Karnataka High Court
Smt Thimmakka vs Sri Lingappa on 1 April, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 624 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO.624 OF 2012 (DEC/INJ)
BETWEEN:
SMT THIMMAKKA,
W/O LATE BYATAPPA,
SINCE DEAD REP. BY HER LRS
1. SRI RAMAIAH,
S/O LATE BYATAPPA,
AGED ABOUT 53 YEARS,
2 . SMT. LAKSHMAMMA,
D/O LATE BYATAPPA,
AGED ABOUT 63 YEARS,
BOTH ARE R/AT KODLIGHATTA,
KIBBANAHALLI HOBLI,
TIPTUR TALUK - 572 114.
Digitally signed by
GEETHAKUMARI
PARLATTAYA S 3 . SMT LAKKAMMA,
W/O MYLARAPPA,
Location: High
Court of AGED ABOUT 56 YEARS,
Karnataka R/AT NAGATHIHALLI,
HONNAVALLI HOBLI,
TIPTUR TALUK - 572 217.
...APPELLANTS
(BY SRI S. NAGARAJA, ADVOCATE)
AND:
SRI LINGAPPA,
S/O LATE CHANNAVEERAIAH,
SINCE DEAD REP. BY HIS LRS R3 TO R9
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RSA No. 624 of 2012
1. SRI SOMASHEKHARAIAH,
S/O LATE LINGAPPA, MAJOR,
2 . SRI NATARAJU,
S/O LATE LINGAPPA,
MAJOR,
3 . SMT. GANGAMMA,
W/O LATE LINGAPPA,
SINCE DEAD BY LRs
RESPONDENT NOs.1 AND 2
AMENDMENT CARRIED OUT
AS PER ORDER DATED 12.03.2025
4 . SMT. RUDRANAMMA,
W/O THIMMAIAH,
AGED ABOUT 53 YEARS,
5 . SMT. SHIVAMMA,
W/O RAMAIAH,
AGED ABOUT 43 YEARS,
RESPONDENTS NO.4 & 5 ARE
R/AT HULLEKERE - 572 229,
DANDINASHIVARA HOBLI,
TURUVEKERE TALUK.
6 . SMT. MAHADEVAMMA,
W/O SREEKANTAIAH,
AGED ABOUT 31 YEARS,
R/AT VIGNASANTHE - 572 224,
TIPTUR TALUK.
7 . SMT. RENUKAMMA,
W/O BORALINGAIAH,
AGED ABOUT 38 YEARS,
R/AT KARIKERE,
NONAVINAKERE HOBLI - 572 224,
TIPTUR TALUK.
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RSA No. 624 of 2012
8 . SMT. CHANDRAMMA,
W/O KRISHNAPPA,
AGED ABOUT 33 YEARS,
R/AT MUGANAYAKANAKOTE - 572 222,
NOW R/AT CHIKKANAYAKANAHALLY.
9 . SMT. JAYASHEELA,
W/O VEERABHADRAIAH,
AGED ABOUT 31 YEARS,
R/AT SAMPIGE - 572 225,
DANDINASHIVARA HOBLI,
TURUVEKERE TALUK.
...RESPONDENTS
[BY SRI B.R. RAGHAVENDRA, ADVOCATE FOR
SRI K.S. RAMASWAMY IYENGAR, ADV FOR R1,R2, R4-R9;
V/O DATED 12.03.2025 R1 & R2 ARE LRs OF DECEASED R3]
THIS RSA FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 18.11.2011 PASSED IN
R.A.NO.380/2009 (OLD NO.50/2009) ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, TIPTUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 08.04.2003 PASSED IN O.S.NO.143/1992
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC.,
TIPTUR.
THIS REGULAR SECOND APPEAL IS COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED
FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
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RSA No. 624 of 2012
JUDGMENT
Challenging judgement and decree dated 18.11.2011
passed by Presiding Officer, Fast Track Court, Tiptur, in
R.A.no.380/2009 (old no.50/2009), dismissing appeal and
confirming judgment and decree dated 08.04.2003 passed by
Prl. Civil Judge (Jr.Dn) & JMFC, Tiptur, in O.S.no.143/1992, this
appeal is filed.
