IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 2151' DAY OF AUGUST 2Q()9_X_ BEFORE THE HON'BLE MR. JUSTICE iS,'N.SATYAAiA12A*5§'ANA.A; 1' " 'V 1' REGULAR SECOND APPEAL 1510. 19919 2006" i'EES-fig' BETWEEN: V V' V i V ' BORAPPALA I-IUCHAPPA, S/0 Kenchappa, » Age: Major, ~ «_ Occ: Agriculturist and Poojziii; ' _ _ Residing at Uchangidurgayillage in " Harapanahalh Ta1i11~;; ' DAVANGERE I:s:S*ifj;HIcT'.-' SS3; A .. APPELLANT. For Sr1'."C~.. glfiar, Adv.) ANGAD1 EASAPPA,' A , . S / 0 Irfi;re'm¢galag»e,reV 'Ma1a'ppa, ." ~. ..... .. Occ: Agrili f V --..R/Eat"LIchafigid.iirga Village --- 583 I25, '1'a1uk: fiarapaziah--a11i, DAVANGEREf_DE'STRXCT. .. RESPONDENT.
:By””Sn5.’S.S.Gutta1, Adv.)
*_*_*_*_$_=l=_*
‘”‘*”\
This Appeal is filed under Section 100 of the Code of Civil
Procedure. against the Judgment and Decree dated. 712’.eQ4.2006
passed in R.A.No.131/2002 [Old No.7/1988] on thepfi-]e”of’theV.Civil
Judge (Sr.Dn.), Harihar, dismissing the appeal and the
Judgment and Decree dated 28. 1 ‘ passed ” .0 pp in,_
O.S.No.83/1986 on the file of the Munrsiff. es; J–MF.C,”iEiaraparialzialli; ”
This Appeal is coming on for l”Courtl.’ J
delivered the following:
JUUQMENTWF
Heard the 1earned._countsei= app’e1,”iant regarding
admission.
2. This is filed challenging the
Judgment 12.04.2006 passed in
the file of the Civil Judge
[Sr.Dn.), Judgment and Decree dated
28.11.1987 passed pin__OA’.~Sl.i*5.ol.83/1986 on the file of the Munsiff 81
.~ .J_MFC_’:,’ 5′.5riarapanahaI1i,…is. confirmed.
V0 the parties are referred to by their ranking in
0 if theffrial cQu’r£;…
gThe-essential facts leading to this appeal are that the
a”pVpel.1afnt herein, who is plaintiff in ().S.No.83/ 1986 filed the same
“‘-ljsleelgling possession of plaint schedule property, which is a
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residential house situated in Uchangidurga Village, Within the
registration district of Bellary and sub-registration district of
Harapanahalli. Plaint schedule property is not identifiedjllpbylvhouse
list number, kaneshumari number or survey nurzlipber.-._lt= is .s_liovvn
to be measuring East to West 30 cubits ‘and _N”om;. >9
cubits within the boundaries referredto
5. The plaintiff claims that hexto. of of
Uchangidurga Temple, the has llseveral immovable
properties spread over in of same village.
The plaint of Sy.No.41, which
belongs to ::«lfi’he’lplaintiff claims to be in
possession of cents of land in the said survey
number. Ac’cQ__rdi.ng”to.lllriinillieelhad built a cattle shed and a “kana”
(harvest field) adjacent to: that for use and enjoyment of his family.
in says the said portion is suit schedule property which
was the defendant for his use and occupation as
V his reside–ncev,’llon a condition that as and when requested, the
:”.v.4*~defeI?.clant””should vacate and return the same to the plaintiff.
