Karnataka High Court
Sri B R Venkatesh Murhty vs Smt Devika B R on 9 July, 2025
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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NC: 2025:KHC:24997
RFA No. 1763 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO. 1763 OF 2017 (INJ)
BETWEEN:
SRI. B.R.VENKATESH MURHTY
S/O LATE SRI RAMAIAH,
AGED ABOUT 53 YEARS,
R/AT NO.3, 7TH CROSS,
SHIVANAGAR, WEST OF CHORD ROAD,
RAJAJINAGAR, BENGALURU 560 010.
...APPELLANT
(BY SRI. G.B.NANDISH GOWDA., ADVOCATE)
AND:
1. SMT. DEVIKA.B.R.
W/O LATE SRI. HANUMEGOWDA,
AGED ABOUT 46 YEARS,
2. SRI. YOGESH.H
Digitally signed by
THEJAS KUMAR N S/O LATE HANUMEGOWDA,
Location: HIGH AGED ABOUT 27 YEARS,
COURT OF
KARNATAKA
BOTH ARE R/AT NO.3/1,
7TH CROSS,SHIVANAGAR,
WEST OF CHORD ROAD,
RAJAJINAGAR,
BENGALURU-560 010.
...RESPONDENTS
(BY SRI. SATHISH., ADVOCATE FOR R1 & 2 [ABSENT])
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE.
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RFA No. 1763 of 2017
HC-KAR
THIS REGULAR FIRST APPEAL IS LISTED FOR FINAL
HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED AS
UNDER:
ORAL JUDGMENT
Sri.Nandish Gowda, counsel on behalf of R.B.
Sadasivappa, for the appellant, has appeared in person.
There is no representation on behalf of respondents 1 and
2, either personally or through video conferencing.
As could be seen from the daily order sheet, the appeal
was listed on 13.01.2025, 23.01.2025 and 03.07.2025. On
those days, there was no representation on behalf of
respondents 1 and 2. The appeal is listed today. As already
noted above, today also there is also no representation on
behalf of respondents 1 and 2. Hence, this Court proceeds to
pass an order on the merits of the case.
2. This is an appeal from the Court of XX Addl. City
Civil and Sessions Judge, (CCH-32), Bangalore City.
3. For convenience's sake, the parties are referred to
as per their status and rankings before the Trial Court.
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4. The short facts are these:
The first plaintiff contended that her husband,
Hanumegowda, died on 08.12.1991, and his brother Giriyappa
predeceased him. There was a partition in her husband's family
on 20.01.1998, and her son was allotted a property. It is said
that she could not eke out her livelihood at Narasaiahana
Agrahara, hence, she alienated the property on 25.11.2004 to
one P.Alvi Mohammed for a valuable consideration and shifted
to Bengaluru by purchasing the suit schedule property from
Gangadhara S/o.Thimmaiah. She contended that her son was a
minor and hence, the property was purchased in her name.
Alleging interference from the defendant, the plaintiffs filed a
suit seeking the relief of an injunction.
After service of the summons, the defendant appeared
through his counsel and filed a written statement. He denied
the plaint averments. The defendant specifically contended that
since he fulfilled the family obligations, his sister and mother
jointly bequeathed the property in his favor, on 23.12.2012, by
executing a registered Gift Deed. Among other grounds, he
prayed for dismissal of the suit.
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The Trial Court framed issues. The parties led evidence
and documents were exhibited. The Trial Court vide Judgment
dated 04.09.2017 decreed the suit and the defendant or
anybody on his behalf were permanently restrained from
interfering with the plaintiff's peaceful possession and
enjoyment of the suit schedule property. Hence, the defendant
has filed the present appeal under Section 96 of CPC.
5. Sri.G.B.Nandish Gowda, counsel for the appellant,
submits that the Judgment of the Trial Court is contrary to law
and opposed to the oral and documentary evidence on record.
Next, he submits that Smt.B.R.Devika - the first plaintiff
and mother Smt.Rangamma executed a Gift Deed out of love
and affection in favor of the defendant on 23.12.2012 and put
him in possession of the property.
A further submission is made that the first plaintiff was
not the owner in possession of the suit schedule property as of
the date of filing of the suit.
Counsel vehemently contended that the Trial Court had
not dealt with the case from the right perspective.
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Lastly, he submits that viewed from any angle, the
Judgment and Decree of the Trial Court is untenable and the
same is liable to be set aside. Counsel, therefore, submits that
the appeal may be allowed.
6. Heard the arguments and perused the appeal
papers and the records with care.
7. The short point that requires consideration is
whether the Judgment and Decree of the Trial Court requires
interference.
8. The facts are sufficiently said and do not require
reiteration. The suit giving rise to this appeal was filed by the
plaintiffs seeking the relief of an injunction. As could be seen
from the nature of the lis between the parties, the suit is one
for bare injunction based on possession as of the date of filing
of the suit. The right to an injunction is based on a prima facie
right. The issue revolves around the factum of possession as of
the date of filing of the suit. It would be relevant to see that in
a suit for bare injunction, the plaintiff must prove her/his lawful
possession and enjoyment over the suit property as of the date
of filing of the suit.
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Suffice it to note that the property originally belonged to
one Thimmaiah. It is significant to note that Thimmaiah sold a
major portion of the property in favor of Smt.Rangamma -
mother of the first plaintiff and the defendant in 1975. It is
pivotal to note that the plaintiff purchased the remaining
portion of the property on 30.12.2006 from Mr.Gangadhara
S/o.Thimmaiah.
Ex.P.1 is the Sale Deed dated 30.12.2006. A perusal of
the daily order sheet of the Trial Court dated 10.04.2018
depicts that the original documents were returned to the
plaintiff by replacing them with certified copies. A perusal of the
certified copy of Ex.P.1 reflects that S.T.Gangadhara
S/o.Thimmaiah sold the property in favor of Smt.B.R.Devika -
the first plaintiff. It is pivotal to note that the defendant fulfilled
the family obligations; hence, the mother and sister, out of love
and affection bequeathed the entire property in defendant's
favor by jointly executing a Gift Deed on 23.11.2012 and put
him in possession of the property. Because of the Gift Deed,
the first plaintiff and her mother had lost title over the suit-
schedule property. In my view, the Trial Court unnecessarily
took pains to discuss the issue as if it were a partition suit. As
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already noted above, in a suit for bare injunction, what is
required to be considered is prima facie ownership and
possession over the suit schedule property as of the date of
filing of the suit. In the present case, admittedly, the first
plaintiff and her mother Rangamma had lost title and prima
facie ownership over the suit schedule property as of the date
of filing of the suit. This aspect of the matter has been
overlooked by the Trial Court, and it erroneously decreed the
suit. I may venture to say that the Trial Court has failed to
have regard to relevant considerations and disregarded
relevant matters. For the reasons stated above, the Judgment
and Decree of the Trial Court are liable to be set aside.
9. The Judgment and Decree dated 04.09.2017 passed
by the XX Addl. City Civil and Sessions Judge (CCH-32),
Bangalore City in O.S.No.6236/2013 is set aside. The plaintiffs'
suit is dismissed.
10. Resultantly, the Regular First Appeal is allowed.
Sd/-
(JYOTI MULIMANI)
JUDGE
TKN