2. Brief facts as stated are, appellants were legal
representatives of original plaintiff in O.S.no.143/1992 filed for
declaring plaintiffs as absolute owner in possession of property
bearing Sy.no.9/2 (1st block) measuring 4 Acres situated at
Kodihalli Village, Kasaba Hobli, Tiptur Taluk (hereinafter
referred to as 'suit property') and for permanent injunction
restraining defendants, their agents, etc., from interfering with
plaintiff's peaceful possession and enjoyment of suit property.
3. In plaint, it was stated, on 26.07.1976, Tahsildar of
Tiptur Taluk had issued grant certificate bearing no.DCR.15/74-
75 in favour of plaintiff - Thimmakka. Thereafter, their names
were mutated in revenue records by MR no.18/75-76, since
then, plaintiff was paying tax to Government. Thus, he was
absolute owner in physical possession and enjoyment of suit
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property. It was stated, plaintiff cleared shrubs and spent huge
amount for making it cultivable. It was stated, defendants were
strangers without right, title, interest or possession over suit
property interfered with her possession. Hence, suit was filed.
4. On appearance, defendant no.2 filed written
statement, adopted by defendants no.1 and 3, denying plaint
averments about plaintiff being owner in possession of suit
property and alleging suit was filed without cause of action.
It was specifically contended, total extent of Sy.no.9/2 of
Kodihalli Village was 16 Acres and 2 guntas, in which 12 Acres
were disposed of by Government and he was in possession of
remaining 4 Acres bounded on East by land of Shivananjappa,
West by land of Ramaiah, Siddalaiah and Buddha Thimmayya,
North by land of Nanjamma and South by land of
Siddagangamma and Chennabasavaiah, since 1977-78 and his
name was entered in revenue records. He stated, plaintiff had
not stated proper boundaries and even if he was granted land,
same was elsewhere. It was stated, suit was erroneously filed
mentioning boundaries of defendant's property and that
plaintiff was never in possession of suit property.
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5. It was stated, grant certificate of plaintiff was not in
respect of land in Sy.no.9/2 and order dated 08.05.1992
passed by Deputy Commissioner, Tumkur in RHMCR
no.7/1992-23, for maintaining status quo in respect of property
recognised possession of defendant no.1. It was stated, without
any right or basis for boundaries suit would not be
maintainable. On above contentions, defendants sought for
dismissing suit.
6. Based on contentions of both parties, trial Court
framed following issues:
1. Whether the plaintiff proves her ownership over
suit schedule property?
2. Whether the plaintiff proves her possession over
suit schedule property as on the date of
institution of suit?
3. Whether the plaintiff proves that the defendants
are interfering with her possession over suit
schedule property?
4. Whether the plaintiff is entitled for the relief of
declaration and perpetual injunction as prayed?
5. What order or decree?
7. Since plaintiff died during pendency of suit, legal
representatives ('LR', for short) were brought on record. During
trial, one of LRs and two others were examined as PWs.1 to 3.
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Exhibits P1 to P20 were got marked. In rebuttal, defendant
no.1 examined himself and two others as DWs.1 to 3. Exhibits
D1 to D22 were got marked.
8. On consideration, trial Court answered issues no.1
to 4 in negative and issue no.5 by dismissing suit. Aggrieved
plaintiff filed R.A.no.380/2009 on various grounds, based on
which first appellate Court framed following points:
1. Whether the appellant proves that the learned
trial Judge erred in holding that plaintiff failed to
prove her possession over suit schedule
property within the given boundaries in the suit
schedule and thereby the judgment and decree
passed by learned trial Judge is erroneous?
2. What order or decree?
9. On consideration, it answered point no.1 in negative
and point no.2 by dismissing appeal. Aggrieved thereby,
plaintiffs filed present appeal.
