Smt Lakshmamma vs Sri P Munihanumaiah
2024 Latest Caselaw 12515 Kant

Karnataka High Court

Smt Lakshmamma vs Sri P Munihanumaiah on 5 June, 2024

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                                  -1-
                                                              NC: 2024:KHC:19316
                                                             RFA No. 340 of 2024




                            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                 DATED THIS THE 5TH DAY OF JUNE, 2024

                                                BEFORE

                        THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

                              REGULAR FIRST APPEAL NO. 340 OF 2024 (INJ)

                       BETWEEN:

                             SMT. LAKSHMAMMA,
                             D/O CHIKKATHIYAGAPPA,
                             AGED ABOUT 53 YEARS,
                             R/AT AMRUTHAHALLI VILLAGE,
                             YELAHANKA HOBLI,
                             BANGALORE NORTH TALUK
                             PIN-560 092.
                                                                    ...APPELLANT

                       (BY SRI. UMESH B.N, ADVOCATE)

                       AND:

                       1.    SRI. P. MUNIHANUMAIAH,
                             S/O LATE PAPAIAH,
Digitally signed by          AGED ABOUT 68 YEARS,
BASAVARAJU
PAVITHRA                     R/AT NO.556, JANATHA COLONY,
Location: HIGH COURT         AMRUTHAHALLI,
OF KARNATAKA
                             SAHAKARANAGAR POST,
                             BENGALURU,
                             PIN-560 092.

                       2.    SMT. VENKATAMMA,
                             W/O KEMPAIAH,
                             AGED ABOUT 58 YEARS,
                             R/AT DODDAPPANAHALLI VILLAGE,
                             KASABA HOBLI,
                             DEVANHALLI TALUK,
                             BANGALORE RURAL DIST-562 110.

                       3.    SMT MARIYAMMA @ MUNAMARI,
                                -2-
                                          NC: 2024:KHC:19316
                                        RFA No. 340 of 2024




     W/O LATE MUNIRAJU,
     D/O CHIKKATHIYAGAYPPA,
     AGED ABOUT 48 YEARS,
     R/AT THIMMASANDRA VILLAGE,
     SULIBELE HOBLI, HOSAKOTE TALUK,
     BANGALORE RURAL DIST-562 114.

4.   SMT. DODDAMUNA,
     D/O LATE MUNISHAMI,
     AGED ABOUT 75 YEARS,
     R/AT BODNAHOSAHALLI VILLAGE,
     SAMETHANAHALI POST,
     HOSAKOTE TALUK,
     BANGALORE RURAL DIST-562 114.

5.   SMT. CHIKKAMUNA,
     D/O LATE MUNISHAMI,
     AGED ABOUT 73 YEARS,
     R/AT AMRUTHAHALLI VILLAGE,
     YELAHANAK HOBLI,
     BANGALORE NORTH TALUK,
     PIN-560 092.
                                             ...RESPONDENTS

(BY SRI. K.B.NARAYANASWAMY, ADVOCATE FOR C/R1)

     THIS RFA IF FILED UNDER SECTION 96 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 12.12.2023 PASSED IN
OS.NO.1585/2021 ON THE FILE OF THE XVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH 16),
DECREEING THE SUIT FOR INJUNCTION.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Though the appeal is listed for admission, with the

consent of the learned counsel for the parties, the appeal is

taken up for final disposal.

NC: 2024:KHC:19316

2. The appeal is filed by the appellant/defendant No.5

under Section 96 of the Code of Civil Procedure, 1908, calling in

question the judgment and decree dated 12.12.2023 passed in

O.S.No.1585/2021 by the XVII Additional City Civil and Session

Judge at Bengaluru.

3. For the purpose of convenience, the ranking of the

parties is referred to as per their status before the trial Court.

4. Brief facts of the case are that the original owners of

the suit schedule property are Maddurappa, his wife

Madduramma and their daughter is Chinnamma. Papaiah is the

husband of Chinnamma and the plaintiff is the son of

Chinnamma. It is disclosed fact that the mother of the plaintiff

has purchased the suit schedule property from one Anjinappa

and Chikka Tayappa @ Muninanjappa through a registered sale

deed dated 30.06.1999 and thereafter, the names were

mutated in the revenue records. Accordingly, the plaintiff has

inherited the suit schedule property. During the life time of his

mother Chinnamma, she constructed a house in the suit

schedule property. Disbelieving the said fact, the defendants

have started to interfere with the plaintiff's possession of the

suit schedule property. Therefore, the plaintiff has been

NC: 2024:KHC:19316

constrained to file a suit for permanent injunction before the

trial Court.

5. It is the defence of the defendants that the mother

of defendant No.5 executed Will in favour of defendant No.5.

By virtue of the same, defendant No.5 has become the owner

of the property. Therefore, defendant No.5 is claiming

ownership over the suit schedule property.

6. On the basis of the pleadings of the parties, the trial

Court has framed the following:

"ISSUES

1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the filing of the suit?

2) Whether the plaintiff further proves that the alleged obstruction over the suit schedule property by the defendants?

3) What order or decree?

