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2020 Supreme(Kar) 2197
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
P.N. Desai, J.
Zhareppa @ Zharnappa S/O Late Pabhana Since Deceased By His L.R.S And Ors. – Appellants
Versus
Sri Ismailsab S/O Modinsab and ors. – Respondents
Regular Second Appeal No.124 of 2006
Decided On : 03-11-2020
Advocate Appeared:
For the Petitioner:Sri Ameet Kumar Deshpande, Advocate
For the Respondent: Sri Sanjeevkumar C. Patil, Adv.
Headnote:
Land - Seeking relief of permanent injunction - Plaintiffs filed a suit in O.S. seeking relief of permanent injunction restraining defendants from interfering with peaceful possession and enjoyment of land - It is the contention of plaintiffs that, survey defendants are the owners of different lands - Defendant have encroached survey of village in their respective portions - It is their contention that, plaintiffs Nos.1 & 2 have encroached upon portion of survey to extent of acres as per boundaries shown - They are possession of same - Survey village was given to Forest Department for purpose of plantation etc. – Held, both Trial Court as well first appellate Court since have appreciated material placed before it in a proper perspective including documents marked from both sides and arrived at same conclusion with respect to plaintiffs’ failing to establish that they are in exclusive possession of suit property and that defendants are causing any interference in the said alleged possession by plaintiffs, court of the view that no substantial question of law remains to be considered in this appeal and finding of fact by both Courts below does not warrant any interference by this Court - As such, appeal stands dismissed at stage of admission, as devoid of merits - In view of the concurrent findings of both courts appeal is liable to be dismissed as no substantial question of law arise for consideration so as to admit this appeal - Regular Second Appeal is hereby dismissed.
JUDGMENT :
1. This appeal lays challenge to the Judgment and decree passed in R.A.No.208/2004 by Presiding Officer Fast Track Court III Bidar dated: 28-11-2005 wherein, the First Appellate Court has dismissed the appeal by confirming the judgment and decree passed by the trial Court in O.S.No.45/1984 dated: 09-07-2002.
2. Appellants were the plaintiffs and the respondents were the defendants before the trial court.
3. For the purpose of convenience and to avoid repetition of discussion, the parties are referred to in this Judgment as per their respective ranks before the Trial Court.
4. The plaintiffs filed a suit in O.S. No.45/1984 seeking relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the land bearing survey No.4 to the extent of 4 acres & 35 guntas. It is the contention of the plaintiffs that, survey No.4 situated at Shahpur village Tq: & Dist: Bidar measures 82 acres & 1 gunta. The defendants are the owners of different lands. The defendant Nos.1 to 6 and 8 have encroached survey No.4 of Shahapur village in their respective portions. It is their contention that, plaintiffs Nos.1 & 2 have encroached upon the portion of survey No.4 to the extent of 4 acres & 35 guntas as per the boundaries shown. Since 1975 and they are possession of the same. Survey No.4 of Shahpur village was given to the Forest Department for the purpose of plantation etc. But the Government revised it policy and the ‘C’ class Revenue lands were proposed to be taken back from Forest Department for being assigned to the landless persons, particularly SCs / STs.
It is further contention of the plaintiffs that, defendants No.1 to 8 colluding with defendant No.9 made attempt to dispossess them from their possession over the suit land. Hence the plaintiffs filed suit seeking relief of permanent injunction.
5. The defendant No.1 to 8 appeared before the trial court and filed written statement and denied the contents of the plaint averments. The defendants have contended that, plaintiffs have not produced any documents to show that, they are in possession of the suit lands. On the contrary the plaintiffs themselves are greedy and want to grab the suit lands by creating false records. The plaintiffs have manipulated the records in collusion with Revenue Inspector. The plaintiff No.1 is a Government servant and he is the owner of survey No.23/5 measuring 3 acres 13 guntas situated at Ganeshpur Tq: Zaheerabad Dist: Medak. The Asst. Commissioner after verifying the facts and records has withdrawn the proposal made for the plaintiffs.
The defendant No.9 filed written statement contending that, the plaintiffs by deceiving Revenue Inspector manipulated false panchnama which cannot establish any rights to the plaintiffs. Further the defendant No.9 denied the entire case of the plaintiffs. With these main grounds the defendants have prayed to dismiss the suit of the plaintiffs.
6. On the basis of the pleadings of the parties, the Trial Court framed the issues and additional issue.
7. On behalf of plaintiffs, plaintiff Nos.1 & 2 got examined themselves as PW.1 & PW.2 and got marked ten documents Exs.P.1 to P.10. Defendants have not produced any oral or documentary evidence.
8. The Trial Court after considering the evidence and material on record has dismissed the suit of the plaintiffs.
9. Being aggrieved by the said judgment, the plaintiffs have preferred an appeal in R.A.No.208/2004 before the Presiding Officer, Fast Track Court-III, Bidar. The First Appellate Court after hearing both sides dismissed the regular appeal by confirming the Judgment and decree passed by the trial court.
10. Being aggrieved by the said Judgment in R.A. No.208/2004 the appellants/plaintiffs have filed this Regular Second Appeal on the ground that, the Judgment and decree of both the courts are contrary to law, facts and evidence on record. Both the courts have not considered the documentary evidence placed by the appella
