- 1 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100962 OF 2014 (INJ) BETWEEN: GOUDAPPA S/O. APPAYYA PATIL, AGED ABOUT 68 YEARS, OCC: AGRICULTURE, R/O: MODAGE VILLAGE, TQ AND DIST: BELAGAVI. …APPELLANT (BY SRI. SHREEVATSA SURESH HEGDE, ADVOCATE) AND: FAKIRAPPA B KALOJI, SINCE DECEASED BY HIS LRS., 1. SHRI. RAMESH S/O. FAKIRAPPA KALOJI, AGED ABOUT 45 YEARS, OCC: SERVICE. 2. SHRI. TUKARAM S/O. FAKIRAPPA KALOJI, AGED ABOUT 39 YEARS, OCC: AGRICULTURE, R/O: NEAR BUS STAND, MODAGE, BELAGAVI – 591 254. 3. SHRI. PRAKASH S/O. FAKIRAPPA KALOJI, AGED ABOUT 39 YEARS, OCC: AGRICULTURE, R/O: BASAVAN GALLI, MODAGA, BELAGAVI – 591 254. 4. ANANT S/O. YAMANAPPA TARIHAL, AGED ABOUT 62 YEARS, OCC: NIL, R/O: MODAGA, TQ AND DIST: BELAGAVI – 591 254. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 SHRI. LAXMAN S/O. BHIMAPPA TARIHAL, SINCE DECEASED BY HIS LRS., 5. SMT. SHANTAWWA W/O. LAXMAN HANABHAR @ TARIHAL, AGED ABOUT 70 YEARS, OCC: HOUSEWIFE, R/O: MODAGA VILLAGE, BELAGAVI – 591 254. 6. SHRI. VITHAL S/O. LAXMAN TARIHAL @ HANABAR, AGED ABOUT 45 YEARS, OCC: AGRICULTURE, R/O: MODAGE VILLAGE, BELAGAVI – 591 254. 7. SHRI. TUKARAM S/O. LAXMAN TARIHAL @ HANADAR, AGED ABOUT 41 YEARS, OCC: AGRICULTURE, R/O. MODAGE VILLAGE, BELAGAVI – 591 254. 8. SHRI. VITHAL S/O. BASAVANT GADAD, AGE: 45 YEARS, OCC: NIL, R/O. MODAGE VILLAGE, BELAGAVI – 591 254. 9. SHRI. MARUTI AVANEPPA ASTEKAR, AGED ABOUT 48 YEARS, OCC: NIL, R/O. MODAGA VILLAGE, BELAGAVI – 591 254. …RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, 1908 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 09.09.2014 PASSED IN R.A.NO.853/2009 BY THE PRESIDING OFFICER FAST TRACK COURT III, BELAGAVI DISMISSING THE APPEAL OF THE APPELLANT WHILE CONFIRMING THE JUDGMENT AND DECREE DATED 17.10.2005 PASSED IN O.S.NO.506/2000 PASSED BY I ADDITIONAL CIVIL - 3 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 JUDGE (JR.DN.) BELAGAVI AND FURTHER BE PLEASED TO ALLOW THIS APPEAL BY DECREEING THE SUIT OF THE APPELLANT. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. Present appeal is by the plaintiff aggrieved by the judgement and decree dated 17.10.2005 passed in O.S.No.506/2000 on the file of I Additional Civil Judge (Jr.Dn.) Belagavi (hereinafter referred to as ‘Trial Court’) by which the suit of the plaintiff for permanent injunction has been dismissed, which is confirmed by the judgement and order dated 09.09.2014 passed in R.A.No.853/2009 on the file of Presiding Officer, Fast Track Court-III, Belagavi (hereinafter referred to as ‘First Appellate Court’). 2. The above suit is filed by the plaintiff seeking relief of permanent injunction against the defendants claiming to be the owner of suit property being agricultural land bearing RS No.91/B measuring 3 acres 28 guntas situated at Modage village, Bagewadi Circle, Taluka and - 4 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 District Belagavi. No boundaries are given to the suit property as the same bears complete survey number. Plaintiff claims to have purchased the aforesaid suit property in terms of sale deed dated 18.01.1960 from its erstwhile owner Sri.Govind Sadashiv Bapat. It is contended that the plaintiff was cultivating the suit property along with one Channabasappa Shivappa Patil and the aforesaid Govind Sadashiv Bapat later sold the entire property of the plaintiff and to the said Channabasappa and as such the plaintiff has been possession in enjoyment of the said property. That even prior to he purchasing the suit land, the plaintiff was raising Paddy crop in some portion of the suit land and also sugarcane crops in the other portion of the suit land. He was also raising jowar crop, groundnut and cotton. He had planted four eucalyptus trees in the suit land. That he had raised loan from State Bank against security of the suit property which has been repaid. It is contented that the plaintiff has thus been exercised his right of ownership - 5 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 over the suit land. Things stood thus, defendants having no right, title and interest over the suit land, were illegally and unauthorisedly interfering with the lawful possession and enjoyment of the suit land by the plaintiff on the premise that portion of the suit land on its northern side is being used as burial ground. Plaintiff sought help from the police authorities, who declined to interfere as the matter is one of civil nature constraining the plaintiff to approach the court by filing the above suit. 3. Defendants in the written statement contended that the land being claimed by the plaintiff has been used as cremation/burial ground and is being used by the villagers for the said purpose since time immemorial and that mutation entries in this regard reflect the land in RS No.91/2B and 91/B is being used for burial/cremation ground much prior to 22.07.1944. Said entries in the records of rights have stood the test of time. They have never been challenged by anyone muchless by the vendor of the plaintiff, Sri.Sadashiv Bapat or his legal - 6 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 representatives or even the plaintiff who claims to have purchased the property in the year 1960. It is alleged that the vendor of the plaintiff did not have right, title and interest over the land in question as such he could not have sold the same in favour of the plaintiff. The records of right would indicate that the said land has been used as ‘Saravajanik Masanwat’. Contending so, sought for dismissal of the suit. 4. Based on the pleadings, the Trial Court framed the following issues: “1. Does the plaintiff proves that, he is in lawful possession of the suit property as on the date of the suit? 2. Does the plaintiff proves the interference by the defendants as alleged in the plaint? 