Karnataka High Court
Basavanneppa Neelappa Kulkarni vs Abdulghani Husenamiya Asundi on 26 June, 2023
Bench: Rajendra Badamikar
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RSA No. 100082 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 100082 OF 2023 (INJ)
BETWEEN:
BASAVANNEPPA NEELAPPA KULKARNI
AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: HUNASHIKATTI, TQ: HANAGAL,
DIST: HAVERI-581104.
...APPELLANT
(BY SRI. MAHESH WODEYAR, ADVOCATE)
AND:
ABDULGHANI HUSENAMIYA ASUNDI
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: BELAGALAPETH, TQ: HANGAL,
DIST: HAVERI-581104.
Digitally
signed by
...RESPONDENT
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.06.30
12:46:37 -
0700 (BY SRI. SANTOSH B MANE FOR C/R, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 05.12.2022 PASSED IN
R.A.NO.11/2022 ON THE FILE OF THE FAMILY COURT, HAVERI,
DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 01.02.2018, PASSED IN O.S. NO.125/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HANGAL, DECREEING THE SUIT
FILED FOR INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 100082 of 2023
JUDGMENT
This Regular Second Appeal is filed under Section
100 of the Code of Civil Procedure, 1908 (for short,
hereinafter referred to as 'CPC') by the defendant
challenging the judgment and decree passed in
O.S.No.125/2017 (Old No.217/2011) on the file of the
learned Senior Civil Judge and J.M.F.C., Hangal, whereby
the learned Senior Civil Judge has decreed the suit and the
appeal filed by the defendant in R.A. No.11/2022 on the
file of the learned Family Court, Haveri, (District Judge)
came to be dismissed.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The brief factual matrix leading to the case are
that, the plaintiff is the owner in possession of the suit
scheduled property bearing RS No.33/A of Belagalpeth
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Village total measuring 9 acres 38 guntas out of it 12
guntas on the southern side having specific boundaries
mentioned in the scheduled. The plaintiff asserted that he
is the owner of the suit scheduled property and the
defendant has illegally started construction of a compound
wall over the suit scheduled property. Hence, he sought
injunction against the defendant. The defendant has
appeared and has contended that he is the prospective
purchaser of the suit scheduled property by virtue of
agreement of sale dated 11.06.2005 and hence, he
disputed the claim of the plaintiff.
4. The Trial Court after appreciating the oral and
documentary evidence, decreed the suit filed by the
plaintiff.
5. Being aggrieved by this judgment and decree,
the defendant has approached the learned District Judge,
Haveri, in R.A. No.11/2022 which subsequently came to be
transferred to the Family Court, Haveri, and the learned
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District Judge after re-appreciating the oral as well as
documentary evidence, dismissed the appeal by
confirming the judgment and decree passed by the Trial
Court.
6. Against these concurrent findings, the
appellant/defendant is before this Court.
7. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel for the
respondent. Perused the records.
8. Learned counsel for the appellant would
contend that he is in possession of the suit scheduled
property by virtue of Ex.D.1 which is the agreement of
sale dated 11.06.2005. He would contend that possession
was handed over and with the permission of the plaintiff,
he has undertaken the construction and hence, the Trial
Court as well as the Appellate Court failed to appreciate
this aspect. As such he would contend that this is a fit case
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for admission and both the Courts have committed serious
error in decreeing the suit and sought for allowing this
appeal by dismissing the suit.
9. Per contra, learned counsel for the respondent
would contend that the agreement of sale dated
11.06.2005 itself is disputed and since illegal construction
was undertaken, he was compelled to file a suit for
injunction and the defendant/appellant herein has
appeared and contested the suit. He would also asserts
that the execution of agreement of sale itself was disputed
and suit for specific performance is filed in 2018 which is
also hit by law of limitations. Hence, he would contend
that the defendant without there being any right, title or
interest has taken construction in his property and hence,
he would contend that both the Courts below have
properly appreciated the oral and documentary evidence.
Hence, he would assert that no good grounds are
forthcoming for admission and interference in the matter.
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10. Having heard the arguments and perusing the
records it is evident that the plaintiff has filed a suit for
injunction. There is no dispute of the fact that plaintiff is
the owner of the suit scheduled property. The defendant
is claiming to be a prospective purchaser under agreement
of sale dated 11.06.2005 and the suit itself is filed in 2011
which was subsequently renumbered in 2017. There is no
specific clause in the agreement of sale regarding handing
over of possession. The defendant has no where asserted
as to when he has come in possession of suit scheduled
property. The records further discloses that during the
cross-examination of PW1 on 09.12.2014, the agreement
of sale was confronted and marked as Ex.D1 wherein the
plaintiff/respondent herein has admitted his signature but
however, he has disputed the contents of the document.
He has denied the contents on 09.12.2014 itself. Even on
perusal of Ex.D.1, there is no clause regarding handing
over of possession and the records further discloses that
stamp duty is paid to the tune of Rs.1,677/- but no
penalty was recovered. Be it as it may be, it is a fact that
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the agreement was dated 11.06.2005, without there being
any clause pertaining to possession and the suit for
specific performance is said to have been filed in 2018
itself.
11. Admittedly, the agreement of sale does not
confer any right, title or interest in favour of the defendant
and it only gives him a right to enforce the agreement.
The defendant has not acquired any title under agreement
of sale and the question of he continuing with construction
does not arise at all. It has also come in evidence that he
has not obtained any permission for construction from the
competent authority. When the defendant is neither the
owner nor the possessor and having not obtained
permission from any competent authority, the question of
he proceeding with construction does not arise at all. He
said to have filed a suit for specific performance in 2018
and he is required to establish his right only under the suit
for specific performance said to have been filed by him.
Both the Courts have appreciated the oral and
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documentary evidence in proper perspective and the
plaintiff has failed to make out any grounds for admission
of the matter. No substantial question of law is involved
and the judgment and decree of the Courts below are in
accordance with law and on proper appreciation of the
evidence on records. Hence, the appeal being devoid of
any merits does not survive for consideration.
Accordingly, the appeal stands rejected.
Sd/-
JUDGE
SSP
