IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1720/2018 BETWEEN:
Sri P.A.Gurumurthy S/o late G.Aytharlingamma, Aged about 48 years, R/o Pattanayakanahalli, Gowdagere Hobli, Sira Taluk, Tumkur District-572106 …Appellant (By Sri G.S.Venkat Subba Rao, Advocate) AND:
1. Sri A.Ramachandraiah, S/o late G.Aytharlingamma, Aged about 63 years, R/o Pattanayakanahalli, Gowdagere Hobli, Sira Taluk, Tumkur District-572106 2. Section Officer. Office of BESCOM, Pattanayakanahalli, Gowdagere Hobli, Sira Taluk, Tumkur District-572106 …Respondents (By Sri Venkatesh P.Dalwai, Adv. for R1, Sri Somana Gowda Patil, Adv. for R2) This RSA filed U/S. 100 of CPC., against the judgment and decree dated 06.02.2018 passed in R.A.No.50/2015 on the file of the Senior Civil Judge and JMFC., Sira dismissing the appeal and confirming the judgment and decree dated 09.11.2015 passed in O.S.No.245/2010 on the file of the Prl. Civil Judge and JMFC., Sira.
This appeal coming on for admission this day, the court delivered the following:
J U D G M E N T This Regular Second appeal of the plaintiff arises out of the judgment and decree dated 06.02.2018 in R.A.No.50/2015 passed by the Senior Civil Judge, Sira.
2. By the impugned judgment and decree, the First Appellate Court dismissed the suit of the appellant and confirmed the judgment and decree dated 09.11.2015 in O.S.No.245/2010 passed by the Principal Civil Judge, Sira. By the said judgment, the Trial Court dismissed the suit of the plaintiff for permanent injunction.
3. The appellant was the plaintiff and respondent Nos.1 and 2 were defendant Nos.1 and 2 before the Trial Court.
4. For the purpose of convenience, parties are referred henceforth according to their ranks before the Trial court.
5. Defendant No.1 is the elder brother of the plaintiff. The subject matter of the suit was a Saw Mill with licence and power installation attached to the mill, machineries, timber located in Sy.No.123/4D of Naduru village, Gowdagere Hobli, Sira Taluk.
6. The claim of the plaintiff in brief was as follows:
That the first defendant was running a Saw Mill in Sy.No.123/4D after obtaining licence from the competent authorities. First defendant, under Ex.P.32-consent letter transferred the licence of the Saw Mill to him on 26.06.1993. Since then, he is running the Saw mill. Of late, first defendant started to disturb his possession. Second defendant at the behest of the first defendant is acting detrimental to the interest of the plaintiff. Therefore, he seeks for permanent injunction against both of them.
7. Defendant No.1 has filed his written statement denying the execution of Ex.P.32 and possession of the plaintiff. Defendant No.2 contended that there is no cause of action against them. Defendant No.2 further contended that electrical installation relating to the Saw Mill stood in the name of defendant No.1 and that was disconnected and his application for reinstallation is under process.
8. On the basis of such pleadings, the Trial Court framed the following issues:
“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 by the defendants?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order of Decree?”
9. The parties adduced evidence. On the side of the plaintiff, PWs 1 and 2 were examined and Exs.P.1 to 107 were got marked. Defendant No.1 was examined as DW.1. Their brother-Nagaraju was examined as DW.2 and Exs.D.1 to 13 were marked.
10. The Trial Court after hearing the parties, dismissed the suit on the following grounds:
i) Ex.P.32 is not proved.
ii) Ex.D.1 RTC extract shows that the land is standing in the name of DW.2 and therefore, possession of the plaintiff is not proved;
iii) interference by 2nd defendant is not proved.
11. Aggrieved by the said judgment and decree, the plaintiff filed R.A.No.50/2015 before the Senior Civil Judge & JMFC., Sira. The First Appellate Court on hearing the parties, concurring with the reasons and findings of the Trial Court, dismissed the appeal. The first Appellate Court further held that Ex.P.32 is inadmissible in evidence, as the same is unregistered one.
12. This being the second appeal under Section 100 of C.P.C., can be admitted for hearing only if the case involves a substantial question of law for consideration.
13. What is the substantial question of law, is expounded by the Hon’ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwari, reported in AIR 2001 SC 965. In the said case, it is held that on the question of fact, the First Appellate Court is the last court. Only such questions of law which are debatable, not settled by the judicial precedent are the substantial question of law.
14. In view of such pronouncement, this Court has to see whether there is any substantial question of law in the case.
15. Sri. G.S.Venkat Subba Rao, learned counsel for the appellant submits that DW1 and 2 in their cross-examination have admitted the possession of the plaintiff and the courts below ignored such admission. He further submits that Ex.P.32 could have been looked into for collateral purposes. He submits that the document, if once marked in evidence, its admissibility cannot be questioned at a later stage. According to him the said aspects are the substantial questions of law.
16. Per contra, learned counsel for the respondents submits that D.W.2 is the owner of the suit schedule property and without impleading him suit was not maintainable. The alleged admissions of DW1 and 2 are the stray statements and not admissions. Ex.D.1-RTC extract and other records i.e., licence and electrical installation extract are standing in the name of defendant No.1. Therefore the possession of the plaintiff was not proved.
17. Admittedly, the RTC of the land bearing Sy.No.123/4D, in which the Saw mill situates stands in the name of DW2, the other brother of the plaintiff and defendant. The licence of the Saw mill was in the name of the first defendant and the electrical installation of the Saw mill also stands in the name of defendant No.1.
18. PW1 in his cross-examination clearly admits that in the family partition the suit land is allotted to their brother Nagaraju i.e. DW2. He was not impleaded in the suit as defendant. Admittedly, the plaintiff sought for renewal of the Saw mill licence standing in the name of the first defendant. That itself shows that he has no right over the said licence.
19. The concerned authorities rejected such application and seized the Saw mill. He challenged the said order before the High Court and as submitted by both side the proceeding is still pending.
20. To grant injunction, possession must be lawful one. When the licence was not transferable, the alleged transfer of licence is unlawful. On that ground also the trial courts judgments are sustainable.
21. Under these circumstances, the possession of the plaintiff in respect of the licence of the Saw mill or electrical installation attached to the said Saw mill cannot be called to be lawful possession of the plaintiff.
22. As already pointed out, the RTC of the land is not in plaintiff’s name. That is the name of DW-2. Having regard to the presumption under Section 133 of Karnataka Land Revenue Act, 1964 and other material on record, Courts below rightly held that plaintiff’s possession is not proved. For grant of temporary injunction, the possession itself is not sufficient. The alleged possession should be lawful. The Courts below after appreciating the material on record dismissed suit of the plaintiff. This Court does not find any substantial question of law in the appeal . Therefore, appeal is dismissed.
Sd/- JUDGE PSG