N THE HIGH COURT OF KARNATAKA AT BANGALORE B E F O R E THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA R.S.A. NO.1710 OF 2005

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1 1 N THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 30 th DAY OF OCTOBER, 2012 B E F O R E THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA R.S.A. NO.1710 OF 2005 BETWEEN: 1. Subappa, 1(a) Prabhuswamy, S/o Late Subbappa Age: 49 years, 1(b) Shivakumaraswamy, S/o Subbappa, Age: 39 years, 1(c) Nagendrappa, S/o Subappa, Age: 36 years, All are R/o. Ankahalli, Gundlupet Taluk, 1(d) Smt. Nagalambike, W/o Parasivappa, Age: 42 years, R/o Depapura Village, Gundlupet Taluk Smt. Gowramma, W/o Subbappa, Aged about 65 years, R/o Ankahalli Village, Hongalli Hobli, Gundlupet Taluk (By Sri. M. Shivappa, Adv.) Appellants

2 2 AND: Nagamallappa, S/o P. Madappa, Aged about 55 years, R/o Kodasoge Village, Terkanambi Hobli, Gundlupet Taluk (By Sri.P. Mahesha, Adv. )... Respondent This RSA is filed under section 100 of CPC against the Judgement and Decree dated passed in R.A. No.10/2003 on the file of the Civil Judge (Sr.Dn.) & C.J.M., Chamarajanagar, allowing the appeal and setting aside the Judgement and Decree dated passed in OS. No.121/2000 on the file of the Civil Judge (Jr.Dn.) & J.M.F.C., Gundlupet. This appeal coming on for Hearing, this day, the court delivered the following: J U D G M E N T The defendants in O.S. No.121/2000 aggrieved by the judgment and decree of the Lower Appellate Court in allowing R.A. No.10/2003 filed by the plaintiff and setting aside the judgment and decree of the Trial Court wherein it has dismissed the suit and decreeing the suit of the plaintiff by granting permanent injunction against the defendants restraining them from interfering with the possession and enjoyment of the

3 3 plaintiff over the suit schedule property have preferred this second appeal. 2. Heard the learned Counsel appearing for the parties and perused the judgment and decree of the Courts below including the records. 3. For the sake of convenience parties are referred to as per their ranking in the suit before the trial Court. 4. The case of the plaintiff in brief is as under: The plaintiff is the absolute owner in possession and enjoyment of the land bearing Sy. No. 136 of Kodasoge village having purchased the same under registered sale deed dated At the time of purchase of the suit land there was a water kharab to an extent of 11 guntas on the Western side of the suit land afterwards he has got the same converted into agricultural land, as such he cultivated entire extent of 5 acres 7 guntas without any interference from any body. He has submitted that the defendants have no

4 4 right, title or interest over the suit schedule lands and they are having lands towards northern side of the suit land are trying to interfere with the possession and on the defendants with goonda elements attempted to interfere with the plaintiff s peaceful possession and enjoyment of the suit land hence the plaintiff has brought the suit for the relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. 5. The defend0ants resisted the suit by filing written statement inter alia contending that the plaintiff is not in possession and enjoyment of full extent of 5 acres 7 guntas of land mentioned in the suit schedule, as such the suit filed for permanent injunction is not maintainable and liable to be dismissed with costs. The land in Sy. No.136 of Kodasoge village totally measures 5 acres and 7 guntas as per revenue records. The plaintiff s vendor has no right to sell 5 acres 7 guntas of land since 0-11 guntas of land has been left as kharab

5 5 land towards Western side of the land which is used as pathway and cart way from time immemorial. The defendants are having land on the Northern side of the suit land. The 2 nd defendant is the owner of land bearing Sy. No.137/2 measuring 2 acres and 34 guntas. The first defendant is the owner of land bearing Sy. No.138/2 measuring 1 acre 14 guntas. The defendants are permanent residents of Ankahally Village and they used to go to their lands through the Ankahally Kodasoge road up to the lands of plaintiff. They used to go to t heir lands on the Western side of the suit land which is left as cart road which measures 15 feet East-West about 700 feet South-North. Even the owners of the lands bearing Sy. No. 140, 139 are also using the said pathway and cart way from time immemorial. Earlier the defendants vendors were also using the said cart way existing in between the land of Sy. No.140 and 36. An extent of Kharab land measuring 0-11 guntas is left for the purpose of cart road only which is the part and parcel of the plaintiff s land bearing Sy. No All these persons are using

