IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 1415 OF 2015 (INJ) Between:
P. MADAPPA SON OF LATE PADMANABIAH AGED 52 YEARS OCCUPATION AGRICULTURE RESIDENT OF HALEDEVARA HONNALI KASABA HOBLI, HONNALI TALUK – 577 217 DAVANAGERE DISTRICT.
(BY SRI. S. V. PRAKASH., ADVOCATE) And:
ANANTHAIAH SON OF THIMMAIAH SINCE DEAD REPRESENTED BY HIS LRS.
1. YANKAMMA WIFE OF LATE ANANTHAIAH AGE: 78 YEARS OCCUPATION: HOUSEMAKER.
2. K. PANDURANGAIAH SON OF LATE ANANTHAIAH AGE: 60 YEARS.
3. RAMASWAMY SON OF LATE ANANTHAIAH AGED 58 YEARS.
... APPELLANT 4. SMT. SUBHADRAMMA WIFE OF MUDLAGIRI DAUGHTER OF LATE ANANTHAIAH AGE: 56 YEARS OCCUPATION: HOUSEMAKER.
5. NARAYANAMURTHY SON OF LATE ANANTHAIAH AGE: 55 YEARS.
6. KANTHARAJU SON OF LATE ANANTHAIAH AGE: 50 YEARS.
7. PRAKASHA SON OF LATE ANANTHAIAH AGE: 44 YEARS.
RESPONDENTS 1 TO 7 ARE RESIDENTS OF HALEDEVARA HONNALI, KASABA HOBLI HONNALI TALUK – 577 217 DAVANAGERE DISTRICT.
... RESPONDENTS (BY SRI.P. N. HARISH., ADVOCATE FOR R.1-R.7) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.06.2015 PASSED IN R.A NO.39/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARIHAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.03.2013 PASSED IN O.S NO.67/2003 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HONNALI..
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is by the plaintiff in OS.No.67/2003 on the file of the Civil Judge, Honnali (for short, 'trial Court'). The appellant-plaintiff has filed the suit in OS. No.67/2003 against the respondent for permanent injunction in respect of a property described as a vacant site consisting of cattle shed bearing katha No.103/36/A, measuring east-west 45 feet and north-south 50 feet of Haledevarahonali, Masadi Grama panchayath, Honnali Taluk. The trial Court by its judgment dated 18.3.2013 has decreed the suit. However, in the appeal filed by the respondent-defendant in RA.No.39/2013 on the file of the Senior Civil Judge at Harihar (for short, 'appellate Court'), the appellate Court by its judgment dated 12.6.2015 has set aside the trial Court’s judgment and dismissed the suit. Therefore, the appellant has preferred this second appeal.
2. For the purpose of convenience, the parties to the proceedings are referred to as they are arrayed before the trial Court.
3. The plaintiff’s case is that the subject property is his ancestral property and he is the owner in possession and enjoyment of the same. He has constructed a cattle- shed and uses the property also for collecting fodder and firewood, and as a manure pit. The plaintiff has also stated that he has installed a pump set in this property to cultivate his land in Sy.No.57 of the same village. The defendant, a stranger, has tried to remove the cattle shed, and the police did not assist him in preventing the defendant’s acts of interference. As such, the plaintiff is constrained to file the suit for permanent injunction.
4. The defendant, on the other hand, resisted the suit denying the plaint averment contending inter alia that the village Haledevarahonnali is shifted and residents of the village, including the family members of the plaintiff, have received compensation from the Government. The defendant has further contended that Sathwik Srivaishnav Maha Parishad (Reg.) Davanagere is the owner of three contiguous properties in the assessment Nos.37, 38 and 39 and there is no property corresponding to assessment No.36/A as claimed by the plaintiff. The plaintiff has created false records to knock of the property of the aforesaid Parishad, and the defendant is a member of the committee of the said Parishad.
5. The trial Court framed different Issues which required the plaintiff to establish that he was in possession of the suit schedule property as of the date of the suit, and he has continued in possession of the suit schedule property. The plaintiff examined himself as PW.1 and another Sri Rangappa, a resident of the village, as PW.2. In support of his case, the plaintiff also relied upon the revenue records, which include the Property Register Extracts for the years commencing from 1984-85 and the photographs. On the other hand, the defendant examined himself as DW.1 and examined four other persons as DW.2 to DW.5. The defendant relied upon the Tax Register Extracts of Masadi Grama Panchayath. Further, the defendant also relied upon the Notification dated 28.7.1969 issued under Section 4 of the Land Acquisition Act 1894 by the State Government proposing to shift Haledevarahonnali village, and the Official Memorandum dated 12.7.2001 issued by the Chief Executive Officer Taluk panchayath Honnali.
