Karnataka High Court
Smt L Anasuya vs Sri Gunda Naik on 21 June, 2023
Bench: Jyoti Mulimani
-1-
NC: 2023:KHC:21702
RSA No. 2171 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.2171 OF 2016 (INJ)
BETWEEN:
SMT. L. ANASUYA
W/O SRI K.L.RAMANAIKA,
AGED ABOUT 52 YEARS,
R/AT HEREUDA TANDA VILLAGE,
NOW RESIDING AT CHANNAGIRI TOWN,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
...APPELLANT
(BY SRI. SIDDAMALLAPPA P.M., ADVOCATE)
AND:
1. SRI GUNDA NAIK @ DOUJA NAIK,
S/O SRI SEVYA NAIK,
AGED ABOUT 53 YEARS,
Digitally signed by R/AT HEREUDA TANDA VILLAGE,
THEJASKUMAR N
CHANNAGIRI TALUK,
Location: HIGH
COURT OF DAVANAGERE DISTRICT - 577 213.
KARNATAKA
2. SRI CHANDRANAIK
S/O BADYANAIK,
AGED ABOUT 62 YEARS,
R/AT HEREUDA TANDA VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
-2-
NC: 2023:KHC:21702
RSA No. 2171 of 2016
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.P.M.Siddamallappa., learned counsel for the appellant
has appeared through video conferencing.
2. This is an appeal from the Court of Senior Civil
Judge & JMFC, Channagiri.
3. For the sake of convenience, the parties are
referred to as per their status and rankings before the Trial
Court.
4. The brief facts are these:
The plaintiff contended that he bought the following
immovable properties:
I. Land bearing Sy.No.218/1 measuring 03 Acres 39
Guntas including 01 Gunta Kharab situated at
Hireuda Village, Channagiri Taluk on 12.12.1984.
II. Vacant site bearing Sl.No.135 asti No.82 site No.1
measuring East West 30 feet North South 60 feet
situated at Hiruda Tanda Village on 12.11.2001.
NC: 2023:KHC:21702
RSA No. 2171 of 2016
III. Vacant site bearing Sl.No.141 Asti No.88 measuring
East West 30 feet, North-South 60 feet situated at
Hiredu Tanda Village on 31.12.2001.
It is said that in the land bearing Sy.No.218/1 she has
built a water tank on the northern side in an extent of East-
West 21.3 feet, North South - 30 feet by investing about 2½
lakhs for storing the water. It is averred that the defendants
having no manner of right, title, or interest over the suit
schedule property tried to trespass & cause obstructions and
also tried to damage the water tank and the pump-house and
hence she was constrained to take shelter under the Court of
law and filed a suit for a permanent injunction.
After the service of the suit summons, the defendants
appeared through counsel and filed a detailed written
statement. They denied the plaint averments. They prayed for
the dismissal of the suit. They sought the relief of mandatory
injunction to demolish the constructions put up by the plaintiff.
The plaintiff also filed a rejoinder to the Written statement
denying the averments of written statement.
NC: 2023:KHC:21702
RSA No. 2171 of 2016
5. Based on the above pleadings, the Trial Court
framed Issues. To substantiate the claim, the respective parties
led in evidence and got marked the documents. On the trial of
the action, the Trial Court dismissed the suit. On appeal, the
Judgment and Decree of the Trial Court were confirmed. Hence,
the plaintiff has filed this Regular Second Appeal under Section
100 of CPC.
6. Sri.P.M.Siddamallappa., learned counsel for the
appellant submits that the Judgments & Decrees of the Trial
Court & the First Appellate Court are illegal and contrary to the
facts of the case. Hence, the same is liable to be set aside.
Next, he submits that both Courts misread the evidence
on record adduced on behalf of the plaintiff. Though oral
evidence of PW1 to 4 corroborated with the documents Ex.P.1
to P14, even then the Courts erred in not considering the
evidence on record and have erroneously rejected the claim for
the relief of injunction.
A further submission is made that mere issuance of the
notice by the Tahasildar for the removal of the unauthorized
construction cannot be a ground to reject the relief.
NC: 2023:KHC:21702
RSA No. 2171 of 2016
Learned counsel vehemently contended that both Courts
erred in dismissing the suit of the plaintiff by holding that
plaintiff has not proved the boundary and extent of the suit
schedule property.
Lastly, he submits that viewed from any angle, the
Judgments & Decrees of the Trial Court and First Appellate
Court lack judicial reasoning. Therefore, he submits that the
Second Appeal may be admitted by framing substantial
questions of law.
7. Heard, the contentions urged on behalf of the
appellant and perused the records with utmost care.
8. The suit giving rise to this appeal was filed by the
plaintiff for the relief of injunction. As could be seen from the
nature of lis between the parties, the suit is one for a bare
injunction. The right to an injunction is based on prima facie
right. On the trial of the action, it was found that the plaintiff
has failed to prove her peaceful possession and enjoyment of
the suit schedule property as on the date of filing of the suit.
The issue revolves around the possession of the plaintiff
as of the date of filing of the suit.
NC: 2023:KHC:21702
RSA No. 2171 of 2016
In the present case, the plaintiff has put up an
unauthorized construction on the road. Hence, the Tahsildar
visited the spot and issued notice to the plaintiff for the
removal of unauthorized construction. It is the specific
contention of the plaintiff that she is the absolute owner in
possession of the suit schedule property, and she has
constructed the water tank. But the documents shown by the
defendants prove otherwise. Ex.D.2 is the Endorsement
dated:14.08.2008 given by Tahsildhar. It is addressed to the
counsel for the plaintiff saying that he visited the spot on
07.08.2008 and requested the plaintiff to remove the
unauthorized construction i.e., the water tank and red tile
house. Hence, it is hard to believe that there is an infringement
of legal rights.
The Trial Court in extenso referred to the material on
record and concluded that there is no clarity about boundaries.
In the absence of proof of boundaries, the Trial Court rejected
the relief of injunction. The Trial Court also concluded that the
plaintiff has constructed water tank and pump-house on the
road.
NC: 2023:KHC:21702
RSA No. 2171 of 2016
It is pivotal to note that in a suit for bare injunction, the
plaintiff must prove her/his lawful possession and enjoyment of
the suit schedule property as on the date of filing of the suit.
The object of injunction is prevention, and the aim is to
maintain status-quo ante. The plaintiff claiming relief of
perpetual injunction must prove the breach of an obligation or
infringement of a legal right.
In the present case, the plaintiff has failed to prove that
there is an infringement of her legal right, and she has also
failed to prove her possession over the suit schedule property
as on the date of filing of the suit.
The Trial Court dismissed the suit. 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-consideration of material evidence nor
there is a erroneous or mistaken approach to the matter. I do
not find any error in the finding of facts.
9. It is perhaps well to observe that after the 1976
amendment, the scope of Section 100 of the CPC has been
NC: 2023:KHC:21702
RSA No. 2171 of 2016
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.
10. 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.
Sd/-
JUDGE
TKN
