Karnataka High Court
Erappa vs Umesh S Raju on 27 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO.1337 OF 2020 (INJ)
C/W
REGULAR SECOND APPEAL NO.1333 OF 2020 (INJ)
REGULAR SECOND APPEAL NO.19 OF 2021 (INJ)
REGULAR SECOND APPEAL NO.20 OF 2021 (INJ)
REGULAR SECOND APPEAL NO.21 OF 2021 (INJ)
BETWEEN:
1. ERAPPA
S/O LATE GURUVA BOVI
AGED ABOUT 66 YEARS
R/AT DINNEPALYA
HOMMADEVANAHALLI DAKHALE
BEGUR HOBLI, GOTTAGERE POST
BENGALURU SOUTH TALUK - 560 083.
2. VENKATAMMA
W/O LATE VENKATASWAMY
AGED ABOUT 66 YEARS
3. VENKATESH
S/O LATE VENKATASWAMY
AGED ABOUT 40 YEARS
4. ERAPPA
S/O LATE VENKATASWAMY
AGED ABOUT 37 YEARS
2
5. MANJULA
D/O LATE VENKATASWAMY
AGED ABOUT 32 YEARS
ALL ARE R/AT DINNEPALYA
HOMMADEVANAHALLI DAKHALE
BEGUR HOBLI, GOTTAGERE POST
BENGALURU SOUTH TALUK - 560 083.
...COMMON APPELLANTS
(BY SRI.N.KUMAR., ADVOCATE)
AND:
UMESH.S.RAJU
S/O P.SHYAMA RAJU
AGED ABOUT 38 YEARS
R/AT NO.343, 4TH MAIN ROAD
SADASHIVANAGAR
BENGALURU - 560 080.
... COMMON RESPONDENT IN RSA
NOS.1337/2020, 1333/2020, 20/2021 AND 21/2021
P.SHYAMA RAJU
S/O LATE P.NARASARAJU
AGED ABOUT 38 YEARS
R/AT NO.343, 4TH MAIN ROAD
SADASHIVANAGAR
BENGALURU - 560 080. .. RESPONDENT IN RSA
NO.19/2021
(RESPONDENT SERVED AND UNREPRESENTED)
*****
RSA NO.1337/2020 IS FILED U/S 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 10.08.2020 PASSED IN
R.A. NO.15053/2019 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI,
BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
14.08.2017 PASSED IN O.S. NO.392/2009 ON THE FILE OF
THE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI.
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RSA NO.1333/2020 IS FILED U/S 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 10.08.2020 PASSED IN
R.A. NO.15052/2019 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI,
BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
14.08.2017 PASSED IN O.S. NO.389/2009 ON THE FILE OF
THE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI.
RSA NO.19/2021 IS FILED U/S 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 10.08.2020 PASSED IN
R.A. NO.15054/2019 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI,
BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
14.08.2017 PASSED IN O.S. NO.390/2009 ON THE FILE OF
THE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI.
RSA NO.20/2021 IS FILED U/S 100 OF CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 10.08.2020
PASSED IN R.A. NO.15047/2019 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DEVANAHALLI, BENGALURU RURAL DISTRICT, ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 12.08.2017 PASSED IN O.S. NO.391/2009
ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC,
DEVANAHALLI.
RSA NO.21/2021 IS FILED U/S 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 10.08.2020 PASSED IN
R.A. NO.15051/2019 ON THE FILE OF THE V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, DEVANAHALLI,
BENGALURU RURAL DISTRICT, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
21.07.2017 PASSED IN O.S. NO.393/2009 ON THE FILE OF
THE ADDL. CIVIL JUDGE AND JMFC, DEVANAHALLI.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
These second appeals are filed by the defendants.
2. The facts involved in all these appeals are
similar. Hence, for the purpose of adjudication of these 5
appeals, the facts in relation to RSA No.19/2021 only are
stated.
3. Sri.Umesh.S.Raju, the plaintiff, filed the suit
seeking for injunction contending that he was in
possession of the suit property on the basis of the sale
deed dated 03.09.2004 executed in his favour by
Narayanappa and his daughter Nanjamma.
4. It was his case that his possession was
evidenced by entries in the revenue records and also by
the fact that he had paid up-to-date property taxes. It was
also stated that his father also owned adjacent land
comprising survey Nos.120 and 121 and they were in
peaceful possession ever since the purchase. He alleged
that the defendants tried to dispossess the plaintiff from
the suit property and he was therefore constrained to file
the suit.
