Karnataka High Court
D Ramakrishnaiah vs Udugaramaiah on 16 October, 2024
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NC: 2024:KHC:41837
RSA No. 1117 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1117 OF 2021 (INJ)
BETWEEN:
D RAMAKRISHNAIAH
S/O DODDARAMAIAH
AGED ABOUT 54 YEARS,
RESIDENT OF DODDANARASAIAHNAPALYA
VILLAGE, C N DURGA HOBLI
KORATAGERE TALUK
TUMAKURU DISRICT - 572129
...APPELLANT
(BY SRI. VIVEK S., ADVOCATE)
AND:
UDUGARAMAIAH
Digitally signed SINCE DEAD REPRESENTD BY LRS
by R DEEPA
Location: HIGH 1. SMT NAGAMMA
COURT OF W/O UDUGARAMAIAH
KARNATAKA AGED ABOUT 66 YEARS
RESIDENT OF KURIHALLI VILLAGE
C N DURGA HOBLI, KORATAGERE TALUK
TUMAKURU DISTRICT -572129
2. SMT DEVAMMA
W/O RAMESH
D/O UDUGARAMAIAH
AGED ABOUT 43 YEARS,
RESIDENT OF 3RD CROSS,
SIT, TUMAKURU -572102
-2-
NC: 2024:KHC:41837
RSA No. 1117 of 2021
3. SMT SUDHA
W/O RAMESH
D/O UDUGARAMAIAH
AGED ABOUT 41 YEARS,
RESIDENT OF ARAKERE
KASABA HOBLI, TUMAKURU TALUK -572106
4. SMT RAJAMMA
W/O BASAVARAJU
D/O UDUGARAMAIAH
AGED ABOUT 44 YEARS
RESIDENT OF KURIHALLI VILLAGE
C N DURGA HOBLI, KORATAGERE TALUK -572129
5. SMT RAMADEVI
D/O UDUGARAMAIAH
AGED ABOUT 34 YEARS,
RESIDENT OF KURIHALLI VILLAGE
C N DURGA HOBLI, KORATEGERE TALUK
TUMAKURU DISTRICT - 572129
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.09.2021
PASSED IN RA.No.6/2017 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 03.12.2016 PASSED IN OS No.153/2011 ON THE FILE
OF THE CIVIL JUDGE AND JMFC, KORATAGERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
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RSA No. 1117 of 2021
ORAL JUDGMENT
This regular second appeal is filed by the appellant
challenging the judgment and decree dated 09.09.2021
passed in R.A.No.6/2017 by the learned Additional Senior
Civil Judge and JMFC, Madhugiri.
2. For convenience, the parties are referred to
according to their ranking before the trial Court. The
appellant is the defendant, and the respondents are the
legal representatives of the plaintiff.
3. Brief facts leading rise to the filing of this
appeal are as follows:
The plaintiff filed a suit for permanent injunction
restraining the defendant from interfering in the plaintiff's
peaceful possession and enjoyment of the suit-schedule
property. It is the case of the plaintiff that the plaintiff is
the absolute owner in possession and enjoyment of the
suit schedule property, and the same was acquired under
partition effected between his brothers on 28.07.1998
through Panchayath Palupatti. From the date of partition,
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the plaintiff and his brothers are in joint possession and
enjoyment of the suit schedule property. After partition,
the revenue records are in the name of the plaintiff, who is
paying the land revenue to the Government. It is
contended that the defendant is a stranger to the family of
the plaintiff, and he is trying to interfere into the peaceful
possession and enjoyment of the plaintiff over the suit
schedule property. The plaintiff requested the defendant
not to interfere, but the defendant interfered and created
the documents, i.e. alleged agreement of sale, and filed a
false suit in O.S.No.34/2011 on the file of Civil Judge
(Jr.Dn.) Koratagere for specific performance of contract,
and the same is pending.
4. The defendant filed a written statement denying
the averments made in the plaint regarding the possession
and interference. It is contended that the defendant is in
possession and enjoyment of the suit schedule property.