10. Sri S.Nagaraja, learned counsel for plaintiffs
submitted, challenging concurrent but erroneous judgment and
decrees passed by trial and Appellate Court in plaintiffs' suit for
declaration and permanent injunction, appeal was filed. It was
submitted, dismissal of suit and appeal, were without
appreciation of material on record. It was submitted, to
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establish ownership over suit property, plaintiff produced Ex.P2
- grant certificate, Exs.P11 and P12 - Patta books, Ex.P18 -
Hiduvali certificate, to establish possession produced, RTC
Extract, Records of Rights, Tax paid receipts as Exs.P5 to P10,
P13 to P16 respectively. On other hand, defendants did not
produce title documents or stated about manner of acquisition
of title over suit property.
11. It was submitted, to establish possession, plaintiff
deposed as PW.1 and examined adjacent land owners as PWs.2
and 3, who not only deposed as per plaint but also sustained
cross-examination. However, defendants failed to examine
adjacent land owners to establish possession. Moreover, DWs.2
and 3 admitted, they were unaware of description of properties
and not acquainted with facts of case. It was submitted, despite
holding suit property was granted to plaintiff, both Courts erred
in concluding Ex.P2 was unreliable merely due to unattested
overwriting, ignoring that boundaries mentioned were in
conformity with Ex.P3 - sketch, and by observing that
description in suit schedule was that of defendants' property, to
dismiss suit. It was submitted, both Courts failed to appreciate
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Ex.D1 was decree in O.S.no.135/1987 filed by defendants
against third parties and therefore would not bind plaintiff.
12. It was submitted, first appellate Court failed to re-
appreciate evidence and dismissed appeal by simply concurring
with trial Court findings. It was submitted, when Ex.P3
contained boundaries and extent of suit property, reliance on
Ex.D6 - Sketch, which was irrelevant, led to erroneous
conclusion. It was submitted, Hon'ble Supreme Court in
Anathula Sudhakar v. P. Buchi Reddy (Dead by LRs) and
Ors., reported in 2008 SCC OnLine SC 550, held:
"Re: Question (i)
13. The general principles as to when a mere suit
for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or
possession with injunction as a consequential
relief, are well settled. We may refer to them
briefly.
13.1. Where a plaintiff is in lawful or peaceful
possession of a property and such possession
is interfered or threatened by the defendant, a
suit for an injunction simpliciter will lie. A
person has a right to protect his possession
against any person who does not prove a
better title by seeking a prohibitory injunction.
But a person in wrongful possession is not
entitled to an injunction against the rightful
owner.
13.2. Where the title of the plaintiff is not disputed,
but he is not in possession, his remedy is to
file a suit for possession and seek in addition, if
necessary, an injunction. A person out of
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possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of
possession.
13.3. Where the plaintiff is in possession, but his title
to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto
and there is also a threat of dispossession from
the defendant, the plaintiff will have to sue for
declaration of title and the consequential relief
of injunction. Where the title of the plaintiff is
under a cloud or in dispute and he is not in
possession or not able to establish possession,
necessarily the plaintiff will have to file a suit
for declaration, possession and injunction."
13. On above grounds, learned counsel sought to
propose following substantial questions of law and sought for
allowing appeal:
(A) Whether both Courts erred in disbelieving Exs-
P2 and P3?
(B) Whether both Courts erred in relying on Ex.D1 -
judgment and decree in OS no.135/1987 &
Exs.D3 and D4 - judgment and decree in OS
no.8/1992, without noting that plaintiff was not
party to them and therefore they would not bind
her?
(C) Whether both Courts erred in dismissing suit
even when defendant admitted plaintiff was
granted 4 Acres in Sy.no.9/2?
(D) Whether both Courts erred in dismissing suit on
ground that boundaries of suit property did not
tally with Grant Certificate etc. when other
documents were consistent with suit schedule?