7. On behalf of the plaintiff, the plaintiff got examined

as PW.1 and got marked 26 documents as Ex.P1 to Ex.P26. On

the other hand, on behalf of the defendants, 5th defendant got

examined as DW.1 and not got marked any documents.

NC: 2024:KHC:19316

8. On considering the materials placed on record and

having heard learned counsel for the parties, the trial Court

decreed the suit by granting permanent injunction to the

plaintiff. Being aggrieved by the impugned judgment and

decree, defendant No.5 preferred this appeal.

9. Learned counsel for the appellant/defendant No.5

submitted that defendant No.5 has become the owner of the

suit schedule property by virtue of Will executed by her mother,

Ramakka and the said Will is probated. Therefore, defendant

No.5 has become the owner of the suit schedule property.

Hence, he prays to allow the appeal and set aside the judgment

and decree passed by the trial Court.

10. On the other hand, learned counsel for the

respondent/plaintiff submitted that the mother of the plaintiff

purchased the property through the registered sale deed dated

30.06.1969 and thus, the plaintiff has inherited the said suit

schedule property and became the owner of the suit schedule

property. The respondent/plaintiff is in possession of the suit

schedule property. The trial Court after considering the material

evidence on record, both oral and documentary, has rightly

decreed the suit and granted permanent injunction, which does

NC: 2024:KHC:19316

not call for any interference by this Court. Hence, he prays to

dismiss the appeal.

11. Heard the learned counsel for the parties and

perused the materials on record.

12. The plaintiff has filed suit for permanent injunction.

It is the case of the plaintiff that her mother purchased the

property through registered sale deed dated 30.06.1969 and

accordingly, her name was mutated in the revenue records by

virtue of the sale deed. After her demise, the plaintiff inherited

the property. The plaintiff has produced Ex.P3, a certified copy

of the registered sale deed dated 30.06.1969 which proves that

Chinnamma, the mother of the plaintiff, has purchased the suit

schedule property. Ex.P6 is Katha Extract, Ex.P4 and Ex.P7 to

Ex.P13 are the tax paid receipts, which prima facie prove that

the plaintiff is the owner of the suit schedule property and is in

possession of the said property.

13. On the other hand, it is the rival claim of defendant

No.5 that her mother, Ramakka, executed a Will in favour of

defendant No.5 and the said Will is probated. Defendant No.5

has not at all produced any evidence to prove the same. It is

submitted that defendant No.5 has filed an application for

NC: 2024:KHC:19316

producing documents in the suit, but his application was

rejected.

14. The suit is filed by the plaintiff for permanent

injunction. Ex.P4 and Ex.P7 to Ex.P13 are the tax paid receipts

and Ex.P5 is the katha extract, which prima facie prove that the

plaintiff is in possession over the suit schedule property.

Considering all these aspects, the trial Court has decreed the

suit by granting permanent injunction, which is correct and

does not call for any interference by this Court.

15. Learned counsel for the appellant submitted that

P.W.1-the plaintiff in the cross examination, has admitted that

the defendant is in possession. Therefore, the suit for

injunction could not have been decreed. Upon considering this

submission and the documentary evidence placed by the

plaintiff, which proved that the plaintiff is in possession of the

property. The plaintiff might have stated that the defendant is

in possession, but considering the total circumstances revealed

in the evidence, the stray admission does not discredit the

plaintiff's case that the plaintiff is in possession of the suit

schedule property. The suit property is vacant land. It is the

case of the defendant that the defendant has dumped some

NC: 2024:KHC:19316

construction materials, but there is no evidence to prove that

the defendant purchased the construction materials and put

them on the suit property. Therefore, when the suit property

is vacant land, the prima facie case is proved by the plaintiff by

producing the revenue records, including tax paid receipts,

katha, etc., proving the plaintiff is in possession. When a suit

is filed for permanent injunction, only the prima facie case is to

be considered regarding possession and alleged interference.

The defendant has claimed a rival claim that the defendant is in

possession by virtue of ownership over the suit property, but

the title or ownership cannot be decided in a suit filed for

permanent injunction. When the defendant is claiming

ownership over the suit property through the Will executed by

his mother, he is at liberty to file a comprehensive suit for

declaration.

16. However, it is submitted that defendant Nos.1 and

2 have filed a suit for partition against the plaintiff and

defendant Nos.3 to 5 which is pending before the trial Court.

17. In a suit for injunction, declaratory relief cannot be

granted to declare as to who is the owner of the property, if at

all defendant No.5 claims ownership over the suit schedule

NC: 2024:KHC:19316

property by virtue of probated Will and if there is any other

evidence, then defendant No.5 is having liberty and right to file

the suit for declaration.

18. In view of the above, I do not find any ground to

interfere with the finding and observation made by the trial

Court. Thus, the appeal is found to be devoid of merits and is

liable to be dismissed at the stage of admission itself and it is

also not a fit case for admission.

19. Hence, I proceed to pass the following:

ORDER

i. The appeal is dismissed.

                   ii.    The   judgment      and    decree    dated
                          12.12.2023 passed by the Trial Court
                          in    O.S.No.1585/2021        is    hereby
                          confirmed.

iii. However, defendant No.5 is at liberty to file a suit for declaration, if he so desires.

                   iv.    No order as to costs.




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