Alccord*ing to plaintiff, defendant has entered into an agreement
him accepting that the plaint schedule property belongs to the
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plaintiff, that neither he nor any members of his family have any
right, title or interest to claim over the same. He..’would=_be in
possession of the same until he gets__–*anA'”*alter’1eati.Ve
accommodation. That he would vacatethe said”property’_’anyV’tirn¢”~..
when he is asked to vacate the same-.’by;’th.e’ plaintijff. ‘fi.C–3po’i?dingly””A ”
the plaintiff requested the defendant tloaizacaterbvithepvsuitschediile ‘
property for his use and enjoy4rn’ent–.Vfor the defendant
refused to do so. Hence Vthe:f’s_ui”t._ se:.;_c:king”re’coyery of possession.
6. In the said.::suit, a defence that he
belongs to earlier he was assisting
plaintiffsfather.fir1;:*Qondi.1jcting’ Uchangidurga temple, he
has beenxin of plaint schedule property,
which is a residential’ in a portion of Sy.No.41. He has
been possession. and enjoyment of the same in his individual
more than twenty–fiVe years. The said property now
standspin”l1i’s.,_na.rne in the municipal records. He has been paying
6 6 tax to”~the»–._’saz’n’e from the year 1966-67, his possession for the past
“years in his individual capacity is well within the
a.i(noVwledge of the plaintiff and as well as his father.
Mi
knowledge and also that of his father for past twenty–five years and
as such he has perfected his title over the plaint schedule property.
8. With this rival contention, the Trial “the
following issues:
1} Whether the plaintiff proves”rthat’rr.he.’ is ‘f
owner of suit property?
2} Whether the defendantfifnrovesl’thatihe the
owner of 0, cents 300 “cents in
Sy.No.41 (out'”of}pofilcihangidiurga.Village and
he constructed.iafhousigg said 0.15
cents’21:7¢.;Si?
3) “”” “\’fhejiher:1§:.;the”‘-defendant”proves that he got
0 constructed_a’*eat’:.le—shed in the area of 0.15
0′ cents,’ tbel–oAng:_ii;gpp”‘to the father of plaintiff —
Kenchappa for that Kenchappa?
Wl{1etherVthe’Vp1aintiff proves that he and his
=.__”*fath:e’r._delivered the possession of suit house
leave and licence to the defendant?
“~–V:p.W1iether the defendant proves that plaintiff
.0 Lby practising fraud upon him, has got order
of occupancy rights over the entire area of
0.30 cents in Sy.No.-41 {out of]?
M
6) Alternatively. whether the defendant proves
that he has perfected his title to the
house and open space by
possession?”
7) Whether the plaintiff 1:.-retest « that .;the’1e_ ,i_s’7*
cause of action to this suit? “3 if A T
8) Whether the plaintiff 4″proveAs” that_d’efe’fivdVar1t’Vj
agreeing to vacate the”-suit’»house,i cexectfited
Karar deed mi 1.5.5.c«1W9soi’-tqajat;effect?
9) Whether the plgaiiitiff ebntitled’f~:lfor’l”any of the
r<"?fi¢f'='»'r°««.c
10) proceeding?
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9. Matterevlrent into”tAria.1:::»Both the parties to the suit adduced
V evidehcge ‘pe.rsona1lyl_gaVnd through their Witnesses and relied upon
in’cdocunfienetsfiirisupport of their case. In the said proceedings, two
do’cui1*1ep1itsv,4iwhiclhvxirere filed by the plaintiff, are crucial to the suit.
The first ohe Ex.P–I which is copy of the order passed by the
I TI*ib’u1ia1 in proceedings No.40/1979 granting occupancy
plaintiff in respect of four items of property of
ti Ue.h.ar1gidu.rga Temple. In the said order, item No.4 is Sy.No.41.