6. The trial Court decreed the suit placing reliance upon the revenue records and photographs as well as Ex.P.27, a service certificate issued by the Executive Engineer KVM, Honnali about servicing of 5 HP motor with effect from 28.10.1991. The trial Court has also relied upon the admissions of the witnesses examined by the defendant, most specifically DW.3. The appellate Court formulated very general points for consideration, which reads as follows:
“1. Whether the judgment and decree passed in OS. No.67/2003 dated 18.03.2013 by the Civil Judge and JMFC, Honnali needs to interfere by this Court?
2. Whether the suit is maintainable as per the provisions of Sec. 16 of Land Acquisition Act, 1894?
3. What order?”
7. It is while considering these points for consideration, the appellate Court has opined that the plaintiff was not able to establish his possession over the suit schedule property. The appellate Court’s opinion is because the plaintiff admitted in his cross examination that the State Government had issued notification for shifting the village and the plaintiff was evasive in his evidence as regards the payment of compensation and delivery of possession.
8. The appeal is admitted for consideration of the following substantial question of law:
1. “Whether the judgment and decree passed by the Lower Appellate Court conforms to the provision under Order 41 Rule 31 CPC.
2. Whether the finding recorded by the Lower Appellate Court, that in view of admission of PW.1, the suit schedule property has vested absolutely with the Government and hence, the plaintiff cannot claim possession, is perverse?”
9. The Hon’ble Supreme Court in H. Siddiqui (D) By Lr vs A. Ramalingam1 has held as follows:
“It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general 1 (2011) 4 SCC 240 expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.”
It follows that the appellant Courts must formulate appropriate Points for Consideration that are specific to the case on hand which would require the appellate Court to re-assess evidence and render its finding on the specific points of disputes between the parties. However, the Court has formulated the aforesaid points for consideration. The second point for consideration is in the light of the grounds urged on behalf of the plaintiff. However, it cannot be gainsaid that the first Point for Consideration is very general. But, in the light of the evidence on record and the reasoning by the appellate Court, this Court is of the considered opinion that the general first Point for consideration has not resulted in the appellate Court misreading the evidence or erring in its conclusion.
10. The learned counsel for the appellant submitted that the defendant though contested the suit contending that the village was shifted and notification is issued, placed only the preliminary notification issued under Section 4 of the Land Acquisition Act, 1894. The defendant did not place on record any evidence to establish that preliminary notification is followed up with final notification and possession being taken under Section 16 of the Land Acquisition Act, 1894. The appellate Court has failed to consider this material lacuna in the defendant’s case. The appellate court should have examined the evidence of the plaintiff in this background. As such, the second substantial question. The learned counsel submits the as the defendant indisputably did not place any evidence on record as regards culmination of the notification, the second substantial question will have to be answered in favour of the plaintiff, and the appellate Court’s judgment must be set aside restoring the judgment and decree of the trial Court.
11. It is settled law that a plaintiff has to succeed on the strength of his/ her own case, and cannot take advantage of any defect in the defendant’s case. The plaintiff’s possession of the subject property, described by the plaintiff himself as a vacant site, is denied inter alia on the ground that the property in No. 36/A is not available. The plaintiff relied on revenue records, but these revenue records do not establish the existence of the property. The plaintiff for the first time in the cross-examination has deposed that he had submitted an application to the State Government for grant of site because he was without a site, and the State Government granted to him the vacant site though he is not issued him with any grant certificate. This is a departure from his pleadings inasmuch as he did not make any statement in this regard in his pleading or in his chief examination. Further, the plaintiff has stated in his evidence that the suit schedule property was his ancestral property, and he has continued in possession. But, in his cross-examination in response to the question whether the Government had issued notification for shifting of the village and whether his elders received compensation, the plaintiff’s response is evasive. The plaintiff has stated that the Government could have issued notification and his family members could have received compensation, and in response to the suggestion that the residents of Haledevarahonnali have received compensation and therefore they, including his elders, lost their right over the properties, the plaintiff is evasive. The plaintiff only states that he is not aware of the same. These circumstances render the plaintiff’s case, including possession of the subject property, entirely tenuous.
12. It is in the light of this evidence, and because the decree by the trial Court was only because of the revenue entries, the appellate Court has interfered with the trial Court’s judgment. The appellate Court’s judgment is in consideration of the plaintiff’s own tenuous evidence. As such, second question of law is answered against the appellant. For the forgoing, it is opined that no interference is called for by this court with the appellate Court’s judgment. The appeal is dismissed.
Sd/- Judge SA Ct:sr