IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.2303 OF 2012 (INJ) BETWEEN SRI A. PAPANNA S/O LATE ANNAIAH, AGED ABOUT 67 YEARS, R/AT HINKAL VILLAGE, MYSURU TALUK, MYSURU DISTRICT-570 017. ... APPELLANT (BY SRI K. ANANDA, ADVOCATE) AND 1. SRI H.S. SATHYANARAYANA RAO SINCE DEAD BY L.Rs.
a) SMT. H.C.MADHURAMBA W/O LATE H.S. SATHYANARAYANA RAO, MAJOR, b) SRI H.S.CHANDAN S/O LATE H.S. SATHYANARAYANA RAO, MAJOR, c) SRI H.C. CHETHAN S/O LATE H.S. SATHYANARAYANA RAO, MAJOR, d) SRI H.S.RANJAN S/O LATE H.S. SATHYANARAYANA RAO, MAJOR, RESPONDENT Nos.1(a) TO 1(d) ARE R/AT. No.818, “SRINIVASA NILAYA”, (NEAR MARAMMA TEMPLE), HINKAL KASABA HOBLI, MYSURU TALUK, MYSURU DISTRICT-570 017.
2. SRI H.S. VENKATESH S/O LATE H.S.SRINIVASA RAO, MAJOR, 3. SRI H.S.RAMESH S/O LATE H.S.SRINIVASA RAO, MAJOR, RESPONDENTS No.2 AND 3 ARE R/AT. No.274, NEAR MARAMMA TEMPLE, HINKAL VILLAGE, MYSURU TALUK, MYSURU DISTRICT-570 017.
4. ZILLA PANCHAYATH REPT. BY ITS CHIEF SECRETARY, MYSURU DISTRICT, MYSURU-570 001.
5. PUBLIC WORKS DEPARTMENT REPT. BY ITS EXECUTIVE ENGINEER, MYSURU DIVISION, MYSURU-570 001.
6. GRAMA PANCHAYATHI REPT. BY ITS SECRETARY, HINKAL VILLAGE, MYSURU TALUK, MYSURU DISTRICT-570 017.
... RESPONDENTS (BY SRI M. VISHWANATH, ADVOCATE FOR SRI R.C. NAGARAJ, ADVOCATE FOR R1(a-d) & R2 AND R3; SRI B.J.SOMAYAJI, ADVOCATE FOR R4 & R6;
SRI VENKATESH DODDERI, AGA FOR R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 of CPC AGAINST THE JUDGMENT AND DECREE DTD.03.10.2012 PASSED IN R.A.NO.307/2007 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.08.2007 PASSED IN O.S.NO.178/1997 ON THE FILE OF II CIVIL JUDGE (JR. DN.) MYSURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT This appeal is filed by the appellant being aggrieved by the judgment and decree passed by the II Civil Judge (Jr. Dn.) & JMFC, Mysuru in O.S.No.178/1997 dated 01.08.2007 and the said suit was confirmed by the II Additional Senior Civil Judge, Mysuru in R.A.No.307/2007 (First Appellate Court) dated 03.10.2012.
2. Heard the arguments of the learned counsel for the appellant as well as the learned counsel for the respondents.
3. The ranks of the parties before the Trial Court is retained for brevity.
4. The case of the plaintiffs before the trial Court is that the plaintiffs filed the suit for relief of permanent injunction to restrain the defendants from laying road in the suit schedule property claiming that the plaintiffs’ father had purchased the property through registered sale deed dated 25.07.1941 and the khatha was transferred in his name. After the death of their father, the plaintiffs being legal heirs succeeded to the suit schedule property and the khatha was duly changed in their names. The plaintiffs have planned to construct the house on 06.04.1985. Defendant No.4 who was the President of Hinakal Grama Panchayath along with others interfered with their possession and has filed the suit in O.S.No.93/1985 for relief of permanent injunction and suit was decreed against defendant No.4. An appeal was also filed by defendant No.4, which was also dismissed. Thereafter, they gave representations to the defendant No.3 for issuance of demand register and for receiving the tax in respect of the suit property, but defendant No.3 neither received the tax nor issued demand register extract. On 20.01.1997, the plaintiffs got issued notice to defendant No.3 and thereafter, the defendant No.3 issued an endorsement on 06.02.1997 declining to receive the tax and to issue the demand register extract. At the instigation of defendant No.4 after he failed to succeed in the earlier litigation, in collusion with defendant Nos.1 to 3 now have planned to lay the road on the suit schedule property. Hence, prayed for restraining the defendants from forming the road.
