Karnataka High Court
Smt. Rathnamma vs Sri.S.L.Narasimhaiah on 5 March, 2024
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NC: 2024:KHC:10283
RSA No. 1416 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.1416 OF 2018 (INJ)
BETWEEN:
SMT. RATHNAMMA
W/O ISWARACHAR,
AGED ABOUT 58 YEARS,
R/O GOPALAPURA,
KASABA HOBLI, GUBBI TALUK,
TUMAKURU DISTRICT - 572 216
...APPELLANT
(BY SRI. M B CHANDRACHOODA, ADVOCATE)
AND:
SRI. S.L. NARASIMHAIAH
S/O S L. LAKSHMANAPPA @
LAKSHMINARASIMHAIAH,
AGED 65 YEARS,
R/O SURIGENAHALLY,
Digitally KASABA HOBLI, GUBBI TQ.,
signed by R TUMAKURU DISTRICT - 572 216.
DEEPA
...RESPONDENT
Location:
HIGH COURT (BY SRI. VINAY KEERTHY M., ADVOCATE)
OF
KARNATAKA THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT DECREE DTD. 12.02.2018 PASSED IN R.A.NO.
12/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., AT GUBBI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD. 03.02.2012 PASSED IN
OS.NO.100/2007 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, GUBBI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 1416 of 2018
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 12.02.2018,
passed in R.A.No.12/2012 by the Senior Civil Judge &
JMFC, Gubbi, confirming the judgment and decree dated
03.02.2012, passed in O.S.No. 100/2007 by the Prl. Civil
Judge & JMFC, Gubbi.
2. For the sake of convenience, 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 the suit for perpetual injunction against
the defendant.
3. The brief facts leading rise to filing of this
appeal are as under:
It is the case of the plaintiff, that the plaintiff is the
owner and in possession of the suit schedule property. The
suit schedule property was granted in favour of father of
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the plaintiff namely Bhadrachar, by the Tahsildar, Gubbi
on 31.08.1976, under the grant certificate. Since from the
date of grant, father of the plaintiff was in possession and
enjoyment of the suit schedule property till his death.
After his death, the plaintiff and her mother Gowramma,
being Class-I heirs succeeded to the property left by
deceased Bhadrachar. The revenue records stands in the
name of her mother. The defendant has no right, title or
interest over the suit property. The defendant made an
attempt to interfere with the plaintiff's possession over the
suit schedule property. The plaintiff requested the
defendant not to interfere into the peaceful possession and
enjoyment over the suit schedule property. The defendant
did not give any heed to the request made by the plaintiff.
Hence cause of action arose for the plaintiff to file the suit.
4. Defendant filed written statement denying the
averments made in the plaint. The defendant has denied
the ownership and possession of the plaintiff over the suit
schedule property. The defendant admitted that the suit
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schedule property was granted in favor of father of the
plaintiff. It is denied that the plaintiff and her mother
succeeded to the properties left by her father. It is
contended that the suit property was owned and
possessed by the father of plaintiff. He sold portion of suit
land, to an extent of 2 acre, in favour of
P.L.Ramachandraiah under registered sale deed dated
09.07.1960, and delivered possession of the same.
P.L.Ramachandraiah had in turn sold 2 acres of land in
favour of K.S.Lalithamma under registered sale deed dated
16.02.1970. The said Lalithamma sold the said 2 acres of
land in favour of defendant under registered sale deed
dated 05.05.1995, and delivered the possession of the
same. The defendant is in possession and enjoyment of 2
acres of suit property as owner and his name is appearing
in the revenue records. As the plaintiff and her brother
tried to interfere into the possession over 2 acres of land,
defendant filed a suit in O.S.No. 185/1997 against the
plaintiff and her brother for declaration and permanent
injunction and the same is pending. The plaintiff had filed
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suit in O.S.No. 233/1999 against the defendant and the
said suit was dismissed. On these grounds sought for
dismissal of the suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
(1) Whether the plaintiff proves that she is in
lawful possession of suit property as on the date
of suit?
