Karnataka High Court
Sri Narayana (Naani) vs Sri Shivaji Rao on 6 March, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 356 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 356 OF 2024 (INJ)
BETWEEN:
SRI NARAYANA (NAANI)
S/O PUTTARAMAIAH,
AGED ABOUT 52 YEARS,
R/AT RAYARADODDI
(SHIVAJINAGARA)
RAMANAGARA TOWN,
RAMANAGARA DISTRICT - 562159.
...APPELLANT
(BY SRI. G M SRINIVASAREDDY.,ADVOCATE)
AND:
1. SRI SHIVAJI RAO
S/O LATE RAJA RAO JADHAV,
AGED ABOUT 77 YEARS,
Digitally signed by R/AT DOOR NO.4470,.
SUMA B N SHETTIHALLI STREET,
Location: High RAMANAGARA TOWN - 562 159.
Court of Karnataka
2. SMT. BHAGYA,
W/O LATE SHIVARAMU,
AGED ABOUT 60 YEARS,
3. SRI GIRI,
S/O LATE SHIVARAMAIAH,
AGED ABOUT 37 YEARS
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RSA No. 356 of 2024
RESPONDENT NO.2 AND 3 ARE
R/AT KEMPEGOWDANADODDI VILLAGE,
IJOOR POST, KASABA HOBLI,
RAMANAGARA TALUK AND DISTRICT - 562 159.
4. SRI UMESH,
S/O PUTTARAMAIAH,
AGED ABOUT 55 YEARS
5. SRI RAJA,
S/O PUTTARAMAIAH,
AGED ABOUT 50 YEARS,
RESPONDENT NO.4 AND 5 ARE
R/AT KEMPEGOWDANADODDI VILLAGE,
IJOOR POST, KASABA HOBLI,
RAMANAGARA TALUK AND DISTRICT - 562159.
...RESPONDENTS
(BY SRI. SUBBA SHASTRY N.,ADVOCATE FOR C/R1;
NOTICE IS NOT ORDERED TO R2 TO R5)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 20.12.2023 PASSED IN
RA NO.41/2019 ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, RAMANAGARA, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
02.08.2019 PASSED IN OS NO.312/2012 ON THE FILE OF
ADDITIONAL CIVIL JUDGE AND JMFC, RAMANAGARA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 356 of 2024
JUDGMENT
This appeal is filed by the defendant No.3 aggrieved by
the judgment and order dated 20.12.2023 passed in
R.A.No.41/2019 on the file of Prl. Senior Civil Judge and
CJM., Ramanagara (the First Appellate Court) by which the
First Appellate Court while setting aside the judgment and
decree dated 02.08.2019 passed in O.S.No.312/2012 on the
file of Additional Civil Judge and J.M.F.C, Ramanagara
decreed the suit for injunction.
2. The above suit in O.S.No.312/2012 is filed by the
plaintiff/respondent No.1 for the relief of permanent
injunction contending that;
(a). The land in Sy.No.71 originally belonged to grand
mother of the plaintiff namely Amba Bai and that said Amba
Bai had executed a registered deed of gift on 08.12.1987 in
favour of the plaintiff and at the time of land being conveyed
by way of gift the land was referred to by Sy.No.71/2.
(b). That subsequently plaintiff applied and obtained
change of land usage from agriculture to non-agriculture
purpose vide Order dated 02.12.1990 and conversion was
also approved. The plaintiff had formed a layout consisting
of sites of different dimensions and had retained one site
which is the plaint schedule property. That the plaint
schedule property has been assigned with Municipal
No.866/607/1. Thus the plaintiff has been in possession and
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enjoyment of the suit schedule property and exercising the
right of ownership over the same.
(c). It is further contended that defendants were
strangers to the family and property of the plaintiff and
without having any right attempted to interfere with the
peaceful possession and enjoyment of the suit schedule
property by the plaintiff, constraining the plaintiff to file the
above suit.
3. The defendant Nos.1 to 4 appeared through their
counsel. Defendant No.3 filed the written statement which
was adopted by the defendant Nos.1, 2 and 4. The
defendant No.3 in his written statement denied the plaint
averments and contended;
(a). That the suit schedule property was the ancestral
property of the defendants belonging to their grand father
Chikkanna. That upon the demise of the said Chikkanna
defendants have been in possession and enjoyment of the
suit schedule property. It is further contended that the
property being claimed by the plaintiff has no relevance or
concern to the property in possession of the defendants
which is Sy.No.71.
