Karnataka High Court
Sri. B. Venkateshappa vs Sri. Doddamunivenkatappa on 6 August, 2024
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NC: 2024:KHC:31300
RSA No. 1999 of 2015
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.1999 OF 2015 (INJ)
BETWEEN:
1. SRI. B. VENKATESHAPPA
S/O BYRAPPA
AGED ABOUT 63 YEARS
2. SRI. B. NARAYANASWAMY
S/O BYRAPPA
AGED ABOUT 53 YEARS
BOTH ARE R/AT CHAMBE VILLAGE,
TEKAL HOBLI, MALUR TALUK
KOLAR DISTRICT-563101
...APPELLANTS
(BY SRI. M NARAYANA REDDY, ADVOCATE)
Digitally signed
by R DEEPA AND:
Location:
HIGH COURT SRI. DODDAMUNIVENKATAPPA
OF S/O LATE PILLLAPPA
KARNATAKA AGED AOUT 78 YEARS
CHAMBE VILLAGE, TEKAL HOBLI,
MALUR TALUK, KOLAR DISTRICT-563101
REP. BY HIS POWER OF ATTORNEY HOLDER
SRI. C.M. NARAYANA GOWDA
S/O PODDA MUNIVENKATAPPA
49 YEARS, R/O CHAMBE VILLAGE
TEKAL HOBLI, MALUR TALUK.
...RESPONDENT
(BY SRI. Y. NAGARAJ, ADVOCATE FOR
SRI. C. SHANKAR REDDY, ADVOCATE)
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RSA No. 1999 of 2015
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 18.08.2015 PASSED IN R.A.NO.
108/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT
AND DECREE DTD 20.10.2012 PASSED IN OS.NO.139/2007 ON
THE FILE OF THE II ADDL. CIVL JUDGE AND JMFC., MALUR.
THIS APPEAL, COMING ON FOR ADMISSION, 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 appellants
challenging the judgment and decree dated 18.08.2015,
passed in R.A.No.108/2012 by the Senior Civil Judge and
JMFC, Malur.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the plaintiffs and respondent is the
defendant.
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3. The brief facts leading rise to filing of this appeal
are as under:
Plaintiffs filed a suit for permanent injunction against
the defendant. It is the case of the plaintiffs that, suit
schedule land bearing Sy.No.102/02 measuring to the
extent of 30 guntas situated at Agrahara village, Tekal
Hobli, Malur Taluk, was acquired by the plaintiffs under the
partition deed executed in their family. Since from the
date of partition, the plaintiffs are in possession and
enjoyment of the suit schedule property, without any
interference. It is contended that the defendant has no
right, title or interest over the suit schedule property. The
defendant is trying to interfere into the suit schedule
property. Hence, cause of action arose for the plaintiffs to
file a suit for permanent injunction.
4. Defendant filed the written statement denying the
averments made in the plaint and it is contended that the
defendant is in possession and enjoyment of the land
bearing Sy.No.97 which is adjacent towards the northern
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side of the suit property. As such, the defendant is in
possession of the plaint suit schedule property for more
than 25 years, without interruption from anybody. Hence,
prayed to dismiss the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the relevant issues.
6. The plaintiffs in order to prove their case, plaintiff
No.1 was examined as PW-1 and examined two witnesses
as PWs.2 and 3. The evidence of PW.2 was discarded by
the trial Court and PW.3 was examined and got marked 38
documents as Exs.P1 to 38. In rebuttal, defendant
examined three witnesses as DWs.1 to 3 and got marked
30 documents as Exs.D1 to D30. The trial Court after
re-appreciating the evidence on record decreed the suit of
the plaintiffs, ordered that the defendant or anybody
claiming under him was restrained by way of permanent
injunction from interfering with the plaintiff's peaceful
possession and enjoyment of the suit schedule land.
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7. The defendant, aggrieved by the judgment and
decree passed in O.S.No.139/2007, has preferred an
appeal in R.A.No.108/2012 on the file of Senior Civil Judge
and JMFC, Malur. The First Appellate Court vide judgment
dated 18.08.2015 allowed the appeal by setting aside the
judgment and decree passed in O.S.No.139/2007 and
consequently dismissed the suit of the plaintiffs.
8. The plaintiffs, aggrieved by the judgment
passed in R.A.No.108/2012, have filed this Regular second
appeal.
9. Heard learned counsel for the plaintiffs.
10. Learned counsel for the plaintiffs submits that
the plaintiffs are in possession of the suit schedule
property and in order to establish that they are in
possession of the suit schedule property, the plaintiffs also
examined two witnesses as PWs.2 and 3. Further, submits
that during the pendency of the suit, the plaintiffs have
filed application under Order 39 Rule 1 and 2 of CPC,
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seeking the order of Temporary Injunction. The said
application was rejected and plaintiffs have preferred an
appeal in Miscellaneous Appeal in M.A.No.57/2007. The
first Appellate Court allowed the appeal and granted the
order of Temporary injunction. Hence the first Appellate
Court could have taken the order passed in
M.A.No.57/2007. Hence, the first Appellate Court
committed an error in dismissing the suit of the plaintiffs.
Hence, on these grounds, prays to allow the appeal.
11. Perused the records and considered the
submissions of the learned counsel for the plaintiffs.
12. Admittedly, plaintiff No.1 was examined himself
as PW.1. He has reiterated the plaint averments in the
examination-in-chief and in order to prove the possession
over the suit schedule property got marked documents as
Exs.P1 to 38. In the course of cross examination, PW.1
has admitted that the defendant is in possession of the
suit schedule property. The said admission itself is
sufficient to held that the plaintiffs are out of possession of
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the suit schedule property. Further, the defendant has
produced Ex.D1- is the copy of the legal notice got issued
by the plaintiffs, wherein the plaintiffs in unequivocal
terms has admitted that the defendant is in possession of
2 guntas of land in Sy.No.102/02, which belongs to the
plaintiffs. The said admission coupled with Ex.D1, which
discloses that the plaintiffs are not in possession of the
suit schedule property. Admittedly, the suit is for the
permanent injunction. In a suit for permanent injunction,
the Court is required to consider the possession and
alleged interference as on the date of filing the suit.
Admittedly, the plaintiffs have failed to prove that they are
in possession of the suit schedule property. The first
Appellate Court considering the admission of the plaintiffs
that the defendant is in possession of the suit schedule
property has rightly dismissed the suit against the
defendant. In view of the above discussion, I do not find
any substantial question of law that arise for
consideration. Hence, I do not find any grounds to
interfere with the impugned judgment.
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13. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is dismissed.
ii. The judgment dated 18.08.2015 passed
by the first Appellate Court in
R.A.No.108/2012 is hereby confirmed.
iii. No order as to the costs.
In view of disposal of the appeal, I.A.No.2/2015,
does not survive for consideration and accordingly stands
disposed of.
SD/-
(ASHOK S. KINAGI)
JUDGE
SKS
