Karnataka High Court
Sri Byraiah vs Sri Dodda Mayanna on 15 February, 2023
Bench: H.P.Sandesh
-1-
RSA No. 358 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.358 OF 2017 (DEC/INJ)
BETWEEN:
1. SRI BYRAIAH
S/O KARIYAPPA
AGED ABOUT 54 YEARS
2. SMT. BHAGYAMMA
W/O BYRAIAH
AGED ABOUT 51 YEARS
BOTH ARE R/AT HUNASEDODDI
VILLAGE, KOOTAGAL HOBLI
RAMANAGARA TALUK
AND DISTRICT-562159.
...APPELLANTS
Digitally signed
(BY SRI. B.M.LOKESH., ADVOCATE)
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
1. SRI DODDA MAYANNA
S/O LATE VEERABHAREGOWDA
AGED ABOUT 79 YEARS
R/AT HUNASEDODDI VILLAGE
KOOTAGAL HOBLI
RAMANAGARA TALUK
AND DISTRICT-562159
2. SMT. LINGAMMA
D/O BYRAIAH
W/O SIDDEGOWDA
AGED ABOUT 72 YEARS
-2-
RSA No. 358 of 2017
R/AT ABBURUDODDI VILLAGE
MALUR HOBLI
CHANNAPATTANA TALUK
RAMANAGARA DISTRICT-562108
...RESPONDENTS
(BY SRI BASAVARAJU P., ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.10.2016 PASSED IN
RA NO.16/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE, RAMANAGARA AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the respective parties.
2. This appeal is filed challenging the judgment
and decree dated 21.10.2016 passed in R.A.No.16/2013
on the file of the Additional Senior Civil Judge,
Ramanagara.
RSA No. 358 of 2017
3. The factual matrix of the case of the plaintiff
before the Trial Court is that he had purchased the suit
schedule property measuring 142 feet east to west and 67
feet north to south through a sale deed dated 30.01.1984.
The schedule property was situated in the survey number
but in the sale deed, katha number was mentioned, hence,
a rectification deed was executed on 25.02.1985. It is
further contended that since from the date of sale deed,
the plaintiff is in possession of the suit schedule property.
Defendant No.1 is the daughter of Byrappa and one of the
vendor of the plaintiff, defendant No.2 is the son of
brother of Byrappa and defendant No.3 is the wife of
defendant No.2. The defendants though have no manner
of right, title or interest over the suit schedule property,
are trying to interfere with his possession denying his title
thus, the suit was filed against the defendants seeking for
the relief of declaration and injunction.
4. In pursuance of the suit summons, the
defendants have appeared before the Court and filed
RSA No. 358 of 2017
written statement contending that his father Byrappa died
even prior to 1980 therefore, the sale deed produced by
the plaintiff is a created document. It is further
contended that she is an educated lady and she puts her
signature and not LTM as found in the alleged sale deed.
It is also contended that, out of 2 acres, 5 guntas, his
father had sold 20 guntas to Basavalingaiah and 16 guntas
to Narasimhaiah and the remaining 1 acre, 4 guntas was
partitioned among the sons of Kariyappa to an extent of
11 guntas each. It is further contended that the plaintiff is
neither the owner nor in possession of the suit property.
5. The defendant Nos.2 and 3 have also filed the
written statement denying the plaint averments and
contend that the father of the defendant No.2-Kariyappa
had 4 sons and they have partitioned 1 acre, 4 guntas
each. It is also contended that he has sold 4 guntas along
with the entire shares of his brothers Shivanna and
Basavaraju, totally measuring 26 guntas in favour of
Sadashivaiah. It is also contended that the remaining 7
RSA No. 358 of 2017
guntas was in his possession which is the suit property. It
is further contended that, after obtaining ex-parte decree
from this Court, the plaintiff encroached the said property
and put up construction illegally in the suit property which
is described as 'B' schedule property. In the written
statement, the defendant Nos.2 and 3 have also sought
for counter claim seeking the relief of possession and
mandatory injunction.
6. The Trial Court, based on the pleadings of the
parties, framed the issues and the plaintiff has examined
the P.A. holder as P.W.1 and got marked the documents
as Exs.P1 to P27 and also examined two witnesses as
P.Ws.2 and 3. The defendants have examined the
defendant Nos.1 and 3 as D.Ws.1 and 2 and got marked
the documents as Exs.D1 to D17.
7. The Trial Court, after considering both oral and
documentary evidence placed on record, decreed the suit
for the relief of declaration and injunction accepting the
case of the plaintiff. Being aggrieved by the judgment and
RSA No. 358 of 2017
decree, appeal is filed in R.A.No.16/2013 and the First
Appellate Court modified the judgment declining to grant
the relief of declaration and granted permanent injunction
and so also dismissed the counter claim made by the
defendant Nos.2 and 3. Hence, the present appeal is filed.
8. Learned counsel appearing for the appellants
would vehemently contend that both the Courts committed
an error in granting the relief of permanent injunction,
even though the plaintiff has not proved the title deeds
and not mentioned the identity of the property. It is also
contended that the First Appellate Court also not justified
in decreeing the suit for the relief of permanent injunction
and committed an error in granting the relief of permanent
injunction. Hence, it requires interference by setting aside
the judgment and decree passed in favour of the plaintiff
and also prayed the Court to grant counter claim by
allowing the appeal. The counsel also would vehemently
contend that the First Appellate Court is not justified in
granting the decree of permanent injunction when the
RSA No. 358 of 2017
plaintiff is not having any title and committed an error in
rejecting the counter claim made by the plaintiff. Hence,
it requires interference by invoking Section 100 of C.P.C.
and prayed this Court to admit the appeal and frame
substantial question of law.
