High Court Karnataka High Court

M Shivarudrappa vs H B Basappa on 11 February, 2009

Karnataka High Court
M Shivarudrappa vs H B Basappa on 11 February, 2009
Author: K.N.Keshavanarayana
 

 '(BYSRI:PMAHESI~IA,ADV. FOR R1

in: THE HIGH COURT OF' KARNATAKA AT BAN(}A1;01~2§i 

DATED THIS THE mu DAY OF FEBRUARy52o(§9%F    

BEFORE   

THE HON'BLE MR. JUSTICE K.N. 

 

R.S.A. NO.  2o<i2A% % A    

BEIWEEN
1 MSHIVARUDRAPPA 5   

PRESIDENT,<SRI.VEER&BI'I£LDRAVSWAMY

SEVA  H£)RAYAI.A, 'BEGUIk:" HOBLI

GUNDLl.II?E'I'5{CHAMARAJA..\IAGAR"DIST.
   '   ' ...APPELLANT

   (Ema; isik  AISVQCATE )

1 H__BBASAPPA -.  
,,I€1AJ{)R, sf 9_.LA'rE PUTFANANJAPPA
 % .RyQ.;1<3RAYAI.;a%--v1LLAGE
V ' » I' BEGIIRHOBLX, GUNDLUPET
 V _ cmwikwmaew DIST.

2 X .__THE _SEC.RETARY
'HORAYIXLA GRAMA PANCHAYAT
 PANCLHAYAT HEAD QUARTER
~ : ,Ho1eAYALA, BEGUR HOBLI
 c;urmLU1=E'r TALUK,
" CHAMARAJAHAGAR mam.
 RESPONDENTS

12.2 W SERVED) ég

THIS RSA FILED U/S.10O CPC AGAINES1″ _
JUDGMENT AND DEGREE DATED 16.3.2002 PA_SSED’EN’- A
R.A.NO.96/2000 ON THE FILE OFAATHE c1’vILfij=JUD(3E
(SR.DN.), NANJANGUD, ALLOWING TH.E_ ;a.PPEAL_ AND
SE’I’TiNG ASIDE THE JUDGMENT “DATE-_D=
31.7.2000 PASSED IN o.s.No.294/9.2 ON THE, $11.3 <

THECIVIL JUDGE (JR.DN.) AND -GUND1;UP.ET..

THIS RSA comm} ON FdR.ir:EA1éINt.§THIe DAY,
THE comm' DELwEREDjmE»emL:,owINe:;~

a…………………..v
The in 0.8.

No.294 of Civil Judge (Jr.Dn.)
and respondent was the
plaintiff the was the 1″ defendant in

the sa:i:1.,s:uit4. ° ‘rhe..:stA:es§§ondent/plajnufi filed the suit

egaiiasj; mezaii respondent only for the relief of

restI’aming’ the defendant therein

with the plaintjfi”s peaceful possession

CI?.L.j0_”y;IIlCnt of the property mentioned in the

to the plaint, namely, the Backyard ( Hittalu)

‘ fee “s;ite.ated in Horayala Village, Begur Hobli, Gundlupet

“Taluk, Chamarajanagara District, measuring East-West:

-%»/

24% feet and North-South: 60 feet lying to the .

p1a.int;ifl”s house. It is the specific case of pg 3* htk3%C,Et;ti1*z*ht&eee&<oo

that he is the owner in possession of u

property and that the =

Authorities of the Village
manner of right, title o1f_ efiithchodule
property, are trying V his lawful
possession and ehjoymeht ' " éubsequemly,
the appellaxgt' as the 2'14
defendant' – £1 :3:-53*-'t Panchayat
represented by in the Trial Court

on service brtthsuitkeosinzxraztans and filed the Written

"stgteI:1:ent;}_ 'ease of the plaintifi's. It was

the suit property belongs to the

and that the plam' tiff is not in

possessio;:.1 had enjoyment of the same, as such, the

not entitled for the relief of injunction. It was

contended that the Court has no jurisdiction to

@

my the suit and the suit is not maintainable in the

of Section 304(2) and Section 133 (1) of .

Parishads, Taluk Panchayat, Samithis anti:

Panchayats and Nyaya Panchayaté Ga

impleadment of the 2114 defendanI;,'V._}i"e.V_

the written statcammat filed
the Mandal Panchayat, V _ V'

2) In t;ne_1igm parties,

the trial Court t1 xe

i) ‘$ihc.§ti;r§r.. proves that he is

” }a£vfu l and enjoyment of

5 .. LA tfié on the date of filing of
wit ? _____

the plaintifi proves that the
V. at Point ‘O’ was put-up by his
.. g_g’andfather Devappa ?

