Smt Nageena vs Sri Arifulla
2023 Latest Caselaw 3137 Kant

                                                        -1-
                                                                 NC: 2023:KHC:20034
                                                                     RSA No. 162 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                DATED THIS THE 12TH DAY OF JUNE, 2023
                                                      BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                          REGULAR SECOND APPEAL NO.162 OF 2022 (INJ)
                      BETWEEN:

                      SMT. NAGEENA
                      W/O S.SAMEEULLA,
                      AGED ABOUT 41 YEARS,
                      R/AT OPP. NOORANI MASJID MAIN ROAD,
                      RAGIGUDDA (SHANTINAGAR),
                      SHIMOGA CITY - 577 201.
                                                                              ...APPELLANT
                      (BY SRI. SYED KHALEEL PASHA., ADVOCATE)

                      AND:

                      SRI ARIFULLA
                      S/O KAHDAR SAB,
                      AGED ABOUT 46 YEARS,
                      R/O OPP. NOORANI MASJID MAIN ROAD,
                      RAGIGUDDA (SHANTHINAGAR),
                      SHIMOGA CITY - 577 201.
Digitally signed by
                                                                ...RESPONDENT
THEJASKUMAR N         (BY SRI. CHIDAMBARA G S., ADVOCATE FOR C/R)
Location: HIGH
COURT OF
KARNATAKA                  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. Syed Khaleel Pasha., learned counsel for the

appellant and Sri.Chidambara. G.S., learned counsel for the

respondent have appeared in person.

NC: 2023:KHC:20034 RSA No. 162 of 2022

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

Judge & CJM, Shivamogga.

3. For the sake of convenience, the parties shall be

referred to as per their status and ranking before the Trial

Court.

4. The facts, in brief, are these:

It is the case of the plaintiff that she is the owner and in

possession of the suit schedule property which comprises a

Mangalore tile house measuring to an extent of 40 X 20 feet

and the same is described in Schedule 'A' property and suit

schedule 'B' property is the part and parcel of schedule 'A'

property which belongs to the plaintiff. It is averred that the

name of the plaintiff is forthcoming in the records of CMC,

Shivamogga and she is also paying tax regularly and the

electricity connection also stands in her name. She specifically

contended that the defendant is her husband's younger brother

and she allowed him to stay in Schedule B property. It is

further averred that the plaintiff requires the said property for

her own use and occupation and hence, she requested the

defendant to vacate the suit schedule property, but there was

NC: 2023:KHC:20034 RSA No. 162 of 2022

resistance by the defendant. Hence, the plaintiff issued a legal

notice and was constrained to take shelter under the Court of

law and filed a suit for mandatory injunction.

After the service of the suit summons, the defendant

appeared through his counsel and filed a detailed written

statement, and denied the plaint averments. He contended that

the suit of the plaintiff for the relief of mandatory injunction

without seeking the relief of declaration of ownership is not

maintainable. It is also contended that the measurement and

boundaries shown to the suit property are not correct and the

same is also not located in Shanthinagar, 8th Ward,

Shivamogga. It has been specifically contended by the

defendant that the concerned Authority has issued Hakkupatra

in his name and hence he claimed ownership over the schedule

'B' property. Among other grounds, he prayed for the dismissal

of the suit.

5. On the basis of the above pleadings, the Trial Court

framed Issues. To substantiate the claim, witnesses were

examined by both parties and the documents were marked and

exhibited.

NC: 2023:KHC:20034 RSA No. 162 of 2022

6. On the trial of the action, the suit came to be

dismissed by the Trial Court. On appeal, the First Appellate

Court confirmed the Judgment & Decree of the Trial Court.

Hence, this Regular Second Appeal is filed under Section 100 of

CPC.

7. Learned counsel for the appellant submits that the

Judgments and Decrees of both Courts are contrary to the law

and facts and the evidence available on record.

Next, he submits that the First Appellate court has failed

to consider the exhibits and the evidence of the parties.

A further submission is made that the First Appellate

Court has failed to consider the material available on record,

wherein during the course of evidence, PW1 has produced all

the documents pertaining to suit schedule property to show

that she is the owner and in possession of the property in

question.

It is also vehemently contended that the defendant is in

permissive possession of the suit schedule property, but the

Courts have failed to understand the real issue and have

erroneously rejected the claim for mandatory injunction.

NC: 2023:KHC:20034 RSA No. 162 of 2022

Lastly, learned counsel contended that the findings

recorded by both Courts lacks judicial reasoning. Therefore, he

prayed that this Second Appeal may be admitted, by framing

substantial questions of law.

8. Per-contra, learned counsel Sri.Chidambaram. G.S.,

appearing on behalf of for caveator/ respondent justifies the

Judgment and Decree of both Courts.

Next, he submits that the defendant has specifically

denied the title of the plaintiff over the suit 'B' schedule

property.

A further submission is made that suit for mere

mandatory injunction is not maintainable since there is a cloud

on the title. Hence, the plaintiff ought to have filed a suit

seeking the relief of declaration.

Learned counsel vehemently contended that the

defendant is not in permissive possession of the property as

contended by the plaintiff. On the other hand, the defendant is

in possession of the property by virtue of the Hakkupatra

issued by the Authority concerned.

NC: 2023:KHC:20034 RSA No. 162 of 2022

Lastly, he submits that the Trial Court as well as the First

Appellate Court justified in rejecting the claim of the plaintiff.

Therefore, he submits that this Regular Second Appeal does not

raise any substantial questions of law. Hence, the same may be

dismissed at the stage of admission itself.

9. Heard, the contentions urged on behalf of the

respective parties and perused the Judgments & Decrees of the

Trial Court and the First Appellate Court with utmost care.

The suit giving rise to this appeal was brought by the

plaintiff seeking the relief of a mandatory injunction.

As could be seen from the nature of lis between the

parties, the suit is filed for a mandatory injunction

The material proposition put forth by the plaintiff is that

the defendant is in permissive possession of Schedule 'B

property. But the defendant specifically contended that the

Hakkupatra has been issued by the Authority concerned in his

favor. Hence, what is required to be considered is whether the

defendant is in permissive possession of schedule 'B' property

as contended by the plaintiff or he is in possession of the

property in his own right.

NC: 2023:KHC:20034 RSA No. 162 of 2022

The Trial Court also considered the oral testimony of DW1

to 4 which corroborates that the defendant is in possession of

the suit 'B' schedule property even during the lifetime of

Khadar Sab.

The plaintiff has also failed to establish that suit schedule

'B' property is part and parcel of suit schedule 'A' property.

The Trial Court and the First Appellate Court in extenso

referred to the material on record and concluded that the

defendant is in possession of schedule 'B' property in his own

right and the plaintiff has failed to establish that defendant is a

licensee and he is not in permissive possession of schedule 'B'

property as alleged by the plaintiff.

It is perhaps well to observe that after the 1976

amendment, the scope of Section 100 of the CPC has been

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.

NC: 2023:KHC:20034 RSA No. 162 of 2022

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

TKN