Karnataka High Court
Sri. T. R. Dhanalakshmi vs Smt. Gangalakshamamma on 9 March, 2023
Bench: H.P.Sandesh
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RSA No. 810 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 810 OF 2019 (INJ)
BETWEEN:
1. SRI. T.R.DHANALAKSHMI
W/O. D.V. JAGADISH,
AGED ABOUT 60 YEARS,
PRESENTLY RESIDING AT NO.18,
3RD MAIN, NANJUNDAPPA ROAD,
RAMAIAH LAYOUT, K.K.HALLI,
SNT. THOMAS POST,
BENGALURU-560 084.
...APPELLANT
(BY SRI. RAVINDRANATH K., ADVOCATE)
AND:
1. SMT. GANGALAKSHAMAMMA
Digitally signed
by SHARANYA T W/O. LATE MUNISIDDAPPA,
Location: HIGH AGED ABOUT 75 YEARS,
COURT OF RESIDING AT THIMMABOVIPALYA,
KARNATAKA
DASANAPURA HOBLI,
BENGALURU RURAL DISTRICT-562 123.
2. SRI. G. PRATHAP KUMAR
S/O. YELE GOVINDAPPA,
AGED ABOUT 41 YEARS,
RESIDING AT KARNATAKA LAYOUT,
KURUBARAHALLI,
BASAVESWARANAGAR,
BENGALURU-560 079.
...RESPONDENTS
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RSA No. 810 of 2019
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 29.11.2018 PASSED IN
R.A.NO.40/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND NELAMANGALA, BENGALURU RURAL DISTRICT,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 31.10.2015 PASSED IN O.S.NO.155/2007
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
NELAMANGALA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that plaintiff is the owner of the site No.1
situated in Sy.No.111 of Shivanapura Village by virtue of an
agreement of sale dated 29.01.1994. The defendant by an
agreement of sale, agreed to sell the suit schedule property for
a sum of Rs.9,000/- and the plaintiff has paid the entire sale
consideration amount to the defendant No.1 and she put him in
possession of the suit schedule property. The defendant No.1
has agreed to sell the same contending that by virtue of a
partition entered into among the members of her family dated
08.06.1969, the defendant No.1 was allotted 1 acre, 1 gunta of
land in Sy.No.111. As per the partition, the property mutated
RSA No. 810 of 2019
in M.R.No.2/92-93 and number of sites, out of which the site
No.1 was agreed to be sold in favour of the plaintiff. The
defendant No.1 was in need of money for their family necessity
and daughter marriage and in view of the ban imposed by the
Government of Karnataka, the document is not registered. The
plaintiff constantly requesting to execute the sale deed in his
favour, but the defendant is postponing the same for one or the
other reasons. The defendant No.1 has formed a layout
showing the location of the sites agreed to be sold in favour of
the plaintiff. After ascertaining the boundaries of the layout
plan and the agreement of sale, the plaintiff took possession
and continued to be in possession of the sites. Without any
right, title or interest over the suit schedule property, the
defendant No.2 came to plaintiff's site in 2nd week of January,
2007 tried to disturb his possession. The defendants are the
powerful persons in the area and disturbed the possession of
the plaintiff. Hence, sought for the relief of permanent
injunction.
3. In pursuance of the suit summons, the defendant
No.2 appeared through counsel and not chosen to file any
written statement. The defendant No.1 appeared through
RSA No. 810 of 2019
counsel and denied the plaint averments and contend that
plaintiff is totally stranger and he has no manner of right, title,
interest or possession over the suit schedule property. The
agreement of sale is got up, concocted, created and fraudulent
document and the same has no value in the eye of law. The
defendant No.1 along with the family members sold the entire
land bearing Sy.No.111, measuring 3.11 guntas to the
defendant No.2 through registered sale deed dated 27.12.2006
for valuable consideration. The defendant No.2 is in peaceful
possession and enjoyment of the property including the suit
schedule property.
4. The plaintiff, in order to prove his case, examined
himself as P.W.1 and got marked the documents as Exs.P1 and
P2. On the other hand, the defendant No.1 has examined
herself as D.W.1 but, not tendered herself for cross-
examination.
5. The Trial Court, having considered both oral and
documentary evidence placed on record, dismissed the suit.
