Karnataka High Court
Shri P T Prem Kumar vs Shri N Munikrishnappa on 4 October, 2023
Bench: H.P.Sandesh
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RSA No. 896 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 896 OF 2017 (PAR)
BETWEEN:
1. SHRI P.T. PREM KUMAR
S/O. NAYANAR
AGED ABOUT 70 YEARS,
R/AT KBN FARAM, SATTARSAB DINNE
BUKKASAGARA DHAKALE
JIGANI HOBLI, ANEKAL TALUK
BANGALORE RURAL DISTRICT-562 106.
...APPELLANT
(BY SRI. VISWANATH SETTY V., ADVOCATE)
AND:
1. SHRI N. MUNIKRISHNAPPA
SINCE DECEASED BY HIS LRS
Digitally signed
1(a) SHRI S.M. RAVIKIRAN
by SHARANYA T S/O. LATE MUNIKRISHNAPPA
Location: HIGH AGED ABOUT 31 YEARS,
COURT OF
KARNATAKA
1(b) KUM. S.M. SANGEETHA
D/O. LATE MUNIKRISHNAPPA,
AGED ABOUT 29 YEARS,
BOTH ARE R/AT
BUKKASAGARA DINNE
JIGANI HOBLI, ANEKAL TALUK-562 106
BANGALORE DISTRICT.
...RESPONDENTS
(BY SRI YATHISHA G.T., ADVOCATE FOR C/R1 (a) & (b)
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RSA No. 896 of 2017
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DTD. 31.03.2017 PASSED
IN REGULAR APPEAL NO.31/2007 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, SITTING AT ANEKAL, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD18.12.2006 PASSED IN ORIGINAL SUIT NO.97/2005 ON
THE FILE OF THE ADDITIONAL CIVIL JDUGE (JR.DN) AND
JMFC, ANEKAL.
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 and learned counsel for the
respondents.
2. The factual matrix of the case of the plaintiff before
the Trial Court is that he is the absolute owner in possession
and enjoyment of the house property bearing Janjer No.14,
Site No.14 situated at Sattarsab Dinne of Bukkasagara Dhakle
of Anekal Taluk as described in the schedule. It is contended
that, earlier said property was belonging to one Muniraju and
the plaintiff had purchased the same under registered sale deed
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dated 15.09.2004 from Muniraju and all the records are
standing in his name and the defendant, without any right is
interfering with possession of the suit schedule property.
3. In pursuance of the suit summons, the Trial Court
issued summons to the defendant and the defendant appeared
and filed the written statement denying the averments of the
plant and however, contended that the suit schedule property is
part and parcel of Sy.No.164/3, which was purchased by him
through a registered sale deed dated 22.03.1996 in the name
of M/s. United Investments. The defendant is one of the partner
to the said investment and the said land is a converted land for
non-agricultural purpose and the plaintiff has manipulated the
documents and not having any right.
4. The Trial Court, having considered the pleadings of
the parties, framed the issues whether the plaintiff proves that
he is in lawful possession and enjoyment of the suit schedule
property and whether the plaintiff proves that the defendant is
interfering with his peaceful possession and enjoyment of the
suit schedule property.
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5. In order to prove his case, the plaintiff examined
himself as P.W.1 and examined two witnesses as P.Ws.2 and 3
and got marked the documents as Exs.P1 to P17. On the other
hand, the defendant examined himself as D.W.1, but not
produced any document before the Trial Court.
6. The Trial Court, having considered the material on
record, particularly, the oral evidence of P.Ws.1 to 3 and the
documents at Exs.P1 to P17 i.e., sale deed, mutation register
extract, demand register extracts, photographs and tax paid
receipts, comes to the conclusion that the plaintiff is in
possession and enjoyment of the suit schedule property as on
the date of suit and decreed the suit.
7. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed before the First Appellate Court in
R.A.No.31/2007 and the First Appellate Court, having
considered the grounds urged in the appeal memo, formulated
the points whether the plaintiff proves that he was in lawful and
actual physical possession of the suit property as on the date of
institution of suit, whether there is obstruction by the
defendant and whether the defendant is entitled for the relief of
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permanent injunction and also formulated the point whether
there are grounds to allow the application filed under Order
XLI, Rule 27 of C.P.C. and whether the impugned judgment and
decree of the Trial Court calls for interference.
8. The First Appellate Court, on re-appreciation of both
oral and documentary evidence placed on record, answered
point Nos.1 to 3 as 'affirmative' and point No.4 as 'negative', in
coming to the conclusion that no grounds are made out to allow
the application filed under Order XLI, Rule 27 of C.P.C. and
dismissed the application and confirmed the judgment and
decree of the Trial Court. Hence, the present second appeal is
filed before this Court.
