IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.308 of 2011 (INJ) BETWEEN SRI H.T. MALLESH, S/O H.M. THAMMANNA, AGED ABOUT 42 YEARS, RESIDENT OF AVATHIHOSALLI VILLAGE, AVATHI POST, CHIKAMAGALUR TALUK AND DISTRICT – 577 131.
(BY SRI N.R. RAVIKUMAR, ADVOCATE) AND 1. SRI H.T. NAGESH, AGED ABOUT 39 YEARS, S/O H.M. THAMMANNA, COFFEE PLANTER, RESIDENT OF AVATHIHOSALLI VILLAGE, AVATHI POST, CHIKAMAGALUR TALUK AND DISTRICT – 577 131.
2. SRI H.M. SHANTHAPPA GOWDA, S/O MALLEGOWDA, AGED ABOUT 59 YEARS, COFFEE PLANTER, RESIDENT OF AVATHIHOSALLI VILLAGE, AVATHI POST, CHIKAMAGALUR TALUK AND DISTRICT – 577 131.
... APPELLANT … RESPONDENTS (BY SRI K.N. CHANNAPPA, ADVOCATE FOR C/R1 (ABSENT);
NOTICE TO R2 IS DISPENSED WITH VIDE COURT ORDER DATED 02.11.2011.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 13.08.2010 PASSED IN R.A.No.62 of 2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHIKMAGALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.04.2006 PASSED IN O.S.No.404 of 2003 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN), CHIKMAGALUR.
THIS REGULAR SECOND APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This Regular Second Appeal is filed by the appellant/defendant No.1 assailing the judgment and decree dated 13.08.2010 passed in RA No.62/2006 by the presiding officer Fast Track Court, Chikkamagaluru, for having allowed the appeal filed by respondent No.1/plaintiff and decreeing the suit of the plaintiff in OS No.404/2003.
2. Heard learned counsel for the appellant. Learned counsel for respondent No.1 remained absent and has not chosen to argue the matter.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is that the plaintiff filed a suit for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property in Sy.No.534/3, measuring 2 acres 35 guntas, situated at Avathi Village, Chickmagaluru which has fallen to his share in the family partition on 26.03.1999. The further case of the plaintiff is that after the partition among the family members in respect of the schedule property, plaintiff is in possession of his share of the property. Defendant No.1 being the owner of the adjacent land bearing Sy.No.534/2 measuring 2 acres 35 guntas having no manner of right, title and interest over the property of the plaintiff is trying to interfere with the suit property and attempted to harvest the coffee crops grown in the schedule property and trying to cut and remove the silver oak trees. The plaintiff resisted the same with great difficulty, but was unable to stop the defendant. Hence, prayed for granting injunction.
Upon service of notice, defendant No.1 appeared and filed written statement. Defendant No.2 remained ex parte. Defendant No.1 admitted the partition held between the plaintiff and the defendant on 26.03.1999. Since a dispute arose between the parties, recently the defendant is residing separately from the plaintiff and further denied interference with the suit schedule property and contended that as per the partition dated 26.03.1999, the eastern portion of 2 acres 39 guntas fell to the share of the plaintiff and remaining 2 acres 35 guntas fell to the share of the defendant. They were enjoying their respective portion of the properties. A portion of government land bearing Sy.No.532 of Avathi village towards southern side of Sy.No.534 and 534/3 measuring 1 acre 35 guntas each is in unauthorized occupation of both the parties. There is a well dug by them on northern side of Sy.No.534/3 with an understanding that both shall enjoy the water from well for drinking and other purpose. The defendant laid a pipe-line from the well to a tank constructed in Sy.No.532 of Avathi village and pumping the water through diesel engine fixed near the well. The plaintiff in order to give trouble has filed the suit and the defendant filed a suit for permanent injunction against the plaintiff in OS No.305/2003 wherein, an order of status quo has been passed in the said suit and hence, prayed for dismissal of the suit.