Being aggrieved by the judgment and decree of the Trial Court,
an appeal is filed before the First Appellate Court in
RSA No. 810 of 2019
R.A.No.40/2016. The First Appellate Court also, considering
the grounds urged in the appeal memo, formulated the points
whether the Trial Court has erred in holding that the plaintiff is
not in possession of the suit schedule property and whether the
judgment and decree passed by the Tribunal is liable to be set
aside. The First Appellate Court also, on re-appreciation of
both oral and documentary evidence placed on record,
dismissed the appeal and confirmed the judgment of the Trial
Court. Hence, the present second appeal is filed before this
Court.
6. Learned counsel appearing for the appellant would
vehemently contend that both the Courts have committed an
error in not considering the documents of Exs.P1 and P2 i.e.,
General Power of Attorney and even the defendant No.2 has
not filed any written statement and only the defendant No.1,
who sold the property by executing the document of Exs.P1 and
P2 has filed the written statement denying the averments of
the plaint. Hence, this Court has to frame the substantial
question of law whether the Courts below have committed an
error in dismissing the suit and confirming the judgment and
decree of the First Appellate Court.
RSA No. 810 of 2019
7. Having heard the learned counsel appearing for the
appellant and on perusal of the material available on record, it
is the case of the plaintiff that defendant No.1 sold Site No.1
formulated in Sy.No.111 and the sale agreement is not
registered. The General Power of Attorney was marked as
Ex.P1 and the affidavit was marked as Ex.P2 before the Trial
Court. No doubt, even the first defendant, who filed the written
statement and examined herself has not tendered for cross-
examination. But the fact is that they are relying upon the sale
agreement as well as the General Power of Attorney and in
order to establish that the possession has been delivered in
favour of the plaintiff no document had been placed before the
Trial Court. While considering the suit for injunction, the
plaintiff has to prove that as on the date of filing of the suit,
she has been in possession of the property. The first defendant,
who allegedly executed the power of attorney as well as the
affidavit, also filed the written statement denying the very
execution of Exs.P1 and P2. When D.W.1 disputes the
documents of Exs.P1 and P2, no document is placed before the
Court that as on the date of filing of the suit, the plaintiff has
been in possession of the suit schedule property. The Trial
RSA No. 810 of 2019
Court considering the pleadings of the parties and also the
evidence came to the conclusion that the plaintiff has failed to
prove her contention by placing any cogent material piece of
evidence before the Court and the interference of the defendant
is also not proved by the plaintiff. When the plaintiff herself has
failed to prove her lawful possession and ownership over the
suit schedule property as well as its existence then definitely
there is no question of causing interference with the possession
of the plaintiff over the suit schedule property.
8. The First Appellate Court in detail discussed the
material available on record by formulating the points and
taken note of the pleadings of the parties. In paragraph No.16,
has observed that not examined any other witnesses to prove
the fact that she has been in possession and enjoyment of the
suit schedule property. The Court also taken note that in the
cross-examination, she has admitted that there is no any
Kararu in between the plaintiff and defendant No.1 and also
admits that the suit schedule property possession was not
given and this is evident that the second defendant has
encroached the suit schedule property in the year 2007 itself.
Hence, he has been made as a party to the proceedings.
RSA No. 810 of 2019
9. Having taken note of this admission, the First
Appellate Court came to the conclusion that P.W.1 herself has
admitted that defendant No.1 has not delivered the possession
of the suit schedule property and also she has admitted that
during the year 2007, defendant No.2 has encroached the suit
schedule property, which clearly goes to show that the plaintiff
has not been in possession and enjoyment of the suit schedule
property. Hence, the First Appellate Court also on re-
appreciation of oral and documentary evidence came to the
conclusion that the lawful possession has not been established
by the plaintiff.
10. Having considered the reasoning given by the Trial
Court as well as the First Appellate Court and both the Courts
have given the anxious consideration to the material available
on record except the documents-Exs.P1 and P2, no other
material has been placed before the Court and the plaintiff also
not examined any other witness to prove her possession. Apart
from that, in the cross-examination, she categorically admitted
that the possession was not delivered and also defendant No.2
has encroached the suit schedule property. When such
admission is given and when the plaintiff failed to establish the
RSA No. 810 of 2019
possession, the question of granting the relief of permanent
injunction does not arise. Both the Trial Court as well as the
First Appellate Court considered the material available on
record and dismissed the suit, the same has been confirmed by
the First Appellate Court. Hence, I do not find any ground to
admit and frame any substantial question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.As., if any do not
survive for consideration, the same stands disposed of.
Sd/-
JUDGE
ST/cp*
