Karnataka High Court
Boramma vs C Ramakrishna on 23 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:21809
RSA No. 1541 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1541 OF 2024 (INJ)
BETWEEN:
1. BORAMMA,
W/O LATE BORAIAH,
AGED ABOUT 90 YEARS,
HOUSEHOLD,
KAVALAGUNDI POST,
BHADRAVATHI-577229,
REP. BY HER GPA HOLDER,
K.G.GANGADHARA,
S/O LATE BORAIAH
AGED ABOUT 68 YEARS,
KAVALAGUNDI POST,
BHADRAVATHI-577 229.
...APPELLANT
Digitally signed (BY SRI. VARADARAJ RANGANATHA RAO HAVALDAR,
by DEVIKA M
ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. C. RAMAKRISHNA,
S/O LATE THIMMAIAH,
AGED ABOUT 69 YEARS,
RETIRED POLICE CONSTABLE.
2. SURESH,
S/O LATE THIMMAIAH,
AGED ABOUT 63 YEARS,
AGRICULTURIST.
BOTH ARE
R/O VEERAPURA VILLAGE,
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RSA No. 1541 of 2024
HC-KAR
SIRIYUR POST,
BHADRAVATHI TALUK-577 229.
...RESPONDENTS
(BY SRI. VINAY D. HOSMATH, ADVOCATE FOR R1 AND R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 12.08.2024
PASSED IN R.A.NO.70/2023 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE, BHADRAVATHI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 01.04.2023 PASSED IN
O.S.NO.249/2016 ON THE FILE OF THE C/C IV ADDITIONAL
CIVIL JUDGE AND JMFC, BHADRAVATHI.
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 and the learned counsel for the
respondents.
2. The factual matrix of the case of the plaintiff is
that the suit was filed seeking the relief of permanent
injunction claiming that the plaintiff is in possession of the suit
schedule property since the year 1950-51. The property is
morefully described in the schedule. It is also contended that
the plaintiff was in possession of the same along with her
husband and was using the same to tether the cattle and
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subsequently she put the cattle shed therein. During 1973,
one Nanjappa S/o Siddegowda executed an agreement in
respect of the said property in favour of the plaintiff.
Accordingly, the plaintiff gave an application for change of
khatha in her name based on possession and also based on
the said agreement. Thereafter, the name of the plaintiff is
entered as the owner in possession and enjoyment of the
schedule property in the panchayath records since the year
1982-83 and accordingly she is paying taxes to the concerned
authority. Earlier the suit schedule property was under the
administrative control of the Kadadakatte Village Panchayath
and subsequently it was taken over by the Grama Panchayath
and now the said suit schedule property comes within the
limits of City Municipality, Bhadravathi. Due to rain and
storm, the shed situated in the suit schedule property is
collapsed and now it is a vacant site. The defendants are the
mother and sons and without any right they are interfering
with the possession of the suit schedule property by the
plaintiff and hence the plaintiff filed a suit.
3. It is also the case of the plaintiff that originally the
land bearing Sy.No.23 of Kadadakatte Village belonged to one
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Somaiah. The said Somaiah had two sons and both divided
the property by way of a registered partition deed, wherein
the eldest son Manjunathaiah got 3 acres in Sy.No.23/1 and
another son Shankaranarayana got 3 acres in Sy.No.23/2 and
Somaiah got 1 acre 20 guntas in Sy.No.23/2. Subsequently,
the said Shankaranarayana sold 35 guntas of land out of his
share, to one Nanjappa S/o Siddegowda, under a registered
sale deed dated 02.11.1960. In the said sale deed, the
survey number is wrongly mentioned as Sy.No.23/1 instead of
Sy.No.23/2. It is contended that on 31.01.1961, the said
Nanjappa sold an extent of 3 guntas in Sy.No.23/1 in favour
of Javaraiah S/o Dasegowda. But the said original vendor had
no right over the land bearing Sy.No.23/1. The defendants
are the widow and children of one Thimmaiah, who is the son
of Javaraiah. It is also the contention that earlier the
defendants had filed O.S.No.322/2009 against the plaintiff
seeking the relief of permanent injunction and obtained
exparte injunction order. However, subsequently, the said
suit came to be dismissed and the same has attained finality.
The boundaries to the suit schedule property and the
defendants' properties are entirely different. But, inspite of
the same, the defendants are trying to interfere with the
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possession of the plaintiff over the suit schedule property and
hence sought for the relief.
4. Per contra, the defendants appeared and filed the
written statement contending that the father-in-law of
defendant No.1 by name, Javaraiah had purchased 3 guntas
of land in Sy.No.23/1G at Kadadakatte Village with specific
boundaries from one Nanjappa S/o Siddegowda under a
registered sale deed dated 28.01.1961. Accordingly, he was
in possession and enjoyment of the same by mutating the
khatha and after the death of Javaraiah, the khatha of the
written statement schedule property is mutated in the name
of his son Thimmaiah and accordingly he was in possession
and enjoyment of the same. Thimmaiah died on 26.06.2011
and thereafter the defendants being the class-I heirs of the
said Thimmaiah are in possession of the written statement
property. It is contended that the plaintiff is not having any
right over the suit schedule property.
