Karnataka High Court
Sri. Rajarathnam vs Sm. Gangalakshamamma on 24 August, 2023
Bench: H.P.Sandesh
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RSA No. 811 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 811 OF 2019 (INJ)
BETWEEN:
1. SRI RAJARATHNAM
SON OF LATE AJJANNA,
AGED ABOUT 63 YEARS,
RESIDING AT NO.185,
GUNDAPPA GOWDA ROAD,
EJIPURA MAIN ROAD,
VIVEKNAGAR,
BENGALURU-560047.
...APPELLANT
(BY SRI RAVINDRANATH K, ADVOCATE FOR
SRI S.V. SHASTRI., ADVOCATE)
AND:
Digitally signed
by SHARANYA T 1. SMT. GANGALAKSHAMAMMA
Location: HIGH W/O LATE MUNISIDDAPPA
COURT OF AGED ABOUT 75 YEARS,
KARNATAKA
RESIDING AT THIMMABOVIPALYA,
DASANAPURA HOBLI,
BENGALURU RURAL (D)-562123.
2. SRI RAMACHANDRA
S/O KULAJAPA,
AGED ABOUT 75 YEARS,
RESIDING AT NO.20,
1ST MAIN ROAD,
SAMPAGIRAMANAGAR
BENGALURU-560027.
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3. SRI G. PRATHAP KUMAR
S/O YELE GOVINDAPPA
AGED ABOUT 41 YEARS,
RESIDING AT KARNATAKA LAYOUT
KURUBARAHALLI
BASAVESWARANAGAR
BENGALURU-560079.
...RESPONDENTS
THI R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2018
PASSED IN R.A.NO.33/2016 ON THE FILE OF THE SENIOR
CIVIL JDUGE NELAMANGALA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2015
PASSED IN O.S.NO.164/2007 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, NELAMANGALA.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant. The
counsel for appellant submission is accepted.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that plaintiff is the owner of the site No.18
situated in Sy.No.111 of Shivanapura Village by virtue of an
agreement of sale dated 11.06.1997. The defendant No.1
handed over the suit schedule property to the defendant No.2
by means of power of attorney and agreed to sell the suit
schedule property for a sum of Rs.24,000/- and the plaintiff has
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paid the entire sale consideration amount to the defendant
No.1 and she put him in possession of the suit schedule
property. The defendant No.1 has agreed to sell the same
contending that by virtue of a partition entered into among the
members of her family dated 08.06.1969, the defendant No.1
was allotted 1 acre, 1 gunta of land in Sy.No.111. As per the
partition, the property mutated in M.R.No.2/92-93 and number
of sites, out of which the site No.18 was agreed to be sold in
favour of the plaintiff. The defendant No.1 was in need of
money for their family necessity and daughter marriage and in
view of the ban imposed by the Government of Karnataka, the
document is not registered. The plaintiff constantly requesting
to execute the sale deed in his favour, but the defendant is
postponing the same for one or the other reasons. The
defendant No.1 has formed a layout showing the location of the
sites agreed to be sold in favour of the plaintiff. After
ascertaining the boundaries of the layout plan and the
agreement of sale, the plaintiff took possession and continued
to be in possession of the sites. Without any right, title or
interest over the suit schedule property, the defendant No.2
came to plaintiff's site in 3rd week of March, 2007 and tried to
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disturb his possession. The defendants are the powerful
personality in the area and disturbed the possession of the
plaintiff. Hence, sought for the relief of permanent injunction.
3. In pursuance of the suit summons, the defendant
No.2 appeared through counsel and not chosen to file any
written statement. The defendant No.1 has appeared through
his counsel and denied the plaint averments and contended
that the plaintiff is totally stranger and he has no manner of
right, title, interest or possession over the suit schedule
property. The agreement of sale is got up, concocted, created
and fraudulent documents and the same has no value in the
eye of law. The defendant No.1 along with the family members
sold the entire land bearing Sy.No.111, measuring 3.11 guntas
to the defendant No.2 through registered sale deed dated
27.12.2006 for valuable consideration. The defendant No.2 is
in peaceful possession and enjoyment of the property including
the suit schedule property.
4. The plaintiff, in order to prove his case, examined
himself as P.W.1 and got marked the documents as Exs.P1 to
P4. On the other hand, the defendant No.1 has examined
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herself as D.W.1 but, not tendered herself for cross-
examination.
5. The Trial Court, having considered both oral and
documentary evidence placed on record, dismissed the suit.
