1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2 ND DAY OF MARCH, 2017 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL RSA No.2433/2006(INJ) BETWEEN: 1. Yashodamma W/o late Seenappasetty Aged about 50 years As per Memo the legal heirs of 1 st Appellant are appellant 2 to 4, who are already on record. amended as per order dated 16.10.2009. 2. Jayaram S/o late Seenappasetty Aged about 40 years 3. Venkatachala S/o late Seenappasetty Aged about 40 years R/o. Holalagunda Village Amruthur Hobli- 572 111 Kunigal Taluk 4. Chandra S/o late Seenappasetty Aged about 36 years All are residents of 2 Holalagunda village 572 111 Kunigal Taluk Tumkur District ..Appellants (By Sri K.G. Sadashivaiah, Adv., For S & S Associates) AND: 1. Sharadamma W/o Chowdaiahsetty Aged about 72 years As per memo dated 5.10.2009 The legal heirs are respondents 2 to 11 are already on record as Per order dated 16.10.2009 2. H.C. Nagarajasetty S/o Chowdaiahsetty Aged about 60 years Respondents 1 & 2 are R/of Holalagunda, Amruthur Hobli 572 111 Kunigal Taluk 3. H.C. Ramaiahsetty S/o Chowdaiahsetty Aged about 58 years Gramasevakas, Office of the CSDSK, Kanankapura Town Bangalore District 562 117 4. Jayasheelamma D/o Chowdaiahsetty 3 Aged about 56 years Ramanathapura Bangalore District 573133 5. H.C. Savithramma D/o Chowdaiahsetty Aged about 54 years Herur,Kunigal Taluk 572 130 6. Saraswathi D/o Chowdaiahsetty Aged about 52 years Yalagalavadi,Hutridurga Hobli Kunigal Taluk 572 130 7. Venkatachalasetty S/o Chowdaiahsetty Dommalur Bangalur, District 560 071 Respondents 3 to 7 deleted by filing a memo as per the order of Court dated 30.01.2009 8. H.C. Venkatrama S/o Chowdaiahsetty Aged about 26 years Holalagudda 572 111 Kunigal Taluk 9. Krishnasetty S/o Chowdaiahsetty Aged about 24 years Holalgudda 572 111 Kunigal Taluk 4 10. Geethamani D/o Chowdaiahsetty Aged about 22 years 1 st Main Road, Veerabhadra Garden Pipeline, Malleshwaram Bangalore 560 003 11. Sudhamani D/o Chowdaiahsetty Aged about 20 years Siddappa Compound Muneswara Block, Palace Guttahalli Bangalore 560 003. Respondents 10 and 11 are deleted as per memo the order of court dt. 30.01.2009 12. K. Mayanna S/o Kannegowda Aged about 55 years Residing at Hosahalli Amruthur Hobli Kunigal Taluk 572 111 Amended the cause title as per the order of Court dt. 30.01.2009 12(1) Laksmamma W/o late K .Mayanna 65 yrs 12(2) Smt. Mayamma D/o late K. Mayanna 45 yrs 5 12(3) Smt. Jayamma W/o late K. Mayanna 43 yrs 12(4) Chandrappa S/o late K. Mayanna 40 yrs 12(5) Sri. Raja S/o late. Mayanna 38 yrs 12(6) Nagesh S/o K. Mayanna 35 yrs All are residing at Hosahalli-village C/o Ramanna, Amruthur Hobli Kunigal Taluk. .Respondents (By M/s. Agnihotri Associates, Advs. For R12 (2-6), Appeal is abated against R1 v/o dt. 7.9.2009, v/o dt. 16.10.2009, R2 to R11 are treated as LRs of deceased R1, R2, 8, 9,12(1) are served and unrepresented. v/o dt.30.1.09, R3-7, 10 & 11 are deleted. This appeal is filed under Section 100 of CPC against the judgment and decree dated 22.04.2006 passed in R.A.No.27/2001 on the file of the Civil Judge (Sr. Dn.) Kunigal, Allowing the appeal and setting aside the judgment and decree dated 20.02.1995 passed in O.S.No.191/1984 on the file of the Munisiff & JMFC, Kunigal. This appeal having been heard and reserved, coming on for Pronouncement this day, the Court delivered the following: 6 JUDGMENT This is a plaintiffs second appeal challenging the judgment and decree dated 22.04.2006 in R.A.No.27/2001 passed by the Senior Civil Judge, Kunigal. By the impugned judgment, the learned Civil Judge (First Appellate Court) has allowed the appeal and set-aside the judgment and decree passed in O.S.No.191/84 dated 20.02.1995 and dismissed the suit of the plaintiffs. 2. Appellants are the heirs of one Chowdaiah Setty and respondents are the heirs of K.Mayanna. Chowdaiah Setty filed O.S.191/84 against K.Mayanna for permanent injunction restraining the defendant from damaging the eastern fence or the standing trees on the eastern side of the land bearing Sy.No.103 measuring 24 guntas of Holalgunda Village of Kunigal Taluk. 