Karnataka High Court
Smt. Swarnalatha vs Sri. M. Joseph on 30 July, 2024
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NC: 2024:KHC:30000
RSA No. 2068 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.2068 OF 2015 (INJ)
BETWEEN:
SMT. SWARNALATHA
W/O VENKATRAMANAPPA
AGED ABOUT 55 YEARS
R/AT NEAR POLICE PARADE GROUND,
M.G. ROAD, PRASHANTHA NAGAR,
CHIKKABALLAPURA - 562 101
...APPELLANT
(BY SRI. K A ARIGA, ADVOCATE)
AND:
SRI. M. JOSEPH
S/O M. YAKUB
Digitally AGED ABOUT 55 YEARS
signed by R R/AT BEHIND ASHA STUDIO
DEEPA B.B.ROAD, CHIKKABALLAPURA - 562 101
...RESPONDENT
Location:
HIGH COURT (BY SRI. S N BHAT & B.R. RAGHAVENDRA, ADVOCATES)
OF
KARNATAKA THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 31.10.2014 PASSED IN
R.A NO.205/2007 ON THE FILE OF THE ADDL. DISTRICT AND
SESSIONS JUDGE (SR.DN.) AT CHICKABALLAPUR, DISMISSING
THE APPEAL AND DISMISSING THE JUDGMENT AND DECREE
DATED; 26.09.2007 PASSED IN OS.NO.259/2005 ON THE FILE
OF THE PRL. CIVIL JUDGE (JR.DVN.) AND JMFC.,
CHIKKABALLAPUR.
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RSA No. 2068 of 2015
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 appellant
challenging the judgment and decree dated 26.09.2007
passed in O.S.No.259/2005 by the Prl. Civil Judge (Jr. Dn.)
and JMFC, Chickaballapur, confirming the judgment and
decree dated 31.10.2014 passed in R.A.No.205/2007 by
the Additional District and Sessions Judge at
Chickaballapur.
2. The parties are referred to as per their ranking
before the trial Court. The appellant is the plaintiff and
respondent is the defendant. The plaintiff filed a suit for
permanent injunction against the defendant.
3. Brief facts of the case are as under:
It is the case of the plaintiff that, the plaintiff is the
absolute owner in possession of property bearing Municipal
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No.2369/185/3B measuring east to west 33 feet and north
to south 66 feet in Sy.No.185/3B of Gangana Midde
Grama, Mailappanahalli Mandala, Chickballapur Taluk. The
plaintiff had purchased the said property from her vendors
under a registered sale deed dated 26.07.1994 showing
the boundaries. It is contended that, now the boundaries
to the said property is changed to as East by portion of
vacant land and oni, West by road, North by portion of
vacant land and oni and South by house property belongs
to Ramanjinappa. It is contended that, the plaintiff is
being in continuous possession and enjoyment over the
suit schedule property. The katha was transferred in the
name of the plaintiff. Further, it is contended that, the
defendant has no right, title or interest over the suit
schedule property. It is contended that, the plaintiff
requested the defendant not to interfere into the peaceful
possession and enjoyment of the suit schedule property,
but the defendant has not given any heed to the request
made by the plaintiff. Hence, cause of action arose for the
plaintiff to file a suit for permanent injunction.
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4. The defendant filed the written statement
denying the averments made in the plaint and it is
contended that, the defendant is the absolute owner in
possession of the property bearing Municipal
No.2365/185/3B measuring east west 24 ¾ feet and
north to south 33 situated at First Division, 6th Ward,
Besides APMC Yard, Chikkaballapur and contended that,
the said property was purchased under the registered sale
deed dated 29.07.2004 and the defendant is in lawful
possession and enjoyment of the said property. It is
contended that the defendant obtained the license from
the Municipality Chikkaballapur for construction of
residential house. Further, it is contended that, the
husband of the plaintiff by name Venkataramanappa tried
to trespass upon the defendant's property on 26.11.2004.
The defendant filed a suit in O.S.No.256/2004 against the
husband of the plaintiff and obtained an order of ad
interim and the said order is in force. Hence, prayed to
dismiss the suit.
