Karnataka High Court
A M Basavaraj S/O A M Kotraiah vs H M Veerabhadraih on 23 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA.NO.5703/2013 (INJ)
BETWEEN
A M BASAVARAJ S/O A M KOTRAIAH
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: KUDALIGI TOWN IN
KUDALIGI TALUK, DIST: BELLARY.
... APPELLANT
(BY SRI.KIRANKUMAR, ADV. FOR SRI.ASHOK I.BADIGER, ADV.)
AND
1. H M VEERABHADRAIH
S/O H M CHENNABASAIAH,
AGE: 80 YEARS, R/O: HARAPANAHALLI TOWN,
DIST: DAVANAGERI.
2. H SHAKARANANDA S/O H NAGAPPA
AGE: 80 YEARS, OCC: PVT.
MEDICAL PRACTITIONER,
R/O: KUDALIGI TOWN,
TQ: KUDALIGI, DIST: BELLARY.
... RESPONDENTS
(BY SRI.SMT.PALLAVI PATIL, ADV. FOR
SRI.SRINAND A.PACHHAPURE, ADV. FOR R1,
SRI.M.PALAKSHA, ADV. FOR C/R2)
THIS APPEAL IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:27.04.2013 PASSED IN R.A.NO.26/2012
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, KUDLIGI, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT AND DECREE DTD:09.03.2012 AND
THE DECREE PASSED IN O.S. NO.129/2009 ON THE FILE OF THE
CIVIL JUDGE AT KUDLIGI, DISMISSING THE SUIT FILED FOR
PERMANENT INJUNCTION.
2
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
plaintiff wherein both the courts below have dismissed the
suit filed by the appellant/plaintiff herein.
2. Facts leading to the case are as under:
The present appellant claim that he is absolute owner
of the suit schedule property which is an vacant open site
and is covered by compound wall. Appellant/plaintiff claims
that there are 18 coconut trees and that he has inherited
the suit schedule property from his father.
Appellant/plaintiff claims that he is in possession and
enjoyment over the suit schedule property. It was also
specifically pleaded that demand register extract pertaining
to the suit schedule property is standing in the name of the
father of plaintiff and he is paying tax. The
appellant/plaintiff has further contended that
respondents/defendants have no semblance of right and
title in the suit schedule property and that they are not
related to the plaintiff. It is alleged that
respondents/defendants are unnecessarily trying to
interfere with appellant/plaintiff's peaceful possession over
the suit schedule property. On these set of pleadings, the
appellant filed a suit for injunction simplicitor in
O.S.No.129/2009.
3. The present respondents/defendants contested
the proceedings. Respondent No.2/defendant No.2 filed
written statement and stoutly denied the entire averments
made in the plaint. Respondent No.2 claims that he is the
absolute owner of the suit schedule property and has
purchased the same for valuable sale consideration of
Rs.60,000/- from respondent No.1 under registered sale
deed dated 04.09.1997. Respondent No.2 also contended
that nephew of the appellant/plaintiff herein namely,
N.M.Umesh tried to interfere with defendant No.2's
possession and therefore, respondent No.2 was compelled
to file a bare suit for injunction in O.S.No.12/2002 against
N.M.Umesh. The said suit was decreed and confirmed by
the first appellate court in R.A.No.6/2005 and thereby
nephew of present appellant/plaintiff was injuncted from
interfering with respondent No.2's peaceful possession over
the suit schedule property.
4. Trial court having assessed ocular and
documentary evidence and having taken note of the title
document at Ex.D12 coupled with the ocular evidence of
P.W.1 who has admitted in unequivocal terms that nephew
has suffered a decree in O.S.No.12/2002 has proceeded to
hold that appellant/plaintiff is not in lawful possession, as
alleged in the plaint. The trial court having examined Ex.D7
also found that present appellant along with his brother
had filed a similar suit for injunction in O.S.No.55/2006.
The same was dismissed as withdrawn. It is in this
background, the trial court has proceeded to answer issue
Nos.1 and 2 in the negative and issue No.3 in the
affirmative and thereby holding that the present suit filed
by appellant/plaintiff without seeking relief of declaration is
not at all maintainable. On these set of reasoning, the trial
court has dismissed the suit and the same is confirmed by
the first appellate court.
5. Heard the learned counsel for the appellant,
learned counsel for the respondents and perused the
judgments under challenge.
6. On perusal of the records, it is forthcoming that
respondent No.2/defendant No.2 was compelled to file a
bare suit for injunction against the nephew of the present
appellant/plaintiff based on a title document. The said
N.M.Umesh is his own brother's son i.e., N.Shantalingayya.
The said suit was decreed and confirmed in
R.A.No.19/2005. This aspect is elicited in the cross-
examination of P.W.1. Coupled with this clinching evidence,
both the courts below have also taken judicial note of the
fact that present appellant along with his brother
Shantalingayya had also filed similar suit in
O.S.No.55/2006. The same was dismissed as withdrawn.
By way of rebuttal evidence, respondent No.2 succeeded in
establishing his title. Copy of registered sale deed is also
placed on record. The earlier proceedings would also
indicate that appellant/plaintiff and his family members
suffered a decree. The relief of declaration and
consequential relief of injunction granted in favour of
respondent No.2 in O.S.No.12/2002 has attained finality.
7. In that view of the matter, both the courts
below were justified in dismissing the suit filed by
appellant/plaintiff. No substantial question of law arises for
consideration in the present case on hand.
Accordingly, the appeal stands dismissed.
In view of dismissal of the appeal, all I.A's, if any, do
not survive for consideration and the same are dismissed.
Sd/-
JUDGE
MBS/-