5. Based upon the rival pleadings, the Trial Court framed the following issues;
“1) Whether plaintiff proves that he is in possession of the suit property as on the date of the filing of the suit?
2) Whether plaintiff proves the alleged interference by the defendants?
3) Whether plaintiff is entitled for the relief of permanent injunction as prayed?
4) What order or decree?”
6. In support of the case, the plaintiff got examined himself as PW.1 and got marked four documents as per Exs.P.1 to P.4. On behalf of the defendants, the defendant No.1 got examined himself as DW.1 and got marked four documents as per DWs. 1 to 4. After considering the evidence on record, the Trial Court dismissed the suit of the plaintiff vide judgment dated 18.04.2006. Assailing the said judgment of dismissal of the suit, the plaintiff filed RA No.62/2006 before the First Appellate Court and the First Appellate Court after considering the evidence and re-appreciating the evidence on record reversed the judgment of the Trial Court and decreed the suit by framing the following points for its consideration;
“1) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of suit?
2) Whether the plaintiff further proves the alleged interference of the defendants?
3) Whether the impugned judgment and decree of the trial Court is legally sustainable?
4) What order?”
Assailing the judgment and decree, the defendant has preferred this second appeal.
7. This Court admitted the second appeal on 07.11.2016 on the following substantial questions of law;
i) Whether the 1st appellate court is justified in holding that, since the possession of the plaintiff over the Suit Schedule Property is admitted by the defendants, hence the suit liable to be decreed, inspite of the plaintiff failing to prove the alleged interference and cause of action over the Schedule Property?
ii) Whether the 1st appellate court is justified in decreeing the suit, inspite of the pendency of the suit in O.S.No.305/2003 for injunction filed by the appellants for right of water in the well existing in their property against the Respondent herein by deciding the issues involved in the said suit?
iii) For consideration of any other substantial questions of law that may arise at the time of hearing”
8. Learned counsel for the appellant/defendant No.1 contended that the property in question has been partitioned between the plaintiff and defendant No.1 as per the partition deed dated 26.03.1999. The defendant’s property is admittedly adjacent to the plaintiff’s property, which is not in dispute. The defendant No.1 never tried to cut the Silver Oak trees or restrained the harvest of coffee crops by the plaintiff, but defendant No.1 was trying to get the water from the well on the Southern side of Sy.No.534/3 which fell to the share of the plaintiff as per their agreement. Both of them enjoyed the water for drinking and other agricultural purpose. Even defendant No.1 has filed a suit against the plaintiff and obtained an order of status quo in OS No.305/2003, which has ended in finality. The plaintiff failed to prove the interference by defendant No.1 over the suit schedule property. Therefore, the Trial Court rightly dismissed the suit of the plaintiff, but without properly appreciating the evidence, the First Appellate Court decreed the suit of the plaintiff. Therefore, prayed for setting aside the judgment of the First Appellate Court.