(b). That the grand father of the defendants had sold
certain portion of land in Sy.No.71 and had retained the suit
schedule property. That Smt.Amba Bai did not have any
right, title and interest to convey 2 acres 17 guntas of land.
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It is also contended that originally the property belonged to
one Smt.Ankamma W/o Dasegowda. That on 10.05.1950 an
extent of 2 acres and 17 guntas in Sy.No.71 was sold to
Sri.Mohammed Basha Saheb S/o Sab Jaan Saheb.
Subsequently, one Pyarijaan and her husband Mohammed
Basha Saheb had sold the said property under the deed of
sale dated 28.05.1969 in favour of Sri.Madaih
@Mottekaalaiah S/o Kunnegowda.
(c). That the said Sri.Madaiah @Mottekaalaiah had sold
2 acres 17 guntas of land in Sy.No.71 in favour of Smt.Amba
Bai-grand mother of the plaintiff on 27.07.1967. That out of
2 acres and 17 guntas, the said Smt.Amba Bai had sold 5
guntas of land in favour of Lokanath S/o Narayan Kande on
26.04.1976 and by deed of sale dated 26.04.1976 she has
sold 4 guntas out of 2 acres and 12 guntas in favour of one
Krishnoji Rao S/o Venkata Rao and another extent of 5
guntas of land was sold in favour of Srinivasa Rao Chouhan
on 26.05.1976 and had retained only 2 acres and 3 guntas of
land as such said Smt.Amba Bai could not have executed the
deed of gift to an extent of 2 acres and 17 guntas of land as
claimed by the plaintiff.
(d). It is further contended that the defendants have
been in the possession of the property enclosed by the stone
slabs and the plaintiff has stored sand in the suit schedule
property, Smt.Amba Bai did not have any legal heirs and he
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was not in possession of the property as such the suit was
not maintainable. Hence, sought for dismissal of the suit.
4. Based on the pleadings, the Trial Court framed the
following issues and additional issue:
"1. Whether the plaintiffs prove that he is in lawful
possession over the suit schedule property?
2. Whether the plaintiff further proves that there is
an unlawful interference by the defendants over
the suit schedule property?
3. What order or decree?"
Additional Issue:
"1. Whether the plaintiff is entitled for the relief as prayed for?"
5. The plaintiff examined one Anand Rao as PW1 and
exhibited 26 documents marked as Ex.P1 to Ex.P26. In
order to prove their defence, defendant No.3 examined
himself as DW1 and exhibited 10 documents marked as
Ex.D1 to Ex.D10. On appreciation of the evidence the Trial
Court answered Issue Nos.1 and 2 in the negative and
Additional Issue No.1 also in the negative and consequently
dismissed the suit of the plaintiff.
6. Aggrieved by the aforesaid judgment and decree
plaintiff preferred a regular appeal in R.A.No.41/2019 before
the First Appellate Court. Considering the grounds urged the
First Appellate Court framed the following points for
consideration:
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"1. Whether the findings arrived at by the learned
Trial Court that the Plaintiff failed to prove his
possession over the suit schedule property is
incorrect?
2. Whether the Judgment and Decree passed by the
learned Trial Court that the Plaintiff failed to prove
the alleged interference by the Defendants is
incorrect?
3. Whether the judgment and decree passed by the
learned Trial Court in O.S.No.312/2012 calls for
interference?
4. What order or decree?"
7. On re-appreciation of the evidence, the First
Appellate Court answered point Nos.1 and 2 in the negative
and point No.3 in the affirmative and consequently allowed
the appeal by setting aside the judgment and decree passed
by the Trial Court. Being aggrieved by the same defendant
No.3 is before this Court.