3. Pending the suit, the plaintiff died and the present appellants came on record as his LRs. The trial Court 7 decreed the suit against which the defendant – K.Mayanna filed R.A.27/2001 before the Senior Civil Judge, Kunigal. When the matter was pending before this Court, the said Mayanna also died and respondents 12 (1) to (6) are his LRs. 4. The plaintiff brought the suit contending that the property of the defendant bearing Sy.No.102 situates on the eastern side of the suit property i.e., sy.no.103. He contended that on the eastern boundary of the land bearing sy.no.103, there are standing 5 Jamoon, 2 Neeraganji, 6 coconut, 1 Mango and 10-12 Honge Trees and the defendant is trying to fell those trees. Plaintiff further contended that the defendant filed O.S.No.152/79 against him for permanent injunction in respect of the very same dispute which came to be dismissed on 02.09.1983 holding that the said trees are in his land. He contended that after the dismissal of the said suit again the defendant is trying to fell the trees and sought for permanent injunction. 8 5. The defendant filed his written statement denying that the trees in question stand in the suit land. He claimed that those trees situate in his land namely Sy.No.102. 6. The trial Court after recording the evidence and hearing the parties decreed the suit, holding that in O.S.152/1979 there is a concluded finding that the trees in question are in the land of the plaintiff and the defendant is trying to interfere with the plaintiff’s possession. 7. Questioning the said judgment and decree, defendant filed R.A.No.27/2001 before the Senior Civil Judge, Kunigal. Learned Senior Civil Judge by the impugned judgment allowed the appeal and dismissed the suit holding that as per the Commissioner’s report, the said trees situate in the land of the defendant and the trial Court has failed to consider the Commissioner’s report and the survey sketch - Ex.D.7. 9 8. The appellants/plaintiffs challenge the said judgment in the above appeal. This Court while admitting the appeal, framed the following substantial questions of law: (1) Whether the Appellate Court is justified in reversing the Judgment and decree passed by the trial Court? (2) Whether the finding recorded in O.S.152/1979 does not operate as estoppel on the part of the defendant is justifiable? (3) Whether the finding arrived at by the Appellate Court with regard to the Commissioner report is in accordance with law? This court on hearing reframed 2 nd substantial question of law as follows: “Whether the First Appellate Court was justified in reversing the judgment of the trial Court despite that the issue of possession was concluded by the findings in O.S.152/79 between the same parties?” Then heard both the counsels on the above substantial questions of law. 10 9. Some of the undisputed facts of this case are as follows: - That the plaintiff is the owner of land bearing Sy.No.103 measuring 24 guntas situated within Holalagunda Village of Kunigal Taluk. Abutting the eastern boundary of the plaintiff’s land, the land of the defendant bearing Sy.No.102 situates. Sy.No.102 was granted to the defendant by the Deputy Commissioner under the Inams Abolition Act during 1972-73. The dispute is with regard to some trees standing in a particular strip of land. Plaintiff claims that those trees are within the eastern boundary of his land bearing Sy.No.103. As against that the defendant claims that the said trees are within the western boundary of his land bearing Sy.No.102. Therefore the question is “Whether the trees in question lie within the land of the plaintiff bearing Sy.No.103 or the land of the defendants bearing Sy.No.102?” 11 10. There is no dispute that the defendant filed O.S.No.152/79 against the present plaintiffs alleging that the trees in question lie within his land at Sy.No.102 and the plaintiffs are trying to interfere with his possession and enjoyment of the said property. The present plaintiff who was the defendant in O.S.152/1979 contested the said suit contending that the trees situate within his land. Exs.P.1 and P.2 are the judgment and decree passed in the said suit. They show that the Court vide judgment dated 02.09.1983 dismissed the said suit holding that the trees in question fall within the land of the defendant (i.e plaintiff in this suit). In paragraph 8 of the judgment (Ex.P.1) the Court held as follows: “The defendants versions are supported by independent witnesses D.W.2, D.W.3, D.W.2 has stated that there were no trees in the land cultivated by the plaintiff at any time. On the other hand, the defendants have grown various kinds of trees.