Smt. M V Shashikala vs Sri Kariyappa
2022 Latest Caselaw 5258 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 23RD DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO. 186 OF 2021 (INJ)

BETWEEN:

1 . SMT. M V SHASHIKALA
    W/O PRAVEEN WAGUKAR
    D/O LATE M.R. VENKATARANGAPPA
    AGED ABOUT 44 YEARS, TEACHER
    R/AT NO.321, KHASABAG,
    BASAVANA GALLI,
    BELGAUM-590003.

2 . SMT M.V. CHETHANA
    W/O C. GOPAL
    D/O LATE M.R.VENKATARANGAPPA
    AGED ABOUT 39 YEARS
    RESIDENT OF NO.25
    KHB COLONY
    P AND T QUARTERS
    CHITRADURGA CITY-577501.

3 . SMT M.V. VEENA
    W/O T.G. RANGASWAMY
    D/O LATE M.R.VENKATARANGAPPA
    AGED ABOUT 36 YEARS
    R/AT BARAGERI BEEDI
    1ST CROSS, HOLALKERE ROAD
    CHITRADURGA CITY-577501.

4 . SRI. M.V. GIRISH
    S/O LATE M.R.VENKATARANGAPPA
    AGED ABOUT 31 YEARS
                           2




   R/AT NO.25, K.H.B.COLONY
   P AND T QUARTERS
   CHITRADURGA CITY-577501.

                                            ...APPELLANTS

(BY SRI. BALARAJ A C, ADVOCATE)

AND:

1 . SRI. KARIYAPPA
    S/O LATE THIMMABHOVI
    AGED ABOUT 62 YEARS
    R/AT KANVEEJOGIHALLI VILLAGE
    HOLALKERE TALUK
    CHITRADURGA CITY-577215.

2 . SRI T. CHANDRAPPA
    S/O LATE THIMMABHOVI
    AGED ABOUT 52 YEARS
    R/AT POLICE CONSTABLE
    ABBINA HOLE POLICE STATION
    HIRIYUR TALUK
    CHITRADURGA DISTRICT-572143.

                                           ....RESPONDENTS

(BY SRI. BASAVARAJ N PATIL, ADVOCATE FOR
    SRI. B.M. SIDDAPPA, ADVOCATE)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 24.02.2020 PASSED IN RA.NO.7/2019 ON THE
FILE SENIOR CIVIL JUDGE AND JMFC, HOLALKERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 24.01.2019 PASSED IN O.S.NO.99/2013 ON THE FILE
OF THE C/C PRL. CIVIL JUDGE, HOLALKERE.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                 3




                            JUDGMENT

This appeal is filed by unsuccessful plaintiffs

challenging the concurrent finding of both the Courts that

the plaintiffs are not in possession of the suit schedule

property, and therefore, they are not entitled for perpetual

injunction.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The plaintiff filed a suit for injunction

contending that the father of defendant No.2 had executed

a sale deed on 06.03.1992 in favour of his mother in

respect of three acres of land in Re-Sy.No.19/1P1 situate

at Kasavanahalli village, Talya Hobli, Holalkere Taluk. The

plaintiff claimed that his mother was in possession and

enjoyment of the suit property and thereafter he was in

possession and his name was entered in the revenue

records. He alleged that the defendants having no

subsisting interest in the suit property, attempted to

interfere with the possession which compelled him to seek

for perpetual injunction. During the pendency of the suit,

the plaintiff died and his legal representatives were

brought on record.

4. The defendants No.1 and 2 contested the suit

and claimed that the father of the deceased plaintiff was a

money lender and that the father of the defendants

(Thimma Bhovi) had raised a hand loan from the father of

deceased plaintiff and towards security for repayment of

the loan, the father of the deceased plaintiff had obtained

some documentation from the father of the defendants.

The defendants alleged that they were in possession of the

suit schedule property and hence the suit for perpetual

injunction was not maintainable.

5. Based on the rival contentions, the Trial Court

framed the following issues :

i. Whether the plaintiff proves that he is in lawful possession of suit schedule property as on the date of institution of suit?

ii. Whether the plaintiff proves that defendants are interfering with his lawful possession of the suit property?

iii. Whether the plaintiff is entitled for the relief as sought for?

iv. What order or decree?

6. The deceased plaintiff was examined as P.W.1

and marked documents as Exs.P-1 to P-10. Later the legal

representative of deceased plaintiff, namely, plaintiff

No.1(d) was examined as P.W.2. The defendants , on the

other hand, did not lead any evidence.