6 6 the cart way existing in Sy. No 136 of Kodasoge Village to reach their lands and therefore the plaintiff cannot restrain the use of the said cart road by means of permanent injunction and hence they prayed for dismissal of the suit. 6. On the basis of pleadings of the parties the trial Court has framed the following issues: 1) Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit schedule property? 2) Whether the plaintiff further proves the interference of the defendants? 3) Whether the plaintiff is entitled for the relief? 4) What order or decree? The plaintiff in order to prove his case has examined himself as PW 1 and three more witness as PWs 2 to 4 and has produced six documents which were marked as Ex. P 1 to P 6. On the other hand defendants have examined the first defendant as DW 1 and two other

7 7 witnesses as DWs 2 and 3 and have produced 19 documents which were marked as Ex. D 1 to D The trial Court upon consideration of oral and documentary evidence on record by answering issue Nos. 1 and 3 in the negative holding that the plaintiff has failed to prove that he is in lawful possession and enjoyment of the suit schedule property and has further failed to prove that the defendants are interfering with his said possession and enjoyment has dismissed the suit. 8. The plaintiff aggrieved by the said judgment and decree of the trial Court has preferred an appeal in R.A. No.10/2003 before the lower Appellate Court. The lower Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff by granting permanent injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. It is against this judgment and decree of the

8 8 lower Appellate Court the defendants have preferred this second appeal. 9. This Court on has framed the following substantial question of law: Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court, when the trial Court has recorded findings on the admission of the Respondent/Plaintiff that defendants have taken possession of Kharab land forcibly and using it as cart-tract and when Respondent/Plaintiff ceased to be the owner in possession after the kharab has been deducted from the Sy.No.136 and reserved for public use for flowing of water? 10. Learned Counsel appearing for the defendants/ appellants herein submits, the judgment and decree passed by the lower Appellate Court is not based on proper appreciation of oral and documentary evidence on record. She submits that 11 guntas of A kharab land mentioned in Sy. No. 136 was a pathway and cart way through which defendants, owners of adjacent survey numbers and neighbouring villagers have to reach their respective lands. The ADLR examined by

9 9 the plaintiff as PW 4 in his evidence has stated that 11 guntas of kharab land in Sy. No.136 is meant for flow of water towards Basavanakatte Tank. She submits, by virtue of permanent injunction granted by the lower Appellate Court the plaintiff is restraining the defendants from using the said pathway and cart road which is the only way for them to reach their lands, she submits the plaintiff examined as PW 1 in his cross examination has admitted that the defendants have forcefully taken possession of this kharab land measuring 0-11 guntas for the purpose of road. The trial Court considering the said admission of the plaintiff has rightly dismissed his suit. The lower Appellate Court without considering this material aspect of the matter has committed an error in decreeing the suit of the plaintiff by granting permanent injunction therefore she prays for allowing the appeal by answering the substantial question of law framed in favour of the appellants.

10 Per contra, the learned Counsel for the plaintiff/respondent herein submits the suit survey number 136 in all measures 5 acres 07 guntas including 11 guntas kharab land, but after the plaintiff purchased the suit land he has got the kharab land converted into agricultural purpose and he has been cultivating the same. The defendants taking advantage of mentioning of 0-11 guntas of land in the suit survey number as kharab land are trying to interfere with the possession and enjoyment of the plaintiff over suit schedule property. He submits the lower Appellate Court considering the fact that the plaintiff has been using the entire suit schedule property as cultivable land has rightly allowed the appeal and decreed the suit by granting permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit land by the plaintiff and there is no illegality or infirmity in the said judgment and decree of the lower Appellate Court and he prays for dismissal of the appeal by answering the substantial question of law framed against the appellants.

