Karnataka High Court
Sri Nagendrachar vs Sri Sugnanamurthy on 1 June, 2023
Bench: Jyoti Mulimani
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RSA No. 777 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.777 OF 2020 (INJ)
BETWEEN:
SRI. NAGENDRACHAR,
S/O LATE SRI. NAGALINGACHAR,
AGED ABOUT 58 YEARS,
R/O KOTTHALAVADI VILLAGE,
HARADANAHALLI HOBLI,
CHAMARAJANAGAR TALUK
AND DISTRICT - 571 313.
...APPELLANT
(BY SRI.G.B.NANDISH GOWDA, ADVOCATE FOR
SRI. R.B. SADASIVAPPA, ADVOCATE)
AND:
Digitally signed by 1. SRI. SUGNANAMURTHY,
THEJASKUMAR N S/O LATE SRI. NAGALINGACHAR,
Location: HIGH
COURT OF AGED ABOUT 66 YEARS,
KARNATAKA
R/AT RTES MESS, HOLKOTI,
GADAG TALUK AND DISTRICT - 582 101.
2. SRI. K. N. VENUKUMAR,
S/O LATE SRI. NAGALINGACHAR,
AGED ABOUT 53 YEARS,
R/O KOTTALAVADI VILLAGE,
HARADANAHALLI HOBLI,
CHAMARAJANAGAR TALUK,
AND DISTRICT-571 313.
3. SRI. K. N. MALLU,
S/O LATE SRI. NAGALINGACHAR,
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RSA No. 777 of 2020
AGED ABOUT 44 YEARS,
R/AT NO.123, SRIRAMPURAM,
BENGALURU-560 023.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.G.B.Nandish Gowda, learned counsel on behalf of
Sri.R.B.Sadasivappa., for the appellant has appeared in person.
2. This appeal is from the Court of Additional Senior
Civil Judge and JMFC, Chamarajanagara.
3. For the sake of convenience, the parties shall be
referred to as per status and their rankings before the Trial
Court.
4. The facts of the case are quite simple and are
stated as under:
The plaintiff filed a suit for the relief of permanent
injunction and mandatory injunction. The plaintiff and
defendants are the sons of Sri.Nagalingachar. After the death
RSA No. 777 of 2020
of their father, they got divided the family properties. It is
pleaded that the defendants executed a Hakku Kulase Patra on
28.01.2007 by receiving a sum of Rs.3,000/- (Rupees Three
Thousand only) each. It is averred that the defendants had filed
a suit in O.S.No.47/2007 seeking the relief of partition and
separate possession. The suit came to be decreed. Aggrieved
by the Judgment and Decree of the Trial Court, the plaintiff who
was a defendant in O.S.No.47/2007 preferred an appeal in
R.A.No.108/2008. The appeal came to be dismissed; so also,
the Second Appeal before this Court was dismissed on
03.09.2010. He contended that the defendants tried to
interfere with his peaceful possession and enjoyment of the suit
schedule property. Hence, the present suit for an injunction
was filed.
After service of the suit summons, the defendants
appeared through their counsel and filed a detailed written
statement. They denied the plaint averments. They denied the
relinquishment Deed dated 28.01.2007. They specifically
contended that the plea and the contention about the execution
of the relinquishment deed were negatived in the partition suit.
Among other grounds, they prayed for the dismissal of the suit.
RSA No. 777 of 2020
5. On the basis of the above pleadings, the Trial Court
framed four Issues.
To substantiate the claim, the plaintiff -
K.N.Nagendrachar was examined as PW1 and produced thirty
documents which were marked as Ex.P.1 to Ex.P.30. On behalf
of the defendants, no evidence was adduced and no documents
were marked.
On the trial of the action, the suit came to be dismissed
with a cost of Rs.3,000/- (Rupees Three Thousand only). On
appeal, the First Appellate Court confirmed the judgment and
decree of the Trial Court. Hence, this Regular Second Appeal is
filed under Section 100 of CPC is filed.
6. Sri.G.B.Nandish Gowda., learned counsel for the
appellant submits that the Judgments and Decrees of the Trial
Court as well as the First Appellate Court are erroneous and
unsustainable both in law and in fact and hence, they are liable
to be set aside.
Next, he submits that the Trial Court erred in answering
issues Nos.1 to 3 as negative and wrongly applied the
RSA No. 777 of 2020
provisions of law and has erroneously come to the conclusion
that the suit is barred by the law of limitation.
A further submission is made that the Trial Court erred in
not invoking Sections 19 and 20 of the Specific Relief Act.
Learned counsel vehemently contended that the First
Appellate Court ought to have remanded the matter to the Trial
Court. It is also submitted that the question of res-judicata
does not apply to the facts of the case.
Lastly, he submits that viewed from any angle, the
rejection of relief of injunction is bad in law; hence, this Regular
Second Appeal raises substantial questions of law and the same
may be admitted accordingly.
7. Heard, the contentions urged on behalf of the
appellant and perused the judgments and decrees of the Trial
Court and also the First Appellate Court with utmost care.
The facts have been sufficiently stated and the same does
not require reiteration. In the present case, the plaintiff sued
for permanent injunction and mandatory injunction.
RSA No. 777 of 2020
Suffice it to note that the plaintiff based his claim on the
relinquishment deed that is said to have been executed by the
defendants on 28.01.2007. It is not in dispute that the plaintiff
and defendants are brothers. The issue revolves around the
execution of the alleged relinquishment deed and refusal to
grant the relief as prayed in the plaint.
Before the Trial Court, the plaintiff specifically contended
that the defendants relinquished their share under the
relinquishment deed. In this Court also, he has adhered to the
said contention. It is pivotal to note that the entire case is
based upon a relinquishment deed.
Sri.G.B.Nandish Gowda., learned counsel appearing on
behalf of the appellant in presenting his argument strenuously
urged that the Courts have failed to appreciate the plea and the
contention with regard to the relinquishment deed. He argued
by saying that the Courts have erred in declining the grant of
the relief of injunction.
I have considered the contention about the
relinquishment deed. It is pivotal to note that the plea and the
contention about the relinquishment deed have already been
RSA No. 777 of 2020
negatived in the partition suit. Hence, the same operates as
res-judicata. Therefore, the contention about the
relinquishment deed cannot be accepted.
It is pivotal to note that the Trial Court in extenso
referred to the material on record and dismissed the suit. The
First Appellate Court has examined the evidence on record and
re-appreciated it. I am satisfied that it has been appreciated
from the correct perspective. The concurrent finding of facts,
however erroneous, cannot be disturbed by the High Court in
the exercise of the power under Section 100 of CPC. The
substantial question of law has to be distinguished from a
substantial question of fact. In my view, the findings recorded
by both the Courts are either vitiated by non-consideration of
relevant evidence or by an erroneous approach to the matter.
Where based on evidence on record the Trial Court and the
First Appellate Court had concurrently arrived at a finding of
fact, the High Court in the Second Appeal cannot reverse the
said concurrent findings under ordinary circumstances.
It is perhaps well to observe that after the 1976
amendment, the scope of Section 100 of the CPC has been
RSA No. 777 of 2020
drastically curtailed and narrowed down. Under Section 100 of
the Code of Civil Procedure 1908 (as amended in 1976) the
jurisdiction of the High Court to interfere with the judgment of
the Court below is confined to hearing substantial questions of
law. Interference with a finding of a fact by the High Court is
not warranted if it involves re-appreciation of the evidence.
No substantial question of law arises for consideration in
this appeal. As a result, I find no merit in this appeal, and
accordingly, it is dismissed at the stage of admission.
No order as to costs.
Sd/-
JUDGE
NR