5. The defendants contested the suit. They stated
that on 21.10.1957 one Govindappa had conveyed the
property in favour of Muniswamy Bhovi,
Chikkamuniayyappa Bhovi, Muniyappa Bhovi, Guvuva
Bhovi, Era Bhovi, Appaaiah Bhovi and Isokadu Venkata
Bhovi in respect of the land bearing survey No.67
measuring 120 acres situated at Navaarathna Agrahara
village, Jala Hobli, Devanahalli Taluk, Bangalore Rural
District. It was stated that these persons were in joint
possession and the land had not been divided nor
partitioned. It was stated that their father had filed
O.S.No.42/1971 seeking for declaration and injunction
against Gurdeep Singh Siddhu and six others and the said
suit was decreed. It was stated that the defendants were
the co-owners and they had been in continuous possession
and the Record of Rights, Tenancy and Crops (RTC) also
reflected the same.
6. Defendants also stated that they had instituted
O.S. No.1329/2006 and in the said suit the plaintiff had
also been made a party and in the light of the said suit the
present suit for injunction could not be maintained.
7. The Trial Court dismissed the suit on the
ground that the plaintiff admitted that the suit in O.S.
No.1329/2006 for partition was pending and in that suit
they had made an application for impleading, but had
chosen to suppress the said fact. The Trial Court took the
view that since the suit for partition was pending and
notwithstanding the fact that the plaintiff had produced the
title deed, since the share of his members was yet to be
adjudicated, the suit for injunction could not be
entertained.
8. The Trial Court took note of the fact that RTCs
were produced in which the name of the plaintiff appeared
as a owner, but no documents were produced to show that
he was in factual possession.
9. Being aggrieved by the dismissal of the suit by
the Trial Court, the plaintiff preferred an appeal.
10. The Appellate Court on re-appreciation of the
entire evidence, took the view that the Trial Court was not
justified in holding that the plaintiff had failed to prove his
possession. Appellate Court came to the conclusion that
the plaintiff had proved his possession by production of the
sale deed in Ex.P-4 and also revenue records in which his
name had been entered. The Trial Court also took into
consideration Ex.P-19, Form No.15, which stated that
there was a partition amongst the family members of the
members of the plaintiff. To come to the conclusion that
there was a partition, the Trial Court also took note of
Ex.P-24, the photographs which indicated that the plaintiff
was in possession.
11. The Appellate Court also noticed that Durasti
podi was conducted on 09.10.2013 vide Ex.P-23 and a new
survey No.122/1 was assigned and mutation was also
affected on 29.01.2013 which proves the identification of
the property.
12. The Appellate Court disagreed with the view
taken by the Trial Court that there was a bar for filing a
suit for injunction when the suit for partition filed by the
defendants was pending and the plaintiff was justified in
filing the suit for injunction. The Appellate Court after
recording a finding that the plaintiff had proved his
possession, decreed the suit.
13. As against this divergent Judgments, these
second appeals have been filed.
14. The plaintiff came to be in possession of the
suit property on the basis of the registered sale deed. To
evidence his possession, he relied upon the revenue
records which contained his name. He also produced Podi
records to indicate demarcation of the land purchased by
him. The Appellate Court was thus justified in coming to
the conclusion that the plaintiff had proved his possession.
15. However, the learned counsel for the appellant
contends that when the suit for partition was pending in
respect of the survey No.67, the grant of injunction in
respect of a portion of survey No.67 could not be
sustained. He submitted that the decree of injunction
virtually amounted to grant of an injunction against
co-owners and this was impermissible in law.
16. It has to be stated here that the suit for
injunction is filed only if there is a threat of dispossession
or an interference. In the instant case, the suit is filed by
the plaintiff who is a purchaser stating that he
apprehended dispossession and hence sought for
protection. In such a scenario, it would be incorrect to
state that the suit for injunction by a purchaser of the
property cannot be maintained against the alleged
co-owners.
17. So far as the contention of the appellant's
counsel that the decree of injunction would prejudice the
rights of the defendants is concerned, it is to be made
clear that in the event the suit for partition filed by the
defendants is decreed and the properties are ordered to be
divided and the respective owners/sharers are ordered to
be put in separate possession, obviously, this decree for
injunction will have to give way to the decree of partition.
18. It would also be open for the plaintiff herein to
seek for allotment of his vendor's share to him and for
allocating the property that he was in possession as an
equitable consideration.
19. The grant of decree of injunction in the present
suit would only protect the possession of the plaintiff till a
decree for partition is granted and a final decree is
drawn-up. This decree for injunction would thus be subject
to the decree that would be passed in the suit for partition.
20. Hence, I am of the view that there is no
substantial question of law arisen for consideration and
thus these second appeals are dismissed, however,
subject to the above observations.
Sd/-
JUDGE
GVP