5. Pursuant to the notice issued by the trial Court, defendant No.1 - Zilla Panchayath has appeared through its counsel and filed written statement contending that the plaint schedule is situated in the middle of the road leading to ManchegowdanahaKoppalu, K.R.S. from Hunsur-Mysuru road and the said road is in existence for the last several years. About 25 years back, PWD has formed puccaa road and the same was used by the general public. Defendant No.1 - Zilla Panchayath has acquired right over the plaint schedule property by way of adverse possession by forming road, adverse to the interest of the plaintiffs and their father, 40 years ago. The question of laying the road in the suit schedule property now does not arise as the said road is already in existence for the last several years. The license was issued by the plaintiffs without conducting spot inspection by an Administrator appointed by the Government. The plaintiffs cannot proceed to put up construction on the basis of this license issued in the year 1995 and they have to obtain fresh license from respondent No.3. Defendant No.4 is the President of Hinakal Grama Panchayath. The judgment and decree passed in O.S.No.93/1985 is not binding on defendant No.1, as the same was obtained suppressing the material facts and the suit for bare injunction without seeking the relief of declaration is not maintainable. The plaintiffs have to approach Zilla Panchayath under Section 224 of the Karnataka Panchayath Raj Act.
6. Defendant No.3 - Grama Panchayath also appeared before the trial Court and filed written statement contending that the suit schedule property has been a public road. PWD has taken up the task of laying metal road 20 to 25 years ago. Defendant No.3 was not aware of the proceedings in O.S.No.93/1985 as it was not a party to the said suit and the judgment and decree therein was not binding on defendant No.3. Defendant No.3 has already rejected the prayer for executing payment of tax and hence, prayed for dismissal of the suit.
7. Defendant No.4 who is the appellant herein also filed the written statement contending that defendant No.4 is the President of Hinakal Mandal Panchayath and contends that he ought to have been impleaded in such capacity in this suit and not in his individual capacity. During the year 1941, there was no site as described in the suit and defendant No.4 was not aware of the filing of suit in O.S.No.93/1985. The plaintiffs’ father’s vendor’s vendor was a Shanbhog of Hinakal Village, which was a village situated in the outskirts of Mysuru. The entire revenue matter was looked after by the Shanbhog. The suit property was a road leading to Shaneswara Swamy Temple, Kanaka Temple, Devare Kere and Manchegowdanahakoppal and it is in existence since time immemorial. The plaintiffs’ father’s vendor’s vendor being a Shanbhog manipulated the record and sold the same to Kempadevamma, who in turn sold it to plaintiffs’ father. The Shanbhog has no right, title and interest over the suit schedule property which is a road used by the villagers. The license might have been issued without conducting spot inspection, when the period of elected body was over and the Administrator was appointed. Earlier to that, the road was in existence in the suit schedule property. Except that there is no other road leading to Manchegowdanahakappalu. Hence, prayed for dismissal.
8. Based upon the rival pleadings, the Trial Court framed seven issues for its consideration, which are as under:
“1. Whether plaintiffs prove their lawful possession over suit schedule property on the date of suit?
2. Whether plaintiffs prove alleged interference caused by the defendants over the suit schedule property?
3. Whether the suit is bad for non-joinder or necessary parties and mis-joinder of unnecessary parties?
4. Whether defendants prove that this court has no jurisdiction to try this suit?
5. Whether the suit without the relief of declaration is not maintainable?
6. Whether plaintiffs are entitled to the reliefs claimed in the suit?
7. What order or decree?”
9. To substantiate the contentions, the plaintiff- H.S.Ramesha got examined himself as PW.1 and got marked 18 documents. Defendant Nos.1 to 3 have not examined any witnesses and defendant No.4, the present appellant got examined himself as DW.1. After considering the evidence on record, the Trial Court answered issued Nos.1, 2 and 6 in the affirmative and issue Nos.3 to 5 in the negative. Consequently, the suit was decreed restraining the defendants from interfering with the peaceful possession and enjoyment of the property and also forming any road therein. Assailing the said judgment and decree passed by the Trial Court, defendant No.4 filed an appeal before the First Appellate Court in R.A.No.307/2007 and the First Appellate Court framed two points for its consideration, which are as follows:
“1. Whether the plaintiffs have proved their possession and enjoyment of suit schedule property as on the date of the suit and alleged interference by the defendants?
2. Whether the 4th defendant proves that the judgment of trial Court is against the oral and documentary evidence placed on record and appreciation of law and hence it requires interference of this court?
3. What order?”
After considering the evidence, the First Appellate Court dismissed the appeal filed by defendant No.4. Assailing the said judgment, defendant No.4 is before this Court by way of second appeal.
10. Learned counsel appearing for the appellant strenuously contended that both the Court below have not properly appreciated the evidence on record. The very land claimed by the plaintiffs was a road. Ex.P.13 is the sale deed which does not reflect how the vendor of the plaintiffs’ father derived title over the property. The plaintiffs ought to have converted the suit into a declaration suit as mere injunction suit is not maintainable. The plaintiffs have not at all sought any relief restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property, but the prayer is only for restraining the defendants from forming the road and the Trial Court without any reason has granted decree against the defendants restraining them from interfering with the peaceful possession of the suit schedule property as against the record and further contended that the road is already existing from time immemorial. Defendant Nos.1 to 3 are trying to form the road, but not defendant No.4 and also contended that the subsequent to pendency of the appeal, the villagers also filed a suit for declaration, which is pending for consideration. Hence, prayed for allowing the appeal.