Being aggrieved by the judgment and decree of the Trial Court,
an appeal is filed before the First Appellate Court in
R.A.No.33/2016. The First Appellate Court also, considering
the grounds urged in the appeal memo, formulated the points
whether the Trial Court has erred in holding that the plaintiff is
not in possession of the suit schedule property and whether the
judgment and decree passed by the Trial Court is liable to be
set aside. The First Appellate Court also, on re-appreciation of
both oral and documentary evidence placed on record,
dismissed the appeal and confirmed the judgment of the Trial
Court. Hence, the present second appeal is filed before this
Court.
6. Learned counsel appearing for the appellant would
vehemently contend that both the Courts have committed an
error in not considering the documents of Exs.P1 and Ex.P3 -
General Power of attorney and Ex.P2 and Ex.P4 affidavits and
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even the defendant No.2 has not filed any written statement
and only the defendant No.1, who sold the property by
executing the document of Exs.P1 to Ex.P4 has filed the written
statement denying the averments of the plaint. Hence, this
Court has to frame the substantial question of law whether the
Courts below have committed an error in dismissing the suit
and confirming the judgment and decree of the Trial Court.
7. Having heard the learned counsel appearing for the
appellant and on perusal of the material available on record, it
is the case of the plaintiff that defendant No.1 sold Site No.18
formulated in Sy.No.111 and the sale agreement is not
registered. The General Power of Attorney was marked as
Ex.P1 and Ex.P3 and the affidavits were marked as Ex.P2 and
Ex.P4 before the Trial Court. No doubt, even the first
defendant, who has filed the written statement and examined
herself has not tendered for cross-examination. But, the fact is
that they are relying upon the sale agreement as well as the
General Power of Attorney and in order to establish that the
possession has been delivered in favour of the plaintiff no
document had been placed before the Trial Court. While
considering the suit for injunction, the plaintiff has to prove
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that as on the date of filing of the suit, she has been in
possession of the property. The first defendant, who allegedly
executed the power of attorney as well as the affidavits, also
filed the written statement denying the very execution of
Exs.P1 to P4. When D.W.1 disputes the documents of Exs.P1 to
P4, no document is placed before the Court that as on the date
of filing of the suit, the plaintiff has been in possession of the
suit schedule property. The Trial Court considering the
pleadings of the parties and also the evidence came to the
conclusion that the plaintiff has failed to prove her contention
by placing any cogent material piece of evidence before the
Court and the interference of the defendant is also not proved
by the plaintiff. When the plaintiff herself has failed to prove
her lawful possession and ownership over the suit schedule
property as well as its existence then definitely there is no
question of causing interference with the possession of the
plaintiff over the suit schedule property.
8. The First Appellate Court in detail discussed the
material available on record by formulating the points and
taken note of the pleadings of the parties. In paragraph No.16,
has observed that the plaintiff has not examined any other
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witnesses to prove the fact that he has been in possession and
enjoyment of the suit schedule property and the plaintiff has
not even produced any other document to show that he is in
possession in suit schedule property from 2005. The Court also
taken note that in the cross-examination, he has admitted that
there is no any Kararu in between the plaintiff and defendant
No.1 and also admits that the suit schedule property possession
was not given and this is evident that the second defendant has
encroached the suit schedule property in the year 2007 itself.
Hence, he has been made as a party to the proceedings.
9. Having taken note of this admission, the First
Appellate Court came to the conclusion that P.W.1 herself has
admitted that defendant No.1 has not delivered the possession
of the suit schedule property and also she has admitted that
during the year 2007, defendant No.3 has encroached the suit
schedule property, which clearly goes to show that the plaintiff
has not been in possession and enjoyment of the suit schedule
property. Hence, the First Appellate Court also on re-
appreciation of oral and documentary evidence came to the
conclusion that the lawful possession has not been established
by the plaintiff.
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10. Having considered the reasoning given by the Trial
Court as well as the First Appellate Court and both the Courts
have given the anxious consideration to the material available
on record except the documents-Exs.P1 to P4, no other
material has been placed before the Court and the plaintiff also
not examined any other witness to prove his possession. Apart
from that, in the cross-examination, he categorically admitted
that the possession was not delivered and also defendant No.3
has encroached the suit schedule property. When such
admission is given and when the plaintiff failed to establish the
possession, the question of granting the relief of permanent
injunction does not arise. Both the Trial Court as well as the
First Appellate Court considered the material available on
record and dismissed the suit, the same has been confirmed by
the First Appellate Court. Hence, I do not find any ground to
admit and frame any substantial question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
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RSA No. 811 of 2019
In view of dismissal of the appeal, I.As., if any do not
survive for consideration, the same stands disposed of.
Sd/-
JUDGE
RHS
