IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1846 of 2012 (INJ) BETWEEN:
PATEL RASHEED SAB S/O KUNE BUDEN SAB, AGED ABOUT 70 YEARS, AGRICULTURIST, RESIDENT OF KURUBARAHALLY, HIREGUNTANUR HOBLI, CHITRADURGA TALUK & DISTRICT–577 501.
... APPELLANT (BY SRI B.M.SIDDAPPA, ADVOCATE) AND:
MOHAMMED SAIFULLA S/O LATE KHALANDAR SAB, AGED ABOUT 64 YEARS, AGRICULTURIST, R/O. KURUBARAHALLY, CHITRADURGA TALUK & DISTRICT-577 501.
(BY SRI A.K.SREE HARSHA, ADVOCATE FOR … RESPONDENT SMT. SPOORTHY HEGDE NAGARAJA, ADVOCATE FOR C/R) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 04.08.2012 PASSED IN R.A.No.54 of 2007 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & C.J.M., CHITRADURGA, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 05.06.2007 PASSED IN O.S.No.30 of 2006 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JR.DN) & JMFC., CHITRADURGA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant assailing the judgment and decree passed by the II Additional Civil Judge (Jr.Dn.) & JMFC, Chitradurga, (hereinafter referred to as the “trial Court”) in OS.No.30/2006 dated 05.06.2007 and the same was confirmed by the Prl. Senior Civil Judge & CJM, Chitradurga (hereinafter referred to as the “1st Appellate Court”) in RA.No.54/2007 dated 04.08.2012.
2. Heard the arguments of learned counsel for the appellant as well as the respondent.
3. The facts of the case are that the plaintiff before the trial court who is the respondent herein filed a suit for permanent injunction against the defendant restraining their men from trespassing the suit schedule property and from cutting the trees grown in the suit schedule properties bearing Sy.No.129 measuring 3 acre 8 guntas and Sy.No.130 measuring 1 acre 39 guntas situated at Rottehalli Village, Hireguntanur Hobli. It is the further case of the plaintiff before the trial Court that the suit schedule property was originally an ancestral property of the plaintiff and subsequently, due to the dispute between the family members suit came to be filed and by virtue of compromise decree in RA.No.141/2004 on the file of Additional District Court, Chitradurga, suit schedule property fell to the share of the plaintiff. Since then, he is in peaceful possession and enjoyment of the suit schedule property. Defendant Nos.1 and 2 are the brothers and they are the relatives of the landowners of Sy.Nos.72 and 74. Sy.Nos.72 and 74 are situated on the eastern side of the suit schedule property. The plaintiff has grown trees like Neem, Semebagi and other trees, but the defendants had illegally trespassed into the suit schedule property and tried to cut the trees even though they have no manner of right, interest or title over the said suit schedule property. That on 29.10.2006 the defendants were trespassed into the suit schedule property and tried to cut the trees and the same was resisted by the plaintiff. Hence, the plaintiff filed a suit for permanent injunction.
4. Defendant Nos.1 and 2 appeared before the trial Court and filed the written statement by resisting the averments made in the plaint as false and denied the interference in the peaceful possession of the plaintiff and also denied the existence of trees on the eastern and northern side of the suit schedule property as claimed by the plaintiff. The defendants have specifically taken the contention that land in Sy.No.74 was originally belonged to their grand father late Mastan Sab and he had two sons i.e., Sanna Khalandar Sab and Sanna Buden Sab. Subsequently, after partition in the family, Sy.No.74/3 measuring 6 acres 29 guntas fallen to the share of their father. They are in lawful possession and enjoyment of the property and denied the boundaries mentioned by the plaintiff. Hence, prays for dismissal of the suit.
5. Based on the relevant pleadings, the trial Court framed the following issues:
1) Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property?
2) Whether the plaintiff further proves that the defendants are interfering in his peaceful possession and enjoyment of the suit schedule property and also trying to cut the trees situated in suit schedule property?
3) Whether the plaintiff is entitled for the relief of permanent injunction?
4) What order or decree?
6. In support of his case, the plaintiff was examined himself as P.W.1 and got marked the documents as Exs.P.1 to P.26. On behalf of the defendants, defendant No.2 was examined as D.W.1 and examined one more witness as D.W.2 and got marked the documents as Exs.D.1 to D.9.
7. Though, the plaintiff filed I.A.No.4 as the defendants violated the orders of temporary injunction passed on I.A.No.2, enquiry was held against the defendants and finally, after hearing the arguments on both sides, the trial Court decreed the suit and also found guilty for disobedience of the order passed by the Court and convicted defendant No.2 sentencing him to civil prison for a month. Assailing the judgment and decree as well as the order passed on I.A.No.2 under Order 39 Rule 2(a) of Civil Procedure Code (hereinafter referred to as “CPC”) the defendants filed an appeal before the Prl. Civil Judge (Sr.Dn.) & CJM, Chitrdurga in RA.No.54/2007 and MA.No.20/2009. The 1st Appellate Court after hearing the arguments formulated five points for consideration as under:
1. Whether the appellants prove that the respondent i.e., plaintiff in trial court has failed to prove that he is in lawful possession and enjoyment of the suit property as pleaded?
2. Whether the appellants prove that the plaintiff before the trial court has failed to prove the illegal encroachment and cutting of the trees by the defendants grown in the suit property as pleaded?
3. Whether the appellants prove that the judgment and decree passed by the trial court is illegal, erroneous and deserves to be set aside by allowing the R.A.No.54/07 as prayed?
4. Whether the appellant in MA.No.20/2009 proves that the defendant have not at all disobeyed the order of injunction passed by the trial court, as such the order passed on I.A.4 by the trial court deserves to be set aside by allowing the Miscellaneous Appeal?