It is contended that the plaintiff and her daughters
executed an agreement of sale in respect of the suit
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schedule property for consideration of Rs.1,00,000/- and
the defendant paid a sum of Rs.50,000/- towards earnest
money, and the plaintiff delivered the possession of the
suit schedule property. The plaintiff did not execute the
registered sale deed in terms of an agreement of sale.
The defendant filed a suit in O.S.No.34/2011 for the relief
of specific performance of the contract against the
plaintiff, his wife and daughters, and the same is pending.
Hence, the suit filed by the plaintiff is not maintainable.
Hence, prays to dismiss the suit.
5. The trial Court, based on pleadings, framed the
relevant issues.
6. The plaintiffs, in order to substantiate their
case, plaintiff No.4 was examined as PW.1 and examined 2
witnesses as PWs.2 and 3 and marked four documents as
Exs.P1 to P4. On the other hand, the defendant examined
himself as DW.1 and marked eight documents as Exs.D1
to D8. The trial Court, after recording the evidence and on
assessment of the oral and documentary evidence,
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dismissed the suit of the plaintiffs vide judgment dated
03.12.2016.
7. The plaintiffs, aggrieved by the judgment and
decree passed in O.S.No.153/2011, preferred an appeal in
R.A.No.6/2007 on the file of learned Additional Senior Civil
Judge and JMFC, Madhugiri. The first Appellate Court on
reassessment of oral and documentary evidence, allowed
the appeal and set aside the judgment and decree passed
by the trial Court and consequently decreed the suit of the
plaintiffs. The defendant, aggrieved by the judgment and
decree passed in R.A.No.6/2017, filed this regular second
appeal.
8. Heard the learned counsel for the defendant.
9. Learned counsel for the defendant submits that
the plaintiff executed an agreement of sale in favour of the
defendant, and the defendant is in possession of the suit
schedule property as an agreement holder, and he has
filed a suit in O.S.No.34/2011 for specific performance of a
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contract. Hence, he submits that the trial Court was
justified in dismissing the suit, holding that the plaintiff is
not in possession of the suit schedule property, but the
first Appellate Court, without properly appreciating the
material placed on record, passed impugned judgment.
He submits that the impugned judgment passed by the
first Appellate Court is contrary to the records. Hence, on
these grounds, prays to allow the appeal.
10. Perused the records and considered the
submissions of the learned counsel for the defendant.
11. It is not in dispute that the plaintiff is the
absolute owner of the suit schedule property and in
possession of the suit schedule property. The defence of
the defendant that the defendant admitted the title of the
plaintiff over the suit schedule property and contended
that the plaintiff agreed to sell the suit schedule property
in favour of the defendant for consideration of
Rs.1,00,000/- and the defendant paid a sum of
Rs.50,000/- towards earnest consideration amount. He
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submits that the plaintiff failed to execute the registered
sale deed in terms of the agreement of sale. The
defendant filed a suit in O.S.No.34/2011. The plaintiff has
produced a copy of the plaint in O.S.No.34/2011 marked
as Ex.P3. The learned counsel for the defendant has
provided a certified copy of the Ex.P3, which discloses that
the defendant has filed a suit in O.S.No.34/2011 seeking
for the relief of specific performance of contract and also
sought direction to the defendant therein i.e, plaintiffs
herein to deliver the possession of the suit schedule
property into the hands of the plaintiffs therein/defendant
herein, wherein from the perusal of the plaint in
O.S.No.34/2011, the defendant himself has admitted and
sought for the relief of possession from the plaintiffs
herein. Thus it is clear that defendant is not in possession
of the suit schedule property. Admittedly, the instant suit
is for permanent injunction. In a suit for permanent
injunction, the Court is required to see the possession of
the plaintiff and interference as on the date of institution
of the suit. Admittedly, the plaintiff has proved that the
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plaintiffs are in possession of the suit schedule property.
The first Appellate Court, considering the entire material
on record, was justified in passing the impugned
judgment. I do not find any error in the impugned
judgment or any substantial question of law that arises for
consideration in this appeal.
12. Accordingly, I proceed to pass the following:
ORDER
The appeal is dismissed.
Judgment and decree passed by the first
Appellate Court is hereby confirmed.
No order as to the costs.
In view of dismissal of the appeal, I.A.No.1/2021
does not survive for consideration and accordingly
disposed of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
SKS