7. The Trial Court noticed the deposition of P.W.1,

where he categorically stated that the defendants were in

possession of suit schedule property. For the sake of

convenience, the relevant portion is extracted below :

"zÁªÁ D¹Û EA¢UÀÆ ¥ÀæwªÁ¢UÀ¼À ¸Áé¢Ã£ÀzÀ°èAiÉÄà EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj. zÁªÉAiÀÄ°ègÀĪÀ «ZÁgÀUÀ¼À£ÀÄß £Á£Éà ºÉýzÉÝÃ£É JAzÀgÉ ¸Àj. £Á£ÀÄ zÁªÁ D¹ÛAiÀÄÄ ¸Áé¢üãÀPÁÌV zÁªÉ ºÁQgÀÄvÉÛÃ£É JAzÀgÉ ¸Àj. £Á£ÀÄ zÁªÁ D¹ÛAiÀÄ°è JA¢UÀÆ ¸Áé¢üãÀzÀ°è EgÀ°®è JAzÀgÉ ¸Àj. PÉêÀ® zÁR¯ÁwUÀ¼À ¸Áé¢üãÀ ºÉÆA¢gÀÄvÉÛÃ£É JAzÀgÉ ¸Àj.

£Á£ÀÄ zÁªÉà ¸À°è¸ÀĪÁUÀ ¸ÀºÀ ¥ÀæwªÁ¢UÀ¼Éà zÁªÁ D¹ÛAiÀÄ ¸Áé¢üãÀvÉAiÀÄ£ÀÄß ºÉÆA¢zÀÄÝ, EA¢UÀÆ CªÀgÉà ¸Áé¢üãÀvÉAiÀÄ£ÀÄß ºÉÆA¢zÁÝgÉ JAzÀgÉ ¸Àj".

8. The Trial Court noticed that the deceased

plaintiff was a Government employee and that his father

was a money lender. It also noticed the evidence of

P.W.1, who stated that his father used to obtain properties

from borrowers as security for the repayment of the loan.

Therefore, the Trial Court held that the defence raised by

the defendants was probable and hence dismissed the suit.

9. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiffs filed R.A. No.7/2019. The First

Appellate Court secured the records of the Trial Court,

heard the counsel for the parties and in terms of its

Judgment and Decree dated 24.02.2020 rejected the

appeal and confirmed the Judgment and Decree of the

Trial Court.

10. Being aggrieved by the aforesaid Judgment

and Decree, the present appeal is filed.

11. The learned counsel for appellants submitted

that the Trial Court and the First Appellate Court

committed an error in relying only upon the oral evidence

without drawing the presumption under Section 133 of the

Karnataka Land Revenue Act, 1964. He submitted that the

evidence of P.W.2 was clear inasmuch as he claimed that it

was the plaintiff who was in possession of the suit schedule

property and that they were cultivating the same. He

submitted that the Trial Court and the First Appellate Court

should have considered and applied the first principle of

law, namely possession follows title in respect of

agricultural land, and therefore, the defendants having

admitted the execution of the sale deed, could not contend

that the possession of the suit property was not delivered

to the mother of the deceased plaintiff.

12. The learned counsel for defendants, on the

other hand, submitted that the Trial Court had vividly

described the modus operandi of father of P.W.1 and held

that the father of deceased plaintiff was a money lender

and that he was in the habit of obtaining documents from

the borrowers towards security for the repayment of the

loan. He contended that the admissions in the evidence of

P.W.1 were not casual, but categorical and therefore, the

Trial Court and the First Appellate Court were right in

dismissing the suit for perpetual injunction.

13. I have considered the submissions made by

learned counsel for the parties.

14. The judgment of the Trial Court discloses that

the deceased plaintiff who was examined as P.W.1

categorically admitted that the defendants were in

possession of the suit schedule property. The defence of

the defendants that their father had raised a loan from the

father of deceased plaintiff was redeemed by the

deposition of P.W.1, where he deposed that his father was

a money lender and that he used to obtain documents

from borrowers as security for repayment of the loan.

P.W.1 further deposed that it was the defendants who

were in possession of the suit property. If that be so,

having regard to the fact that the deceased plaintiff was

not in possession of the suit schedule property, the

question of granting any injunction to protect his

possession did not arise.

15. The Trial Court and the First Appellate Court

have considered the oral and documentary evidence and

have concurrently held that the deceased plaintiff was not

in possession of the suit property. Since no substantial

question of law arises for consideration in this appeal, the

same is dismissed.

16. The legal representatives of deceased plaintiff

are at liberty to file appropriate proceedings for recovery of

the possession, subject, however, to the law of Limitation.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

hnm