Karnataka High Court
Smt. H.J. Hemalatha vs A V Sharadadevi on 1 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:23359
RSA No. 703 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.703 OF 2025 (POS)
BETWEEN:
1. SMT. H.J. HEMALATHA,
W/O. LATE A.V.JAYAVIBHASWAMY,
AGED ABOUT 59 YEARS,
R/O. HOUSE NO.1099,
F-16, 1ST MAIN, 2ND CROSS,
VIDYARANYAPURAM,
MYSURU-560 097.
...APPELLANT
(BY SRI. RAVI H.K., ADVOCATE)
AND:
1. A.V. SHARADADEVI,
Digitally signed D/O. LATE ANNAGERE VEERAPPA,
by DEVIKA M
AGED ABOUT 45 YEARS,
Location: HIGH
COURT OF R/O. HOUSE NO.695/1B,
KARNATAKA BEHIND PADMA THEATRE,
MS SIDDAPPA LAYA,
OLD AGRAHARA,
MYSURU-583 128.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.02.2025.
PASSED IN R.A.NO.76/2021 ON THE FILE OF THE V
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.03.2021 PASSED IN
O.S.NO.430/2013 ON THE FILE OF THE IV ADDITIONAL I
CIVIL JUDGE, MYSURU.
-2-
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RSA No. 703 of 2025
HC-KAR
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. This second appeal is filed against the concurrent
finding.
3. The case of the plaintiff before the Trial Court is
that the suit schedule property belongs to the plaintiff and the
defendant is in permissive possession over the suit schedule
property. Hence, sought for the relief of possession of the
suit schedule property. The plaintiff in order to prove her
case examined herself as P.W.1 and examined one witness as
P.W.2 and got marked the documents at Exs.P.1 to 33. On
the other hand, the defendant examined herself as D.W.1 and
got marked the documents at Exs.D.1 to 41. The Trial Court
having considered the material available on record, taken
note of the admission on the part of D.W.1 that she cannot
say on what basis she has been in possession, but only says
that her husband brought her and they are residing in the
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said property. Though she claims that she is also a co-owner,
nothing is placed on record to contend that the property
belongs to the family. On the other hand, the plaintiff
produced the sale deed Ex.P.1 and also produced the
document of agreement dated 10.12.2008, wherein the
defendant and her husband have agreed to handover the
vacant possession of the schedule property in the same
condition and also agreed to pay the damages. Having
considered the said agreement, which is marked as Ex.P.27,
the Trial Court comes to the conclusion that there was an
agreement that the defendant is in permissive possession and
hence granted the relief as sought.
4. Being aggrieved by the said judgment and decree,
an appeal is filed in R.A.No.76/2021. The First Appellate
Court having considered the grounds which have been urged
in the appeal memo, formulated the point whether the Trial
Court erred in decreeing the suit relying upon oral and
documentary evidence placed on record and whether the
judgment of the Trial Court requires interference. The First
Appellate Court re-appreciating both oral and documentary
evidence placed on record, affirmed the judgment of the Trial
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Court and even taken note of that at an undisputed point of
time, document Ex.P.16 came into existence and none of the
parties to the said document have challenged the validity of
the said document nor they have denied the execution of the
said document. The defendant has taken the contention that
her husband and brothers have obtained some of the
signatures of the defendant on the stamp paper forcibly. The
First Appellate Court also extracted the evidence of D.W.1
that earlier they were in leased property bearing No.695/1B
and the same was quit and delivered and also agreed the
recitals of the document of Ex.P.17 and the defendant also
signed the said document. D.W.1 in the cross-examination
has categorically admitted that the property was standing in
the name of the plaintiff and they were paying the rent from
2005 onwards. The First Appellate Court also taken note of
the filing of the case in terms of Ex.D.1 i.e., order sheet in
O.S.No.17/2011, which is filed by the defendant against her
husband and others for the relief of perpetual injunction and
the same was withdrawn with liberty to file a fresh suit. The
First Appellate Court also taken note of Ex.D.2, wherein
declaration is sought to declare the defendant as the legal
heir. The First Appellate Court taken note of Ex.P.29 notice
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issued to the Superintendent of Post by the defendant
Hemalatha, wherein in the said document there is a recital
admitting the ownership of the plaintiff and the same is
extracted in paragraph No.36. In paragraph No.37, extracted
the evidence of D.W.1, wherein she has categorically deposed
that she is not aware of the fact that on what basis she is in
possession of the suit property. Having culled out the
admission on the part of D.W.1, the First Appellate Court
confirmed the judgment of the Trial Court.
5. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
6. The main contention of the learned counsel for the
appellant before this Court is that the Courts below erred in
believing the document of Ex.P.27, which is an alleged
agreement dated 10.12.2008 and the same is on a plain
paper and the said document is neither registered nor
stamped. The learned counsel contend that the witnesses to
the said agreement are the brothers of the plaintiff and both
the Courts have committed an error in relying upon the
document of Ex.P.27 and the same is a disputed document.
Both the Courts committed an error in believing that the
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plaintiff is the absolute owner of the suit schedule property
based on the sale deed dated 29.08.2005 and the said
property was purchased out of the funds contributed by the
husband of the defendant from the income generated from
the sale of the property and the same has not been
considered by the Court. The learned counsel prayed this
Court to frame the substantial question of law that both the
Courts are not justified in believing Ex.P.27, which is an
alleged agreement dated 10.12.2008.
7. Having heard the learned counsel for the appellant
and also on perusal of the reasons assigned by the Trial
Court, the Trial Court taken note of the pleadings of the
plaintiff. The plaintiff mainly relies upon the documents of
Exs.P.27 and 29 to show that the defendant is residing in the
suit schedule property under permissive possession, which
was admitted by D.W.1 in the cross-examination. In order to
disprove the contention of the defendant, nothing is elicited
from the mouth of the witnesses and produced the relevant
documents to show that the defendant became the owner of
the suit property as co-owner and the same is observed in
paragraph No.22 of the Trial Court judgment. The plaintiff
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also produced the sale deed Ex.P.1 to show that it is the self-
acquired property of the plaintiff. Hence, answered issue
No.2 in the affirmative.
8. The First Appellate Court on re-appreciation of
both oral and documentary evidence placed on record,
particularly relied upon the document Ex.P.27, wherein there
was an undertaking given by the defendant as well as her
husband to quit and vacate the premises. The First Appellate
Court also re-assessed the evidence available on record and
taken note of that at undisputed point of time the document
came into existence and immediate possession was given to
the defendant since they were earlier residing in a leased
premises and the same was vacated. In paragraph Nos.31
and 36 extracted the admission on the part of D.W.1 and so
also in paragraph No.37. When such material is available
before the Court, I do not find any error committed by both
the Courts in considering the document of Ex.P.27. No doubt,
the learned counsel for the appellant would contend that the
same is disputed, but signature is not disputed and only
contention is taken that the signature is taken on blank paper.
But to corroborate the same, nothing is placed on record and
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the same has been considered by both the Trial Court and
First Appellate Court. The very contention that the defendant
is also co-owner is not supported by placing on record any
cogent material. When such being the case, the very
contention of the learned counsel for the appellant that both
the Courts committed an error in believing the documents of
Exs.P.27 and 29 cannot be accepted. Hence, no grounds are
made out to admit the appeal and frame substantial question
of law.
9. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
