Karnataka High Court
Sri. N. S. Srinivas vs Sri. N. D. Surendra on 14 December, 2023
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NC: 2023:KHC:45578
RSA No. 1456 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1456 OF 2023 (INJ)
BETWEEN:
SRI. N. S. SRINIVAS,
SON OF SRI. SUBBEGOWDA,
AGED ABOUT 66 YEARS,
RESIDENT OF HAROGOLIGE VILLAGE,
MUTTUR HOBLI, THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT - 577 432.
...APPELLANT
(BY MS. BUDDHI NISHITA GAURI, ADVOCATE)
AND:
SRI. N. D. SURENDRA,
SON OF SRI. DUGGANNA GOWDA,
AGED ABOUT 56 YEARS,
Digitally signed RESIDENT OF HAROGOLIGE VILLAGE,
by SUCHITRA M
J MUTTUR HOBLI, THIRTHAHALLI TALUK,
Location: High
Court of SHIVAMOGGA DISTRICT - 577 432.
Karnataka
...RESPONDENT
(BY SRI. HARSHA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 25.03.2023
PASSED IN RA NO.15/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 20.03.2021 PASSED IN OS NO.49/2017 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.
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NC: 2023:KHC:45578
RSA No. 1456 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiff, who has questioned the concurrent
judgments of the Courts below, wherein plaintiff's suit for
injunction simplicitor filed in O.S.No.49/2017 is dismissed.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The plaintiff has filed the present suit seeking
injunction in respect of property bearing No.16/13
measuring 250 feet east-west and 250 feet north-south.
The plaintiff claims that he is in possession and enjoyment
over the suit schedule property for the last 25 years and
that he is paying taxes to the Grama Panchayath. Plaintiff
further pleaded that property was originally standing in the
name of his father and after his demise, plaintiff has
inherited the property and is in possession. The present
suit is filed alleging that defendant, who has no semblance
NC: 2023:KHC:45578
of right and title and who is the owner of the adjoining
property, is obstructing and interfering with the plaintiff's
peaceful possession. Hence, the present suit is filed.
4. Defendant on receipt of summons, tendered
appearance, filed a written statement and stoutly denied
the entire averments made in the plaint. Defendant
claimed that plaintiff's father, along with present plaintiff
and plaintiff's brother, have sold the suit schedule
property in favour of defendant's father under a registered
sale deed dated 31.08.1970 for a sale consideration of
Rs.2000/-. The defendant, therefore, contended that
plaintiff's family, having sold the suit property, is now
falsely laying a claim by creating a fictional property,
which is not at all in existence.
5. Plaintiff and defendant to substantiate their
respective claims have let in oral and documentary
evidence.
6. The Trial Court, referring to the title documents
produced by the defendant vide Ex.D.1 coupled with
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several admissions elicited in cross-examination of
plaintiff, answered issue Nos.1 and 2 in the negative and
dismissed the suit. While answering issue No.1 in the
negative, the Trial Court, taking cognizance of several
admissions elicited in cross-examination of plaintiff, held
that defendant has succeeded in substantiating that
plaintiff's family, having sold the suit schedule property
way back in 1972, cannot seek an injunction. The
plaintiff's contention that the defendant, having purchased
the property in 1972, has not paid the entire sale
consideration was also not exceeded too. The Trial Court
also held that plaintiffs claim over the suit schedule
property's with specific boundaries and extent is found to
be doubtful. Referring to rebuttal evidence let in by the
defendant, the Trial Court held that plaintiff's father has
purchased the suit property for valuable sale consideration
and therefore held that plaintiff is not entitled to seek an
injunction. While answering issue No.1 in the negative, the
Trial Court held that the plaintiff has failed to substantiate
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his lawful possession. The Trial Court also held that alleged
interference was not established by the plaintiff.
7. Plaintiff feeling aggrieved by the judgment and
decree of the Trial Court, preferred an appeal before the
appellate Court. The Appellate Court, being a final fact-
finding authority, has independently assessed the entire
evidence on record. The Appellate Court, on independent
assessment of the evidence on record, has also concurred
with the findings and conclusions recorded by the Trial
Court in regard to the boundary, location and complete
topography of the suit property. Consequently, appeal is
dismissed.
8. Heard learned counsel appearing for the
plaintiff and learned counsel appearing for the defendant. I
have given my anxious consideration to the judgment
cited by the learned counsel appearing for the plaintiff.
9. Plaintiff is asserting that he is in lawful
possession of property bearing old kanishmari No.72/87-
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88 totally measuring 250 feet east-west and 250 north-
south. During trial, defendant, by leading rebuttal
evidence, has succeeded in establishing that plaintiff's
father has sold the property that was allotted to his father
in a family partition to which plaintiff is a signatory.
Defendant, apart from producing the title document, has
also successfully succeeded in eliciting in cross-
examination of plaintiff that property that was allotted to
plaintiff's father in a family partition is sold to defendant's
father under a registered sale deed for valuable sale
consideration. Interestingly, the defendant has also
succeeded in eliciting in cross-examination the extent,
boundary and location of the property, i.e., sold to the
father of the defendant herein. The defendant has further
succeeded in eliciting that the property under the said
boundaries is the very suit property. Though both the
Courts have not culled out the relevant paragraphs of
cross-examination, I deem it fit to cull out the cross-
examination, wherein the plaintiff has tendered several
categorical admissions that go to the root of the case.