14. On other hand, Sri BR Raghavendra, learned
counsel appearing for Sri KS Ramaswamy Iyengar, learned
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counsel for defendants opposed appeal on ground that it was
against concurrent findings. It was submitted, suit claim was
based on Ex.P2 - grant certificate, which was held by both
Courts to be inconsistent with regard to date, extent and
boundaries, and unreliable due to absence of attestation of
overwriting. Consequently, plaintiff's claim under grant would
be without justification. Even plaintiff's claim about witnesses
supporting their case was untenable, as trial Court observed
PWs.2 and 3 contradicted each other. Both Courts rightly held,
stay granted by Deputy Commissioner (Ex.D22) was observing
possession of suit property was with defendant no.1. It was
submitted, plaintiff admitted in cross-examination that
boundary description of suit property was inaccurate.
15. Apart from above, learned counsel submitted
plaintiff had initially filed suit for declaration of title and
permanent injunction. And defendant had specifically denied
plaintiff's title and possession. In appeal, plaintiff filed IA no.III
for withdrawal of prayer for declaration of title, which was
allowed. Consequently, suit for bare injunction would not be
maintainable. Therefore, no substantial question of law arose
for consideration and sought dismissal of appeal.
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16. In reply, learned counsel for plaintiff submitted, as
per ratio in Anathula Sudhakar's case (supra), bare denial of
title by defendants, without leading evidence to substantiate his
title or establishing cloud on plaintiff's title, would not mandate
prayer for declaration and suit for bare injunction would be
maintainable. Therefore, withdrawal of prayer for declaration of
title, would not be fatal to this appeal.
17. Heard learned counsel, perused impugned
judgment and decree and record.
18. This appeal is by unsuccessful plaintiff in suit filed
for declaration of her title and possession over suit property
and for permanent injunction restraining defendant from
interfering with plaintiff's possession over it.
19. Main ground urged herein is erroneous finding
about Ex.P2 being unreliable and non-appreciation of material
on record, i.e. grant certificate, Patta Books and Hiduvali
Certificates Exs.P2, P11, P12 and P18 duly corroborated by RTC
Extract, RoRs and Tax Paid Receipts - Exs.P5 to P10, P13 to
P16. Especially when denial of plaintiff's title and possession
was without producing documents of title or disclosing manner
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of acquisition of right, title or interest over suit property and
when defendant admitted about grant of 4 Acres of land to
plaintiff in Sy.no.9/2. Substantial questions of law proposed are
alleging perversity for ignoring Ex.P2 by illegally treating it as
unacceptable; treating Exs.D1, D3 and D4, which are
unacceptable as acceptable evidence, ignoring admission about
grant of 4 Acres in Sy.no.9/2 to plaintiff and erroneous
conclusion that boundaries of suit property do not tally with
Ex.P2.
20. Insofar as maintainability of suit for bare injunction,
Hon'ble Supreme Court in TV Ramakrishna Reddy v. M.
Mallappa, reported in (2021) 13 SCC 135, has held such suit
would be maintainable only where plaintiff's title is not in
dispute or under a cloud. It is contended here that there is bare
denial and without even disclosing manner of acquisition of
title, unlike plaintiff, who produced Ex.P2 - grant certificate,
Exs.P11 and P12 - Patta Books, Ex.P18 - Hiduvali Certificate for
title and RTC Extracts, RoRs and Tax Paid Receipts - Exs.P5 to
P10 and P13 to P16 to establish possession.
21. While passing impugned judgment, trial Court
observed dispute was not about grant of 4 Acres of land to
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plaintiff in Sy.no.9/2, but about its identity and to establish
same, plaintiff produced Ex.P2 - P18. On Ex.P2, it noted
unattested overwriting or correction of block number, survey
number as well as boundaries on eastern and western side.
