Tanaji S/O Vittal Toorattanavr vs Mahesh S/O Bhimappa Hugar
2023 Latest Caselaw 4513 Kant

                                                   -1-
                                                         NC: 2023:KHC-D:7334
                                                              RSA No. 100108 of 2016




                          IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 17TH DAY OF JULY, 2023

                                                BEFORE
                            THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          REGULAR SECOND APPEAL NO. 100108 OF 2016 (PAR)
                     BETWEEN:

                           TANAJI S/O VITTAL TOORATTANAVR,
                           AGE: 49 YEARS, OCC: AGRICULTURE,
                           R/O: SASVIHALLI, TQ: NAVALGUND,
                           DIST: DHARWAD.
                                                                         ...APPELLANT
                     (BY SRI. B.V.SOMAPUR, ADVOCATE
                     AND:
                     1.    MAHESH S/O BHIMAPPA HUGAR,
                           AGE: 33 YEARS, OCC: KSRTC CONDUCTOR,
                     2.    SMT. SHANKRAVVA W/O BHIMAPPA HUGAR,
                           AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
                           BOTH ARE R/O: SASVIHALLI,
                           TQ: NAVALGUND,
                           DIST: DHARWAD.
        Digitally
        signed by

SUJATA
        SUJATA
        SUBHASH                                                       ...RESPONDENTS
SUBHASH PAMMAR
PAMMAR Date:
        2023.07.20
        12:55:01 -
        0700
                     (BY SRI. H.N.GULARADDI FOR R1 AND R2, ADVOCATE)

                          THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
                     JUDGEMENT & DECREE DTD:10.08.2015 PASSED IN R.A.NO.12/2012
                     ON THE FILE OF THE SENIOR CIVIL JUDGE, NAVALGUND,
                     DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND
                     DECREE DTD:07.09.2011 PASSED IN OS.NO.29/2005, ON THE FILE
                     OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
                     NAVALAGUND DECREEING THE SUIT FILED FOR PERMANENT
                     INJUNCTION.

                         THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                     COURT DELIVERED THE FOLLOWING:
                                   -2-
                                         NC: 2023:KHC-D:7334
                                           RSA No. 100108 of 2016




                                ORDER

This is an appeal filed by the defendant against the

judgment and decree in O.S.No.29/2005 by the Civil Judge

Navalgund and confirmed by the Senior Civil Judge, Navalgund

in R.A.No.12/2012 whereby the learned Senior Civil Judge has

dismissed the appeal by confirming the judgment and decree of

granting injunction in favour of the plaintiffs.

2. For the sake of convenience, parties herein are

referred as per the original ranks occupied by them before the

Trial Court.

3. Brief facts leading to the case are as under:

The plaintiffs have filed a suit for injunction against the

defendant pertaining to VPC No.231 of Saswehalli village

consisting of a house and backyard. It is alleged that it the

ancestral property of the plaintiffs and they are in possession

and they are using the backyard for storing cow-dung, haystack

and agricultural implements. It is also alleged that the

defendant is interfering with plaintiffs' peaceful possession and

enjoyment of the suit property and hence, they filed a suit

seeking permanent injunction against the defendant.

NC: 2023:KHC-D:7334 RSA No. 100108 of 2016

4. In pursuance of suit summons, defendant appeared

before the Trial Court and filed his written statement denying

the allegations and assertions made thereunder. It is asserted

that the suit property was originally owned by Basavant

Torappanavar and he sold the said property to his grandfather

Vittappa Torappanavar on 06.08.1919 for a consideration of

Rs.400/- under registered sale deed. Hence, he contended that

he is in possession and enjoyment of the suit property and the

plaintiff has no right, title or interest over the suit property.

Hence, he has sought for dismissal of the suit.

