Sujatha vs Revanna
2021 Latest Caselaw 2010 Kant

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     IN THE HIGH COURT OF KARNATAKA BENGALURU

         DATED THIS THE 28TH DAY OF MAY, 2021

                       BEFORE

        THE HON'BLE MS. JUSTICE JYOTI MULIMANI

            R.S.A. NO.1920 OF 2013 (INJ)

BETWEEN:

SUJATHA,
AGED ABOUT 31 YEARS,
D/O NINGANAIKA, ALUR VILLAGE,
HONNAVALLI HOBLI,
TIPTUR TALUK,
TUMAKURU DISTRICT - 572 201.          ...APPELLANT

(BY SRI.M.VINAYA KEERTHY, ADVOCATE)

AND:

1.     REVANNA,
       AGED ABOUT 56 YEARS,
       S/O SIDDAIAH.

2.     GANGADHARA,
       AGED ABOUT 36 YEARS,
       S/O REVANNA,

BOTH ARE R/O LUR VILLAGE,
HONNAVALLI HOBLI,
TIPTUR TALUK,
TUMAKURU DISTRICT - 572 201.        ... RESPONDENTS

(BY SRI.K.SHRIHARI, ADVOCATE)
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     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 07.09.2013 PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC, TIPTUR IN R.A.NO.18/2008.


     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                          JUDGMENT

Sri M. Vinaya Keerthy, learned counsel for appellant

and Sri K. Shrihari, learned counsel for respondents have

appeared through video conferencing.

2. This appeal is posted for Admission after issue

of notice to respondents.

3. For the sake of convenience, the parties are

referred to their ranking in the trial Court.

4. The factual matrix of the case is that plaintiff

brought an action for permanent injunction.

It is the case of plaintiff that she is the owner and

possessor of the site measuring east to west 25 feet and

north to south 25 feet bearing Khata No.173, Assessment

No.310 situated at Alur Village, Sarthavalli Group

Panchayat.

It is stated that she purchased the property under a

registered sale deed from one Chikkanna son of Kadabada

Rangaiah on 01.07.2002 for a valuable consideration of

Rs.3,000/- and she has been in continuous possession

even till the date of the suit.

Contending that defendants who have no right, title

or interest over the suit site, tried to interfere with her

peaceful possession and enjoyment of the property and

also obstructed the construction work, she sought the aid

of the court seeking the relief of permanent injunction.

In furtherance of service of suit summons,

defendants entered appearance and defendant No.1 filed

written statement. He denied the plaint averments. The

specific case of defendants is that the schedule property is

their ancestral property. It was originally standing in the

name of their ancestor Chandraiah son of Sanna Siddaiah.

The khata number of the property is 340 and not 310.

Plaintiff made attempts to construct building in the said

property and hence, they were constrained to file a suit

against the plaintiff for permanent injunction in

O.S.No.04/2007 and also obtained an order of temporary

injunction. Contending that the suit is not maintainable,

they prayed for the dismissal of the suit.

5. On the basis of the pleadings, the trial Court

framed the following issues.

"1. Whether the plaintiff proves lawful possession of the suit schedule property as on the date of suit?

2. Whether the plaintiff further proves alleged interference by the defendants?

3. Whether the plaintiff is entitle for permanent injunction?

4. What order or decree?"

6. To substantiate the contentions, plaintiff was

examined as PW-1 and produced documents and got

marked Exs.P-1 to P-5. Three witnesses were examined as

PWs.2 to 4. On the other hand, defendants have not

entered witness box. During cross examination of PW-4

Exs.D-1 and D-2 documents were tendered and marked on

behalf of defendants and Ex.C-1 also marked.

7. On the trial of the action, the suit came to be

dismissed. On appeal, the First Appellate Court confirmed

the judgment and decree of the trial Court. Therefore, this

Regular Second Appeal under Section 100 of CPC.

8. Sri. Vinaya Keerthy learned counsel for

appellant submitted that both the Courts below could not

have been decided the way it was. The judgment and

decree of both the Courts below are unsustainable in law.

Next, he submitted that the trial Court as well as the

First Appellate Court committed an error in not properly

considering the facts and have not justified in decreeing

the suit.

A further submission was made that both the Courts

have failed to consider the very specific admission on the

part of defendants stating that the plaintiff is in possession

of the suit schedule property.

Counsel submitted that after purchase of the

property, the name of the plaintiff reflected in the

Panchayat records with respect of the suit schedule

property which clearly demonstrates that she is in

possession of the property as on the date of filing of the

suit.

Lastly, he submitted that the findings recorded by

both the Courts below are erroneous and lack judicial

reasoning. Therefore, he submitted that this second appeal

may be admitted by framing substantial questions of law.

9. Sri Shrihari, learned counsel for respondents

seek to sustain the judgment and decree of both the

Courts below as being well merited, fully justified and does

not call for any interference by this Court. Accordingly, he

prayed for the dismissal of the appeal.

10. I have considered the contentions urged on

behalf of both the parties. Perused the records with care.

11. The suit giving rise to this appeal was brought

by the plaintiff for the relief of permanent injunction.

As could be seen from the nature of the list between

the parties, the suit is for bare injunction based on

possession as on the date of possession. The right to

injunction is based on prima-facie right. On the trial of the

action, it was found from the evidence on record that

plaintiff appears to have purchased the property from one

Chikkanna on 01.07.2002 for a valuable consideration.

After purchase of the property, the entry was changed in

her name in M.R.No.02/2006-07 on 05.04.2006 on the

strength of the sale deed. The trial Court found that

plaintiff has not produced any documentary records to

show that the Grama Panchayat lawfully changed the

mutation records in favor of her vendor Chandraiah.

It is significant to note that a suit for permanent

injunction was filed by the second defendant Gagadhara

against the plaintiff in O.S.No.04/2007 with respect of the

suit schedule property. The said suit came to be decreed

holding that the plaintiff (in O.S.No.04/2007) is in lawful

possession and enjoyment of the schedule property.

Plaintiff did not challenge the judgment and decree. The

finding with regard to possession has attained finality, so

also the judgment and decree of the trial Court.

It would be relevant to observe that in a suit for bare

injunction, plaintiff is required to prove his/her lawful

possession and enjoyment over the suit schedule property

as on the date of the suit. On the basis of the material

proof, the trial Court held that plaintiff is not in possession

of the schedule property. The First Appellate Court

examined the evidence on record and re-appraised it. I am

satisfied that it has been appreciated in right perspective.

Further, the findings by the Court of facts are neither

vitiated by non-consideration of relevant evidence nor

there is any erroneous approach to the matter I do not find

any error in the finding of facts.

It is perhaps well to observe here that after 1976

amendment, the scope of Section 100 of CPC has been

drastically curtailed and narrowed down. The High Court

would have jurisdiction of interfering under Section 100 of

CPC, only in a case where substantial question of law is

involved and those questions have been clearly formulated

in the Memorandum of appeal. But, the present second

appeal does not involve any substantial questions of law.

I find it necessary only to say this much that I am not

prepared to differ from the view taken by the trial Court

and by the First Appellate Court as to the question of fact.

No substantial question of law arises in this appeal.

Accordingly, the appeal is dismissed at the stage of

admission itself.

Sd/-

JUDGE ssb