Sri. S. Subramani vs Smt. Gangalakshamamma
2023 Latest Caselaw 6826 Kant

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                                                          NC: 2023:KHC:35251
                                                        RSA No. 809 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO. 809 OF 2019 (INJ)

                   BETWEEN:

                   1.    SRI S.SUBRAMANI
                         S/O ANTONY D'SOUZA,
                         AGED ABOUT 72 YEARS,
                         PRESENTLY R/AT NO.25/A,
                         BHANASHANKARI 3RD STAGE,
                         BHUVANESHWARA NAGARA,
                         10 'A' CROSS,
                         BENGALURU-560085.
                                                                  ...APPELLANT

                                (BY SRI S.V. SHASTRI, ADVOCATE)
                   AND:

Digitally signed   1.    SMT. GANGALAKSHAMAMMA
by SHARANYA T            W/O LATE MUNISIDDAPPA
Location: HIGH           AGED ABOUT 75 YEARS,
COURT OF
KARNATAKA                R/AT THIMMABOVIPALYA
                         DASANAPURA HOBLI,
                         BENGALURU RURAL (D)-562123

                   2.    SRI G.PARTHAP KUMAR
                         S/O YELE GOVINDAPPA
                         AGED ABOUT 38 YEARS,
                         R/AT KARNATAKA LAYOUT
                         KURUBARAHALLI,
                         BASAVEWARANAGAR,
                         BENGALURU-560079.
                                                             ...RESPONDENTS
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                                          NC: 2023:KHC:35251
                                         RSA No. 809 of 2019




     THI RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2018
PASSED IN R.A.NO.38/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE, NELAMANGALA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2015
PASSED IN O.S.NO.154/2007 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, NELAMANGALA.

    THIS APPEAL, COMING ON FOR ORDERS, 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.12 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.7,500/- 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,

NC: 2023:KHC:35251 RSA No. 809 of 2019

the defendant No.1 was allotted 1 acre, 1 gunta of land in

Sy.No.111. As per the partition, the property mutated in

M.R.No.2/92-93 and number of sites, out of which the site

No.12 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

NC: 2023:KHC:35251 RSA No. 809 of 2019

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 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 documents 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 suit

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

NC: 2023:KHC:35251 RSA No. 809 of 2019

as Exs.P1 and P2. On the other hand, the defendant

No.1 has examined as D.W.1 but, not tendered 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 R.A.No.38/2016. 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 Trial Court 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.

NC: 2023:KHC:35251 RSA No. 809 of 2019

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 documents 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.

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.12 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

NC: 2023:KHC:35251 RSA No. 809 of 2019

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 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

NC: 2023:KHC:35251 RSA No. 809 of 2019

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 the plaintiff has 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.

NC: 2023:KHC:35251 RSA No. 809 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

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NC: 2023:KHC:35251 RSA No. 809 of 2019

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 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 RHS