9. Per contra, learned counsel for the respondents
would submit that there was a sale deed of the year 1984
to the extent of 142 x 67 feet and while selling the
property, khatha number was mentioned and
subsequently, rectification deed was executed clarifying
the same. The counsel also would contend that, both the
Courts comes to the conclusion that plaintiff is in
possession of the property and hence, rightly granted the
relief of permanent injunction and not committed any
error. The counsel would submit that, while granting the
relief of permanent injunction, the Court has to take note
of the possession and the very interference at the instance
of the defendants.
RSA No. 358 of 2017
10. The First Appellate Court also, taken note with
regard to the counter claim made by the defendant Nos.2
and 3 and answered the point as 'negative' since, the
defendants, who have been examined before the Trial
Court categorically admitted that the plaintiff is in
possession of the suit schedule property and also
answered the issue No.2 that plaintiff is entitled for the
relief as sought and when the relief of permanent
injunction is granted based on the material available on
record that the plaintiff had put up construction and
residing in the house and Exs.P25 to 26 i.e., photographs
are evident that residential house is constructed by the
plaintiff and also comes to the definite conclusion that
there is no evidence to show that the plaintiff has
encroached 7 guntas of land of defendant No.2 as
contended. Hence, it does not require any interference.
11. Having heard the respective counsel and also
on perusal of the material available on record, the plaintiff
RSA No. 358 of 2017
has sought for the relief of declaration and injunction and
the Trial Court granted the relief of declaration and
injunction having considered the material on record,
particularly the document of sale deed which is marked as
Ex.P1. The plaintiff also got marked Ex.P2-rectification
deed, wherein rectified the mistake crept in while
executing the document of Ex.P1. However, the First
Appellate Court reversed the judgment and decree of the
Trial Court and the said order has not been challenged by
the plaintiff before this Court and only challenge made by
the defendants before this Court is that granting of
permanent injunction in favour of the plaintiff is
erroneous. The First Appellate Court also, taking note of
the material on record, comes to the conclusion that the
plaintiff is entitled for the relief of permanent injunction,
particularly taking the admission of D.W.1 in the cross-
examination and not accepted the document of Ex.P2
which requires compulsory registration and in Para No.22,
taken note of boundaries which have been described in
Ex.P2 and Ex.P1 is a registered document which shows
- 10 -
RSA No. 358 of 2017
that there is a house and backyard towards southern side
of the house. It is also observed that, boundaries are not
disputed in the written statement and plaintiff also
produced Ex.P7-RTC, which shows that he is in possession
of the suit schedule property and though the said
document discloses that he is in possession of 7 guntas,
but he is in possession of 5 guntas of land in Sy.No.83/1.
The Trial Court as well as the First Appellate Court also
taken note of the demand register extracts produced by
the plaintiff which shows that the plaintiff is in possession
of property No.45/1. It is also observed that the said
document does not reveal Sy.No.83/1. But, Ex.P18, RTC
extract shows that portion of Sy.No.83/1 is in possession
of the plaintiff and the Court has also taken note of the
admission given by D.W.2 in her cross-examination that
plaintiff's house is situated adjacent to her house and
behind the plaintiff house, where the land belonging to
Basavalingaiah is situated. She further admits that they
have put up two bore wells in their house utilizing the
water to irrigate their lands and three photographs were
- 11 -
RSA No. 358 of 2017
confronted to D.W.2 at the time of cross-examination and
she admits the photographs and the house is constructed
with bricks belonging to plaintiff and the plaintiff is
residing in the said house. Further, claims that the
plaintiff has constructed the said house in her property.
12. Having taken note of the material on record,
both the Courts comes to the conclusion that plaintiff is in
possession of the suit schedule property. Hence, granted
the relief of permanent injunction. Hence, I do not find
any error committed by both the Courts in considering the
material on record, particularly the answer elicited from
the mouth the D.W.2, wherein categorically admitted that
plaintiff is in possession of the property.
13. The counsel for the respondents would
vehemently contend that when the title is not proved,
ought not to have granted the relief of permanent
injunction and the very approach of the Trial Court and the
First Appellate Court is erroneous. Admittedly, the sale
deed was produced as Ex.P1 dated 30.01.1984 and the
- 12 -
RSA No. 358 of 2017
same is also not questioned and measurement is
mentioned as 142 x 67 feet and construction was also
made by the plaintiff, after purchase of the property and is
residing in the said house and revenue documents are also
standing in the name of the plaintiff to establish his
possession. When such being the case, both the Courts
have not committed any error and while considering the
material on record, particularly in a suit for injunction and
while granting the relief of injunction, the Court has to see
whether, as on the date of filing of the suit, the plaintiff is
in possession or not and there is any interference by the
defendants and the very admission given by the D.W.2 is
very clear that the plaintiff has constructed the house and
residing in the said house and definite finding is given by
the Trial Court as well as the First Appellate Court.
14. When such being the material on record, I do
not find any ground to admit the appeal and frame
substantial question of law as contended by the learned
counsel for the appellants invoking Section 100 of C.P.C.
- 13 -
RSA No. 358 of 2017
Hence, there is no merit in the appeal to admit and frame
the substantial question of law.
15. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN/ST