* Whether the defendants proves that
this Court has no jurisdiction to try

/1′

iv) Whether the plaintifi is entitled for’_t{1ie”;-‘..: if

relief sought for in the plaint ? ‘ V

V) To what order or T .. 3

3) During the

himself as PW.l and ‘mere xiéimcsees as
PWS. 2 and 3 . The J?”ar__1chayat was
examined as examined

himself as é.?§1d~ Ex.D1 to D5 were

4) sides, the Trial Court on

_- Qf as documentary evidence, by

31.07.2000 dismissed the suit of the

h§iemg% the plaintifi’ has failed to prove ms

and enjoyment of the schwule

L Being amazed by the said judgment and

passed by the trial Court, the p1a’mtifi’ em

§./

appeal before the Civil Judge (Sr.Dn.), e

RA. 1%()).96 of 2000.

The Lower Appeilate Court V’ »

sides and on :re~assessmcnt of oizjal :1, f

evidence, by judgment ciaterfi .

appeal with conditions. ::eu1’ee
the Lower Appellate points for

consideration. . V

1) Court erred in

‘ h(_)ldi_I1§’ p}amtm” is not entitled

_ ‘ ‘V fol’; injunction as sought

A V’ for? V
‘ VA the judgment and decree of
‘ A Court is erroneous and mat;
on facts and circumstances of

H “the case ?

(1

iii) What order?

6) The Lower Appellate Court held’ _

Eight: of the contents of the J

Panchayat, which are markedjas E:{s–.J? .’19

from the oral evidence of WVS. itis the
plaintiff has proved
possession of ififiixce the suit

was only for of title was

not in that View of the
matter anew: the principles of law laid

down by the Supreme Court that,

of 1mm’ oval:-le property

kélxfiend his possession even against the

who tries to dispossess him except in

of law, held that the pla:’nt1fl” is

. for a decree of permanent injunction aminst the

g

defendants from forcible disposscssion from the ~_4

schedule property. In that View of the matter, tlié st

Appellate Court allowed the appeaisnd ‘_ K V’

defendants not to interfef’?

possession and enjoyment of
till he is evicted from the ‘suit of

7) Being ‘ th€%%%Saidsi3adgnaent and
decree Court, the 2*”!

defendant is Second Appeal.

8) appeal was admitted for

of th’e.,.faL}uwix1g substantial questions of

‘t A the Lower Appellate Court is
2 .. in decreeing the suit despite
afindingthatthe plaintiflis not

the owner ?

t ii) Whether the plaintiff who fails to pmve
lawful possession cf the suit property

@

could be granted a decrm for

injunction ?

iii) Whether the Civil %
jurisdiction to try aj”i’n”att¢1′., ”
involves claim by or V _ ”

Panchayat in of” a
property in View of 2:2

9) Upon’ ‘ . V ” fippeal, the
P1aiBfifi’/R3$PU§ii1¢i:i€«’;’–_V Nog%I%.%:%hars% appeared % ttmough his

learned ‘noiice on respmxdcnt No.2-

Gram as suflicient and it has

_ V mmaixged

.V V” hgve heard” “”” the learmod counsel appear]. Hg

‘(Sn perused the records 9f the Courts

x I ’11) [as noticed above, the 2″‘ dcfendmlt, who

sabsequently implcaded before the max’ Court; did

(M

10

not file any independent written statement. He A4

to have adopted the written statement

Defendant No.1. Defendant No. 1–Mam1a1 & kk

its written statement had the

not the owner of the suit ‘setit
property belong to the the
plaintiff is not in Though the
trial Court of the Lower
Appellate said judgment, has
decreed directing the
defendarvizte’ riot’ with the pla’mt:ifi”s

possession in due process of law.

_ suit was for the Belief of

only. The piainee” did not seek

_decIe£;ati(;§21′ his title to the property. Therefore, in

‘ W H ‘T _a the Courts below were not required to go

“flee question of title of the parties. The only

.:: q-uestion which was required to be considered by the

11

Courts below was, whether the plaintiff was

possession and enjoyment of the suit

and whether the defendants K V’

possession and enjoyment of the 7f.

dismissed the suit mainly the
plaintiff has not prove’-:d . i.s’*1;he the
property and he is in the same.
However, the VVon”V§.te’–appreciaflon
of the finding of fact
that the V’ was in possession
and as on the date of the

suit and possession of the property.

” ‘E*.he of notices issued by: the Manda}

Exs.P19 and 20 indicate that the

in possession of the suit property.