9. Learned counsel for respondent No.1 remained absent and not chosen to argue the matter.
10. As regards the first substantial question of law framed by this Court, by considering the evidence on record, it is the admitted fact that the land in Sy.No.534/2 measuring 2 acres 35 guntas has fallen to the share of the defendant No.1 and Sy.No.534/3 measuring 2 acres 35 guntas fallen to the share of the plaintiff as per the partition deed dated 26.03.1999. The same is not in dispute. The defendant No.1 also admitted the partition and sharing of properties by both the brothers under the alleged partition deed. The defendant No.1 has also contended that adjacent to their respective shares, the plaintiff and defendant No.1 also were in possession and enjoyment of the property measuring 2 acres 35 guntas each. A portion of the land in Sy.No.532 on southern side of the properties in Sy.Nos.534/2 and 534/3 measuring 1 acre 35 guntas, they are in unauthorized occupation. There is a well dug in the land on the northern side of Sy.No.534/3 with an understanding and agreement that both shall enjoy the water from the well. The clear admission of defendant No.1 goes to show that a well has been dug up by them on the northern side of Sy.No.534/3, the said portion of the land has been fallen to the share of the plaintiff under the partition deed. It is not the case of defendant No.1 that the well has been dug up in the portion of the property which has fallen to his share or in the unauthorized occupation of their land in Sy.No.532 of Avathi village. The admission of defendant No.1 goes to show that the well has been dug-up in the portion of the property, which has fallen to the share of the plaintiff. Further, learned counsel for the appellant contended that the claim made by the plaintiff in his suit is only for restraining the defendant from cutting the Silver Oak trees and harvesting coffee crops. The defendant No.1 denied the same. Absolutely, defendant No.1 has not claimed any right over the suit schedule property, which has fallen to the share of the plaintiff under the partition, but the claim of defendant No.1 is only with respect to sharing of water as per their agreement in the partition. The relevant portion of the partition deed has been read by learned counsel for the appellant, where there is a reference available to the effect that the parties shall use the water, common passage and other easementary rights. However, learned counsel for the appellant admits that the well has been dug only subsequent to the partition and not prior to the partition. But the prayer made by the plaintiff is something else than drawing-up water by defendant No.1 and the defendant already filed a suit and obtained status quo from the Court in OS No.305/2003, which has attained finality. The admission made by defendant No.1 is only in respect of the well dug up in the plaintiff’s share of the property. But he has categorically stated that he has not interfered with the plaintiff’s enjoyment of the property and not tried to cut the Oak trees or harvest the coffee crops. Such being the case, the First Appellate Court committed error in decreeing the suit of the plaintiff. The First Appellate Court has not considered the real dispute between the parties. It is not in dispute that defendant No.1 is trying to interfere with drawing-up the water, as it was already agreed between them in the partition deed to share the water, but learned counsel for the appellant also stated that the parties moved an application before the revenue authorities for survey and phoding land, such being the case until survey has been conducted the plaintiff is not entitled for any reliefs and it is also seen from the submission that a direction was also issued for phoding the land and bifurcating boundaries. Such being the case, until the boundaries are fixed, it is not possible to come to the conclusion that defendant No.1 is interfering with the peaceful possession and enjoyment of the property by the plaintiff. There is no evidence to show that defendant No.1 is actually interfering with the enjoyment of the property by cutting Silver Oak trees or harvesting the coffee crops. Therefore, merely proving the possession of the property is not enough for granting decree until the plaintiff is able to prove interference by defendant No.1 over the suit schedule property. Thereby, the First Appellate Court committed error in allowing the appeal and decreeing the suit. Hence, I answer the first substantial question of law in favour of defendant No.1 and against the plaintiff.
11. As regards the second substantial question of law, defendant No.1 obtained an order of status quo in OS No.305/2003 as against the plaintiff in respect of drawing up of water from the existing well in the property of the plaintiff. If at all the plaintiff is not satisfied with the order passed by the Court in OS No.305/2003, he could have preferred an appeal against the said order. However, the order passed in OS No.305/2003 has attained finality. Such being the case, decreeing the suit is not correct. The First Appellate Court is not justified in decreeing the suit of the plaintiff even though defendant No.1 obtained an order of injunction against the plaintiff in the earlier case. Such being the case, decreeing the suit is nothing but passing injunction order against the injunction obtained by the defendant and until the order passed in OS No.305/2003 is set aside by a competent court, the said injunction order is operating against the plaintiff. Therefore, the suit of the plaintiff cannot be decreed. Hence, the second substantial question of law is answered in favour of defendant No.1 and against the plaintiff.
12. Though both defendant No.1 and the plaintiff are in unauthorized occupation of 1 acre 35 guntas each, the land in Sy.No.532 of Avathi village belongs to the government, but the revenue authorities have not chosen to take appropriate action against the parties to recover the government land.
13. In view of my findings on both the substantial question of law, the suit of the plaintiff is liable to be dismissed. The order of the First Appellate Court is liable to be set aside.
14. Accordingly, the second appeal is allowed. The dismissal of the suit by the Trial Court is confirmed. The order of the First Appellate Court dated 13.08.2010 is set aside.
Sd/- JUDGE mv