High Court Karnataka High Court

M Prakash vs N Kumara on 23 September, 2010

Karnataka High Court
M Prakash vs N Kumara on 23 September, 2010
Author: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS ON THE 23"" DAY OF' SEPTEMBER 2010

BEFORE

THE HONBLE MR. JUSTICE ANAND BYRAREi5Di<'i'e:-%----.: f r» 

REGULAR SECOND APPEAL NC, 1220 _()"F' 2''(m8-f - _  1'

BETWEEN:

M.Prakash.

Aged about 48 years.
S/o.ManCheg0wda G.S.,
R/o.Chir1aI1ayakanahal1y,

I{.Shettiha1ly Hobli,   .
Srirangapatna 'I'aiuk--5.'_7 1438,.  _  '
Mandya District. n f

(By Sri.P.S.Manji1hié'l§h::Ad_jI..} Q  

AND:

N.Kumara,  V. ._
Aged about-v38 years,' " "
5/9-D-Na§arajc§0'Vda;"  ..... .. -

:'R/ 0 .'Chir1anzijf'akVe¢nahally,

K;she:fiha11yu H0i;i.1i}"~ ._
Srira.ngapa'tna«.Ta1uk3_57 1438.
" " 7 '  * : Respondent

 RSA"iil_e1d u/53.100 of CPC against the judgement es: decree

.:  3~O-..1_0-Oi'? passed in R.A.No.17/07 on the file of the Pr]. Civil
 J.udge',_(S':'.Dn.} (SI JlVIFC., Srirangapatna. dismissing the appeal

arid Confirming the jL1dgemer;t and decree Dtd:22--O}--O7 passed in

.   65705 on the file of the Pri.C1'vil Judge, (Jr.Dn}, Srirangapat.r1a.

This appeal coming on for Admission this day, the court

all ' A _ A delivered the following:

5



Ix)

JUDGMENT

Heard the learned counsel for the appellant. it

2. The appellant was the defendant before

court, in a suit for injunction. The clairniof the, «plai.11tiff7was’

that she had purchased the property”rnie’asuririgL’70

100 yards and that defendant wasr.interfering”wi”tha”t:hVe”samelV

The suit having been cor’it~e_sted,””ittvvas-._pcontended by the
defendant that he was clainiinglthe in terms of
Ex.D1 which measures that the Janjar

number would iVnd;ic;ate’.properties overlap, because

the plaintiff ‘s_ 50 yards X 100 yards and

that the plaintiff was”illlegallypclaiming property covered under

EXTD l, wihivcfi hadla Janjar number.

” court on a close examination of the

‘AAVfi’espective docxirnlents has arrived at a finding of fact that

Vread’vvvith the corroborative evidence in Ex.P2 to P5, it

v_Vas’~~e’s’tablished that the sale deed of the plaintiff discloses

if suit property measured 70 yards X 100 yards and

it further in so far as the claim set up by the defendant in terms

é

of Ex.I}1 sale deed, did not indicate any Janjar number in

respect of the property claimed by the defendant there

was no material evidence to show as to when s1__;eh at

number was assigned and the bOuI_}.d3I’_i’€S lp’i”o’_perty’°’

described in Ex.D1 was totally alien

in EXP}. Accordingly, it was

The same having been challenge.’ in, appfieai, ,the lower
ss . ‘ ” -. .

appellate court has affirmed fact. It is that

which is now challenged

4. T of law are framed

in the appeal memo;-» .’

(1) Whetnef . below were right in

V’ [accepting the plaintiff has purchased the

V sjxchedulellllllproperty measuring East West

V’ it “and North South 100 yards from

on 12.11.1969 contrary to the

V recitals in the sale deed dated 12.11.1969
it I«:x;i>1?

j’..lWhether the courts below were right in

Q’ accepting the contention of the plaintiff that

defendant has encroacheci upon plaintiff

property in the absenee of any evidence to

K

show as to which portion of the suit schediile

roperty is encroached uplon by the d€f€DdE1I1.TQ..”.._l.”-V

5. he learned counsel for t e appellant WQ.1.1_1_t’i.Vse.epk”to

emphasize that EXP} discloses that the property

50 yards X 100 yards and not 70 yargjlsmxll 1’O.vO~.yardls::’

was a clear error committed by the courts..below1;i.n”acce.ptinygV.L

the plaintiffs case. However, _peruVsa1l’ot”‘ original
document, it is found thatthe pro;ij:e’rty.y.lii1deed rneasured 70
yards X 100 yards, as foundpbiy ‘l§elo9w.

6. :vofTi’act.–cannot be set at naught by
this Court. Th_e’re is noZ-ls’ob’stai1tial question of law that arises
for consideration.

appeal is rejected.

Sd/~
Iudge