Karnataka High Court
Sri. H. P. Gopala @ Buddha vs Sri. T. C. Udaya on 11 December, 2023
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NC: 2023:KHC:44849
RSA No. 2031 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.2031 OF 2023 (INJ)
BETWEEN:
SRI.H. P. GOPALA @ BUDDHA
S/O. LATE SRI. PUTTA BANDARI
AGED ABOUT 60 YEARS
RESIDENT OF MAIN ROAD
TUDUR VILLAGE AND POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT-577 226
...APPELLANT
(BY SRI. SAMMITH S, ADVOCATE)
AND:
Digitally
signed by SRI.T.C.UDAYA
ALBHAGYA
S/O. SRI. S. P. CHANDRU
Location: AGED ABOUT 43 YEARS
HIGH
COURT OF R/O TUDUR VILLAGE AND POST
KARNATAKA THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT-577 226
...RESPONDENT
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 23.08.2023 PASSED IN
RA NO.32/2021 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, THIRTHAHALLI, DISMISSING THE APPEAL AND
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RSA No. 2031 of 2023
CONFIRMING THE JUDGMENT AND DECREE DATED
04.08.2021 PASSED IN OS NO.7/2015 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC, THIRTHAHALLI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful defendant, who has questioned concurrent
judgments and decrees of both the Courts, wherein the
plaintiff's suit seeking relief of injunction simpliciter is
decreed by both the Courts.
2. For the sake of brevity, the parties are
referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under;
The plaintiff has instituted the present suit
seeking injunction against defendant in respect of the suit
schedule property. The plaintiff claims that his father has
purchased suit property from one T.Sheenappa Shetty
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under a registered sale deed dated 23.12.1971. The
plaintiff further contended that after purchase, his father
has constructed a residential house in the schedule
property and from the date of purchase, the plaintiff's
father is in exclusive possession. The plaintiff has further
pleaded that suit property is the self acquired property of
his father. The plaintiff has further placed reliance on the
registered settlement deed dated 08.02.2008 executed by
his father and is claiming that he is the absolute owner in
exclusive possession and enjoyment over the suit schedule
property. Alleging interference by the defendant, the
present suit is filed.
4. The defendant on receipt of summons
tendered appearance and filed written statement and
stoutly denied entire averments made in the plaint.
5. The defendant on the contrary claimed that
under the garb of seeking injunction, the plaintiff is falsely
laying a claim over the property owned by the defendant.
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The defendant claimed that his father was granted a
portion of the land in Sy. No.18 and that his father has
constructed a residential house. The defendant is residing
in the said house. On these set of defence, the defendant
sought for dismissal of the suit.
6. The plaintiff to substantiate his claim has let in
oral and documentary evidence and has produced copy of
the sale deed, which is marked at Ex.P.1. The plaintiff has
further produced copy of the settlement deed, which is
marked at Ex.P.2. Tax paid receipts and original sale deed
and title documents are also placed on record vide Exs.P.3
to 9.
7. The defendant, though denied plaintiff's
possession over suit schedule property, however, has not
chosen to lead any rebuttal evidence. The five documents,
which were confronted during cross-examination of the
plaintiff, were marked on behalf of the defendant vide
Exs.D.1 to D.5.
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8. The Trial Court having examined pleadings,
oral and documentary evidence let in by the plaintiff and
having taken cognizance of the title document, which is
produced at Ex.P.1, answered issue Nos.1 and 2 in the
Affirmative. The Trial Court held that the plaintiff has
succeeded in proving his possession over the suit schedule
property. Referring to the tenor of the stand taken by the
defendant in the written statement, the Trial Court held
that plaintiff has succeeded in substantiating that
defendant is guilty of interfering with plaintiff's peaceful
possession. Consequently, suit is decreed and the
defendant is restrained from interfering with plaintiff's
peaceful possession and enjoyment over the suit schedule
property.
9. The defendant feeling aggrieved by the
judgment and decree of the Trial Court preferred an
appeal before the Appellate Court. The Appellate Court has
independently assessed entire materials on record.
Referring to the evidence on record, the Appellate Court
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was also of the view that the plaintiff has placed on record
title document, which is marked at Ex.P.1 in
substantiating his lawful possession and consequently, the
appeal is dismissed.
10. Heard learned counsel appearing for the
defendant and perused the concurrent findings.
11. Learned counsel appearing for the defendant
vehemently argued and contended that both the Courts
erred in granting perpetual injunction in favour of plaintiff
and persuaded this Court to take cognizance of the
settlement deed, which is marked at Ex.P.2. Though the
learned counsel appearing for the defendant contended
that if there is dispute in regard to identity of the property,
this Court is not inclined to accede to the said argument.
The plaintiff to substantiate his lawful possession as on the
date of filing of the suit has produced copy of the sale
deed secured by his father. Interestingly, defendant has
not seriously contested the sale deed. The Trial Court at
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para No.22 of the judgment has taken cognizance of this
fact and has held that defendant has admitted the sale
deed secured by plaintiff's father in respect of the suit
schedule property. The suit is resisted by the defendant
contending that in the very same survey number, the
defendant's father, who is none other than the grandfather
of the plaintiff, has acquired property pursuant to the
grant made by the Government by confronting the
documents. De-hors this rebuttal evidence vide Ex.D.1,
which is marked by way of confrontation, both the Courts
were required to examine, whether plaintiff has succeeded
in proving his lawful possession over the suit schedule
property.
12. The next point for consideration in a bare suit
for injunction is that, whether there is an interference by
the defendant. Though defendant asserted that he owns
residential house in Sy. No.18, which is the subject matter
of the suit. The subject matter of the suit is a Mangalore
Tiled House property No.440/4, totally measuring
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East - West 18 yards and North - South 10 yards.
The schedule indicated in the plaint more particularly in
regard to existence of the property and boundary details
tallies with the schedule indicated in the sale deed vide
Ex.P.1. The fact that the defendant is also asserting that
he owns a residential house in the very same survey
number gives an indication that defendant is virtually
laying a claim over the suit schedule property.
13. This Court is bound to take cognizance of the
fact that the plaintiff is the nephew of the defendant and
since the parties are related, in all probability, the
defendant, who is the uncle of the plaintiff, is trying to
assert and lay a claim over the suit schedule property.
To counter the title document vide Ex.P.1, the defendant is
heavily banking on Ex.D.1, which is issued by the
Tahasildar. If this document is tested and weighed against
title document vide Ex.D.1, this Court is more than
satisfied that the defendant has failed to displace the
plaintiff's case in regard to lawful possession and
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interference by leading rebuttal evidence. Both the Courts
referring to the title documents and also taking note of the
fact that defendant has not seriously disputed the
acquisition of the suit schedule property by the plaintiff's
father have concurrently held that plaintiff has succeeded
in proving his possession as on the date of filing of the
suit. Both the Courts have concurrently held that the
interference is substantiated by the plaintiff. On examining
conclusions and findings recorded by both the Courts, no
substantial question of law arises for consideration.
Accordingly, the second appeal is dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
