IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD REGULAR SECOND APPEAL NO.1306/2012 Between:
1. Sri Venkatesh S/o Sri Nanjunde Gowda 2. Sri Thimme Gowda S/o Sri Venkatarame Gowda 3. Sri Rame Gowda S/o Sri Moodalagiri Gowda 4. Sri Hanume Gowda S/o Sri Sanna Venkataramane Gowda 5. Sri Kale Gowda S/o Sri Nanjunde Gowda All are majors and r/o Madihalli Village, Nuggehalli Hobli Channarayapatna Taluk Hassan District – 573 116.
(By Sri G.B. Nandish Gowda for Sri R.B. Sadasivappa, Advocate) And:
Sri Siddappa S/o Sri Lingadevaraiah, Major R/o Mattanavile Village … Appellants Shravanabelagola Hobli Chennarayapatna Taluk Hassan District – 573 116.
(Respondent served and unrepresented) … Respondent This RSA is filed under section 100 of CPC against the judgment and decree dated 4.11.2011 passed in R.A. No.64/2011 on the file of Presiding Officer, Fast Track Court, Channarayapatna, partly allowing the appeal and setting aside the judgment and decree dated 19.12.2008 passed in OS No.392/2002 on the file of Civil Judge (Jr. Dn) and JMFC, Channarayapatna.
This RSA coming on for Admission this day, the Court delivered the following:
JUDGMENT This appeal is filed by the defendants challenging the judgment and decree dated 04.11.2011 passed by the Fast Track Court, Channarayapatna in R.A. No.64/2011.
2. The brief case of the plaintiff is that he is the permanent resident, an agriculturist and a priest in Kodi Lingeswaraswamy Temple. Earlier the father of the plaintiff was the priest. After his death, the plaintiff was performing pooja of the temple. The plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property. Earlier he was cultivating the property as an unauthorized occupant. Subsequently, he has filed an application before the Competent Authority for grant of the land in his favour. Accordingly, the Tahasildar of Channarayapatna Taluk has granted the land in his favour on 03.08.1996. Subsequently, the grant certificate was issued in his favour. Pursuant to that grant certificate, khatha also changed into his name in MR No.19/1998-99. In these circumstances, the defendants having no manner of right or title over the suit schedule property are trying to interfere with the peaceful possession and enjoyment of the suit schedule property. Hence, he has filed a suit for declaration and injunction.
3. After service of summons, the defendants have appeared through their counsel and filed their written statement denying all the averments made by the plaintiff and further contended that the suit property was originally a ‘Gomaala’ and it belongs to the Government. There is a Kodi Lingeswaraswamy temple in the suit schedule property. It is further contended that the land belongs to the temple. Further, they contended that the grant made by the Tahasildar by order dated 03.08.1996 has been cancelled and the application filed by the plaintiff was dismissed by the Assistant Commissioner, Hassan vide order dated 25.10.2002. Hence, the defendants sought for dismissal of the suit.
4. On the basis of the pleadings of the parties, the trial Court has framed the following issues:-
“1. Whether the plaintiff proves that he is the absolute owner in possession of the suit property?
2. Whether the plaintiff proves that he is in lawful possession of the suit property on the date of possession?
3. Whether the plaintiff proves the alleged interference by the defendants?
4. Whether the defendants prove that suit property is public property as stated in para two of the written statement?
5. Is plaintiff entitled for the relief as prayed for?
6. What order or decree?”
5. To establish the case, the plaintiff has examined three witnesses and marked seven documents. On the other hand, the defendants have examined seven witnesses and marked 18 documents.
6. On appreciation of the oral and documentary evidence, the trial Court has answered issue Nos. 1 to 3 and 5 in the negative and issue No.4 in the affirmative and dismissed the suit.
7. Being aggrieved by the same, the plaintiff has filed the Regular Appeal before the Fast Track Court, Channarayapatna in R.A. No.64/2011.
8. The First Appellate Court, on the basis of pleadings of the parties has framed the following issues:-
“1. Whether the Court below has erred in properly appreciating the materials placed on record by the parties to the suit?
2. Whether the impugned judgment and decree needs interference by this Court?
3. What Order?”
9. By judgment and decree dated 04.11.2011, the First Appellate Court has confirmed the decree of the trial Court in respect of declaration and in so far as the suit for injunction is concerned, the Appellate Court has decreed the suit in favour of the plaintiff. Being aggrieved by the same, the defendants have filed this appeal before this Hon’ble Court.
10. Heard the learned counsel appearing for the parties.
11. Sri G.B. Nandish Gowda, the learned counsel appearing for the appellants submits that the application filed by the plaintiff for grant of the suit schedule property has attained finality. The Divisional Commissioner, by order dated 16.11.1993 has rejected the application filed by the plaintiff.
12. The respondent is served and unrepresented.
13. It is not in dispute that the plaintiff was cultivating the land in dispute. Subsequently, he has filed an application for grant of land. The Competent Authority has granted a land in favour of the plaintiff on 03.08.1996. Pursuant to that, the Tahasildar of Channarayapatna Taluk has changed the khatha in the name of plaintiff under MR No.19/1998-1999. Subsequently, the application filed by the plaintiff for grant of land has been dismissed by the Divisional Commissioner by order dated 16.11.1993. The defendants have not produced any documents to establish that the plaintiff has been dispossessed from the suit schedule property. When it is an admitted fact that the plaintiff was in possession of the suit schedule property, he can be dispossessed only by due process of law. The First Appellate Court, after considering the oral and documentary evidence produced by the parties, has rightly held that in so far as possession is concerned, the defendants have not produced any documents to show that they have been dispossessed from the suit schedule property.
14. Under these circumstances, the First Appellate Court has rightly granted injunction and rejected the claim for declaration. Therefore, no substantial question of law arises in the case for consideration.
Accordingly, the Appeal is dismissed.
nms Sd/- JUDGE