Karnataka High Court
Babugouda S/O Subbaragouda Patil vs Sumitrabai W/O Mallanagouda Patil on 22 February, 2024
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NC: 2024:KHC-K:1719
RSA No. 200331 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200331 OF 2021 (INJ)
BETWEEN:
BABUGOUDA
S/O SUBBARAGOUDA PATIL,
AGE: 94 YEARS, OCC: NIL,
R/O JORAPUR PETH,
NEAR KSRTC,
VIJAYAPURA-586 101.
...APPELLANT
(BY SRI. SHIVASHANKAR H. MANUR, ADVOCATE)
AND:
SUMITRABAI
Digitally W/O MALLANAGOUDA PATIL,
signed by
LUCYGRACE AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
Location: R/O: MEGHARAJ HOTEL,
HIGH COURT
OF STATION ROAD, VIJAYAPUR,
KARNATAKA
TQ. AND DIST. VIJAYAPUR-586 101.
...RESPONDENT
(BY SRI. SANJAY A. PATIL, ADVOCATE FOR C/RESPONDENT)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
11.09.2020 PASSED BY LEARNED PRL. SENIOR CIVIL JUDGE
AND CJM, VIJAYAPURA, IN R.A.NO.48/2017 AND AS WELL AS
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RSA No. 200331 of 2021
THE JUDGMENT AND DECREE DATED 12.06.2017 PASSED BY
THE III ADDL. CIVIL JUDGE, VIJAYAPUR, IN O.S.NO.114/2015.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the plaintiff/appellant,
challenging the judgment and decree dated 11.09.2020 in
R.A. No.48/2017 on the file of Principal Senior Civil Judge
and CJM, Vijaypura (for short 'First Appellate Court'),
confirming the judgment and decree dated 12.06.2017 in
O.S.No.114/2015 on the file of III Additional Civil Judge,
Vijayapur (for short 'Trial Court'), dismissing the suit of
the plaintiff.
2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiff that, plaintiff is the
owner in possession of property bearing CTS No.782/A
measuring 510-12 sq.meters situate at Ward No.I of
Vijayapur city. It is stated in the plaint that, plaintiff has
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purchased the aforementioned property as per registered
sale deed dated 27.03.1989 from one Gurubasappa S/o
Ningappa and the plaintiff is having business of garage in
the suit schedule property. It is the case of the plaintiff
that, the defendant without any right, title and interest
over the property in question, interfering with the peaceful
possession of the suit schedule property and as such,
plaintiff has filed suit in O.S. No.114/2015 before the Trial
Court, seeking relief of permanent injunction against the
defendant.
4. On service of notice, defendant fails to appear
and placed exparte.
5. Based on the averments in the plaint, the Trial
Court formulated the points for its consideration.
6. In order to substantiate his case, plaintiff has
examined two witnesses as PW.1 and PW.2 and got
marked 23 documents as Exs.P1 to P23.
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7. The Trial Court after considering the material on
record, by its judgment and decree dated 12.06.2017,
dismissed the suit of the plaintiff. Feeling aggrieved by the
same, the plaintiff has filed R.A. No.48/2017 before the
First Appellate Court and the appeal was resisted by the
defendant.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
11.09.2020, dismissed the appeal and as such confirmed
the judgment and decree passed by the Trial Court in O.S.
No.114/2015. Feeling aggrieved by the same, the plaintiff
has filed this Regular Second Appeal.
9. I have heard Sri Shivashankar H. Manur,
learned counsel appearing for the appellant and Sri Sanjay
A. Patil, learned counsel appearing for the
caveator/respondent.
10. Sri Shivashankar H. Manur, learned counsel
appearing for the appellant argued that, both the Courts
below have not properly appreciated the material on
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record produced by the plaintiff and the plaintiff has
proved his possession over the suit schedule property by
examining PW.2 and therefore, sought for interference of
this Court.
11. Per contra, Sri Sanjay A. Patil, learned counsel
appearing for the caveator/respondent sought to justify
the impugned judgment and decree passed by the Courts
below.
12. Having heard the learned counsel appearing for
the parties, it is not in dispute that, the plaintiff has filed
suit, seeking relief of permanent injunction. It is the case
of the plaintiff that, he has purchased the schedule
property on 27.03.1989 for consideration of Rs.40,000/-.
However, no sale deed has been produced before the Trial
Court and on the other hand, perusal of Ex.P20 would
indicate that, one Gurubasappa Ninganur had relinquished
his right over the suit schedule property in favour of the
defendant. It is also forthcoming from the finding recorded
by the Trial Court that, defendant is in possession of the
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suit schedule property. In that view of the matter, both
the courts below have rightly arrived at a conclusion that
the plaintiff has not proved that he is in possession of the
schedule property and therefore, the appeal deserves to
be dismissed at the stage of admission itself, as the
appellant has not made out a case for framing substantial
question of law as required under Section 100 of the Code
of Civil Procedure.
Accordingly, the appeal fails and is dismissed.
Sd/-
JUDGE
LG
