Sri Rangaswamy vs Sri H B Maraiah
2021 Latest Caselaw 3682 Kant

                                           RSA 205/2020
                             1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 9TH DAY OF NOVEMBER, 2021

                       BEFORE

  THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

    REGULAR SECOND APPEAL NO.205/2020 (INJ)

BETWEEN:

SRI RANGASWAMY
S/O RANGANARASAIAH,
AGED 59 YEARS,
R/O BIKKEGUDDA KAVAL,
KASABA HOBLI, GUBBI TALUK,
TUMAKURU DISTRICT - 572216.           ... APPELLANT

(BY SRI M.B.CHANDRACHOODA, ADV.)

AND:

SRI H.B.MARAIAH
S/O BHEEMAIAH,
AGED 76 YEARS,
R/O GUPTHA BUILDINGS,
34TH CROSS, SIT EXTENSION,
TUMAKURU - 572101.                   ... RESPONDENT

(BY SMT. MANJULA.D., ADV.)


      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 17.08.2019 PASSED IN RA.NO.70/2016 ON
THE FILE OF THE SENIOR CIVIL JUDGE, GUBBI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 25.07.2016 PASSED IN O.S.NO.58/2009 ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE, GUBBI.

      THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                                       RSA 205/2020
                             2

                     JUDGMENT

This Regular Second Appeal is filed by the

plaintiff, challenging the judgment and decree dated

25th July 2016 passed in O.S.No.58/2009 by the court

of Additional Civil Judge, Gubbi, confirmed in

R.A.No.70/2016 by the court of Senior Civil Judge at

Gubbi vide its judgment and decree dated 17th August

2019.

2. Brief facts of the case that would be relevant

for the purpose of disposal of this case are:

The plaintiff claiming to be the absolute owner in

possession and enjoyment of the suit schedule

property having purchased the same under a

registered sale deed dated 29.9.1999 (Ex.P2) had filed

O.S.No.58/2009 before the trial court against the

defendant seeking a decree of perpetual injunction on

the ground that the defendant was interfering with the

peaceful possession and enjoyment of the suit

schedule property by the plaintiff. After service of

notice, the defendant entered appearance and had RSA 205/2020

filed a detailed written statement contending that the

vendor of the plaintiff had no right to execute the sale

deed in question in favour of the plaintiff. It was

further averred that the defendant had purchased 5

acres of land in the very same survey number from the

very same vendor viz., Chikkanarasaiah s/o Narasaiah

under a registered sale deed dated 07.06.1995 and

when the plaintiff herein at the instance of

Chikkanarasaiah had tried to interfere with the

peaceful possession and enjoyment of the lands, which

are the subject matter of sale deed dated 07.06.1995,

the defendant had filed O.S.No.79/2007 before the

jurisdictional Civil Court seeking a decree of perpetual

injunction and the said suit was decreed and the same

has attained finality.

3. The trial court on the basis of rival pleadings

has framed the following issues:

"1. Whether the plaintiff proves that he is in lawful possession over suit schedule property as on the date of suit?

RSA 205/2020

2. Whether plaintiff proves the alleged interference by the defendant?

3. Whether plaintiff is entitled for relief as claimed in suit?

4. What order or decree?"

During the course of trial, plaintiff had examined

himself as PW-1 and another witness was examined as

PW-2. In support of his case, plaintiff got marked 11

documents as Exs.P1 to P11. On behalf of the

defendant, defendant got himself examined as DW-1

and examined one witness as DW-2 and 20 documents

were marked as Exs.D1 to D20. The trial court after

completion of the evidence had heard the arguments

on both sides and vide judgment and decree dated 25th

July 2016 had dismissed the suit and the said

judgment and decree has been confirmed by the first

appellate court vide its judgment and decree dated

17th August 2019 in R.A.No.70/2016. Being aggrieved

by the same, the plaintiff is before this court.

RSA 205/2020

4. This Court on 08.09.2020 has admitted this

appeal on the following substantial question of law:

"Whether the Trial Court and First Appellate Court were justified in dismissing the suit when there is a clear admission by Defendant-D.W.1 in the cross-examination that he has no right whatsoever over the suit schedule property?"

5. Learned Counsel for the appellant/plaintiff

submits that the property purchased by the plaintiff

and defendant are separate and distinct. He submits

that their vendor Chikkanarasaiah totally owned 10

acres of land in Sy.No.93/36 (new Sy.No.93/P70)

situated at Bikkegudda Kaval village, Kasaba Hobli,

Gubbi Taluk. He submits that the defendant, who was

examined as DW-1, has clearly admitted in his cross-

examination that he has no right whatsoever over the

suit schedule property and therefore, the trial court as

well as the first appellate court were not justified in

dismissing the suit. He further submits that the trial

court as well as the first appellate court have erred in RSA 205/2020

considering the question of title of the land in question

in a suit for permanent injunction. He submits that

the entire approach of both the courts is erroneous in

law and therefore, prays to allow the appeal.

