Sri. Basavaraju vs Smt. B S Ramamani
2023 Latest Caselaw 4717 Kant

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                                                          NC: 2023:KHC:25415
                                                                 RSA No. 8 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 21ST DAY OF JULY, 2023

                                                 BEFORE

                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                             REGULAR SECOND APPEAL NO.8 OF 2018 (INJ)

                      BETWEEN:

                      SRI. BASAVARAJU
                      S/O BOREGOWDA,
                      AGED 60 YEARS,
                      R/O BENAKANAKERE VILLAGE,
                      DABBEGHATTA HOBLI,
                      TURUVEKERE TALUK,
                      TUMAKURU DISTRICT - 572 227.
                                                                        ...APPELLANT
                      (BY SRI.M.B.CHANDRACHOODA., ADVOCATE)

                      AND:

                      1.    SMT. B.S. RAMAMANI
                            W/O B.V. RAMANNA,
                            AGED 70 YEARS.
Digitally signed by
THEJASKUMAR N
Location: HIGH        2     SRI B.R.RAVIKUMAR,
COURT OF                    S/O B.V.RAMANNA,
KARNATAKA
                            AGED 40 YEARS,

                            BOTH ARE R/O BENAKANAKERE VILLAGE,
                            DABBEGHATTA HOBLI,
                            TURUVEKERE TALUK,
                            TUMAKURU DISTRICT - 572 227.
                                                                      ...RESPONDENTS
                      (R1 & R2 ARE SERVED)

                             THIS   REGULAR   SECOND    APPEAL   IS    FILED   UNDER
                      SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.
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                                         NC: 2023:KHC:25415
                                               RSA No. 8 of 2018




      THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

Sri.M.B.Chandrachooda., learned counsel for the

appellant has appeared in person.

2. This is an appeal from the Court of Senior Civil

Judge and J.M.F.C., Turuvekere.

3. For the sake of convenience, the status of the

parties shall be referred to as per their ranking before the Trial

Court.

4. The plaint averments are these:

The plaintiffs contended that the suit schedule property is

the ancestral and joint family property and they are the

absolute owners in possession and enjoyment of the same. The

katha and the pahani are also standing in the name of the first

plaintiff on the basis of pavathivarasu. They contended that the

defendant has no manner of right, title or interest much less

possession over the suit schedule property, made attempts to

NC: 2023:KHC:25415 RSA No. 8 of 2018

interfere with their possession. Hence, they were constrained to

file a suit seeking the relief of permanent injunction.

After the service of the suit summons, the defendant

appeared through his counsel and filed written statement and

denied the entire plaint averments. The defendant specifically

contended that the husband of the first plaintiff and the father

of the second plaintiff namely Sri.B.V.Ramanna was the

absolute owner of the suit schedule property and he executed a

Sale agreement with respect to suit property bearing

Sy.No.231/1 to an extent of 01 Acre situated at Benakanakere

Village, Dabbeghatta Hobli, Turuvekere Taluk on 10.11.1986

for a sale consideration of Rs.21,250/- (Rupees Twenty One

Thousand Two Hundred and Fifty only). It is also contended

that entire sale consideration was paid and he was put in

possession of the property to an extent of 01 Acre. Therefore, it

has been specifically contended by the defendant that the

plaintiffs were not in possession of the suit schedule property

as on the date of filing of the suit. Hence, the suit for bare

permanent injunction is not maintainable. Among other

grounds, he prayed for dismissal of the suit.

NC: 2023:KHC:25415 RSA No. 8 of 2018

Based on the above pleadings, the Trial Court framed

issues. To substantiate their claim, the parties led in evidence

and documents were marked and exhibited. On the trial of the

action, the Trial Court decreed the suit. Aggrieved by the

Judgment & Decree of the Trial Court, the defendant preferred

an appeal before the First Appellate Court. On appeal, the First

Appellate Court confirmed the Judgment & Decree of the Trial

Court and dismissed the appeal. Hence, the defendant has filed

this Regular Second Appeal under Section 100 of CPC.

5. Sri.M.B.Chandrachooda., learned counsel for

appellant has urged several contentions. Heard, the contentions

urged on behalf of appellant and perused the records with

utmost care.

In HALSBURY'S LAWS OF ENGLAND, the meaning of

injunction is stated as under.

