Rajanna vs D Basavaraju
2023 Latest Caselaw 1414 Kant

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                                                       RSA No. 651 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 20TH DAY OF FEBRUARY, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO.651 OF 2019 (DEC/INJ)


                   BETWEEN:


                   1.    RAJANNA
                         S/O THIRUMALAGIRIAIAH
                         AGED ABOUT 45 YEARS
                         R/O KYATHASANDRA
                         TUMAKURU-572101


                         RANGASWAMAIAH
Digitally signed         SINCE DEAD BY LRS
by SHARANYA T
Location: HIGH
COURT OF
KARNATAKA          2.    K.R.PAVAN
                         AGED ABOUT 15 YEARS
                         MINOR REPRESENTED BY HIS
                         PARENTAL UNCLE, RAJANAN
                         S/O THIRUMALAGIRIAIAH,
                         AGED ABOUT 45 YEARS
                         R/O KYATHASANDRA
                         TUMAKURU-572101


                   3.    SMT HANUMAKKA
                         W/O LATE THIRUMALAGIRIAIAH
                           -2-
                                     RSA No. 651 of 2019




     AGED ABOUT 64 YEARS
     R/O G.K.STREET, KYATHASANDRA
     TUMAKURU-572101

     [DELETED AS PER THE ORDER DT.20.02.2023]

                                            ...APPELLANTS
(BY SRI. GURURAJ R, ADVOCATE)


AND:


1.   D BASAVARAJU
     S/O DODDAIAH
     AGED ABOUT 58 YEARS
     R/O 4TH CROSS
     GOVERNMENT COLLEGE EXTESION
     ASHOKA NAGARA
     TUMAKURU-572101

2.   CHANDRASHEKARAIAH
     S/O KEMPEGOWDA
     AGED ABOUT 60 YEARS
     R/O 358/B, ASHOK NAGAR
     4TH CROSS, GOVERNMENT COLLEGE EXTENION
     TUMAKURU-572101

                                           ...RESPONDENTS

       THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.12.2018
PASSED    IN   R.A.NO.69/2017   ON   THE    FILE   OF   THE
PRINCIPAL DISTRICT JUDGE, TUMAKURU AND ETC.
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                                        RSA No. 651 of 2019




     THIS R.S.A. 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 appellants.

2. This appeal is filed challenging the judgment

and decree dated 19.12.2018 passed in R.A.No.69/2017

on the file of the Principal District Judge, Tumakuru.

3. The factual matrix of the case of the plaintiffs

before the Trial Court is that the sale deed created by the

defendant on 28.11.2005 is null and void and the plaintiffs

are entitled for the relief of permanent injunction. The

second defendant has filed written statement contending

that plaintiffs and defendant No.1 have filed the suit in

collusion to harass him. The Trial Court after considering

both oral and documentary evidence placed on record

comes to the conclusion that the sale deed created by

defendant No.1 is null and void and answered Issue No.1

RSA No. 651 of 2019

as affirmative and Issue No.2 as negative in coming to the

conclusion that the plaintiffs have not proved that they

have been in possession of the property as on the date of

filing of the suit. Being aggrieved by the judgment of the

Trial Court, appeals were preferred by the respective

parties in R.A.Nos.57/2017 and 69/2017 and the First

Appellate Court considering the material available on

record re-appreciated the evidence and dismissed both the

appeals filed by the plaintiffs as well as defendant No.1

and confirmed the judgment of the Trial Court. Hence, the

present appeal is filed before this Court.

4. The main contention of the counsel for the

appellants is that whether decree passed by the Trial Court

and First Appellate Court for the relief of injunction are

based on sound and proper reasoning and the counsel also

submits that whether both the Courts were justified in

declining the relief of permanent injunction to the plaintiffs

when the plaintiffs have proved their possession by

producing RTCs of suit schedule property which has got

RSA No. 651 of 2019

presumptive value under Section 133 of Karnataka Land

Revenue Act, 1964 and also submits that whether both the

Courts were justified in relying on Ex.D7 and D8 to prove

the possession of defendant No.1 solely relying on the

report of expert about the signature of plaintiffs without

there being independent evidence of the witnesses to

prove the due execution of alleged document and its

contents in accordance with law and also it is contended

that whether both the Courts were justified in holding

issue No.2 in negative merely on the ground that signature

of the plaintiffs tallies in Ex.D8 as observed by expert in

his report/opinion in the absence of proof of the contents

of the document and hence, the appeal requires to be

admitted and substantial question of law has to be framed.

