Kapila Bhavi Srinivasappa @ ... vs Smt. Fazeela
2023 Latest Caselaw 5735 Kant

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                                                            NC: 2023:KHC:29517
                                                        RSA No. 889 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 18TH DAY OF AUGUST, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO. 889 OF 2017 (INJ)

                   BETWEEN:

                   1.    KAPILA BHAVI SRINIVASAPPA @
                         KAPILA BHAVI SRINIVASAIAH,
                         S/O KAPILA BHAVI KRISHNAPPA,
                         AGED ABOUT 84 YEARS
                         AGRICULTURIST,
                         R/AT KAIWARA VILLAGE,
                         CHINTHAMANI TALUK,
                         CHIKKABALLAPUR DISTRICT-563 128.
                                                                  ...APPELLANT
                                 (BY SRI RAJARAM T., ADVOCATE)

                   AND:

Digitally signed   1.    SMT. FAZEELA
by SHARANYA T            W/O SAYED MUSTAQ
Location: HIGH           AGED ABOUT 41 YEARS
COURT OF
KARNATAKA                R/AT KAIWARA VILLAGE
                         CHINTHAMANI TALUK
                         CHIKKABALLAPUR DISTRICT-563 128.
                                                              ...RESPONDENT
                                (BY SRI K.L.PRABHAKAR, ADVOCATE)
                        THIS R.S.A IS FILED UNDER SEC.100 OF CPC., AGAINST
                   THE JUDGMENT AND DECREE DATED 03.04.2017 PASSED IN
                   R.A. NO.60/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
                   AND JMFC., CHINTAMANI., DISMISSING THE APPEAL AND
                   MODIFYING THE JUDGMENT AND DECREE DATED 10.04.2015
                   PASSED IN O.S. NO.185/2009 ON THE FILE OF THE PRL. CIVIL
                   JUDGE AND JMFC., CHINTAMANI.,
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                                             NC: 2023:KHC:29517
                                            RSA No. 889 of 2017




     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                             JUDGMENT

This matter is listed for admission and heard the

learned counsel for appellant.

2. The Factual matrix of the case of the

appellant/plaintiff before the Trial Court in OS No.185/2009

that he is in actual possession and enjoyment of the suit

schedule property as on the date of the filing of suit and also

alleged that there is an interference by the defendant. Hence,

the relief is sought for injunction.

3. The Trial Court has framed the issue considering

the pleadings of plaintiff with regard to whether the plaintiff

was in possession as on the date of the suit and whether there

is any interference. The plaintiff in order to prove his case, he

himself examined as PW1 and got marked the documents as

Ex.P1 to Ex.P20. On the other hand the defendant has also

examined herself as DW1 and also examined two witnesses

DW2 and DW3 and got marked the documents as Ex.D1 to

Ex.D8.

NC: 2023:KHC:29517 RSA No. 889 of 2017

4. The Trial Court having considered both oral and

documentary evidence, even though the number of documents

produced before the Trial Court, the Trial Court comes to the

conclusion that those documents produced are not pertaining to

the suit schedule property since suit schedule property is in

Gramatana as such no khata number was given to suit

schedule property by the concerned grama panchayat. Hence,

comes to the conclusion that such being the case Ex.P3 to

Ex.P5 are related to property No.691 to 695 and Ex.P3 to Ex.P5

not discloses that boundaries.

5. Having considered the oral and documentary

evidence, the Trial Court comes to the definite conclusion that

the plaintiff has not proved the possession as on the date of

filing of the suit and on the other hand taking into consideration

of documents produced by defendant it is the probable case of

the defendant and hence answered the issue No.1 as negative

as the plaintiff is not in possession of the suit schedule property

and he has not proved the possession in respect of the suit

schedule property and also comes to the conclusion that no

such interference as alleged in the plaint.

NC: 2023:KHC:29517 RSA No. 889 of 2017

6. Being aggrieved by order of the Trial Court an

appeal is filed and in the appeal the appellant has also urged

the ground that the Trial Court has not considered the matter in

a proper prospective and ignored the documents which have

been produced. The First Appellate Court also having consider

the grounds urged in the appeal memo, formulated the point as

to whether the Trial Court is justified in bounding that the

plaintiff has failed to prove his actual possession and

enjoyment of the suit schedule property as on the date of suit

and any interference by the defendants.

