Karnataka High Court
Smt. P. Vijayalakshmi vs Sri. Syed Ahmed on 17 February, 2022
Bench: N S Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.405/2021 (INJ)
BETWEEN:
SMT. P. VIJAYALAKSHMI
W/O.LATE SRI.S.L.SRINVIAS,
AGED ABOUT 60 YEARS,
R/AT DO.NO.2208, 2ND WARD THYAGRAJANAGAR,
DODDABALLAPUR TOWN 561203.
... APPELLANT
(BY SRI.V.F.KUMBAR, ADV.)
AND:
1. SRI. SYED AHMED
S/O SYED HUSSAIN SAB,
AGED ABOUT 64 YEARS,
2. SRI SYED ISMAIL
S/O SYED HUSSIN SAB,
AGED ABOUT 62 YEARS,
3. SRI SYED KHASIM
S/O SYED HUSSAIN SAB,
AGED ABOUT 58 YEARS,
4. SRI SYED YUSUF
S/O SYED HUSSAIN SAB,
AGED ABOUT 59 YEARS,
5. SMT ZAHIRUNNISA
AGED ABOUT 68 YEARS,
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6. SMT MEHARUNNISA
AGED ABOUT 68 YEARS,
7. SMT NAZIMUNNISA
AGED ABOUT 67 YEARS,
8. SMT SYEDUNNISA
AGED ABOUT 67 YEARS,
9. SMT QAMMRUNNISSA
AGED ABOUT 60 YEARS,
(RESPONDENTS 7 TO 10
ARE DAUGHTERS OF
LATE SYED HUSSAIN SAHEB
ALL RESPONDENTS ARE
R/AT DO.NO.1256, POOCHAPPA PET,
2ND WARD, DODABALLAPUR TOWN 561203
.... RESPONDENTS
(SRI.SYED ABRAR, ADV FOR C/R1 TO R8)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 28.01.2021
PASSED IN RA.No. 10118/2016 (OLD No.21/2015) ON THE
FILE OF THE IV ADDL.DISTRICT AND SESSIONS JUDGE, AT
DODDABALLAPURA DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.04.2015 PASSED IN OS No.35/2007 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC., DODDABALLAPURA.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This is a Second appeal filed by the defendant, who
has been restrained by the Trial Court from interfering
with possession of the plaintiff over the suit property,
which is a house site. The said decree has been
confirmed in the appeal.
2. It was the case of the plaintiffs' father that he
was the owner of the suit property having purchased
under the sale deed dated 12.04.1974 which had been
converted out of Sy.No.94 and which had been
converted by an order of the Deputy Commissioner and
the Town Municipality had also assigned a site number
and had issued Khatha in their father's name.
3. It was his case that his father had filed a suit
in O.S.No.9/1976 and the same had been dismissed,
but, the appeal preferred in R.A.No.14/1982 came to be
decreed and the plaintiffs' father was declared to be
owner of the suit property and the said decree was also
confirmed by this Court in R.S.A. No.73/1988. It was
stated that the said suit had been filed by the plaintiffs'
father against the vendor of the defendants and despite
the said decree, the defendants who were the
subsequent purchasers were trying to interfere with his
possession and hence, he filed the suit.
4. The defendants contested the suit by stating
that they were the owners of the adjourning property
and they were not in any way interfering in the plaintiffs'
property. It was stated that the legal heir of one
Sri. Rangappa, had sold a property to the second
defendant and he had filed a suit in O.S.No.87/1996
seeking for decree of injunction, which had however
been dismissed. It is stated that in appeal i.e.,
R.A.No.14/1982, the said decree was set aside and the
suit was decreed and this decision rendered in the appeal
had attained finality. It was stated since the said suit
was filed against father of the plaintiffs and a decree had
been granted, the plaintiffs could not now seek for a
decree of injunction.
5. It was also stated that the defendants had
filed a suit for declaration and permanent injunction in
O.S.No.254/2002 which was decreed on 06.11.2006 and
this decree had become final. It was therefore stated
that the plaintiffs were not entitled for a decree of
injunction.
6. The Trial Court on consideration of the
evidence came to the conclusion that the plaintiffs had
proved that they were in lawful possession of the suit
property and also held that there was interference by the
defendants.
7. The Trial Court also held that the suit of the
defendants was not barred by res-judicata and the suit
for injunction simpliciter was maintainable.
8. The Trial court accordingly decreed the suit
restraining the defendants from interfering with the
plaintiff's enjoyment over the suit property. The
defendants being aggrieved, preferred this appeal.
9. The Appellate Court on re-appreciation of the
entire evidence concurred with the findings recorded by
the Trial Court and dismissed the appeal, thereby,
confirming the decree of injunction granted in favour of
the plaintiffs.
10. It is as against these concurring judgments,
the present second appeal is preferred.
11. Both, the plaintiffs and the defendants admit
that they had obtained a suit for decree of declaration
declaring them to be the owners of the respective
properties. Thus, the title of the parties over their
respective properties is not intact.
12. It is the case of the plaintiffs that they had
possession over the property in respect of which they
had obtained a decree of declaration against the vendor
of the defendants and which was sought to be interfered
and therefore, they were entitled for a decree of
injunction against the defendants, who were the
subsequent purchasers.
13. It is not in dispute that the boundaries stated
in O.S.No.9/1976 were objected to by the vendor of the
defendants. Thus, the identity of the suit property was
not in dispute and in respect of those property a decree
of declaration was granted in favour of the plaintiffs'
father. In view of the fact that the plaintiffs' father had
obtained a decree of declaration and injunction against
the vendor of the defendants, both the courts have
rightly come to the conclusion that the plaintiffs were
also entitled for injunction against the defendants, who
are admittedly the subsequent purchasers. Both the
Courts, on appreciation of both oral and the
documentary evidence have recorded a clear finding that
the plaintiffs have proved that they were in possession of
the suit property.
14. In my view, these findings being findings of
fact, the same would not be amenable for scrutiny under
Section 100 of CPC. Accordingly, this appeal is
dismissed.
In view of the dismissal of the main appeal,
pending I.As are also stand dismissed.
Sd/-
JUDGE
RKA
