Karnataka High Court
Shri. Chinnegowda vs Gurumallegowda on 9 December, 2021
Bench: P.S.Dinesh Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
REGULAR SECOND APPEAL NO.1898 OF 2015
BETWEEN :
SHRI. CHINNEGOWDA
W/O LATE MADEGOWDA @ NALLEGOWDA
AGED ABOUT 55 YEARS
RESIDENT OF HANIYAMBALLI VILLAGE
BILIGERE HOBLI
NANJANGUD TALUK-571 301 ...APPELLANT
(BY SHRI. B. SHARATH KUMAR, ADVOCATE)
AND :
GURUMALLEGOWDA
DEAD BY LEGAL RERESENTATIVES
1. SAKAMMA
AGED ABOUT 49 YEARS
2. KAVITHA
AGED ABOUT 29 YEARS
3. MAHENDRA
AGED ABOUT 25 YEARS
4. BASAVARAJU
AGED ABOUT 51 YEARS
5. GOWRAMMA
AGED ABOUT 39 YEARS
ALL ARE RESIDENTS OF
HANIYAMBALLI VILLAGE
BILIGERE HOBLI
NANJANGUD TALUK-571 301 ...RESPONDENTS
(BY SHRI. H.V. BHANUPRAKASH, ADVOCATE-ABSENT)
2
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 02.09.2015 PASSED IN
RA.NO.73/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
J.M.F.C AT NANJANGUD, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 10.09.2014 PASSED IN
OS.NO.150/2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JMFC., NANJANGUD.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This Regular Second Appeal by the plaintiff is
directed against the judgment and decree dated
September 2, 2015, in R.A.No.73/2014 on the file of the
Senior Civil Judge and JMFC, Nanjangudu, reversing the
judgment of the Trial Court and dismissing plaintiff's suit
for injunction.
2. Heard Shri B.Sharath Kumar, learned advocate for
the appellant. None appears for the respondents.
3. Plaintiff-Chinnegowda has filed the instant suit
against four defendants. First Defendant-Gurumallegowda
has passed away during the pendency of the suit.
No substitution application was filed in the Trial Court.
Therefore, the suit against first defendant stood abated.
4. Plaintiff's case is, defendants were attempting to
interfere with the Suit Schedule Property acquired by the
plaintiff's mother under Gift Deed dated November 24,
1957. The dispute is only with regard to the coconut
trees. Defendants reside on the southern side of the Suit
Schedule Property and allegedly attempting to pluck the
coconuts from plaintiff's tree. On behalf of the plaintiff,
three witnesses have been examined as P.W.1 to 3 and six
documents have been marked as Exhibits P.1. to P.6.
On consideration of material on record, Trial Court has
decreed the suit. Appeal filed by the defendants has been
allowed by the First Appellate Court. Hence, this appeal.
5. Shri Sharath Kumar submitted that though six
questions have been framed by him in Para 6 of the
appeal, according to him, the substantial question of law is
third question which reads as follows;
"3) Whether the Appellate Court after coming to the
conclusion that the properties mentioned in the plaint
and the property mentioned by the defendant are
different with regard to assessment Number, extent,
schedule ought to have dismissed the appeal confirming
the judgment and decree in respect of the plaint
schedule ie., Assessment No.270 property?"
6. First Appellate Court has recorded in Para 30 of its
judgment that the Gift Deed, Exhibit P.1, as also the Sale
Deed produced by the defendants as Exhibit D.1 do not
show the exact location of the property in question.
It is further recorded in Para 32 that there are no records
in respect of the Suit Schedule Property for the period
1995-2008 except the Gift Deed; and therefore property
was not identifiable.
7. The only document of title upon which the plaintiff
has placed reliance is Gift Deed, Exhibit P.1. The finding of
fact recorded by the First Appellate Court is that the
property is not identifiable from the contents of the Gift
Deed. Further, no documents in respect of Suit Schedule
Property are available from 1995-2008. Admittedly, the
suit is filed in the year 2008. In the absence of specific
identification of the property, the First Appellate Court is
right in its conclusion that in the absence of clear
identification of the property, injunction could not have
been granted against the defendants. Question No.3
pressed as the substantial question of law by the learned
advocate for the appellant runs counter to the facts
recorded in Para 30 of the judgment passed by the First
Appellate Court. As the Suit Schedule Property is not
identifiable, no exception can be taken to the judgment
passed by the First Appellate Court. Hence, no substantial
question of law raises in this appeal. Resultantly,
this appeal must fail and it is accordingly dismissed.
8. In view of disposal of this appeal, I.A.No.1/2015
does not survive for consideration and it is accordingly
disposed of.
No costs.
Sd/-
JUDGE
AV