9. The main contention of the learned counsel for the
appellant before this Court is that the defendant took the
specific contention before the Trial Court that the property
which the plaintiff is claiming is part and parcel of Sy.No.164/3
and the Trial Court committed an error in relying upon the
revenue records produced by the respondents i.e., Exs.P2 to
P12 and the evidence of P.Ws.2 and 3 and failed to take note of
the fact that boundaries furnished by the respondent No.1 are
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all factitious one to suite the convenience of the plaintiff. The
counsel would vehemently contend that the First Appellate
Court committed an error in dismissing the application filed
under Order XLI, Rule 27 of C.P.C. and also contend that
earlier, the application was independently considered and the
same was set aside in R.F.A.No.564/2011 and the matter was
remanded to the First Appellate Court. Learned counsel also
would vehemently contend that on remand also, the First
Appellate Court not considered the grounds which have been
urged in the application i.e., I.A.No.2 filed by the appellant and
there is no existence of the suit schedule property as claimed
by the plaintiff and the same belongs to the appellant herein
and both the Courts not considered the material on record in a
proper perspective. Learned counsel for the appellant-
defendant in his argument would vehemently contend that the
First Appellate Court committed an error in dismissing the
application filed under Order XLI, Rule 27 of C.P.C. Hence, this
Court has to admit the appeal and frame substantial question of
law. The learned counsel would vehemently contend that both
the Courts have not considered the material on record that the
suit schedule property is part and parcel of Sy.No.164/3.
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10. Having heard the learned counsel for the appellant
and learned counsel for the respondents and also on perusal of
the material on record, it is the case of the plaintiff that he had
purchased the property vide sale deed dated 15.09.2004 and
earlier, the same was belonging to one Muniraju and all the
revenue records stands in his name. It is the contention of the
appellant-defendant before this Court that the suit schedule
property is part and parcel of Sy.No.164/3 and he has
purchased the property and though the appellant-defendant
contend that the property belongs to him, he has not produced
any document either the sale deed or any other document to
show that as on the date of filing of the suit, the property
stands in the name of the defendant. On the other hand, the
plaintiff has relied upon the document of sale deed, mutation
register extract, land/house tax assessment extract, tax
demand register extract, tax paid receipt, license and tax
demand register extract and having considered these materials,
the Trial Court comes to the conclusion that as on the date of
filing of the suit, the plaintiff is in possession of the property.
11. The main contention of the learned counsel for the
appellant is that this property is part and parcel of Sy.No.164/3
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and also no dispute with regard to the fact that the defendant
has not placed any document before the Trial Court and no
doubt, an attempt is made before the First Appellate Court to
produce the documents by filing an application under Order
XLI, Rule 27 of C.P.C., considering the grounds urged in the
application, extracted the very provision of Order XLI, Rule 27
of C.P.C., and considering the same, the First Appellate Court
discussed in Para Nos.24 and 25 of the judgment and also
considered the judgment of the Apex Court with regard to
considering the application for production of additional
documents and comes to the conclusion that the same does not
deserves to be allowed and the documents, which the appellant
wants to prove on record along with I.A.No.2, were already in
his knowledge and not the subsequent document and relied
upon the judgment of the Apex Court in ADIL JAMSHED
FRENCHMAN (DEAD) BY LRS. VS. SARDAR DASTUR
SCHOOLS TRUST AND OTHERS reported in 2005 (2) SCC
476 and comes to the conclusion that, when the appellant-
defendant has not proved the fact that the suit schedule
property is part and parcel of Sy.No.164/3, the First Appellate
Court observed that evidence sought to be adduced by the
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appellant and respondent have no bearing on the merits of the
present case and hence, rejected the same.
12. When the appellant-defendant took the specific
defence that the suit schedule property is part and parcel of
Sy.No.164/3, ought to have produced the document but, not
produced any document and when the claim of the defendant is
that the said property not belongs to the plaintiff, the Court has
to only look into the documents while considering the suit for
bare injunction whether as on the date of filing the suit, the
plaintiff is in possession or not and when the suit is filed for the
relief of permanent injunction for simpliciter, the question of
considering title also does not arise. On the other hand, the
appellant-defendant has not placed any material before the
Court and when the appellant-defendant claims that property
belongs to him and the said property is part and parcel of
Sy.No.164/3, he can seek for better relief of declaration that he
is the owner. The appellant has not made any effort before the
Trial Court to prove his contention and his defence has
remained as defence only before the Trial Court. Hence, no
grounds are made out to invoke Section 100 of C.P.C. to admit
the appeal and frame any substantial question of law.
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Accordingly, the appeal is dismissed.
In view of dismissal of appeal, I.As, if any do not survive
for consideration and the same stand disposed of.
Sd/-
JUDGE
ST
