IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE Mr. JUSTICE B.SREENIVASE GOWDA REGULAR SECOND APPEAL No.76/2014 (P-INJ) BETWEEN:
Sri Devanna, S/o. late Mudishetty @ Mudiyashetty, Aged about 65 years, Residing at No.266, Hinakal Village, Hunsur Main Road, Mysore – 570 017.
(By Sri M.S. Nagaraja, Adv. for Sri H.V.Bhanu Prakash, Adv.) AND:
Sri Neelakantappa, S/o. late Mallaiah, Aged about 60 years, Residing at Hinakal Village, Kasaba Hobli, Mysore Taluk, Mysore – 570 017.
(By Sri Sangamesh R.B., Adv.) ... Appellant ... Respondent This RSA filed under Sec.100 of CPC against the judgment and decree dated 12.06.2012 passed in R.A.No.
836/2010 on the file of Presiding Officer, Fast Track Court- II, Mysore, dismissing the appeal and confirming the judgment and decree dated 07.09.2009 passed in O.S.No.200/1999 on the file of II Civil Judge (Jr.Dn.) and JMFC, Mysore.
This appeal coming on for Admission, this day, the Court delivered the following:-
J U D G M E N T This second appeal is filed by the defendant in O.S.No.200/1999 on the file of II Civil Judge (Jr. Dn.) and JMFC, Mysore challenging the concurrent judgment and decree passed by the courts below whereby the suit of the plaintiff was decreed by the Trial Court and it was confirmed by the First Appellate Court.
2. I have heard the learned counsel for the appellant (defendant) and learned counsel for the respondent (plaintiff) and perused the judgments and decrees of the courts below.
3. Sri M.S. Nagaraja, learned counsel appearing for the appellant (defendant) submits, even though the plaintiff has not produced any document to establish his possession and enjoyment over the suit property, the trial court had committed an error in decreeing the suit and granting injunction restraining the defendant (appellant) from interfering with the possession of the plaintiff over the suit property. He further submits, the defendant is not a party to the earlier suit O.S.No.53/1987 and the judgment and decree passed therein is not binding on him. The courts below without considering the same have committed an error in relying upon the judgment and decree passed in O.S.No.53/1987 C/w O.S.No.430/1990 and decreed the suit filed by the respondent (plaintiff). Learned counsel further submits that the judgments and decrees passed by the courts below are contrary to material on record. As such there are substantial questions of law arise for consideration and therefore, he prays for admitting the appeal for considering these substantial questions of law.
4. Sri Sangamesh R.B., learned counsel appearing for respondent (plaintiff) submits, the earlier suit in O.S.No.53/1987 filed by the present plaintiff along with another person by name Sri Mahadevappa against father of the defendant in the present suit for declaration and consequential relief in respect of the very suit property has been decreed and the courts below relying upon the said judgment and decree were justified in decreeing the present suit and granting permanent injunction restraining the defendant-appellant from interfering with the plaintiff’s possession and enjoyment over the suit property.
5. Learned counsel submits that the documents produced by the plaintiff at Ex.P.1 to Ex.P.30 would clearly establish the possession and enjoyment of the plaintiff over the suit property. The courts below considering the same were justified in decreeing the suit. Therefore, he submits there is no illegality or infirmity in the judgments and decrees passed by the courts below warranting interference of this court. He submits, there is no substantial question of law arises for consideration. Therefore, he prays for dismissal of the appeal.
6. The respondent–plaintiff in order to show his possession over the suit property has produced Tax paid receipts at Ex.P.3 to Ex.P.13 and Ex.P.27 to Ex.P.29, demand register extracts at Ex.P.4 to Ex.P.21 and ExP.30, encumbrance certificate at Ex.P.22, endorsements at Ex.P.23 and Ex.P.25, plant at Ex.P.24, licence at Ex.P.26. The plaintiff apart from producing the above documents has examined himself as PW-1 reiterating the averments made in the plaint that he is in possession and enjoyment of the suit property.
7. The defendant in support of his case though got examined himself as DW-1 and has stated that he is in possession of the suit property along with his brother and the suit property comprising of 12 pillared thotti house originally belonged to his grand father Dyavashetty, but has not produced any document substantiating his stand.
8. It is further case of the defendant that the suit property is part and parcel of the place comprising of 12 pillared thotti house and destruction thereof including the present condition as vacant space using it as hittalu etc. He has not produced any document to substantiate his stand. Whereas defendant examined as DW1 has admitted in his evidence that the suit property was situated at old Hinkal village. His house is situated abutting to Hunsur Main Road. In his cross examination he has deposed that the disputed property (suit property) is situated half furlong away from his house and he cannot say whose house is situated on the southern side of the suit property. He deposed that he does not know the documents in respect of suit property standing in the name of the plaintiff.
Perusal of the judgment and decree of O.S.No.53/1987 C/w O.S.No.430/1990 would show that O.S.No.53/1987 was filed by the present plaintiff and another person by name Mahadevappa against one Smt. Lee C.P. Thomas for seeking to declare the plaintiffs in the said suit as absolute owners in possession and enjoyment of the suit property and to grant the relief of permanent injunction restraining the defendant (Smt. Lee C.P. Thomas) from interfering with the possession and enjoyment of the suit property. O.S.No.430/1990 was filed by Smt. Lee C.P. Thomas against Neelakantappa (first plaintiff in O.S.No.53/1987 and plaintiff in the present suit) and Mudishetty father of defendant in the present suit.
It further discloses that O.S.No.53/1987 was decreed and O.S.No.430/1990 was dismissed whereby the present plaintiff-Neelakantappa and another person by name Mahadevappa have been declared as owners in possession and enjoyment of suit property and the relief of permanent injunction as sought for has been granted restraining the defendant-Mudishetty in the said suit who is none other than the father of the defendant in the present suit from interfering with the possession and enjoyment of the plaintiffs over the suit property. Though the said judgment and decree passed by the trial court was against father of the defendant/appellant, defendant’s father-Mudishetty did not challenge the said judgment and decree. Therefore, the courts below were justified in relying upon the said judgments as one of the grounds for decreeing the present suit, in addition to the oral and documentary evidence adduced by the plaintiff in the present suit. The trial court considering the above materials, has rightly answered Issue No.1 in affirmative holding that the plaintiff has proved that he is in lawful possession and enjoyment of the suit property and the trial court by considering the fact that the defendant by claiming title and possession over the suit property has tried to obstruct and interfere with the construction work of the plaintiff in the suit property has rightly answered Issue No.2 in the affirmative holding that the plaintiff has proved that the defendant is interfering with the possession and enjoyment of the plaintiff over the suit property and was justified in granting the relief of permanent injunction restraining the defendant from interfering with the possession and enjoyment of plaintiff over the suit property.
9. The first appellate court on re-appreciating the entire oral and documentary evidence on record has rightly dismissed the appeal preferred by the defendant and confirmed the judgment and decree passed by the Trial Court.
10. I have carefully gone through the judgments and decrees passed by the courts below and I do not find any illegality or infirmity warranting interference. That apart, there is absolutely no substantial question of law which arises for consideration.
Hence, the appeal is dismissed as devoid of merits.
In view of dismissal of appeal, I.A.No.2/2014 for stay does not survive for consideration, accordingly it is dismissed.
No order as to costs.
Sd/- JUDGE.
PN/-