” VV”The oral evidence of PW.1 to PW.3 clwrly

i.i.est3ia:§Vjlisi1es that the plaintiff’ has been in settled

‘ ‘fiossession of the schedule property for couple of ywrs

‘M

12

prior to the filing of the suit. It is new well-settled’

by catena of decisions of this Court and the

that, a person in settled possessio_n…of_ 2

protect and defend his possession 7-]

owner and the true owner take’

property in accordance by due
process of law. ‘plaintfif is ill
possession of es V’ of the suit,
and that the plaintifi’ is
termed Lower Appellate
Court, is justified in granting

the relief of Lpe1inane1ot_»’i:fi:i1ncfion to the limited extent

‘V enjoyment of the property shall

the defendants until the plainofi is

‘n1..(1fie’::pmcess of law. Defendant No.1, who

1 _ to-be the owner of the property, is at liberty to

action in accordance with law for getting

:’ vgooeeession of the property. The order of injunctzion

@

13

granted by the Lower Appellate Court is not an absolute

order against the defendants and the Defendant No;l[ieV

at liberty to initiate action in accordance _

eviction of the plamtifl from the l ll

Appellant] defendant No.2 has not:’eet+_u;§

in respectégflschedule pmpefiy,’«.g3pr has” oonteiideciee

he is in possession ofthe as lie”
adopted the written No.1, it is

clear that acoordtx1g__to lie the owner

of pro ” ‘ has no manner of
right, eee,’ ox? the schedule property.

Therefore, he” any grievance against the

the mwer Appellate Court. The

appellant has filed this appeal

_i11dieates..__~’tt3.a;t~”lie is trying to interfere with the plainmrs

l H H ‘T ‘possession and enjoyment of the suit schedule

though the appellant has no manner of right

ll ‘eve? the property. Therefore, the Lower Appellate Court

@

14

is right in decreeing the suit against boihw

defendants and granting relief to a Iimited 4′ H

14) No doubt, the plainti1f’edntex}&.ed x

in possession of schedule _

However, as noticed earlier, the S101′
permanent injunction title
was not required’ to i’ because,
Defendant No.51′ ‘iilcgiie . file schedule
pmperty V. Panchayat, . it
cannot Court has no jurisdiction
to exlmrmfi of permanent injunction

_ . end A

1’s)%ef’e«eeese¢een 2 11 of the Karnataka Panehayat Raj

_ Aet:,A as under:

n I “‘2.?..iv!:.:. Decision of claims to property by or

mm Panchayat – (1) In any

village to which a survey of lands other than
lands ofdixlaxily used fer the purpose of

w

15

agriculture only has been or shall
extended under any law for the time A’
force, where any property or any 03?:-. i

over any property is 0:931

of the Gram Panchayat, or byyaiiy
against the Gram PanCl1eyat”,A._it i
lawful for the Assistanti’C:ii1:missie§3e1″

enquiry of wklichdzie

to pass an order _

(2) y Afiy bf? OM61′
made uritieriiigjiéetibeeefion «{ 1) . appeal to

the the decision
of the –.i3e3j1i:,5(‘- Coxximiseioner shall be final.
7:3) – “sham be deemed to
have “notice of any enquiry or order
this if notice has been given in

‘ V’ ” the manner.

‘A does not create any bar on the Civil

~ entertaining a suit in respect of immovable

Vi lying within tl1Cj1.1I’iSdiC’l’.i0I1 of Gram Panchayat

3

16

16) In my opinion, as the plaintifi has

admitted that the schedule property is owned ~

Panchayat, Section 21 1 of Panchayat Reg ‘V

application to the suit filed for of

injunction by the plaintifl’, who

possession of the property.
interfere with the eituatcd
within its jurisdiction, accordance
with Law. If g’ of a property
compxaigasa’ by the autlaoriufos of
Gram due prooess of law,

the i11lA’£’1*’–‘e’qictL;’i’c’Jr1″1.:V of cannot be said to be

et1t,ertaiVi1V'”o vst1it for the relief of permanent.

his possession as long as he is not

adopting due of law. Therefore,

7{I peeeh01F1 me Lower Appellate com; is just1fiod’ in

the relief.

, as to

1’7

17) In the light of the above diecussions, _

not see any ermr in the judgment of the

Court decreeing the suit of the _p1a.i1_’ififl’f ” V’ V

extent. No prejudice is caused 77:.

account of the decree
Court. Therefom, in ifieriv 0f A1.’he.. ciiécussieii, the
substantial questions ef ietir, «Lthe time of
admission of mg’ mcordingly.
There are :10′ such, the appeal

is liable eiobe A

dismissed with no order

Sd/’-~
Judge