5. Having heard the counsel for the appellants and

on perusal of the material available on record it discloses

that the plaintiffs have sought for the relief of declaration

and injunction and declaration in respect of sale deed

executed by defendant No.1 is based on the Power of

RSA No. 651 of 2019

Attorney and both the Courts taking into note of both the

oral and documentary evidence placed on record comes to

the conclusion that the sale deed executed by defendant

No.1 is based on the power of attorney in favour of

defendant No.1 is null and void and while considering

Issue No.2 taken note of the document and evidence of

PW1. PW1 in his evidence stated that defendant No.1

started to collect men and material by the side of the suit

schedule property in order to erect boundary stone and

barbed wire fence to the suit schedule property. But he

claims that he is in possession of the suit schedule

property. But the Trial Court in paragraph 29 while

answering Issue No.2 comes to the conclusion that

defendant No.1 has proved the execution of Ex.D8 by the

plaintiffs and as per its recital, on the date of execution of

the said document itself, the plaintiffs have handed over

the possession of the suit schedule property to defendant

No.1 and given powers to deliver the property and to sell

the suit schedule property.

RSA No. 651 of 2019

6. The First Appellate Court also on re-

appreciation of both oral and documentary evidence

placed on record taken note of the grounds urged in the

appeal memo and also taken note of the documents of

Ex.D1 and D8 and comes to the conclusion that under

Ex.D8, he has establishes his possession hence, the

question of granting the relief of injunction does not arise

and also comes to the conclusion that the sale deed dated

28.11.2005 is null and void for violation of conditions of

GPA and also interest of agent runs in conflict with that of

the principle. However, with regard to the possession is

concerned, the First Appellate Court comes to the

conclusion that the plaintiffs have failed to prove their

possession over the suit schedule property as under Ex.D1

and D8 since Ex.D1 and D8 clearly establishes that

defendant No.1 is in possession of the suit schedule

property and considering the material available on record

declined to pass an order of injunction. Both the Courts

have given anxious consideration to both oral and

documentary evidence placed on record. Though disputed

RSA No. 651 of 2019

the document of execution of Ex.D8 by the plaintiffs, but

the same has been proved and the signature available in

the document also belongs to the plaintiffs and having

taken note of the opinion of the expert also comes to the

conclusion that the plaintiffs while executing the document

at Ex.P1 in order to form the layout in the suit schedule

property by getting the conversion of the suit schedule

property and necessary approvals of the plan and

thereafter, to sell the sites formed in the said layout by

receiving sale consideration, the same was executed.

Having considered the material available on record rightly

comes to the conclusion that plaintiffs have not been in

possession of the suit schedule property as on the date of

filing of the suit.

7. The counsel for the appellants vehemently

contend that RTC stands in the name of the plaintiffs and

no dispute with regard to that the property belongs to the

plaintiffs and the plaintiffs have executed the document of

Power of Attorney and handed over the said property in

RSA No. 651 of 2019

favour of defendant No.1 in order to form the layout and

sell the property by obtaining necessary approval by the

concerned department hence, the said document is upheld

by the Trial Court as well as the First Appellate Court.

Thus, I do not find any force in the contention of the

appellants' counsel. In a case for permanent injunction,

the Court has to take note of two factors. One is with

regard to as on the date of filing of the suit, the plaintiffs

were in possession of the suit schedule property and there

must be interference at the instance of the defendant.

When these two factors have not been established by the

plaintiffs, the very contention of the appellants' counsel

that both the Courts have committed an error cannot be

accepted. Hence, I do not find any grounds to admit the

appeal and to frame substantial question of law invoking

Section 100 of CPC.

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

the following:

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RSA No. 651 of 2019

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