Due to lack of explanation, it held Ex.P2 to be a materially
altered document and unreliable. Likewise, it noted that there
was no mention of block and survey number in Ex.P4 and
boundaries mentioned i.e., East by Sy.no.15; West by Block-II,
Sy.no.9/2; North and South by Private Lands, substantially
differed in comparison with Ex.P18 and plaint schedule. It also
noted Exs.P5 to P14 did not mention boundaries. It also
referred to oral evidence of PW.1 wherein he stated Block-II
Sy.no.9 was granted to his mother, he does not know to whom
Block-I belongs to, that he does not know block number and
survey number of lands of Shivananjappa, Ramaiah,
Siddalaiah, Buddathimmaiah, Nanjamma and Siddagangamma.
PW.1 also admitted about mentioning boundaries of defendants
land in suit schedule. In view of alteration of Ex.P2 as well as
admission about boundaries of suit schedule being that of
defendants property, it answered issue regarding title of
plaintiff in negative. Insofar as possession, it observed other
exhibits were prepared in pursuance of Ex.P2 and in view of
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admission about erroneous boundaries, documentary evidence
stood discharged. Based on above conclusions, it dismissed
suit.
22. In appeal, first appellate Court notes boundaries of
plaintiff's property mentioned in Ex.P2 and observes tampering
of survey numbers in Eastern and Western boundaries as well
as block number. Thereafter, it refers to Ex.P3 and notes that
Eastern boundary would be Sy.no.9 while Western boundary
would be Block no.II and notes that same would not tally with
suit property. It observes that PW.1 did not explain above
discrepancies. On other hand, PW.1 gave totally different
boundaries. And due to involvement in earlier litigation, it found
deposition of PWs.2 and 3 to be biased and unreliable. It
observes when dispute between parties was about boundaries,
plaintiff failed to explain discrepancies, claim of defendants
depended on adjudicated boundaries mentioned in
O.S.no.135/1987 and O.S.no.8/1992. In light of same, it held
plaintiff not entitled for presumption under Section 133 of
Karnataka Land Revenue Act, 1964. Thereafter, it referred to
Ex.D6 - sketch showing Block no.I being in possession of
defendant no.1, bounded on East by Block no.IIB and on West
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Block no.II which differed from suit property. On said
observation, it concluded findings of trial Court about plaintiff
failing to prove possession over suit property was fully justified
and dismissed Appeal.
23. In view of above, though learned counsel for
plaintiff would be justified in contending about maintainability
of suit for bare injunction, even if plaintiff's case is considered
or examined de horse dispute about title, existence of serious
dispute about identification of plaintiff's property would appear
justified. It is also seen, plaintiff's claim over suit property rests
substantially on grant sought to be established by producing
Ex.P2, which is concurrently held to be tampered. As per ratio
in Padmini Raghavan v. H.A. Sonnappa and Ors., reported
in ILR 2014 Kar 233; Sheetawwa v. Hemareddi, reported
in 2003 SCC OnLine Kar 623 and K.M. Basappa v. Patel
Marule Gowda, reported in 1951 SCC OnLine Kar 13, no
relief can be granted, where plaintiff relies on tampered
documents. Though learned counsel for plaintiff contends other
documents would be consistent both insofar as boundaries,
measurement and survey numbers, as noted by both Courts
deposition of plaintiff himself militates against his claim.
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24. Moreover, both Courts have concurrently held,
there are serious contradictions in boundary description of
plaintiff's property in Exhibits relied upon and plaint schedule.
Under such circumstances, when PW.1 admits about
mentioning boundaries of defendants land in suit schedule, and
deposition of PWs.2 and 3 are held biased/unreliable due to
earlier litigation, merely on basis of admission of defendants
about grant of land to plaintiff, suit for permanent injunction,
without establishing grant of suit property would appear
untenable. In view of Ex.P2 being held unreliable due to
tampering, finding of both Courts that plaintiff failed to
establish title or possession over suit property, cannot be held
to be contrary to law or unjustified.
25. No substantial questions of law including those
proposed do not arise for consideration. Consequently,
following:
ORDER
Appeal is dismissed.
Sd/-
(RAVI V. HOSMANI)
JUDGE
Psg/AV/GRD
