IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA R.S.A.No.1320/2006 (INJ) BETWEEN:
1. SRI SANNAPPA S/O JAGALURCHAND AGED ABOUT 51 YEARS 2. SMT SANGANAMMA W/O HALTURCHAND AGED ABOUT 65 YEARS BOTH ARE RESIDING AT ASTAPANAHALLI VILLAGE CHANNAGIRI TALUK …APPELLANTS (BY SRI ABHINAV R, ADVOCATE) AND:
SMT. RESHMA W/O LATE CHANNABASAPPA AGED ABOUT 53 YEARS R/AT AGTAPANAHALLI VILLAGE CHANNAGIRI TALUK ... RESPONDENT (BY SRI SHRIKANTH B, ADVOCATE) THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 7.12.2005 PASSED IN PRINCIPAL CIVIL JUDGE (SR.DN.) DAVANAGERE IN R.A.NO.89/2004 AND RESTORE THE JUDGMENT AND DECREE PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) & JMFC, CHANNAGIRI DATED 6.4.2004 IN O.S.NO.184/2002 AND ETC.
THIS R.S.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal is by defendants in O.S.No.184/2002 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC, Channagiri. Admittedly, the said suit was filed by respondent herein for the relief of permanent injunction restraining the defendants, their workmen, agents and heirs from interfering with alleged peaceful possession and enjoyment of the suit schedule property by the plaintiff. Admittedly the suit property is land bearing Survey No.22/3 measuring 4 acres situated at Astapanhalli Village, Kasaba Hobli, Channagiri Taluk. The said suit came to be dismissed by judgment and decree dated 6.4.2004, which was subject matter of appeal in R.A.No.89/2004 on the file of the Principal Civil Judge (Sr. Dn.), Davanagere wherein the Lower Appellate Court after framing the points for consideration proceeded to re-appreciate the pleadings, oral and documentary evidence available on record in the light of grounds urged in the appeal and consequently it answered the points for consideration in affirmative in favour of the appellant proceeded to allow the appeal in R.A.No.89/2004. While doing so, the judgment and decree in dismissing the original suit in O.S.No.184/2002 was set aside and consequently the said suit was partly decreed. However, it is seen that the Lower Appellate Court while allowing the appeal did not decree the suit for the prayer for permanent injunction but has proceeded further to grant the relief of declaration, which was not sought for by the plaintiff.
2. At the time of admitting the second appeal, this Court has framed the following substantial questions of law for consideration:
“1. Whether the lower appellate court, in the absence of a specific prayer, could grant declaration of title in favour of the plaintiff.
2. Whether the lower appellate court is justified in reversing the judgment of the Trial Court refusing to grant relief of permanent injunction sought by the respondent – plaintiff, without assigning valid reasons?
3. Whether the findings of the lower appellate court with regard to possession of the property by the respondent – plaintiff is contrary to the evidence on record.”
3. Heard the learned counsel for the appellants. However, the respondent’s counsel did not participate in the proceedings. Subsequently he filed a memo seeking permission to retire, which is rejected. Thereafter this matter was heard and the aforesaid substantial questions of law are answered in the negative against the plaintiff and in favour of the appellants (defendants in second appeal) for the following reason.
property measuring to an extent of 4 acres. In the Court below, defendants on entering appearance filed the written statement denying the plaint averments, disputed the identity of the property as shown in the suit schedule and also contended that the suit boundary includes the land of defendants. Therefore the plaintiff is not entitled to seek permanent injunction against the defendants, who are said to be the owner of the property. Based on that, issues were framed and the parties were called upon to adduce their evidence. In the Court below on behalf of the plaintiff, she examined herself as PW1 and relied upon 7 documents, which includes xerox copy of the grant certificate(Ex.P.1), original of which is not produced and further the endorsement issued by Tahsildar, Channagiri, which is at Ex.P7 wherein it was indicated that prior to filing of the suit, the plaintiff had filed an application under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 seeking restoration. Hence, the endorsement at Ex.P.7 was issued indicating that the said land not being encumbered, the question of restoration does not arise and any dispute between the parties is required to be resolved in the Civil Court. With this what is seen is the plaintiff was not in the possession of the property and she was seeking restoration in the application filed before the Tahasildar, Channagiri. However, in the suit filed by her, she was seeking for the relief of permanent injunction, as if she was in possession of the property.
4. Considering all these inconsistency, the suit for the relief of permanent injunction was dismissed by judgment dated 6.4.2004. However, when this matter was taken up in appeal before the Lower Appellate Court, the Lower Appellate Court while considering the points which were framed for consideration in the said appeal, set aside the appeal as if the plaintiff’s prayer for declaration is rejected by the Court below ignoring the grant certificate issued in her favour. In the preamble portion of the judgment there is reference to the suit of the plaintiff is restricted to the prayer for permanent injunction. However, while disposing off the appeal it is allowed as if the suit filed in the court below is for the relief of declaration of title.
5. In that view of the matter, judgment rendered by the Lower Appellate Court in R.A.No.89/2004 dated 7.12.2005 is hereby set aside and the matter in R.A.No.89/2004 is remanded for fresh consideration before the Lower Appellate Court wherein the Lower Appellate Court after hearing both the parties shall decide the same on its merits without reference to the findings of its predecessor in judgment dated 7.12.2005.
6. Accordingly this appeal is allowed in remanding the appeal R.A.No.89/2004 to the Principal Civil Judge (Sr. Dn.), Davangere. Since the respondent in the present appeal is not effectively represented by their counsel, the Lower Appellate Court shall issue Court notice to the respondent and thereafter take up this matter for final disposal.
Sd/- JUDGE MD