5. The Trial Court, on the basis of these pleadings,

framed the following issues:

i) Whether the plaintiffs prove that they are in lawful possession of the suit property?

ii) Whether the plaintiffs prove that the alleged interference?

iii) Whether the plaintiffs are entitled for the relief of permanent injunction sought for?

iv) What order or decree?

6. The plaintiffs 1 and 2 were examined as PW1 and

PW2 and three witnesses were also examined as PW3 to PW5.

NC: 2023:KHC-D:7334 RSA No. 100108 of 2016

They placed reliance on documents marked at Ex.P1 to Ex.P4.

Defendant got examined himself as DW1 and placed reliance on

Ex.D1.

7. After hearing the arguments and after appreciating

oral as well as documentary evidence, the learned Civil Judge

has answered issue No.1 to 3 in the affirmative and ultimately

decreed the suit.

8. Being aggrieved by the judgment and decree, the

defendant preferred an appeal in R.A.No.12/2012 and the said

appeal was contested by the plaintiffs. The learned Senior Civil

Judge after re-appreciating the oral as well as documentary

evidence, has dismissed the appeal by confirming the judgment

and decree passed by the Trial Court.

9. Being aggrieved by the concurrent findings of both

the Courts below, the defendant is before this Court by way of

this appeal.

10. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent and perused the records.

NC: 2023:KHC-D:7334 RSA No. 100108 of 2016

11. The learned counsel for the appellant submits that

the appellant/defendant is having title over the suit property as

he is claiming title under Ex.D1 and since the title of plaintiffs is

disputed, the suit for bare injunction is not maintainable.

Hence, she would contend that both the Courts below have

committed an error in not considering this aspect and sought

for allowing the appeal.

12. Per contra, learned counsel for the respondent

would support the judgment and decree of the Trial Court as

well as confirmed by the First Appellate Court and argues that

Ex.D1 though relied and though registered, it does not disclose

the property number and it is not the case that property

number was not given as on the date of the execution of the

sale deed and hence, Ex.D1 will not establish the claim of the

defendant in any way. It is further submitted that defendant

has not claimed any counter-claim also and sought for

dismissal of the appeal.

13. Having heard the arguments and perusing the

records, it is evident that the plaintiffs are claiming injunction

against the defendant. Further, the plaintiffs assert that suit

property is inherited by them from their ancestors. On the

NC: 2023:KHC-D:7334 RSA No. 100108 of 2016

contrary, the defendant contended that the suit property is

purchased by his grandfather under registered sale deed-

Ex.D1. But on verification of Ex.D1-sale deed, it is evident that

no property number is mentioned in it. It is contended by the

learned counsel for the defendant-appellant that the boundaries

are one and the same but when the property is recognized by

property number, it was the duty of the appellant-defendant to

show that the property number was mentioned in the sale deed

which now they are relying. But Ex.D1 does not disclose the

property number.

14. Further, the Khata of the suit property under Ex.P1

is in the name of plaintiffs. Further, Ex.P2 discloses that the

defendant is the owner of VPC No.229 and Ex.D1 does not

disclose the property number. Hence, it is evident that property

of the plaintiffs and defendant are entirely different. Further,

Ex.P4 discloses that the suit property was earlier standing in

the name of one Basappa Danappa Hugar and in partition, it

was allotted to the share of plaintiffs. No evidence is

forthcoming to dislodge the presumption available in favour

of the defendant under provisions of KLR Act. Though

defendant has placed reliance on Ex.D1, it does not establish

NC: 2023:KHC-D:7334 RSA No. 100108 of 2016

his right, title or interest over the suit property as no property

number is disclosed in it. Both the Courts below have

appreciated the oral as well as documentary evidence in detail

and have rightly decreed the suit by granting injunction in

favour of the plaintiffs. No illegality or perversity is forthcoming

in the judgment and decree passed by both the Courts below.

No substantial question of law is involved to entertain this

appeal. Under these circumstances, the appeal being devoid of

merits, does not survive for consideration and accordingly,

stands dismissed.

15. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE

YAN