1N THE I-HGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 09"' DAY OF JUNE 2009
BEFORE
THE HC)N'BLE MR. JUSTICE A s B0?A;s_'zNA.:'%LAA~ « "
REGULAR 32:00:19 APPEAL.NO..1c§43
BETW BEN :
BASAVALINGAPPA " _ _V
BIO LATE DHIGAMBARE GOWDAV, "
AGED ABOUT 59 YEARS
R/(T) HOLEBELLUR VILLAGE
KASABA HOBLI, ALUR TP»..3.,U:'{
HASSAN DISTRICT-573201' i "
-------- ...AF'PELLAN'I'
(BY SRLB RQo1=E»s2;_1x,.ADy:;.,,__ _ -- '
AND : ' V
1 'MALLAIAH, V' " V'
' *as,:__ 'JOOGAIAH---« -
Ai3EI3_ ABOUT 52 ms
' (£§¥1 g_BoUT so was
BGTH 1 815 52 ARE R/O HOLEBELLUR VILALGE
A. I»{ASAB,£x HOBLI 9aLUR TALUK
HASSAN DiS'FRiC'I'-5'r'32(}1
RESPONDENTS
x THIS RSA 18 FILED {US 100 OF CPC AGAENST THEE
JUDGEMENT AND DEGREE I)’I’. 18.10.2005 PASSED
R.A.NQ.420/2005 ON THE FILE OF’ THE ADDLSESSIONS
JUDGE AND PRESIDENG OFFICER, FAST TRACK COURT-III,
J
HASSAN, msmlssusze THE APPEAL AND CONFIE2:I§’5if€€3v*~—-}{_’i}i.§}_
JUDGEMENT AND DEGREE :>’1*.20.o9.:2oo2 ‘lPASS§’._E)”‘ mj
O.S.NO.92/2001 ON THE FILE OP THE CI\iIL_.–JL¥I)§3E) ‘{«JVR,DN.V)’ ”
AND ADDLJ MF’C., ALUR.
THIS APPEAL COMING ON EoAie._E§ar§11ss1b;_1_q. Tags”
THE COURT DELZVERED THE F’vOLI__..C)WIN(}: ‘
The aiipellant xiefendant ‘ in
O . S. No.92] 20C) 1fl “£he 3 seeking
for a hof injunction against
the defendmfi; ;:»vii:;§tccbt.«’p<E$.$c-Esion. The Trial Court by
its judgment "20.()9.20()2 has éecreed the
suit. The '{1¢;fE:1dEi11t"awPas.fi;ciefore before the Lower Appellate
coas_E¥g:' in*.R.A.1\ioA.<§2'0/2§)05. The Lower Appellate Court has
VA1;1m;.'3'Li11_di13gs of the Trial Court and dismissed the
dated 18.10.2005. The defendant
théfefozsté 5.3 fiefore this Court against the concmrent findings
V. anzri judgfixents rendered by the Cacaurts below.
2. Beam the learned counsel fer the parties and
perused the appease} papers. The paféries are refermd to in the
J
r
same rank as assigned to them before the Trial
purpose of convenience and clarity.
3. The plaintiffs were ‘before the ‘}’ria1_ _ A’
that the property beaxiing Sy.1’€o.76§;/5
guntas of Holebeiiur Village,
origin’ aily belonged to one tfie. V the V
glam” tifis. It is contcxideeci s2aj,§} was in
possession and enjoymefif property and
thereaxfier, being the only legal heir
succeeéeé te the séVz3ie–ai1d;”i«v2ais in possession and enjoyment
of tl1e–su3t The plaintiffs have thereafter
after the death of their father anai
‘been,:”ie”‘p¢$sessien and enjoyment. The plaintiifs have
the nature of the crops grown in the said
‘*.,pmper’ty. i- The plainfifis were before the Trial Court, since
V’;:r:e($i’3§1ix3.g to them, the defendant who has no manner of
ri;1:»’ht was interfering with their possession of the suit
‘4 ‘4 ‘ = schedule promrty.
4. The defendant on being notified has
appearance and disputed the claim of the u ‘
from eiisputing the zelationship of £Eef1sa3;cI._ ” ”
Mala, the defendant also contended the
questien was mortgaged m’>Tfav9ur {if ‘the …Q:f the
defendant namely, Dhigambaregieivdas. to the
same, the revenue of the said
Bhjgambaregowda. a11(}:..w~-f_lL’..C:ii’tfC}’r’e’,_” flefendaszxt is in
possession Qf cannot be
gramcdtag we & %
A. -3.. Ti1eu’°}’@’ 0351: noticing the rival contentions has
as many asffbur issues for its consideration. The
e._p’éuffies : fi:1j1Lcie1e%ci’_j..evidenee to discharge the burden cast an
thus} The eseeond plamefl” was examined as PW-1 and the
‘*..,docum”e;1At:s at Exs.P3. to P5 were marked. The defendant
the witnesses Sri. I-ialagappa as DW~1 and Sri
Smivfingappa as DW-2 and the documents at Exs.D1 to I35
were marked.
6. The T1-la} Court on the basis of the .«evide_nee
tendered by the parties has referred to the ~
its conclusion. Insofar as the case put f_o;’th_* K V’
the Trial Ceurt has noticed the evidenee idalengi
with the evidence tendered tinblggh ‘Pa A’-.-2;,
the documents at Exs.i_~’1 to I_’5iVV”ne1m.e}y, extracts
relating to the ‘«._tI1ef’ register exhaust
which was at was else deeuments
relating to parties such as
the cornpiaint were aiso noticed. in this
backgroiingd’, the eftile defendant to claim right to
the wee’ the document at Ex.D1, which
” V’ contended was the mortgage deed. It is based
_oi1_ the defendant also placed reiianee en
:he.1_eecuzeefi;;:e::ae Exe.D2 to D5 to indicate that the mutation
dfientzrriee been changed to the name of the defendant. in
“::’tqackgeunci, eeneidering the fact that the defendant was
right under the document at Ex.D1, the ‘I”n’a1 Court
has referred to the same in detail to notice the nature of
right created under the said document. The defendant had
1
evidence has come to the conciusion that the right elaimeé
by the defenciant to he in possession of the
the document at E)x.D1 is not established V’
evidence of the plainfifis indicate th,at”1hey in V
possession, the judgment and decree x;+.§s’t in ._
of the piaintiffs.
17. When the defenttémt tsTa:3}quetbte.A:’t32e Lower Appellate
Court, the LowerV.Appejlete. v_ ‘inferred to this
aspeeteotfuthesgnsttei’ reference to the
document ‘at Appellate Court has teimed
the said docm;t1ent’V–.as’*._’Ad1:1a1’a Pathra’. As noficed from the
~._Acon’tents.Aof..the Sf£ti(i”‘1’i()(31imCI}t and since the said document
itsexfgioes’tnéstiiudicate handing over of possession, the Lower
has also approved the findiilgs rendered by
the
H 8. Though the learned counsei for the appellant
V “sought to contend that the Courts below were not justified,
the discussion made above would indicate that both the
J;
Courts below have Ieferred to the evidence
recofd, and have anived at a finéing offact _
nature of the document namely
defendant ciaimed to be in possessidix. have ‘–
to the documents referred by to
establish possession in sc§ie€i’uieV:pmpe1*.ty
and thezefore, when bee}: into a
fixiding of fact; question of
law arising merit in the appeal.
Aecexditlgljfi’ being devoid of mexits is 4
disposttéé ot’. ‘i’~T{:i Ozzie: -‘as costs.
Sd/4….
Iudge
-nnvbms