11 There is no dispute between the parties that the suit Sy. No. 136 in all measures 5 acres 7 guntas including 0-11 guntas of kharab land. Even in the sale deed Ex. P 1 through which the plaintiff has purchased the suit land 0-11 guntas of land in the suit survey number is shown as kharab land. Further Ex. P 3 RTC for the year discloses that out of total extent of 5 acres 07 guntas in the suit survey number 136 there is kharab land to an extent of 0-11 guntas. Even according to the case of the plaintiff this 0-11 guntas of kharab land is reserved for flow of water towards Basavankatte Tank. The learned Counsel for the plaintiff fairly submits the plaintiff never obstructed for free flow of water through this 11 guntas of kharab land towards Basavankatte Tank. He submits that the said extent of land is reserved for the purpose of flow of water towards Basavankatte Tank and it is not reserved for any other purpose and the contentions of the defendants that they are using it as pathway or cart road is false and they have not placed any material to that effect. PW 4, ADLR in his report has not stated

12 12 anything about the existence of pathway or cart road in Sy. No.136. But, he has stated it has been reserved for flow of water towards Basavankatte Tank and he was not re-examined by the plaintiff in this regard. The plaintiff himself admits in his evidence that 0-11 guntas of kharab land is meant for flow of water. The plaintiff in his cross examination has stated that the defendants have forcibly taken possession of this kharab land for the purpose of road. The trial Court considering this admission on the part of the plaintiff has rightly dismissed the suit brought for the entire extent of 5 acres 7 guntas including 11 guntas of kharab land which is meant for flow of water towards Basavankatte Tank. Learned Counsel for the plaintiff submits the said admission of the plaintiff has to be understood in a way that the defendants are forcibly using 0-11 guntas of kharab land as pathway and thereby he submits it is the defendants who are illegally obstructing free flow of water through this 0-11 kharab land towards Basavana Katte Tank and not the plaintiff. The lower Appellate Court though has rightly observed that as the suit of

13 13 the plaintiff is for bear injunction and the defendants cannot seek relief claiming 0-11 guntas of A kharab land as public pathway and it is open for them to file an appropriate suit in that regard, but it has committed an error in allowing the appeal of the plaintiff by granting permanent injunction in respect of the entire extent of suit land. The plaintiff by virtue of the said judgment and decree of the lower Appellate Court has every chances of obstructing free flow of water through this kharab land towards Basavankatte Tank. The defendants taking advantage of the stray admission of the plaintiff examined as PW 1 that the defendants have forcibly taken possession of 0-11 guntas of kharab land for the purpose of road are trying to contend that it should be treated as path way/cart road and they should be permitted to make use of the same as pathway against the purpose for which it is reserved. On the other hand the material available on record particularly the revenue documents and the evidence of ADLR examined as PW 4 would go to show that 0-11

14 14 guntas of kharab land is reserved for flow of water towards Basavankatte Tank. 13. At this stage the learned Counsel for the plaintiff fairly submits that the plaintiff would not change the nature of 11 guntas of kharab land and he would continue to maintain the same for free flow of water towards Basavankatte Tank. In response to his submission the learned Counsel appearing for the appellants prays for disposal of the appeal with the above observations. Hence, the following order: 14. The appeal is allowed. The judgment and decree of the lower Appellate Court dated passed in R.A. No.10/2003 on the file of the Civil Judge (Sr.Dn.) & C.J.M., Chamarajanagar is modified: a) Suit of the plaintiff is decreed and permanent injunction is granted restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit schedule land excluding 0-11 guntas of kharab land in the suit survey No. 136 of Kodasoge Village which is reserved for free flow of water towards Basavankatte Tank.

15 15 b) By virtue of this judgment and decree, the plaintiff should not cause any obstruction for free flow of water through this 0-11 guntas kharab land in the suit survey number of 136 of Kodasoge Village towards Basvanakatte Tank. c). It is made clear that in the event of plaintiff causing any obstruction or preventing free flow of water through this 0-11 guntas of kharab land in Sy. No. 136 of Kodasoge Village towards Basavankatte Tank it is always open for the defendants or any other person aggrieved by the said act of the plaintiff to take appropriate steps against the plaintiff either by bringing the same to the notice of concerned Revenue Authorities or by filing an appropriate suit before a Competent Civil Court and seek necessary relief. answered accordingly. Substantial question of law framed is No order as to costs. Vb/-* Ct-Hmr Sd/- JUDGE