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5. The trial Court, on the basis of the pleadings of
the parties, framed the issues.
6. The plaintiff in order to substantiate his case,
examined himself as PW.1 and got marked 10 documents
as Exs.P1 to P10. On the other hand, the defendant was
examined as DW.1 and examined one witness as DW.2
and got marked 21 documents as Exs.D1 to D21. The trial
Court after recording the evidence of the parties, hearing
both the sides, and on assessment of oral and
documentary evidence, answered issue Nos.1 to 3 in the
negative and issue No.4 as per the final order. The suit of
the plaintiff was dismissed. The plaintiff aggrieved by the
judgment and decree passed in O.S.No.259/2005
preferred an appeal in R.A.No.205/2007 on the file of
learned Additional District and Sessions Judge at
Cickaballapur.
7. The First Appellate Court, after hearing the
parties, framed the points for consideration.
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8. The First Aappellate Court, after re-assessment
of the oral and documentary evidence, answered point
No.1 in the negative and point No.2 as per the final order.
The appeal was dismissed vide judgment dated
31.10.2014 confirming the judgment and decree passed
by the trial Court.
9. The plaintiff aggrieved by the impugned
judgments, has filed this regular second appeal.
10. Heard the learned counsel for the plaintiff.
11. Learned counsel for the plaintiff submits that,
the plaintiff is the absolute owner of the suit schedule
property and there were discrepancies in the boundary in
the registered sale deed. Subsequently, during the
pendency of the suit, the defendant executed a
rectification deed. The trial Court ought not have
considered the rectification deed. He submits that the
Courts below have committed an error in passing the
impugned judgments. He further submits that, in case this
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Court comes to a conclusion that there is no substantial
question of law involved in this appeal, the liberty may be
reserved in favour of the plaintiff to file a comprehensive
suit. Hence, on these grounds, he prays to allow the
appeal.
12. Heard and perused the records and considered
the submissions of the learned counsel for the plaintiff.
13. The plaintiff, in order to prove his case,
examined himself as PW.1 and he has reiterated the plaint
averments in the examination-in-chief and in order to
prove his case, he has produced the documents i.e., Ex.P1
is the affidavit of PW.1, Ex.P2 is the original sale deed,
which discloses that the plaintiff had purchased the suit
property, Ex.P3 is the katha endorsement, which discloses
that the plaintiff is the owner of the suit schedule
property, Ex.P4 is the property tax register, Ex.P5 is the
form No.2, Ex.P6 is the RTC extract, Exs.P7 to P9 are the
bank challens and Ex.P10 is the tax paid receipt. Further,
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from the perusal of Ex.P2, it discloses that the plaintiff has
purchased the suit schedule site. In the said sale deed
towards the eastern side, it is mentioned as remaining
land in the same survey number retained by the vendor.
PW.1 also admitted the changes in the boundary on the
western side, northern side and southern side. Further, it
is also stated that, in the plaint schedule now, it is shown
as a conservancy and on the western side it is not shown
as a road, and on the northern side as Oni and south
Ramanjinappa's property. The said boundary shown in the
plaint schedule is contrary to the boundary stated in the
sale deed, which does not tally with each other. Further,
the plaintiff has not produced any evidence as to change
of boundary stated in the plaint and further, the plaintiff
prior to the filing of this suit, the defendant filed a suit
against the husband of the plaintiff in O.S.No.256/2004,
which is still pending. In the said suit, the defendant has
obtained an order of temporary injunction against the
husband of the plaintiff and the trial court, considering the
evidence of the plaintiff and the documents produced by
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them, has opined that the plaintiff is not in possession of
the suit schedule property and the boundary shown in the
plaint does not tally with the boundary shown in the
registered sale deed. Hence, there is a dispute in regard to
the location and boundaries of the suit property and the
trial Court rightly dismissed the suit. The first Appellate
Court on re-appreciation of the evidence on record has
rightly upheld the judgment and decree passed by the trial
Court. Hence, I do not find any substantial question of law
that arises for consideration in this appeal. The judgments
and decree passed by the courts below are just and
proper. I concur with the judgments and decree passed by
the courts below.
14. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed
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The judgments and decree passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SSB
