Karnataka High Court
Smt. Hanifabi @ Sundari vs Smt.N.Dhanalaxmi on 2 August, 2024
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RSA No. 1792 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.1792 OF 2016 (INJ)
BETWEEN:
1. SMT. HANIFABI @ SUNDARI
W/O LATE MOHAMMED GHOUSE @
MEENU GHOUSE,
AGED ABOUT 70 YEARS
FISH MERCHANT,
R/O BEHIND SHANKAR GARAGE,
CHIKMAGALUR DISTRICT
PIN-577 101
2. AZIZ BASHA
S/O LATE MOHAMMED GHOUSE
@ MEENU GHOUSE,
AGED ABOUT 40 YEARS
FISH MERCHANT,
R/O BEHIND SHANKAR GARAGE,
CHIKMAGALUR TOWN & DISTRICT
PIN 577 101
Digitally signed
by SHYAMALA ...APPELLANTS
Location: HIGH (BY SRI. RAVIKUMAR N R.,ADVOCATE)
COURT OF
KARNATAKA AND:
SMT.N.DHANALAXMI
D/O NARAYANASWAMY,
W/O SRINIVAS
CAR DRIVER,
AGED ABOUT 55 YEARS
1ST CROSS, SHANKARAPURA,
CHIKMAGALUR 577 101
...RESPONDENT
(BY SRI. ANIKETH K.U., ADVOCATE FOR
SRI. SACHIN B.S.,ADVOCATE)
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RSA No. 1792 of 2016
THIS RSA FILED U/S. 100 OF CPC 1908, AGAINST THE
JUDGEMENT & DECREE DTD 15.03.2016 PASSED IN R.A.NO.6/2015
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE &
CJM.,CHIKKAMAGALURU., ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD30.10.2014 PASSED IN
OS.NO.296/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE &
JMFC, CHIKMAGALUR.
THIS RSA, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Defendants are before this Court assailing the
judgment and decree of the First Appellate Court in
RA No.6/2015 dated 15.03.2016, whereby, the First
Appellate Court reversed the judgment and decree of the
Trial Court in OS No.296/2011 dated 30.10.2014, by
decreeing the suit of the plaintiff for permanent injunction.
2. The parties herein are referred to as per the
rank before the Trial Court for the sake of convenience.
3. Suit for relief of permanent injunction
restraining the defendants from interfering with her
peaceful possession and enjoyment over the suit property.
The suit property is described as vacant site measuring 75
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x 20 feet of land in Sy.No.32/1AP (herein referred to as
the 'suit property' for the sake of convenience) bounded
with the following boundaries:
East: Vacant land of Basheer,
West: Haneefabi's House,
South: Road (Newly formed)(earlier Upendra's Garage),
North: Road (Newly formed)(Earlier Bylusetty's land)
4. The case of the plaintiff is that she purchased
the suit property under the registered sale deed dated
13.12.1993 and from the date of purchase, she is in
possession of the suit property. It is contended that the
defendants had filed a suit against the plaintiff herein for
relief of injunction in O.S.No.272/1997 in respect of the
very same property and the said suit was dismissed
holding that the defendants are not in possession of the
suit property, that the defendants, without having right,
title and interest over the suit property, are interfering
with the plaintiff's possession.
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5. On notice, the defendants appeared and filed
their written statement, inter alia, contending that since
14.09.1984, they are in possession of the suit property
and at no point of time, the plaintiff is in possession. It is
stated that even though the suit in OS. No.272/1997 filed
by the defendants for injunction was dismissed, they are
in possession of the suit property.
6. The trial Court, on basis of the pleadings
framed the following issues;
1. Whether plaintiff proves that she is in lawful
possession over the suit schedule property as on the
date of the suit?
2. Whether plaintiff proves the alleged
interference by the defendants?
3. Whether plaintiff is entitled for the reliefs of
permanent injunction as prayed?
4. What order or decree?
7. In order to substantiate their claim, the plaintiff
examined herself as PW1 and marked documents at Ex.P1
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to P7. On the other hand, defendant No.1 examined
herself as DW1 and marked documents at Ex.D1 to D3.
8. The trial Court, on the basis of the pleadings,
oral and documentary evidence, arrived at a conclusion
that the plaintiff has failed to prove her lawful possession
over the suit property as on the date of the suit and
interference by the defendants and by the judgment and
decree, dismissed the suit of the plaintiff with cost.
9. Aggrieved, the plaintiff preferred appeal before
the First Appellate Court. The First Appellate Court, while
re-appreciating and re-analyzing the entire oral and
documentary evidence, reversed the judgment and decree
of the Trial Court and decreed the suit of the plaintiff for
permanent injunction. Aggrieved, the defendants are
before this Court.