"An injunction is a judicial process whereby a party is

ordered to refrain from doing or to do a particular act or thing.

In the former case, it is called a restrictive injunction, and in

the latter, a mandatory injunction. It is a remedy of an

NC: 2023:KHC:25415 RSA No. 8 of 2018

equitable nature, and since equity acts in personam, an

injunction does not run with the land."

It is a remedy of an equitable nature. An injunction is an

order of the Court directing a party to the proceedings to do or

refrain from doing a specified act. The object of Injunction is

prevention, and their aim to is maintain status-quo ante. This

can usually be affected by a merely restrictive order, i.e., one

which forbids the carrying out a threat of injury, or the

repletion of an injurious act.

Reverting to the facts of the case, the suit giving rise to

this appeal was filed by plaintiffs seeking the relief of

permanent injunction. As could be seen from the nature of lis

between the parties, the suit is one for permanent injunction

based on the possession as on the date of filing of the suit. The

right to injunction is based on prima-facie right. The plaintiff

claiming the relief of perpetual injunction must establish the

breach of an obligation or an infringement of a legal right.

The issue revolves around the possession of the plaintiffs

over the suit schedule property as on the date of filing of the

suit.

NC: 2023:KHC:25415 RSA No. 8 of 2018

Sri.M.B.Chandrachooda., learned counsel appearing on

behalf of appellant in presenting his arguments vehemently

contended that the original owner Sri.Ramanna had agreed to

sell to an extent of 01 Acre of land in Sy.No.231/1 in favor of

defendant and accordingly, an agreement for sale came to be

executed by Ramanna in favor of defendant on 10.11.1986.

The entire sale consideration amount of Rs.21,250/- (Rupees

Twenty One Thousand Two Hundred and Fifty only) was paid.

He also argued by saying that the defendant was put in

possession of the property to an extent of 01 Acre. He drew the

attention of the Court to the document Ex.D.1 to contend that

Ramanna had put the defendant in possession to an extent of

01 Acre in Sy.No.231/1. Learned counsel vehemently

contended that both Courts lost sight of the fact that defendant

was put in possession of the property by virtue of the sale

agreement. However, both Courts on an erroneous footing went

ahead and concluded that plaintiffs were in possession of the

suit schedule property as on the date of filing of the suit.

6. I have considered the contentions about the sale

agreement and I have also perused the document with utmost

care. The Sale agreement is marked as Ex.D.1. It is

NC: 2023:KHC:25415 RSA No. 8 of 2018

dated:10.11.1986. A careful perusal of the same would depict

that there is an agreement of sale in respect of 01 Acre of land

in Sy.No.231/1 by Ramanna in favor of defendant. The recital

also depicts that the possession of 01 Acre was handed over to

the defendant by the original owner Ramanna.

Suffice it to note that the plaintiffs also admits in the

course of cross examination that Ramanna has executed a sale

agreement in favor of defendant.

The law is well settled that, in a suit for bare injunction

plaintiffs are required to prove their possession over the suit

schedule property as on the date of filing of the suit. In the

present case, the defendant is put in possession of the suit

schedule property by virtue of a sale agreement in the year

1986 and suit is filed for permanent injunction based on

possession in the year 2013. Therefore, it is hard to believe

that plaintiffs are in possession of the suit property as on the

date of filing of the suit.

The law is also well settled that when the plaintiffs are

not in possession of the suit property as on the date of filing of

the suit, the suit for bare permanent injunction is not

NC: 2023:KHC:25415 RSA No. 8 of 2018

maintainable. I therefore conclude that the suit is not

maintainable. In my considered view, both Courts have failed

to have regard to the relevant considerations and have

disregarded relevant matters. Therefore, the Judgment &

Decree of the Trial Court and the First Appellate Court are

unsustainable in law. Accordingly, they are liable to be set-

aside.

7. The substantial questions of law framed by this

Court are answered accordingly. The Judgment & Decree

dated:21.09.2017 passed by the Court of Senior Civil Judge &

JMFC, Turuvekere in R.A.No.33/2014 and also the Judgment &

Decree dated:03.09.2014 passed by the Court of Civil Judge &

JMFC, Turuvekere in O.S.No.34/2013 are set-aside.

8. Resultantly, the Regular Second Appeal is allowed.

Sd/-

JUDGE

TKN