Karnataka High Court
Kalappa @ Kalaiah vs Sri Munesha on 27 June, 2023
Bench: Jyoti Mulimani
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RSA No. 1063 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.1063 OF 2021 (INJ)
BETWEEN:
KALAPPA @ KALAIAH
SINCE DEAD BY HIS LRS
SRI RAJ KUMAR
S/O LATE KALAPPA,
AGED ABOUT 51 YEARS,
R/AT NO.229 22ND CROSS,
6TH BLOCK, JAYANAGAR,
BENGALURU - 560 078.
...APPELLANT
(BY SRI. H.MAREGOWDA., ADVOCATE)
AND:
SRI MUNESHA
S/O LATE CHIKKA HANUMAIAH
AGED ABOUT 31 YEARS,
Digitally signed by R/AT NETTIGERE VILLAGE,
THEJASKUMAR N UTTRAHALLI HOBLI,
Location: HIGH
COURT OF BENGALURU SOUTH TALUK,
KARNATAKA BENGALURU URBAN DISTRICT - 560 068.
...RESPONDENT
(BY SRI.SHIVAREDDY K N., ADVOCATE C/R)
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:
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JUDGMENT
Sri.H.Maregowda., learned counsel for the appellant and
Sri.Shivareddy.K.N., learned counsel for caveator/respondent
have appeared in person.
2. This is an appeal from the Court of IV Addl. Senior
Civil Judge, Bengaluru Rural District, Bengaluru.
3. For the sake of convenience, the status of parties
shall be referred to as per the ranking before the Trial Court.
4. The plaintiff filed a suit for a permanent injunction
in respect of agricultural property bearing Sy.No.42, New
No.42/P16 measuring to an extent of 01 Acre situated at
Nettigere Village, Uttarahalli Hobli, Bengaluru South Taluk. He
raised several pleas. After the service of the suit summons, the
defendant appeared through his counsel and filed a detailed
written statement. He denied the plaint averments. He
specifically contended that under the guise of grabbing the
property of the defendant, the suit is filed. Among other
grounds, he prayed for the dismissal of the suit.
5. Based on the above pleadings, the Trial Court
framed Issues. To substantiate the claim, the respective parties
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led evidence, and documents were marked. On the trial of the
action, the Trial Judge ordered an injunction. Aggrieved by the
Judgment and Decree of the Trial Court, the defendant
preferred an appeal before the First Appellate Court. On appeal,
the First Appellate Court reversed the Judgment and Decree of
the Trial Court. Hence, this Regular Second Appeal is filed by
the plaintiff under Section 100 of CPC.
Sri.H.Maregowda., learned counsel for the appellant and
Sri.Shivareddy.K.N., learned counsel for the respondent have
urged several contentions.
6. Heard, the contentions urged on behalf of the
respective parties and perused the records with utmost care.
The suit giving rise to this appeal was brought by the
plaintiff for the relief of a permanent injunction.
An injunction is a judicial process whereby a party is
ordered to refrain from doing or to do a particular act or a
thing. In the former case, it is called a restrictive injunction,
and in the latter, a mandatory injunction. It is a remedy of an
equitable nature and since equity acts in personam an
injunction affecting land does not run with the land.
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A perpetual injunction is based on a final determination of
the rights of the parties and is intended permanently to prevent
infringement of those rights and obviate the necessity of
bringing action after action in respect of every such
infringement.
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 a prima-facie right. In a suit for bare
injunction, the plaintiff is liable to prove their 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 the
relief of perpetual injunction must prove the breach of an
obligation or infringement of a legal right. A perpetual
injunction is maintained only after the plaintiff has established
his right and the actual infringement of it by the defendant.
7. Reverting to the facts of the case, the plaintiff
specifically contended that he is in possession and enjoyment
of the suit schedule property, but the defendant denied the
existence of the suit property and non-identification.
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8. Learned counsel Sri.Shivareddy.K.N., vehemently
contended that the property of the defendant has been
identified properly by re-survey and hissa- phodi by virtue of
order No.ADLR.CR.5/81 on 27.04.1981. Hence, he submitted
that taking note of the material on record, the First Appellate
Court justified in concluding that the plaintiff has failed to
establish his possession over the suit schedule property as on
the date of filing of the suit.
Sri.Shivareddy.K.N., learned counsel appearing on behalf
of the respondent in presenting his argument vehemently
contended that there is no proper identification of plaint
schedule property by the plaintiff. He argued by saying that the
property of the defendant is the absolute owner of the property
bearing No.176 and the plaintiff has nothing to do with the said
property. Hence, he denied the alleged interference.
9. In reply, learned counsel Sri.H.Maregowda.,
contended that the plaintiff has given boundaries to the suit
schedule property.
A good deal of argument is addressed about non-
identification and boundaries of the property of the plaintiff.
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I have considered the contentions with utmost care. In
my considered view, the Appellate Judge on re-appraisal of the
material proof, rightly concluded that the properties are
different, there is no nexus between the property of the plaintiff
and the defendant. In the absence of non-identification of the
property, the relief of injunction cannot be granted.
Furthermore, the evidence on record nowhere comes near
proving any of the allegations made against the defendant.
Irrespective of whether the injunction sought is
temporary or perpetual, the jurisdiction to grant an injunction
is discretionary. As already noted above, in a suit for bare
injunction, what must be proved is the lawful possession and
enjoyment of the suit property as on the date of filing of the
suit. I am quite clear that there is no identification of the
property, and the plaintiff has failed to prove the identity of the
property. In the absence of the identification of the property
and its boundary, the plaintiff is not entitled to the grant of a
perpetual injunction. The Appellate Judge re-appraised the
evidence on record from a right perspective. I find no infirmity
in the finding of fact recorded by the Appellate Judge about
possession, and I decline to interfere with the same.
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It is tempting 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 well-known principles. In the present case, the
Appellate Court has exercised its discretion properly in rejecting
the relief of injunction. The exercise of discretion is reasonable.
10. No substantial question of law arises for
consideration. Accordingly, the Regular Second Appeal is
dismissed at the stage of admission itself.
Sd/-
JUDGE
TKN
