and denied sites being formed in the land acquired by the Assistant Commissioner. He would contend that said property is an agricultural land bearing Sy.No.132/8 measuring to an extent of 1 acre 8 guntas, which according to him was purchased by his father, in which he has a house, a crusher for extracting Neem and Honge oil as well as a shed for storing Honge and Neem seeds. Besides these, he would state that he has also planted coconut trees in the periphery of the land, which are more than 50 to 60 years old yielding fruits, therefore, said land is his property. It is also stated in the written statement that he has already filed a suit in OS.No.63/2003 for the relief of permanent injunction before the same Court based on the title which is available with him to the aforesaid land. According to him, the entire land measuring 1 acre 8 guntas is suit schedule property in OS.No.63/2003. That in OS.Nos.64/2008 and 65/2008 he has also took up a defence that he has filed one more suit in OS.No.50/2008 against the plaintiff in OS.No.64/2008 as well as the plaintiff in OS.No.65/2008, which are at the stage of filing of written statement by plaintiff/s in both the suits (OS.Nos.64 and 65 of 2008).
5. With aforesaid pleadings, the trial court proceeded to frame in all 4 identical issues for consideration, they are as under:
“1. Whether the plaintiff proves that he is in lawful possession of suit property as on the date of suit?
2. Whether the plaintiff proves alleged interference by the defendant ?
3. Whether the plaintiff is entitled for relief as claimed in the suit?
4. What order or decree?”
6. In OS.No.64/2008 the plaintiff examined himself as PW.1. In addition to that he has also examined one Marihuchaiah as PW.2 and produced and marked in all 8 documents in support of his case. Similarly, in OS.No.65/2008 the original plaintiff examined himself as PW.1 as well as examined one Bhadramma as PW.2 and produced and marked in all 6 documents.
7. So far as defence is concerned, in both the suits the sole defendant adduced evidence as DW.1, in OS.No.64/2008 he has produced in all 6 documents, whereas in OS.No.65/2008 he has produced in all 4 documents. It is relevant to mention at this juncture that in both the suits what was mainly relied upon by the parties is judgment and decree passed in OS.No.63/2003 which was filed by the common defendant in both the suits (OS.Nos.64 and 65 of 2008).
8. Admittedly, the suit in OS.No.63/2003 was filed by the common defendant in OS.Nos.64 and 65 of 2008 seeking the relief of permanent injunction against the Government authorities as well as two private persons with reference to very same property bearing Sy.No.132/8, measuring 1 acre 8 guntas. The judgment which is rendered in said suit (OS.No.63/2003) is marked as Ex.P6 in OS.No.65/2008. This is the document on which the trial court relied upon to decide both the suits in OS.Nos.64 and 65 of 2008 for considering grant of permanent injunction to the plaintiff in each of the said suits by separate judgment and decree dated 22.8.2014, which were subject matter of challenge by the common defendant in RA.Nos.44 and 43 of 2014 respectively on the file of Additional Senior Civil Judge, Gubbi.
9. In said appeals, the lower appellate court based on the grounds urged framed identical points for consideration in both the appeals and by answering them in the negative dismissed the appeals filed by common defendant by separate judgment and decrees dated 19.10.2017 and 1.3.2018 respectively. As against the concurrent findings rendered in said appeals by the lower appellate court the sole defendant in OS.Nos.64 and 65 of 2008 has come up in these two second appeals.
10. It is necessary to mention at this juncture that immediately before taking up these two appeals for consideration, this Court has taken up the appeal in RSA.No.2236/2017 which was filed by the very same appellant herein in challenge to the judgment and decree passed in OS.No.63/2003 which was confirmed by the lower appellate court in RA.No.9/2013. Admittedly, the said judgment will have a bearing on these two appeals also in as much as the appellant in all the three appeals is common. In the said appeal, the appellant was challenging dismissal of the suit filed by him for the relief of permanent injunction with reference to very same property bearing Sy.No.132/8 measuring 1 acre 8 guntas of Malekalahalli as if the said land is still in existence as agricultural land as on the date of filing of the suit in March 2003. In the said suit, the persons who are similarly placed as that of plaintiffs in present two suits (OS.Nos.64 and 65 of 2008) were defendants 4 and 5, where they claimed that they are the allottees of two sites in a portion of suit schedule land (in OS.No.63/2003) which was formed by the Panchayat subsequent to the aforesaid land being acquired by the Assistant Commissioner, Tumakuru, in the year 1954. Thereafter, among the sites formed in said land two sites are allotted in favour of defendants 4 and 5 in said proceedings, which they were able to establish is in their possession and that they were neither trying to trespass into the property of plaintiff nor they were trying to interfere with the alleged possession and enjoyment of the property in question by the plaintiff.
