Karnataka High Court
Mahadev B Badigar vs M S Gangashivaramaiah on 6 August, 2024
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RSA No. 620 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.620 OF 2014 (INJ)
BETWEEN:
MAHADEV B BADIGAR
S/O B K BADIGAR
AGED ABOUT 54 YEARS
R/A NO. 10/198, MANJULA
BUILDING, 1ST CROSS ROAD
SHIVANA HALLI, JAKKUR ROAD
YALAHANKA, BANGALORE-560064
...APPELLANT
(BY SRI. PRAMOD M.N., ADVOCATE FOR
SRI. VINOD REDDY V., ADVOCATE)
AND:
Digitally signed 1. M S GANGASHIVARAMAIAH
by R DEEPA S/O LATE SHAMANNA
Location: A/A 70 YEARS
HIGH COURT
OF 2. S CHANDRAMMA
KARNATAKA W/O M S GANGASHIVARAMAIAH
A/A 50 YEARS
BOTH ARE R/A SY/NO.12/1 AND 12/2
DODDA BIDARAKALLU VILLAGE
YASHAWANTHAPURA HOLBI - 560020
BANGALORE NORTH TALUK
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100OF CPC,
PRAYING TO CALL FOR RECORDS IN O.S.NO.254/2000 ON THE
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RSA No. 620 of 2014
FILE OF THE LEARNED PRINCIPAL II CIVIL JUDGE (JR. DVN.)
RURAL DISTRICT BENGALURU AND CALL FOR RECORDS IN
R.A.NO. 112/2007 ON THE FILE OF PRINCIPAL DISTRICT
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND SET
ASIDE AND REVERSE THE JUDGMENTS IN O.S. No.354/2000
DATED 25.07.2007 PASSED BY THE PRINCIPAL II CIVIL JUDGE
(JR. DVN.) RURAL DISTRICT, BANGALORE AND DATED
04.12.2013 IN R.A.NO.112/2007 PASSED BY THE PRINCIPAL
DISTRICT JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This Regular second appeal is filed by the appellant
challenging the judgment and decree dated 04.12.2013,
passed in R.A.No.112/2007 by the Principal District Judge,
Bangalore Rural District, Bangalore, confirming the
judgment and decree dated 25.07.2007 passed in
O.S.No.354/2000 by the Principal Civil Judge (Jr.Dn.)
Bangalore Rural District.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
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appellant is the plaintiff and respondents are the
defendants.
3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiff filed a suit for permanent injunction
restraining the defendants from interfering into the
peaceful possession and enjoyment of the suit schedule
property. It is the case of the plaintiff that, Sri. Munireddy
had formed a private layout in Sy.Nos.12/1 and 12/2 of
Doddabidarkallu village and suit schedule site is in the said
layout. The suit land was sold by one Munireddy and
another in favour of one Smt. Nagamani Achar under GPA
affidavit and sale agreement dated 08.02.1989. Further,
said Nagamani Achar was put in possession of the
property and she sold the property in favour of the plaintiff
under GPA, agreement of sale, both dated 27.02.1994.
Since then the plaintiff is in possession and enjoyment of
the suit schedule property. The plaintiff is entitled for
protection under Section 53-A of Transfer of Property Act.
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It is contended that the defendants have no right, title or
possession over the suit schedule property. The
defendants attempted to dispossess the plaintiff from the
suit schedule property. Hence, cause of action arose for
the plaintiff to file a suit for permanent injunction.
4. Defendant No.1 filed written statement denying
the averments made in the plaint. It is contended that
defendants are in possession of the suit schedule property.
It is further contended that, plaintiff is not in possession of
the suit schedule property and mere filing of suit for
permanent injunction without seeking for the relief of
possession is not maintainable. Hence, prayed to dismiss
the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the relevant issues.
6. The plaintiff has also filed other suits against
other defendants and the said suits were clubbed together
and common evidence was recorded by the trial Court.
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The plaintiff was examined himself as PW.1 and examined
one witness as PW.2 and got marked 21 documents as
Exs.P1 to 21. In rebuttal, the defendants were examined
DWs.1 to 4 and got marked 20 documents as Exs.D1 to
20. The trial Court after re-appreciating the entire
evidence on record dismissed the suits of the plaintiff vide
judgment dated 25.07.2007.
7. The plaintiff, aggrieved by the judgment and
decree passed in the said suit, preferred an appeal in
R.A.No.112/2007 on the file of learned Principal District
Judge, Bangalore Rural District, Banglore.
8. The First Appellate Court, on re-assessing the
oral and documentary evidence, dismissed the appeal vide
judgment dated 04.12.2013 passed in R.A.No.112/2007.
9. The plaintiff, aggrieved by the judgments and
decree passed by the courts below, has filed this Regular
second appeal.
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10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that
plaintiff is the absolute owner and in possession of the suit
schedule property. He submits that the defendants made
an attempt to dispossess the plaintiff from the suit
schedule property. Further in order to establish that he is
the owner and in possession of the suit schedule property
produced the documents i.e., Exs.P12 and 13 are the
registered sale deeds. The said aspect was not considered
by the courts below. Hence, impugned judgments passed
by the courts below are arbitrary and erroneous. Hence,
on these grounds, prays to allow the appeal.
12. Perused the records and considered the
submissions of the learned counsel for the plaintiff.
13. The plaintiff in order to establish that he is in
possession of the suit schedule property got examined
himself as PW.1 and got marked documents. In rebuttal,
defendants in the said suit examined themselves and
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produced Ex.D1 i.e., copy of the legal notice issued by the
plaintiff, wherein the plaintiff himself has admitted that the
defendants are in possession of the suit schedule property.
The trial Court as well as first Appellate Court considering
contents of Ex.D1, wherein the plaintiff himself admitted
the possession of defendants over the suit property have
rightly recorded the finding that plaintiff has failed to
establish his possession over the suit schedule property as
on the date of the institution of the suit. In a suit for
permanent injunction, the Court is required to consider the
possession and interference as on the date of institution of
suit. Admittedly, as on the date of institution of suit, the
plaintiff was not in possession of the suit schedule
property. Both the courts below were justified in passing
the impugned judgments.
14. In view of the above discussion, I do not find
any substantial question of law that arises for
consideration. Hence, I do not find any grounds to
interfere with the impugned judgments and decree.
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15. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
ii. The judgments and decree passed by the
Courts below are hereby confirmed.
iii. No order as to the costs.
SD/-
(ASHOK S. KINAGI)
JUDGE
SKS