(2) Whether the plaintiff proves the alleged
interference by the defendant?
(3) Whether the plaintiff is entitled for the reliefs
as claimed?
(4) What order or decree?
6. In order to prove the case of the plaintiff, the
plaintiff examined herself as PW-1 and got examined two
witnesses as PW-2 & PW-3 and got marked 14 documents
as Exs.P1 to P14. In rebuttal, defendant examined himself
as DW-1 and got examined one witness as DW-2 and got
marked 16 documents as Exs.D1 to D16. The trial Court
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after assessing the oral and documentary evidence of the
parties, answered issue Nos.1 to 3 in negative; and issue
No.4 as per the final order. The trial Court dismissed the
suit of the plaintiff.
7. The plaintiff aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.12/2012. The First Appellate Court, after hearing
the parties, has framed the following points for
consideration:
(1) Whether the appellant/plaintiff has proved
her lawful possession over the suit schedule
property as on the date of suit?
(2) Whether the judgment and decree of the trial
Court requires interference by this Court?
(3) What order?
8. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1 and
2 in negative; and point No.3 as per the final order and
consequently dismissed the appeal filed by the defendant,
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confirming the judgment and decree passed by the trial
Court. The plaintiff, aggrieved by the judgment and
decree passed by the courts below, has filed this second
appeal.
9. Heard learned counsel for the plaintiff.
10. Learned counsel for the plaintiff submits that
the courts below failed to consider that there was no grant
of ownership of the land in favour of Bhadrachar as on
09.02.1960, and the alleged sale deeds dated 09.07.1960
and 16.02.1970, have no basis and no title can be passed
on the said sale deeds said to have been executed by
Bhadrachar. He submits that the courts below did not
appreciate the records properly. The impugned judgments
and decrees passed by the courts below are arbitrary and
erroneous. Hence on these grounds prays to allow the
appeal.
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11. Perused the records and considered the
submission of learned counsel for the plaintiff.
12. It is the case of the plaintiff, that plaintiff is in
possession of the suit property. In order to substantiate
the case of plaintiff, plaintiff got examined himself as PW-
1. He has reiterated the plaint averments in his
examination-in-chief and examined 2 witness as PW-2 and
PW-3 and got marked 14 documents as Ex.P1 to Ex.P14.
The defendant has denied the case of the plaintiff and
contended that Bhadrachar sold 2 acres of land in favour
of R.L.Ramachandraiah under registered sale deed dated
09.07.1960. He in turn sold the said 2 acres of land to
K.S.Lalithamma under registered sale deed dated
16.12.1970. Lalithamma sold the said land in favour of
defendant under registered sale deed dated 05.05.1995.
The defendant is in possession of portion of suit land
under registered sale deed dated 05.05.1995. The plaintiff
has not challenged the registered sale deed executed by
Bhadrachar in favour of R.L.Ramachandraiah and
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subsequent registered sale deeds. Further, the plaintiff in
order to prove possession over the suit property, except
oral testimony of PW-2 and PW-3, has not produced any
documentary evidence. The records produced by the
plaintiff does not reflect the possession of plaintiff over the
suit property. On the contrary, name of defendant has
been mutated. Thus it is clear from the records that
plaintiff is not in possession of the suit property. It is well
settled that in a suit for perpetual injunction, the plaintiff
must establish possession over the suit property as on the
date of instituting the suit and interference. Admittedly,
the plaintiff has failed to prove possession over the suit
schedule property. The courts below have concurrently
recorded a finding of fact against the plaintiff, holding that
plaintiff is not in possession of the suit property. The
courts below have rightly passed the impugned
judgments. I do not find any substantial question of law
that arise for consideration in this appeal and do not find
any error in the impugned judgments.
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13. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
The judgments and decrees passed by the
courts below are hereby confirmed.
No order as to the costs.
SD/-
JUDGE
RD