5. Whether the appellants prove that they are entitled for the relief as claimed in R.A.54/07 and M.A.20/09?
6. What order?
All the above points were negatived against the defendants/appellants therein and ultimately, the appeal of the defendants came to be dismissed including MA.No.20/2009 which is challenged by defendant No.2 for having sending him to civil prison. Assailing the judgments of the courts below, defendant Nos.1 and 2 filed this second appeal before this Court. However, defendant No.2 not filed any appeal against the judgment passed against him in MA.No.20/2009 during the pendency of this appeal. It is also brought to the notice that appellant No.2 ha expired and no application is filed for brining LR.s of deceased 2nd appellant on record.
8. Learned counsel for the appellant contended that the judgment passed by both the courts below is against the pleadings and the evidence on record. The trial Court as well as the 1st Appellate Court have not appreciated and re-appreciated the evidence of the defendants on record and there is no findings given by both the courts below in respect of the trees grown in the land of the defendants. The plaintiff also not proved the existence of the trees in the suit schedule property. Therefore, both the courts below committed an error in decreeing the suit against the appellant. Therefore, the learned counsel has argued on the substantial question of law involved in this appeal.
9. Per contra, learned counsel for the respondent/plaintiff has supported the judgments of both the courts below by contending that the trial Court after considering the evidence of both the parties has elaborately given the findings holding that the plaintiff is in possession and enjoyment of the suit schedule property and there is no dispute in respect of the suit schedule property claimed by the plaintiff. On the other hand, the plaintiff is able to prove that he is in peaceful possession and enjoyment of the suit schedule property and that the defendants are the relatives of the landowners of Sy.Nos.72 and 74. The defendants have failed to prove their contention taken in the written statement. Further the learned counsel also contended that the 1st Appellate Court has appointed the Court Commissioner as per order passed on I.A.No.3 under Order 26 Rule 9 of CPC. The Court Commissioner has visited the spot and after the inspection, submitted the report before the 1st Appellate Court. Both appellant as well as respondent have not filed any objections on the Court Commissioner’s report. Based on the Court Commissioner’s report, the 1st Appellate Court has clearly held that no trees were existed in the lands in Sy.Nos.74/3 and 74/5 belonging to the defendant, but trees were existed in the lands Sy.Nos.129 and 130 belonging to the plaintiff. The 1st Appellate Court based on the evidence and accepting the Court Commissioner’s report has rightly dismissed the appeal. Hence, there is no substantial question of law involved to admit this appeal and prays for dismissal of the same.
10. After hearing the learned counsel for the parties and on perusal of the records, it goes to show that it is not in dispute that the plaintiff is the owner of the suit schedule property in Sy.Nos.129 and 130 of Rottehalli Village measuring 3 acre 8 guntas and 1 acre 39 guntas respectively which fallen to the share of plaintiff under the compromise decree in RA.No.141/2004 on the file of 1st Additional District Judge, Chitradurga.
11. The specific case of the defendants is that they have not denied the ownership of the plaintiff, but they have denied only the boundaries as well as existence of the trees in the suit schedule property. It is also an admitted fact that the ancestor of the defendants were in possession and enjoyment of the property in Sy.Nos.72 and 74 of the Rottehalli Village. Admittedly, the boundary of the plaintiff on the eastern side the land in Sy.No.74 is situated. The same was proved by the plaintiff by producing Exs.P.3, P.4, P.5 and P.6-RTC extracts along with Ex.P.7-certified copy of the survey sketch, which goes to show that the defendant’s property exists on the eastern side of the plaintiff’s property. Though, the trial Court has not appointed any Commissioner while conducting trial before it, the defendants also not filed any application for appointment of Court Commissioner, but in the appeal, the appellants themselves filed I.A. for appointing Commissioner and the 1st Appellate Court allowed I.A.No.3 filed under Order 26 Rule 9 of CPC and appointed the Court Commissioner. The Court Commissioner had visited the spot and submitted the report. As per the report of the Court Commissioner, trees were existing in Sy.No.129 and 5 trees were existed in Sy.No.130. The Court Commissioner has also clearly stated that there were no trees in Sy.Nos.74/3 and 74/5 belonging to the defendants. Neither the plaintiff nor the defendants disputed the report of the Court Commissioner by filing any objection. Based on the Court Commissioner’s report, the 1st Appellate Court held that there are no trees existed in the land of the defendant, whereas trees were existed in the lands belonging to the plaintiff. Therefore, the 1st Appellate Court dismissed the appeal filed by the defendants based on the report submitted by the Court Commissioner. Admittedly, the defendants are not able to prove their contention and boundaries of Sy.Nos.74/3 and 74/5 which ground were taken in the written statement. After appreciating the evidence, the trial Court rightly decreed the suit and the 1st Appellate Court also re-appreciated the evidence and after appointing the Court Commissioner has rightly held that the defendants tried to interfere with the peaceful possession and enjoyment of the plaintiff. It is the clear case of the defendants that they are claiming only in respect of Sy.No.74/3. Even as per the exhibits, though the defendants claimed that they are in possession of 6 acre 29 guntas in Sy.No.74/3, but only 29 guntas fallen to the share of defendants’ father as per Ex.D5. Hence, there is contradiction between Exs.D1 and D5. Therefore, considering the evidence on record the trial Court as well as the 1st Appellate Court have rightly decreed the suit of the plaintiff. Therefore, there is no substantial question of law involved in this appeal warranting interference by this court and to admit this appeal.
The appeal is devoid of merits and is accordingly dismissed.
In view of dismissal of the main appeal, I.A.No.1/2012 does not survive for consideration and same is also dismissed.
Sd- JUDGE PB