3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? 4. What order or decree?” 5. Plaintiff examined himself as PW.1 and exhibited 16 documents which were marked as Ex.P.1 to Ex.P.16. Seven witnesses have been examined on behalf - 7 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 of defendants. The defendants have produced 127 documents which were marked as Ex.D.1 to Ex.D.127. The Trial Court on appreciation of evidence, found that the plaintiff had failed to prove possession over the suit property and accordingly dismissed the same. Aggrieved by the same, plaintiff preferred appeal in R.A.No.853/2009. The First Appellate Court framed the following points for its consideration: “1. Whether plaintiff proves that he is in actual and lawful possession of the suit land as on the date of suit? 2. Whether plaintiff substantiated that defendant caused illegal interference? 3. Whether plaintiff is entitled for the relief sought for? 4. Whether interference of this court in the impugned judgment and Decree is necessitated? 5. What Order?” 6. On re-appreciation of evidence, the First Appellate Court dismissed the appeal and confirmed the judgment and decree passed by the Trial Court. Aggrieved by the same, the plaintiff is before this Court. - 8 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 7. Sri.Sreevatsa Hegde, counsel for appellant/plaintiff submits that the Trial Court and the First Appellate Court erred in dismissing the suit of the plaintiff in the light of he possessing undisputed title over the property. When the plaintiff was able to establish his title over the property, the Trial Court and the First Appellate Court ought not to have disbelieved his case of he not being in possession of the property inasmuch as the possession would follow the title. Hence, he submits that substantial question of law would arise for consideration in the matter. 8. Heard. Perused the records. 9. Though the plaintiff claims to have purchased the property in terms of the sale deed dated 18.01.1960, the Trial Court has found that the revenue records from the year 1946 onwards continue to reflect the suit property being used for the purpose of burial ground/cremation ground. The Trial Court has also taken - 9 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 note of the deposition of PW.1, wherein he has admitted that in the year 1976 itself he had submitted an application to the Tahasildar along with one Channabasappa. He had also made an application to the Deputy Commissioner, however entries have not been changed. He has also admitted that he had given a complaint against the erroneous entries made by the Village Accountant and Revenue Inspector to the Tahasildar and the Deputy Commissioner in the year 1999 and 2000. He has also admitted that the Forest Department had planted trees in the said land and he has not given any notice to the Forest Department. 10. The Trial Court and the First Appellate Court have taken note of the fact that the revenue records, reflecting that the subject land as being used for burial ground (Shmashan land) for the year 1944 and has continued to be so even after the plaintiff purchasing the land from his vendor. - 10 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 11. Counsel for appellant has now furnished copies of RTC extracts for the year 1994, 1995, 1996. Perusal of the said document would reveal that though in Column No.9 the name of the plaintiff is shown as the owner, while at Column No.12 the land is shown to be used as ‘Shmashan Bhumi’. 12. It is settled position of law that for the purpose of grant of discretionary relief of permanent injunction, consideration of issue with regard to title is only incidental. What is required to be taken note of is factum of lawful possession as on the date of filing of the suit. It is equally settled principle of law that in the case of open land, possession has to be established with reference to the revenue records. In the instant case, as taken note of by the Trial Court, in the revenue records the subject land is consistently shown to be used as ‘Shmashan Bhumi’, from the year 1944 onwards though the plaintiff claims to have purchased the said property in the year 1960. Even from the copies of RTC extracts now produced by the counsel - 11 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 for the plaintiff, in Column No.12 land is shown to be used as ‘Shmashan Bhumi’. There appears to be a cloud with respect to the right, title and possession of the plaintiff in the matter. The first appellate court has even taken note of the very maintainability of the suit for bare injunction under the fact and circumstances of the matter which cannot be found fault with. 13. In the light of the judgement of the Hon’ble Apex Court in the case of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others reported in AIR 2008 SC 2033 and in the light of specific denial made by the defendants in their written statement with regard to the right, title, interest and possession of the plaintiff, this Court do not see any irregularity or illegality committed by the Trial Court and first appellate court in dismissing the suit. No substantial question of law would arise for consideration. - 12 - HC-KAR NC: 2025:KHC-D:7352 RSA No. 100962 of 2014 14. Reserving liberty to the plaintiff to seek such appropriate substantial remedy as may be available under law, the appeal is disposed of. Sd/- (M.G.S. KAMAL) JUDGE SH CT-ASC List No.: 1 Sl No.: 23