Karnataka High Court
Sri Obalaiah vs Sri Doddarangappa on 14 June, 2023
Bench: Jyoti Mulimani
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RSA No. 124 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.124 OF 2019 (INJ)
BETWEEN:
1. SRI OBALAIAH
S/O LATE CHINNAOBALAIAH
AGED ABOUT 64 YEARS
2. SRI SHIVASHANKARAIAH
S/O LATE CHINNAOBALAIAH
AGED ABOUT 61 YEARS
3. SRI RAMANNA
S/O LATE CHINNAOBALAIAH
AGED ABOUT 59 YEARS
4. SRI SRINIVAS
S/O LATE GOVINDAPPA
AGED ABOUT 47 YEARS
Digitally signed by 5. SRI SHIVALINGAIAH
THEJASKUMAR N
S/O LATE CHINNAOBALAIAH
Location: HIGH
COURT OF AGED ABOUT 41 YEARS
KARNATAKA
ALL ARE R/O THIMMARAJANAHALLI
BELLAVI HOBLI
TUMAKURU TALUK - 572 132
...APPELLANTS
(BY SRI. BALAGANGADHAR G.S., ADVOCATE)
AND:
1. SRI DODDARANGAPPA
AGED ABOUT 69 YEARS
S/O LATE DASANNA
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RSA No. 124 of 2019
2. SRI GOVINDAPPA
@ GOVINDAIAH
AGED ABOUT 65 YEARS
S/O LATE DASANNA
3. SRI RANGASWAMAIAH
AGED ABOUT 62 YEARS
S/O LATE DASANNA
4. SRI NARAYANAPPA
AGED ABOUT 61 YEARS
S/O LATE DASANNA
5. SRI SHIVANNA
AGED ABOUT 59 YEARS
S/O LATE DASANNA
ALL ARE R/O THIMMARAJANAHALLI
BELLAVI HOBLI
TUMAKURU TALUK - 572 132
...RESPONDENTS
(BY SRI.D.L.SURESH, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.G.S.Balagangadhar., learned counsel for the
appellants and Sri.D.L.Suresh., learned counsel for the
respondents have appeared in person.
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2. This is an appeal from the Court of II Addl. Senior
Civil Judge & JMFC, Tumakuru.
3. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Trial
Court.
4. The brief facts are these.
It is the case of the plaintiffs that the suit schedule
property originally belonged to their grandfather Thimmaiah.
The suit schedule property stood in the name of their
grandfather and father. After their death, the plaintiffs
continued in actual possession and enjoyment of the same. It is
said that they got divided the properties in under Palupatti
dated 15.03.1996. It is averred that the Government
Authorities i.e., the Tahasildar, Executive Officer, Taluk
Panchayat tried to interfere with their possession and hence,
they were constrained to file a suit in O.S.No.143/2002 on the
file of I Addl. Civil Judge, Tumkur and the same was decreed on
20.12.2007. It is alleged that despite the order of injunction,
the defendants tried to interfere with the plaintiffs peaceful
possession and enjoyment of the suit property and also tried to
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destroy the existing structure over the suit schedule property.
Hence, a suit for a permanent injunction was filed by the
plaintiffs.
5. After the service of the suit summons, the
defendants appeared through their counsel and filed detailed
written statement. They denied the plaint averments. They
admitted that the suit property originally belonged to
Thimmaiah plaintiffs' grandfather. They specifically contended
as per Notification dated 22.05.1955, the land was acquired by
the Government for the purpose of formation of layout and the
acquisition amount was disbursed. After the acquisition of the
property, the land was allotted to the landless persons who
were not having sites including the present defendants. So,
defendants 1, 2, 3 & 5 each got 01 Gunta of land, and
defendant No.4 got 2 Guntas of land. They contended that they
are in actual possession and enjoyment of the property in
question, and they have constructed structure in the property.
Among other grounds, they prayed for dismissal of the suit.
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6. Based on the above pleadings, the Trial Court
framed Issues. To substantiate the claim, the parties led
evidence and documents were marked and exhibited.
7. On the trial of the action, the suit came to be
dismissed. On appeal, the Judgment and Decree of the Trial
Court were set-aside and the suit came to be decreed. Hence,
this Regular Second Appeal is filed by the defendants under
Section 100 of CPC.
8. Sri.G.S.Balagangadhar., learned counsel for the
appellants submits that the First Appellate Court erred in
allowing the appeal by setting aside the well-reasoned
Judgment and Decree of the Trial Court.
9. Next, he submits that the Trial Judge considered
the entire material on record and has appreciated the evidence
both oral and documentary adduced by the defendants, which
is cogent and convincing.
10. A further submission is made that the Trial Judge
has come to a definite conclusion that when once there is an
acquisition, there cannot be any right on the property of any
party, as the same vests with the Government.
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11. Learned counsel vehemently contended that the
Civil Court has no jurisdiction to try the suit. The First Appellate
Court has failed to appreciate the same. Learned counsel also
submits that the First Appellate Court has erred in not
considering the document and oral evidence adduced by the
defendants. Ex.D.1 is the Notification and Ex.D.2 is the award
order copy, but the First Appellate Court has failed to
appreciate the documents, Ex.D.1 & D2 in the right
perspective.