NC: 2023:KHC:45578
These admissions are found to be fatal to the plaintiff's
case.
"ನನ ತಂ ೆ ಮತು ಅವರ ಸ ೋದರರ ಮ ೆ ಆ ರುವಂತಹ ಾ ಪತ
ನನ ಬ ಇರುವ!"ಲ$.
ನನ ತಂ ೆ ೆ %ೆ ಬಂ"ರುವ ಸ&'ನ ದ(ಣ "*+%ೆ ,ೆಂ-ೆ ಮಂಜಣ/ ಇವರ
ಕಣ, ಪ12ಮ "*+%ೆ ಕಣ ಇರುತ ೆ ಎಂದ4ೆ ಸ5ಯಲ$. ಬಸಪ7%ೌಡರ ಮ,ೆ
ಇರುತ ೆ. ನನ ತಂ ೆ%ೆ ೆ ಯ:$ ಬಂ"ರುವಂತಹ ಮ,ೆಯ ಪ;ವ< "*+%ೆ
ಪ '=ಾ"ಗಳ ಮ,ೆ ಬರುತ ೆ ಎಂದ4ೆ ಸ5. ಪ;ವ< "*+ನ:$ ಬರುವಂತಹ
ಮ,ೆಯನು ,ಾವ! ಪ '=ಾ" ತಂ ೆ%ೆ @ಾ4ಾಟ @ಾBರುCೇ=ೆ ಎಂದ4ೆ
ಸ5ಯಲ$. ":31-08-1970 ರ:$ ಶುದE ಕ ಯ ಪತ ದ ಮೂಲಕ =ಾಸದ
ಮ,ೆ ಮತು FೊGH%ೆಯನು ,ಾನು ಮತು ನನ ತಂ ೆ ೇ5 ಪ '=ಾ"ಗ
ತಂ ೆ%ೆ ರೂ. 2,000-00 Fೆ+ @ಾ4ಾಟ @ಾBರುCೇ=ೆ ಎಂದ4ೆ ಸ5ಯಲ$.
ನನ ಸ&'ನ ಅಳCೆ ಮತು ಚಕು+ಬಂ"ಯನು Cೋ5ಸುವಂತಹ Kಾವ! ೇ
ಾಖMೆಯನು ,ಾನು %ಾ ಮ ಪಂNಾಯ'Oಂದ ಪPೆ"ರುವ!"ಲ$. RS-7 ರ:$
ಕ ಮ ಸಂVೆ 12 ನನ ಸ&'%ೆ ಸಂಬಂಧಪGHರುತ ೆ. Vಾ,ೇಷು@ಾ5
ನಂಬರನು %ಾ ಮ ಪಂNಾಯ' ಾಖMೆಗಳ:$ ಈಗ ಬ4ೆಯುವ!"ಲ$ ಎಂದ4ೆ
ಸ5, RS-7 ರ:$ ಇರುವ ನನ ಸ&'%ೆ ಸಂಬಂಧಪಟHಂCೆ ,ಾನು %ಾ ಮ
ಪಂNಾಯ'Oಂದ B@ಾಂ] 5^ಸH_ ಎಕ `ಾ ಕHನು ಪPೆ"ರುCೇ,ೆ. ಾ=ೆ
ಾಕು=ಾಗ ನನ ಸ&'ನ a.S.B ನಂಬ_ ಏRತು ಎಂದು ನನ%ೆ ಸ5Kಾ
%ೊ'ಲ$."
10. On examining the culled-out admissions elicited
in cross-examination of plaintiff, two things emerge.
Plaintiff's contention that though his father sold the
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property as indicated in cross-examination, he has
retained a portion is not substantiated by the plaintiff by
producing cogent and clinching evidence. The plaintiff has
also not substantiated from the recitals in the sale deed,
vide Ex.D.1, as to which side he has retained the portion
that is now claimed to be the property owned by the
plaintiff. It appears on the strength of the property
number assigned by the grama panchayath, plaintiff is
now asserting that the property that was sold to the
defendant and the subject matter of the suit are different.
Both the Courts, referring to the evidence on record, have
come to the conclusion that, under the garb of seeking an
injunction in respect of property bearing old kanishmari
No.72/87-88 totally measuring 250 feet east-west and 250
north-south, plaintiff is virtually laying a claim over the
property that was sold to defendant under Ex.D.1. Both
the Courts have concurrently held that the plaintiff has
failed to establish his lawful possession. In fact, both the
courts have recorded a categorical finding that the very
NC: 2023:KHC:45578
existence of the property is not substantiated by the
plaintiff.
In the light of discussion made supra, no substantial
question of law would arise for consideration. The regular
second appeal is devoid of merits and accordingly stands
dismissed.
Though this Court has absolutely no cavil to the
principles in the judgment cited by the learned counsel
appearing for the plaintiff, the said principles are not
applicable to the present case on hand.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