11. Per contra, learned counsel appearing for respondent No.1, who is the plaintiff, has supported the judgment of both the Court below and contended that previously the father of the plaintiffs filed the suit against the very same appellant in O.S.No.93/1985, which was decreed restraining this appellant from interfering with the suit schedule property and the appellant also filed an appeal before the First Appellate Court, which also came to be dismissed long back and there is no second appeal filed by him. The said decree ended in finality. Such being the case, once again this appellant, in collusion with other respondents i.e. village panchayat and zilla panchayat, PWD authorities, is trying to interfere with the schedule property under the guise of forming a road, which cannot be permitted. The Trial Court and the First Appellate Court rightly appreciated the evidence on record. It is also contended that the PWD authorities, village panchayat and zilla panchayat not at all let in any evidence and also not cross-examined PW.2. Such being the case, except the oral evidence of defendant No.4, the appellant herein, there is no document produced to show that the suit property is a road. Therefore, prayed for dismissing the appeal as there is no substantial question of law involved in this appeal.
12. Learned counsel for respondent Nos.4 to 6 i.e. Zilla panchayat, Public Works Department and Village panchayat supported the argument of learned counsel for the appellant. However, admitted that defendant Nos.1 to 3 have not chosen to lead any evidence before the Trial Court and also not chosen to cross-examine PW.1. However, he has stated that the village panchayat has also filed an appeal in Appeal No.387/2007, which came to be dismissed on 24.03.2010.
13. Upon hearing the arguments of learned counsel for the parties and learned counsel for respondent Nos.4 to 6 and on perusal of the record, it is an admitted fact that the father of the plaintiffs filed a suit against the present appellant and the said suit has been decreed against him. Ex.P.15 is the certified copy of the judgment and decree passed against the present appellant wherein the second Munisiff and JMFC, Mysore restrained the present appellant from interfering with the peaceful possession and enjoyment of the property by the plaintiffs’ father. Assailing the judgment, this appellant also filed an appeal before the II Additional Civil Judge, Mysore in RA No.58/1989, which also came to be dismissed as on the date of filing of the suit by the plaintiffs which is challenged in this appeal. An injunction is operating against the appellant that is not in dispute. However, the plaintiffs contention before the Trial Court is that in spite of obtaining injunction and again defendant No.4 in collusion with defendant Nos.1 to 3 is trying to form the road even though the plaintiffs obtained license for constructing a house in the year 1995 itself. Plaintiffs tried to get the demand register and pay tax, but they refused to accept the same, on the other hand, they issued an endorsement. The plaintiffs got marked 18 documents, but Exs.P.15 to 18 were marked during cross-examination of DW.1, which are admitted documents. Though defendant Nos.1 to 3 claimed that the suit property is a road existing from time immemorial and there is a road formed by defendant No.2 about 25 years back in the written statement, but they failed to appear before the Trial Court and not chosen to cross-examine any plaintiffs’ witness and also not let in any evidence in their favour. Except defendant No.4 who already suffered decree, in the hands of the plaintiffs no other evidence is available on record to show that the road exists from time immemorial. Except the oral contention and written statement of the defendant in the pleadings, the defendant failed to adduce or produce any documentary evidence like the village map or any other documents to show that the road was in existence since time immemorial. However, learned counsel for the appellant stated that subsequent to the decree the villagers already filed a suit in O.S.No.211/2016 for declaration of the said property as the road, which is pending consideration. However, the Trial Court as well as the First Appellate Court after considering the evidence on record, especially Ex.P.13, which is a sale deed pertaining to the year 1948 and license issued by the authorities in the year 1995, not at all set aside by cancellation. Such being the case, the argument of learned counsel for the appellant that the Trial Court committed error in granting the relief of injunction against the present appellant- defendant No.4 cannot be acceptable. Of-course, the prayer of the plaintiffs shows that they sought relief only for restraining the defendants from forming the road. The same was considered by the Trial Court and confirmed by the First Appellate Court. Even though there was no prayer for restraining the defendants from interfering however, in view of earlier injunction operating against this defendant restraining from interfering with the suit schedule property, the same attained finality, which was not challenged before this Court by the present appellant and which was decreed and the injunction was operating against him from the earlier suit. Until the competent court set aside the said decree, the same is operating. Of-course it is brought to the notice that the villagers have filed a suit for declaration for declaring the property as road and the declaration suit is pending for consideration. Such being the case, if any grievance is available to this appellant, the village people claiming the suit property has road, let them succeed in the suit by taking their contention. However, this decree is operating against defendant No.4 and other defendants. Defendant Nos.1 to 3 have not challenged the dismissal of their appeal, which has ended in finality. Therefore, the contention of learned counsel for respondent Nos.4 to 6 that the property is a public road, cannot be acceptable. The Trial Court committed error in granting relief restraining them from forming the road. There is no ground to interfere with the concurrent findings of the Trial Court as well as the First Appellate Court. The Court is otherwise having power to mould the relief instead of merely restraining the defendants from forming the road and not restrained them interfering with the possession which does not make any difference. Therefore, I find no error or illegality committed by both the Court below in decreeing the suit of the plaintiffs. The appeal is devoid of merit and there is no substantial question of law in involved in this appeal.
Accordingly, the appeal is dismissed.
SD/- JUDGE HA – Para Nos.1 to 7 Mv – Para Nos.8 to 18