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2020 Supreme(Kar) 1819
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
S.R.KRISHNA KUMAR, J.
BABU RAJENDRA S/O NAGENDRA ASPALLI - Appellant
Vs.
BASALINGAPPA S/O BASSANAGOUDA PATIL - Respondent
R.F.A.NO.793 OF 2007
Decided On : 21-04-2020
For the Appellant :SRI. SRIVATSA, SENIOR COUNSEL APPEARING FOR SRI. V.K.NAYAK, ADVOCATE
For the Respondent:SRI. A.VIJAYKUMAR, ADVOCATE
Headnote:
Code of Civil Procedure, 1908 – Order 6 Rule 17 – Permanent Injunction – Suit for declaration – Unsuccessful plaintiff in O.S. before trial court has preferred this appeal against dismissal of his suit for declaration, permanent injunction and other reliefs in respect of suit schedule immovable property – Property as described in plaint is House Suit houses as per sketch annexed to plaint – Whether appellant-plaintiff proves that he was in lawful possession of suit schedule property as on date of suit – Whether applications I.A.4/2008 and I.A.5/2008 filed by appellant-plaintiff deserve to be allowed – Whether impugned judgment and decree passed by trial court is correct and proper – Held, It was incumbent upon plaintiff to substantiate his claim of lawful title in order to succeed in his claim of lawful possession. – It is also relevant to state that merely because plea of title and relief of declaration has been given up, it does not absolve plaintiff of his obligation to establish his lawful possession based on lawful title as contended by him. – Viewed from this angle also, in absence of any material to establish plaintiff’s lawful title over suit schedule property, trial court was fully justified in coming to conclusion that plaintiff was not in lawful possession of suit schedule property as on date of filing of suit – Court is of view that plaintiff has failed to establish that he was in lawful possession and enjoyment of suit schedule property – Mandatory requirements of Order 41 Rule 27 CPC have not been complied with or fulfilled by plaintiff in application. – Neither valid nor satisfactory explanation has been furnished by plaintiff to explain long and inordinate delay in producing said documents. – It is therefore clear that said application having been filed belatedly filed by plaintiff, same is devoid of merit and is liable to be rejected on this ground alone. – Court is of considered opinion that I.A.5/2008 also lacks merit and same is hereby dismissed. – Court is of considered opinion that impugned judgment and decree passed by trial court does not suffer from any illegality or infirmity nor can same be said to be perverse or capricious so as to warrant interference by this Court in present appeal – Court do not find any merit in appeal – Appeal Dismissed
JUDGMENT :
The unsuccessful plaintiff in O.S.No.17/2002 before the trial court has preferred this appeal against the dismissal of his suit for declaration, permanent injunction and other reliefs in respect of the suit schedule immovable property. The property as described in the plaint is House bearing No.3-115, Station Saidapur, coming under Saidapur Gram Panchayath, Yadgiri Taluk, totally measuring 427 ft. North-South and 515 ft. East to West comprising of a residential building, office room cum godown, well and factory premises, bounded on East by: PWD Road, West by: Public way, North by: Public way and South by: Suit houses as per the sketch annexed to the plaint.
2. For the purpose of convenience, the parties are referred to by their respective ranks before the trial court.
3. The appellant-plaintiff filed the instant suit interalia contending that the aforesaid suit schedule property was built by his fore father for an oil mill and thereafter, the plaintiff’s ancestors used the premises to run the said oil mill and the adjoining building for office and other purposes. It was contended that the said oil mill being run under the name and style ‘Jagdishchandra Trading Co.,’ was approved by the Excise department on 26.10.1964. So also, the Chief Inspector of Factories approved the existence and a running of factory in the said premises on 15.11.1960. It was contended that the plaintiff was residing in the premises meant for office and other use and the oil mill building being in a dilapidated condition was not functioning.
4. The plaintiff contended that he was in peaceful possession and enjoyment of the suit schedule property as its absolute owner and got his name entered in the gram panchayath records by a resolution after the death of his father Naganna s/o Banappa Aspali and was paying property tax regularly.
5. Having specifically pleaded ownership and lawful possession the over the suit schedule property, the plaintiff contended that the defendants without having any right or interest over the property, attempted to interfere with his possession which resulted in the plaintiff filing the suit for declaration of title and for permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit schedule property.
6. In the first instance, the suit was filed only against the 1st defendant – Basalingappa. Subsequently, defendants 2 to 5 were impleaded as additional defendants. Incidentally, it is relevant to mention that defendants 2 to 5 are purchasers of portions of the suit schedule property from the 1st defendant. It is also relevant to state that defendants 1 to 3 filed their separate written statements and contested the suit whereas the defendants 4 and 5 did not contest the suit.
7. In his written statement, the 1st defendant specifically denied the plaint allegations including the allegations with regard to the plaintiff’s alleged title and possession over the suit schedule property. It was contended that the suit of the plaintiff was liable to be dismissed since the plaintiff neither had title or possession over the property particularly when the source of title and possession had not been pleaded or substantiated by the plaintiff. So also, the 1st defendant specifically denied the identity, location and measurements and boundaries and schedule of the suit schedule property as described by the plaintiff. In this context, the 1st defendant specifically contended that the property claimed by the plaintiff was actually a survey number measuring 3 acres which was wrongly and erroneously described by the plaintiff by giving wrong measurements. It was contended that the survey number of the suit schedule property was Sy.No.52 of Saidapur village of which the 1st defendant was the owner in actual and physical possession and enjoyment from the time of his ancestors and that he had succeeded to the same from his mother who had in turn acquired it from her mother.
8. The 1st defendant conte