11. In this background when the pleadings and evidence available on record in the present suits, namely OS.Nos.64 and 65 of 2008 is seen, the fact situation is not only the same but, in a different role. Here, the plaintiff/s in both the suits are supposed to be similar to defendants 4 and 5 in the earlier suit in OS.No.63/2003, whereas the sole defendant in present two suits is the plaintiff in the earlier suit. The fact situation in both the cases is one and the same, the documents which are relied upon by both the parties are also one and the same. In that view of the matter, this Court cannot take a different view than what has already taken in RSA.No.2236/2017.
12. However, learned counsel for the appellant in these two matters would try to bring out certain discrepancies in the cross-examination of plaintiff/s in both the suits, where in one place they would claim that the suit schedule sites as the sites formed in the land in question (Sy.No.132/8) and in some other place they state that they are not aware whether said sites are formed in the land acquired from the common defendant in both the suits or some other land. However, in another place they would state that the property of common defendant in both the suits where he has his house and grinder put up is still in his possession. To support that admission learned counsel for the appellant would try to rely upon a photograph which is marked in one of the suits to state that suit sites and the property in his possession are one and the same, therefore, the contention of the plaintiff/s in both the suits to state that the common defendant in both the suits is trying to interfere with the possession of the sites allotted in their favour does not stand to reason, which cannot be accepted.
13. Admittedly, the appellant herein who is sole defendant in OS.Nos.64 and 65 of 2008 is agitating not only with reference to suit schedule sites which are measuring 48x36 feet each but, he is also agitating with reference to his alleged right in respect of land measuring to an extent of 1 acre 8 guntas in Sy.No.132/8. According to him, no documents are produced by any of the parties to both the suits to show that his land is already acquired and that sites are formed thereon. It is in this background this Court would observe that the judgment in RSA.No.2236/2017 disposed of immediately prior to deciding these two appeals would come into place where in the said proceedings it is observed by this Court that by relying upon Exs.D13 and D14 the trial court in O.S.No.63/2003 has in fact accepted the acquisition of land by the authorities as could be seen from the entry in Index of Land (Ex.D14), where at Sl.No.437 there is an entry in the said document to confirm that the property of the plaintiff, i.e., suit schedule property in OS.No.63/2003 is acquired by the Assistant Commissioner, Tumakuru and it is that land on which it is demonstrated that several sites are formed and distributed to houseless persons. It is also seen from the schedule in OS.No.63/2003 that the property of the plaintiff is shown as abutting the A.K.Colony. Further, the evidence of parties in the court below, particularly PW.2 in OS.No.63/2003 shows that A.K.Colony includes Sy.No.132/8 also.
14. With this, it is seen that the suits in OS.No.63/2003 as well as OS.Nos.64 and 65 of 2008 are all for the relief of injunction where possession of a portion of Sy.No.132/8 is seen with the plaintiff/s in OS.Nos.64 and 65 of 2008 and also with the defendants 4 and 5 in OS.No.63/2003. It is in this background, the court below has accepted possession of the plaintiff/s in OS.Nos.64 and 65 of 2008 and decline to accept that there is disturbance to the possession of plaintiff in OS.No.63/2003 with reference to larger extent in Sy.No.132/8, who is sole defendant in OS.Nos.64 and 65 of 2008. In any event, finding of the court below in all the three suits would not come in the way of the plaintiff in OS.No.63/2003 in agitating his claim to the property in question before the appropriate court of law, if he can independently establish that property in question bearing Sy.No.132/8 is in existence even till today and is not subject matter of acquisition as contended by defendants 1 to 3 in OS.No.63/2003 and that the said land is available to him to seek declaration to the extent claimed by him in OS.No.63/2003. However, with the existing documents available on record the finding of the trial court in its judgments which are confirmed by the lower appellate court, is just and proper. Hence, this Court find that no justifiable grounds are made out to interfere with the order of permanent injunction granted in favour of plaintiff/s in OS.Nos.64 and 65 of 2008 keeping in mind that the rival claim of appellant herein, who is defendant in OS.Nos.64 and 65 of 2008 and plaintiff in OS.No.63/2003 which is filed by him for similar relief is rejected. Therefore to admit these second appeals, no grounds are made out inasmuch as no substantial question of law also arise for consideration in these two appeals. Accordingly, these two second appeals are dismissed.
Sd/- JUDGE nd/-