Advocates:
['SHIVANAND PATIL', '', 'CHAITANYAKUMAR', 'NOC NOT OBTAINED', 'amp; DEVANAND H DESAI', 'R S SIDHAPURKAR', '']

IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 22^ND DAY OF MARCH, 2021

BEFORE

THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

R.S.A.NO.207/2006 (INJ)

Between:

Sharanayya S/o Karabasayya Nandikol

Aged about 40 years, Occ : Agriculture,

R/o Hipparga (SN), Tq : Jewargi,

Dist : Gulbarga.

… Appellant

(By Sri Shivanand Patil, Advocate)

And:

Khaja Patil S/o Mukthumsab Naikodi,

Aged about 45 years, Occ : Agriculture,

R/o Hipparga (SN), Tq : Jewargi,

Dist : Gulbarga.

… Respondent

(By Sri R.S.Sidhapurkar, Advocate)

This RSA is filed under Section 100 of the Code of Civil

Procedure praying to allow the above appeal and to set aside

the judgment and decree dated 20.08.2005 passed in

R.A.No.181/2004 by the court of the III Addl. Civil Judge

(Sr.Dn.), Gulbarga and consequently be pleased to confirm

the judgment and decree dated 20.02.1999 passed by the

court of the Civil Judge (Jr.Dn.) and JMFC, Jewargi in

O.S.No.95/1995.

2

This appeal coming on for further hearing this day, the

Court delivered the following:

JUDGMENT

The present regular second appeal is filed by the

plaintiff challenging the judgment and decree dated

20.10.2005 passed in R.A.No.181/2004 by the court of

the III Addl. Civil Judge (Sr.Dn), Gulbarga (hereinafter

referred to as 'First Appellate Court', for brevity) which

reversed the judgment and decree dated 20.02.1999

passed in O.S.No.95/1995 by the court of the Civil

Judge (Jr.Dn.) and JMFC, Jewargi (hereinafter referred

to as 'Trial Court', for brevity).

2.

Brief facts of

the

case

are that

the

appellant/plaintiff has filed a suit for perpetual

injunction against the respondent/defendant over the

suit property on the ground that the appellant is the

owner and possessor of the suit property which is

allotted by the Tahasildar, Jewargi under Aashraya

Yojana Scheme on 17.11.1992 and the Tahasildar,

3

Jewargi has issued the Hakkupathra in favour of

appellant/plaintiff and also handed over possession of

the suit property to the appellant/plaintiff and also his

name was mutated in the revenue documents and also

issued katha extract in the name of appellant/plaintiff

and when this being the fact the defendant has started

interference over the possession of the appellant/

plaintiff. Therefore, the plaintiff was constrained to file a

suit for perpetual injunction against respondent/

defendant.

3.

The Trial Court has decreed the suit of the

appellant/plaintiff and granted perpetual injunction

restraining the defendant not to interfere with the

possession of the appellant/plaintiff. Being aggrieved by

the same, the defendant/respondent has preferred

regular appeal in R.A.No.181/2004 before the First

Appellate Court and the First Appellate Court has

reversed the judgment and decree passed by the Trial

Court and set aside the judgment and decree of the

4

Trial Court. Being aggrieved by setting aside the

judgment and decree passed by the Trial Court, the

plaintiff/appellant has preferred the present regular

second appeal.

4.

Upon hearing the appeal on merits this court

on 27.05..2009 has farmed the following substantial

questions of law which is as follows :

"Whether in the facts and circumstances

of the case, the Appellate Court was justified

in reversing the judgment and decree passed

by the Trial Court holding that the plaintiff

has failed to establish his possession ?"

5.

Here

both

plaintiff and

defendant

are

claiming their possession based on Ex.P.2-Hakkupathra

and

Ex.D1-Hakkupathra.

Ex.P.2-Hakkupathra

was

given in favour of plaintiff and Ex.D1-Hakkupathra is

given in favour of defendant. The Trial Court based on

the documentary evidences came to the conclusion that

on Ex.D1-Hakkupathra, there is over writing in

mentioning survey number, plot number and moreover

5

there are no boundaries mentioned. Whereas in Ex.P.2-

Hakkupathra given to the plaintiff, boundaries are

mentioned and further by forming opinion t