10. Learned counsel for the appellants submits that
the First Appellate Court has failed to appreciate that the
suit property is vacant land and the plaintiff has failed to
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establish her possession over the suit property by placing
cogent evidence along with the boundaries. That the First
Appellate Court was not justified in reversing the judgment
and decree of the Trial Court, further, the suit property
shown in O.S.No.272/1997 is totally different from the suit
property shown in the present suit and the dismissal of the
suit for permanent injunction filed by the defendants-
appellants in O.S.No.272/1997 would not come to the aid
of the plaintiff to be entitled for relief of permanent
injunction.
11. Per contra, learned counsel for the respondent,
drawing the attention of this Court to the judgment in O.S.
No.272/1997 preferred by defendant No.1, states that the
suit property involved in the present suit and the suit
property in O.S. No.272/1997 are one and the same and
though the Trial Court gives a finding to the said effect,
however erroneously has held that the dismissal of the suit
in O.S.NO.272/1997 would not mean that the plaintiff is in
possession of the suit property. Learned counsel submits
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that the First Appellate Court being the last-fact finding
Court has rightly re-appreciated and reconsidered the
entire oral and documentary evidence in a proper
perspective and the same does not warrant any
interference under Section 100 CPC and no substantial
question of law arises for consideration.
12. Heard Sri Ravi Kumar N.R., learned counsel
appearing for the appellant and Sri Aniketh K.U., learned
counsel appearing for Sri Aniketh K.U., learned counsel for
the respondent and perused the judgment and decree of
the Courts below and the material on record.
13. The question that falls for consideration before
this Court is :
"Whether the judgment and decree in
O.S.No.272/1997 has binding force on the parties to
the present suit?"
14. Plaintiff purchased the suit property under a
registered sale deed as per Ex.P.7, the measurement
shown in Ex.P.7 is as below:
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East-West : remaining vacant land of the
same survey number;
North : land belonging to Bylusetty;
South : Upendra's Garage
15. The schedule of the plaint given by the plaintiff
is an extent of 75 feet x 20 feet and the given boundaries
as under:
East : Vacant land of Basheer
West : Haneefabi's House
South : newly formed road (earlier Upendra's
Garage),
North : Road (Newly formed)(Earlier
Bylusetty's land)
16. Suit in OS No.272/1997 filed by defendant
No.1-Haneefabi was in respect of the schedule property to
the extent of east-west 20 feet and north-south 75 feet.
The boundaries shown in the said suit is as below:
East: Remaining land in Sy.No.32.
West: House of the plaintiff
North: Formerly land of Bylusetty and now road
South: New Road and thereafter the garage of
one Sri Upendra.
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17. The perusal of the judgment of the Trial Court,
more particularly at paragraph No.16, the Trial Court holds
that the suit property in O.S.No.272/1997 filed by the
defendants against the plaintiff herein for relief of
permanent injunction, the subject matter of that suit and
the subject matter of the present suit are one and the
same, further holds that the suit filed by the defendants
herein was dismissed, as they failed to prove possession
and interference, having held so, the Trial Court was not
justified in holding that the dismissal of the suit in respect
of the very subject matter as in the present suit would not
mean that the plaintiff is in possession of the suit
property. The Trial Court has totally lost sight of the fact
that the defendant in O.S.No.272/1997 has failed to prove
his possession and enjoyment of the suit property.
18. Suit in O.S. No.272/1997 preferred by
defendant No.1, has been dismissed by the concerned
Court by holding that defendant No.1 has failed to prove
her possession and enjoyment of the suit property, on the
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other hand, the plaintiff has produced Ex.D.5 in
O.S.No.272/1997, which indicates she has put up her
fence covering the property towards the east and north-
south direction with a barbed fence. The judgment and
decree in OS No.272/1997 has been decreed in the year
2003 and the said judgment has attained finality against
the defendants herein. The plaintiff, by describing the suit
property has indicated that the boundaries have changed
due to period of time and there is a difference in the
property boundaries which undisputedly is the claim of the
defendants in OS No.272/1997.
19. The First Appellate Court, being the last fact
finding Court, has rightly re-appreciated the entire oral
and documentary evidence warranting no interference by
this Court. There arises no substantial question of law for
consideration in the present regular second appeal to be
dealt with under Section 100 CPC and accordingly, this
Court pass the following:
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ORDER
i. The Regular Second Appeal hereby dismissed.
ii. The judgment and decree of the First Appellate Court
stands confirmed.
Sd/-
(K.S. HEMALEKHA)
JUDGE
SR
