Sri Halemane Bale Sab S/O Hussain vs Smt Honur Bee S/O Honur Sab
2022 Latest Caselaw 12786 Kant

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     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 03RD DAY OF NOVEMBER, 2022

                          BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.1131 OF 2008 (INJ)

BETWEEN:

HALEMANE BALE SAB
S/O HUSSAIN,
AGED ABOUT 40 YEARS, PINJAR CAST,
AGRICULTURIST,
R/O EMMIGANUR VILLAGE AND POST,
NEAR POST OFFICE, VIA KURUGOUDU,
BELLARY TALUK AND DISTRICT.               ...APPELLANT

(BY SRI.HANUMANTHAREDDY SAHUKAR., ADVOCATE)

AND:

1.      SMT.HONUR BEE
        W/O HONUR SAB,
        AGED ABOUT 38 YEARS.

2.      HONUR SAB
        S/O NOT KNOWN
        AGED ABOUT 45 YEARS,
        BOTH ARE TEA HOTEL OWNER AND
        BOTH ARE R/O EMMIGANUR VILLAGE AND POST,
        NEAR POST OFFICE, VIA KURUGOUDU,
        BELLARY TALUK AND DISTRICT.      ... RESPONDENTS

(BY SRI C.T.HANUMAREDDY, ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, PRAYING TO GRANTING PERMANENT INJUNCTION
RESTRAINING THE DEFENDANTS, THEIR MEN, AGENTS THEIR
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ASSOCIATES FROM INTERFERING WITH OR ENCROACHING ON
ANY PORTION OF SUIT SCHEDULE PROPERTY AND ETC.

     THIS REGULAR SECOND APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Sri.Hanumanthreddy Sahukar., learned counsel for

appellant has appeared in person.

2. This appeal is from the Principal Civil Judge

(Sr.Dn) and CJM, Bellary.

3. For the sake of convenience, the status of the

parties is referred to as per their rankings before the Trial

Court.

4. The facts of the case are quite simple and are

stated as under:

It is stated that the suit schedule property is an

open site. The plaintiff purchased the same on

23.08.2003 and he became the absolute owner. It is also

stated that since the date of purchase, he is in possession

and enjoyment of the same. It is averred that there was

a dilapidated house in the suit property and the same was

collapsed. It is further averred that defendants tried to

encroach the suit schedule property and disturbed the

enjoyment of the property. Contending that the

defendants interfered with his peaceful possession and

enjoyment over the suit schedule property, plaintiff filed

the suit for permanent injunction.

After service of summons, the defendants appeared

through their counsel and filed written statement. They

denied the plaint averments. It was specifically contended

that they are the absolute owners of the property bearing

door No.1472, Ward No.6 situated at Emmiganur Village

having purchased the same under a registered sale deed

dated 04.12.2004. Further, it is also contended that since

the house was in a bad condition and was unfit for

dwelling, they decided to demolish the same and

construct a new house. Accordingly, they applied for

building license to the Gram Panchayat and obtained the

license. They specifically denied the allegation of

interference and encroachment and accordingly sought

for the dismissal of the suit.

Based on the pleadings, the Trial Court framed the

following issues.

1. Whether the plaintiff proves that he has been in lawful possession of the suit schedule property as on the date of suit?

2. Whether the plaintiff proves the alleged interference?

3. Whether the plaintiff is entitled to the relief claimed?

4. What decree or order?

To substantiate the claim, plaintiff examined himself

as PW1 and a witness as PW2 and produced nineteen

documents which were marked as Ex.P.1 to P19. On the

other hand, defendant No.2 was examined as DW1 and

three more witnesses were examined as DWs-2 to 4 and

produced nine documents which were marked as Ex.D.1

to D9.

On the trial of the action, the suit came to be

decreed. On appeal, the First Appellate Court set aside

the Judgment and Decree of the Trial Court. Hence, this

Regular Second Appeal is filed under Section 100 of CPC.

5. Learned counsel for appellant and respondents

have urged several contentions.

6. Heard the contentions urged on behalf of

respective parties and perused the papers with care.

The suit giving rise to this appeal was filed by the

plaintiff seeking the relief of permanent injunction.

As could be seen from the lis between the parties

the suit is one for bare injunction. The right to injunction

is based on prima facie right. Suffice it to note that there

was a specific denial regarding the identification of the

suit property by the defendants. On the trial of the

action, it was found that plaintiff has proved the

interference by the defendants and accordingly decreed

the suit. On appeal, the Appellate Court has examined

the evidence on record and re-appraised it and set aside

the Judgment and Decree of the Trial Court and

dismissed the suit on the ground that plaintiff has failed

to prove the identification of the suit property and also

the alleged interference.

Having regard to the facts and circumstances of the

case, in my considered view, the First Appellate Court on

re-appreciation of the evidence on record, has rightly

concluded that plaintiff has failed to prove the

identification of the property and set aside the Judgment

and Decree of the Trial Court. I am satisfied that it has

been appreciated in the right perspective. Further, the

findings by the Court of fact is neither vitiated by non-

consideration of relevant evidence nor there is an

erroneous approach to the matter. I do not find any error

in the finding of fact arrived by the First Appellate Court.

The substantial questions of law are answered

accordingly.

Resultantly, the Regular Second Appeal is

dismissed.

Sd/-

JUDGE TKN