Karnataka High Court
Abuthalib vs Ramza on 20 June, 2023
Bench: Jyoti Mulimani
-1-
NC: 2023:KHC:21226
RSA No. 551 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.551 OF 2020 (INJ)
BETWEEN:
ABUTHALIB
S/O N.P.ABDULLA,
REPRESENTED BY HIS GPA HOLDER,
ABDUL SALEEM,
S/O MOHAMMAD ZOHARIDDIN,
AGED 57 YEARS,
TARA BEEDA STALL,
ANNANAGAR, MARRY NILAYA,
OUTHOUSE, MAIN ROAD,
SHIVAMOGGA - 577 201.
...APPELLANT
(BY SMT.ARUNA BHAT, ADVOCATE FOR
SRI. G.LAKSHMEESH RAO., ADVOCATE)
Digitally signed by AND:
THEJASKUMAR N
Location: HIGH
COURT OF 1. RAMZA
KARNATAKA W/O LATE EBRAHIM,
AGED 58 YEARS,
HOUSEWIFE,
2. SAJEEDA
D/O LATE EBRAHIM,
AGED 41 YEARS,
3. SHAFEENA
D/O LATE EBRAHIM,
AGED 38 YEARS,
-2-
NC: 2023:KHC:21226
RSA No. 551 of 2020
4. SABEER
S/O LATE EBRAHIM,
AGED 33 YEARS,
ALL ARE PERMANENT R/O
HARA HOUSE, KENENUR DISTRICT,
KERALA STATE.
HOTEL ADDRESS- TARA HOTEL,
N T ROAD,
OPPOSITE KSRTC BUS STAND,
SHIVAMOGGA - 577 201.
...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
Ms.Aruna Bhat., learned counsel on behalf of
Sri.G.Lakshmeesh Rao., for the appellant has appeared in
person.
2. This is an appeal from the Court of Prl.Senior Civil
Judge and C.J.M., Shivamogga.
3. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Trial
Court.
NC: 2023:KHC:21226
RSA No. 551 of 2020
4. The plaint averments are these:
The case of the plaintiff is that he and Abdul Khadar, the
defendant are children of one N.P.Abdulla of Shimogga City. It
is said that P.Abdul Khadar is the owner of the building in which
Hotel Tara is situated. He bought the property in his name and
the name of the defendant for nominal sake on 22.09.1999 and
their name was entered in the property records. It is said that
P.Abdul Khadar and the defendant are running the Hotel Tara
for twenty years. It is averred that P.Abdul Khadar out of love
and affection conveyed the front part to the plaintiff to run a
Beeda stall for the livelihood of the plaintiff vide agreement
dated 22.10.1993 with the knowledge and consent of the
defendant. The Plaintiff after taking possession of the property,
changed the part of the building as a room for running the
Beeda stall and he has obtained a license from the City
Municipality, Shivamogga and obtained an electricity connection
from MESCOM, Shivamogga.
As things stood thus, he got an appointment at Abu
Dhabi in U.A.E and therefore, executed the General Power of
Attorney in favor of one A.Saleem S/o.Mohammad Zahoruddin
NC: 2023:KHC:21226
RSA No. 551 of 2020
on 11.08.1999. The GPA holder was running the Beeda stall
from 1999 to 2007. Thereafter the GPA holder of the plaintiff
let out the Beeda stall to one Abdul Razak S/o.Mohammed for
running the Beeda stall with the consent of the plaintiff for a
period of 11 months from 05.10.2007. Thereafter, the lease
period was renewed from time to time. After, Abdul Razak
handed over the possession of the Beeda stall to the GPA
holder of the plaintiff. It is said that the GPA holder of the
plaintiff is in possession of the schedule property. But the
defendant tried to trespass and demolish the suit schedule
property. Apprehending that defendant will encroach upon the
suit schedule property, the plaintiff - initiated action against the
defendant and filed a suit for a permanent injunction.
After the service of the suit summons, the defendant
appeared through his counsel and filed a written statement. He
admitted the relationship. He disputed other plaint averments.
He also disputed that neither plaintiff nor his GPA Holder was in
possession of the suit schedule property as of the date of filing
of the suit. Hence, he specifically denied his alleged
interference. Among other grounds, he prayed for the dismissal
of the suit.
NC: 2023:KHC:21226
RSA No. 551 of 2020
5. Based on the above pleadings, the Trial Court
framed the Issues. To substantiate the contentions, the parties
led in evidence and got marked the documents. On the trial of
the action, the Trial Court dismissed the suit. On appeal, the
First Appellate Court confirmed the Judgment & Decree of the
Trial Court. Hence, this Regular Second Appeal is filed by the
plaintiff under Section 100 of CPC.
6. Ms.Aruna Bhat., learned counsel for the appellant
submits that the Judgments & Decrees of the Trial Court & the
First Appellate Court are mistaken and opposed to the facts and
contrary to the law and hence the same are liable to be set
aside.
Next, she submits that both Courts have failed to
appreciate the pleadings and documents produced by the
plaintiff fortifies that he is in actual possession of the suit land
throughout and the defendant interfered with his peaceful
possession.
A further submission is made that the plaintiff had made
out prima-facie case for decreeing the suit.
NC: 2023:KHC:21226
RSA No. 551 of 2020
Ms.Aruna Bhat., vehemently contended that both Courts
did not appreciate that the stray evidence of the plaintiff in his
deposition cannot be the criteria or the basis for arriving at a
conclusion that the plaintiff has admitted the possession of the
suit property by the defendant.
It is also contended that it is the settled principle of law
that the Courts are duty-bound to consider the evidence as a
whole and its finding should depend upon the cumulative effect
of the entire oral and documentary evidence.
Lastly, she submits that viewed from any angle the
Judgment & Decree of both Courts are unsustainable in law and
hence the Regular Second Appeal may be admitted by framing
substantial questions of law.
7. Heard, the contentions urged on behalf of the
appellant and perused the Judgments & Decrees of the Trial
Court & the First Appellate Court with utmost care.
8. The facts have been sufficiently said and the same
does not require reiteration.
NC: 2023:KHC:21226
RSA No. 551 of 2020
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.
The issue revolves around the factum of possession as on
the date of filing of the suit. It would be relevant to see that in
a suit for bare injunction, the plaintiff must prove to prove
his/her lawful possession and enjoyment over the suit property
as of the date of filing of the suit.
9. Suffice it to note that the plaintiff has deposed that
the Beeda stall has been demolished during the road widening
and he has received a sum of Rs.2,50,000/- (Rupees Two Lakh
Fifty Thousand only) from Abdul Razak. Based on material
proof, the Trial Judge held that the plaintiff has failed to prove
his peaceful possession and enjoyment of the suit schedule
property.
The First Appellate Court has examined the evidence on
record and re-appraised it. I am satisfied that it has been
appreciated from the correct perspective. Furthermore, the
findings by the Court of facts are neither vitiated by non-
NC: 2023:KHC:21226
RSA No. 551 of 2020
consideration of material evidence nor there is a mistaken or
mistaken approach to the matter. I do not find any error in the
finding of facts.
10. It is 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 called for if it involves re-appreciation of the evidence.
11. No substantial question of law arises for
consideration in this appeal. As a result, I find no merit in this
appeal, and so, it is dismissed at the stage of admission itself.
Sd/-
JUDGE
TKN