12. Lastly, learned counsel contended that findings
recorded by the First Appellate Court lacks judicial reasoning.
Therefore, he submits that the substantial questions of law
framed by this court may be answered in favor of the appellant
and the Second Appeal may be allowed.
13. Learned counsel for appellants placed reliance on
the following decisions:
1. AIR 2014 SC (SUPP) 60 - COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY AND
ANOTHER VS. BRIJESH REDDY AND ANOTHER.
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2. AIR 1997 SC 2076 - S.P. SUBRAMANYA SHETTY
AND OTHERS VS. KARNATAKA STATE ROAD
TRANSPORT CORPORATION AND OTHERS.
3. (1996) 7 SCC 218 - LAXMI CHAND AND OTHERS
VS. GRAM PANCHAYAT, KARARIA AND OTHERS.
4. (1995) 4 SCC 229 - STATE OF BIHAR VS.
DHIRENDRA KUMAR AND OTHERS.
14. Per contra counsel Sri.D.L.Suresh., for respondents
justifies the Judgment and Decree passed by the First Appellate
Court.
15. Next, he submits that the plaintiffs are the
grandchildren of Thimmaiah and after the death of their
grandfather and father, they have continued to be in
possession of the suit schedule property, and the revenue
entries are also in their name.
16. A further submission is made that the defendants
and Government tried to interfere with their peaceful
possession and enjoyment of the suit schedule property hence,
the plaintiffs were constrained to file a suit in O.S.No.143/2002
and an injunction order was granted. Despite the order of
injunction, the defendants tried to interfere with their peaceful
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possession and enjoyment of the suit schedule property. Hence
there was a necessity to file a suit.
17. Learned counsel vehemently contended that the
First Appellate Court re-appreciated the material evidence on
record and rightly concluded that plaintiffs have proved their
case.
18. Lastly, he submitted that the Regular Second
Appeal may be dismissed.
19. Heard, the contentions urged on behalf of the
respective parties and perused the records with utmost care.
20. The facts have been sufficiently said and the same
does not require reiteration.
21. The suit giving rise to this appeal was filed by
plaintiffs for a permanent injunction.
22. As could be seen from the nature of the lis between
the parties, the suit is one for an injunction based on
possession as on the date of suit. The right to an injunction is
based on prima-facie right. On the trial of the action, the Trial
Judge held that plaintiffs have failed to prove their peaceful
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possession and enjoyment of the suit schedule property. The
Appellate Court held that plaintiffs are in possession of the suit
schedule property and accordingly, decreed the suit.
23. In the present case, the issue revolves around the
acquisition of the property.
24. Sri.G.S.Balagangadhar., learned counsel for the
appellants in presenting his argument strenuously urged that
the suit schedule property has been acquired way back in the
year 1955. He drew the attention of the Court to the
documents i.e., Exs.D.1 and 2 to contend that the Civil Court
has no jurisdiction to grant the relief of permanent injunction.
He also argued by saying that there is a bar to grant an
injunction under Section 41(h) of the Specific Relief Act.
25. By way of answer, Sri.D.L.Suresh., learned counsel
for the respondents replied that the possession has not been
taken over by the Government and the plaintiffs are in peaceful
possession and enjoyment of the suit property.
26. The submission about the acquisition is noted and
this Court perused the documents i.e., Exs.D.1 and 2 with
utmost care.
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27. Ex.D.1 is the Notification of acquisition and Ex.D.2
is the Certified copy of the Award Order. The property
Sy.No.1/6 & 1/5 have been acquired way back in the year
1955. It would be relevant to see that in a suit for bare
injunction, the plaintiff is required to prove his /her peaceful
possession and enjoyment over the suit property as on the date
of the suit. Based on material proof, the Trial Judge rightly
concluded that plaintiffs have failed to prove that they are in
possession of the suit schedule property as on the date of filing
of the suit. I am satisfied that the Trial Judge has appreciated
the material proof from the correct perspective.
28. In my view, the Appellate Judge has not
appreciated the material evidence on record in right
perspective. As already noted above, the suit schedule property
has already been acquired by the Government way back in the
year 1955 and hence the findings recorded by the First
Appellate Court about possession is totally erroneous. Hence, I
may venture to say that the Appellate Judge is not justified in
granting an injunction with respect to an acquired property.
Furthermore, the findings of the First Appellate Court are
vitiated by non-consideration of relevant evidence.
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29. It is needless to say that an injunction is a judicial
remedy by which a person is ordered to restrain from doing or
to do a particular thing. It is a preventive relief and is granted
at the discretion of the Court, but the discretion must be
exercised by following well-known principles. In the present
case, the Trial Court has exercised its discretion properly. The
exercise of discretion is not un-reasonable. The Appellate Judge
should not have interfered with the discretion exercised by the
Trial Court.
30. The substantial questions of law framed by this
court are answered accordingly.
31. Resultantly, the Regular Second Appeal is allowed.
The Judgment and Decree dated 27.10.2018 passed by the II
Addl. Senior Civil Judge & JMFC, Tumakuru in R.A.No.86/2017
is set-aside and the Judgment and Decree dated:14.07.2017
passed by the IV Addl. Civil Judge & JMFC, Tumakuru in
O.S.No.21/2010 is confirmed.
Sd/-
JUDGE
TKN