6. Per contra, learned counsel appearing for the

respondent/defendant has argued in support of the

impugned judgment and decree and prays to dismiss

the appeal.

7. I have carefully considered the rival

arguments addressed on both sides and also perused

the material evidence available on record.

8. It is not in dispute that the vendor of the

plaintiff as well as the defendant is one

Chikkanarasaiah s/o Narasaiah. The said

Chikkanarasaiah totally owned 10 acres of land in the

land bearing Sy.No.93/36 (new Sy.No.93/P70)

situated at Bikkegudda Kaval village, Kasaba Hobli,

Gubbi Taluk. Out of the said extent of 10 acres of

land, 1 acre of land is kharab land and out of RSA 205/2020

remaining 9 acres of land, Chikkanarasaiah had

executed a registered sale deed in favour of the

defendant in respect of 5 acres of land on 07.06.1995

and much prior to that, he had already executed sale

deed in respect of 4 acres of land in the very same

survey number. The defendant has contended that his

vendor had no right, title or interest to execute the sale

deed Ex.P2 dated 29.09.1999 in favour of the plaintiff

as there was no land available with Chikkanarasaiah

as on the date of said sale deed. He has produced

Ex.D8 dated 19.01.1991, which is a registered sale

deed executed by Chikkanarasaiah in respect of 4

acres of land in the land bearing Sy.No.93 in favour of

one Ganganna s/o Marihuchhaiah. The said

Ganganna has subsequently executed a sale deed

dated 16.03.1998 in respect of the very same land

measuring 4 acres in Sy.No.93 in favour of one

C.S.Rajashekar, son of C.S.Siddappa. The said sale

deed dated 16.03.1998 is produced as Ex.D20.

Therefore, vendor of the plaintiff had already sold the RSA 205/2020

entire extent of land that was available in Sy.No.93/36

(new Sy.No.93/P70) prior to executing the sale deed as

per Ex.P2 dated 29.09.1999 in favour of the plaintiff.

The trial court as well as the first appellate court

having appreciated this aspect of the matter have

rightly come to the conclusion that since there is a

serious cloud of suspicion with regard to the

availability of land and also with regard to the title of

the land in question in favour of the plaintiff, having

regard to the judgment of the Hon'ble Supreme Court

in the case of Anathula Sudhakar -vs- P.Buchi

Reddy (Dead) by LRs. and others1 have dismissed

the suit for permanent injunction not only on the

ground that the plaintiff's title over the suit schedule

property is highly doubtful but also on the ground that

the plaintiff has failed to prove his possession over the

suit schedule property.

9. Further, from the documentary evidence

available on record, it is seen that out of 10 acres of

(2008) 4 SCC 594 RSA 205/2020

land, which was available with the vendor of the

plaintiff, 1 acre of land was a kharab land and out of

the remaining extent of 9 acres, he had already

executed a sale deed in favour of the defendant on

07.06.1995 and in respect of the remaining 4 acre of

land, he had executed sale deed in favour of Ganganna

s/o Marihuchhaiah on 19.01.1991 itself. The present

sale deed Ex.P2 has been executed by him in favour of

the plaintiff in respect of 5 acres of land whereas, the

documentary evidence would go to show that the said

extent of land was not at all available with the vendor

of the plaintiff as on the date of execution of the said

sale deed. Merely for the reason that the defendant

during the course of his cross-examination has stated

that he has no right whatsoever over the suit schedule

property, that itself will not entitle the plaintiff for a

decree of perpetual injunction in his favour. The

plaintiff, who has approached the court, is required to

independently prove his possession over the suit

schedule property and he cannot depend upon a stray RSA 205/2020

admission, which has been made by the defendant

during the course of his cross-examination. The

defendant has resisted the suit by filing a detailed

written statement and he has also produced Ex.D8

and Ex.D20 to show that the vendor of the plaintiff

had no right to execute the sale deed Ex.P2 in favour

of the plaintiff on 29.09.1999.

10. Under the circumstances, merely for the

reason that the defendant has admitted in his cross-

examination that he has no right whatsoever over the

suit schedule property does not entitle the plaintiff for

a decree of permanent injunction, when the

documentary evidence, which is available on record,

would clearly go to show that the plaintiff has not

derived any title or possession of the suit schedule

property under the registered sale deed dated

29.09.1999/Ex.P2 and the vendor of the plaintiff had

no right whatsoever to execute the said sale deed in

his favour.

RSA 205/2020

11. Under the circumstances, the trial court as

well as the first appellate court were justified in

dismissing the suit and accordingly, I answer the

substantial question of law against the plaintiff. I,

therefore, find no ground to interfere with the well

reasoned judgment and decree passed by the trial

court, which has been confirmed by the first appellate

court.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

KNM/-