7. The First Appellate Court also comes to the

conclusion that on re-appreciation of both oral and

documentary evidence, the Trial Court is justified in coming to

the conclusion that possession has not been proved by the

plaintiff and interference has also not been proved and taking

into note of the grounds urged in the appeal memo, the First

Appellate Court comes to the conclusion that the documents

which have been produced by the plaintiff i.e., Ex.P1 to Ex.P20

wherein Ex.P1 is the compromise petition and Ex.P2 is the

compromise decree and other documents are tax paid receipts,

certified copy of judgment in RA No.18/1997 and also RTC

NC: 2023:KHC:29517 RSA No. 889 of 2017

extracts and comes to the conclusion that the defendant was

not a party in OS No.354/2012. The suit schedule property was

in gramatana. Hence, Ex.P1 to Ex.P8 which have been

produced before the Trial Court does not pertain to the suit

schedule property and it cannot establishes the possession. On

the other hand documents produced by the defendant also

taken note of particularly the registered sale deed and other

documents and also considering the evidence of defendant

witnesses, thus comes to the conclusion that the plaintiff has

not proved his possession of the suit schedule property.

8. Being aggrieved by concurrent finding, the present

second appeal is filed before this Court. The main contention of

the counsel appearing for the appellant that both the Courts

have ignored the material on record and erroneously comes to

the conclusion that possession has not been proved in spite

considering the documents at Ex.P1 to Ex.P20 which are

produced with regard to the possession of the appellant over

the suit schedule property and also fails to consider the

admitted fact that there was utter enmity between the

witnesses of the defendant and the plaintiff i.e., PW1, the said

oral evidence of PW1 was not considered by the Court and also

NC: 2023:KHC:29517 RSA No. 889 of 2017

fails to take note of the documents at Ex.P18 and Ex.P20 i.e.,

an endorsement issued by the concerned authority with regard

to the boundaries.

9. The counsel also vehemently contend that both

Courts below have not considered the genuineness of the sale

deed which is in possession of the respondent where the

appellant has raised objections regarding the evidentiary value

under Section 90 of the Indian Evidence Act and also both the

Courts have not considered and appreciated the documents at

Ex.P1 to Ex.P20 and hence prayed this Court to frame

substantive question of law with regard to the said aspect.

10. Having heard the appellant's counsel and also on

perusal of documents available on record, when the plaintiff

has filed the suit for the relief of permanent injunction, the

burden is on the plaintiff to prove that he is in possession of the

suit schedule property as on the date of filing of the suit and no

doubt plaintiff has relied upon the document at Ex.P1 to Ex.P20

and also admittedly property is located within the gramatana

and in respect of the suit schedule property though particularly

relied upon the documents at Ex.P1 to Ex.P8 and those

documents are not pertaining to the suit schedule property and

NC: 2023:KHC:29517 RSA No. 889 of 2017

same is observed by the Trial Court as well as the First

Appellate Court and also when the plaintiff fails to prove the

possession and no document on record to prove the possession

and cardinal principle granting an order of injunction also as on

the date of the filing of the suit, the plaintiff has to prove the

possession and then he has to prove with regard to the

interference and unless possession is proved the question

coming to other conclusion that there is no question of

interference arises.

11. Both the Courts have given reason on consideration

of the material available on record and when the plaintiff fails

to prove his possession in respect of the suit schedule property

and no material is placed before the Court with regard to his

possession, both the Courts comes to the conclusion that

possession has not been proved, when such being the case,

granting of other ancillary relief also does not arise unless

possession established by the plaintiff as on the date of the

suit.

12. The Trial Court has also framed proper issue with

regard to the possession is concerned, since the suit is filed

NC: 2023:KHC:29517 RSA No. 889 of 2017

only for the relief of possession and interference and issue No.2

is also framed with regard to the interference is concerned and

both the issues are answered as negative. Considering both

oral and documentary evidence, the contention of the

appellant's counsel that this Court has to frame substantive

question of law with regard to not considering the genuineness

of the sale deed which is in possession of the respondent where

the appellant has raised an objection regarding its evidentiary

value does not arise in a suit for bare injunction and suit is not

for the relief of declaration. The contention of the counsel for

appellant that the very sale deed is not valid and such question

does not arise unless possession is established by the plaintiff

by placing document in respect of the sale is concerned, since

the suit is only for the relief of bare injunction and hence I do

not find any ground to frame substantive question of law and

no such case is made out warranting invoking Section 100 of

CPC. Both the Trial Court as well as the First Appellate Court

having considering both oral and documentary evidence and

considered the material on record and only in second appeal

Court can exercise substantive question of law if material is

ignored by Trial Court and First Appellate Court and such

NC: 2023:KHC:29517 RSA No. 889 of 2017

circumstances is not found in the case on hand. Hence, I do not

find any ground to admit and frame any substantive question of

law.

13. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

RHS