I}? THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 15"' DAY OF JULY, 2009 PRESENT THE Ho1v'BI..E MR. 13.1). DINAKARAN, CHIEF' .3fa'4i:5§\'1'Ir'€j3-3?---:'ii"' or it AND ~- THE I-IOIWBLE MR..ms'r1cE V§e.siABiiAH1fr .. 39$'-Ilar Second APbeaiN.'§1¢.1395"fl:f 'A Between: T T T M/s Mysore Minerals Lirnitedfi. _ 1 j Jambunathanahalli Iron Ore Mines, V I-Iospet 583 201 V Bellary district . , ~ _ ~ Represented by its P.ers<;§naVI Manager T' Gundappa. S / 0 Siiivappa;~gged._a]oo11t _ V ' 42 years ... Appellant (By Sri A.T.Savar1u_r, Adtiocate")~.:..'i' And: RL'B_.S.S:N_, V p i\/Iin'er.__0'Wpr1ei'r, Karigau1ur_,Repre'sented by its T Managing Director, ' Hospet, Hospet talilk Beliary district E. ..Respondcnt T Mantagani, Advocate ) Regular Second Appeal filed under Section 100 of the Code vCi.vi1 Procedure, against the Judgment and Decree dated A 12.4.2007 passed in R.A. No. 36/2007 on the file of the Principal Civil Judge ( Sr.Dn) and JMFC Hospet, dismissing the appeal and confirming the Judgment and decree dated 9.2.2007 passed "OS No.225/2004 on the file of the Additional Civil Judge ( Jr.Dn_):"a_n'd_ JMFC, Hospet, dismissing the suit for permanent injunct_io.1_'1}_» . i This appeal coming up for preliminary hearing this. the Court delivered the following- JUDGMENT
This appeal by the plaintiffefiqopellaritiiihereinviiss M
against the Judgment and Decree thei’C.ourtV’of i3′:rincipal
Civil Judge(Sr.Dn) and JMi?e,_ ‘.’1§o.’é6/2007
dismissing the appeal and and Decree
dated 9.2.2007 passe«<iio:ViI§E.f dudge ( Jr.Dn),
Hospet, in o.s. filed by the piaintiff
for permanent inj_u.ncti'on~._ "been.. gtisrnissed.
2.1 The esseintiai facts of the case arising in this appeal with
refeitence rankings 'o1""'the parties before the trial Court, are
as foilowsi
The"appeiivatit..5;herein filed O.S. No.225/2004 on the file of
'.Addl.Cxiv.iIi'Judge (Jr.Dn), Hospet, seeking for permanent
.1 infur..1:c:tioni"against the defendant~Respondent herein averring that
plaintit'f~appellant being a Government of Karnataka
' .__VUndertali<ing, holding both mining and minerals and accordingly,
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the Department of Mines and Geology has granted the Minirigu
bearing ML No.1659 in respect of land bearing
measuring 127.78 acres (51.71 hectares]..of__Jan:hunatha,naT:ialli'-_
village for a period of 20 years with effect from
application for renewal of the said: lease 'filed by p.l,aiVntiff–l
appellant is still pending.
2.2 It is averred that the herein has
been granted mining, towards eastern
side of the suit defendant having evil
eye on the plvairivtiflllsefllealseghoidlp “intends to remove iron ore
illegally. on:’…s.11.2.oo4’i’;- when the defendant
Company had actuiallyvmadell i.l:legr:a’l.’evattempts to remove the iron ore,
thevyplaintiffiappellant’ constrained to file complaint to that
is bent upon to encroach over the suit
schedule ‘pjrop’€vrt3ty,iV’anld’remove the iron ore, the plaintiff has filed
the present §’uit.«–l”‘for permanent injunction restraining the
l ” fron1…ihterfering the peaceful possession and enjoyment
A of’ over the suit property.
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2.4. The trial court, framed appropriate issues. On belllalfiof
the plaintiff, P.Ws 1 and 2 were examined and Exhibits 19:1. if
were marked. On behalf of the defendant, D.W.1
and Exhibits D.1 to D.18 were marked.
2.5. The trial court, afteriicorlsidering .
documentary evidence on record, pA9_if2.20O7
held that the plaintiff has p1*o{re.ig’vinterference by the
defendant and the plaintiff fact viz.,
that the plaintiff had m:_ad._el”an”app1ication seeking
permission for the common boundary
under Regulat?_ion’- 1 1 and a Memorandum of
Understanding “1:-eeri into between the plaintiff and
defendant i16..7.2iOC)4..i_anld that under the Agreement the plaintiff
has defendant to enter the plaintiffs leased area to
put plaintiff has failed to prove interference by
defendant, V._di’srniissed the suit.
A “ii3..p jéeing aggrieved by the dismissal of the suit by the trial
i” plaintiff preferred R.A. No.36 / 2007 and the appellate court,
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by Judgment dated 12.4.2007 dismissed the appeal confirmingtlie
Judgment and decree passed by the trial court.
4. The appellant being aggrieved by the .thex:i
first appellate court, the plaintiff has filed ithisgsecond appeal… it
5. We have heard the learned”counselii1’orii the and
the learned counsel for the respondent! —
6. The learned counsel for vstlzbmitted that the
courts below withoutidconsideiringtt zmd documentary
evidence in its proper h’ave’v’_hel.d that the plaintiff-
appellant has failiedlbto Ti3pro«ve.inter{erence by the defendant.
Therefore, theidudgment passed by the courts below
are liable to set aside! 2
V7″; hand, the learned counsel appearing for the
defendan«t’5respoi~:dent’siibmitted that the appeal does not involve
substa_nti;;:l’qu:estion of law and the courts below have given
“*clor.cu:rrent findings in a suit for permanent injunction and the
‘ i”ap’pea1.Apis.1iable to be dismissed.
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8. We have given careful consideration to the contentionsofgé
the learned counsel appearing for the parties and ‘
material on record. I _
9. The material on record clearly ‘of
plaintiff in OS. No.225/ 2004 was plermanerit
against the defendanbrespondent grour1d..v’that the
deferidanbrespondent is trying’ the mining area
leased to the p1aintiff–appellant out mining
work illegally. The ilsiibstantiated in the
evidence. P.W. make himself available
for cross–exair1inat.ioln;v.”and’itheplairltiff was left with the evidence
of P.W.2 alone; statement. Further, both
the courts helovv haverightly that the plaintiff has suppressed
tkieln1at&erial’fa,ct viz… the factithat the plaintiff and the defendant
hadl”ml_atiel_an seeking for mining within 7.5 Mtrs. from
‘-the conimon by making an application under Regulation
of MMR Regulations and the same was permitted and a
i.Memo’randum of Understanding has been entered into between the
defendant on 16.7.2004 wherein, under the said
‘ .__VAgreerhent the plaintiff had permitted the defendant to enter the ‘
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