Karnataka High Court
Ramlingamma vs Nagappa And Anr on 6 June, 2024
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RSA No. 200147 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.200147/2019(PAR,INJ)
BETWEEN:
RAMLINGAMMA
D/O LATE SABANNA TALWAR
W/O DEVENDRAPPA
AGE: 46 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O. H.NO.1-80 MOGLA,
TQ: CHITTAPUR,
DIST: KALABURAGI.
...APPELLANT
(BY SRI VIKRAM VIJAY KUMAR, ADVOCATE)
AND:
Digitally signed
by SUMITRA 1. NAGAPPA
SHERIGAR
S/O LATE SHARANAPPA TALWAR
Location: High
Court of AGE: 56 YEARS, OCC: AGRICULTURE,
Karnataka
R/O. MOGLA, TQ: CHITTAPUR,
DIST: KALABURAGI-585211.
2. RAMLING S/O NAGAPPA TALWAR
AGE: 23 YEARS, OCC: STUDENT,
R/O. MOGLA, TQ: CHITTAPUR,
DIST: KALABURAGI-585211.
...RESPONDENTS
(BY SRI NARENDRA M. REDDY, ADVOCATE)
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RSA No. 200147 of 2019
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE IN R.A.NO.16/2016, DATED 29.11.2018 PASSED
BY THE SENIOR CIVIL JUDGE CHITTAPUR AND THE JUDGMENT
AND DECREE IN O.S. NO.69/2011 DATED 30.11.2016 PASSED
BY THE CIVIL JUDGE AT CHITTAPUR AND DECREE THE SUIT OF
THE APPELLANT/PLAINTIFF, AFTER CALLING FOR THE LOWER
COURT RECORDS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The unsuccessful plaintiff is before this Court assailing the
concurrent findings of fact of the Courts below, where in, the
suit seeking perpetual injunction was dismissed.
2. Heard learned counsel Sri Vikram Vijay Kumar for
appellant and learned counsel Sri Narendra M. Reddy for
respondent.
3. Parties herein are referred to as per their ranking
before the trial Court for the sake of convenience.
4. Suit was for perpetual injunction in respect of open
space measuring 16.6 feet x 17.9 feet (suit open space),
situated to the northern side of the house bearing No.1-80, at
Mogla Village, Chittapur Taluk. The case of the plaintiff is that
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she is the owner in possession of the house bearing No.1-80
and the suit property. It is averred in the plaint that the suit
property is ancestral property of the plaintiff, earlier,
grandfather of the plaintiff by name Sabanna S/o Bheemanna
was the owner and in possession of the entire house along with
the suit open space and on death of Sabanna, the plaintiff is
the only legal heir and successor and she is in peaceful
possession and enjoyment of the suit open space.
5. Pursuant to suit summons issued by the trial Court
defendants appeared and filed their written statement interalia
disputing the description of the suit property and the sketch
map filed along with the plaint. The defendants denied that the
suit open space and the house property bearing No.1-80 was
the ancestral property of the plaintiff. The defendants
specifically denied about the possession and enjoyment of the
suit property in respect of the suit open space by the plaintiff.
The defendants further contended that the suit open space
does not form part and parcel of house bearing No.1-80, but
forms part and parcel of house No.1-82-1 and the suit open
space was owned and possessed by one Basavva W/o. Nagappa
Talwar, who died leaving behind her daughter by name
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Sabawwa. Sabawwa has died leaving behind her daughter
Kashawwa, who is the mother of defendant No.1. The
defendants contended that the suit open space forms part and
parcel of the house being used by defendant No.1. The specific
ground taken by the defendants is that the suit for perpetual
injunction without seeking for declaration is not maintainable.
6. The trial Court on the basis pleadings framed the
following issues:
"1. Whether the plaintiff proves that she is in lawful
possession of the suit property as on date of filing
of the suit?
2. Whether the plaintiff proves the interference
caused by the defendants as pleaded in the plaint?
3. Whether the plaintiff is entitled to the relief sought
for?
4. What order or decree?
ADDITIOANL ISSUES
1. Whether the defendants prove that the Court fee
paid by the plaintiff is not sufficient and valuation
made is not correct?
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2. Whether the defendants prove that, the suit is not
maintainable without seeking relief of declaration?"
7. In order to substantiate their claim, plaintiff
examined herself as PW1, examined one witness as PW2 and
got marked documents at Exs.P1 to P4. On the other hand,
defendant No.1 examined himself as DW1 and one witness as
DW2 and got marked documents at Exs.D1 and D2.
