IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT RSA No.1246/2013 (INJ) BETWEEN:
SRI M VITOBA SHETTY S/O M MUKANNA SHETTY @ MUKAND SHETTY AGED ABOUT 56 YEARS R/OF KOTHARI INDUSTRIAL CORPORATION BRANCH MANAGER HASSAN-573 201.
(BY SRI.UMESH MOOLIMANI, ADV. FOR SRI. S.V. PRAKASH, ADV.) AND:
SMT. JAYALAKSHMI W/O D.V. CHANDRAHASA AGED ABOUT 57 YEARS C/O PADMA JEWELLERS OPP. TO DIVAJNA KALYANA MANDIRA JAIN CIRCLE SHIMOGA-577201.
... APPELLANT ... RESPONDENT (BY SRI. B.S.RANGANATH, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.03.2013 PASSED IN R.A.NO.348/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, DISTRICT & SESSIONS JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.05.2009 PASSED IN O.S.NO.590/1995 ON THE FILE OF THE I ADDL.CIVIL JUDGE (JR.DN) & JMFC., SHIVAMOGGA.
THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant, who is the defendant is in appeal under Section 100 of the Code of Civil Procedure assailing the concurrent findings of the Court below under judgment and decree dated 30.05.2009 passed in O.S.No.590/1995 on the file of I Addl. Civil Judge (Jr.Dn.) and JMFC, Shivamogga and judgment and decree dated 30.03.2013 passed in R.A.No.348/2009 on the file of the Presiding Officer, Fast Track Court-II, District and Sessions Judge, Shivamogga.
2. Plaintiff filed suit in O.S.No.590/1995 for judgment and decree of permanent injunction in respect of site bearing Sy.No.78 of Kallahalli Village, Shimoga Taluk, 4th Division, Jail Road, bearing old K.No.4666/4904 and New Katha Number 6686-6618- 4904, Sl.No.208-6618 measuring 20 feet in width North to South, 70 feet in length East to West (in cubic feet 1400 or Cubic meter 13.20) bounded by East – Vacant site of M. Revanna, West by Jail Road, North by K.V. Parvathamma now Municipal Road, South by Sri.H.M. Eshwaradhy’s site now sold to Venakshamma. Plaintiff states that she is in possession of the suit schedule site having purchased the same through sons of Smt. Dakshyanamma, W/o. Late Y.K. Halappa for a sale consideration of Rs.1,81,500/- under the sale deed dated 15.09.1994. Vendor of the plaintiff – Dakshyanamma had filed suit against one Eshwarappa in O.S.No.492/1984 for declaration, which suit was decreed and confirmed in R.A.No.70/1989 on 03.11.1995. As the plaintiff intended to construct on the site he stored building material in the site, at that moment as the defendant interfered with his possession, the suit came to be filed.
3. On issuance of summons, the defendant appeared and filed written statement taking the contention of res- judicata and also contended that the plaintiff is constructing by encroaching his site. It was further contended that defendant had filed O.S.380/1995 against vender of the plaintiff Dakshyanamma and plaintiff. Defendant is in possession of site measuring 12½ x 75 feet and put up foundation for residential house. The plaintiff is claiming the property belonging to the defendant by giving northern boundary of her property as municipal road and stated that the boundaries given in the plaint schedule are incorrect. Based on the pleadings of the parties, the trial Court framed the following issues :-
“1) ªÁ¢AiÀÄÄ vÁªÀÅ zÁªÁ ¸ÀéwÛ£À PÁ£ÀÆ£ÀÄ §zÀÝ ¸Áé¢ü£Á£ÀĨsÀªÀzÀ°è zÁªÁ ¢£ÁAPÀzÀªÀgÉUÉ EzÁÝgÉAzÀÄ ¸Á©ÃvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2) ªÁ¢AiÀÄÄ vÀ£Àß zÁªÁ ¸ÀéwÛ£À ªÉÄÃ É ¥ÀæwªÁ¢AiÀÄ ºÀ¸ÀÛPÉëÃ¥ÀªÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3) ºÁUÀÆ ªÁ¢AiÀÄÆ ±Á±ÀévÀ ¤¨sÀðAzÀPÁeÉÕ ¥ÀjºÁgÀPÉÌ CºÀðgÉÃ?