8. Sri.G.M.Srinivasareddy, learned counsel for the
appellant reiterating the grounds urged in the memorandum
of the appeal and taking through the judgment passed by
the First Appellate Court vehemently submitted that the First
Appellate Court grossly erred in reversing the judgment and
decree passed by the Trial Court specifically referring to para
Nos.28 and 29 of the judgment and decree passed by the
Trial Court. Learned counsel for the appellant submitted
that defendant had produced revenue documents in the
nature of M.R. entries as per Ex.D10 reflecting the name of
defendants and also the possession of defendants over the
suit schedule property which has not been taken note of by
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the First Appellate Court. He further submits that the Trial
Court in its detailed judgment and decree had taken note of
the fact that the description of the property claimed by the
plaintiffs were not tallying with the documents produced by
the plaintiffs and since there was discrepancies in the
measurements as claimed by the plaintiff with that of the
documents produced, the plaintiff had not established the
identity of the property. Therefore, the Trial Court had
declined to grant the injunction. It is his further submission
that the Trial Court had also taken into consideration the
violation of conversion order by the plaintiff, disentitling any
equitable relief at the hands of the Trial Court. Thus, he
submits that the First Appellate Court was not justified in
interfering and reversing the judgment and decree passed by
the Trial Court giving raise to substantial question of law.
9. Per contra, learned counsel for the
respondent/plaintiff justifying the judgment and order
passed by the First Appellate Court submits that except
general denial of the case of the plaintiff, defendants have
not pleaded anything indicating their share, right, title and
interest over the suit schedule property. He further
submitted that neither in the pleadings nor in the evidence
did the defendants bring on record the manner and mode in
which they acquired the property. He further submits that
the defendant is not even aware of the extent of the
property which according to them belonged to their grand
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father-Chikkanna or the property which they allegedly claim
to be in possession of. He submitted that the defendants do
not dispute the title of the plaintiff except finding
discrepancies in the measurement given in the deed of gift.
Thus, he submits that the Trial Court which had exceeded
the pleadings of the parties had erred in dismissing the suit,
which anomaly was set right by the First Appellate Court on
appreciation of the evidence. He submits that no substantial
question of law would arise for consideration in this appeal,
hence seeks for dismissal of the appeal.
10. Heard. Perused the records.
11. From the perusal of the pleadings in the plaint and
the written statement, what gets clear is that the claim of
the plaintiff that the property belonging to Smt.Amba Bai is
not disputed by the defendants either. All that the
defendants have contended in the written statement is that
said Smt.Amba Bai had sold certain portions of the said
property out of total extent of 2 acres and 17 guntas, as
such she could not have executed the gift deed to an extent
of 2 acres and 17 guntas in favour of the plaintiff. Expect this
there is no denial by the defendants with regard to right, title
and interest of either of Smt.Amba Bai or of the plaintiff.
12. On the other hand though it is contended by the
defendants that the suit schedule property belonged to their
grand father, they have not produced any documentary
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evidence in justification of their claim. Though, learned
counsel for the appellant vehemently referred to para No.28
and 29 of the Trial Court judgment and decree, wherein
there is a mention with regard to revenue records produced
at Ex.D10 referring to mutation register entry dated
27.06.2016, the same is hardly of any avail to the
defendants.
13. The suit is of the year 2012, the said revenue
records is of the year 2016 which is much subsequent to the
date of filing of the suit. That apart as rightly taken note of
by the First Appellate Court, defendant's witness in his cross-
examination has categorically admitted that the property is
in possession of the plaintiff being enclosed by the stone
slabs. He has also admitted that he has neither challenged
the conversion order obtained by the plaintiff nor documents
or the revenue records. The First Appellate Court has also
adverted to the position of law that in a suit for injunction of
this nature all that is required to notice, that if the plaintiff
had made out a case for possession, though invariably issue
of title would be adverted to, and in the fact circumstance of
the case the First Appellate Court has came to the conclusion
that perusal and appreciation of the material evidence
produced by the plaintiff would indicate that the plaintiff had
established title and possession over the suit schedule
property which on the contrary defendants had failed to
disprove or set-up any title in their favour. Weighing this
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material evidence the First Appellate Court has reversed the
judgment and decree passed by the Trial Court and has
granted the relief of permanent injunction. The appreciation
of the evidence by the First Appellate Court cannot be found
fault with, no substantial question of law would arise for
consideration in this appeal. Accordingly, appeal is dismissed
confirming the judgment and order passed by the First
Appellate Court.
Not withstanding the dismissal of the appeal,
appellant/defendant is at liberty to avail such remedy if
permissible under law.
Sd/-
JUDGE
RL