5. The Trial Court having considered the pleadings of
both the parties, framed the issues regarding possession is
concerned and dismissed the suit in coming to the conclusion
that though the plaintiff claims that she is in possession of the
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suit schedule property from 1950-51, no documents are
placed before the Court. Though it is claimed that an
agreement was entered in the year 1973, the said agreement
was not placed on record and hence the Trial Court comes to
the conclusion that with regard to the identity of the property
and possession is concerned, except placing of document
Ex.P.8, nothing is placed on record. Ex.P.8 is the sketch and
to that effect discussion was made in paragraph No.14 that
the same has not been proved and the author of the
document also not been examined. Ex.P.11 is the
endorsement and Ex.P.17 is the certificate by CMC. The Trial
Court having considered those documents comes to the
conclusion that the plaintiff has failed to prove her possession
and hence not entitled for the relief of permanent injunction.
6. Being aggrieved by the judgment and decree of
the Trial Court, R.A.No.70/2023 is filed. The First Appellate
Court having considered the grounds urged in the appeal
memo, formulated the points whether the Trial Court
committed an error in dismissing the suit and whether it
requires interference of the Court. The First Appellate Court
having considered the pleadings of the parties and also the
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schedule, which has been extracted in paragraph No.19,
discussion was made in paragraph No.20 and comes to the
conclusion that the property which is in dispute is a vacant
site. The discussion was made in paragraph No.22 regarding
the claim made by the plaintiff and in paragraph No.24 the
First Appellate Court taken note of that the plaintiff has not
produced the agreement said to have been executed by
Nanjappa in her favour during the year 1973, based on which
her name is entered in the panchayath records. It is also
taken note of that it is not in dispute that demand register
extract for Kadadakatte Panchayath for the year 1982-83
discloses the name of the plaintiff as the owner in possession
and enjoyment of the suit schedule property. But the plaintiff
has not produced any document to show that she has been
put in possession of the suit schedule property. It is also
taken note of the sketch which has been relied upon and also
taken note of the earlier injunction was granted in favour of
the defendants and the same was challenged and confirmed
by this Court also and made an observation that when the
plaintiff seeks the relief of permanent injunction, she should
prove the possession. In order to prove the possession,
nothing is placed on record. On the other hand, the
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defendants have placed the records before the Court and
hence dismissed the appeal.
7. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
8. The main contention of the learned counsel for the
appellant before this Court is that both the Courts have
committed an error in not considering the documents Exs.P.8,
11 and 17 and those documents discloses that the
appellant/plaintiff is in possession of the suit schedule
property. The learned counsel contend that this Court has to
frame substantial question of law regarding possessory right
of the plaintiff over the plaint schedule property, which is
recognised and protected in law, particularly the plaintiff's
documents of Exs.P.5, 8, 17 is very clear and frame
substantial question of law regarding possession is concerned.
9. Per contra, the learned counsel for the
respondents would contend that though the plaintiff claims
the title over the property, no such document is placed on
record. The learned counsel contend that the plaintiff claims
that she is in possession from 1950-51 onwards and no
documents are placed on record. However, again claims that
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the plaintiff is in possession over the suit schedule property
from 1973 based on the agreement and the said agreement is
also not placed on record. The document of Ex.P.8, which the
plaintiff relies upon has also not been proved by examining
the author of the document. All these aspects have been
taken note of by the Trial Court and the First Appellate Court
and while granting the relief of permanent injunction, it is
settled law that the plaintiff has to prove her possession and
in order to prove her possession, no documents are placed on
record and hence the question of entertaining the second
appeal does not arise and no grounds are made out to frame
the substantial question of law.
10. Having heard the learned counsel for the appellant
and the learned counsel for the respondents, it is not in
dispute that the plaintiff had filed the suit for the relief of
permanent injunction and in order to prove the possession is
concerned, only relies upon the document of Ex.P.8 sketch
and the same has not been proved by examining any
authenticated person. Apart from that, when the claim is
made based on the agreement that the same came into
existence in 1973, the said agreement is also not placed on
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record. The learned counsel for the respondents submits that
what prevented the plaintiff from placing on record the said
agreement and the learned counsel for the appellant submits
that the same was misplaced. In order to prove the factum
of identity of the property and also the possession, no
documents are placed on record and only relies upon the
documents of Ex.P.11 endorsement and Ex.P.17 certificate
issued by CMC and the plaintiff examined three witnesses as
P.W.1 to P.W.3.
11. It is settled law that while granting the relief of
permanent injunction, the plaintiff has to prove that as on the
date of filing of the suit, she has been in possession of the
suit schedule property and there is an interference. No
material document is placed on record for having put her in
possession of the property and though relies upon the
agreement, no such agreement is also placed on record and
the same is also observed by the Trial Court and the First
Appellate Court. The plaintiff has not produced any
documents to show that she was put in possession of the suit
schedule property and hence the question of granting the
relief of permanent injunction does not arise. Both the Courts
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have taken note of both oral and documentary evidence
placed on record. Unless the plaintiff proves the identity of
the property and possession is proved, the question of
granting the injunction does not arise. When both the Courts
have taken note of the material available on record and given
fact finding and unless the appellant makes out any perversity
in the finding of both the Courts, the question of entertaining
the second appeal does not arise and no substantial question
of law is made out by the appellant to admit the second
appeal. Hence, I do not find any ground to admit the second
appeal and frame substantial question of law.
12. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