8. The trial Court on the basis of the pleadings, oral
and documentary evidence arrived at a conclusion as under:
i. Plaintiff failed to prove her lawful possession of the
suit open space as on the date of filing of the suit;
ii. That the plaintiff failed to prove interference by the
defendants and that the defendants proved that the suit of the
plaintiff is not maintainable without seeking a relief of
declaration;
iii. The trial Court by the judgment and decree
dismissed the suit with costs.
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9. Aggrieved, the plaintiff preferred appeal before the
first Appellate Court. The first Appellate Court while re-
considering and re-appreciating the entire oral and
documentary evidence concurred with the judgment and decree
of the trial Court. Aggrieved, the plaintiff is before this Court.
10. Learned counsel for the appellant submits that the
open site or the open space in front of the house goes with the
ownership of the house itself and the person becomes the
owner of the property. In the instant case, the plaintiff has
specifically contended that the suit open space forms part and
parcel of the suit house property and the plaintiff is in
possession. He further submits that the Courts below without
appreciating Ex.P2 - Sketch approved by the Gram Panchayat
has erroneously arrived at a conclusion that the plaintiff has to
file a suit for declaration, and seeking perpetual injunction was
not maintainable. In support of his contention, he has placed
reliance on the judgment of the Gujarat High Court in the case
of PARMAR GOGJI V. PARMAR GANESH MOTI1 [PARMAR
GOGJI].
AIR 1968 GUJRAT 281
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11. Per contra, learned counsel appearing for the
respondents-defendants justified the judgment and decree of
the Courts below and submits that the Courts below on
concurrent findings of facts have held that the plaintiff is not
entitled for perpetual injunction and the suit of the plaintiff is
not maintainable without seeking declaration, as the
defendants have disputed the title of the plaintiff. The
concurrent findings of the Courts below does not warrant
interference under Section 100 of CPC and sought for dismissal
of the suit.
12. This Court has carefully considered the rival
contentions of the parties and perused the material on record.
13. The suit open space is measuring 16.6 feet x 17.9
feet towards northern side of the house bearing No.1-80. The
boundaries shown are as under:
East : Public Way,
West : Ereddy Gudi and thereafter house of
defendants,
North: Lane thereafter Doddi of Yamunappa
South: Common passage and then house
bearing No.1-80 belonging to the
plaintiff.
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14. The plaintiff contended that the suit open space
forms part and parcel of the house bearing No.1-80. The Ex.P2
- Sketch which is placed reliance by the appellant shows that
towards South there is a common passage and then after the
common passage the house bearing No.1-80 belonging to the
plaintiff is situated, which invariably is also the boundaries
shown by the plaintiff in his plaint. The plaintiff has come to
the Court seeking to contend that the suit open space forms
part and parcel of the suit house bearing No.1-80 and he is in
possession of the property of the suit open space and is entitled
for perpetual injunction. The plaintiff has not produced any
document of title to show the ownership over the suit open
space, which is after the common passage and then the house
of the plaintiff bearing No.1-80 is situated. The defendants
disputed the title and possession of the plaintiff in respect of
the suit open space, as the common passage which comes
between the house of the plaintiff and the suit open space, the
plaintiff is unable to substantiate as to how the suit open space
would form as part and parcel of the house bearing No.1-80.
The reliance placed on the decision of PARMAR GOGJI's case
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stated supra was in respect of an open site in front of the
house, and in the absence of any evidence to the contrary the
Court held that it goes with the ownership of the house itself.
In the instant case the plaintiff has failed to establish as to how
the suit open space after a common passage is forming the part
and parcel of the house bearing No.1-80, hence, judgment
placed reliance in PARMAR GOGJI's case is distinguishable
and not applicable to the facts and circumstances of the
present case. The plaintiff has failed to establish her
possession over the suit open space forming as part and parcel
of the house property.
15. Trial Court has held that the suit of the plaintiff is
not maintainable in light of the decision of the Apex Court in
the case of Anathulla Sudhakar vs. P. Buchireddy2
[Anathulla]. The Apex Court in the case of Anathulla has
held when a plaintiff claims injunction and there is a cloud over
the title of the plaintiff, then the simple suit for injunction is not
maintainable and the plaintiff needs to file original suit seeking
declaration and consequential reliefs. The first appellate Court
AIR 2008 SC 233
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being the last fact finding Court has re-appreciated the entire
oral and documentary evidence and the manner in which the
Courts below have assessed entire oral and documentary
evidence, this Court is of the considered view that no
substantial question of law arises for consideration in the
present second regular appeal filed under Section 100 CPC.
Accordingly this Court pass the following:
ORDER
i. The regular Second Appeal is hereby
dismissed.
ii. The judgment and decree of the Courts below
stands confirmed.
Sd/-
JUDGE
SBS
CT: VD