4) K£ÀÄ DzÉñÀ CxÀªÁ rQæ?”
4. The defendant had filed suit in O.S.No.380/1995, both the suits were clubbed together and judgment and decree was passed, which was taken up in R.A.Nos.23/2004 and 25/2004 wherein the Appellant Court remanded the matter for fresh disposal. Subsequent to remand defendant who had filed O.S. No.380/1995 got dismissed the suit. Thereafter the parties have led in fresh evidence in the present suit in O.S.590/1995. Based on the evidence on record, the above issues were answered in the affirmative and the suit was decreed, against which the defendant filed R.A.No.348/2009. In the regular appeal the Appellate Court formed the following points for consideration :-
“1. Whether the plaintiff has proved that she was in lawful possession of the suit schedule property as on the date of filing the suit ?
2. Whether the plaintiff has further proved the alleged interference by the defendant ?
3. Whether the judgment and decree of the trial court calls for interference by this court ?
4. What order ?”
5. Point Nos.1 and 2 were answered in the affirmative and point No.3 in the negative. Accordingly the appeal was dismissed, against which the present second appeal under Section 100 of the Code of Civil Procedure, suggesting the following substantial questions of law:-
“(1) Whether both the courts have justified in granting injunctive relief in favour of the plaintiff without proper appreciation of oral and documentary evidence adduced by the defendant?
(2) Whether both the courts below are justified in holding that the plaintiff is in possession of the suit schedule property as on the date of the suit based on documents like municipal entries and the report of the court commissioner?
(3) Whether the courts below are justified in not appreciating the oral and documentary evidence adduced by the defendant in a proper perspective?
(4) Whether the courts below have committed error in law in holding that the entire property of the defendant has been acquired by the municipal for formation of the road in the absence of materials on record produced by the plaintiff?
(5) Whether the courts below have committed an error in law in appreciating the documents at exhibit P17 and P18 to hold that there was a 10 ft., vacant space left by the original owner towards the drainage?
(6) Whether the courts below are justified in holding that the plaintiff has been in possession of the suit schedule property as on the date of suit exclusively based on the report subjected by the court commissioner?
(7) Under the facts and circumstances of the case whether both the courts below have committed an error in law in grating injunctive relief in favour of the plaintiff and in the absence of the prime materials such as lay out plan etc.,?
(8) Whether the courts below have committed an error in law in not dismissing the suit of the plaintiff for want of acceptable and cogent evidence?”
6. Heard the learned counsel for the appellant and learned counsel for the respondent.
7. On hearing the learned counsels for the appellant and respondent and on perusal of the material on record, I am of the view, that no substantial question of law arises for consideration in this appeal much less the substantial questions of law suggested by the appellant. Moreover, the learned counsel for the respondent has brought to the notice of this Court that subsequent to the dismissal of the suit and appeal, the appellant herein has filed O.S.No.54/2014 before the Principal Civil Judge, Shivamogga, seeking declaration and consequential reliefs in respect of the suit schedule site.
8. In a suit for injunction, the only issue before the Court would be with regard to possession and prayer for injunction would be decided with reference to the finding on possession. As the plaintiff has proved her possession over the suit schedule site, the trial Court rightly decreed the suit. The Courts below looking to the boundaries and description of property under two sale deeds under Exs.P.17 and P.18, material documents and Commissioner’s report have rightly given finding that the plaintiff has been in possession of the suit schedule property. It is the case of the defendant that the plaintiff has incorrectly shown northern boundary, but has not placed any material to that effect. On the other hand, plaintiff proved that northern boundary of the suit schedule property is municipal road. The questions raised by the appellant are questions of fact and appreciation of evidence on record. The contention that certain evidences are not looked into or other view is taken are not substantial questions of law. The Appellate Court on examination of the material on record has come to the conclusion that the plaintiff has established her lawful possession over the suit schedule site. As no substantial question of law would arise for consideration in this appeal, it is accordingly dismissed.
Sd/- JUDGE NG* CT:bms