The Karnataka High Court allowed an appeal challenging the judgment of the First Appellate Court which had confirmed the Judgment & Decree of the Trial Court vide which the Trial Court dismissed the suit for possession filed by the appellant. The Court observed that the plaintiff proved her possession over the suit schedule property as on the date of filing of the suit and she also proved the interference by the defendant.
Brief Facts:
The scheduled property is the ancestral property of the plaintiff. The grandmother of the plaintiff out of love and affection executed a Relinquishment Deed in her favor. After her death, half a portion of the above-said property was mutated in the name of the plaintiff. The plaintiff is residing in the said property along with her family. The concerned Grama Panchayath recognized her possession and issued Assessment Register Extract. It was said that the defendant tried to interfere with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. The cause of action arose when the defendant and her family members tried to interfere with the plaintiff's possession and enjoyment of the suit schedule property. Hence, the plaintiff - initiated action against the defendant seeking the relief of permanent injunction.
After the service of the suit summons, the defendant entered an appearance through her advocate, filed a detailed written statement, and denied the plaint averments. She contended that Maddurakka is the absolute owner of the suit schedule property and she was in actual possession and enjoyment of the same. The defendant also contended that the plaintiff is a stranger to the suit schedule property and the defendant's family. She denied the possession of the plaintiff over the suit schedule property. Among other grounds, she prayed for the dismissal of the suit. On the trial of the action, the Trial Court dismissed the suit. Aggrieved by the Judgment & Decree of the Trial Court, the plaintiff preferred an appeal before the First Appellate Court. On appeal, the First Appellate Court confirmed the Judgment & Decree of the Trial Court. Hence, this Regular Second Appeal is filed by the plaintiff under Section 100 of CPC.
Contentions of the Appellants:
The Learned Counsels for the Appellants argued that the Trial Court while answering Issue No.1 has rightly held that the plaintiff is in possession of the suit scheduled property as on the date of filing of the suit. However, the Trial Court went ahead and rejected the relief of a permanent injunction solely on the ground that the plaintiff is in permissive possession of the suit schedule property and hence, the alleged interference by the defendant is not proved by the plaintiff. He further contended that the defendant has not pleaded about permissive possession in the written statement, hence, the dismissal of the suit is unsustainable in law.
Observations of the Court
The Court noted that a perusal of the written statement filed by the defendant reveals that he has not averred a single word about permissive possession. The Court said that in a suit for a bare injunction, the plaintiff is required to prove their lawful possession and enjoyment over the suit property as of the date of filing of the suit. When the Trial Court had held that the plaintiff has proved her lawful possession over the suit schedule property as of the date of filing of the suit, what was required to be considered is only the interference by the defendant.
The Court observed that the finding on permissive possession was not at all called for. The plaintiff proved her possession over the suit schedule property as on the date of filing of the suit and she also proved the interference by the defendant. Therefore, she is entitled to an order of injunction.
The decision of the Court:
The Karnataka High Court, allowing the appeal, held that the Judgment and Decree dated passed by the Court of Prl. Civil Judge & JMFC, and the Judgment and Decree passed by the Court of Senior Civil Judge & JMFC, are set-aside.
Case Title: Smt. N. Gangarathnamma vs Smt. Gangamma
Coram: Hon’ble Justice Jyoti Mulimani
Case no.: REGULAR SECOND APPEAL NO.600 OF 2016 (INJ)
Advocate for the Appellant: Mr. G. S. Balagangadhar
Advocate for the Respondent: Mr. Kapil Dxit
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