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When the said EX.P–1 is looked into with bare eyes, pit.___cou1d be
noticed that the extent mentioned as against Sy.No.ell’ to
be altered. On close observation, it could be seen was
written against Sy.No.41 was 15 cent_s,~which h_ave’.bee1j1
tampered with and modified as 30 cents ” o:rert:vriting”‘fgives if
credence to the theory of defendan-t..thatA’the had “informed
the defendant that he applyi_n§p’~for’=_occ1ipaney only in
respect of 15 cents and he’-yvlolilltlpnn§1ELlte’ajniapplication on behalf of
plaintiffs yvife for- remaining::’vp far as another
document, llliiasfrelied before the Trial
Court is the ifkararu, which is admittedly
on a plain’ white’ the document is styled as kararu,
the contents lofthel ‘islrafofrelhor less similar to declaration. as if
defendant is thatvplaintiff is owner of plaint schedule
lI.3fopertyC,. neith”er_ defendant nor any member of his family has any
over any portion of said property and that
defendant in possession of the same with the permission
-plaintiffvand he would vacate and deliver the same to plaintiff.
if «aft-e_riseci,1ring alternative accommodation.
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9. Infact, in the Written Statement itself the defendant has
taken a specific plea that he has not entered into anyifagrepement
with the plaintiff accepting his ownership over “the
evidence he denies the signature on .Ex_._P~5_’asl’riotjV»hi’s .sign’ature.
The Trial Court while discussing this ::’:_5e.1j”i’s’onaII37″” 3
compared the same with tha=éjfV_o~f__the”‘adrnitted:vlplisigriature of*the
defendant on Vakalath, has conclusion
that there is lot of variation ‘signatures mentioned in
Ex.P-5 and adrnitteij siglviat-tirépfs Based on the said
Observation and circumstances of
the case the signature on Ex.P–~5 is
not proceeded to dismiss the claim.
However, seen that the admitted signatures
of the _ defendant and the? signatures at Ex.P~5 were sent to
Science Laboratory on an application filed by the parties
and a_ ‘reporth was secured. Though the said report expressed an
opinion signature on Ex.P–5 could be that of the
vf”‘«.._defendan”t,V phased on the detailed report where it refers to
._desc.ripti_ve variations observed by the experts in comparing the
..__”signat’ure, the First Appellate Court has come to the conclusion
“”1
that there is no reason to disbelieve the observation of the Trial
Court, which is further confirmed by the descriptive observation of
exhibits, wherein the hand writing expert tjh_,a”t._ the
signatures could be same, the First Appellate isA_l.g2i4ided~lTnore
by the opinion of the Trial Court and
circumstances of the case, has prodceedeyd :i§cfin§¢:;:at
EX.P–5 is not executed by the deferidanthami tii’¢4’V156s’§ess:§fi of
the defendant over pla.irit schedule; pmpertylis permissive
possession as claimed the defendant is in
possession of the.:;su_i,t capacity. With
this, the First C–o__urtVhéastdconfirmed the Judgment and
Decree of the”T’ri.al
10. On perusal’ of eritirelilrecord consisting of pleadings, oral
and t’1oc:1mentaryd”evid-ence led by both the parties, more
thedocuments, which are marked as Exs.P–i and P5
made by both the Courts in that behalf as
._ refermfd t’0’Sii~pAra, this Court strongly believes that there is no
to interfere with the well reasoned Judgment and
A yrbecreeitof both the Courts giving concurrent findings regarding the
l.rpo_s§session, enjoyment of defendant over plaint schedule property
“*1
in his individual capacity and refusing to accept the claim of the
plaintiff that the plaint schedule property belongs and
defendant is in permissive possession thereof, th’e”e.ritire5 dispute
between the parties herein is the one which thy
both the Courts looking into the preposition’: the
documentary and oral evidence of thepartiess:~*fie’refore.thereois
no scope for framing substantiaiitpi.Vquestioizdof:iau;1»$.;qdecideVthe
correctness or otherwise of both the
Courts. Hence this Court Vishot there is no scope
for framing any and further that there
is no infirrnitfi o:r”‘il:iegia1ity’-vifr,-rA’the”:AJu’r1grnent and Decree passed by
both the ” iriterference in this appeal.
Therefore, there is appeal and hence the same
does not _ require’ ‘ a-drriitted. Accordingly, the appeal is
dis’n1issed Witiiout. any order as to costs.
Sci/-‘
JUDGE